JUDGMENT M. Chaudhary, J.
1. Since both these appeals have arisen out of one and the same judgment dated 30th of October 1981 in Sessions Trial No. 153 of 1977 State v. Veer Sain and Ors. passed by I Additional Sessions Judge Ghaziabad they have been heard together and are being disposed of by one and common judgment.
2. These appeals have been filed by accused Veer Sain, Ranjit and Ram Rati from the judgment and order dated 30th of October 1981 by I Additional Sessions Judge Ghaziabad in Sessions Trial No. 153 of 1977 State v. Veer Sain and Ors. convicting accused Veer Sain and Ranjit under Section 302 read with Section 34 IPC and Ram Rati under Section 120B read with Section 302 IPC and sentencing each of them to imprisonment for life thereunder.
3. Brief facts giving rise to these appeals are that at about 12:40 noon on 23rd of May 1977 Smt. Ram Rati lodged an FIR at police station Bahadur Garh District Ghaziabad that her husband Ram Das residing at village Jakhera had gone to village Saloni for hiring a bullock-cart for transporting bricks last evening on 22nd of May 77 at about 6:00 p.m. but did not return back home. Then in the morning she taking her daughter Sudha went to village Saloni and contacted Hari Singh telling him that yesterday evening her husband had gone to him but did not return baek home. Hari Singh told her that Ram Das had contacted him last evening but returned back at that very time. Then Hari Singh, Ram Pal and Veer Sain accompanied her and searching Ram Das as they reached near the brick kiln situate at the outskirts of village Bilehra they started hunting out for Ram Das and found his dead body lying there but she did not know as to who murdered her husband. The police registered a crime against unknown person under Section 302 IPC and started the investigation. Station Officer Rameshwar Dayal Gaur who took up investigation of the case in his hands went to the place where the dead body of Ram Das was lying and drew inquest proceedings thereon. He prepared the inquest report (Ext Ka 5) and other necessary papers (Exts Ka 12 to Ka 14) and handed over the dead body in a sealed cover alongwith necessary papers to constables Irfan Ahmad and Lal Singh for being taken for its post mortem. He also inspected the site and prepared its site plan map (Ext Ka 6). He also collected blood stained and simple earth from the place of occurrence and prepared its memo (Ext Ka 7). However he recorded statements of the witnesses the next day. It appears that during the investigation the police learnt that accused Veer Sain had developed illicit intimacy with Ram Rati as after falling down her house she alongwith her husband Ram Das started residing in a portion of rented accommodation in occupation of Veer Sain who was doing medical practice at village Jakhera.
4. Autopsy conducted by Dr D K Jindal Medical officer P L Sharma Hospital District Meerut on 24th of May 1977 at 3:00 p.m. revealed below noted ante mortem injuries on the dead body:
1. Incised wound 28 cm x 5 cm x bone cut (third cervical vertebrae) auxillary blood vessels on both sides, trachea and esophagus also cut.
2. Incised wound 3 cm x l cm x bone deep on left side cheek just below left ear.
3. Incised wound 2 cm x 1/2 cm x bone cut at left index finger.
4. Abrasion 2 cm x 1 cm on right side forehead.
5. On internal examination all the organs were found pale. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injury No. 1 about one and half a day ago.
6. The investigating officer concluded that Veer Sain in conspiracy with his compounder Ranjit and Smt Ram Rati murdered Ram Das. After completing the investigation the police submitted charge sheet against the accused accordingly.
