ARORA, J. - (1.) THIS appeal is directed against the judgement dated July 28/30,1977, passed by the Sessions Judge, Jalore, by which the learned Sessions Judge convicted and sentenced the accused-appellant for the offence under section 302 I. P. C.
(2.) THE incident, which led to the prosecution of the accused- appellant Fatta, took place on May 19, 1977, when Smt. Bhiki W/o accused Fatta, was murdered. THE report of the incident was lodged at Police Station, Jalore, by one Poona Ram-the uncle of deceased Smt. Bhiki, on May 19,1977 at 10. 30 p. m. After presentation of the challan, the accused was tried by the learned Sessions Judge, Jalore. The prosecution, in support of its case, examined eleven witnesses. PW 1 Chhotiya and PW 5 Omiya are the two sons of accused-appellant while PW 2 Smt. Gorki is the aunt and PW 3 Smt. Pali is the mother of accused-appellant. P. W. 4 Poona is the uncle of the accused-appellant. These five witnesses, who are related to the accused-appellant in one way or the other, have not supported the prosecution case and they were declared hostile. PW 6 Shantiya is the son of accused-appellant, who was aged about 2-1/2 to 3 years and as he could not understand the sanctity of the oath as well as the questions put to him, therefore, he was not examined by the Court. PW 7 Dr. B. L. Rai conducted the post-mortem on the deadbody of deceased Smt. Bhiki and found twenty one injuries on her person and according to Dr. B. L. Rai the cause of death of Smt. Bhiki was shock and syncope due to multiple injuries found on her person. PW 8 Mag Singh is the Constable, who took the samples from the Office of the Superintendent of Police, Jalore, to the Slate Forensic Science Laboratory. Jaipur, for F. S. L. examination who handed over the same to the aforesaid Laboratory at Jaipur. PW 9 Poona Ram is the uncle of deceased Smt. Bhiki, who has stated that a month before, the accused murdered Smt. Bhiki. He has stated that at about 7. 00 p. m. on the date of the incident, he was present in Jalore at the house of one Prema Bheel. He heard the out-cries from the house of the accused and on hearing the out-cries, he went to the house of accused Fatta and saw Smt. Bhiki lying on the ground. The accused-appellant was sitting nearby out-side the doors and the mother and the aunt of the accused were sitting near the deadbody of Smt. Bhiki. Smt. Bhiki was covered by a cloth and on removing the cloth when he tried to see the deceased Ml. Bhiki by lilting the match-sticks four time, the match-sticks were put-off by the aunt and mother of the' accused, but in the light of fifth match stick, he saw the clothes of deceased Smt. Bhiki smeared with blood and she had certain injuries on her person. He thereafter tried to proceed towards the Police Station, but Fatta's father and uncle caught-hold of him and asked him not to report the matter to the police station as that will unnecessarily put them in trouble, but he did not pay heed to their request and went to the Police Station and reported the matter to the police. He has further stated that the report Ex. P. 7 was recorded at the Police Station in the morning of next day, but the police came to the house of accused-appellant in the night and saw the site in his. presence but the memos were prepared on the next date and the recoveries were, also, made in the morning of next day. The police had seen the deadbody of Smt. Bhiki in the light of a torch and prepared the injury report in the night itself. He is, also, a witness to the recoveries of Ghagra (Article,l), Kurta (Article 2), Kanchali (Article 3) and Odna (Article 4) and the pieces of the carl, marked Article 5 and Article 6. In the cross examination, he has specifically admitted that the First Information Report was not recorded in the night but after the information was given by him, the police came at the place of occurrence and all the writings were done in the morning of next day. His thumb impressions were not taken on any paper in the night. He has, also, admitted in the cross-examination that the clothes, taken from the deadbody of deceased Smt. Bhiki, were not sealed at the house of the accused, but they were taken by the police and the pieces taken from the cart were, also, not sealed at the house of accused. PW 10 Kana Ram is a Motbir witness, in whose presence, various recoveries were made. In the cross-examination, he has specifically stated that Bawla was recovered from the Jhumpa, which was open and was not locked and the Bewala was, also, not blood-stained. He has, also, admitted that accused Fatta did not get this Bewla recovered and the Bewla was not sealed in his presence. He has, also, admitted that no information regarding the recovery of the Bewla was given by the accused Fatta in his presence. PW 11 Prem Singh is the Assistant Sub-Inspector, who investigated the matter, made certain recoveries, recorded the statements of the witnesses and presented the challan. The learned Sessions Judge, after trial, came to the conclusion that there is no direct evidence to connect the accused with the crime. He was of the view that so far as the witnesses PW 1 to PW 5 are concerned, they are related witnesses and have not supported the prosecution case and have turned hostile, and the oral evidence, produced by the prosecution, does not connect the accused with the crime. The learned Sessions Judge, while convicting the accused under Section 302 I. P. C. , placed reliance over three circumstances; firstly, that the accused brought Smt. Bhiki in a cart and at that time she was injured, but he did not give any information to this effect to the police and, also, did not take her to the hospital for treatment, the second circumstance, on which the reliance was placed by the