JUDGMENT
S.L. Kochar, J.
1. The appellants have preferred this appeal against their conviction under Section 302/34 of the IPC and sentence to imprisonment for life and fine of Rs. 1,000/- to each appellant, in default of payment of fine additional S.I. for 2 months passed by Learned Sessions Judge, Mandsaur dated 30-11-1998 in Sessions Trial No. 15/98.
2. None is present on behalf of the appellants. Appellant No. 1 Mangilal and No. 2 Ramchandra are on bail. Appellant No. 3 Bagdiram is in jail because he could not furnish the bail bond and surety bond in pursuance of the order of issuance of bailable warrant dated 30-8-2006. This is the appeal of the year 1998. This appeal was listed on 8-12-2006 and also in weekly list but neither the appellant Nos. 1 & 2 nor counsel for the appellants was present on that day. Therefore, it was adjourned and again listed in weekly list of 2nd January, 2007. On 2nd, 3rd and 4th January, 2007, nobody appeared on behalf of the appellants. Appellant Nos. l and 2 have also not appeared. Today, again the appeal is called for final hearing. Neither the appellant Nos. l and 2 nor their advocates are present, therefore, in view of Supreme Court judgments passed in case of Beni Singh v. State of U.P. and Kishan Singh v. State of U.P. , we have heard this appeal on merit.
3. The necessary facts for disposal of this appeal are as follows:
4. On 25-10-1997 in the night at 9.00 p.m. appellant Mangilal took deceased Hemraj from his house. They met appellants Ramchandra and Bagdiram on the road in front of the tea stall/hotel of one Bhavsar situated at Bus-Stand, Behpur. All the four went towards the field situated behind the house of Bhavsar and consumed liquor while sitting in the field of Kachrusasri (PW-8). While taking liquor they entered in some dispute, at that moment appellant Ramchandra caught both the hands of Hemraj, appellant Bagdiram caught both the legs and appellant Mangilal pressed (throttled) the neck of Hemraj which resulted into his death. Hemraj was lifted by Mangilal, Ramchandra and appellant Bagdiram took his turban and empty liquor bottle. They put the dead body of Hemraj on the platform in front of his house. The turban was placed under his head whereas empty bottle was put near his dead body and body was covered by Shawl. On the next day in the morning, Nandibai, wife of appellant Hemraj found the deceased lying on the Otla covered by Shawl. She also saw the black sign of nailing on neck of the deceased and empty bottle near the dead body. Nanuram, the brother of Hemraj was informed by Tulsiram (PW-2) that his brother was lying dead on the platform of his house. Nanuram (PW-1) reached at the house of the deceased and saw him in dead condition. He also saw nailing mark on the neck, thereafter went to Police Station and lodged merge intimation report (Ex. P/1) recorded by PW-9 Investigating Officer, Sub Inspector P.S. Parmar. Sub Inspector Parmar reached on the spot. He prepared inquest report (Ex. P/2) of the dead body. Spot map (Ex. P/3) and Photographs (Ex. P/4 and P/5) were also taken. Postmortem was conducted by Dr. Sharatchandra Badal (PW-7). Postmortem report is Ex. P/9. After completion of inquest enquiry, the offences under Sections 302 and 201 of the IPC were registered against the appellants and Dehatinalishi (Ex. P/24) was sent for registration of crime in Police Station where FIR was recorded (Ex. P/23). After investigation, all the 3 appellants were charge-sheeted for the above mentioned offences.
5. The appellants have denied the charges, therefore, put on trial and the learned Trial Court, after examination of prosecution witnesses hearing both the parties, convicted and sentenced the appellants as mentioned hereinabove.
6. Having heard the learned Counsel for the State and after careful perusal of the entire record, we find that the conviction of the appellants is based on circumstantial evidence and the main circumstance relied upon by the learned Trial Court is last seen of deceased with appellants, on the basis of the statement of Bagdibai (PW-6) the daughter of deceased who has testified that in the intervening night of 25th and 26th October, 1997 at 9.00 p.m. appellant Mangilal came to their house and called his father deceased Hemraj, thereafter took Hemraj with him. On the next day she found her father dead on platform (Otla) of the house. She also saw injury on the neck. Further say of this witness is that appellant Ramchandra wanted to marry with her and wanted the consent of her father by putting him under the influence of liquor, but her father did not give consent. In paragraph-4 she has stated that on the day of her examination her husband was one Sukhlal whereas in the deposition sheet the name of her husband is mentioned Bagdiram. In paragraph 5 she has stated that her statements were recorded 4 times by the police because every time something was left to disclose before the police. She was confronted with her case diary statement (Ex. D/2) of “A to A” portion where in it is mentioned that a day before yesterday i.e. on 25-10-1997 it was not disclosed to police because she was not literate. Further say of this witness is that her mother Nandibai was also in the house and they took the dead body inside the house and at the time of recording of first statement she failed to disclose the fact that appellant Mangilal called his father and took him from their house. This fact she disclosed when interrogated second time by the police. In her case diary statement (Ex. D/2), there is omission of the fact that appellant Ramchandra wanted to obtain consent from his father under the influence of liquor. She could not assign any reason for this material omission which amounts to contradiction.
