- (1.) THIS is an appeal by the accused Kamal from the judgment of the Sessions Judge of Bharatpur, dated the 20th of June,1958 convicting the appellant under section 302 of the Indian Penal Code and sentencing him to imprisonment for life.
(2.) THE prosecution case was that the deceased Shyamlal had illicit intimacy with Mst. Ketki, wife of Narain Singh Thakur and the mother of the accused Kamal for about twenty years and this fact was known to Narainsingh and his two sons Kamal and Tej Singh. Both Kamal and Tej Singh conspired to murder the deceased Shyamlal and Tej Singh got a 'pharsa' fixed in a stick about a week before the occurrence at the shop of Sonpal P. W. 9. During the night between the 28th and 29th of November, 1957, when Shyamlal was sleeping inside one of the rooms in his house, shown by No. 7 in the plan Ex. P. 2 the accused Kamal along with Tej Singh, Harkanna and Babu went inside the room where Shyamlal was sleeping and Kamal hit a blow on the neck of Shyamlal, causing a fatal injury, while Tej Singh and Harkanna held him by the waist and Babu remained standing to keep a watch. THE accused disappeared after causing the death of Shyamalal. Charan Singh saw them going away outside his own house when he came out to ease himself in the early morning at about 2 of 3 A. M. It is also stated that Lochan Singh saw the accused committing the murder of Shyamlal with the help of a torch from outside his Nohara which is adjacent to the house of the deceased Shyamlal. Charan Singh immediately sent Gordhan, his son, to inform Kirori, brother of the deceased about the murder of Shyamlal and Kirori reached the spot no sooner he received the information. Kirori collected a few Lambardars Of the village before he went to lodge the first information report at the police outpost of Hedawal and the along with the Lambardars gave a written report at Rudawal at about 7 A. M. on the 29th of November, 1957 THE first information report was sent to the police station Rupwas which is about 11 miles from Rudawal. THE police reached the spot at about 12 on the same day and sent for Dr. Sukhdeo who performed the post mortem examination of the dead body of Shyamlal on the spot on the 29th of November, 1957. He found a cut wound 5" x 4" x 2" behind the neck of Shyamlal. In the opinion of the Doctor, the death of Shyamlal was caused by haemorrhage on account of the said wound. THE police arrested Tej Singh and Harkanna on the 29th of November and Kamal on the 1st of December, 1957. A blood stained Pharasa was recovered at the instance of Kamal on the 1st of December, 1957, which was seized by the Police and sent to the chemical Examiner. THE report of the Chemical Examiner and that of the Serologist are positive for human blood on the Pharasa Article 34. THE accused Kamal, Tej Singh and Harkanna were challenged by the police under section 302 of the Indian Penal Code to the court of the Magistrate First Class, Bharatpur, who after enquiry, committed them to the. court of Sessions. The accused denied their complicity in the murder of Shyamlal. Kamal also denied the recovery of the "pharsa" Article 34 at his instance. They also denied the fact of the deceased Shyamlal having illicit connection with Mt. Ketki, wife of Narain Singh. The prosecution examined Lochan Singh (P. W. 8) as an eye witness, who stated that he saw with the help of a torch from outside his own house the accused Kamal bitting a blow with a Pharsa on the neck of Shyamalal and the accused Tej Singh and Hakanna holding him from the waist. He also stated that after Charan Singh met him, he informed him that he had seen the occurrence. Charan Singh (P. W. 7) also stated that when he went out of his own house to ease himself early in the morning at about 2 or 3 on the 29th of November, 1957, he saw Tej Singh, Kamal Harkanna and Babu going from the side of the house of the deceased and that Kamal was armed with a "pharsa". He further stated that he sent his son Gordhan to in form Kirori about the murder of Shyamalal and after Kirori came there and the Lambardars were collected. They went to make the first information report at Rudawal. The prosecution proved the recovery of the blood stained "pharsa" Article 34 at the instance of Kamal from the Poli of the house in which he resides by the evidence of Budhram, who is the investigating officer (P. W. 16) The two witnesses to the recovery Chhitar P. W. 5 and Chhitar P. W. 6 turned hostile and they stated that no recovery of a blood stained 'pharsa' was made by the Police in their presence at the instance of Kamal. They, however, admitted that the recovery memo bore their signatures. Sonpal (P. W. 9) who was also present at the time of the recovery of the blood stained 'pharsa' stated that the police recovered Article 34 from the Poli of Kamal at his instance. He further stated that he had fixed the blade of the 'pharsa' to a long Lathi about a week before the occurrence at his shop in the village at the instance of the accused Tej Singh. Roopi (P. W. 10) father of Sonpal, also supported the evidence of Sonpal