JUDGMENT
S.C. Mittal, J.
1. This appeal by the abovenamed four appellants is directed against the judgment dated 9.9.1981 passed by the learned Additional Sessions judge, Nagaur in Sessions Case No. 18/79 wherein the appellants Ram Niwas, Deva Ram and Rama alias Ram Narain have been convicted under Sections 302/34, 120B I.P.C. and the appellant No. 1 Ram Niwas has been further convicted under Sections 25 & 27 of the Arms Act. Appellant No. 4 Gheesu Ram was convicted under Section 182 I.P.C. but his appeal stands abated on his death during the pendency of the appeal. The appellants were sentenced to various terms of imprisonment and fine.
2. The prosecution case in nutshell is that the appellant accused Gheesu Ram himself lodged a report Ex. P.18 at Police Station Mundwa on 6.2.1977 at 3.50 P.M. wherein the stated that he and Ram Ratan were going to Nagaur at about 6.30 A.M. When they reached at a distance of one mile from the village they heard the gun fire. When they proceeded little further they saw that Kana Ram son of Jhumar Ram, Ram Niwas son of Jhumar Ram, Sukh Ram son of Bhima Ram, Ramdeo son of Bamna Ram, Mehram son of Jairam, Govind Ram son of Ram Chandra, Ram Niwas son of Ram Chandera, Raja Ram son of Pabu Ram, Ram Prasad son of Ramchandra, Paburam son of Sanvat Ram, all Jats, resident of Phirod were beating Badri son of Ram Chandra Jat, resident of Phirod by Farsi, swords, dagger and gun. They returned to the village to inform Ram Chandra the father of Badri but he was not available as he had gone to Nagaur. They also went to Nagaur but could not find him. Therefore, they informed about the incident to Ramdeo, Sarpanch who asked them to lodge the report in the police station. On this report, a case was registered under Sections 302, 147, 148 read with 149, I.P.C. In the beginning, Jayant Singh P.W. 14 conducted the investigation. He inspected the site and prepared the site map, site inspection memo, memo of the dead body of Badri. He seized pellets, wad pieces and the clothes & articles of the deceased. But he entertained doubt that the incident could not happen in the manner stated in the F.I.R. lodged by Gheesu Ram appellant. The investigation was taken over by Dy. S.P. Ram Gopal P.W. 15 on 8.2.1977. It is also relevant to mention here that Jugal Kishore P.W.7, uncle of the deceased Badri sent a typed complaint to D.I.G., Crime Branch, Jaipur that the murder of Badri has been committed by Ram Niwas son of Pabu Ram alias Ram Narain son of Jagdish, Hari Ram son of Jagdish, Deva son of Jhumar, Ram Kishore son of Ganesh, and Devkishan, Master, which was sent to Narain Singh, Inspector, Crime Branch, Rajasthan, Jaipur for necessary action. The case was investigated by Narain Singh P.W. 13 CO., G.I.D. Branch, Rajasthan, Jaipur from 4.6.1977. However, the investigation was again entrusted to Dy.S.P. Ramgopal on 5.10.1977. He again inspected the site and prepared the site map and site memo. On the basis of his investigation, he arrested the appellants Ram Niwas, Gheesu Ram, Deva Ram, Ram Narain and Jhumar Ram on 5.10.1977. He recovered the weapon of offence an axe from the appellant Deva Ram, Pistol from accused Ram Niwas and a bloodstained shirt from the appellant Rama in consequence of the information furnished by them under Section 27 Evidence Act. He also recovered playing cards from the Almirah in the house of Deva Ram on the basis of his disclosure statement.
3. On competition of the investigation, chargesheet was laid against the appellants and two other accused persons Jhumar Ram and Ambalal. The prosecution case as revealed from the said investigation is that appellants Ram Niwas, Gheesu Ram, Deva Ram, Rama alias Ram Narain and Jhumar Ram hatched a conspiracy to commit murder of Badri and in pursuance of that conspiracy they committed his murder. Ambalal gave shelter to the accused persons having knowledge that they have committed the offence of murder with the intention to save them from legal punishment. Ambalal, Rama alias Ram Narain, Ram Niwas and Deva, Ram also caused the evidence of the commission of the offence to disappear to save them from the legal punishment. Moreover, Gheesu Ram and Ram Niwas lodged a false report Ex.P. 18 at Police Station, Mundwa.
