M.C. Jain, J.
1. The respondents Mangal Singh, Jabbar singh, Durg Singh and Bhag Singh and three others were acquitted of the offence under Section 302 read with Section 120B, IPC, and the first four respondents were also acquitted for the offence under Section 302 read with Section 114, IPC, by the learned Additional Sessions Judge No. I, Jodhpur, by his judgment dated 5-9-1972. The State has preferred an appeal against all the seven accused persons, but the appeal was not admitted against the three accused persons, namely, Peersingh, Bhawanisingh and Nagsingh.
2. We may narrate the prosecution case in brief. Rajsingh, the father of the accused persons Mangalsingh, Jaswantsingh and Jabbarsingh who is alleged to have abscented after the murder, was murdered sometime in the year 1965 and in connection with that murder Punna and Bhagchand Bishnois were prosecuted and were convicted. According to the prosecution case the sens of Rajsingh carried the impression that Bheraram Bishnoi (since deceased) was behind the murder of Rajsingh. In February 1967 there were elections of the Rajasthan Legislative Assembly and Raghunath Bishnoi was the candidate from . Sanchore Constituency. The deceased Bheraram being the member of the Congress Party, was canvassing in the elections for Raghunath, There was a firing incident on 9-2-1967. It is said that Bheraram along with some others including one Lalaram, was proceeding in the Jeep in connection with the electioneering of Raghunath Bishnoi. Durgsingh, Baghsingh and Bhanwarsingh along with Kheta and Ishra made an attempt on the life of Bheraram and a shot was fired at the Jeep, but Bheraram and others had escaped. A case was registered at the Police Station, Sanchore, but a final report was submitted in view of Bheraram's petition Ex P/15 dated 24-8-1967. The further case of the prosecution is that on 27-5-1970 a road was being constructed from village Dhedhva to Hariyali through village Takhal, where the accused Jaswantsingh was having his fields There was a Kacha road through the field of Jaswantsingh and a new road was being constructed by the labourers, which was objected to by Jaswantsingh. One Laduram is said to have asked Jaswantsingh to bring the orders of the officers for not to construct the road through his field, and, at that time, it is said, that Laduram (PW 11) is alleged to have told Jaswantsinah that he will meet the fate of his father Rajsingh and eagles were eating the bones of his father. One of the accused persons, namely, Baghsingh, is said to have uttered that Bheraram is speaking through Laduram. The matter was reported to the Tehsildar Sanchore Shri Dungarsingh (PW 12) and in order to remove suspicion, Bheraram was called at the Dak Bungalow and a talk between Jaswant Singh and Bheraram took place in the presence of Tehsildar Dungarsingh where Bheraram expressed that he had no interest in the construction of the road through the field of Jaswantsingh. The prosecution case further is that as the accused persons carried the impression that Bheraram was behind the murder of Rajsingh, so a conspiracy was hatched in the village Jab in the night intervening 1st August, 1970 and 2nd August, 1970, at the house of Peersingh accused. Jabbarsingh is said to have expressed to cause the death of Bheraram, to which all other accused persons agreed and expressed to give all cooperation. Further case of the prosecution is that on the night of 8-8-1970. the four accused persons, namely, Mangalsingh, Jaswantsingh, Durgsingh and Baghsingh along with one stranger, who was armed with a gun, visited Raniwada in a family planning department Jeep under instructions of Dr. Sohansingh along with the driver Kishanlal. Bheraram, in connection with the meeting of the Cooperative Bank, Jalore, to be held on 9-8-1970, had started from his village in the evening in the company of Bhagtaram & Hemaram. They came to Raniwada and stayed at the residence of Mohanlal, BDO, situated within the compound of Panchayat Samiti, Raniwada. Mohanlal. BDO, Bhagraj Chaudhari Lawyer of Jalore, were also there. After sometime in the night Bheraram and Bhagraj slept outside in the Chowk, Bhagtaram and Hemaram slept in the Verandah and the BDO Mohanlal had slept inside the house. The Jeep alighted beneath the Bud tree, where all the five boarders of the Jeep aligiated. Jabbar Singh had come there and thereafter all the six went aside and after some conversation, the accused Mangal Singh told the driver that they are proceeding towards the Railway Station in order to leave their guest. The driver of the Jeep slept in the Jeep and after sometime Mangalsingh & the other three accused persons, namely, Jaswantsingh, Baghsingh and Durgsingh, came back to the Jeep and awoke the driver. As per the prosecution case Jabbarsingh entered into the Panchayat Samiti