A. K. MATHUR, J. - (1.) THIS is an appeal directed against the judgment and conviction of the accused-appellant under sections 302, 326 and 324 I. P. C. , under sec. 302 I. P. C. accused-appellant has been sentenced to life imprison-ment and under section 326 I. P. C. 3 year's R. I. and under section 324 I. P. C. six months' R. I. All the sentences have been directed to run concurrently.
(2.) BRIEF facts, giving rise to this appeal are: Deceased Balaram was resi-dent of Bhakri. On the night intervening between 12th and 13. 06. 1976 he was sleeping at his house along with his son Amraram aged 5 years. His wife PW 7 Sarki was also sleeping along with her small daughter nearby. At the dead of night suddenly some one came armed with a sword and gave a fatal blow to deceased Balaram, as a result of which he died and that sword blow also injured Amraram. P. W. 7 Sarki immediately got up and cried for help. It is alleged that on that relevant time some 'jagaran' was going on in the temple of Hanu-manji and Birdaram, Joraram, Deeparam and Shankar heard sound of weeping. Therefore, they immediately went to the house of deceased Balaram and there Mst. Sarki P. W. 7 informed them of the incident. Birdaram P. W. 6 immediately filed the first information report at Police Station, Luni. Thereafter, Police took up the investigation. During the course of investigation, the accused was appre-handed and a sword and one 'jooti' was recovered at his instance. After the close of the investigation, Police filed a challan against the accused. The accused was ultimately committed to the Court of Sessions to stand trial under section 302 I. P. C. for causing the murder of deceased Balaram and under section 326, 324 I. P. C. for causing grievous hurt to Amraram. Learned Sessions Judge, after due trial, convicted the accused-appellant, as aforesaid, on the basis of the evidence of Mst. Sarki P. W. 7, the sole eye-witness of the incident. Aggrieved against this judgment and conviction, the accused has preferred the present appeal. We have heard Mr. M. M. Singhvi, learned counsel for the accused-appellant and Mr. S. M. Singhvi, learned Public Prosecutor and perused the record. Mr. Singhvi, learned counsel for the accused-appellant, has taken us to the statement of P. W. 7 Sarki at length. Learned counsel submitted that from a bare reading of statement of P. W. 7 Sarki, it will clearly transpire that she cannot be believed as a truthful witness, so as to fasten the guilt of the accused. Learned counsel submitted that so far as recovery of sword and 'jooti' are concerned they have not been established to be connected with the blood of the deceased. As against this Mr. S. M. Singhvi, the learned Public Prosecutor has emphasized that on the basis of statement of P. W. 7 Sarki, identity of the accused is established beyond doubt and he has supported the judgment. The whole case depends on the appreciation of the testimony of P. W. 7 Sarki. Sarki has debased that Birdaram, Joraram, Poonmaram, are her brothers, Kesaram is her 'jeth', Rama, Durga, Dungar, Napa &amra were her sons. Amraram was aged 5 years. It is alleged that on the fateful night, there was moon-lit night and she along with her husband were sleeping in the 'aangan' of her house. She has deposed that her husband was sleeping on cot along with his son Amra. She has also deposed that she was also sleeping on a cot towards the legs side of her deceased husband. She has also deposed that 2 years' daughter was also sleeping with her. She has stated that her other sons were sleeping outside the Gawadi. It is alleged that at dead of the night she heard certain sound of thus and the weeping of Amraram. She immediately got up and she saw that one person is standing near the cot of her husband and he was armed with a sword. By the time she could get up, that man has already scaled the wall of her house. It is alleged that the walls of her house are 3 to 4 feet high. She identified that person in the Court. She has also deposed that she had informed Birdaram that she had identified that person and he was wearing a blue shirt and Dhoti and was bare headed. She has deposed that she had identified that person during the identification parade also. In a close scrutiny of her statement, it appears that she has not been able to identify the person. If that was so, she would have immediately shouted the name of that person. Apart from this, it is difficult to believe that at the dead of night if a man gets up suddenly from the sleep and could collect his/her wits to identify the assailant who is not known to him/her previously. More so by the time she could get up the assailant has already scaled the wall and left that place. Therefore, in his back ground we are of the opinion that the testimony of Mst. Sarki is not such on which an implicit faith could be placed for convicting the accused-appellant, She is only a single witness and that single witness also does not inspire confidence so as to place implicit faith for upholding the conviction of the appellant.
(3.) APART from this, another outstanding feature is that the first information report which was filed on 13. 06. 1976. at 3. 30 A. M. , the name of the accused was not mentioned. Only a bare impression was conveyed that he could be a son of Thakur of Kaga Nada. It is not mentioned that which of the son of Thakur of Kaga Nada was the person responsible for causing this fatal blow. As a matter of fact, the identity of the accused came to be disclosed during the investigation after 7 days. The very fact that identity of the accused was made known after 7 days itself shows that Mst. Sarki could not identify the accused at night and it was only by process of elimination, the accused was singled out. In this connection, it may also be mentioned that the brother of Mst. Sarki and the sons of Thakur of Kaga Nada had a criminal litigation and there was an active animosity between them. Therefore, this possibility also cannot ruled out that the accused might have been roped in out of this enmity between the parties. So far as the recoveries of sword and 'jooti' are concerned that has also not been connected with present crime. In the result, we allow this appeal, set aside the conviction of the accused. The accused is on bail, he need not surrender, his bail bonds are discharged. .;