S. S. BYAS, J. - (1.) SINCE these two appeals one by the accused and the other by the State are directed against one and the same judgment of the Sessions Judge, Jhunjhunu dated June 30, 1979, they were heard together and are disposed of by a common judgment. By the impugned judgment, accused Sheo Chand was convicted U/s. 304 (II) IPC and sentenced to four years' rigorous imprisonment. He has come up in appeal and challenges his conviction. The State in its appeal challenges his acquittal of the offence U/s. 302 IPC.
(2.) BRIEFLY stated, the prosecution case is that the deceased Deepa Ram Jat was a resident of village Choradi P. S. Nawalgarh, District Jhunjhunu where he lived with his wife Sarwani (PW 1), sister-in law Rukhmani (PW 2), brothers and parents. The appellant Sheo Chand and Bhagwana, Bhagu, Guru and Dhanna Ram who have been acquitted by the court below are also residents of the same village Choradi. Around 10. 00 a. m. on 26. 2. 1979, Bhagwana appellant Sheo Chand came to the house of Deepa Ram and had a smoking with him at his house. After some time, the three left together the quarries. When they reached under 'keeker tree' situate outside the house of Deepa Ram deceased, accused Sheo Chand struck a blow of jelly on the head of Deepa Ram. Deepa Ram fell down and became unconscious. Accused Sheo Chand thereafter again struck some blows to Deepa Ram on his head with a jelly. (PW 1) Sarwani and (PW 2) Rukhmani rushed to the spot. (PW 3) Harphool, (PW 4) Mangla Ram and (PW 4) Sheoram also came there. Kamal Singh (PW 10) brought his jeep RJP-2458. Deepa Ram was placed therein and was taken to the clinic of Dr. Jain (PW 9) at Jhunjhunu. Dr. Jain stitched the wound of Deepa Ram and advised Kamal Singh to take him to the Government hospital. The doctor issued certificate Ex. P. 4 but before Deepa Ram could be taken to the Government hospital, he breatched his last. PW 10 Kamal Singh, PW 11 Pyarelal and others who were in the jeep brought back Deepa Ram's dead body to village Choradi. Lateron the dead body of Deepa Ram was cremated by Bhagwana, Bhagu, Goru and Dhanna Ram (accused acquitted ). No information was given to police and no post mortem was got conducted before the cremation. At 9. 00 p. m. on 5. 3. 1979, PW 1 Sarwani presented written report Ex,p. 1 of the incident before the Superintendent of Police, Jhunjhunu who directed the Station House Officer, Nawalgarh to register the case and make investigation. The police registered a case U/s. 302 and 201 IPC and proceeded with the investigation. (PW 13) Hanuman Singh, A. S. I. arrived on the spot, inspected the site and prepared the site plan Ex. P. 2. He also lifted the blood stained soil from there and sealed it. Accused Sheo Chand was arrested and in consequence of the information furnished by him on 14. 3. 1979, one jelly was recovered. It transpired during investigate on that the dead body of Deepa Ram was cremated by Bhagwana, Bhagu, Goru and Dhanna Ram with the aim and object to screen accused Sheo Chand from the offence of murder. They thus, caused the disappearance of the evidence of murder. On the completion of the investigation, the police submitted a crime report against accused Sheo Chand for an offence U/s. 302 and against Bhagwana, Bhagu, Goru and Dhanna Ram for an offence U/s. 201 IPC in the court of Munsif & Judicial Magistrate, Nawalgarh, who in his turn committed the cases for trial to the court of Sessions. The learned Sessions Judge framed a charge U/s. 302 against Sheo Chand and u/s 201 IPC against the remaining four to which they pleaded not guilty and faced the trial. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of trial, the learned Sessions Judge found no evidence for convicting accused Bhagwana, Bhagu, Goru and Dhanna Ram u/s 201 IPC. They were consequently acquitted of the aforesaid offence. The Sessions Judge took the view that the offence made out against accused Sheo Chand was that of culpable homicide not amounting to murder. Sheo Chand was, therefore, convicted and sentenced U/s. 304 (if) IPC as mentioned at the very out-set. Aggrieved against his conviction and sentence, accused Sheo Chand has taken this appeal while the State in his appeal challenges his acquittal from the offence u/s 302 IPC. We have heard Mr. S. S. Sunda learned counsel for the appellant and the learned Public Prosecutor Mr. Rakesh Bhargava. We have also gone through the case file carefully. We have shall first take up the appeal of the accused Sheo Chand against his conviction. In assailing his conviction, it was vehemently contended by Mr. Sunda that the conviction is wholly bad and unsustainable. The prosecution examined as many as five witnesses viz. (PW1) Sarwani, (PW 2) Rukhmani, (PW 3) Harphool, (PW 4) Mangla and (PW 5) Sheoram to prove that Deeparam was assaulted and belaboured by the appellant Sheo Chand. Out of them (PW3) Harphool, (PW 4) Mangla and (PW 5) Sheoram turned volte-face and lent no support to the prosecution. (PW 1) Sarwani, is the widow of the deceased victim and (PW 2) Rukhmani is the wife of the victim's brother. The incident is alleged to have taken place around 10. 