Compound and fired his pistol on Bheraram, which resulted in his death. One companion of Jabbarsingh was seen outside the compound of the Panchayat Samiti. Bhagtaram (PW 15) lodged the report fit the Police Station, Raniwada, at 5.00 am on 9-8 1970. Umedsingh SHO (PW 30) registered the case under Section 302 IP and started investigation. He visited the spot, recorded the statements of Bhagtaram and Bhagraj, conducted the spot investigation, prepared the site plan Ex. P/16 and the memo of the site plan Ex. P/2, inquest report Ex. P/3. The photos of the dead body were also taken. The foot-prints were also seen at the spot. Shri Mohanlal BDO and Henaram were also interrogated. Thereafter the Dy. S.P Bhanwar Singh took over the investigation, Ultimately Bhanwar Singh, after completion of investigaton, filed challan against the seven accused persons. The accused Jabbar Singh was absconding. A gainst the four accused respondents, charges under Section 302/120B. IPC, and under Section 307/114, IPC, were framed and against the remaining three accused persons charges under Section 302/120B. IPC, were framed. The accused persons denied the charges and claimed to be tried. At the trial the prosecution in all examined 34 witnesses. The statements of the accused persons were taken on record, which were recorded by the committing court, Their statements were recorded under Section 342, Cr. P C, by the learned Additional Sessions Judge. The accused persons examined two witnesses in defence. After hearing the arguments, the learned Additional Sessions Judge acquitted all the accused persons of the charges framed against them. The learned Additional Sessions Judge in para 26 of his judgment divided the entire evidence led by the prosecution in five categories, as was submitted before him by the Special Public Prosecutor, and accordingly he dealt with the connecting evidence against the accused persons. The prosecution evidence is relating to, (1) Motive, (2) incident dated 9-2-1967 when an attempt is said to have been made on the life of Bheraram, (3) the Jakhal incident relating to construction of road through the field of Jaswantsingh accused, (4) conspiracy at the village Jab at the house of Heersingh accused, and (5) going of the four accused persons in Jeep to Raniwada and the murder of Bheraram at the house of BDO Mohanlal. The learned Additional Sessions Judge considered the entire prosecution evidence divided into the above five categories and has found that the evidence led by the prosecution is incredible, untrustworthy and unreliable. The evidence of Beneysingh and Nathurarm, retired Dy. S. P. in respect of entertaining the alleged deep rooted suspicion in the minds of the sons of Rajsingh regarding the hand of Bheraram in the murder of their father, was disbelieved. Similarly in the incident dated 9.2.1967 there was no involvement of the accused Mangalsingh and Jaswantsingh. Besides that it was found that Bheraram submitted a petition Ex. P/15 to the effect that identification was not possible and it was only on account of suspicion that the names of the accused persons were given. The learned Additional Sessions Judge has also observed that there could be no motive against the deceased Bheraram, as the present occurence has taken place after more then three years of the incident dated 9.2.1967 and after the lapse of about five years of the murder of Rajsingh. As regards the Jakhal incident, the learned Additional Sessions Judge observed that Bheraram had expressed that he had no interest what so ever that the road is constructed through the field of Jaswantsingh. If there was any suspicion that Bheraram is planning to get the road constructed through the field of Jaswantsingh, that impression was found to be absolutely unfounded in view of the statement made by the deceased Bheraram before the Tehsildar Dungar Singh showing his complete disinterestedness. Another material evidence having direct bearing on the present case, was relating to hatching of conspiracy at the village Jab at the house of the accused Peersingh. The prosecution in order to prove that conspiracy examined witnesses Vensingh (P W.13). Nagji (P.W.22) and three more witness Phagluram(PW 14) Kaluram (PW 24) and Bheraram (PW 23) have also been examined. The learned Additional Sessions Judge found infirimties in the testiomony of these witness and observed that the evidence led by the prosecution with regard to conspiracy at Jab, cannot be relied upon. In the last category of evidence he considered the testimony of Kaharsingh (PW 3). Kishanlal driver (PW 9), Hariram (PW8) Tejaram (PW 26) and Aduram (PW 28). After making threadbare analysis of their evidence, he did not believe this category of evidence as well and consequently, he acquitted all the accused persons. Hence, this appeal by the State.