7. After framing of charge against the accused the prosecution examined witnesses in support of various circumstances relied upon by the prosecution as there was no direct evidence in the case. The entire prosecution case rests on circumstantial evidence mainly comprised that of last seen and alleged illicit relations between Ram Rati and Veer Sain. Regarding the alleged illicit relations between Veer Sain who used to do medical practice at village Jakhera and Ram Rati wife of Ram Das prosecution examined Babu Lal (PW 1), Suresh Chandra (PW 2), Prahlad (PW 7) and Suresh Chandra son of Balak Ram (PW 8), The prosecution examined Ram Kishan (PW 4) as the witness of last seen at about 9- 9:30 p.m. the alleged night. PW 5 Fatehyab Khan stated that at about 10:00 p.m. the alleged night when he was going to his fields from his house he saw Veer Sain and Ranjit coming together on the way to Saloni. PW 3 Radhey Shyam, brother-in-law of Suresh Chand (PW 2) stated that at about 10 or 10:30 p.m. he was sleeping at the baithak of Babu Ram (PW 1) that he heard two persons telling Ram Rati that the work was done and she should sleep comfortably and that thereafter they went away. PW 6 Babu Khan stated that at about 9:00 a.m. the alleged morning he was going from his village Jakhera to Saloni that Ram Rati, Veer Sain, Ram Pal and Hari Singh met him on the way searching Ram Das, and on being asked by Ram Rati that he should also help in searching Ram Das he accompanied them and as they reached near the brick kiln they started searching him and that as he proceeded few paces ahead from the brick kiln he heard wailing of Ram Rati and on returning back saw that dead body of Ram Das was lying at the brick kiln. PW9 Radhey Lal has been examined as witness of extra judicial confession allegedly made by Ram Rati 1-2 days after the occurrence. PW 12 Kunwar Pal stated that some four years ago he used to run a brick kiln and that once Veer Sain went to him telling that he needed bricks and for that he deposited Rs. 100.00 in advance but thereafter he did not come to him to take the bricks. PW 11 Suresh Pal Singh and PW 13 Upendra Veer Singh have been examined as witnesses of alleged recovery of photograph of accused Veer Sain, his two pass books and a letter allegedly written by him to Ram Rati, wife of the deceased and an unregistered Deed of Will executed by Ram Das regarding his landed property in favour of his wife Ram Rati allegedly recovered by investigating officer Rameshwar Dayal Gaur from the possession of Ram Rati at her instance in pursuance of the disclosures made by her. Testimony of the remaining witnesses PW 14 HC Prem Singh and PW 15 constable Irfan Ahmad is that of formal nature. PW 16 Station Officer Rameshwar Dayal Gaur who investigated the crime and submitted charge sheet against the accused has proved the police papers.
8. Accused Veer Sain and Ranjit denied the alleged occurrence altogether stating that they have been got implicated in the case falsely due to village party factions. Accused Ram Rati stated that Babu Ram got her implicated in the case falsely. She also denied the alleged recovery of photograph, letter etc from her possession stating that she lodged FIR of the case correctly.
9. The accused examined DW 1 Jagnandan Gram Sewak who deposed with the help of Kutumb Register that there was only one person named Fattu at village Rajheti who had two major married sons who used to reside separately and no child or issue of marriageable age was mentioned in the entries regarding members in their families. Thus defence examined this witness just to show that in the family of Fattu there could be no marriage and thus testimony of PW 4 Ram Kishan that he was going there the alleged night for seeing the party arrangements in the marriage going to be celebrated at the house of Fattu is false and that he is no better than a got up witness.
10. Relying upon the circumstantial evidence furnished by the prosecution learned Sessions Judge held the accused guilty of the charge levelled against them convicting and sentencing them as staled above.
11. Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress.
12. We have heard learned counsel for the appellants and learned AGA for the State.
13. After going through the parties' evidence and other material on the record and the impugned judgment we do not find ourselves in agreement with the findings recorded by the learned trial Court for the following reasons:
14. In the case of circumstantial evidence all the circumstances taken cumulatively should form a chain so complete that there should be no escape from the conclusion that within all human probability the crime was committed by the accused and none else. In our opinion the evidence led by the prosecution suffers from such intrinsic improbabilities and discrepancies which rendered the prosecution case unbelievable and unacceptable. Now first we would see if the prosecution has succeeded in establishing the circumstances relied upon.