4. The learned Additional Sessions Judge held the trial against the appellants and two other persons Ambalal and Jhumar Ram (since acquitted of the charges under Sections 201, 212 & 120B I.P.C.). The appellants were tried for various charges viz. Rama alias Ram Narain under Sections 120B, 203, 302/34, 201 I.P.C., Ram Niwas under Sections 120B, 302, 302/34, 201, 182 I.P.C. and Sections 25 & 27 of the Arms Act, Gheesu Ram under Sections 120-B, 182 I.P.C. and Deva Ram under Sections 120-B, 302, 302/34, 201 I.P.C. The prosecution examined 19 witnesses. No witness was produced in defence. The learned Additional Sessions Judge on the appraisal and appreciation of the evidence produced before him convicted the appellants as stated above.
5. We have heard the learned Counsel for the appellants and the learned Public Prosecutor as well as the learned Counsel for the complainant. We have also perused the evidence on record. There, is no eye witness of the occurrence in this case. The case entirely depends on the circumstantial evidence. The learned trial court relied upon the following circumstantial evidence produced by the prosecution-
(1). The deceased Badri was last seen with the appellants Ram Niwas, Rama alias Ram Narain and Deva, Dhapi P.W.9 the mother and Kamla P.W. 10 the sister of the deceased Badri deposed that Ram Niwas took the deceased Badri from their house to the house of Gopal Baba for playing cards in the evening of 5.2.1977. When Badri did not return for a long time then Dhapi sent her daughter Kamla to call Badri. Kamla went to the house of Gopal Baba, where she saw appellants Ramu, Deva and Ram Kishore and two other persons playing cards with Badri. When she asked Badri to return home, Ramu told her that Badri would sleep there itself in that night. She returned to her house and informed this fact to her mother. Dhapi has further stated that when Badri did not come in the morning also she sent Hanuman to the house of Gopal Baba. Hanuman informed her that Gopal Baba said that Badri had gone to answer nature’s call with Deva. Thereafter she sent her daughter Kamla to the house of Gopal Baba. She came back and informed her that Deva told her that Badri had gone out from the house during the night at 1.00 A.M. She herself went to the house of Gopal Baba but did not find Badri there. Ram Niwas and Gheesu Ram soon after came to her house and told her that the dead body of Badri is lying on the road of Ramsiva. Ram Niwas and Gheesu told her that the enemies have killed him. Ram Karan P.W. 1 stated that he had gone to Gagwana to fetch his daughter but her in-laws did not send her with him. He was returning on the camel to his village. On the way near Phirod village appellants Ram Niwas, Rama, Deva and deceased Badri met him coming from the opposite direction in the mid night. On being asked by him, Ram Niwas told him that he was going to Nagaur. He also took match box from Ram Niwas to lit his ‘Bidi’. He came to know on the next day that Badri son of Ram Chandra had been murdered.
(2) Ram Karan P.W. 1 further deposed about the extrajudicial confession made to him by appellant Ram Niwas after three days in the evening near his field. Ram Niwas came on a scooter and told him that he had killed Badri. Ram Niwas also threatened to kill him if he disclosed his meeting on the way during the night. He, therefore, being under fear did not tell to any person about the fact of his meeting with Ram Niwas and other appellants with Badri. He stated this fact to the police after eight months when his statement was recorded during the Investigation after the arrest of the accused persons and they themselves disclosed to the police about the said meeting on the way during that night.
(3) Hanuman P.W. 2 went to the house of Gopal Baba in the morning to inquire about his brother deceased Badri then Gopal Baba told him that Badri had gone with Deva to answer nature’s call. Kamla P.W. 10 was told by Deva that her brother had left the house during night at 1.00 A.M. This conduct of the accused Deva giving a false reply also points out needle towards the guilt of the appellants because the deceased Badri was seen in the mid night at about 2.15 A.M. by Ram Karan with appellants Ram Niwas, Rama alias Ram Narain and Deva.
(4) F.I.R. Ex. P.18 was lodged by Gheesu and Ram Niwas in undue haste and without taking into confidence the mother of the deceased and father Ram Chander. Neither Ram Chandra nor Dhapi had asked to lodge the report Ex. P.18 at the Police Station. It also leads to the inference that the appellants were guilty and according to their plan, Gheesu lodged a report against ten persons named therein to implicate them falsely.
(5) The appellants are in the party of Gopal and they had killed one Jai Ram for which cases were filed by the police against Gopal and his associates and cross-case against the members of the party of Paburam. The appellants wanted to falsely implicate the Paburam’s party and this motive impelled them to kill Badri and to lodge a false report by Gheesu Ex. P.18 to implicate ten persons belonging to the painty of Pabu Ram son of Sanvat Ram.
(6) A country made twelve bore pistol recovered in consequence of the disclosure statement of Ram Niwas from the ‘Bada’ in his possession was found serviceable. Twelve bore cartridges could be fired by the pistol and 12 bore cartridges were found at the place of occurrence. The ballistic expert has given the opinion that it is not possible to link the wads and pallets with the pistol, even then it cannot be said that the pistol recovered from accused Ram Niwas was used in the occurrence.
