JUDGMENT
Sharma, J.
1. This criminal jail appeal by accused appellant Naresh arises out of the judgment and order dated 31.01.1996 passed by the learned Sessions Judge, Jaipur District, Jaipur thereby holding he accused appellant guilty for the offence under Section 302 and 394 I.P.C. While convicting the accused appellant, the learned Sessions Judge has sentenced him to undergo life imprisonment with a fine of Rs. 100/-, in default of payment of fine, to further undergo one months rigorous imprisonment on the first count, and to undergo 2 years rigorous imprisonment with a fine of Rs. 200A, in default of payment of fine, to further undergo one months’ rigorous imprisonment, on the second count.
2. Briefly stated the facts of the case, are that on 12.08.1993 PW. 21 Khushal Singh. S.H.O. Police Station Bassi received an information on wire-less that someone by imputing the foot of a lady has taken away her silver anklets and her dead body is lying near Village, Kuthada. On receiving the above information, the SHO alongwith police party rushed to to Village, Kuthada where, Sita Ram S/o Bhagwan Sahai submitted a written report Ex.7 on which he made an endorsement and proceeded to investigate the case and on the aforesaid written to the Police registered a case vide F.I.R. No. 302/93 under Section 302 and 394 IPC on 13.8.2001 at 1.15 P.M.
3. During investigation, PW. 21 Khushal Singh, prepared inquest report of deceased Gull Devi Ex. P.8. Later on PW. 19 Sumer Singh, Circle Officer inspected the site on 13.8.1993 and prepared Ex. P.1 site plan. He also took in possession the blood smeared cloths of deceased Guli Devi vide Ex. P.2, blood smeared soil vide Ex. P.3, a cement piece of floor of Kheli (meant for catties’ drinking water) having blood stains vide Ex. P.4, one strap of wrist watch vide ex. P.5, one Lathi and one pair of Shoe vide Ex. P.6. He also recorded the statements of Smt. Mooli Devi, Ram Dayal, Gopal, Sanjay, Sita Ram, Mathura, Babu Lal, Smt. Chotta, Ramrai, Rameshwar and Ganesh under Section 161 Cr.P.C.
4. PW. 17 Poonam Chand Vishnoi, went to Uttar Pradesh in search of accused Naresh and apprehended him in the Village, Pahadi District, Banda (U.P.) and brought and produced him to S.H.O., Bassi who in turn arrested accused Naresh vide arrest memo Ex. P.14 dated 20.01.1994. Accused Naresh on 20.01.1994 gave an information Ex. P.17 under Section 27 of the Indian Evidence Act for the recovery of ornaments of deceased Guli Devi. On the basis of the above information PW. 17 Punam Chand Vishnoi at the instance of accused Naresh recovered one pair of silver anklets of foot, one pair of silver anklets of hands, one pair of silver ear-rings and one golden nose-ring (nath) from Ram Charan and prepared memo Ex. P.14. Again on 27.01.1994 accused naresh gave an information Ex. P.18 to PW.21 Khiushal Singh for the recovery of “Khurpi” the alleged weapon of offence and PW.21 Khushal Singh recovered that “Khurpi” at the instance of accused Naresh vide Ex. P.10 and also prepared the site plain of the place of recovery Ex. P.9 PW.21 Khushal Singh also prepared Ex. P.11 site plan at the instance of accused Naresh.
5. PW. 1 Dr. Kailash Narain conducted the post-mortem report of Smt. Guli Devi and prepared Ex. P.1. He found the following injuries on the person of deceased Gulli Devi:
(i) Rt. foot with 10 cm of leg above ankle joint separated from the remaining leg and lying near the body, cut end of lower end of tibia and fibula are protuding cut 10 cm with lacerated wound.
ii Left foot separated from the remaining leg just above ankle joint and lying near by the body, cut end of lower end of tibia and fibula are protuding 15 cm with lacerated wound.
(iii) Dislocation of Rt. shoulder joint.
6. The Doctor opined that all injuries were ante mortem in nature. According to him the cause of death was hemorrhagic shock associated with Asphyxia due to compression of neck.
7. PW.18 Pokhar Mal, Incharge of “Malkhana” deposited the recovered articles in the “Malkhana” and made entries in the register at Ex. P. 15 and Ex. P. 16 PW.2 Amar Singh deposited six sealed packets at the Forensic Science Laboratory, Jaipur for chemical analysis and submitted its receipt, Ex. P.2 at Police Station, Bassi.
8. PW. 13 Sugan Chand, Tehsildar, Bassi conducted the identification of ornaments vide Ex. P.12 and PW.14 Rameshwar husband of deceased Guli Devi correctly identified the ornaments to be belonging to deceased Guli Devi. Ex. P.19 is the report of Forensic Science Laboratory, Jaipur which indicates that blood smeared soil, Odani,
Blouse, Ghaghara, strap of wrist watch and piece of floor were smeared with human blood of Group-A.