15. Taking the first circumstance, PW 1 Babu Lal real brother of the deceased stated that Ram Rati was married to his brother Ram Das some 28 years ago and at that time she was aged about 15 years and Ram Das aged about 44 years and some 7-8 years after her marriage one daughter was born to her whose name is Sudha , that for the last two years one Veer Sain who is a medical practitioner started practicing at his village in the accommodation owned by Prem Singh , that about One and a half years ago due to rains house of Ram Das got dilapidated and then Ram Das and his wife started residing in the accommodation in occupation of Veer Sain and that there were strong rumours in the village about the illicit relations between Ram Rati and Veer Sain. PW 2 Suresh Chandra son of Babu Lal (PW 1) also stated likewise. PW 7 Prahlad stated in his examination-in-chief that some four years ago in the noon he passed from in front of the house of Ram Das and saw that some quarrel was going on between Ram Das and his wife over sale of she- buffalo by her, and Ram Das was asking his wife that she sold the she- buffalo for Rs. 300.00 and whether this amount would be sufficient for construction of the house and during that altercation Ram Das told her that she was talking much as she had support of the doctor. PW 8 Suresh Chandra son of Balak Ram, resident of village Saloni stated that he used to work as compounder in the medical shop of Veer Sain who used to do medical practice at village Jakhera for one year and that Ram Rati used to visit the doctor but to his knowledge there were no illicit relations between them. Thus PW 7 Prahlad and PW 8 Suresh Chandra have not supported the prosecution case on the point that Veer Sain had developed illicit intimacy with Ram Rati wife of Ram Das, the deceased. Now remains the interested testimony of Babu Lal brother of the deceased and his son Suresh Chandra. Admittedly Babu Lal and Ram Das who were real brothers were living separately for last more than 20 years and their relations were not cordial so much so that when the house of Ram Das fell down in the rains admittedly Babu Lal did not ask his brother Ram Das to reside with him. Thus implicit reliance can not be placed upon interested testimony of PW 1 Babu Lal and his son Suresh Chandra. In our opinion this circumstance has not been established by the prosecution satisfactorily.
16. Now coming to the second circumstance of last seen, there is the solitary testimony of Ram Kishan (PW 4). PW 4 Ram Kishan who is 'Halwai' by profession stated in his examination-in-chief that the alleged night at about 9- 9: 30 p.m. he accompanied with one Sheoraj was going towards Saloni that he saw accused Veer Sain and Ranjit alongwith Ram Das coming from that side. He stated in his cross-examination that the alleged night he was going to village Rajheti as there was marriage in the house of Fattu 'Nai' on 23rd January. He also stated in his cross-examination that next day at about 10:30 a.m. he passed by the brick kiln as he was returning from Rajheti and saw several persons collected there including Veer Sain and Ram Rati but he did not tell Ram Rati that last night he had seen Ram Das with Veer Sain and Ranjit coming from the side of Saloni. His sole testimony on the point does not appear to be worthy of credence because of his unnatural conduct. Had he seen Ram Das alongwith Ranjit and Veer Sain last night at about 9- 9:30 p.m. coming from the side of Saloni then next morning at about 10:30 a.m. on seeing the dead body of Ram Das it was but natural for him on seeing his wife Ram Rati there to tell her that last night he had seen Ram Das coming with Ranjit and Veer Sain from the side of Saloni. Further he himself stated that the alleged night at about 9 - 9:30 p.m. when he saw Ram Das alongwith Ranjit and Veer Sain coming from the side of Saloni he was accompanied with Sheoraj. Name of witness Sheoraj finds mention as one of the witnesses in the charge sheet but he has not been examined by the prosecution for the reasons best known to them. For the above, we do not consider it safe to place implicit reliance on the sole testimony of Ram Kishan on the point.
17. PW 5 Fatehyab Khan stated that at about 10:00 p.m. the alleged night when he was going to his fields he saw Veer Sain and Ranjit coming together on the way to Saloni and he recognized them in the light of torch from a distance of some 20-25 paces. It is doubtful if an aged person could recognize two persons going together at a considerable distance in the dark night in the light of torches. Besides it Ranjit was resident of Saloni and working as compounder at the medical shop of Veer Sain and there is nothing strange if they were going together at about 10:00 p.m. in the month of May.
18. PW 3 Radhey Shyam stated in his examination-in-chief that the alleged night at about 10 -10:30 p.m. he was sleeping at the baithak of Babu Ram that he heard two persons telling Ram Rati that the work was done and she should sleep comfortably and thereafter they went away. He admitted in his cross-examination that his cousin sister was married with Suresh son of Babu Ram. Admittedly he could not recognize any of those two persons. Thus testimony of this witness is of no avail to the prosecution.
