SHARMA, J. - (1.) THIS appeal challenges the judgment dated 10. 7. 2002 passed by the Additional Sessions Judge (Fast Track), Jhunjhunu, whereby the learned Judge has convicted the appellants for offence under Section 302/34 IPC and has sentenced them to life imprisonment and imposed a fine of Rs. 500/- and to further undergo a simple imprisonment of 15 days in default thereof. He has also convicted them for offence under Section 452 IPC and has sentenced them to three years R. I. and has imposed a fine of Rs. 200/- each and to further undergo a period of 7 days S. I. in default thereof.
(2.) THE brief facts of the case are that on 13. 3. 2000 at 10. 15 a. m. , Smt. Choti (P. W. 1) lodged a written report (Ex. P. 1) at Police Station Bangad wherein she claimed that in the night of the 12th, around 9. 00 p. m. her husband Surendra, her children and she were talking to each-other at their home. Suddenly, Suresh S/o Chandgi Ram, Rajesh Kumar S/o Pitram, Chandgi Ram, Smt. Anchi W/o chandgi Ram, by caste Jat, residents of Lamba Gohada, entered her house and told Surendra that they will not leave him alive. In order to save himself, her husband ran to the back of the house and hid himself in a "khudi" (Chappar ). THEse four persons fulled him out of the "khudi" and dragged him to the house of Rajesh S/o Pitram. While taking him to the house of Rajesh, they kept on assaulting Surendra. At Rajesh's house, they assaulted Surendra with "lathis" (bamboo sticks) and an iron pipe. After killing him, they brought the body back to her house and left it on the cot in the verandah. they have killed her husband because of an old animosity. On the basis of the said report, the Police registered a formal FIR (Ex. P. 8) for offences under Section 452, 364, 302/34 IPC. During the course of the investigation, the appellants were arrested and were put up for trial. In order to support its case, the prosecution examined 15 witnesses and submitted 39 documents. In order to buttress their case, the appellants examined two witnesses and submitted 24 documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellants, as aforementioned. Mr. A. K. Gupta, the learned counsel for the appellant has contended that the prosecution has not come with clean hands to the Court: it has suppressed the genesis of the occurrence. According to the prosecution, the appellants had entered the house, had dragged the deceased Surendra from the "khudi" to Rajesh's house and had assaulted him on the way, had killed Surendra at Rajesh's house and brought the body back to the complainant's house. However, no blood had been found either from the Khudi to Rajesh's house or at Rajesh's house. Therefore, the place of occurrence is unknown. It seems that the occurrence had taken place somewhere else and the case has been foisted upon file appellants. Moreover, according to the learned counsel, the incident allegedly took place at 9 O'clock in night and yet, the FIR was not lodged till 10. 15 a. m. next day. this inordinate delay in lodging of the FIR has not been explained by the prosecution witness. Furthermore, the ocular evidence is contrary to the medical evidence. According to the medical evidence, the deceased had suffered only 14 injuries most of which were bruises and abrasions. In case, the appellants had mercilessly beaten him with "lathis" and iron pipes, the deceased would have certainly received lacerated wounds and would have suffered some fracture. Lastly, that the independent witnesses have turned hostile and have not supported the prosecution case. Only interested witnesses, such as PW. 1 Smt. Choti the wife of the deceased, PW. 12 Subhash the elder brother of the deceased and PW. 3 Kum. Sarita, the daughter of the deceased has supported the prosecution case. Despite the fact that they claim to be eye- witnesses, surprisingly none of them raised due and cry to attract the attention of the villagers. Even after the dead body was brought allegedly by the appellants back to the complainant's house, while other relatives were informed, the police was not informed about the alleged murder till the next morning. Thus, the conduct of the eye-witness is most unnatural. Therefore, the prosecution has failed to prove the case beyond reasonable doubt. On the other hand, Mr. M. L. Goyal the learned Public Prosecution, Mr. Suresh Goyal, the learned counsel for the complainant, has vehemently argued that the eye-witnesses have given a consistent story. They have not been shattered in the cross-examination. Their testimony is supported by the post- mortem report (Ex. P. 10 ). According to the post-mortem report, the deceased has suffered fracture in the left parietal region and fracture of the lower end of the humorous bone and a fracture below the left knee at the upper end. According to the opinion of the Doctor, the death was caused as a result of head injury and multiple fractures caused by the multiple injuries. Hence, the death was homicidal and not natural. We have heard the learned counsel for the parties and have perused the impugned judgment and have examined the record of the case.
(3.) THE first principle of Common Law is that every person is presumed to be innocent till proven guilty. Thus, it is for the State - the prosecution to prove the guilt of the accused person. It is a settled principle of criminal jurisprudence that the guilt must be established through cogent and convincing evidence and must be proved beyond all reasonable doubt. Any lacuna, any contradiction, any improbability, or weakness in the case, damages the case of the prosecution. In case any doubt is created in the mind of the court, the benefit of doubt goes to the accused persons. The prosecution in the present case has not come with the clean hands. According to PW. 1, Smt. Choti, while her husband, her children and she were sitting in a room in their house, the accused appellant suddenly entered the room and threatened Surendra that they will kill him today. Surendra ran for his life and hid himself in the "khudi". The appellant pulled him out of the Khudi and dragged him to the house of Rajesh. Where, allegedly, they assaulted him till he died. Upon his death, they brought his body back to the complainant's house and placed it on a cot. According to the witness, all this happened within the duration of an hour. She further claimed that when her husband was dragged to Rajesh's house, she followed him along with her elder brother-in-law (Jeth) Subhash (PW-12 ). Although, the occurrence took place at night, neither this witness nor her children nor Subhash raised any hue and cry to attract the attention of the villagers. According to the site plan (Ex. P. 2), the complainant's house is in middle of the residential area of the village. The house of Veer singh, Dayanand, Pratap Ram and others surrounds her house. The complainant in her cross- examination has also admitted this fact. Thus, it is rather surprising that in a small hamlet in the night, when the alleged murder is committed neither the complainant, nor the elder brother of the deceased nor his children seek help for the neighbours. Even after the alleged assailant had brought the body of the deceased back to the house, no effort is made to apprehend them. Quietly they bring the body back to the complainant's house and quietly they go back to their residence. According to the site plan, the houses of the complainant and of the appellant are adjacent to each other. Curiously, no effort is made to apprehend them either. Therefore, this improbability weakens the case of the prosecution. Furthermore, according to the prosecution, while the complainant informs the other relatives, including her parental place and the maternal side of her husband, about the alleged murder, neither she nor Subhash inform the police till twelve hours later. This inordinate delay in lodging the FIR has not been explained by the prosecution witness. According to the complainant herself, immediately after the incident, Subhash had gone back to his house without informing anyone. Moreover, her relatives from her parental side had arrived early in the morning. Furthermore, relatives from the material side of the deceased Surendra had equally arrived in the morning. Yet, despite the fact that the relatives have been informed, no one seems to have bothered to have informed the police for the alleged murder. The studied silence on the part of the complainant and the elder brother of the deceased, the inordinate delay in lodging the FIR casts a grave doubt on the case of the prosecution. In the peculiar circumstances of this case, the inexplicable delay in lodging the FIR is fatal to the case of the prosecution. ;