3. We have heard Shri H. N. Calla learned Public Prosecutor, for the State, and Shri M. M. Singhvi, learned counsel for the four accused-respondents.
4. The main stress of Shri H. N. Calla, learned Public Prosecutor, for the State, is on the evidence of conspiracy at the village Jab and on the last category of evidence, that is, evidence relating to visit of the accused persons in the Family Planning Jeep to the village Raniwada, where the four accused persons met the accused Jabbarsingh and executed their plan. So far as the remaining three categories of evidence is concerned, in our opinion, that part of the evidence has not rightly been pressed into service. The learned Additional Session Judge has throughly dealt with that evidence and, in our opinion, he was right in discarding that evidence. The incident dated 9.2.1967 and the Jakhal incident relating to construction of the road through the field of Jaswantsingh, in our opinion, rather demolishes the entire motivation, if any, in the mind of the accused persons. In the incident dated 9.2.1967 as a result of the petition by the deceased Bhearam final repot was submitted and in the matter relating to construction of road the deceased expressed his disinterestedness. As regard the evidence relating to entertaining of any suspicion by the sons of Rajsingh regarding the involvement of Bheraram in the murder of their father, the learned Additional Sessions Judge has considered the evidence of Baneysingh & Nathuram, retired Dy, S.P. PW 2 & PW 34, respectively, & in the light of the Police statement Ex.D/2 of Baneysingh and in the light of absence of entry in the case diary, their evidence was not believed. Baneysingh's statement of the effect that Bheraram himself disclosed that the sons of Raj Singh suspecting his hand in the murder of Rajsingh, was also not believed. Beside that, Bheraram's version is not with respect to any particular son or sons of Raj Singh. According to Baneysingh. Balwantsingh, another son of Rajsingh, was called at the house of the. Tehsildar Amrasingh in Sanchore in the winter of 1966 for removal of suspicion, but Balwantsingh is not an accused in the case. We agree with the view taken by the learned Additional Sessions Judge on the eviedence of these two witnesses.
5. Now there remains the two types of evidence, namely, conspiracy at the village Jab and visiting of the accused persons in Jeep to Raniwada and the murder of Bheraram there on that fateful night.
6. In the first category of evidence, there are the statements Vensingh (PW 13) and Nagji (PW 22), who are said to be present at the house of Peersingh. Some of the accused persons are said to have conspired to kill Bheraram. Besides the statements of these two witnesses there are further statements of PW . 4 Kaluram, a constable of the District Special Branch, Sanchore and Bheraram, Head Constable (PW 23). According to Vensingh (PW 13), who is a resident of village Gurdau, which is at a distance of 12 Kos from the village Jab, he visited Jab in connection with the purchase of she buffalo, as the she buffaloes of that place are famous. He reached in the evening at about 5.30 or 6.00 p. m. and from the villagers at Jab he gathered that there is one she buffalo with Peersingh for sale. He, therefore, visited the Kotri of Peersingh. He found there Peersingh, Bhawanisingh, Nagsingh, Jaswantsing and one more person of fair complexion. The accused Bhagsingh also arrived there after some time.
