- (1.) THIS criminal appeal has been directed against the judgment dated 10. 9. 87 passed by the Sessions Judge, Bharatpur, convicting and sentencing the accused appellants as under: Darab Singh, Laxman Singh, Ratan Singh u/s 302 & 120 IPc Life imprisonment u/s 201 IPc - 2 years R. i Smt. Suman u/s 120-B IPc Life imprisonment
(2.) A written report (Ex. P. 9) was submitted by Gajju at Police Station Uechain, on 5. 8. 1984, stating that an unidentified dead body of "a person was lying near the railway track. On the basis of this report. , FIR No. 1/84 was registered and proceedings u/s 174 Cr. PC. were started. Lateron, the matter was referred to the Police Station Sever as the place of incident fell within the jurisdiction of that police station. Lateron, the clothes and the Chappal of the deceased were identified to be that of Ram. Khiladi, and therefore, a case u/s 302 IPC was registered vide FIR No. 102/84, The police started investigation. During the course of investigation, accused Smt. Suman was examined and her statement u/s 164 Cr. PC. was also recorded which has been marked Ex P. 29, on 7,4. 1984, wherein she stated that nearly one month ago, Darab Singh and Laxman Singh came to her house at about 12 or 1 in the night and subdued her husband while he was sleeping and asked her not to cry, or make noise, other-wise she would also be murdered. Thereafter, they took away her husband and she did not disclose it to anyone. Lateron, it appears, that Smt. Suman was also made an accused by the police, on 30th June, 1984. A challan was submitted against all the four accused persons before the Magistrate who committed the case to the court of Sessions. Learned Sessions Judge, after trial, convicted and- sentenced the accused appellants as aforesaid. Hence, this appeal. Prosecution in this case, has not examined any eye witness, and has placed reliance only on the following circumstances: *********** Prosecution examined as many as 11 witnesses. Accused Darab Singh, pleaded alibi, whereas other three accused persons denied the prosecution case. Darab Singh accused had examined PW-1 Ram Chandra Joshi in defence, to support his plea of alibi. Learned trial court has not placed reliance on Circumstance No. 4 regarding extra - judicial confession (Para 49 of the judgment of the trial court ). Trial court has also not placed reliance on Circumstance No. 6 regarding recovery of some articles at the instance of the accused persons (vide para 53 ). As regards Circumstance No. 5 with regard to the fact that the accused persons had pointed the house of Ram Khilari as the place of incident, we do not think that this can be at all a circumstance which could possibly implicate any of the accused persons for the crime for which they are charged.
(3.) COMING to circumstance No. 1 with regard to illicit relations between accused Smt. Suman and Darab, and regarding the incident which had happened six months earlier in which there was some altercation between Ram Khilari deceased and Darab Singh accused. Ram Khilari had inflicted 2 or 3 blows by umbrella on the head of Darab Singh as a result of which blood also came out, and accused Smt. Suman and Darab Singh had told that Kam Khilari will also meet the same fate This circumstance, even if believed in to, as narrated by the prosecution, looses weight in view of a positive statement of Ram Behari (PW-4) brother of the deceased who has stated in his cross examination -"relations between Darab Singh and Ram Khilari were very cordial till the end", therefore, this circumstance does not help us in bringing the guilt home to the accused persons. This circumstance only shows that both Darab Singh and Ram Khilari alongwith his wife Smt. Suman, cannot be said to be very respectable persons because of the illicit relationship between the accused Darab Singh and Smt. Suman, and accused persons were trafficing in girls and they did not agree with the decision of the Panchayat. The illicit relations could not be the immediate cause of the incident because even according to the prosecution case, they are having illicit relations for the last 3-4 years and the threat given out by Darab Singh and Smt. Suman six months earlier could also not give any occasion for the alleged incident. We have also examined prosecution evidence in connection with these two circumstances and we are also of the opinion that these two circumstances are of no avail and cannot be used for bringing the guilt home to the accused persons. As regards Circumstance No. 2, PW-4 Ram Behari, brother of the deceased Ram Khilari, has stated that he had seen the accused Darab Singh, Laxman and 2 others at about 12 or 1 in the mid night. On enquiry Darab Singh told him that they were going to catch Ram Khilari and Smt. Suman told that Ram Khilari had gone out in the field. This circumstance, even if believed, cannot be said to be evidence of last seen in any sense because Ram Behari does not say that he had seen Ram Khilari in the company of the accused persons. PW-4 Ram Behari is the brother of the deceased. He came to know about the death of his brother but he remained silent and did not give out the details to anyone and revealed this fact also for the fist time to the police u/s 161 Cr. P. C. which was recorded on 2. 4. 1984 nearly after a month of the incident This conduct on his part is most unnatural and renders his testimony highly improbable and unbelievable. PW-4 Ram Behari stages that he could identify Darab Singh only by his voice which makes his evidence still weak. ;