JUDGMENT
L.C. Bhadoo, J.
1. The accused/appellants have preferred this criminal appeal under Section 374(2) of the Criminal Procedure Code being aggrieved by the judgment dated 19th February, 2000, passed by the Additional Sessions Judge, Khairagarh, by which the learned Additional Sessions Judge after holding the accused/appellants guilty under Section 302 of the Indian Penal Code sentenced them to undergo imprisonment for life and further each one of them was directed to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo six months rigorous imprisonment.
2. The relevant facts for the disposal of this criminal appeal are that on 18th April, 2000, Suresh Kumar gave a merg intimation to the Police Station, Lohara stating that he is the resident of Village Dhangan, his brother Sukhdev is residing separately with his wife and children in the village, he is constructing his house on a land allotted to him under the Indira Awas Yojana and in the night he used to sleep in the house where he is constructing the new house. In the night of 17th April, 2000 after taking dinner Sukhdev went for sleeping in his newly constructing house. On the next day morning Durjan Kurmi came and informed Suresh Kumar that Sukhdev is sleeping in the new house and he is not getting up. On this, Suresh Kumar along with Durjan, Amol and Gaukaran went to the site and saw that Sukhdev was lying on the cot, there was a sign of injury on his neck and he is lying dead on the cot. It has been stated in the merg intimation given by Suresh Kumar that how Sukhdev has died he does not know. The police received this merg intimation through Ex. P-24 and based on this report, the Station House Officer of Police Station, Lohara proceeded on the site and got the dead-body of Sukhdev medically examined. The post-mortem was conducted by Dr. R.K. Bhaorya and he prepared the post-mortem report (Ex. P-16). During the investigation the S.H.O. Shri Ajay Mishra prepared the Naksha Panchayatnama through Ex. P-2, the site plan through Ex. P-3 and the Panchanama of the dead-body of Sukhdev through (Ex. P-4). He arrested accused appellants Gaukaran and Ramkaran and in the police custody accused/appellant No. 1 Gaukaran gave the information (Ex. P-9) and pursuant to that information the accused got recovered one Sabbal through (Ex. P-10 and Ex. P-12). The chappals of accused/appellant No. 2 Ramkaran were also recovered and got identified through Ex. P-11. The accused/appellant No. 2 Ramkaran also gave the information under Section .27 of the Evidence Act through Ex. P-19. The First Information Report (Ex. P-21) was registered. After investigation, the challan was filed against the accused/appellants for the offence under Section 302 of the IPC. The learned Additional Sessions Judge framed the charges against the accused/appellants under Section 302 of the IPC. The accused/appellants denied the charges. The prosecution in order to prove the offence against the accused/appellants examined in all 12 witnesses. The statement of the accused persons were recorded in which they denied the statements of the prosecution witnesses and after hearing the Counsel for the accused/appellants and the Public Prosecutor, the learned Additional Sessions Judge passed the impugned judgment.
3. We have heard the learned Counsel for the parties and perused the record.
4. As far as the question of the nature of the death is concerned, the learned Counsel for the appellants did not dispute the nature of the death of deceased Sukhdev as homicidal. However, Dr. R.K. Bhaorya (P.W. 8) who conducted the post-mortem on the dead-body of the deceased has stated that on 18th April, 2000 at about 4.25 p.m. he conducted the post-mortem on the dead-body of deceased Sukhdev. He saw that there was an incised wound on the mandible left side of the face of 6 x 2 cms. size bone deep, one bruise below the mandible of 3 x 4 cms. size which was blue and black in colour and clotted blood was there, a bruise on the neck of 8 x 2 inch size and 6 x 3 cms. on the left side which was reddish blue in colour, an abrasion on the right side of the neck 2 x 1/4 cms. After dissection of the place of cut injury, the doctor found that there was a fracture and there was a haematoma on the neck and the cause of death of the deceased was syncope due to haemorrhage and shock. His report is Ex. P-26. In view of the above statement of the doctor it is proved that the nature of the death of the deceased Sukhdev was homicidal.
5. Now coming to the question as to whether the prosecution has been able to prove the offence against the accused/appellants in this case, there is no direct evidence, i.e., there is no eye-witness and the whole case rests on the circumstantial evidence. To prove an offence by circumstantial evidence it is settled law that in a case based on the circumstantial evidence the Court can record conviction but it must satisfy itself that the circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused.
6. Now based on the above principle laid down by the Hon’ble Apex Court, we shall examine the evidence available on the record of the present case as to whether the prosecution has been able to bring home the offence against the accused/appellants up to the standards prescribed by the Apex Court. In this case, the prosecution case rests on the following circumstantial evidence :–
(a) In the evening of 17th April, 2000, some dispute about the construction of the house took place between the deceased on the one side and the accused/appellants on the other side in which accused/appellant No. 1 Gaukaran threatened the deceased to see him,
(b) The recovery of the weapon of offence iron Sabbal, i.e., hoe at the instance of the accused based on the information given through Ex. P-1 and also at the instance of accused/appellant No. 2 Ramkaran as per the information given by him through Ex.P-19.
(c) The recovery of the nylon chappals of accused/appellant No. 2 Ramkaran near the scene of occurrence.
