Decided on April 04,2012



BARIN GHOSH, J. - (1.) THE dead body of the Chowkidar, of a Farm, was found in the Nala, situate by the side of the Farm. After the dead body was thus found, the owner of the Farm, namely P.W.3, lodged the FIR. In the FIR, it was stated that the informant suspects that the murder of the said Chowkidar has been committed by the appellant. After this FIR was investigated, a charge sheet was filed, where upon, charge was framed. In the charge thus framed, it was alleged that it is the appellant who has committed murder of the said Chowkidar and, accordingly, is punishable under Section 302 of the Indian Penal Code. In order to prove the charge, prosecution relied upon oral evidence of three witnesses. P.W.1 proved the inquest report of the dead body, as he was one of the witnesses to the inquest. P.W.2 is an employee of the Farm. He deposed that, on the evening of the day, when the Chowkidar was murdered, the appellant was going towards the field namely, the Farm. He also said that the deceased Chowkidar informed him that a few days back the appellant had brought a stolen buffalo and kept the same inside the Farm for one night and, there after, brought a stolen goat and also wanted to keep the same inside the Farm, but at that time the Chowkidar refused. P.W.2 further deposed that he heard from the deceased that on refusal on the part of the deceased to permit the appellant to keep the goat inside the Farm, the appellant threatened the deceased with dire consequences. P.W.3 only proved the FIR and, stated that he heard what was conveyed to him by P.W.2, as information received by P.W.2 from the deceased. On this evidence, appellant has been convicted. Apart from the word of mouth of P.W.2, there is nothing on record to show that, infact the deceased gave any information to P.W.2 pertaining to the appellant bringing first a stolen buffalo in the Farm and keeping the same there for one night and, there after bringing a stolen goat and also wanting to keep the same in the Farm, but on being refused, the appellant threatened the deceased. THE fact that a buffalo was stolen and, there after, a goat was stolen by the appellant could be proved independently. No attempt was made by the prosecution to prove the same. In the circumstances, the prosecution purported to prove the guilt of the appellant on the basis of information allegedly received by P.W.2 from the deceased. Since the prosecution did not make any effort to substantiate that such information percolated from the deceased to P.W.2, such information cannot be treated to be a piece of evidence under Sub- Section (1) of Section 32 of the Evidence Act. Further, since ingredients of those informations could be independently proved and, no step was taken to prove the same, no attempt was made to prove the circumstances emanating from such informations. In the circumstances, the one and the only piece of evidence that the prosecution correctly brought on record was that, in the evening of the day the murder took place, appellant was going towards the Farm. That piece of evidence alone cannot make a prudent person to believe that it was the appellant alone and no one else who committed the murder.
(2.) THAT being the situation, we have no other option but to interfere with the judgment and sentence under appeal. We, accordingly, allow the appeal and set aside the judgment and sentence under appeal and, set the appellant free. Let a copy of this order be sent to the Superintendent of Jail, Haridwar with a direction upon him to forthwith set free the appellant. Let a copy of this judgment and order be sent to the court below with the lower court records.;

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