7. The version of Nagji (PW 22) is that he came to know that Bhia Suthar had left the cultivation of the field of Peersingh, which was with him on Aad Batai. So in connection with the cultivation of that field, he had come to make inquiries from Peersingh. He is the resident of village Dhed-hwa, the place to which the deceased Bheraram belonged. The village Dhed-hwa is at a distance of 7 Kos from the village Jab. According to Vensingh, Jaswantsingh and that unknown man told the assembly that Bheraram was behind the murder of Rajsingh, so they want their help for which the others agreed and it was expressed by them that Bheraram should be murdered as early possible. According to Nagji, such was expressed by the unknown person and not by Jaswantsingh. The evidence of these two witnesses have been considered by the learned Additional Sessions Judge. The evaluation & assessment of their evidence cannot be considered to be in any way wrong or even perfunctory. Both these witnesses were almost strangers. They have no relationship or friendship with Peersingh. It is inconceivable that a criminal conspiracy for the murder of Bheraram would have been made in the presence of Vensingh and Nagji, in whom it cannot expected that confidence could have been reposed, The learned Additional Sessions Judge has observed that their presence at the Kotri of Peersingh is doubtful. Ordinarily they could not be present there. More particularly, so far as Vensingh is concerned, he was not already in the know that there is a she buffalo available for sale with Peersingh. Besides that, their conduct also leaves no room for doubt that their evidence is a cooked up one. Their statements were recorded after two months. As regerds Nagji, it is pertinent to note that he belongs to the village Dhedhwa itself. If such a conspiracy was hatched in the presence of Nagji, he would have immediately reported it to Bheraram and to the other villagers of village Dhedhwa. The witness Ven-Singh could not identify the accused Baghsingh. Some material contradictions have also been noticed by the learned Additional Sessions Judge in the statements of both these witnesses.
8. The statement of these witnesses may also be considered in the light of the statement of Kaluram (P.W. 24) and Bheraram Head Constable (P.W.25). Kaluram submitted a report Ex P/12 on 9th August, 1970, in which he stated that he suspected that some conspiracy had taken place in village Jab in between 1st and 3rd August, 1970 Relevancy of the witness Kaluram is pointed out in view of the fact that the witnesses Vensingh and Nagji did not disclose the matter to the S. H. O. till their statements were recorded. It is said that the incident was disclosed by these witnesses to Kaluram, but there is no such reference in Ex.P/12 and Ex.P/12 is silent that Vensingh and Nagji had informed him about the conspiracy at the house of Peersingh. Even Kaluram did not inform to the Investigating Officer that such a conspiracy was disclosed by those two witnesses. Kaluram's statement was recorded on 3rd of October, 1970. In the light of the contents of Ex.P/ 12 and in the light of the conduct of Kaluram, reliance has rightly not been placed on the testimony of Kaluram So far as the witness Bheraram Head Constable (P.W.25) is concerned, suffice it to say that his report is Ex.P/13 dated 1st August, 1970. His report is silent about any meeting at the house of Peersingh. In his report Ex.P/13 reference has been made of an assembly of about 200 Jagirdars in connection with the death of wife of Khimsingh Thakur. It was an open meeting having nothing to do with any conspiracy. The report is also silent about the presence of the accused persons in that meeting. His statement has also been examined in the light of his previous statement Ex.D/21, where in he did not mention the presence of the accused persons at village Jab on 2nd of August, 1970. Thus, the learned Addl. Sessions Judge was justified in not placing reliance on the evidence relating to the conspiracy at village Jab at the house of Peersingh.