19. PW 6 Babu Khan stated that the alleged morning he was going from his village Jakhera to Saloni that at about 9:00 a.m. Ram Rati, Veer Sain, Ram Pal and Hari Singh met him on the way and on being asked they told him that since Pandit Ji (Ram Das) had not returned back in the night they were searching him, that Ram Rati asked him to help in searching him, that then he also accompanied them and as they reached near the brick kiln they started searching him there and as he went few paces ahead from the brick kiln he heard wailing of Ram Rati and then he returned back and saw that dead body of Ram Das was lying there and there was wound at his neck. This statement of Babu Khan leads us to no where because according to FIR lodged by Ram Rati at the police station herself when her husband Ram Das did not return back home in the night next morning she contacted Hari Singh at his house at Saloni and when he told that Ram Das had returned back last evening after talking to him she accompanied with him and others went in search of her husband Ram Das and while searching him his dead body was found lying at the brick kiln.
20. Thirdly, now coming to the extra judicial confession allegedly made by Ram Rati to Radhey Lal and Village Pradhan Mahfooz Ali in presence of Naresh the prosecution examined Radhey Lal (PW 9). PW 9 Radhey Lal deposed that 2 -3 days after the occurrence Tulsi brother -in -law of Ram Das came when he was talking to Pradhan Mahfooz Ali and entreated them to save his sister as she was very much perturbed; that then all of them went to the house of Ram Rati where she was weeping and told that she had developed illicit intimacy with Veer Sain which annoyed her husband and then she conspired with Veer Sain and his compounder for getting him murdered and then Ram Das was murdered while he was returning from the brick kiln. Admittedly this witness Radhey Lal was not holding any office in the Gaon Sabha or Village Panchayat. According to the prosecution case Naresh and Pradhan Mahfooz Ali were also present there but none of them has been examined by the prosecution on the point. Thus the sole testimony of Radhey Lal does not appear to be worthy of credence.
21. Lastly, regarding the alleged recovery of photograph of accused Veer Sain and his two Pass Books and a letter allegedly written by him to Ram Rati wife of the deceased and the Deed of Will allegedly executed by Veer Sain bequeathing his landed property in favour of his wife Ram Rati there is testimony of PW 11 Suresh Pal Singh and PW 13 Upendra Veer Singh in addition to PW 16 Rameshwar Dayal Gaur, the investigating officer. PW 11 Suresh Pal Singh stated in his examination-in-chief that the investigating officer had interrogated Ram Rati but he could not say as to what transpired between them and that the sub-inspector had recovered some papers, utensils etc from her house and the investigating officer obtained his signatures on some papers. However his statement was continued that day and subsequently he was not produced for cross-examination. Thus his testimony is of no avail to the prosecution. PW 13 Upendra Veer Singh stated in his examination-in- chief that after interrogating Ram Rati the investigating officer took search of her house and the investigating officer recovered two pass books, one photograph, one letter and one Deed of Will from the suit case (attach) of Ram Rati and the sub-inspector obtained his signatures on the recovery memo of the articles recovered. He stated in his cross-examination that that suit case was of brown colour either of leather or rexine. PW 16 station officer Rameshwar Dayal Gaur who investigated the crime stated that on 26th of May 1977 he interrogated Ram Rati and in pursuance of the disclosures made by her he recovered photo, two pass books, deed of will and one letter from the boxes from inside her 'kotha' at her instance. He has not stated any where as to what disclosures were made by Ram Rati to him which led to the discovery of the said articles from her possession at her instance. Hence the alleged recovery too is of no avail to the prosecution. Besides it a perusal of the two pass books allegedly recovered goes to show that they are in the name of accused Veer Sain resident of village Baheta Police station Syana District Bulandshahr. In one of these pass books Rs. 20. 00 were deposited and the account was closed in May, 1972. A perusal of another pass book goes to show that this account was operated upto the year 1970. In this account there is no balance money. There is also an unregistered Deed of Will allegedly executed by Ram Das bequeathing his landed property in favour of his wife Ram Rati on 22.5.77. It bears a certificate in the hand writing of accused Veer Sain that at the time of executing the deed of will Ram Das was in fit mental state and that the document was executed in his presence. The possibility can not be ruled out that since Ram Das was quite old and had no son and his relations with his brother Babu Lal who had three young sons were strained he might have executed this deed of will in order to secure his wife and two daughters though in ordinary course his wife and daughters were his legal heirs and after his death his property was to devolve upon