Full Judgment
Milap Chandra, J.
1. This is an appeal against the judgment of the learned Sessions Judge, Banswara dated 26-7-1982 by which he convicted the accused-appellant under Section 302, IPC and sentenced him to life imprisonment. The facts of the case giving rise to this appeal may be summarised thus.
2. On 25-1-1982, at 11.00 a.m. Veeka PW 1 lodged FIR Ex. P 1 in the police station, Kalinjara (Banswara) to the effect that during the last night at about 11.00 p.m. he along with others had gone to the house of Luna Bhil. There the cries were heard coming from the house of the deceased Hakji. Immediately, he along with Deva, Jagji, Ranji came to Hakji's house and saw him lying on the cot seriously injured. He was not able to speak anything. Dhulji PW 2 told them that the accused Kheta had gone away after causing injuries to Hakji by his Kulhari. Hakji has died before the sun rise and Dhulji has sent him for lodging this report. There on, usual investigation was commenced. The accused was arrested and on his information Kulhari and Hajuria were recovered. Both were sent for Chemical Examination. Kulhari was put to an identification parade and the witnesses identified it as belonging to the accused. After completing investigation, a challan was filed against the accused in the Court of Munsif Magistrate, Kushalgarh who committed him to the Court of Sessions, Banswara. The prosecution examined 15 witnesses and produced and proved 19 documents. The accused denied the prosecution story He did not produce any evidence in his defence.
3. It is well proved from the prosecution evidence that the deceased Hakji was seriously injured by a sharp-edged weapon during the night intervening 25th and 25th January, 1982 in his house situated in village Khuni and as a result there of, he died the same night. This aspect of the prosecution case has not been challenged by the learned Counsel for the accused-appellant.
4. The learned Counsel for the accused-appellant contended that Dhulji PW 2 is the solitary witness in this case, his testimony is not of sterling worth and the learned trial Court has seriously erred to convict the accused-appellant on his testimony. He contended that admittedly, occurrence took place in the dark night and there was no light with which the assailant could be identified. He also contended that if the accused-appellant would have been the assailant, his name must have been mentioned in the hue and cry raised by Dhulji. He also contended that the recovery of Kulhari Article 1 at his instance has not connected him with the crime, as admittedly it was not found stained with blood on its chemical examination.
5. The learned Public Prosecutor tried his best to support the judgment of the learned Sessions Judge.
6. The Investigating Officer, Jahur Ahmed PW 15 admits in his cross-examination that Dhulia PW 2 is the solitary eye-witness in this case. Now it is to be seen whether the accused-appellant can safely be held guilty of the murder of Hakji on the basis of solitary statement of Dhulia PW 2. The following facts and circumstances leave no doubt that it would be highly unsafe to base conviction of the accused-appellant on his sole testimony:
(1) Admittedly, murder of Hakji was committed during the night intervening 24th and 25th January, 1982 corresponding to Maha Vadi 14 (Chaudas) and Maha Vadi Amavas, S.Y. 2039 at about 11.00 p.m. There was no moon light at that time of the night. It is the prosecution case that fire wood was burning near the cot of the deceased and in its light Dhulji PW 2 identified the accused Kheta. This fact of light is not mentioned in the FIR Ex. P 1.
(2) It is correct that it is mentioned in the site inspection memo Ex. P 3 and site-plan Ex. P 4 that a furnace was found near the deceased. The words ^^[kkV ds ikl vaxhBk iM+k gqvk gS^^ appearing in memo Ex. P 3 and ikl es vkx dk vaxhBk iM+k gqvk gS^^ appearing in site plan Ex. P 4 are in different ink. Similarly, the sentences ^^oDr okdk esjs HkkbZ [ksrk dh [kkV ds ikl vkx ty jgh Fkh lsk mtkyk Fkk eSus ikap dne nwj ls ns[kk [ksrk ds gkFk es dqYgkM+h Fkh A^^ appearing in the statement of Dhulji PW 2 recorded under Section 161, Cr.PC are also in different ink. The comparative spacing in between the last sentence and the signature of the Investigating Officer appearing in this statement and than these of all other witnesses also leave no doubt that the aforesaid sentences were added after wards. It has been held in Rahim Beg v. State of U.P. : 1972 CriLJ1260 that if that Police Inspector has deviated from truth on minor point, implicit reliance cannot be placed upon his testimony. It has been observed in Harnam Singh v. State 1965 Punjab Law Reporter 960 that when investigation is tainted, it would have an adverse effect upon the evidence of prosecution witnesses. Reference of Jagta v. State of Haryana : 1974 CriLJ1010 and Satbir Singh v. State of Punjab : 1977 CriLJ985 may also be mentioned here. In view of these facts and circumstances, it would not be safe to hold that there was sufficient light at the place of occurrence in which Dhulji PW 2 identified the assailant and would be risky to sustain the conviction of the accuse l-appellant.