7. Now coming to the first point, Suresh Kumar (P.W. 1) who is the brother of deceased Sukhdev, has stated that Sukhdev was constructing a house in front of the house of accused/appellant No. 1 Gaukaran, the plot on which Sukhdev was constructing the house was allotted to him by the Panchayat and Gaukaran was telling to Sukhdev why he is constructing the house in front of his house because his house is being covered by the construction of Sukhdev’s house. On this there were hot exchange of words and Gaukaran said to Sukhdev that he will see him and thereafter, Sukhdev went to sleep. Similar statement has been given by Ramsherbai (P.W. 6), the wife of the deceased, but these statements do not inspire confidence because when Suresh Kumar gave the report merg intimation (Ex. P-24) to the police, he did not mention this fact in that report. On the contrary, Suresh Kumar has said that Sukhdev is lying dead on the cot, how he has died he does not know, even he did not raise any doubt against the accused and he did not mention about this incident. Moreover, in the statements given by Suresh Kumar before the Police (Ex. D-1 and Ex. D-2) of Ramsherbai, it has not been mentioned that accused/appellant No. 1 Gaukaran threatened deceased Sukhdev that he will see him. Therefore, these statements of the two witnesses are after-thought and this improvement has been made during the statement before the Court. Durjan Kurmi (P.W. 4) has also stated in Para 13 of his statement that on 17th April, 2000, Sukhdev and Gaukaran were quarrelling about the land on which Gaukaran trespassed and P.W. 4 said that he advised Gaukaran why are you trespassing and possessing the land again and again, you leave the land of Sukhdev. But P.W. 4 has not stated that accused appellant No. 1 Gaukaran threatened the deceased that he will see him. Therefore, it has also come on the record that on account of the partition of the land there was some dispute between the real brothers also. Therefore, the evidence adduced by the prosecution to the effect that accused/appellant No. 1 Gaurakan threatened the deceased on 17th April, 2000, to see him, later on, does not stand proved for the reasons mentioned above. Therefore, this circumstance and motive for causing the murder of Sukhdev by Gaukaran can not be believed.
8. As far as the question of recovery of Sabbal (Kudali), i. e., hoe is concerned, Mohan (P.W. 9) and Durjan Ram (P.W. 4) have stated that accused Gaukaran gave the information (Ex. P-9) in their presence to the police about the Kudali and pursuant to that accused Gaukaran got recovered the Kudali from a room at his instance. The Investigating Officer Shri Ajay Mishra has also proved the information (Ex. P-9) and also the information (Ex. P-10) by which the Kudali was recovered. But merely on account of the recovery of Kudali at the instance of the accused/appellant No. 1 Gaukaran this circumstance does not connect the accused with the murder of Sukhdev because in the first instance no blood has been found on the Kudali and such type of Kudalis are found in every house of the village because Kudalis are used for various purposes in the villages. Therefore, merely on account of the recovery of the Kudali at the instance of accused/appellant No. 1 Gaukaran based on only this circumstance, it can not be considered that the accused committed the murder of deceased Sukhdev by this Kudali, As far as the information (Ex. P-19) of accused/appellant No. 2 Ramkaran is concerned Shri Ajay Mishra (P.W. 12), the I.O. has admitted that Ex. P-19 was recorded after the recovery of the Kudali at the instance of accused Gaukaran. Therefore, this information is of no value, as such, no importance can be attached to this information (Ex. P-19). Therefore, the prosecution has not been able to prove the offence against the accused and connect the accused with the murder of deceased Sukhdev through the Kudali which was recovered at the instance of accused Gaukaran.
9. Now coming to the question of recovery of the nylon chappals of accused/appellant No. 2 Ramkaran is concerned these chappals have been recovered on 20th April, 2000. Shri Ajay Mishra, I.O. has admitted that on 18th and 19th of April, 2000, on both days, he visited the scene of occurrence and these chappals could not be noticed there. Therefore, this fact itself makes the recovery doubtful. It appears that since there was no evidence against accused Ramkaran this recovery has been effected in order to connect accused Ramkaran with the murder of deceased Sukhdev. Moreover, the house of the accused persons and the house of the deceased were at the same place. Therefore, the mere presence of the chappals of accused/appellant No. 2 Ramkaran near the site of occurrence can not connect him with the murder of deceased Sukhdev.
10. As per the settled law for the circumstantial evidence the prosecution has to prove a complete chain of circumstantial evidence through which the inference can be drawn that the accused persons are the only persons who have committed the murder and then and then only the offence can be considered to have been proved and the prosecution must prove that from the circumstantial evidence the innocence of the accused is ruled out. Therefore, all the three points, as mentioned above, of circumstantial evidence advanced by the prosecution have not been established to connect the accused persons with the commission of the murder of deceased Sukhdev.
11. In view of the above, the prosecution has not been able to prove the offence against the accused/appellants through the circumstantial evidence and connect the accused persons with the murder of Sukhdev through the circumstantial evidence as per the principles laid down by the Hon’ble Apex Court. Therefore, the conviction recorded by the learned Additional Sessions Judge based on these circumstances can not be sustained because the circumstantial evidence which have been discussed above are not sufficient to hold the accused persons guilty of the offence of the murder of deceased Sukhdev.
12. In the result, the appeal of the accused/appellants is allowed. The conviction and sentence awarded to the accused/appellants under Section 302 of the IPC are set aside. Accused/appellants Gaukaran and Ramkaran are acquitted of the charges of offence under Section 302 of the IPC and they be set at liberty with immediate effect, if they arc not required otherwise.