BALIA, J. - (1.) THIS is an appeal against the judgement of learned Sessions Judge, Jodhpur dated 13/10/1984 by which accused appellant Kan Nath has been convicted for having committed offence under Sec. 302 IPC and has been sentenced to life imprisonment.
(2.) THE prosecution case as disclosed in the F. I. R. lodged by Devnath on 28. 5. 82 is that deceased Gulab Nath, brother of complainant, had left his house alongwith his son Kan Nath, accused, on Sunday 23. 5. 82. On Monday evening, Kannath told Devnath that he has admitted his father Gulab Nath at Nimba Nimbdi hospital. Next day, he told that Gulab Nath has been admitted at Paota dispensary and yet third day, he informed that Gulab Nath has been admitted at Mahatma Gandhi hospital which created doubt in the mind of complainant. He, therefore, moved to find out about the truth about Kan Nath's statement first to M. G. Hospital, then to Paota dispensary and then to Nimba Nimbdi dispensary but did not find his brother admitted there. While returning to village Paldi from Nimba Nimbdi, he saw on the hillock 'jutiya; (shoes) of his brother and on going further, he saw that a scattered cores was lying, neck was severed from rest of the body and animals had torn the corpse in separate parts. In the night, he informed Birad Nath and Kalu Nath and in the morning, he has come to report about it that his brother has been murdered. In his statement, recorded, Dev Nath suggested that Kan Nath and his father Gulab Nath were not keeping good terms because about two months back, Kan Nath had returned from his aunt's house after stealing articles worth Rs. 3000/- and Gulab Nath has taken him to task and told that he (Gulab Nath) will have to make payment to his sister for which his field may have to be sold. On account of that, Kan Nath had also fought with his sister Oma. After usual investigation, Kan Nath was challaned and committed to Sessions for trial for having committed murder of his father Gulab Nath. Learned Sessions Judge vide his judgment under appeal has convicted and sentenced the accused-appellant Kan Nath as aforesaid. There is no direct evidence of the alleged crime. The circumstantial evidence on which the accused Kan Nath has been connected with the crime is stated to be that he was last seen with deceased Gulab Nath on 23. 5. 1982. Thereafter, Gulab Nath was not seen and there is extrajudicial confession on the part of the accused before Gorakh Nath PW 3, and Motilal PW 7. Apart from these two important circumstances, prosecution has also relied on certain recoveries, stated to have been made at the instance of accused. In the first instance, learned counsel for the accused-appellant Kan Nath has invited our attention to the post mortem report Ex. P. 3 ( ). The post mortem was conducted on 29. 05. 1982, F. I. R. was lodged on 28. 05. 1982 and according to version in F. I. R. , the corpse was last seen on 27th night. According to F. I. R. Ex. P. 31, the corpse was in a scattered condition and was severed and eaten away by the animals. It is also stated in the F. I. R. that the neck was severed from the rest of the body. According to post mortem report, dated 29. 05. 1982, death of the body was caused within about 15 days before the post mortem examination that is to say about 14th of May, 1982. Doctor in his statement before the Court as PW 14 has also stated that estimated period of death was within fifteen days before the examination of body for post mortem. The body was in extreme decomposed state. There was no skin left on face, neck, chest and stomach. The parts below the stomach, bones of thighs, arms and hands were exposed. Bones of face alongwith forehead bones were also visible. Most of teeth were absent. Lower jaw was in two pieces. On the basis of this state of affair of the body, found, learned counsel contends that identification of the body, which was skeleton, as of Gulab Nath was humanly impossible by mere seeing at it and it was impossible in this state of affair to find out the nature of injuries that may have been caused on the body. We find sufficient force in the contention of the learned counsel for the accused-appellant. On the basis of material placed on record, it is difficult to say that corpse which was subjected to post mortem on 29. 5. 82 can be said to be with reasonable certainty to be that of deceased Gulab Nath. It may be stated that according to post mortem report, the estimated period of death has been within fifteen days before the date of post mortem that is to say on or about 14. 05. 