Kanta Bhatnagar, J.
1. This appeal is directed against the judgment dated 25-9-1985 passed by the learned Sessions Judge, Nonar, by which appellant Indra Cband was convicted Under Section 302, IPC and sentenced to imprisonment for life and a fine of Rs. 500/-, in default of pay-meat to rigorous imprisonment of six months.
2 Briefly stated, the prosecution case is that on 11-9-1982 at 12.30 a.m. appellant Indra Cband made a report at Police Station, Rawatsar to the effect that his father Phoosa Ram has one brother Bansbidhar who had two sons viz Ratan aged 22 years and Jagdish aged 18 years. The houses, agricultural land and shop of Phoosaram and Banshidhar were joint. Bansbidhar mostly remained ill and his wife was blind. Jagdish and Ratan were for the last few months insisting upon partition and as such it occurred to him (the appellant) that if Jagdish and Ratan were done away with, the whole property would remain with his family. That, in the main market of Rawatsar, there was a hotel run by these persons. Ratan and Jagdish used to sleep some times at their house and some times at the hotel. In that night both of then, Jagdish and Ratan had slept on the root of the hotel. About quarter to 12 in. the night, the appellant caused the murder of Jagdish and Ratan with axe and then came down and confessed the guilt to Ramesh Photographer where Madan Hotelwala was also present and then went to lodge the report to the Police Station.
3. Bhagwandas P.W. 25, SHO, Police Station, Notiar, reduced the information into writing which is ExP/42. Appellant was arrested vide Memo Ex.P/43. His blood soaked shirt, trousers and watch were taken into possession. In pursuance of the information of the appellant, the SHO recovered the dead bodies from the roof of the hotel situate in the main market of Rawatsar. The injured Ratan and Jagdish were brought down and were taken to hospital for medical aid but the succumbed to the injuries sustained by them. The inquest memos of the deed bodies were prepared by SHO, Bhagwandas. Dr. Bhim Singh conducted the post-mortem examination of the dead bodies and notel following ihjuries on the dead body of jagdish.
(1) Incised wound 2-1/2' x 1/2' x 1/4' on the right side of face in front of fight ear;
(2) Incised wound 2-1/2' x 1/2' x bone deep right side of occipital bony area and brain material is coming out from the wound;
(3) Incised wound 1' x 1/4' x 14' dorsal aspect of left hand.
The post mortem examination report is Ex.P/23. The cause of death according to the doctor was heamorrage and shock due to injury to brain, face and band caused by sharp edged weapon.
4. The doctor noted following injuries on the dead body of Ratan:
(1) Incised wound 6' x 1/2' x brain deep on the left frontal parietal bony area.
The cause of death according to the doctor was haemorrabage and shock due to injury to brain caused by sharp weapon The blood soaked clothes of the deceased were taken in possession by the SHO. the SHO proceeded with the investigation at the site and prepared site plan Ex.P 5 and site inspection Memo Ex.P/5-A. He also recovered the bushirt (Ex. 16) had trousers (Ex. 17) which Indra Chand was wearing. On 18-9-1982, investigation was entrusted to ASI, Nabar Singh of Police Line, Sri Oanganagar On 19-9-1982, Indra Chand furnished'information Ex.P 25 for getting recovered one axe from the heap of bricks behind the Nohar at Rawatsar. In pursuance of that information he got recovered axe Ex. 15 which was taken in possession vide Memo Ex. 20. The clothes of the deceased, the bedding on which the injured were lying on the roof and the trousers and bushirt of appellant Indra Chand and the axe (Ex 15) were sent for chemical examination. The blood stained cutting/samples from these Articles with their respective controls wherever available were fowarded to the Strategist for serological examination. The report of the Serologistis ExP 35. Except the blood stains on a Kachha, the blood on all the articles was human blood.
5. Upon completion of necessary investigation charge-sheet agaiast the appellant and his brother Nand Kishore was filed in the court of Judicial Magistrate, Nohar. The learned Magistrate charge-sheeted the appellant Indra Chand Under Section 302 and Nand Kishore Under Section 302/109, IPC. Both the accused denied the charges and claimed to be tried. prosecution examined 25 witnesses in all to substantiate its case. In their statements Under Section 313, Cr.PC both the accused denied the allegations levelled against them. The learned Sessions Judge did not hold the prosecution case proved against Nand Kishore and acquitted him of the charge Under Section 302/109, IPC. The case against Indra Chand, appellant was, how ever, held to be established and the judgment under appeal was passed. Indra Chand felt aggrieved by his conviction and sentence and preferred the appeal in this Court.
6. We heard Mr. M.L. Garg and Mr. M.K. Oarg learned Counsel for the appellant and Mr. S.S. Vyas, learned Public Prosecutor.
