JUDGMENT
Jagat Singh, J.
1. This appeal has been filed through jail by accused appellant Balu against the judgment dated 22.8.1997 passed by Sessions Judge, Pratapgarh in Sessions Case No. 186/1995 by which he has been convicted under Section 302 IPC and sentenced to life imprisonment with a fine of Rs. 250/- and in default to further undergo one month’s simple imprisonment.
2. The relevant facts are that on 11.10.1995 at 8.00 P.M. in village Lalakheri infront of the residential house of accused appellant Balu his step brother Shambhura received a sharp and grievous injury on his head. Another step brother PW-10 Naku saw the occurrence from the house of Gopal about 300 feet away and called PW-6 Rangji and one Gopal and thereafter went to report the matter to Sarpanch Fakru PW-2 as also Karu PW-7 and Deva PW- 5. Naku told all of them that he saw the occurrence from 300 feet away in which accused Balu gave an axe blow to Shambhura. Injured and unconscious Shambhura was taken to the house of Naku and died there in the morning.
3. Thereafter the matter was reported to Station House Officer PW-14 Ratan Singh who instead of registering the offence came on the spot and Ex.P/18 first information report was orally registered by Naku at 1.00 P.M. Autopsy was conducted on the dead body by PW-15 Dr. Om Prakash. Accused appellant was arrested at 8.00 A.M. through memo Ex.P/26. He gave a voluntary disclosure statement Ex.P/27 under Section 27 of the Evidence Act at 10.15 P.M. on 13.10.1995 and in pursuance thereof got an axe recovered from his residential house at 11.30 A.M. through Ex.P/6 which was sealed then and there. After necessary investigation accused was challaned and charged under Section 302 IPC.
4. In support of their version prosecution examined 15 witnesses and exhibited 27 documents. Accused appellant Balu denied all the circumstances appearing against him and has examined DW-1 Gopal in his defence. Thereafter the learned Sessions Judge has convicted and sentenced the accused appellant as stated above.
5. Mr. Shah, learned amicus curiae, has assailed the impugned judgment and order on the plea that except PW-10 Naku all other prosecution witnesses have been declared hostile and have not supported the prosecution version to any extent. With regard to Naku also it is submitted that according to the first information report he has witnessed the occurrence from a distance of 300 feet away at 8.00 P.M. in night which is not possible until and unless there was some source of light at the place of occurrence. The weapon of offence alleged to be recovered from the accused though has been sent to the Forensic Science Laboratory yet its report has not been exhibited in the trial court. According to the learned amicus curiae without any reliable evidence accused appellant has been convicted.
6. On the contrary, learned Public Prosecutor has supported the judgment and order of the trial court.
7. We have given our serious consideration to the rival contentions and have perused the evidence documentary and ocular available on record.
8. It is an admitted fact and evident from the evidence of the prosecution that Jalma PW-4 is father of PW-10 Naku whose mother Mangli he had married for the second time. Accused Balu is also son of Jalma but born from the first wife Heerki. Though Jalma had Kishan and Lalu other two sons yet all the four sons were residing separately. It has come in first information report Ex.P/18 as also in statement of PW-10 Naku that for partition of agricultural land there was dispute between the deceased and the accused though the above fact has been denied by Jalma and all other witnesses produced on behalf of the prosecution. Be that as it may, even assuming that there may be some dispute with regard to partition of agricultural land between accused appellant Balu and deceased Shambhura that by itself cannot tilt the balance in favour of the prosecution unless and until the dispute to the extent of enmity is proved.
9. PW-10 Naku has seen the occurrence from about 300 feet away from the place of occurrence and at about 8.00 P.M. in night. He has stated that at the time of occurrence he was at the house of Gopal. All other prosecution witnesses have deposed that from the house of Gopal place of occurrence is not visible.
10. PW-14 Ratan Singh Investigating Officer has also deposed that in site plan map Ex.P/4 Naku was at the house of Gopal shown at No. 7 which was 300 feet away from the place of occurrence. PW-14 Ratan Singh has not deposed that there was any source of light at the place of occurrence nor the same has been shown in site plan Ex.P/4. PW-14 Ratan Singh should have investigated the fact of source of light at the place of occurrence. Sans it, it cannot be said that at 8.00 P.M. PW-10 Naku was capable of witnessing the occurrence 300 feet away.
11. DW-1 Gopal at whose house PW-10 Naku was present has stated that from his house place of occurrence is not visible. Even assuming that this witness is under the pressure of the accused appellant there was no possibility of witnessing the occurrence from a distance of 300 feet at 8.00 P.M. in night without proper light at the place of occurrence. The trial court has not dealt with the matter in right perspective and in a casual manner believed the uncorroborated testimony of PW-10 Naku.
12. The Apex Court held in a catina of judgments that the court must make an attempt to separate grain from the chef, the truth from the falsehood. Where the grain cannot be separated from chef, because the grain and the chef are so inextricably mixed up that in the process of separation, the court will have to reconstruct an absolute new case for prosecution by diversing the essential details, then the principle will not apply. Bulaka Singh v. State of Punjab and Molu v. State of Haryana , among others can be referred to. In Hari Chand Singh v. State of Haryana , the Apex Court was of the view that the function of a court in a criminal trial is to find out whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose it scans the material on record to find whether there is any reliable and trustworthy evidence on the basis of which it is possible to find the conviction and hold that he is guilty of the offence with which he is charged. In Khemkaran v. State of U.P. , the Apex Court held that if a trial court’s judgment verges on the perverse, the appellate court has a duty to set the evaluation right. In Datar Singh v. State of Punjab , it was held that in criminal cases it is often difficult for the courts of law to arrive at the real truth. The judicial process can only operate only from foundation of the actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against the accused person beyond reasonable doubt. If the evidence on which the prosecution chooses to rest its case is so brittle that they crumble easily, the super structure built on such insecure foundation also collapses. It has been held in a catina of judgments that if two views are possible, the view which is favourable to the accused should be adopted. If the court entertains reasonable doubt regarding the guilt of the accused he must get the benefit of doubt.
13. Keeping in view the afore stated legal position in mind we do not find uncorroborated oral testimony of PW-10 Naku of sterling worth.
14. For the reasons stated above we set aside the judgment and order passed by trial court and accept this appeal. Accused appellant is in custody. He be set at liberty forthwith, if not required in any other case.