learned Sessions Judge is regarding the motive and the third circumstance, relied upon by the learned Sessions Judge is the recovery of blood-stained Bewla on the information and at the instance of the accused-appellant. We have gone through the evidence produced by the prosecution and the judgement, passed by the learned lower Court. We have, also, seen the record of the case. There is only the evidence of PW 9 Poona Ram and the other circumstantial evidence, over which the reliance has been placed by the learned Sessions Judge, against the accused-appellant. So far as the evidence of PW 9 Poona Ram is concerned, he has nowhere stated that he saw the accused giving beatings to the deceased Smt. Bhiki. He has, also not stated that it was the accused, who put off the match-sticks when he tried to see Smt. Bhiki in the light of match-stick (s ). These were only the mother and aunt of accused, who put-off the match-sticks. It was, also not the accused who obstructed this witness while he was going to the Police Station for lodging the report. He was obstructed by the father and uncle of the accused. According to this witness, he had seen the accused sitting out side the doors. From the evidence of this witness, no link of the accused has been established with the crime. Now we take the circumstantial evidence, over which reliance has been placed by the learned Sessions Judge. So far as the conduct of the accused-appellant in not reporting the matter to the police or not taking Smt. Bhiki to the hospital, is concerned, a person can act in a particular way in certain circumstances. Moreover, in the evidence, produced by the prosecution, it is not brought out that when Smt. Bhiki was brought to the house of the accused, at that time she was alive. The statement of PW 9 Poona Ram only goes to show that when he saw Smt. Bhiki, at that time she was dead. If a person has not reported the matter to the police out of fear or on account of the reasons best known to him, that circumstance alone is not sufficient to connect the accused-appellant with the crime. Moreover this circumstance was not put to the accused in his statement under Section 313 Cr. P. C. and if a particular circumstance is not put to the accused in his statement under Section 313 Cr. P. C. that circumstance cannot be read against the accused.
(3.) THE other circumstance, relied upon by the learned lower Court, is regarding the motive. No witness has given any statement before the Court on the alleged motive. THE alleged motive only finds mention in the First Information Report wherein PW 9 Poona Ram has stated that the accused-appellant had a doubt regarding the character of the deceased. THE First Information Report, though it is the first version given by the prosecution but it is not a substantive piece of evidence and no conviction can be based on the averments made in the First Information Report. As the prosecution has not led any evidence with regard to the motive and, therefore, the learned Sessions Judge was* not right in placing reliance over the motive. The third circumstance, on which reliance has been placed by the learned Sessions Judge, is the recovery of Bewla. This recovery of Bewla was made, as per the evidence of PW 10 Kana Ram, from the open house and he has specifically stated that the Bewla was not sealed in his presence and the accused did not get this Bewla recovered at his instance. Moreover, this Bewla was not found blood-stained in the F. S. L. report and it was not sent for Serological Examination. Moreover, there is no link evidence, produced by the prosecution, that the seals on this article remained intact. PW 10 Kana Ram has specifically stated that the Bewla was not sealed in his presence. PW 8 Mag Singh is the Constable, who has slated that he took the sealed articles from the office of the Superintendent of Police to the State Forensic Science Laboratory, Jaipur, and handed over the same in the laboratory in the sealed condition. PW 13 Prem Singh has only stated that he recovered the Bewla and sealed it and kept it in sealed condition, alongwith other articles and sent these articles for F. S. L. Examination to the State Forensic Science Laboratory, Jaipur, after obtaining the Tehrir from the Office of the Superintendent of Police and these packets remained with him through-out in the sealed condition. This witness has stated that these articles remained with him in the sealed condition while PW 8 Mag Singh has stated that he had taken the sealed articles from the Office of the Superintendent of Police. It appears that this Bewla was recovered by PW 11 Prem Singh on May 30, 1977. Vide Ex. P. 12, while it was sent for chemical examination through PW 8 Mag Singh on June 5, 1977. During this period from May 20,1977 to June 5, 1977, where this Bewla remained, has not come in evidence. No witness has been produced from the Office of the Superintendent of Police, Jalore, in whose custody the Bewla remained during this period. This recovery of Bewla from the possession of the accused, even if it is believed, is thus, of no help to the prosecution. All the circumstances, over which the reliance has been placed by the learned Sessions Judge, do not prove the case against the accused-appellant beyond reasonable manner of doubt. It may create great suspicion against the accused, but the suspicion, howsoever graver it may be, cannot take the place of proof. While convicting the accused placing reliance over the circumstantial evidence, the circumstances relied upon by the prosecution, must be such which should point out the guilt of the accused with reasonable definiteness and the chain of the evidence should be so complete that no other inference can be drawn except the guilt of the accused. ;