JUDGMENT
S.L. Kochar, J.
1. This appeal by the appellant is directed against the judgment and order dated 30-1 -2002 passed by the learned Addl. Sessions Judge, Manasa in S.T. No. 210/2001, by which the appellant stands convicted under Section 302 of the IPC and sentenced to undergo R.I. for life and to pay a fine of Rs. 500/- with defaulting clause of imprisonment of one month R.I,
2. The prosecution case in brief as unfolded before the Trial Court is that on 27-7-2001 Sitaram (P.W. 6), the Village Chowkidar of Bhaktuni, lodged a report in Kanjada Police outpost that when he was present in his house, Ratanlal s/o Bhanwarlal resident of same village came to his house and informed him, that his daughter Santoshibai aged seven years was sleeping in the last night outside the house. In the morning he thought that she might be playing in the village, thereafter he received information that dead body of his daughter is lying in the field of appellant Narulal. He asked Sitaram to accompany him to see the dead body. Both proceeded and reached in the field of appellant Narulal and found that dead body of Santoshibai was lying on the embankment of the field. Ratanlal took the dead body to his house and sent Sitaram to lodge the report. On the basis of the report lodged by chowkidar in police outpost Kanjada Merg was registered on number 0/3/2001. The merg report was produced in Police Station, Manasa on the same day by Constable Kailash Kumre on that basis merg No. 24/2001 as per provision under Section 174 of the Cr.PC was registered and ASI C.L. Haryale reached on the spot for merg enquiry. He prepared spot map (Ex. P-4) and also inquest of the dead body Ex. 6-A and sent the dead body of post-mortem. Post-mortem was performed by the panel of two Doctors. Post-mortem Report is Ex. P-6. ASI Haryale also recorded the statement of witnesses in merg enquiry and found that appellant took, the deceased Santoshibai in the night and committed her murder. After merg enquiry FIR vide No. 261/2001 under Sections 302, 376 read with Section 511 of the IPC was registered and matter was investigated. From the spot pieces of plastic bangles, one pair plastic sandel were seized through seizure memo (Ex. P-10) and Investigating Officer recorded the statements of Sitaram, Ramesh and Ratanlal as well as arrested the appellant Narulal. On disclosure statement made by appellant Narulal in presence of witnesses manoj Kumar and Ramchandra vide Ex. P-8, at the instance of the appellant through seizure memo (Ex. P-9), a stone was said to have been seized. The appellant was medically examined. His report is Ex. P-3. After completion of the investigation, appellant was charge sheeted for the above mentioned offences.
3. The appellant denied the charges. His defence was that he has been falsely implicated because of enmity. He did not examine any witness in defence. The learned Trial Court, after examining the prosecution witnesses and hearing both the parties, convicted the appellant as mentioned hereinabove.
4. We have heard the learned Counsel for parties and also perused the entire record. The conviction of the appellant is mainly based on the testimony of child witness Ramesh (P.W. 8) aged 12 years. The say of this witness is that appellant is his uncle (foofa husband of father’s sister). On the date of incident he was sleeping outside his house on the platform alongwith her sister deceased Santoshibai aged six years. His mother and father were sleeping inside the house. In the night between 9-10 pm appellant came over there and asked about his sister. This witness objected but appellant lifted her sister and went away. He thought that appellant being his uncle took deceased Santoshibai to his house. On the next day morning they were searching Santoshibai. He heard his father and village chowkidar Sitaram (P.W. 6) were talking that dead body of deceased was lying in the field of the appellant. He told his father Ratanlal (P.W. 7) that appellant took Santoshibai in the last night between 8-9 p.m. He further stated that he went to place of incident and saw the dead body. Member Shivlal, villager Deva and village chowkidar were also reached. Name of the chowkidar is Sitaram. Near the dead body of Santoshibai her bangle pieces and sandel were lying. Thereafter dead body was brought to his house and chowkidar went to police station for lodging the report.
5. Sitaram (P.W. 6), the village chowkidar has deposed that in the morning between 8-9 a.m., Ratanlal (P.W. 7) came to him and disclosed that his daughter Santoshibai was killed by appellant Narulal. Santoshibai was aged about six years and her dead body was lying on the embankment of field of appellant. He saw the dead body. Ratanlal brought the dead body to his house. Thereafter he went to Police Station, Kanjada and lodged the report. He saw injuries on the face, eyes and head of the deceased Santoshibai. He also witnessed inquest proceeding and signed on the same. His statements were also recorded by the police. He proved his report vide Ex. P-l. In cross-examination he deposed that he reached the police station at 10 a.m., thereafter police party reached in the village at about 1.00 noon. Police directly reached at the house of Ratanlal and prepared panchnama, thereafter went to the spot. They remained there upto 1.30 p.m. There was no blood on the spot but broken pieces of bangle were present. At about 2 p.m. they all returned back from the spot. Nothing favourable to the appellants has come in cross-examination.