them. It appears that since there was difference in age between Ram Das and his wife as the latter was quite younger to her husband and they had no son and their terms with Babu Lal were quite strained so much so that when in rainy season house of Ram Das got dilapidated Babu Lal did not ask them to stay at his house as after all Ram Das was his real brother Ram Rati depended upon Veer Sain for her day to day difficulties. The letter allegedly written by Veer Sain to Ram Rati can not be read in evidence as it has not been proved. Still a perusal of this letter does not go to show that Veer Sain had illicit relations with Ram Rati. It has come in evidence that Ram Das resided with his wife Ram Rati upto the last. The fact narrated in the FIR lodged by Ram Rati that since they had to get their dilapidated house reconstructed Ram Das had gone to Hari Singh at village Saloni for arranging 'Buggi' to transport bricks from the brick kiln the alleged evening. When he did not return back home in the night she alongwith her daughter Sudha went to Saloni next morning and contacted Hari Singh and learnt that he had returned back that very evening and then she alongwith Hari Singh, Ram Pal and Veer Sain went in search of her husband Ram Das and while searching found his dead body lying at the brick kiln at village Bilehra can not be ruled out altogether (Ext Ka 3). It has come in evidence that on 14.7. 77 Babu Lal, brother of Ram Das, the deceased gave an application to C.O. concerned that Veer Sain resident of village Baheta who is a medical practitioner and started practising at his village Jakhera had developed illicit intimacy with his brother's wife Ram Rati and when he and his sons used to ask him to leave the village and practice somewhere else he threatened them; that he had two compounders Ranjit and Suresh both residents of village Saloni and both used to tease the girls of the village and that the doctor should be turned out of the village so that they may live peacefully (Ext Ka 1). A perusal of the enquiry report by the police of police station Bahadur Garh goes to show that it was reported that there was rumour in the village that Veer Sain had developed illicit relations with Ram Rati wife of Ram Das but her husband Ram Das and Babu Lal told that there was nothing wrong between them and the people used to say so just to bring them in disrepute falsely (Ext Ka 10). Contention of the appellants' learned counsel that Babu Lal, brother of Ram Das the deceased was instrumental in his murder as he wanted to grab his landed property and for that purpose he tried to bring his brother's wife in disrepute taking the benefit of the age difference between the couple and of the fact that she had two minor daughters can not be discarded altogether. It would not be out of place to mention here that Babu Lal (PW 1) and his son Suresh Chand (PW 2) both admitted in their deposition that at about 10:00 a.m. they learnt that the dead body of Ram Das was lying at the brick kiln, that they went there and stayed for a little while and did not wait or stay upto the time the dead body of Ram Das was sent by the police therefrom. Babu Lal admitted that he remained present in the village throughout the day. However Babu Lal (PW 1) was interested in the prosecution of Ram Rati and others in the murder case so much that his statement in the court had been recorded on 8.1.81 and statement of PW 9 Radhey Lal was recorded in the case on 14.5.81; and on 14.5.81 also he was very much present in the court room at the time the statement of PW 9 Radhey Lal was being recorded as is evident from his statement. Further, PW 1 Babu Lal himself admitted that on 22nd and 23rd of May 1977 he remained in the village and did not go to attend to his duty from 7:00 a.m. to 1:00 p.m. at the tubewell. However PW 3 Radhey Shyam brother-in-law of Suresh Chand (PW 2) stated that the alleged night he was sleeping in front of the baithak of Babu Lal but that night Babu Lal and Suresh Chand were not in the house. It all goes to show that there was something black in the bottom.
22. Thus the circumstances relied upon by the prosecution have not been established satisfactorily. The circumstantial evidence in the case therefore falls short of the standard required on all the material particulars. All the pieces of circumstantial evidence when taken cumulatively goes to raise a suspicion against the accused but the suspicion howsoever strong cannot take the place of legal proof.
23. Since the learned Trial Judge has failed to appreciate the evidence on the record in its true perspective the findings of conviction recorded by him against the appellants can not be sustained. The accused are therefore held not guilty of the charge levelled against them and they are entitled to acquittal.
24. The appeals are therefore allowed and conviction and sentence recorded against the accused by the Trial Court are hereby set aside.
25. The accused are hereby acquitted of the charge levelled against them. They are on bail. Their bail bonds are hereby discharged.
26. Certified copy of the judgment alongwith the record of the Lower Court be sent to the Court concerned for necessary compliance under intimation to this Court within two months from today.