9. On completion of investigation narrated above, a charge sheet under Section 302 and 394 I.P.C. was submitted against accused Naresh in the Court of Judicial Magistrate, Bassi, who in turn, committed the case to the court of Sessions.
10. The learned Sessions Judge framed charges against the accused under Section 302 and 394 IPC, to which the accused pleaded not guilty and claimed to be tried. During trial, the prosecution in support of its case examined as many as 21 witnesses and exhibited some documents. Thereafter, the accused was examined under Section 313 Cr.P.C for the purposes of enabling him to explain the circumstances existing against him. He did not examine any witness in his defence and stated that he has been falsely involved in the case.
11. We have heard Shri V.P. Vishnoi, learned counsel appearing for the appellant and Shri S.C. Purohit, learned Public Prosecutor and perused the judgment and record of the trial Court.
12. It is a settled proposition of law that in a case of circumstantial evidence, no presumption of guilt can be drawn unless the circumstances relief upon and proved are completely incompatible with the innocence of the accused. It is also well settled that the accused can be convicted on circumstantial evidence only if every other reasonable hypothesis of guilt is completely excluded and the circumstances are wholly inconsistent with the innocence of the accused.
13. The present case rests purely on circumstantial evidence. We have to examine whether the evidence relied upon the prosecution is complete and incapable of explanation on any other hypothesis than that of the guilt of the accused. The prosecution has relief on the following circumstances so as to bring home guilt against accused appellant:-
(i) Accused Naresh was found in the company of deceased Guli Devi just prior to the incident.
(ii) Accused Naresh was found running from the place of incident just after the incident.
(iii) Recovery of ornaments belonging to deceased at the instance and information of the accused.
(iv) Recovery of alleged weapon of offence at the instance and information of accused Naresh.
(v) Recovery of piece of cement floor smeared with blood, where accused Naresh washed his hands.
(vi) Recovery of strap of wrist watch smeared with human blood of Group-A.
14. We shall examine the first circumstance existing against the accused as alleged by the prosecution. To prove this circumstance that accused was last seen in the company of deceased Gulli Devi, the prosecution has mainly relied on the evidence of PW.3 Bhuli. She has stated in her statement that prior to the incident accused Naresh remained with Guli Devi at her residence between 2 PM to 3.15 PM and he made predictions. Thereafter, Guli Devi went to her field and accused also followed her having one “lotah” with him. This part of her statement made before the court appears to be an improvement as this fact was not mentioned in her Police statement Ex. D.1. On the contrary in Ex. D.1 at portion marked A to B, she has stated that Naresh went towards Village side. Thus, this substantial improvement in her statement does not inspires confidence and it cannot be believed that accused Naresh followed deceased Guli Devi when she proceeded to her field.
15. As regards second circumstance against the accused that he was found running from the place of incident just after the incident, the first witness Mathura, PW 4 has stated in her statement that she saw accused running from “Kheli” where he was washing his hands and at that time accused was having one “Lotah” and one Bundle (Potli) in the Yellow coloured cloth.
16. Other witnesses in this regard are PW. 7 Gopal and PW. 8 Babu Lal, who had also seen the accused running from the side of well of Rameshwar at about 5.00 P.M. and at that time he was having one bundle (Potli) with him.
17. Yet another witness to the last seen is PW.9 Sanjay, who has also stated that on the day of incident at about 5.30 P.M. accused Naresh purchased cigarette, match box and biris’ bundle from him and at that time he was having one bundle (Potli) of blue colour.
18. PW.16 Ganesh narain Sharma has also stated that he gave lift to Naresh on his bicycle and left him at Kuthada Mod, from where accused Naresh had to go to Agra Via, Jaipur.
19. PW.6 Ram Dayal has also stated that on the day of incident he went to Jaipur form Kuthada at 6.00 P.M. and accused Naresh was also going to Jaipur by the same bus. He was having one bundle (Potli) in yellow coloured cloth.
20. On a careful scrutiny of the evidence discussed above, it appears that PW.4 Mathura has not stated that the hands of accused were full of blood or she saw blood stains on the floor of “Kheli” at that time. PW.7 Gopal has also not stated that accused was having “Lotah” when he saw him running. Similarly, PW.8 Babu Lal has not stated that accused was having any bundle (Potli) with him. PW. 16 Ganesh has also not stated that accused was having any “Lotah” or “Potli” in his possession. Their statements, if scrutinized in the light of above discrepancies, do not inspires confidence so as to conclude that the accused was seen in the company of deceased just prior to the incident or was found running from the scene of occurrence having “Lotah” or “Potli’ in his possession, after the incident.