9. In the last category of evidence, there are the statements of Kahar Singh (PW 3), Kishanlal Driver (PW 9), Heeraram (PW 8), Tejaram (PW 26) and Aduram (PW 28). In this category of evidence it is nor. necessary to deal with the direct evidence of the murder of Bheraram, as the direct evidence of murder of Bheraram does not relate to the present respondents, It is to be seen from the evidence of these five witnesses as to whether on the basis of there evidence, it can be found that the present respondents conspired to kill Bheraram. By the evidence of these five witnesses, the prosecution has made an attempt to prove criminal conspiracy. The evidence of these witnesses, relates to taking of the Jeep of the Family Planning Department by Kishanlal from Sanchore to Raniwada in the night intervening 8th August 1970 and 9th August, 1970. which was seen by Kaharsingh (PW 3), who was sleeping outside the quarter of Harisingh, his son. Heeraram is said to be the witness who signalled at Sarnau to take a lift in it for proceeding to Raniwada on that night. Tejaram (P.W.26) is said to have seen the boarders of the Jeep, near the Raniwada Railway Station and the accused Jabbarsingh was also seen there and he has also said to have heard the gun shot report. Aduram (P.W.28) is said to be the witness, who was stopped by the accused persons and thereafter there was a flash of the torch, and, he saw Jabbarsingh in that flash of torch and heard gun shot report and a threat was extended to him not to divulge this incident to any one, else he will also be murdered. Both these witnesses are said to have gone towards that side on that night for attendin the nature's call. Tejaram (PW26) was to leave for Jodhpur by the morning train from Raniwada Nation, which leaves at 5.00 a.m. and Aduram is said to have visited Raniwada for the purchase of clouth etc. In our opinion, the most material testimony is of Aduram, who was present almost near to the scene of occurrence. In connection with his testimony, it may be stated that his testimony does not at ail inspire confidence. How he had came up as witness, is some what myslerious and is unbelievable. His atement was recorded by the police as lase as on 3rd October, 1970, The occurrence took place on 9.8.1970 at about 3.30 or 4 00, a.m. His presence at the scene of occurrence came to light through Phagluram (PW14) and it is said that it was the accused Durgsingh, who made it known to him after about one and ha. If months of the murder of Bhararam. Possibly there could be no reason for Dnrgsingh to have divulged that, at the time of occurrence Aduram was present. It is on account of this disclosure by Durgsing to Phagluram that Phagluram approached the witness Aduram to come forward and narrate the entire incident known to him to the police. It is significant that Phagluram himself did not go to the police immediately to inform that Aduram was present near the scene of occurrence and that had seen the accused persons & had seen Jabbarsingh coming out of the Payanchat Samifi Compound after the gun shot report. The learned Additional Sessions Judge, further found the statement of Phagluram unworthy of credence. Phagluram's statement the Durgsingh had helped him, cannot be believed. Durgsingh accused was the Vice Chairman of the Nyaya Panchayat at the relevant time and Ex.P/11. the sfer application was filed by Phagluram in that case. Thus, it is borne oran that relations of Phagluram and Durgsingh were not such where by any count fidence can be reposed by Durgsingh in Phagluram. Besides delayed examination and the manner in whicn his evidence cams to light, the conduct of this witness is also very material. Village Gundau is about 15 to 16 miles from village Raniwada. He did not disclose this to any one. Not even to his father and elder brothers. This conduct of this witness appears to be most unnatural and abnormal. Bheraram was an inflnencial man. If this witness had witnessed the occurrence and was present near the scene of occurrence. his normal conduct would have been to have immediatly divulged the incident at leat to his close relatives in whom he could have reposed confidence. It is beyond comprehension that out of fear as a result of the alleged threat, having been extended to him, he could have kept quite & would not hare disclosed the incident to any one. It is not simply a question of delayed examination of the witness by the police. It is a question where the witness was not known at all for about one and half months till it is said that his name was diclosed by the accused Durgsingh himself to Phagluram. Aduram left Raniwada without performing the business' for which he had. visited that place According to him, he made no purchase of cloth etc. If the witness had gone to make purchases he would have certainly left the town after making purchases. This also shows that his evidence has only been cooked up. Thus no reliance would be placed on the testimony of Aduram (PW28).
