TATIA, J. - (1.) HEARD learned counsel for the parties. This appeal is against the judgment and order of conviction and sentence dated 5. 2. 2005 passed by the Court of learned Additional Sessions Judge (Fast Track) No. 1, Pali Headquarter Jaitaran in Sessions case no. 98/2004 whereby the appellant Chetan Lal has been convicted for offence under Section 302 read with Section 34 IPC and in alternative under Section 149 IPC and sentenced him to undergo life imprisonment and a fine of Rs. 2,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment.
(2.) HENCE, this appeal has been preferred by the sole convict appellant Chetan Lal. The entire case of the prosecution as set up is that complainant Bhanwar Lal, Ramsukh along with Madan Ram on 29. 1. 2001 at 2:30 AM gave parcha bayan Ex. P/1 at Police Station, Raipur (Camp) alleging that he along with his maternal uncle's grandson - Jagdish were going on a scooter and when they reached near Paladiya well, a truck Tata 407 came from behind and hit the scooter because of which, the complainant and victim Jagdish both fell down. Victim Jagdish immediately ran from the spot. From the said truck Tata 407, 4-5 persons dropped down and hit on the head of the complainant by lathi. The complainant stated that he saw two persons in Dhoti and faces of both were covered. From there, the complainant ran towards the Police Chowki, Bar and told about the incident to the Munshi of the Police Station upon which, Munshi took the complainant to the hospital and obtained first aid for him. Thereafter, some police constables and complainant's brother Ramsukh and his cousin Madan came there and told him that victim Jagdish has been murdered and his dead body has been thrown in an Anicut near Navora Bera and the scooter is yet lying on the road. In the FIR, he stated that because of land of Bera Navora, there is dispute and because of that dispute, about 6 months ago, Bhika s/o Changa Ji was murdered and to take revenge, Shaitan, Sohan Lal, Ganpat, Anda, Manak etc. are having rivalry with them and Ganpat has truck Tata 407 of ash colour, therefore, the above persons by criminal conspiracy with common object tried to kill the complainant and killed victim Jagdish in the manner referred above. On the basis of said report Ex. P/1, a case under Sections 302, 147, 148, 149, 323 and 120b IPC was registered and investigation started. It will be worthwhile to mention here that before the said parcha bayan report dated 29. 1. 2001 (Ex. P/1), the S. H. O. , Police Station Raipur in the night at 12:30 PM of 28. 1. 2001, received an information on telephone from Head Constable of Police Chowki, Bar that one Jabar Singh on telephone informed that near the boundary of Village Dholodher, two persons were going on scooter and they were hit by one Tata 407 (small truck) of ash colour in which one Bhanwaru Mali suffered injuries. One Jagdish was with said Bhanwaru Mali but he is not found on the scene of accident. Said information was registered in Rojnamcha and the S. H. O, PW18 Duda Ram along with Head Constable Amar Singh, Sipahi Kana Ram, Raghunath Singh and driver Mahesh Kumar started in Government jeep for Bar. They reached their at 1:40 AM i. e. in the morning of 29. 1. 2001 and there, in the police chowki, they found Jabar Singh Head Constable who told that Bhanwaru suffered injury who has been sent to Hospital with Sipahi. Some Sipahies have been sent to find out other victim Jagdish. After getting this information, the S. H. O. Duda Ram leaving other police persons at Bar, came back to Raipur Police Station and thereafter, on 29. 1. 2001 at 2:30 AM, said Parcha Bayan Ex. 1 dated 29. 1. 2001 was given to Duda Ram and that Parcha Bayan was recorded by SHO PW18 Duda Ram himself in his own handwriting. During investigation, site report Ex. P/2 and site map Ex. P/3 were prepared, foot mould was taken vide Ex. P/5, panchnama of body of deceased Ex. P/7 and site report where the body was found Ex. P/6 were prepared. The relevant blood stained and sample soils were taken. Accused Chetan, Sohan, Manak, Anda Ram and Ganpat were arrested and their arrest memos Ex. P/11 to Ex. P/15 were duly prepared. The iron pipe, blood stain bolt and blood stained shirt were recovered and their memos were prepared. One iron knife was recovered and recovery memo Ex. P/30 and report about the place where the knife was recovered Ex. P/31 was prepared. The information given by the accused under Section 27 of the Evidence Act were recorded before effecting the recoveries. The articles were sent for chemical examination to the Forensic Science Laboratory from where the FSL reports were obtained. After completion of investigation, challan was filed against all above 5 accused and charges referred above were framed against the accused appellants which were denied by the accused appellants and they sought trial. At the trial, the prosecution examined in total 19 witnesses and exhibited as many as 108 documents and 31 articles. The accused were examined under Section 313 Cr. P. C. Appellant Chetan stated that Bhanwar Lal committed murder of uncle of co-accused Sohan, who was also father of another co-accused Manak, because of that and because of the dispute between him (Chetan) and family of Jagdish with respect to some land, the appellant has been falsely implicated. The appellant produced 6 witnesses in defence and accused Manak himself gave his statement on oath as DW7. From defence side, 16 documents were produced.
