- (1.) - This appeal is directed against the judgment dated January 11,1985, passed by the Sessions Judge, Churu, by which the learned Sessions Judge convicted and sentenced the accused-appellant for the offence under Section 302 I. P. C. and Section 25 of the Indian Arms Act.
(2.) THE incident, which led to the prosecution and trial of the accused-appellant, took place in the intervening night between July 4/5, 1983, when one Ram Lal was at about 1. 00 a. m. in his house situated in village Chimanpura (district Churu ). THE report of this incident was lodged by Ram Rakh at Police Station, Rajgarh (district Churu) on July 5, 1983. THE case of the prosecution is that in the night of July 4, 1983, Ram Lal and PW 2 Likhma Ram were sleeping in Ram Lal's house and Ram Lal's mother Smt. Mohri was sleeping in the Khuddi. Likhma Ram heard a noise of firing and when he got-up, he saw accused Chouth Ram standing near the cot of Ram Lal. At that time he was having a pistol in his hand and on enquiry, he told that he was Chouth Ram and after disclosing his identity, Chouth Ram ran away. Likhma Ram informed PW 3 Ram Rakh his other son-regarding the incident, who, in turn, informed about the incident to the villagers and thereafter, he along with other villagers went to the house of the Sarpanch of village Bhuwadi and informed him about the incident. From the house of the Sarpanch, Ram Rakh along with Jethu and the Sarpanch of village Bhuwadi, namely, Man Chand, went to Police Station, Rajgarh, and lodged the report Ex. P. l. THE prosecution, in support of its case, examined twelve witnesses and placed reliance over seventeen documents. THE learned Sessions Judge, after trial, convicted the accused for the offence under Section 302 I. P. C. and Section 25 of the Indian Arms Act and sentenced him to undergo imprisonment for life and a fine of Rs. 2000/- and in default of payment of fine further to undergo six months rigorous imprisonment under Section 302 I. P. C. and for the offence under Section 25 of the Indian Arms Act, he was sentenced to undergo six months simple imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one months simple imprisonment. It is against this judgment dated January 11, 1985, passed by the learned Sessions Judge, Churu, that the appellant has preferred this appeal challenging the judgment convicting and sentencing the appellant. The nature of the evidence, produced by the prosecution, consists of the evidence of eye witness PW 2 Likhma Ram - the father of the accused and the deceased which is sought to be corroborated by the evidence of PW3 Ram Rakh - the brother of the deceased and the accused to whom Likhma Ram (PW2) immediately after the incident, narrated the incident and in turn, Ram Rakh went to the village, collected several persons of the village and informed them about the incident and thereafter he along with PW 5 Jethu Ram and Man Raj-sarpanch of village Bhuwadi, went to Police Station, Rajgarh, to lodge the report. This evidence is further sought to be corroborated by the statement of Smt. Mohri the mother of the accused and the deceased. PW 4 Mani Ram, PW 5 Jethu Ram and PW 8 Sohan Ram are the persons to whom the incident was narrated immediately after the occurrence. PW 6 Prithvi Singh, PW 7 Lakhan Ram, PW 9 Om Prakash, PW 11 Deepa Ram and PW 12 Bhanwar Lal are the police witnesses, who were connected with the investigation. PW 10 Om Prakash was the Station House Officer, Police Station, Rajgarh, who was the Incharge of the Police Station in whose presence the First Information Report Ex. P. 1 was written and who conducted the investigation, prepared various memos, made the recoveries and arrested the accused. The prosecution case mainly rests upon the evidence of PW 2 Likhma Ram, who is the alleged eye witness of the occurrence and who is the father of the accused as well as of the deceased. He, in his statement before the Court, has stated that on the fateful night, he along with his son deceased Ram Lal, was sleeping in the room of the house of the deceased as he and his wife used to live with Ram Lal and his wife Smt. Mohri was sleeping in the Khuddi. At about mid-night, he heard the sound of firing and when he got-up, he saw accused Chouth Ram standing near the cot of deceased Ram Lal. At that time he was having a pistol, in his hand. On enquiry, he told that he is Chouth Ram and thereafter he ram away. He called Ram Lal but he did not respond. Thereafter he came out-side the house, called Ram Rakh and informed him that Chouth Ram has ran away after killing Ram Lal. Ram Rakh thereafter tried to go near Ram Lal but he was asked not to go there. He thereafter took a match box from Ram Rakh and in the light of the match-stick, saw that Ram Lal had breathed his last by receiving the fire-arm injury. Thereafter he sent Ram Rakh to village to inform the villagers. He returned to the house next day at about 12. 