(3) Veeka PW 1, Dhulji PW 2 Jagji PW 3 and Deva PW 5 have clearly deposed that none went to the house of the accused Kheta during that night. If the accused appellant Kheta would have been the assailant, some of these witnesses must have gone to his house to enquire the reason for injuring Hakji and to catch hold him. This omission on their parts creates great doubt in their vesion that the accused-appellant was the assailant.
(4) The occurrence took place at about 11 p.m. during the night intervening 24th and 25th January, 1982. The FIR Ex.P 1 was lodged in the police station, Kalinjara at 11 a.m. on 25-1-1982 when the police station was only at a distance of 10 Kms. from the place of occurrence. It is also clear from the order of the Munsif cum-Judicial Magistrate, Kushalgarh appearing on the FIR Ex.Pl that it was received at 4 p.m. on 27-1-1982. No explanation has been offered for not sending immediately the FIR to the Magistrate as required under Section 157, Cr.PC.
7. The statement of Dhulji PW 2 is full of contradictions and inconsistencies. In his examination-in-chief, he says that he saw the accused Kheta inflicting two blows of his Kulhari upon the deceased Hakji and, thereafter, he ran away towards the river of the village. In cross-examination, he disclosed that when he entered into the room of the deceased Hakji, he found him sleeping with his face covered, he removed the covering and found blood on his face. In re-examination, he categorically stated that he did not see the accused appellant injuring the deceased and he cannot say as to how he earlier disclosed in his examination that he saw the accused appellant injuring the deceased in his cross-examination, Dhulji PW 2 disclosed that the face of the assailant was completely muffled and he saw his eyes only. He has not disclosed as to how he could identify that the assailant was none-else but the accused Kheta. In re-examination-in-chief, he stated that immediately after receiving injuries, the deceased stood up from his cot and in cross-examination he disclosed that he found the deceased lying on the cot in an injured condition.
8. Dhulji PW 2 admits that he did not try to catch hold the accused-appellant. He has also not deposed that he identified that accused-appellant from his voice. Admittedly, the accused-appellant was known to Veeka PW 1, Dhulji PW 2, Jagji PW 3 and Deva PW 5 prior to the occurrence. It is also clear from their statements that none made an effort to catch hold during that night.
9. Veeka PW 1, Dhulji PW 2 and Sagli PW 6 have deposed that Mst. Kapudi aunt of the deceased Hakji used to sleep in the house of the accused-appellant Kheta and on this point, Hakji was greatly annoyed with the accused Kheta. They have also stated that there was dispute in between the accused and the deceased over some trees. It seems that due to the strained relations in between the accused and the deceased, he was named as the assailant in the FIR Ex.P 1.
10. It is well proved from the report Ex. P 13 of the Director, State Forensic Science Laboratory, Rajasthan, Jaipur that no human blood was found on the Kulhari Article 1 which was recovered from the accused-appellant. Its identification by the prosecution witnesses is also of no avail for this reason. It is not understandable as to how the prosecution witnesses could identify it without pointing out any special mark on it. Are is an article which is found almost in every house in that area.
11. There is no other evidence on record against the accused-appellant. As such he deserves to be acquitted.
12. In the result, the appeal is allowed and the accused-appellant is acquitted of the offence punishable under Section 302. IPC. He will be released for the with, if not wanted in any other case.