JUDGMENT
Adarsh Kumar Goel, J.
1. The appellant challenges his conviction under Section 302 IPC for which he has been sentenced to undergo life imprisonment and to pay fine of Rs. 1,000/-, in default, to undergo further RI for three months.
2. Case of the prosecution is that on 16.10.1997 at 8-00 P.M., Harjit Singh PW-1 and his brother Jagroop Singh deceased closed their shoe shop and went to their house. Accused Kulwant Rai @ Nona, cousin of the deceased and Partap Rai @ Soni came to their house and called the deceased and took him away. The deceased did not return till 10-00 P.M. Harjit Singh PW-1 and his father Shangara Ram PW-2 went in search of Jagroop Singh at 10-30 P.M. They heard whispering from the chari field and saw in torch light that both the accused were standing. They ran away. The witnesses entered the chari field and found the dead body of Jagroop Singh with marks of strangulation on his neck. Smell of alcohol was coming out of the mouth of the deceased. Leaving Shangara Ram to guard the dead body, Harjit Singh PW-1 proceeded to inform the police, where his statement was recorded at 12-05 A.M. by SI Ravinder Singh PW-7 at Police Station Mehta. Ravinder Singh went to the spot, prepared inquest report and sent the dead body for post-mortem examination. He also prepared rough site plan, recorded statements of witnesses and took into possession clothes of the deceased. According to him, Sunita wife of elder brother of Harjit Singh PW-1 was having illicit relations with Kulwant Rai @ Nona which was being objected to by the deceased. He arrested the accused and recovered wire in pursuance of disclosure-statement of Kulwant Rai. Accused Partap Rai was minor and his case was separated for trial by Juvenile Court.
3. PW-5 Dr. Gurmanjit Rai conducted post-mortem examination and found following injuries:
1. Reddish brown abrasion (nail mark) .7 x 0.3 on right side of front of neck, 4 cms above sternal notch.
2. Reddish brown abrasion 0.2 x 0.1 cm on left side of neck, 4 cm above sternal notch.
3. Reddish brown abrasion 0.3 x 0.2 cm on front of right side of chest, 2 cms below inner end of clarical. On dissection of neck:-In filtration of blood was present on front and sides of neck, below abrasions Nos. 1 and 2 in the muscles of neck.
4. Reddish brown abrasion 1 x 0.3 cm was present on right side of back of chest, in the infra scapular region.
5. Reddish brown abrasion 1 x 0.4 cm on the back of left shoulder in scapular region.
6. Reddish brown abrasion 6 x 2 cms on the back of right side of trunk in lumber region.
7. Reddish brown abrasion 0.3 x 0.2 cm on back of right fore-arm in its middle.
8. Reddish brown abrasion 0.75 x 0.5 cm on back of left side of trunk in lumber region. On dissection of skull and brain, brain was found congested. On dissection of chest, pleura, both lungs were found congested and on dissection of stomach, mark congestion of stomach was present with sumucusal haemorrages and about 200 c.c. of dark brick red coloured fluid having powered particles in it, small intestines, liver, spleen and kidneys were found congested.
4. The injuries were ante mortem. Cause of death was deferred for reports of Chemical Examiner which was received on 31.12.1997. No poison was detected. Cause of death was declared to be Asphyxia as a result of manual strangulation.
5. The prosecution examined Harjit Singh PW-1, Shangara Ram PW-2, Swaran Singh, Lamberdar PW-3, Rishi Ram, Draftsman PW-4, Dr. Gurmanjit Rai PW-5, Constable Jatinder Singh PW-6 and SI Ravinder Singh PW-7.
6. The trial Court held the case of the prosecution to be proved beyond reasonable doubt and convicted and sentenced the appellant.
7. Learned Counsel for the appellant submitted that the case depended on the circumstantial evidence of motive, last seen and recovery of wire. The said circumstances were not clearly proved and did not form a complete chain to exclude possibility of innocence of the accused and thus, the appellant was entitled to benefit of doubt. Referring to statement of PW-1 Harjit Singh, in cross-examination, it was pointed out that Gurmanjit husband of Sunita never objected to illicit relations of Sunita with the accused. He also did not ask Sunita to discontinue the illicit relations. It was submitted that if husband of Sunita was not objecting to illicit relations, it could not be believed that the deceased would have objected to illicit relations to such an extent that he would have been killed on that account. Further, if the deceased had strained relations with the accused, on account of accuseds illicit relations with the wife of deceaseds brother, the deceased would not have accompanied the accused to the fields to take liquor with him and thus, motive cannot be said to have been clearly proved.
8. It was next submitted that the evidence of last seen was also not reliable as the deceased would not have gone with a person with whom he had strained relations. The version of motive and deceased accompanying the accused, were contradictory. It was also submitted that mere recovery of rope at the instance of the accused could not be treated as conclusive circumstance of involvement of the accused. The nature of rope was such as could be easily available.
9. We find merit in the contentions raised.
10. The version about motive cannot be held to reliable. Sunita has not been examined. PW-1 Harjit Singh admitted that neither he nor his brother who was husband of Sunita, had any objection to illicit relations of Sunita. This itself makes the version of illicit relations doubtful. The version of PWs that the deceased accompanied the accused to the fields at odd hour to take liquor also makes the version of the deceased having strained relations with the accused, for the above motive, to be quite doubtful.
11. In a case based on circumstantial evidence, motive alleged may become significant. The motive alleged in the present case, is clearly doubtful. If the motive is to be accepted, the evidence of deceased accompanying the accused becomes doubtful. Thus, circumstances relied upon by the prosecution cannot be held to be fully established and are not conclusive of guilt of the appellant. Evidence of motive and of last seen not being conclusive, the appellant is entitled to benefit of doubt.
12. Accordingly, we allow this appeal and set-aside the conviction and sentence of the appellant and acquit him.