(7) Playing cards have been recovered in consequence of the information furnished by Deva from the Almirah in the house of his possession, which is relevant alongwith other facts and circumstances as stated above that Badri was at the house of Gopal during the fateful night and played cards with accused Deva and Rama alias Ram Narayan and other persons.
6. The learned trial court on appreciation of the above circumstantial evidence came to the conclusion that it completes the chain, of the circumstantial evidence and unequivocally leads to the conclusion that none else but accused persons Ram Niwas, Deva and Rama alias Ram Narayan committed the murder of Badri in pursuance of their conspiracy.
7. The learned Counsel for the appellants have seriously contended that the prosecution has failed to prove the alleged incriminating circumstances. The circumstantial evidence relied upon by the prosecution does not lead to the conclusion of the guilt of the accused, as it does not exclude beyond reasonable doubt the hypothesis consistent with the innocence of the appellants. Ram Karan PW/1 is a sheer chance witness. His testimony is wholly unreliable looking to his conduct that he did not disclose the alleged fact of making extra judicial confession by Ram Niwas on the third day of the occurrence and also the fact of deceased Badri last seen with appellants Ram Niwas, Dewa, Rama alias Ram Narayan alongwith Badri while coming back from Gangwana to his village Phirod. His explanation for such nondisclosure is so feable that it is un-acceptable. The fact that Badri was playing cards with Deva and Rama at the house of Gopal Baba during the night is not by itself incriminating circumstance against the appellants the recovery of the playing cards Article 1 from the Almirah in the house of Deva Ram after 8 months of the occurrence is of no evidentiary value, otherwise also it is not connected in the manner with the alleged offence of conspiracy or murder. The pistol Article 4 recovered on 17.10.1977 after eight months of the occurance has no linkage with alleged crime because the ballistic expert has not given any opinion that the wads and pallets were from the cartridge fired from this pistol. The opinion of the ballistic expert is that it can fire 12 bore cartridge. The learned trial court has wrongly observed that 12 bore cartridge was recovered from the scene of occurance because no such cartridge was seized. It is therefore, vehemently argued that the learned trial court has grossly erred in believing Ram Karan PW/1 and other circumstantial evidence to hold the appellants guilty of the offences charged against them. The learned Public Prosecutor has on the other hand supported the judgment and claimed that prosecution has brought home the guilt to the appellants beyond reasonable doubt on the basis of circumstantial evidence enumerated above.
8. We are of the opinion that it is necessary to scan the testimony of Ram Karan PW/1 who faced a trial in murder case with great circumspection because he is the sole witness of the prosecution on the point of deceased last seen with the appellants. Ram Karan had gone to fetch his daughter from village Gangwana but she was not sent with him. He was returning alone on camel from Gangwana to his village Phirod. He met Ram Niwas, Deva and deceased Badri in the outskirts of village Phirod though he had no according to him Ram Niwas came to him on the third day. It is unbelievable that the witness will keep this fact only to his chest for long 8 months. Therefore, we do not find this witness reliable in respect of the said blurting out of extrajudicial confession by Ram Niwas and administering threats to him. It is incompatible that on the one hand Ram Niwas made an extra judicial confession and at the same time he gave threats to the witness not to disclose the meeting during the night. Though the questions have not been put in cross-examination by the defence on the point of extra judicial confession, the intrinsic worth and credibility of the witness has to be assessed and properly appreciated. In view of the above discussion we disagree with the reasoning adopted by the learned trial court to rely upon thiswitness. We hold that Ram Karan PW/1 is wholly unreliable witness. The prosecution has failed to prove by his testimony the incriminating circumstance of the deceased last seen with the appellants and also the alleged extrajudicial confession by Ram Niwas.
9. It is also a very weak circumstance that the deceased Badri was playing cards at the house of Gopal Baba in the evening preceding the occurence with Ramu. Deva and some other persons. The appellants are in relation to the deceased and it is not unnatural or abnormal that they played cards in the house of Gopal Baba in the village Phirod during that night. The circumstances that in the morning Gopal said to Hanuman that Badri had gone to answer nature’s call with Deva and appellant Deva told Kamla that Badri had left at about 1 O’ Clock during the night do not unequivocally point out only to the guilt of the appellant Deva. Hanuman has stated in the cross-examination that Padma Ram, Ramdeo and the appellants Gheesu and Ram Niwas had come with the police at the place where the dead body was lying. The dead body was then shifted to Moondva by the police and the appellants Ram Niwas, Gheesu also accompanied them to Moondva. Padma Ram has also deposed in cross-examination that accused Gheesu was also with those other persons who remained at police station Moondva with the dead body. Gheesu had informed Padma Ram at the very place of occurrence that ten persons of the Pabu party had killed Badri and he had lodged the report. Therefore, above conduct of the appellants Ram Niwas and Gheesu is inconsistent with the inference of guilt and indicates to their innocence.
