JUDGMENT
N.N. Mathur, J.
1. This appeal is directed against the judgment dated 7.9.1994 passed by the Addl. Sessions Judge, Banswara in Sessions Case No. 102/93 convicting the appellants of offence under Sections 302/149 and sentenced to imprisonment for life and to pay a fine of Rs. 100/-, in default of payment to further undergo one month’s S.I. The appellants have also been convicted of offence under Section 366 I.P.C. and sentenced to 5 year’s R.I. and to pay a fine of Rs. 100/-, indefault of payment to further undergo imprisonment for one month. The appellants have also been convicted offence under Sections 323 and 147 IPC. All the sentences have been ordered to run concurrently.
2. The prosecution case in brief is that on 12.4.1993 PW/3 Gauji submitted an oral F.I.R. at Police Station Ambapura Distt. Banswara stating interalia that his sister Jamna w/o Nagji had come 15 to 20 days back after delivery with her two daughters namely Anita aged 2 years and another daughter of two months. Her brother PW/14 Nathu was also sitting in compound of the house. At that time, the accused persons namely Kachroo, Nakku and Mangia resident of Kundanpur came alongwith 3-4 more persons. They unlawfully entered in the house. They were armed with lathis. Kachroo gave a lathi blow on his head. Nakku gave a lathi blow on the back of his mother. On intervention by his brother PW/14 Nathu, he was also assaulted. His sister Jamna came out from the house, on which, they assaulted her also, and took her away physically with an intention to make her wife of Kachroo. They forcibly took away his married sister Jamna. It was also stated that the incident was witnessed by PW/1 Vesta, PW/2 Gautam and one Kamji. On this information, police registered a case of offence under Sections 147, 148, 149, 447, 366, 327 IPC. On 19 April, 1993 the accused appellant Kachroo alleged to have been given information with leading to the recovery of dead body of Jamna. After usual investigation, police laid chargsheet against the accused persons.
3. The accused persons pleaded not guilty of the charges and claimed trial. During the trial, the prosecution examined 14 witnesses. In statement under Section 313 Cr. P.C. the accused persons stated that they have been falsely implicated. The learned trial Judge acquitted the accused Rama, Poona and Hurtaing of all the charges however, convicted the accused appellants of offences as mentioned above.
4. Assailing the judgment, it is contended by Mr. Varun Gupta the learned Counsel for the appellants that the trial court has committed an error in convicting the appellants relying on the evidence of recovery of the dead body at the instance of appellant Kachroo. It is also submitted that there is absolutely no evidence to connect the appellants with the crime. On the other hand, learned Public Prosecutor has supported the judgment of the trial court.
5. We have considered the rival contentions and scanned the prosecution evidence. PW/11 Dr. Sudhindra Kumar Bhatnagar stated that on 13.4.1993 he examined PW/3 Gauji and noticed following injuries.
1. Bruise 5×2 Cms. Rt. triceps area.
2. Bruise 5×2 Cms. Rt. scapular region.
3. Haematone 5×2 Cms. Rt. occipital region.
He has proved injury report Ex. P/4. In his opinion all the injuries were simple and caused by blunt object.
He also examined Mst. Sakuri PW/4 and noticed following injuries:
1. Bruise abrasion below left eye 5×1 cms.
2. Bruise abrasion below Rt. eye 5×1 cms.
3. Bruise abrasion nose 1x 1 cms.
4. Bruise abrasion left shoulder 6×6 cms.
5. Bruise left reararm 10×3 cms.
6. Bruise Rt. iliac 8×3 cms.
7. Bruise left bullock 6×4 cms.
8. Abrasion below left palm 6×3 cms.
He proved injury report Ex. P/5. In his opinion, all the injuries were simple in nature and caused by blunt object. He also examined Nathu and found following injuries:
Haemota bruise 5×3 cms. left temporal region.
He proved injury report Ex. P/17. In his opinion, all the injuries were simple in nature and caused by blunt object. He also stated that a Board was constituted consisting of himself and Dr. R.P. Jain, Dr. L.C. Maira. The body was exhumated and parts of the body were found as follows:
1. A part of left iliac bone without any muscular attachment.
2. Left lower limb in which femur was attached to iliac bone without any muscular attachments leg below the knee was complete & skin shows at place buller and green discolouration and skin can easily be peeled off.
3. A part of Rt. lower limb-below the knee with complete foot. There at places bullar and the muscles are partially absent irregularly, skin can peeled off easily.
4. following bones without any muscular attachment present at the site of exhumation and as well as nearby area of exhumation (about 50 yards).
(a) Lower jaw bone-four left loose teeth (molar). Three molar teeth on teeth (Rt. side) other sockets were empty.
(b) A piece of Rt. side femur.
(c) A piece of Rt. side humerous.
(d) A piece of left scapula.
(e) A piece of left side radious.
(f) A piece of left side ulna.
(g) 18 pieces of ribs.
(h) 2 unidentified pieces of bones.
5. Hairs which were with the ribbon and about 11/2 feet in length they were soiled up with soil so soil follicles can not be identified. Ribbon was handed over to police.
Foul smells are coming from parts.
He proved post mortem report,Ex. P/18. The Board arrived on the following conclusion:
1. Duration of death was about 2-7 days.
2. Bones appeared to be of a female human body.
PW/11 Dr. Sudhindra Kumar Bhatnagar in the examination-in-chief stated that bones appears to have been of female. However, in the cross-examination, he admitted that seeing the dead body, it was not possible to say whether it was of male or female.