00 in the noon. Admittedly, it was the month of July and normally in the villages, people sleep in an open and not in the room, particularly when there is no light in the house. PW 2 Likhma Ram has admitted that on the fateful night, neither there was any clouds in the sky nor was there any rains. He has, also, admitted that in the room where he was sleeping, there was no light. He, also, stated that the relevant night was a dark night and his cot was lying at a distance of four to five feet from the cot of deceased Ram Lal. He got up after hearing the sound of firing and saw the accused appellant standing on the foot-side of the cot and on enquiry who was he, Chouth Ram told that he was Chouth Ram and after saying so, he went away and at that time he did not see pistol in his hand. This witness, even after seeing the incident, did not raise any alarm nor he informed even to his wife regarding the death of Ram Lal. This witness, in the cross- examination, has admitted that his eye sight is weak and he could not see the things from the distance. Regarding his eye sight, the Court tried to put some questions and the cross-examination was conducted on that point. The cross-examination was reveals that the eye sight of this witness was not good and he was not in a position to look at the things from some distance. Even PW 4 Bhoma Ram, in his cross-examination, has admitted that Likhma Ram (PW 2) is aged about 80 years and his eye sight is weak and he is, also, having a cataract in his eye and on account of weak eye sight, he cannot go out side the house in the night. When PW 2 Likhma Ram being aged about 80 years and having weak eye sight and the fateful night was a dark night, it was not possible for him to have identified the accused and that was the reason that this witness has tried to ask the accused who he was and upon which the accused replied that he was Chouth Ram. It was not possible for this witness to have identified the accused and it is, also, not expected that an accused, who had killed Ram Lal, would disclose his identity to fasten himself with the guilt. Even otherwise, the conduct of this witness does not inspire confidence. If he would have seen the incident and the accused then it was natural consequence that he should have informed atleast to his wife Smt. Mohri, who was present in the house, regarding the death of his son Ram Lal. This was not done by him. Even he did not raise any alarm nor he tried to take Ram Lal for treatment to the Doctor. All these show that somebody murdered Ram Lal in the night and when in the morning this witness got-up, he saw Ram Lal lying murdered and thereafter on the basis of suspicion, this story has been framed implicating the accused-appellant. There may be suspicion in the mind of this witness against the accused, but suspicion howsoever grave may be cannot take the place of the proof and in the absence of any positive evidence connecting the accused with the crime, no accused can be convicted merely on the basis of suspicion. So far as Ram Rakh and other witnesses are concerned, they themselves have not seen the occurrence but they are deposing what has been stated to them by PW 2 Likhma Ram. When PW 2 Likhma Ram himself does not inspire confidence then the evidence of these witnesses, which in the nature of the hear say evidence and based on the information supplied to them by PW 2 Likhma Ram, no conviction can be based on this evidence. There is no recovery from the person of the accused. The prosecution has tried to place reliance over the recovery of the pistol made from the bed of Ram Lal. Initially it was not the case of the prosecution that the accused had left the pistole-side of Ram Lal. In the F. I. R. leaving the pistol by the accused has, also, not been mentioned. Even otherwise, there is no positive evidence on the record to show that the pistol was left by the accused at the place of the occurrence and the pistol, as per the report of the State Forensic Science Laboratory, Jaipur, is, also, not connected with the crime because the report specifically says that it cannot be said with certainty that the pallets recovered from the body of the deceased, were fired from this pistol. The prosecution did not try to connect the pistol with the crime by taking the finger print impressions on the pistol. If the pistol would have been used by the accused appellant then the finger print impressions of the accused must have been found on the pistol. The absence of the impressions of the finger-print on the pistol, also, negatives the prosecution case and the recovery of this pistol is, therefore, of no help to the prosecution.
(3.) THERE is another infirmity in the prosecution case. As per the prosecution case, the accused was found standing by the foot-side of the cot of Ram Lal, from where he has allegedly fired. The direction of the injury and the fire made by the accused, clearly show that the fire was made from the head-side of the cot. Even there were two abrasions found on the body of the deceased, which, also, show that these abrasions must have been received by the deceased in a scuffle. The medical evidence, also, thus, does not support the prosecution case. An over-all view of the evidence produced by the prosecution creates a doubt in the prosecution story and the prosecution has, therefore, failed to prove the case against the accused appellant beyond reasonable manner of doubt and the accused-appellant, therefore, deserves to be acquitted. In the result, the appeal, filed by the accused appellant Chouth Ram, is allowed. The judgment dated January 11, 1985, passed by the learned Sessions Judge Churu, convicting and sentencing the accused-appellant, is set-aside and the accused is acquitted of the offences for which he was charged. He is in jail. He shall be released forthwith if not required in any other case. . ;