21. The third circumstance is the recovery of ornaments belonging to the deceased, made at the instance and on the basis of information Ex. P. 17 of the accused. PW. 21 Khushal Singh has simply stated that on 20.01.1994 accused gave information Ex. P. 17 under Section 27 of the Indian Evidence Act. He has not stated as to what information the accused has supplied to him. A glance at Ex. P. 17 merely indicates that accused informed PW.21 Khushal Singh that he sold the ornaments to Ram Chandra Saraf, Fish Market, Banda whereas, the ornaments were recovered from PW.20 Ram Charan and according to his statement his shop is situated in the Vegetable Market, Banda. PW.20 Ram Charan has stated that he did not purchase the ornaments. He has further clarified that he is not engaged in the business of purchase and sale of ornaments, but he used to manufacture new ornaments out of old ornaments. So, there was no occasion with accused Naresh to have left the above said ornaments with Ram Charan, Particularly when he refused to purchase the same. A look at Ex. P. 14 recovery memo of the ornaments makes it clear that the ornaments were recovered from Ram Charan, who was having his shop at Gaya Prasad Market, Banda.
22. From the discussions made above, we can safely infer that the recovery of ornaments was not in consonance with the information Ex. P. 17 furnished by accused Naresh, inasmuch as neither the ornaments have been recovered from the same person about whom the accused had informed nor the shop is the same, about with the accused had indicated. Even the location of the shop from where the ornaments have been recovered is altogether different. Thus we must conclude that this third circumstance is also of no help to the prosecution case.
23. The fourth circumstance is the recovery of weapon alleged to the have been used in the commission of offence. Pursuant to the information Ex. P.18 furnished by
accused, PW.21 Khushal Singh has recovered the weapon of offence vide recovery memo Ex. P. 10. A perusal of Ex. P. 10 indicates that one ”Khurpi” was recovered under the heap of stones and that “Khurpi” was found in a rusted condition. It has nowhere been mentioned in Ex. P.10 that “Khurpi” was having any blood stains on it. PW.21 Khushal Singh in his cross-examination has categorically admitted that prima- facie no blood stains were visible on “Khurpi” and for that reason he did not send it to the Forensic Science Laboratory, Jaipur for its chemical examination. The witnesses also admitted that the boundary wall of “Nohra” was in a broken condition at different places, meaning thereby that the place from where the “Khurpi” was recovered was a open place and was accessible to all and sundry.
24. Thus, on scanning the prosecution evidence as to the recovery of weapon of offence, we find that the prosecution has not been able to establish that the above “Khurpi” was used for imputing the legs of deceased Guli Devi.
25. It is also worthy to note that the Investigating Officer took in possession the piece of cement floor of “Kheli” having blood stains on it, but there is not an iota of evidence to prove the accused was having blood on his hands. PW.4 Mathura has nowhere stated that she saw accused washing his blood stained hands at the “Kheli” and, therefore, this piece of incriminating circumstance also does not connect the accused with the crime.
26. The strap of wrist watch was lying on the dead body of Guli and it was recovered by the Investigating Officer vide recovery memo Ex. P.5, The witnesses to the recovery of strap, namely, PW.5 Kailash and PW.14 Rameshwar have stated that they found the strap of wrist watch lying near the dead body before reaching the police at the spot and they handedover the same to the police. However PW.10 Jagdish has stated that strap of wrist watch was lying on the dead body. There was not an iota of evidence on record to prove the the above said strap of wrist watch relates to accused Naresh. Further, no watch has been recovered from the possession of accused Naresh to prove that the recovered strap of wrist watch relates to the watch of Naresh.
27. Before parting with the case, we feel it appropriate to comment upon the varacity of the alleged identification of the ornaments. PW.14 Rameshwar husband of deceased who identified the ornaments of his wife Guli Devi in the presence of Shri Sugan Chand, Tehsildar has categorically stated in his cross- examination that he also mixed the anklets carried by him with the anklets to be identified. Therefore, in these circumstances no credibility can be attached to such a identification of the ornaments.
28. Judged thus, we conclude that the trial judge has seriously erred in relying upon the circumstances. The prosecution has utterly failed to prove none of the circumstances relied upon to prove the guilt against the accused appellant beyond reasonable doubt and hence presumption of guilt cannot be drawn against the accused as the circumstances proved are not completely incompatible with the innocence of the accused. The accused appellant, therefore, deserves benefit of doubt.
29. In the result, the appeal must succeed and it is accordingly allowed. The judgment of the trial court, dated 31.01.1996 thereby convicting and sentencing the accused appellant under Section 302 and 394 IPC is set aside. The accused appellant is acquitted of the offences charged with. He is in Jail and be set at liberty, if not wanted in any other case.