B.R. Arora, J.
1. This appeal is directed against the judgment dated 10-8-1987, passed by the Sessions Judge, Bhilwara, by which the learned Sessions Judge convicted the accused-appellant for the offence under Section 302, I.P.C. and sentenced him to undergo imprisonment for life and a fine of Rs. 500/ - and in default of payment of fine to further undergo one month's rigorous imprisonment.
2. Appellant Sampat Lal, along with his brothers Mitha Lal and Shanker Lal, was tried by the learned Sessions Judge, Bhilwara under Section 302, I.P.C. for committing the murder of Ram Lal -- the brother-in-law of accused Sampat Lal -- while he was sleeping in the house of Narain Lal in village Panotiya. The case of the prosecution is that Ram Lal was called by Shanker Lal from his village Panotiya to village Aaspur on 25-2-1986 and in the night intervening between 25th and 26th February, 1986, he was sleeping on a cot in the house of Narain Lal. Accused Sampat Lal was, also, sleeping on the adjoining cot and in the morning of 26-2-1986, Ram Lal was found murdered and the accused was not found present in the village. The cause of murder, according to the prosecution, was that Ram Lal -- the deceased --asked his brother-in-law accused Sampat Lal that he was doing no work and, therefore, he would not send his sister to his house, which enraged the accused and while Ram Lal was sleeping in the night, the accused committed his murder. The prosecution, in support of its case, examined eighteen witnesses. Out of these eighteen witnesses, PW 2 Narain, PW 3 Mangi Lal, PW 4 Mangi, PW 5 Rampal and PW 6 Ganesh did not support the prosecution case and they were declared hostile. The accused did not examine any witness in the defence. The learned Sessions Judge, after trial, by his judgment dated 10-8-1987, convicted and sentenced the accused-appellant for the offence under Section 302, I.P.C., as stated above, but he acquitted co-accused Mitha Lal and Shanker Lal of the offence under Section 302/34, I.P.C. It is against this judgment dated 10-8-1987 that the appellant has preferred this appeal.
3. There is no eye witness to the occurrence and the prosecution case mainly rests upon the circumstantial evidence. The circumstances, which were relied upon by the prosecution and believed by the learned Sessions Judge, are: (i) the motive with the accused to kill Ram Lal as he was not sending his sister (the wife of the accused) to the house of the accused which enraged the accused; (ii) the accused along with the deceased slept in the house of Narain Lal in the night intervening 25th and 26th February, 1986 and on the next day the accused was found absconding; (iii) the extra-judicial confession allegedly made by the accused-appellant before PW 16 Suraj Mal: (iv) the recoveries of the clothes of the accused at the time of his arrest which were found stained with human blood; and (v) the recovery of the bloodstained Kulhari (an axe) -- the weapon of the offence -- on the information and at the instance of the accused.
4. The question, which requires consideration in the present case, is: whether the circumstances relied upon by the prosecution and believed by the learned trial Court, stand established from the evidence produced on record and whether they complete the chain and from these circumstances the inference of the guilt of the accused can only be drawn and there is no escape from the conclusion that within all human probabilities, the crime was committed by the accused alone and by none else ?
5. The first circumstance, relied upon by the prosecution and believed by the learned trial Court, is that the accused was not earning anything and, therefore, his in-laws were not sending his wife with him and on the fateful night, deceased Ram Lal specifically told the accused that if he would not start earning he would not send his sister to his house, which enraged the accused. To prove this motive, the prosecution has produced PW 4 Smt. Mangi -- the mother of the accused-appellant -- and PW 6 Ganesh. PW 4 Smt. Mangi and PW 6 Ganesh, though have been declared hostile, but their whole evidence cannot be wiped-off and that part of their evidence can be relied upon which inspires confidence. PW 4 Smt. Mangi has stated that Sampat was not doing any work and, therefore, his in-laws were not sending his wife to his house. PW 6 Ganesh has admitted in the cross-examination that on the relevant night, deceased Ral Lal asked Sampat Lal to do some work and he should not waste his life and made it clear that if he would not earn anything, he would not send his sister to his house. From the evidence of these two witnesses, it has, therefore, been proved that the accused was not doing any work and had no source of income and, therefore, his in-laws were not sending his wife to him. But merely because the accused was not earning anything and had no source of income and his in-laws were not sending his wife to him, do not give any motive to the accused-appellant to commit such a, heinous crime and murder his brother-in-law, particularly when by committing the murder he would lost all his chances of getting the company of has wife. There was no motive with the accused-appellant to commit the murder of his brother-in-law. The prosecution, though came with the case that the relations of the appellant with his wife Smt. Dewu were strained, but such strained relations have not been proved from the evidence on record.