1982 whereas according to the prosecution, Gulab Nath was last seen alive merely five days before the recovery of the dead body that is to say on 23rd May 1982. Coupled with the state of body in which it has been found and the manner in which witnesses have spoken about identifying the body as body of Gulab Nath do not inspire any confidence. According to PW 1 Devnath who found the body on 27th night and then recognized the body of Gulab Nath in the state in which the body was found, itself belies the statement of Devnath that he could recognise the body on 27th. He or anyone by merely seeing the body could not have recognised* the body on 27th which was nothing more than a skeleton and a collection of scattered bony parts of the body as neither there was skin over most of the body, bones were exposed. Facial bones as well as bones of hands, thighs and arms were exposed. It may be stated that where dead body is mutilated due to intervention of animals like jackals and hyenas and birds like vultures, the body may be mutilated in a very short span when the same is lying exposed in the open. In such cases though identification of the dead body is not impossible but the same requires that remnant of mutilated body is re-structured and identified through the specialised technics. In such cases identification of the body by naked eye with mere look at a skeleton does not appear probable. In the present case, the facts arc clear; the body was found exposed in open and in a very decomposed and mutilated position due to intervention of animals. Prosecution has not had recourse to applying any specialised technics of restructuring the body in its details with the description of Gulab Nath and has not made any attempt to establish the identity of the body in that manner. As we have already discussed in the circumstances the evidence of recognising the skeleton, found, as that of Gulab Nath does not inspire any confidence to believe. The manner in which the body has been recovered and connected it to be that of Gulab Nath by the complainant also create doubt. In this respect, truth does not appear to have been brought on record.
(3.) IF the evidence relied on by the trial court for holding that the circumstance of last seen stands proved on record, is examined closely, we are of the opinion that the finding cannot be sustained. The trial court has relied on the statements of PW 1 Devnath, PW 6 Deep Giri and PW 10 Smt. Antra for the purpose. PW 1 Devnath while in the examination-in-chief states that Kan Nath had taken Gulab Nath to Mandore by saying that calves have been purchased and he may see the same on 23. 05. 1982 at about 11 A. M. but in the next breath, he admits that two have neither gone in-front of him nor he has seen them going together. While at one place in the examination-in-chief, he says that when Kan Nath returned in the evening, he asked him about the whereabouts of Gulab Nath and on his asking, Kan Nath told him that Gulab Nath has been admitted to Nimba Nimbdi hospital and on next day that is to say on 24th, he stated that Gulab Nath has been admitted to Paota dispensary and on third day i. e. on 25. 05. 1982, he stated that Gulabnath has been admitted to M. G. hospital but in his examination-in-chief at a later stage, he clearly states that since Kan Nath had taken Gulab Nath on Sunday morning, he has not returned home. This not only cuts across his testimony as to the circumstances of last seen but to the very substratum of his story that Kan Nath had given him three versions about admittance of his father Gulab Nath at three different hospitals. When Kan Nath had not returned home since Sunday, there was no occasion for him to have made enquiry from Kan Nath and to attribute three different statements to him. P. W. 6 Deep Giri does not inspire any confidence about his statement that he had seen Gulab Nath and Kan Nath together. Firstly, he does not give any time or date as to when he has seen Gulab Nath and Kan Nath together. The statement of PW 6 Deep Giri does not lead to any inference that he had seen accused Kan Nath and deceased Gulab Nath together on 23. 05. 