10. Tejaram (PW 26) was examined by the police for the first time on 15th of August, 1970. His name also came to light through one Jaikishan (PW 27), who happened to meet him on that date at Raniwada. It is Jaikishan, who disclosed Tejaram about the murder of Bheraram and it said that the witness then, disclosed the names of the respondents and Jabbarsingh to be persons, whom he saw in the early hours of 9th August, 1970, comma from the side of Panchyat Samiti. His testimony has also not been relied noon by the learned Additional Session Judge, as he didn't give out the name of Our. Singh. He wrongly identified Mangalsingh as Jaswantsingh & Jaswant Singh, and Mangalsingh & he stated that Jabbarsingh was armed with a gun, whereas the prosecution case was that he was armed with a pistol. Further there is discrepancy in his statement with regard to the number of gun shot reports heard by him. In his police satement Ex. D/22 he stated that he heard only gunshot report and similar was the statement in the committing court Ex. D/23. He made an improvement in conformity with the prosecution case that he heard two reports. So far as the identification of the accused Mangal Singh is concerned, he stated that he identified him by face and voice, but in the Court he wrongly identified as stated above. Admittedly it was a dark night. According to him at the hotels near the Railway Station there were petromax, so there was some light of the petromax. It may be stated that if he had heard the two gun shors at the time he was easing curiosity would have arisen as to how the two shots have been fired from the gun at that hour of the night. His natural conduct would have been to give out what he had observed and heard. Even the Police Station was quite nearby. According to him, the Police Station was at a distance of only 50 to 60 steps from the place, where he was easing. He stated that when he got up after easing he saw 6 to 7 persons coming from the side of Panchayat Samiti towards the station, and, when they came near to him, he recognised Mangal-Singh, Jaswantsingh, Jabbarsingh and Bighsingh and the rest he could not identify. When a question was subsquently put to him, he identified the accused Baghsingh. When he had heard the reports coming from the Parr chyat Samiti and when he had seen the accused persons coming from towards Panchyat Samiti, more particularly, when he had seen one accused armed with a fire arm, then his conduct in our opinion, would certainly have been different. According to him, he had a talk with Mangalsingh and Jaswant Singh as to where they were going, to which they replied that they have to go in the train All these details, as deposed to him, were not all divulged by him to any one. Not even at the hotel where he is said to have stayed. Thus, the testimony of this witness does not at all inspire confidence and has rightly been disbelieved by the learned Additional Sessions Judge
11. Coming to the statement of Heeraram (P.W.8), it may be stated that he is said to have visited Sarnau in order to proceed to Jalore from where he was to take security amount of sugar lying there. He has stated that he left his village Sevara and same to Sarnau. One has to go Jalore only via Sarnau from village Sevara. At Sarnau, he was to collect the price of the cow sold by him to one Bhagwana. He left the house of Bhagwana at about 8.00, p.m., and reached Sarnau bus stand, but he missed the bus and he waited for truck, but the truck was not available and he saw a Jeep coming from towards Sanchore. He gave a signal to the driver of the Jeep to stop the Jeep. Thereupon, the Jeep was stopped. The driver of the Jeep was prepared to give him the lift, but it is said that the accused Mangalsingh did not allow to board the Jeep, as it was a Government Jeep. Heeraram stated that he saw the four accused respondents in the Jeep along with one stranger. The learned Additional Sessions Judge noted several contradictions and inconsisencies in his statement with that of his previous statement. He was confronted with his police statement recorded in another case against Dr. Sohansingh, Ex D/3 and Ex.D/4. He disowned the portion A to B of his police statement recorded in this case Ex.D/5 where he had stated that no vehicle was available till morning. In his police statement Ex.D/4 in Sohansingh's case, he stated that after the Jeep had left, he boarded the truck and went to Raniwada and from there he went by train upto Jalore. He denied to have made such a statement. In his police statement Ex.D/3 in Sohansingh's case, he gave the colour of the Jeep as green. At what time he arrived at the bus stand Sarnau, there is discrepancy in his statements. At one stage he stated that he reached Sarnau at 8.00, p.m. after leaving the Dhani of Bhagwana at 7.00, p.m., but in his police statement Ex.D/4 he stated that he left the Dhani of Bhagwana at about 12.30 in the night and it takes about an hour to reach the bus stand from the Dhani of Bhagwana. His statement also cannot be relied in view of the fact that he states that he did not visit Jalore to take the amount of security. In connection with collecting that amount, he did not visit Jalore even till his statement was recorded. It is really strange that without collecting the security amount he returned to his village in the evening of 9th. For the reasons aforesaid, in our opinion, the evidence of this witness is far from truth and does not appear to be credible.