6. Ratanlal (P.W. 7) the father of deceased has deposed that appellant is his brother-in-law. On the date of incident he was sleeping inside his house and his son Ramesh (P.W. 8) and deceased daughter Santoshibai were sleeping outside the house on the platform. On the next day morning he was informed by one Vinod that dead body of his daughter Santoshibai is lying in the field of appellant Naru. He went to village chowkidar and thereafter both reached in the field of the appellant and found the dead body of Santoshibai. They saw injuries on her head, face and eyes. They brought the dead body of Santoshibai to his house, thereafter he sent village chowkidar for lodging the report in police outpost. He was informed by his son Ramesh (P.W. 8) that in the night appellant took Santoshibai with him and he thought that he was just taking Santoshibai to his house. In cross-examination, para six of this witness, it has come that he restricted the appellant to visit his house because prior to the incident he had committed rape with his aunt. He was not having any doubt about illicit relation of his wife with appellant. He has denied the defence suggestion that because of this doubt he was not allowing the appellant to visit his house. This witness also deposed in para five of his cross-examination that his son Ramesh has disclosed about taking of deceased in the night by Narulal, therefore, he did not disclose this fact to village chowkidar whereas say of village chowkidar Sitaram (P.W. 6) is that between 8-9 a.m. in the morning Ratanlal came to his house and informed him that his daughter Santoshibai was killed by appellant Narulal. This statement of Sitaram is not corroborated by witness Ratanlal. Ratanlal (P.W. 7) has stated that he did not disclose information given to him by his son Ramesh because Ramesh disclosed him the only fact that appellant took deceased Santoshibai in the night, only thereafter he went in search of his daughter. The statement of Sitaram (P.W. 6) that Ratanlal disclosed him that Santoshibai was killed by appellant, is not admissible in evidence being hit by the rule of hearsay evidence.
7. On perusal of the merg intimation report lodged by witness Sitaram (Ex. P-2) proved by Constable Kailash Kumare (P.W. 1), there is no mention of the fact that this witness; village Chowkidar Sitaram (P.W. 6) was informed by father of the deceased Ratanlal (P.W. 7) that appellant committed murder of deceased. The fact of disclosure by Ramesh (P.W. 8) that in the night appellant took Santoshibai with him is also not mentioned in the merg intimation report (Ex. P-2) lodged and signed by village chowkidar Sitaram (P.W. 6). If these facts were really disclosed to him by Ratanlal (P.W. 7) or Ramesh (P.W. 8) there was no reason for village chowkidar not to disclose the same in his report. On the basis of report lodged by village chowkidar (Ex. P-2) Anr. merg intimation number 24/2001 was recorded in the Police Station, Manasa on the same day dated 27-7-2001 in the night at 9.10 p.m. Prior to registration of the merg intimation report in the police station police already reached in the village at P.W. 11 C.L. Haryale, ASI who was posted on 27-7-2001 at police chowky Kanjada prepared spot map (Ex. P-4) in presence of Prakash (P.W. 3). He also prepared inquest of dead body Ex. 6-A and sent the dead body for post-mortem examination. This witness has admitted in cross-examination that on the place of incident he did not found any blood stain, therefore, he had not seized blood stained earth and controlled earth from the spot. P.W. 11 C.L. Haryale has also deposed that the recorded the statements of witnesses Sitaram, Ramesh, Ratanlal and Prakash during enquiry of inquest and these statements were not filed alongwith the charge-sheet. According to him, there was no need to file these statements alongwith the charge-sheet because statements of these witnesses recorded under Section 161 of the Cr.PC were already filed. Inspector B.P. Samadhia (P.W. 10) has deposed that on the basis of the merg enquiry, he registered FIR vide Ex. P-ll. Ex. P-ll was registered on 28-7-2001 at 9.30 a.m. for commission of offence under Sections 302, 376/511 of the IPC against the appellant.
8. In view of the aforesaid prosecution evidence, we are of the opinion that prior to proceeding to the police station for lodging the report by village chowkidar Sitaram (P.W. 6), if child witness Ramesh (P.W. 8) has disclosed the fact that appellant took the deceased by lifting her in the night, there was no reason for Sitaram (P.W. 6) to mention this fact in his report (Ex. P-2). This omission is an important and material omission. There is no eye-witness of the incident and other circumstantial evidence to connect the appellant with the crime. The seizure of stone at the instance of the appellant is of no use because same was not sent for chemical examination.
9. The autopsy surgeon Dr. K.C. Kothari (P.W. 4) has deposed in para seven that from the injury blood stain should have fallen on the ground but no blood stained earth was seized from the field of the appellant. Deceased sustained fracture of left temporal and frontal bone. The cause of death was excessive bleeding due to fracture of temporal and frontal bone as well as injury to brain. The mode of death was coma. Dr. K.C. Kothari (P.W. 4) has proved post-mortem report Ex. P-6. He has specifically stated that he did not found any sign of commission of rape with the prosecutrix. Deceased died between 36-48 hours from the date and time of post-mortem examination. Post-mortem was performed on 27-7-2001 in the night at 7 p.m.
If village chowkidar was knowing the name of the appellant as author of the crime and if he would have disclosed this fact to the police, police instead of recording merg intimation report (Ex. P-2) would have recorded the FIR as per provision under Section 154 of the Cr.PC regarding commission of cognizable offence. Therefore, omission of the fact in the merg intimation report (Ex. P-2) that Ramesh (P.W. 8) disclosed the fact of taking of the deceased in the night by the appellant and thereafter on the next day dead body of the deceased was found lying dead in the field of the appellant or disclosure of the fact to the chowkidar by Ratanlal (P.W. 7) that appellant Narulal had committed the murder of his daughter, are important omissions of the facts, affecting the probabilities of the case and are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. See Ram Kumar Pandey v. State of M.P. AIR 1975 SC 1027.
In view of the aforesaid discussion, we are of the considered opinion that prosecution has utterly failed to prove its case beyond all reasonable doubt against the appellant. Therefore, he is entitled for acquittal. Thus, the appeal of the appellant is allowed. The conviction and sentence passed against the appellant are hereby set aside. The appellant is on bail. His bail bond and surety bond\stand discharged.