JUDGMENT Vinod Prasad, J.
1. The appellant State felt aggrieved by the judgment and order dated 10.7.1997, passed by III ADJ, Aligarh, in S.T. No. 829/1993, State v. Madan alias Madua by which the respondent accused Madna alias Madhua has been acquitted of the charges for offences Under Section 376/302/511 IPC and has filed this appeal.
2. The prosecution case was that on 9.3.1993 at about 9 A.M. when the informant Akhil Kumar P.W.I reached near the field of Chandra Pal s/o Kishan Pal on his way to his tube well for fetching hay, he heard the shrieks emanating from the field. He rushed in that direction yelling out to offer help. On his call accused Madan alias Madhua emerged from the field of Chandra Pal and ran away. Suspecting his conduct, the informant entered inside the field of and saw his cousin sister Km. Rekha daughter of Brijendra Singh lying naked in a pool of blood and was fluttering. Informant covered her body by cloth. On his inquiry as to who had assaulted her she, groaning in pain, whispered the name of the accused Madua twice and died thereafter without uttering any thing further. On the hue and cry raised by the informant family members and other villagers reached at the spot and were informed by the informant that accused Madan alias Madhua had committed the offence and ran away towards village Sahajpura.They searched in an area of 2 km in vain for the accused and subsequently, the informant suspecting that the deceased was sexually assaulted and murdered by the accused got scribed the FIR, covered a distance of 3 kms south and lodged it at the Police Station Madrak, district Aligarh at 1.35 P.M. on 9.3.1993.
3. The case was registered by H.C. Udai Veer Singh, who prepared the chik FIR Ex. Ka 14 and G.D entry Ex. Ka 15 in the presence of S.I. Surjeet Kumar P.W. 4, who was the Station Officer of the Police Station and 1st 1.0 of the case. Surjeer Kumar started the investigation recorded the statement of the informant, made spot inspection note and site plan Ex. Ka 4. Inquest was conducted under his supervision by the S.I. M.P. Agnihotri. Recovery of blood-stained and plain earth (Ex. 7), a copper vessel ( Ex.8) and glass bottle ( Ex 9) with recovery memo (Ex. Ka 11)was made by the I.O. On 10.3.1993 the accused was arrested from Aligarh from a milk shop and allegedly, at his pointing out a knife Ex. 2 was recovered from the field of Malkhan Singh in village Susayat. The Investigating Officer also recovered the underwear of the accused. After the transfer of Sujeet Kumar P.W. 4 further investigation was conducted by SO. Kunwar Pal Singh P.W. 7 who finding no case under Section 376 IPC, converted it Under Section 354 IPC and then submitted the charge sheet against the accused Under Section 354/302 IPC on 20.4.1993.
4. The medical examination of the deceased Km. Rekha was conducted on 10.3.1993 at 3.30 P.M. by Dr. S.K. Porwal, P.W. 5,who found as many as 7 incised wounds on her body, mostly situated on the upper torso and one linear abrasion on the face. He did not find any injury on her private part. He prepared her smear slide and in his estimation the cause of the death was ante mortem injuries. The post mortem report is Ex. Ka 12.
5. In the trial the prosecution, to proved the guilt of the accused, examined 7 witnesses, namely, Akhil Kumar P.W. 1 (informant), Ranvir Singh P.W. 2 (not mentioned in the FIR, but saw the accused running in blood stained cloth and with knife), Kunwar Pal Singh, P.W. 3 (hearsay evidence regarding the occurrence), Sujit Kumar P.W. 4 (1st . I.O. of the case), Dr. S.K. Porwal P.W. 5 ( doctor of autopsy). Dr. P.K. Tyagi P.W. 6 (Pathologist who had examined the accused medically and had prepared his medical examination report Ex. Ka 13) and Kunwar Pal Singh P.W. 7 (the Second I.O. who has converted the case under Section 354 IPC and had submitted the charge sheet against him).
6. The defence of the accused was that of denial.
7. The trial court by the impugned judgment held that the prosecution had failed to prove its case beyond all reasonable doubt and the accused was entitled to get the benefit of doubt and consequently he acquitted him for the offences Under Section 376/302/511 IPC giving rise to the present appeal.
8. We have heard Sri R.K. Singh learned AGA on behalf of appellant State and Sri J.S. Sengar assisted by Sri A.K. Singh Solanki Advocate on behalf of the accused respondent and have perused and analysed the evidence and other material on record.
9. Learned AGA submitted that the impugned judgment is bad in law, perverse and against the material on record. The accused was seen running from the field by P.W. 1 as well as by P.W. 2 soon after the incident, The medical report corroborates the prosecution case and the weapon of assault was recovered at the instance of the accused. He further submitted that evidence of the prosecution witnesses is believable and trial court committed a manifest error in not relying upon their testimony. He contended that it is a case of last seen evidence and the utterances made by the deceased chinches the offence against the accused and therefore the appeal deserves to be allowed and the respondent accused is liable to be convicted for murder.