regarding the fixing of the blade of 'pharsa' at the instance of the accused Tej Singh by Sonpal. The learned Sessions Judge did not believe the evidence of Charan Singh for the reason that he had some relationship with the deceased Shyamlal. Lochan Singh's (P. W. 8) statement was also not relied upon by the learned Judge for the reason that he was kept under police survillance upto the time his statement under sec. 164 Cr. P. C. was recorded and also for the reason that the witness stated that he was threatened by the Police. The learned Judge, however, believed the testimony regarding the recovery of the blood stained 'pharsa' (Article 34) at the instance of the accused Kamal. He also believed the evidence of the prosecution witnesses regarding the alleged illicit intimacy of the deceased Shyamlal with Mt. Ketki, wife of Narain Singh and in the opinion of the learned Judge; this afforded strong motive for the accused to commit murder. Kamal was convicted under sec. 302 of the Indian Penal Code as mentioned above and the other accused Tej Singh and Harkanna were acquitted. In this appeal Mr. Kishan Singh for the accused has urged that the evidence regarding the recovery of the blood stained Pharsa by itself was not sufficient to establish the charge of murder for the reason that the other evidence that has come on the record regarding fixing of a handle to the blade of the Pharsa was inconsistent with it. The learned counsel further urged that the possibility of some one else having committed the murder cannot be ruled out under the circumstances of this case, specially when Tej Singh is stated to have got the Pharsa prepared from Sonpal and it is not clear if he may have committed the murder and put the 'pharsa' at the place from where it may have been recovered later on at the instance of Kamal, who may have known about its existence at that spot. It is argued that when the evidence of Charan Singh and Lochan Singh was disbelieved, there was little evidence on record to sustain the conviction of the appellant. We have read the evidence of Charan Singh (P. W. 7) and Lochan Singh (P. W. 8) very carefully. We have also examined the site plan Ex. P. 2 that was pre-jpared by the investigating officer. The house in which the deceased was sleeping at the time he was murdered is shown at No. 7. It has wails all around it and a door facing east. The witness Lochan Singh has alleged that he saw the murder of Shyamlal from outside his own house. There is a wall of the house of the deceased in between where Lochan Singh is alleged to have stood and the place where the murder was committed. The plan Ex. P. 2 shows that the position of the deceased at No. 7 is not in a straight line from the point where Lochan Singh was standing and it cannot be accepted that Lochan Singh could see from that place as to what happened at No. 7 inside the room. Lochan Singh evidence for this, reason also cannot be accepted to be true. Moreover, Lochan Singh has also stated that he made a mention of his having seen the occurrence to Charan Singh. Had he done so, we see no reason why no mention of this circumstance was made in the first information report which is in great detail and which gives the circumstances on which suspicion of the murder was raised against the accused persons, This circumstance also goes against the evidence of Charan Singh as well and his statement that he saw the accused going away from the house of the deceased after the murder cannot be believed,'and the court below was in these circumstances fully justified in not placing reliance on the testimony of Lochan Singh and Charan Singh. The evidence of illicit intimacy of the deceased Shyamlal with Mst. Ketki proves the existence of strong motive for the accused to commit the murder; but the existence of strong motive by itself cannot take the place of the evidence of murder. That is only one circumstance in the chain of the evidence of the prosecution. The only other evidence is of the recovery of the blood stained 'pharsa from the Poli of the house of the accused Kamal at his instance. The report of the chemical examiner and that of the serologist prove that the Pharsa was stained with human blood. The evidence of Sonpal is to the effect that Tej Singh got the handle of the Pharas fixed at his shop a week before the occurrence. The evidence of motive is equally both against Tej Singh and Kamal. The possibility, as suggested by the learned counsel for the appellant, that Tej Singh may have committed the murder and put the pharsa at the spot cannot be ruled out and the recovery of the Pharsa by itself cannot therefore prove the case of murder against the accused Kamal. The evidence of the recovery of the blood stained Pharasa is thus not conclusive on the point of the accused Kamal being responsible for the murder of Shyamlal. Kamal is entitled to the benefit of doubt. The appeal is allowed and the conviction and sentence passed by the lower court against Kamal are set aside and he is acquitted. He shall be released, if not required in any other case. . ;