6. The next circumstance, relied upon by the prosecution and believed by the learned trial Court, is that the accused was found in the house on the previous night and next day he was missing from the village. To support this contention, the prosecution has relied upon the evidence of three witnesses, viz., PW 1 Rameshwar Lal, PW 4 Smt. Mangi and PW 6 Ganesh. PW 1 Rameshwar Lal -- the brother of the accused has not seen the accused in his house on the previous night. He was merely informed by his brother Mitha Lal that the accused was in the house. The evidence of this witness is, therefore, hearsay and does not prove the presence of the accused in the house. From the evidence of PW 4 Smt. Mangi and PW 6 Ganesh, who have been declared hostile, it has not been proved that the accused-appellant was in the house on the previous night and slept in the pole on a cot put adjacent to the cot of deceased Ram Lal. Even if the presence of the accused-appellant in the house is taken to be proved, which was most natural, still his sleeping in the night on the cot put adjacent to the cot of the deceased, has not been proved by the prosecution. On the next day, as per the prosecution case, the accused met PW 16 Suraj Mal in the way and he informed him that he had gone to Badiyamataji's temple. From the evidence produced by the prosecution, the presence of the accused at his house in the night and his sleeping on a cot put adjacent to the cot of Ram Lal, have not been proved by the prosecution beyond reasonable manner of doubt. The learned trial Court was, therefore, not justified in placing reliance over this circumstance in convicting and sentencing the accused-appellant.
7. The third circumstance, which has been relied upon by the prosecution and believed by the learned trial Court, is the extra-judicial confession allegedly made by the accused before PW 16 Suraj Mal. The evidence of extra-judicial confession, though is a weak type of evidence, but it can form the basis for the conviction if it is voluntary, true and trustworthy and the value of the evidence relating to the confession depends upon the veracity of the witness to whom it is made. PW 16 Suraj Mal was not the person in any position who could be helpful to the accused in any way. Moreover, he has no such cordial or intimate relations with the accused-appellant which could have actuated the accused to make confession before him. PW 16 Suraj Mal has stated that he was going to his maternal uncle's house in village Chanwadiya. When he covered a distance of about two miles, accused Sampat Lal met him there, who was going towards the village. He enquired from the accused where he had gone and his family members are in search of him since the night, whereupon the accused informed him that he had gone to Batiyamataji. He, therefore, asked him that if he was going to the village then he may sit on his bicycle. The accused sat on his bicycle and they covered some distance. Suddenly, the accused asked him to stop the bicycle. He came down from the bicycle and made an inquiry from him that he had inflicted injury to his brother-in-law Ram Lal by a Kulhari and whether he is alive or dead. He did not believe the declaration made by the accused but forced him to go to the village. Thereafter he and Sampat both came on foot. In the way, one Gopi Nai met them and asked him why had brought a murderer with him and informed him that Sampat has murdered his brother-in-law and the police is in the village. He came to the village. This witness, during the trial, has stated that the extra-judicial confession was made by the accused before him that he had committed the murder of his brother-in-law but in his statement made during the investigation, he had stated that this disclosure was made by the accused before him that Sampat, Shanker Lal and Mitha Lal committed the murder of Ram Lal. In the cross-examination he has admitted that in his statement before the Police (Ex. D.1) the fact of meeting of Gopi Nai, after covering some distance on the bicycle by the accused and thereafter leaving the bicycle, running away of the accused, living of the accused in the night at Ganpat's house, committing the murder of Ram Lal by Sampat Lal, Mitha Lal and Sampat Lal (Shanker Lal), are mentioned but the same were not disclosed by him to the police. This witness has made several improvements in his statement during the trial in order to make his statement concurrent with the prosecution case and has tried to implicate the accused with the crime. He was not a person in any authority nor he was having any cordial and intimate relations with the accused so that the accused could have made such a declaration implicating himself with the crime. The evidence of this witness regarding making of the extra-judicial confession by the accused before him, does not inspire confidence, particularly in the circumstances when in the earlier statement this witness has disclosed that the accused made the statement implicating himself, Shanker Lal and Mitha Lal with the crime and during the trial he has made improvement in his statement. The prosecution has, therefore, failed to prove this circumstance, also, against the accused. The learned trial Court was, therefore, not justified in believing this circumstantial evidence against the accused-appellant.
8. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the recovery of the blood-stained clothes of the accused at the time of his arrest. The accused was arrested on 27-2-1986 vide Ex. P. 20. The witnesses to the arrest of the accused and the recovery of the clothes are: Mishri Lal and Kishan Lal. Kishan Lal has not been produced in evidence. PW 17 Mishri Lal has stated that, the accused was arrested vide Ex. P. 20 and his clothes were taken from his person. In the cross-examination he has, however, admitted that the accused handed-over a bushirt and a Dhoti after taking them from the house of Narain Lal. He has stated that accused Sampat took out the Bushirt and Dhoti from the house of Narain. From the evidence of this witness it is, therefore, clear that the bushirt and the Dhoti, which were recovered by PW 18 Mohan Lal Dashora, the Investigating Officer, were not recovered from the person of the accused-appellant but they were recovered from the house of Narain though PW 18 Mohan Lal Dashora has stated that the recovery of the clothes was made from the person of the accused-appellant. PW 2 Narain has, also stated that five days after the incident, a Police Constable came to his house and took away the shirt and the Dhoti of accused Sampat Lal which were seized and sealed. PW 16 Suraj Mal met the accused on the next day of the incident, i.e., on 26-2-1986. He was with the accused for some time but he did not notice any blood-stains either on the shirt or the Dhoti of the accused as he has not stated so in his statement. Moreover, nobody would like to wear the clothes having blood-stains on them. The recovery of these clothes and the blood-stains on them, therefore, do not inspire confidence.
