R.N. Aggarwal, J.
(1) The appellants Latoori Lal and his son Raju along with Ram Avtar (since acquitted) were tried for the offence under Section 302 read with Section 34 of the Indian Penal Code. The charge against them was that on 26th February 1979 at about 9.30. p.m. at the Kachha Rasta Sanjay Park they had in furtherance of their common intention intentionally caused the death of Kishan Lal. The first two accused were found guilty of the offence charged with and each one of them was sentenced to rigorous imprisonment for life. The third accused, as already stated, was acquitted.
(2) On 26th February 1979 at 9.55 p.m. Public Witness .5 Jhangi Ram, a resident of a Jhuggi near Sanjay Park reported at the police post Jahangirpuri that he resided in a Jhuggi at Sanjay Park and that at about 9.30 p.m. he heard noise of the people and came out of the Jhuggi and that near the Pushta he saw a young man lying dead in the kachha road. Sub-Inspector Rajinder Parshad ent the report Ex. PW.2/A with his endorsement Ex.P.W.18/A to the police station Adarsh Nagar for formal registration of the case. The report Ex. Public Witness 2/A was dispatched to the police station at 10.50 p.m. and the formal report was recorded at 11-10 p.m.
(3) Public Witness . 18 Sub-Inspector Rajinder Parshad reached the spot and commenced the investigation. Public Witness . 6 Maqsood Ali reached the spot at about 11 p.m. and he claimed to be a witness to the occurrence. He named the appellants and Ram Avtar as the assailants of the deceased. The motive for the crime as disclosed by Public Witness . 6 is that Latoori Lal and the deceased Kishan Lal were cousins. The wife of Latoori Lal developed illicit relations with Kishan Lal and she started living with Kishan Lal along with her son Raju (appellant). She gave birth to a son named Pappu from Kishan Lal 5 or 6 years prior to the occurrence. Raju quarrelled with his mother and Kishan Lal and went away to live with his father Latoori Lal. A few days prior to the occurrence the wife of Latoori also left Kishan Lal and went back to her husband Latoori. Kishan Lal wanted to have the custody of Pappu but Latoori was not willing to give the custody of Pappu to Kishan Lal and on that on the day of the occurrence at about 4 p.m. and again at 6 p.m. there was quarrel between Kishan Lal and Latoori Lal. Maqsood Ali intervened and brought Kishan Lal with him to Subzi Mandi, Azadpur.
(4) Regarding the occurrence Maqsood Ali deposed that at about 9 p m. he had purchased goods from the Subzi Mandi and he asked Kishan Lal to bring a rickshaw, that Kishan Lal did not return but his other partner Phool Singh brought the rickshaw, that on his enquiry he was told that Kishan Lal had gone for some work, that he went in search of Kishan Lal and at about 9 or 9.15 p.m. he reached the kachha rasta near the Bandh, that he saw all the accused having an altercation with Kishan Lal, that Latoori grappled with Kishan Lal and felled him on the ground and Raju stabbed Kishan Lal twice with a knife, that Kishan Lal cried 'BACHAO BACHAO' and he went near Kishan Lal, that he ran after the accused but could not catch them, that he went to the house of the accused but did not find them in the house, that he returned at abut 11 p m. to the spot and met the police party. The witness further deposed that he knew all the accused persons and the deceased as they worked with him in the Subzi Mandi.
(5) All the accused were arrested on 9th March, 1979 Latoori was wearing the shirt Ex. P. 5 and Tehmad Ex. P-4 and Shri Raj Bahadur Singh Tyagi (P.W. 19) took into possession the clothes worn by Latoori. He also took into possession the Pajama Ex. P-6 worn by Raju. On Chemical examination the Tehmad and the Pajama were found to be stained with human blood. The blood on the Tehmad was found to be of 'B' group which was also the blood group of the deceased. A knife was recovered on information given by Raju accused. The said knife was also sent for examination to the Central Forensic Science Laboratory but only traces of blood too small for serological examination were detected on it.
(6) The prosecution case mainly rests on the testimony of Public Witness . 6 Maqsood Ali. We have carefully gone through the statement of Public Witness . 6 near and we are of the view that the presence of Public Witness . 6 near the spot of crime at the time of the occurrence is extremely doubtful.