6. PW/1 Vesta and PW/2 Gautam who have been mentioned as eye witnesses in the F.I.R. have not supported the prosecution case and as such, they have been declared hostile.
PW/3 Gauji repeated the narration of the incident as given in the F.I.R. In the cross-examination, he admitted that incident took place in the night and there was no light. He also admitted that because of the darkness, he could not see who assaulted his mother and brother. He also admitted that he had fallen on the ground and he did not know who kidnapped his sister Jamna. Thus, testimony of this witness is of no avail.
7. PW/4 Sakuri has stated that her daughter Mst. Jamna had come from the inlaws’ house. She was cooking food. She alongwith Nathu and Gauji were sitting outside. In their village there was some function in the house of Gautam. From village Kundanpur, Ramla, Mangia, Kachroo and Nakku had come to attend the function. The accused Mangia, Ramla, Kachroo and Nakku came to her house. They were armed with lathis. They came to her house and gave beatings. Mangia, Kachroo and Nakku belaboured her whereas Gauji belaboured Nathu. Thereafter they dragged Jamna and kidnapped her. They took her towards Hillock and killed her. The dead body was found in a pit (Khora). In the cross-examination, it was admitted by her that she was given severe beating and as such, she became unconscious. She pleaded ignorance about the persons giving beating to her. She also stated that Kachroo, Mangia, Ramla & Nathu and about 20-25 persons had lifted Jamna and kidnapped her. All of them had encircled her. She also stated that in her house, Mangia had caught hold of her daughter Jamna. The testimony of this witness is also of no avail to the prosecution as to the identity of the accused as she has stated that she was severally beaten and she became unconscious. She admitted that she was not aware as to who assaulted her.
8. PW/6 Bharat Singh has stated that a pit was dug by all the accused persons, from which, bones were taken out. Police had prepared the papers on the spot. In the cross-examination, he admitted that the pit was in a open ground. The cattle used to come there for grazing.
9. PW/8 Manglu has stated that the Police had taken him to the forest. He had seen some bones here and there but, he was not aware as to whose bones they were. There witness was declared hostile.
10. PW/9 Valu is witness of recovery of the dead body. This witness has not supported the prosecution case and as such, he was also declared hostile.
11. PW/13 Prithvi Singh is the S.H.O., Police Station, Ambapura. He has given all the details of the investigation.
12. PW/14 Nathu is the brother of the deceased Mst. Jamna. He has stated that his sister Jamna had come from village Karmadiya to meet them. She had come with her two daughters. On the date of incident his sister was cooking food. Shakuri, his mother was sitting in the ‘Varanda’. He alongwith his brother Gavji was also sitting in the ‘Varanda’. There was function in the house of Gautam. Some people from village Kundanpur also attended the function. He also stated that the accused Poona, Kachroo Mangia, Nakku, Bhanji and one more person came to his house. They were armed with lathis. They belaboured his mother Mst. Shakuri. PW/3 Gavji was also given beating. A lathi blow was given on his head. They dragged his sister Jamna and kidnapped her with a view to make her wife of Kachroo. After 8 days he came to know that the police has taken out body from the ground. In the cross-examination, he admitted that he did not know the accused persons prior to the date of the Incident. It is not is dispute that no identification parade was arranged. In absence of identification parade, we do not consider it safe to rely on the testimony of this witness so far as the identity of the accused persons are concerned. He also stated that PW/2 Gautam told him the name of the accused persons. PW/2 Gautam has not supported the prosecution case and as such, he was declared hostile.
13. The trial Judge convicted the appellants relying on the evidence recovery of the dead body in pursuance of the information given by the accused Kachroo. According to the prosecution the dead body was recovered vide Ex. P/3, in pursuance of the information given by the accused Kachroo on 19.4.1993 vide Ex. P/30. In this regard, it is suffice to state that it has been admitted by the investigating officer PW/13 Prithvi Singh that the place from where the bones were recovered is a open forest. He also admitted that the bones were sent for chemical examination to the Forensic Science Laboratory but the report was not received. PW/11 Dr. Sudheendra Kumar Bhatnagar also, admitted that it was not possible to say that the bones were of male or female. Thus, it cannot be said that the recovered bones were of the missing lady Mst. Jamna. While it is true that the conviction for offence does not necessarily depend upon the corpus delecti still the prosecution is required to establish its case by a reliable evidence direct or circumstantial that it was the accused and accused alone with committed the murder of the missing person. There is no reliable evidence on record to show that the accused persons committed the murder of the missing lady Mst. Jamna. Thus, in our view, the learned Judge was in error in holding the appellants guilty of murder of Mst. Jamna. It is also evident from the aforesaid discussion that there is no evidence worth the name that the accused persons kidnapped Mst. Jamna. The prosecution has failed to establish the identity of the accused persons in kidnapping of Mst. Jamna.
14. Consequently, this appeal is allowed. The judgment passed by the learned Addl. Sessions Judge, Banswara dated 7.9.1994 in sessions case No. 102/93 is quashed and set aside. The accused appellants Kachroo, Mangia and Nakku are acquitted of the offence under Sections 302/149, 323, 147 and 366 IPC. The accused appellant Mangia is on bail. His bail bonds stand discharged. The appellants Kachroo and Nakku are in jail. They shall be released forthwith if not required in any other case.