10. The appellant Gheesu has stated in his examination Under Section 313 Cr.P.C. that he and Ram Ratan were an eye witness to the occurrence in which Badri was killed. He, Padma Ram, Ramdeo, Ram Ratan went to the advocate Shri Damodar Acharya for preparing the report. Thereafter he and Ram Ratan got the report written by Ram Niwas which was produced at the police station. In the report filed by Gheesu it has been mentioned in Ex.P18 that he tried to find out Ram Chandra, father of the deceased who had gone to Nagaur. They went to Nagaur also but could not search him out. They informed about the incident to Sarpanch Ramdeo who asked them to lodge the report. In these circumstances merely on filing of report by Gheesu Ex.P.9, without prior talk with Ram Chandra or members of the family, it cannot be concluded that they filed the report implicating the persons named therein in order to conceal their own act of committing murder of Badri.
11. It has been admitted by Hanuman, Ram Chandra and other witnesses that the appellants had no enmity with them and the members of the family including the deceased Badri. The motive attributed against the appellants is that they wanted to implicate Pabu Ram and the members of his party in a false case to take the revenge for the case pending against Gopal Baba and members of his party. Therefore, the appellants entered into a conspiracy to commit murder of Badri and to lodge a report for that murder against Pabu Ram and his party. But it has also come on record that Ram Chandra, father of the deceased was witness and gave the statement in the Court Ex. D3 Under Section 202 Cr.P.C. during the enquiry of the complaint filed by Gopal Ram against Pabu Ram and his party men. Therefore it is beyond our comprehension that the appellants would choose Badri to kill and to involve the Pabu Ram’s party persons in the murder case particularly when Ram Chandra, father of the deceased was witness in their favour. In the above facts and circumstances and in the ordinary course of human nature and conduct, we are of the opinion that the motive attributed against the appellants is not at all convincing which is always a very relevant circumstance in the case depending on circumstantial evidence.
12. The prosecution could not connect with the alleged crime the articles of recovery weapon Axe Article-3 and playing cards Article-1 from Deva Ram, Pistol Article-4 and Knife Article-2 from Ram Niwas and Shirt Article-5 from accused Rama alias Ram Narayan. The learned trial court has however took a view that 12 bore cartridge has been recovered from the scene of occurrence and the pistol is connected with the alleged crime against Ram Niwas appellant because it has been opined by the ballistic expert that 12 bore cartridge can be fired from the recovered pistol. In fact, 12 bore cartridge has not been recovered from the place of occurence. Only wads and pallets have been recovered. The ballistic expert has given the opinion that it has not been possible to link the recovered wads and palets with the pistol under reference. On such opinion, we are of the view that learned trial court has erroneously held that the pistol Article 4 connects the appellant Ram Niwas with the alleged offences blood detected on the shirt Article-5 recovered from Rama alias Ram Narain but the blood group could not be determined due to dis-integration. Therefore, presence of blood on the shirt also does not conclusively establish the link with the alleged offence against Rama alias Ram Narayan. The axe and knife have no blood stains and do not provide any incriminating circumstance against Ram Niwas and Deva Ram appellants respectively.
13. The law is now well settled that in a case of circumstantial evidence, the prosecution should prove all the circumstances and all the circumstances proved must be such as to negate the innocence of the accused and bring home the charge beyond reasonable doubt. In the instant case, the upshot of the above discussion of the circumstantial evidence is that the prosecution has been unsuccessful in proving the incriminating circumstance of the deceased Badri last seen together with the appellants Ram Niwas, Deva and Rama alias Ram Narayan beyond reasonable doubt and also the alleged extra judicial confession blurted out by Ram Niwas to prosecution witness Ram Karan. In any event, all the circumstances relied upon by the prosecution against the appellants do not lead beyond reasonable doubt to the cumulative and conclusive effect that only the appellants and the appellants alone are the perpetrators of the crime. The prosecution has not proved sanction for prosecution Under Section 25 of the Arms Act. Therefore, the conviction of the appellant Ram Niwasforthe charges Under Section 25 Arms Act cannot be sustained. This appeal deserves to be allowed.
14. Consequently, this appeal is allowed. The impugned judgment and order dated 9th September, 1981 passed by Addl. Sessions Judge, Nagaur is hereby set aside. The appellants Ram Niwas, Deva Ram and Rama alias Ram Narain are hereby acquitted of all the charges. The appeal filed by Gheesu has abated and stands disposed of accordingly.