M.L. Shrimal, J.
1. This jail appeal is directed against the judgment of the learned Additional Sessions Judge, Ajmer, dated April 17, 1973, whereby he convicted the accused-appellant Heera son of Chhitar, under, Section 302 IPC for committing the murder of one Gyarsa, and sentenced him to imprisonment. for life The other co-accused, tried along with him, viz. Mst. Harku, was however, acquitted of all the offences levelled against her.
2. The fact giving rise to this appeal are that the accused Heera and Gyarsa deceased were cousins. It was strongly suspected that the accused appellant was clandestinely having illicit intimacy with Gyarsia's wife. On 22-6 72, Gyarsa was seen alive in the Gram Panchayat at Gorde, & thereafter at 2 a.m in that area, he was seen by his mother Mst. Hari PW. 13, and there alter the whereabouts of the decease d were not known. On July 21, 1972, the Head Constable Surajbhan Singh, PW 15, came to the village on patrolling duty. After receiving in rations from various sources, he lodged a first information report Ex. P.18 at Police Station Sawar, on July 21, 1972 at 8 p.m. On July 22, 1972, accused Heera as well as Mst. Harku were arrested The latter was acquitted by the trial court Accused Heera, after his arrest, expressed his desire to get the dead body recovered from the place where he had thrown it. The information memo is Ex. P.19 In pursuance of this information, Heera, in the company of the other accused, took the police to the well known as Sunda ka-kuwa and pointed out the well where the dead-body was thrown by him and got it recovered The recovery memo h Ex. P.7. In consequence of the information Ex. P.19, the dead body of Gyarsa was brought out of the well with the help of PW. 12 Badri and others. The inquest report is Ex. P.1. From the dead body, a knife, a stone and a piece of string were recovered vide Ex. P.2. Autopsy on the dead body of Gyarsa was performed by Dr. S.P. Gupta, PW. 5. The post mortem report is Ex. P.9, which is dated July 24, 1972.
3. The doctor opined that a definite opinion regarding the cause of death could not be given as the dead body was decomposed and putrified. He further stated that the marks of their injuries, the extent and nature could not be made out because of the decomposition of the skin and muscles and most parts of the body. He was of the opinion that the death might have occurred about one month prior to the post-mortem examination and the dead body must have remained in water during that period. The clothes wrapped with the dead body also suggested the same inference.
4. During the course of investigation, the other accused Mst Harku got recovered one 'Rajai' and knife and also made a confessional statement before the Magistrate's court No. 2 at Ajmer. The confessional statement is Ex. P.31.
5. The police, after usual investigation, submitted a challan against the accused-appellant Heera, Mst. Harku (who has been acquitted by the trial court) and Ramchand who has been discharged by the committing court). Both the accused Heera and Mst. Harku were tried by the learned Additional Sessions Judge, Ajmer. The accused pleaded not guilty to the charge and the prosecution examined 18 witnesses. As accused Harku was acquitted by the trial court, no appeal has been filed against her acquittal and as such we are not concerned with the evidence recorded against her.
6. The learned Additional Sessions Judge has found the accused guilty of the offence punishable under Section 202 IPC and sentenced him as mentioned above.
7. The learned Counsel for the accused-appellant has persuasively urged that there are certain special features of the case which go to prove that the accused-appellant committed no offence, and the lamed Additional Session Judge committed error of law in coveting him. His first contention is that the statement of Dr. S.P. Gupta, PW. 5, is sufficient to hold that Gyarsa met homicidal death. The doctor Was not in a 'position to even ascertain the' marks of injuries, their extent and the nature.
8. The learned Counsel appearing on behalf of the Stale, urged that the recovery of he dead body along with a stone, tied with rags, wrapped in a cloth is suggestive of the fact that death must have been caused by violence. The contention of the learned Counsel may, possibly be correct, but there long way to travel between the word 'may' and 'must' and in order to convict and accused, there should be cogent, reliable and dependable evidence. In the present ease, there is nothing to demonstrate positively the fact that Gyarsa did not die a natural death or the fact that his death was due violence. People react in different ways to situations of the different kinds. The result of the autopsy was inconclusive as to cause and manner of death, may be it was due to purification or some other cause, and is little to purpose. We cannot speculate about the cause of the death and cannot; on the material furnished, hold that death of Gyarsa was from violence. Once that conclusion is reached the recovery of the dead-body, at the instance of the accused, remains of no consequence. In Stat of Madhya Pradesh v. Ramkrishna Ganpatrao Limsey and Ors. AIR 1954 Supreme Court 20, their Lordship of the Supreme Court while acquitting the accused of that case, observed,-
The strongest weapon in the armoury of learned; Advocate General is the existence of a freshly constructed tomb in the left of Limsey's house where in the dead body of Dattu was en-tombed. The conduct of Limsey in, constructing Dattu's tomb in the third storey of his more or loss verges, on lunacy and it not conclusive evidence of the fact that Dattu had been murdered by him, though it raises a very strong suspicion against him.
In the same case, it has been observed that,-
The possibility, therefore, cannot be ruled out that may have acted in a similar way in case he wanted to conceal for reasons of his own, the death, of a person brought about by natural causes in his house
9. As there is evidence on record that the accused was having illicit relation with Gyarsra's wife, the possibility cannot be ruled out that Gyarsia might have died all of a sudden by a natural death and under sudden impulse of panic, his wife might have approached the accused and under sudden impulse of painc, his wife might have approached the accuse and thereafter the dead-body might have been disposed of. No doubt, a very strong suspicion arises against the accused by reason of the discovery of the dead body at his instance, but the suspicion, by itself, however strong it may be, is not sufficient to take place of proof and warrant a finding of guilt against the accused. In State of Punjab v. Bhajan Singh and Ors. AIR 1975 Supreme Court 258, a similar question came up for consideration before their Lordships of the Supreme Court. Their Lordships, while dealing with the evidence of the doctor, observed as under:.Dr. Saluja has deposed that he found no marks of ligature on either of the two dead-bodies. According further to the doctor. He could not find the cause of death because the two dead bodies were in a decomposed state. In the face of the above evidence of the doctor, it is not possible to hold that the death of the two persons, whose bodies were recovered, was homicidal.
On the above findings and after considering the other evidence on record, their Lordships acquitted the accused of the case. The ratio decidendi of this case is applicable to the facts and circumstances of the case is hand.
10. For the reasons given above, we think that it is not a case in which the accused could have been convicted under Section 302 IPC, and we extend the benefit of doubt to the appellant Heera.
11. In the result, the appeal is accepted, the judgment and order of conviction of the lower court against the accused appellant is set aside, & he is acquitted of all the charges leveled against him. He is in jail. He shall be released forthwith if he is not required any other case.