MILAP CHANDRA, J. - (1.) THIS is an appsal against the judgment of the learned Sessions Judge, Banswara dated 20-7-12 by which he convicted the accused-appellant under Sec. 302, I. P. C. and sentenced him to life imprisonment. The facts of the case giving rise to this appeal may be summarised thus,
(2.) ON 25-1-82, at 11 A. M. , Veeka PW-1 lodged F. I. R. Ex. P 1 in the police station, Kalinjara (Banswara) to the effect that during the last night at about 11 P. M. he along with others had gone to the house of Luna Bhil. There the cries Nksm+ks Nksm+ks ekjs** were heard coming from the house of the deceased Hakji. Immediately, he along with Deva, Jagji, Ranji came to Hakji's house and saw him lying on the cot seriously injured. He was not able to speak anything. Dhulji P. W. 2 told them that the accused Kheta had gone away after causing injuries to Hakji by his Kulhari. Hakji has died before the sun rise and Dhulji has sent him for lodging this report. There-on, usual investigation was comme-nced. Thus accused was arrested and on his information Kulhari and Hajuria were recovered. Both were sent for Chemical Examination. Kulhari was put to an identification parade and the witnesses identified it as belonging to the accused. After completing investigation, a challan was filed against the accused in the Court of Munsif Magistrate, Kushalgarh who committed him to the Court of Session, Banswara. The prosecution examined 15 witnesses and produced and proved 19 documents. The accused denied the prosecution story. He did not produce any evidence in his defence. It is well proved from the prosecution evidence that the deceased Hakji was seriously injured by a sharp-edged weapon during the night intervening 24th and 25th January, 1982 in his house situated in village Khuni and as a result thereof, he died the same night. The aspect of the prosecution case has not been challenged by the learned counsel for the accused-appellant. The learned counsel for the accused-appellant contended that Dhulji P. W. 2 is the solitary witness in this case, his testimony is not of sterling-worth and the learned trial Court has seriously erred to convict the accused-appellant on his testimony. He contended that admittedly, occurrence took place in the dark night and there was no light with which the assailant could be identified, He also contended that if the accused-appellant would have been the assailant his name must have been mentioned in the hue and cry raised by Dhulji. He also contended that the recovery of Kulhari Art. 1 at his instance has not. connected him with the crime, as admittedly it was not found stained with blood on its chemical examination. The learned Public Prosecutor tried his best to support the judgment of the learned Sessions Judge.
(3.) THE Investigating Officer, Jahur Ahmed P. W. 15 admits in his cross-examination that Dhulia P. W. 2 is the solitary eye-witness in this case. Now it is to be seen whether the accused-appellant can safely be held guilty of the murder of Hakji on the basis of solitary statement of Dhulia P. W. 2. THE following facts and circumstances leave on doubt that it would he highly unsafe to base conviction of the accused-appellant on his sole testimony :- (1 ). Admittedly, murder of Hakji was committed during the night intervening 24th and 25th January, 1982 corresponding to Mahavadi 14 (Chaudas) and Mahavadi Amavas, Samvat 2039 at about 1 i P. M. THEre was no moon light at that time of the night. It is the prosecution case that fire wood was burning near the cot of the deceased and in its light Dhulji P. W. 2 identified the accused Kheta. This fact of light is not mentioned in the F. I. R. Ex. P1 (2 ). It is correct that it is mentioned in the site inspection memo Ex. P 3 and site-plan Ex. P. 4 that a furnace was found near the cot of the deceased. THE word [kkv ds ikl vaxhbk im+k gqvk gs** appearing in memo Ex. P 3 and ikl esa vkx dk vaxhbk im+k gqvk gs** appearing in site plan Ex. P. 4 are in different ink. Similarly, the sentences o okdk esjs Hkkbz [ksrk dh [kkv ds ikl vkx ty jgh Fkh rks mtkyk Fkk esaus ikap dne nwj ls ns[kk [ksrk ds gkfk esa dqygkm+h Fkha** appearing in the statement of Dhulji P. W. 2 recorded under Sec. 161, Cr. P. C, are in different ink. The comparative spacing in between the last sentence and the signature of the Investigating Officer appearing in this statement and than these of all other witnesses also leave no doubt that the aforesaid sentences were added afterwards. It has been held in Rahim Beg vs. State of U. P. (1) at Page 348, Para 21 that if that Police Inspector has deviated from truth on minor point, implicit reliance cannot be placed upon his testimony. It has been observed in Harnam Singh v. State (2), that when investigation is tainted, it would have an adverse effect upon the evidence of prosecution witnesses. Reference of Jagta vs. State of Haryana, (3) at Page 1548 and Satbir Singh v. State of Punjab, (4) may also be mentioned here. In view of these facts and circumstances, it would not be safe to hold that there was sufficient light at the place of occurrence in which Dhulji P. W. 2 identified the assailant and would be risky to sustain the conviction of the accused-appellant. (3 ). Veeka P. W. I, Dhulji P. W. 2, Jagji P. W. 3 and Deva P. W. 5 have clearly deposed that none went to the house of the accused Kheta during that night. If the accused-appellant Kheta would have been the assailant, some of these witnesses must have gone to his house to enquire the reason for injuring Hakji and to catch hold him. This omission on their parts creates great doubt in their version that the accused-appellant was the assailant. (4 ). The occurrence took place at about 11 P. M. during the night intervening 24th and 25th January, 1982. The F. I. R. Ex P. 1 was lodged in the police station, Kalinjara at 11 A. M. on 25. 1. 82 when the police station was only at a distance of 10 Kms. from the place of occurrence. It is also clear from the order of the Munsif-cum-Judicial Magistrate, Kushalgarh appearing on the F. I. R. Ex. P. 1 that it was received at 4 P. M. on 27. 1. 82. No explanation has been offered for not sending immediately the F. I. R. to the Magistrate as required under Sec. 157, Cr. P. C. (5 ). The statement of Dhulji P. W. 2 is full of contradictions and inconsistencies. In his examination in-chief, he says that he saw the accused Kheta inflicting two blows of his Kulhari upon the deceased Hakji and, thereafter, he ran away towards the river of the village. In cross-examination, he disclosed that when he entered into the room of the deceased Hakji, he found him sleeping with his face covered, he removed the covering and found blood on his face. In re-examination, he categorically stated that he did not see the accused-appellant injuring the deceased and he cannot say as to how he earlier disclosed in his examination that he saw the accused-appellant injuring the deceased in his cross-examination, Dhulji P. W. 2 disclosed that the face of the assailant was completely muffled and he saw his eyes only. He has not disclosed as to how he could identify that the assailant was none-else but the accused Kheta. in re-examination-in-chief, he stated that immediately after receiving injuries, the deceased stood up from his cot and in cross-examination, he disclosed that he found the deceased lying on the cot in an injured condition. (6 ). Dhulji P. W. 2 admits that he did not try to catch hold the accused appellant. He has also not deposed that he identified the accused-appellant from his voice. Admittedly, the accused-appellant was known to Veeka P. W. 1, Dhulji P. W. 2 Jagli P. W. 3 and Deva P. W. 5 prior to the occurrence. It is also clear from their statements that none made an effort to catch hold during that night. Veeka P. W. 1, Dhulji P. W. 2 and Sagli P. W. 6 have deposed that Mst. Kapudi aunt of the deceased Hakji used to sleep in the house of the accused -appellant Kheta and on this point, Hakji was greatly annoyed with the accused Kheta. They have also stated that there was dispute in between the accused and the deceased over some trees. It seems that due to the strained relation in between the accused and the deceased, he was named as the assailant in the F. I. R. Ex. P. 1. ;