(7) As observed earlier, Sub-Inspector Rajinder Parshad had sent the report Ex. PW. 2/A along with his endorsement Ex. Public Witness . 18/A to the Police Station Adarsh Nagar at 10.50 p.m. In the endorsement Ex. Public Witness . 18/A P.S. 18 has stated that the murder of Kishan Lal had been committed by some unknown person by causing injuries with a sharp edged weapon. It is clear that till about 10.50 p.m. Sub-Inspector Rajinder Parshad had not known the name of the assailants. Public Witness . 18 prepared the inquest report Ex. Public Witness . 12/C and seethe dead body along with documents Ex. Public Witness . 12/D and 12/E to the Police surgeon for post-mortem. Ex. Public Witness . 12/E contains the brief statement of facts. The said documents does not mention any fact beyond the report made by Jhangi Ram and the factum of the recovery of a dead body having wounds caused by a sharp edged wepon.
(8) The inquest report mentions that Maqsood Ali and Liaqat Ali had indentified the dead body. Public Witness . 18 had recorded the statement Ex. Public Witness . 18/B of Maqsood Ali. In the said statement Maqsood Ali only stated that night after getting free from his work he was on the way to kachha rasta, Sanjay Park near Shah Alam Bandh and he saw the dead body of Kishan Lal.
(9) If Maqsood Ali was a witness to the occurrence he would have definitely given details of the occurrence before the police. In that case P.W. 18 also would have in the brief statement of facts recorded some details of the occurrence and mentioned the names of the assailants. The commission by Public Witness . 6 to give details of the occurrence in the statement Ex. Public Witness .18/B as well as the fact that the details of the occurrence and the names of assailants are not mentioned in the brief statement of facts by Public Witness . 18 is explainable on no other hypothesis except that Public Witness . 6 had not seen the occurrence.
(10) Public Witness . 7 Liaqat Ali who is a tailor by profession gave evidence that on 26th February at about 10 p.m. he was sleeping in his shop when he was summoned by Sub-Inspector Dhan Singh through 3 or or 4 police employees and he went to the spot and identified the dead body as that of Kishan Lal. We may notice here that Kishan Lal was wearing a shirt which had the label of the shop of Liaqat Ali. The Sub-Inspector had obviously summoned Liaqat Ali to fix the identity of the dead body.
(11) We further find it difficult to accept the statement of Public Witness . 6 that he had returned to the spot after about 2 hours of the occurrence. Even believing that Public Witness .6 had run after the accused and failed to apprehend them he would have rushed back to the spot within about 15 to 20 minutes of the occurrence. According to P. W. 6 he had known the deceased for a number of years and the deceased was a partner of the witness for about 6 years. P.W. 6 could not be callous as to run after the accused and later go to the house of the accused to look for the accused and completely forget about the injured.
(12) For the reasons stated above, we are of the view that Public Witness . 6 Maqsood Ali had not witnessed the occurrence.
(13) The only other evidence connecting the appellants with the crime is the recovery of blood stained Tehmad from the person of Latoori Lal and blood stained Pajama from the person of Raju. The accused were arrested after about Ii days of the occurrence. It is difficult to believe that they would have kept on wearing the blood stained clothes after a number of days of the occurrence. Public Witness . 12 Dr. Ramani in cross-examination stated that since the injuries were equally tapering on both the ends they are likely to have been caused with a double edged weapon but the possibility of the injuries having been caused with a single sharp edged weapon cannot be ruled out. The knife Ex. P. 7 recovered at the instance of Raju was a single sharp edged weapon. The medical evidence as well as the non-detection of human blood on the knife Ex. P. 7 makes it doubtful if the knife P-7 was used in the commission of the crime. Even otherwise also, the recovery of the blood stained clothes after more than 11 days of the occurrence and the recovery of the knife P-7 at the instance of Raju are by themselves not enough to base the conviction.
(14) In the view we have taken of the evidence we hold that the prosecution has failed to bring the charges home to the appellants beyond a reasonable doubt. The appeals are allowed and the conviction and sentence of both the appellants are set aside. The appellants unless wanted in any other case shall be released forthwith.