9. The next circumstance which has been relied-upon by the prosecution and believed by the learned Sessions Judge is the recovery of the blood-stained Kulhari on the information and at the instance of the accused-appellant. Ex. P. 23 is the information allegedly given by the accused regarding concealment of the Kulhari and Ex. P. 24 is the recovery memo of the blood-stained Kulhari in the presence of Mishri Lal and Kishan Lal, Kishan Lal has not been produced by the prosecution and Mishri Lal has nowhere stated that the Kulhari was recovered in his presence. There, thus, remains the evidence of PW 18 Mohan Lal Dashora, the Deputy Superintendent of Police, who was the Investigating Officer in this case. The independent witnesses of the recoveries have not supported the prosecution case. The evidence of PW 18 Mohan Lal Dashora does not inspire confidence because PW 1 Rameshwar Lal has specifically stated in his examination-in-chief that the Kulhari, which was stained with blood, was lying nearing the cot of deceased Ram Lal, which was seized and sealed by the police. When the Kulhari was found near the dead body of Ram Lal and the recovery had already been made then there was no question of making the recovery of the Kulhari on the alleged information and at the instance of the accused-appellant. Moreover, the alleged recovery of the Kulhari vide Ex. P. 24 has been made from the room which was in the possession of PW 1 Rameshwar Lal and he has admitted that the Kotha belongs to him and he had put lock on it and the key to the lock was with him and nobody had even taken the key to the lock from him and the Kotha was never opened. The prosecution has, therefore, failed to prove the recovery of the Kulhari, also, on the information and at the instance of the accused-appellant.
10. There is one more aspect regarding the recoveries of the clothes of the accused and the Kulhari. The link evidence that these articles remained in the same sealed condition through out since the date of their seizure and sealing till they reached for F.S.L. examination to the State Forensic Science Laboratory, Jaipur is missing. PW 18 Mohan Lal Dashora has stated that the clothes and the Kulhari were taken from the person and possession of the accused and they were seized and sealed. The axe and the clothes were recovered on 27-2-1986. He has nowhere stated where these articles remained after they were seized and sealed. PW 13 Daula Ram, S.H.O., has only stated that on 7-3-1986 he sent the sealed articles for F.S.L. examination through Bheru Singh Constable to the Office of the Superintendent of Police. Bheru Singh (PW 10) has stated that on 14-3-1986 he took five sealed packets from the Police Station and handed them over to one A. V. Joseph, an employee in the S.P. Office, vide Ex. P. 15. PW 15 Narendra Singh Constable has stated that on 14-3-1986, he took five sealed packets of the case in the sealed condition from the Office of the Superintendent of Police and deposited them for F.S.L. examination at the State Forensic Science Laboratory, Jaipur, vide Ex. P. 22. Where the articles remained after their seizure from 27-2-1986 to 7-3-1986, as stated by PW 13 Daula Ram and up to 14-3-1986 as stated by Bheru Singh, has not been explained by the prosecution and the person, with whom these articles remained during this period, has not been produced in evidence. It has, also, not been stated by any of the witnesses that the seals on these articles remained intact through out. PW 10 Bheru Singh has stated that he handed-over the articles to A.V. Joseph but A. V. Joseph has not been produced to prove that the seals on these articles remained intact during the period they remained with him or they remained in the office of the Superintendent of Police. Ex. P. 15 is dated 7-3-1986 but the receipt of the S. P. Office is dated 14-3-1986. The difference of dates given by PW 13 Daula Ram and PW 10 Bheru Singh, also, raises a suspicion. The link evidence that the articles remained in the same sealed condition, is, therefore, missing and as such no reliance can be placed on these recoveries.
11. The prosecution has, therefore, failed to prove that the accused-appellant was the perpetrator of the crime. As the prosecution has failed to prove any circumstance against the accused connecting him with the crimes, the learned Sessions Judge was, therefore, not justified in convicting and sentencing the accused-appellant for the offence under Section 302, I.P.C. The judgment, passed by the learned trial Court, therefore, deserves to be quashed and set aside and the accused-appellant deserves acquittal.
12. In the result, the appeal, filed by accused-appellant Sampt Lal, is allowed. The judgment dated 10-8-1987, passed by the learned Sessions Judge, Bhilwara, convicting and sentencing the accused-appellant for the offence under Section 302, I.P.C., is quashed and set aside and the accused-appellant is acquitted of this offence. The appellant is in jail. He may be released forthwith if he is not required in any other case.