GOYAL, J. - (1.) THIS appeal, under S. 374 Cr. P. C. , is directed against the judgment dated 28. 9. 1999 passed by Additional Sessions Judge, Baran, in Sessions Case No. 75/1998, whereby the accused appellant has been convicted under S. 302 IPC and sentenced to life imprisonment and fine of Rs. 500/-, in default to further undergo sentence of six months' rigorous imprisonment; and under S. 341 IPC sentenced to one month's rigorous imprisonment. Both the sentences were directed to run concurrently.
(2.) THE case set up by the prosecution is that a writ report, Ex. P. 11, was submitted by PW. 12-complainant Abdul Alim, to the SHO police station Kotwali Baran at about 10. 50 PM on 17. 6. 1998 with the averments that he being driver, was driving the jeep owned by Maqsood on 17. 6. 1998. Both Maqsood and Kailash Suman were sitting in the jeep for Mathna. At about 9 PM when they reached the bridge (puliya) near Village Mathna the road was found blocked with stones. He along with Maqsood and Kailash started removing the stones. Suddenly Hari Singh Jat along with 6 to 7 other persons came there. Hari Singh while saying that they would kill him (Maqsood), inflicted a blow with Gandasi on his head and ran away along with his associates. Maqsood, on account of head injury, fell down and became unconscious and blood was oozing from his head. THEy immediately took him to the Hospital at Baran. He identified only Hari Singh in the jeep's light but could not identify the other persons. On the basis of this report, formal FIR No. 338/98 was registered under Ss. 341 and 307 IPC. On the next day i. e. , on 18. 6. 1998, Maqsood succumbed to his injuries, hence offence under S. 302 IPC was added. On completion of the investigation, charge sheet was filed against the accused appellant. In due course, the case came up for trial before the learned Additional Sessions Judge, Baran. Charges under Ss. 302 and 341 IPC were framed and explained to the accused appellant, who denied the charges and claimed trial. In support of its case the prosecution examined as many as twenty-five witnesses. The appellant, when examined under S. 313 Cr. P. C. , claimed innocence. Learned trial judge after hearing final submissions, convicted and sentenced the appellant as indicated herein above. We have heard learned counsel for the appellant and the learned Public Prosecutor and have carefully perused the entire evidence on record. So far the cause of death of deceased Maqsood is concerned, it is not disputed that his death was not a natural one but homicidal. PW. 10-Dr. P. Jhanwar, who examined the injuries of Maqsood in the hospital at Baran after the incident, found following injury:- " Bone deep cut wound of 10 x 2 cm size in the centre of the head" After death, autopsy was conducted on the body of Maqsood by Dr. P. K. Tiwari. He found the following injury:- " Stitched wound over right fronto-parietal region 11 cm long, extent from mid-line towards right side, margin clear cut after removing of stitches obliquely placed. Above injury is ante mortem in nature. According to his opinion, Maqsood died due to "coma as a result of intra cranial hemorrhage following head injury". Learned counsel for the appellant contended that according to the FIR (Exhibit P. 11) lodged by Abdul Alim-PW. 12, it was Hari Singh who inflicted Gandasi blow on the head of Maqsood, but later-on the story was changed during the investigation and Mahaveer (appellant) was falsely implicated. It is also contended that as per the statement of Abdul Alim, name of Hari Singh was mentioned in the FIR as the assailant, on the suggestion of Kailash, PW-11, but Kailash did not support the statement of Abdul Alim. It is further contended that according to Kailash, Mahaveer (appellant) was known to him prior to the incident and as per the statement of Abdul Alim, Mahaveer (appellant) was shown to him in the police station Kotwali Baran prior to the identification parade conducted in the jail, thus identification has no significance in this case.
(3.) LEARNED Public Prosecutor contended that Mahaveer (appellant) inflicted the blow of Gandasi on the head of Maqsood. It is also contended that in the identification parade, Mahaveer (appellant) was identified by the witnesses Abdul Alim (PW-12) and Kailash (PW-11 ). We have given our anxious consideration to the rival submissions. The prosecution case rests on the evidence of PW-11 Kailash, PW-12 Abdul Alim and PW-18 Rewari Lal. Abdul Alim, who is an eye witness and lodged the FIR, admitted in his cross- examination that prior to the identification parade conducted in the jail, Mahaveer (appellant) was shown to him in the police station Kotwali Baran. Another prosecution key witness Kailash (PW-11) stated that Mahaveer (appellant) was known to him much prior to this incident. In view of such prosecution evidence, identification proceedings have lost its credibility and on the basis of that Mahaveer (appellant) cannot be fastened in the crime. It is also significant to notice that in the FIR name of Hari Singh has been mentioned as the assailant but later-on charge sheet came to be filed by the police against Mahaveer (appellant ). In this regard, Abdul Alim (PW-12) who lodged the FIR offered explanation in his statement that he named Hari Singh in his report on narration of Kailash (PW-11 ). However, this part of the statement of Abdul Alim (PW-12) does not find support and corroboration from the statement of Kailash (PW-11 ). On the contrary Kailash (PW-11) has stated that he told to the police in presence of Abdul Alim (PW-12) that Mahaveer (appellant) had inflicted the Gandasi blow on the head of Maqsood, but on confrontation with his police statement he could not explain and reply satisfactorily. It is also relevant to mention that according to Kailash (PW-11), he was acquainted with Mahaveer (appellant) prior to the incident. In these circumstances, if Mahaveer (appellant) was the assailant then there was no reason for not mentioning his name in the FIR specially when report was written in the presence of Kailash (PW-11 ). The prosecution has also relied on the statement of Rewari Lal (PW-18), but he has not been named as eye witness in the FIR. His police statement was also recorded after more than two months of the said incident. This inordinate delay in recording the statement has not been explained by the prosecution. Apart from this, Abdul Alim (PW-12) and Kailash (PW-11) also did not establish his presence at the time of the incident. In view of the above significant features, his presence at the scene of occurrence has become doubtful and as such his statement cannot be relied upon. Thus, in our considered opinion the prosecution utterly failed in proving the guilt against Mahaveer (appellant) beyond reasonable doubt. ;