(3.) THE trial court acquitted all accused except appellant Chetan and convicted appellant Chetan under Section 302 read with Section 34 and in alternative under Section 149 IPC and has sentenced him as aforesaid. In sum and substance, the arguments of learned counsel for the appellant are that complainant Bhanwar Lal is neither a trustworthy witness nor he has been found trustworthy even by the prosecution and he has been declared hostile. Therefore, the testimony of this important hostile witness is liable to be rejected. Complainant Bhanwar Lal was not present at the time of any of the incident either accident of scooter by the truck or at the time when deceased Jagdish left the place of accident. Since he was not present at any point of time, therefore, he introduced two witnesses Madan Lal PW3 and Ramswaroop @ Ramsukh PW4. These two witnesses never met with complainant Bhanwar Lal before Bhanwar Lal reached to the police station. These two witnesses may have reached to the police station only because they came to know that the scooter of victim Jagdish was lying on road and he was found dead. These two witnesses PW3 Madan Lal and PW4 Ramsukh also did not disclose in Parcha Bayan Ex. P/1 that how they came to know about the position of the scooter and murder of Jagdish inspite of the fact that they signed Parcha Bayan Ex. P/1. These two witnesses have been planted as the witnesses as to whom story was told by the complainant Bhanwar Lal just after the accident and to make their evidence admissible in evidence as narration of incident by the witness to others immediately after the incident. The prosecution for the reasons best known to them took one mould of one foot from the spot where according to the prosecution, six (6) persons were there and they moved freely here and there on loose soil. The investigating agency obtained the foot mould of only appellant out of five (5) accused as though the investigating agency had full knowledge that foot impression found on the spot was of one person and that was of appellant only and, therefore, the investigating officers did not took the foot moulds of other accused. Such evidence of foot moulds is liable to be rejected as it is a created evidence. The prosecution tried to involve five (5) persons out of which four (4) have been acquitted yet the trial court illegally convicted the appellant for the offence under Section 302 read with Section 34 and in alternative under Section 149 IPC and, therefore, the conviction of the appellant is contrary to the law laid down by the Hon'ble Apex Court in the case of Krishna Govind Patel vs. State of Maharastra reported in AIR 1963 SC 1412. Learned counsel for the appellant also submitted that the recovery of knife was from an open place i. e. agricultural field and the alleged blood found outside the room of the appellant and near the well etc. are not sufficient evidence to connect the appellant with that blood because other accused were also living in the same building where the appellant was residing at the relevant time and other accused have been acquitted by the trial court. There is no explanation why the other accused cannot be connected with this evidence which in fact is neither evidence nor circumstance to connect anybody. The trial court also committed grave error of fact and law while considering the evidence of Shawl and Muffler recovered from the place where the scooter was hit by the truck as per the prosecution case and without coming to the conclusion whose Shawl and Muffler was, declared that circumstance against the appellant. The trial court easily discarded the evidence of PW15 Sher Singh who proved that the alleged blood on the clothes of the appellant may be even of animal. ;