12. So far as the statment or Kaharsingh (PW 3) is concerned, we may state that according to him he saw the going of the Jeep and coming of the Jeep on the night intervening 8th and 9th August, 1970, as he was sleeping outside the quarter of his son Hamirsingh and it was near to him that the Jeep was already parked when it started and was again parked when it returned back He does not identify any of the boarders of the Jeep. Not even the driver. As regards the number of the boarders of the Jeep, his statement is that there were five persons inside the Jeep. According to him when the Jeep came back as well he saw five persons alighting from the Jeep. The number of the boarders in the Jeep has given by him is different from what Kishanlal, the driver of the Jeep, states, Including the driver, according to him, there were six boarders, and when the Jeep returned back there were only five boarders including the driver Kishanlal himself. But Kaharsingh gives the same number on both the occasions. So as regards the number of boarders, reliance cannot be placed on the testimony of Kaharsingh and what can be found from his testimony is that he saw the going of the Jeep and coming of the Jeep with some boarders including the driver, but who were they, is not known to him, as they were not identified by him.
13. Now there remains the testimony of the driver Kishanlal (PW 9). He states that the accused Mangalsingh was on visiting terms with Dr. Sohan Singh. On 8th of August, 1970, he took the Jeep with Dr. Sohan Singh to his village Dantia & at Dantia Dr. Sohan Singh instructed him to take the accused Mangalsingh to Raniwada in the night, as Mangalsingh will approach him at Sanchore. Accordingly, Mangalsingh approached him and asked him from where he may awake him for carrying the Jeep to Raniwada. He informed him that he will sleep at his quarter, which was pointed out to him. Kishanlal states that at about 12 in the night Mangalsingh came to him. After taking the key of the Jeep, he went with Mangalsingh and nearby three accused persons, namely, Jaswantsingh, Dursingh and Baghsingh were present along with one stranger. All of them boarded the Jeep. Thereafter he drove the Jeep and at Sarnau Heeraram (PW 8) met him, but at the instance of Mangalsingh lift was not given to Heeraram. Then he drove the Jeep to Raniwada and stopped under the Bud tree. All the occupants of the Jeep alighted from the Jeep and the accused Jabbarsingh came there. Then all of them went aside and had some conversation. Mangalsingh asked him to remain with the Jeep, as he would come back after leaving his guest at the station At about 4.00 a.m., Mangalsingh came and had awaken him & thereafter they returned back to Sanchore. It is to be seen as to how far the testimony of this witness is worthy of credence. The evidence of this witness has been considered in detail by the learned Additional Sessions Judge and for the various reasons recorded by him, credence was not given to his testimony. We agree with the view taken by the learned Additional Sessions Judge. We have ourselves examined his statement. This witness has given contradictory versions. At one stage he continued to deny having visite Raniwada. He denied to have taken the Jeep to Raniwada to Dr. Sohan Singh, to Kaharsingh, who asked him about taking of the Jeep on 10th August, 1970, He also did not disclose this fact to Bhanwarsingh. Investigating Officer, when he was first interrogated. At that time his statement was not recorded, as according to Bhanwarsingh he was of a perplexed mind. He even did not given any explanation of the notice given to him by Dr. Sohansingh at the first instance. But when it was said that he will be implicate, it is only at that stage that he came out with the version that he did take the jeep to Raniwada aong with the four accused persons & one stranger, as instructed by Dr. Sohansingh. Apart from this, his police statement was recorded on 18th of August, 197 , after about 5 to 6 days of the occurrence. Till that he, did not disclose the occurrence to any one. Further contradictions have been noted in his statement with that of his previous police statement Ex D/18 recorded in Sohansingh's case. After having come to know that Bheraram has been murdered, he along with Dr. Sohansingh visited the village Dhedhwa of Bheraram. . In his