00 a. m. on 26. 2. 1979. There is thus a delay of seven or eight days in lodging the first information report and this delay has not been at all explained by the prosecution. It was further argued that according to PW 10 Kamal Singh, when he brought back the dead body of Deepa Ram in his jeep and took it to Deepa Ram's house, Deepa Ram's father Pala and brother Dhanna also reached there. Had it been a case of murder, the widow of Deepa Ram his father Pala and his brother and other member's of his family would have never crematrd the deadbody. They would have immediately rushed to the police and would have got the post mortem examination conducted. Nothing was done. It was further argued that no motive has been alleged Blood seized and sealed from the place of incident has not been shown to be human blood. No blood was detected on the jelly recovered at the incident of the appellant Sheo Chand. Thus there are pit-falls, dents and lapses at every step in the prosecution case, In these circumstances, the conviction of accused Sheo Chand is wholly wrong. It was on the other hand contended by the learned Public Prosecutor that the hostile attitude of (PW 3) Harphool, (PW 4) Mangla and (PW 5) Sheo Ram does not diminish the evidentiary value of the statement of (PW1) Sarwani and (PW 2) Rukhmani who had seen the incident. The evidence of these two witnesses cannot be discarded only on account of their close relationship with the deceased victim. We have taken the respective submissions into consideration. The first striking feature speaking heavily against the prosecution is that of delay in lodging the first information report. Admittedly, there is a delay of seved/eight days in lodging the F. I. R. Ex. P. l before the Superintendent of Police. The explanation givin in F. I. R. Ex. P. l by (PW 1) Sarwani is that there was no male member in the family to lodge the report. She stands belied on this point by the testimony of (PW 10) Kamal Singh who stated that when he took the deadbody of Deepa Ram to his house, his father and brother also arrived there. In his police statement Ex. P. 1 recorded U/s 161 Cr. P. C. she stated portion 'c to 'd' that her father-in-law also arrived in the night of the day of the incident. Therefore, the explanation taken in the F. I. R. Ex. P. 1 is not true. An unexplained delay in lodging the Frist information report in a murder case is inexcusable. It is sufficient to render the prosecution case highly suspicious.
(3.) EQUALLY important is the want of motive. F. I. R. Ex. P-l lodged by the widow of the victim, no motive good, bad or indifferent has been mentioned. However in her statement the victim's widow Sarwani (PW. i) stated that on the complaint filed by the deceased victim, the Panchayat had demolished and removed a Jhonpada of the appellant Sheo Chand which he had unlawfully raised in the way. This irked and annoyed the appellant Sheo Chand. The motive alleged is false. PW, 1 Sarwani stated that accused Sheo Chand had come to her house where co-accused Bhagwana was already sitting with her husband Deepa Ram. They all had a smoking in her house and then they all the three. left the house to go to the quarries where they used to work as labourers. If there were strained relations and bad blood between the deceased and the appellant Sheo Chand, appellant Sheo Chand would not have come to the deceased's house and would not have smoked with him. If the relations were strained the accused and the deceased would not have left together to go to the quarries. The motive thus alleged does not stand proved. Pw. 10 Kamal Singh stated that when he brought the dead body of Deepa Ram in his jeep and took it to the victim's house, the victims father and brother also arrived there. The incident taken place at 10. 00 a. m. on that very day. Pw. 1 Sarwani and Pw 2 Rukhmani had seen the incident as alleged by them. If they had seen the incident, they or any of them must have narrated it to the deceased's father and brother. If the father and the brother were apprised of the incident, they would not have cremated the dead body of Deepa Ram nor would they have the acquitted persons to have its cremation. They would have instantly rushed to the police for help and got the post mortem examination conducted. But nothing so was done. There is no evidence to show as to who cremated the dead body of Deepa Ram. It can be safely inferred from these circumstances that Deepa Ram was not killed by the appellant Sheo Chand. In case his death was homicidal, his father and brother would not have remained so silent and inactive. Pw. 3 Harphool, Pw. 4 Mangla and Pw. 5 Sheoram were examined by the police as eye witnesses of the incident. Unfortunately, all of them turned hostile and lent no support to the prosecution despite cross examination. It does not appear that they have any soft corner for the appellant so as to screen him from punishment. ;