7. On consideration, we are unable to place any reliance on the statement of this witness Bagdibai because in the first report (Ex. P/1) it is not mentioned that when deceased was taken from his house by appellant Mangilal she was present. According to the first report (Ex. P/1) (Merg Intimation Report Ex. P/l), Nanuram (PW-1), brother of the deceased was informed by her sister-in-law Nandibai, wife of deceased that appellant Mangilal took the deceased with him in the night and when she woke up on the next day morning, found her husband Hemraj lying on the Otla, in front of their house. Nandibai has not been examined by the prosecution who was the only witness for taking the deceased from their house by appellant Mangilal.
8. The learned trial Court also placed reliance on the statement of Kachrulal (PW-8), who has deposed in the Court that he had seen appellants along with deceased Hemraj in the night at 10 p.m. going towards water pond and again in the night at about 12 p.m. saw the appellants taking deceased Hemraj while lifting towards his house. He was confronted with his case diary statement (Ex. D/3) wherein the fact of taking of deceased by all the 3 appellants is not mentioned.
9. We have perused statement Ex. D/3 and found that name of all the 3 appellants are mentioned, but two appellants Ramchandra and Mangilal were carrying the deceased and 3rd appellant Bagdiram was following them having turban and empty liquor bottle. In this view of the matter, we do not find such omission in the case diary statement of this witness but this witness is also not reliable because he went to Police Station for lodging the report (Ex. P/1) along with Nanuram (PW-1) but at that time he did not disclose anything against the appellants and about the story of seeing the appellants carrying deceased towards his house as well as going towards the water pond. The statement of this witness was recorded on 27-10-1997. If really he had seen carrying of deceased or deceased in the company of the appellants in the night, there was no reason assigned by him as to why he did not disclose about this fact when he went to Police Station along with Nanuram and Nanuram lodged the report. Therefore, it appears that he was a got up witness. This witness is also the witness of almost all the investigation proceedings i.e. of the seizure memos, arrest memos, memorandum statement of the appellant. In paragraph-8 this witness has stated that when Hemraj was carried by the appellants, his legs were dragged on the ground but in postmortem report and evidence of Dr. Sharad Chandra Badal (PW-7), no injuries were found on the leg or ankle of the deceased. Dr. Sharad Chandra found 4 abrasions on right side of the neck brownish in colour and on internal examination he found fracture of cartilage of larynx and dislocation of cornua of hyoid bone. In his opinion, mode of death was asphyxia due to strangulation. He also found smell of alcohol. The homicidal death of deceased is properly proved on the basis of the evidence of Autopsy Surgeon. Investigating officer P.S. Parmar (PW-9) has admitted in paragraph-9 that against prosecution witness Kachrulal (PW-8) criminal cases were registered. He expressed his ignorance about assault/beating by Bagdiram by witness Kachru. In paragraph-14, he admitted that in FIR (Ex. P/24) at “B to B” part that while consuming liquor appellants and deceased entered into quarrel and abused to each other thereafter appellant Ramchandra caught hold of the hand of deceased Hemraj and Bagdiram caught legs, thereafter appellant Mangilal pressed the neck with an intention to commit murder of deceased Hemraj and all the 3 appellants jointly committed murder of Hemraj, was mentioned on the basis of information received by informant (Mukhbeer). These contents of Dehatinallshi (Ex. P/24) cannot be considered in favour of the prosecution because there was no eye witness of the incident and information of informant cannot be used as substantive or even corroborative piece of evidence.
10. On due consideration, we are of the opinion that evidence of prosecution witness Bagdibai (PW-6) and Kachrulal (PW-8) could not be relied upon to establish the circumstance of last seen of deceased in the company of appellants.
11. The other prosecution witnesses named Tulsiram (PW-2), Rameshwar (PW-3), Dhokar Singh have been declared hostile and nothing substantive has come in cross-examination of these witnesses by prosecutor.
12. Pappu Singh (PW-5) has deposed that he had seen at liquor shop deceased Hemraj and appellants consuming liquor. There were so many persons present and consuming liquor and all were sitting on different-different places. He was also sitting with Dhokar Singh and Bapu and person were coming and going from the shop (Kalali). This evidence of Pappu Singh is not sufficient to even raise suspicion against the appellants.
13. In view of the aforesaid legal and factual discussion, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt and learned trial Court erred in relying on the evidence of Bagdibai (PW-6) and Kachrulal (PW-8) for establishing the circumstance of last seen together. Therefore, this appeal succeeds. The conviction and sentence of the appellants are hereby set aside. Appellant No. 3 Bagdiram is in jail. The learned trial Court is directed to release him forthwith. Appellant No. 1 Mangilal and No. 2 Ramchandra are on bail. Their bail bond and surety bond stand discharged. Office is directed to send the copy of the judgment along with record to the trial Court immediately.