1982. While prosecution case is that Kan Nath has allured his father to Mandore on the pretext of showing the newly purchased calves, PW 6 Deep Giri in his statement says that Gulab Nath has told him that he alongwith his son, is going to hospital. Even this statement is found to be contrary to his statement given in the police when confronted, In his cross-examination, he has admitted that he has come to give evidence at the instance of Kalu Nath PW 2 and Devnath PW 1. Devnath is the person who has set the entire prosecution on motion by indicating that the skeleton found by him is corpse of Gulab Nath which, we have already discussed, was not in a state of identifiable position as per the post mortem report. PW 10 Smt. Antra, the remaining witness on which the finding of last seen circumstance has been arrived at, also do not support the prosecution on this issue. She, in her examination-in-chief, has categorically stated that at the time when her husband Gulab Nath and son Kan Nath are stated to have gone together out of the house, she was not at home and this fact about their going together was informed to her also by none other than Devnath PW 1. As we have discussed above, PW 1 Devnath had also not seen Kan Nath and Gulab Nath going together and he could not have known about this fact unless he has met Kan Nath on his return which according to him, he did not return. Therefore, in our opinion, none of the statements relied on by the learned Sessions Judge establishes the circumstances that Gulab Nath and Kan Nath were last seen together on 23. 5. 82, Apart from the evidence as discussed above, we have also pointed out above that last seen circumstance is also not corroborated by the post mortem report Ex. P. 30. While according to Ex. P. 30, the death must have been caused on or about 14. 05. 1982, the prosecution has tried to prove that Gulabnath was seen alive on 23. 05. 1982. IF the prosecution case is correct about the last seen circumstance then the corpse on which post mortem was conducted, could not have been of Gulab Nath who admittedly was alive on 23. 5. 82 and if the identity of corpse is believed to be by Devnath then the story of Gulab Nath having been last seen with the accused Kan Nath on 23. 5. 82, falls to the ground. This is a serious infirmity in the case of prosecution. Coming next to the circumstance of extra-judicial confession, relied on by the trial Court. In this connection PW 3 Gorakh Nath and PW 7 Motilal have been examined to prove extra-judicial confession. Both have turned hostile and have not supported the prosecution case. Gorakh Nath is a person who accompanied Devnath on 28. 05. 1982 to the place where the alleged body of Gulab Nath was found and which according to them was identified by both of them to be the body of Gulab Nath and according to their statements after hearing the extra-judicial confession from Kan Nath, Gorakh Nath and Motilal had taken Kan Nath to Police Station for handing him over to the police. According to arrest memo Ex. P. 8, accused Kan Nath was arrested on 30. 05. 1982 and extra-judicial confession was also made by the accused on 30. 05. 1982. According to Gorakh Nath,thc extra-judicial confession has been made by Kan Nath when he asked Kan Nath on 30. 05. 1982 about the health of his father and on being asked about the welfare of his father, Kan Nath broke down and confessed his guilt. One thing is illuminating that on 28. 05. 1982, according to Gorakh Nath himself, he has come to know about the death of Gulab Nath because according to Devnath, Gorakh Nath had accompanied him at the scene where body was found on 28. 05. 1982 and the body was recognised to be the body of Gulab Nath. Therefore, when Gorakh Nath already knew about the death of Gulab Nath on 28th May much before 30. 05. 1982, he had no occasion to ask Kan Nath about the welfare of his father on 30th, but in the ordinary, he should have expressed grievement. He has also resiled from his police statement. His other statement that he alongwith Motilal had taken Kan Nath to the police station for surrendering him to the police also do not find support from the arrest memo which do not record any such information on the part of Gorakh Nath or Motilal PW 7. Moreover, there does not appear to be any good reason which suggests that in the ordinary course, Kan Nath would have made an extra-judicial confession before him. He is neither a close relative of Kan Nath nor a person of influence from whom any help was expected. Therefore, in the ordinary course of human conduct when neither he is a close associate nor a friend of Kan Nath which would lead him to make confession of his guilt before him in the like manner. Gorakh Nath has even denied that he made any statement before the police' or he has ever told the police about the extra-judicial confession. Statement of Motilal PW 7, who also has turned hostile, suffers from the same infirmities. Motilal is a person who is neither from the community of the accused nor related or connected with the accused in any manner. His statement about informing the police about extra-judicial confession is completely shattered in the cross-examination. ;