10. Sri J.S. Sengar, on the contrary, submitted that the FIR is ante timed and the prosecution case is not believable. He submitted that the witnesses were not present at the spot and the narration of the incident by them is not believable. He further contended that there is no injury on the private part of the deceased and hence no body outraged her modesty nor the doctor ' opined thus. He further submitted that body of the deceased was naked and her clothes were not found around, which in the normal course would have been there, which shows falsity of prosecution version. He further contended that the parent of the deceased had not come forward to depose in the case and the informant who nurtured a grudge' against the accused falsely implicated him in the cocked up case. He further submitted that the judgment of acquittal is well reasoned and supported by the evidence on record and is not perverse and therefore it should be up held. He concluded that the appeal lacks merits and deserves to be dismissed.
11. From the evidence, cogitating over the rival submissions, we find that P.W. 1 narrated the same story as that in the FIR and further deposed that he had a grocery shop and on the date of the incident there was a festival and therefore there were lots of purchasers on his "shop but he closed his shop at 8.30 in morning after opening it only 2-1/2 hours because he had to bring hay for his cattle. He further deposed that he lives separately from his father and uncle and they have nothing in common. He further deposed that the place of incident is not Visible from the way pursued by him. He claimed to have heard the, shrikes of the deceased but could not identify her vioce. He could not explain as to why the I.O. had shown his way on the other side as has been claimed by him. He also stated that some times his wife used to bring hay from his tube well. He stated that the deceased yelled out "I am dying" on which call he was attracted and then she uttered Madua twice and no sooner he kept his hand beneath her, the deceased breathe her last. He further stated that he started for the police station only at 12.30 and waited at the place of incident for 3-1/2 hours. He did not know as to whether any written paper was handed over to him at the police station and he also did not know as to whether anything was taken down at the police station or not. He stated that accused was arrested in district Aligarh from a milk shop and from the place of his arrest he brought them directly to the place of recovery.
12. Ranveer Singh P.W. 2 deposed that he saw the accused running with blood stained clothes and knife and when he reached at the spot he saw the corp of the deceased. Witnesses Akhil Chandra and Kunwar Pal were present there. He stated that on his uncle Veer Pal and Vikram Singh, the case Under Section 307 IPC was lodged by Jagdish. In the said case the uncle of the accused Lakhan had given evidence against Veer Pal and Vikram Singh. He failed to explain why the I.O. did not record his statement on the date of incident itself, though he had disclosed the name of the accused to the I.O. on that day. He also could not explain why his statement was recorded belatedly on 31.3.1993. Kunwar Pal P.W. 3 has turned hostile and did not support the prosecution case.
13. From the perusal of the evidence of these witnesses it is crystal clear that none of the witnesses can be safely relied upon. They have failed to explain why the body was lying naked. If P.W. 1 had heard the shrikes of the deceased and if the deceased was alive when he reached to her, then it is not understandable where her cloths vanished. There was no injury found on her private part and both extremities, which is indicative of the fact that she was not ravished and either, she did not make or could not make any resistance to the murderous assault. No rape was committed on her. These facts are not explained at all and they are inconsistent with the prosecution version. It is not for the court to speculate but what seems to us is that the deceased was robbed and murdered and probably no body witnessed the incident. The evidence of utterances made by the deceased and her cry for help, to us, seems to be the embellishment by the informant and a cooked up theory. It is also not understandable as to why P.W. 1 closed his shop when there were huge number of purchasers at his shop. His ipsedixit that he had to fetch hay from his tube well does not satisfy our inquisitiveness regarding closer of shop as his wife could have done that. P.W. 1, hankered with the idea of getting the accused convicted, had moved all the applications in the case for framing of. charge, expeditious disposal of case etc It also does not satisfy us as to why parent of the deceased did not appear as a witness in the case. P.W. 1 was not informed by the deceased regarding the murderous assault by the accused as her utterance remained incomplete, which left huge vacuum for speculations. Only by uttering the name of the accused twice the complicity of accused is not established. His suspicion against the accused is wholly unfounded and pure imagination. He went to the police station on foot but did not use cycle, which is an unnatural conduct. He admitted that he waited at the spot till 12.30 noon without any satisfactory explanation. He received the copy of the police report on the following day without any reason, though he should have got immediately after lodging of FIR. Thus the evidence of this witness leaves much to be desired. His evidence cannot be relied upon. From the applications filed by him, which are on record, it seems that he bore enmity with the accused. From the perusal of the site plan it transpires that the distance from where he had seen the accused running! is 72 paces and, therefore, the identification of the accused could also be faulty. So far as the evidence of P.W. 2 is concerned, his statement was recorded on the following day and he is an inimical and related witness. He did not hear the shrieks of the deceased, though he claimed to be present around the place of incident. He also did not utter anything regarding clothes of the deceased etc. Thus his evidence also cannot be relied upon. Kunwar Pal Singh P.W. 3 had turned hostile and did not support the prosecution case. Thus from the discussion made above, we are not satisfied that the manner of incident as alleged by the prosecution is true.
14. The recovery of the knife in the case is also doubtful as no site plan of the place of the recovery was prepared. How the informant was made a witness for recovery is also mysterious. No time of recovery had been mentioned in the memo. The knife was never sent to the serologist and there is no independent witness of the said recovery.
15. Taking the whole fact situation and the evidence into consideration we are not satisfied that the prosecution has been able to bring home the guilt of the accused. In our opinion there is no merit in the appeal, which is liable to be dismissed. To us, the order of acquittal recorded by trial court, does not seem to be perverse in its conclusion. The state appeal is dismissed.
16. Let a copy of this judgment be sent to the court below with record for incorporating necessary entry in the relevant register.