statement before the Court, he has denied to have gone to the place where the dead body of Bheraram was lying or was brought, but in his police statement Ex.D/18 he dated that he along with Dr. Sohansingh reached Dhedhwa and the dead body of Bheraram was brought in a truck and he remained there till the dead body of Bheraram was burried. The witness denied to have made such a statement in the police. Kishanlal denied to have relationship with Bheraram, but PW. 2 Dungarsingh, Tehsildar, has stated that he is a distant relative of the deceased Bheraram. Further contradictions have been noticed as to how many times the accused Mangalsingh contacted him 8th August, 1970, and whether he contacted him in the evening or not, the witness gave out divergent versions in this regard. . If the, statement of this witness is examined in the light of the log-book, then it would appear thai the Jeep was not taken in the night, as the log book of the. Jeep mentions the journey on 8th from Sanchore to Dantia and. on 9th from Sanchore to Jarib and Galifa. Mr. Calls, learned Public Prosecutor, for the Male, submitted that as Bheraram had teen murdered and it was he, who carried the accused persons in the Jeep of Government under instructions from Dr. Sohansingh, so in order to conceal his own role and as was desired by his boss Dr. Sohansingh, it may be that the witness may have denied carrying of the Jeep by him to Raniwada & he came out with the truth only after some time. Simply because for some days he did not disclose the occurrence to any one, his testimony should not be discarded Non-disclosuer of the incident by him, does render this wtiness untruthful and the testimony of this witness may not further be examined in the light of the entries in the log-book, for such like journeys are never shown in the log-book. The testimony of this witness should be judged in the light of the independent testimony of Kaharsingh, who has clearly stated that the Jeep was taken in the night and brought back in the morning. In this connection, suffice it to say that a witness, who keeps silence for quite a sufficient time, renders himself to be discarded and also there does not appear consistency in his statement, as noticed by the learned Additional Sessions Judge Besides that, even if it is found the he took the Jeep carrying the four accused persons and one stranger to Raniwada, where, after their reacing near Raniwada Railway Station Jabbar Singh came there and all of them had some conversation, which he did not hear, as they were at some distance from him, it cannot be found that it is there that they conspired to kill Bheraram. In his police statement Ex.D/18, he does not disclose the names of Baghsingh and Durgsingh and his explanation is unsatisfactory, when he state that he was not asked to give their names. From the evidence of Kisharlal, even if it is taken to be true that he carried the accused to Raniwada, in the Jeep, it is difficult to find that the accused persons entered into a criminal conspiracy to kill Bheraram. It is not known as to how Jabbar Singh happened to be at Raniwada on that night. There is no evidence on record that the accused-respondents and Jabbarsingh happened to decide earlier to go to Raniwada on that night in connection with any plan of murdering Bheraram. Jabbarsingh may have come to Raniwada of his own and happened to see the accused persons there, who had come to leave some guest at the Railway Station, as per the prosecution case. Thus, so far as the accused-respondents are concerned, it cannot be held form thay evidence that they had entered into any criminal conspiracy to commit the murder of Bheraram. The evidence of Kishanlal, in our opinion, even if believed, is weak, meagre and insufficient for recording any finding relating to any criminal conspiracy.
14. Thus, the prosecution has failed to prove that the accused-respondents conspired to commit the murder of Bheraram or that the accused respondents abetted the commission of murder of Bheraram. Thus, the offences under Section 302/120 I.P.C., or under Section 302/114, I.P.C., are not brought home to the accused respondents beyond all reasonable doubt and, in our opinion, they are rightly acquitted by the learned Additional Sessions Judge.
15. In the result, we find no force in this appeal, so it is hereby dismissed.