7. At the very outset it may be observed that there is no direct evidence and the prosecution case rests on circumstantial evidence. The circumstance brought on record against the appellant are (i) FIR Ex.P 42 filed by him narrating the details of the occurrence, (ii) blood stained shirt, trousers and watch (articles Ex.Ps. 16 and 17) being recovered from him at the time of his arrest after his lodging the report, (iii) recovery of the dead bodies at the instance of the accused in pursuance of the information Ex.44, and (iv) recovery of axe in pursuance of information Ex. P. 25 furnished, vide Memo Ex.P 20.
8. Banshidhar is the father of the deceased and uncle of the appellant. He has stated that the relations between his sons and his brother's eons were not cordial because his sons wanted to live jointly. The witness has admitted that his mind was not at all working properly and he had given the statement as asked by his brother-in-law, Rampratap, with whom he was living for the last 13 months. Mohini (PW 15) has stated about Nandu, accused sending letter to her brother Rampratap for coming for consultation. This witness contradicting her husband's statement deposed that her sons wanted to be separate but Nandu had told to Rampratap that they will be made separate after the marriage of Ratan. Mohini has also stated that mother of the appellant told her that she may not name her son otherwise she would be murdered. She has admitted that this fact was not told by her to the police. Nothing comes out from the statements of these two wit-nesses which may point out any motive for the appellant to commit the murder. Sabiram and Narayandutt are the witnesses regarding disposal of certain land by Phoosaram and Bansidhar. Banshidhar has also admitted that fact and there is nothing to point out that there was any quarrel in that regard. The learned trial Judge has also not placed any reliance on the evidence leading to the circumstances of motive and for that reason Nand Kisbore was acquitted.
9. the prosecution case regardig the extra judicial confession is that in the First Information Report lodged by indra Chand, be has stated about his confessing the crime before Ramesh Photographer and Madan Hotelwalt just after the occurrence The learned trial Judge has rightly not placed reliance on this circumstance, firstly, because the FIR even if any lodged by the accused cannot be used against him except for the fact of any recovery made in pursuance of the information contained in that report and secondly, both the witnesses namely Ramesh Photographer and Madan Hotelwala have not supported the prosecution case in that regard.
10. As observed above, the report by the accused cannot be used against him except for the limited purpose indicated above. The report has not been used by the prosecution for the recovery of the dead bodies. The reason is apparent. In the report it is no where mentioned that the accused had placed the dead bodies on the roof. All that is mentioned there is that the injured were lying on the roof The learned Counsel for the appellant has strenuously contended that this report could not be the source of recovery of the dead bodies because the police had recorded the information Ex. P. 44 for that purpose. If from Ex. P. 42, the police could come to know about the injured persons lying on the roof of the hotel, they should have immediately rushed to the site instead of wating time in recording Ex. P. 44. This, as argued by the learned Counsel for the appellant, appears to have been written in order to have the circumstance of recovery of dead bodies in pursuance of the information by the accused because the FIR by him could not have been used against him. Ex. P. 44 also does not speak of the accused placing the dead bodies of his cousins Jagdish and Ratan on the roof. It rather contains that the dead bodies of his cousins Jagdish and Ratan were on the roof of the hotel which he could get recovered. The learned Counsel for the appellant accused that he might have seen his cousins lying injured on the roof and might have informed the police and therefore his taking the police to the site cannot be taken to be an incriminating circumstance against him. As the confessional FIR by the accused cannot be used against him. the only circumstance remains that he informed the police about the dead bodies of his cousins lying on the roof and took the police to that roof, Mangtu Khan P.W. 4 has stated that at about 11 or 11. 30 when he was patrolling in the market Nathu Khan and Bhadar Chhimpa dame there. At that time Bhadar asked Indra Chand for milk. Indra Chand told him that there was no milk in the hotel. Thereafter Indra and Bhadar went away to the hotel of Shivdayal and the witness proceeded for patrolling. That, when he returned, he saw that Bhadar and Indra had also returned. Bhadar asked Indra to go to house and Indra told that be wilt sleep on the roof of the hotel. Then Bhadar and the witness went away to their respective house. Mangtu Khan has admitted that be was not the regular Chowkidar in the locality. According to him as Laloo was on leave, his father asked him to patrol and that was only fort that day. That, thereafter his uncle had given him the service of patrolling. Similar is the statement of Nathu Khan He was also not on regular duty find because of Pokhar felling ill he was work-ing as Chowkidar on that day. These Chowkidars were employed by the; people of the locality. The regular Chowkidars have not. been examined to state as to whether they were on,leave that day and these persons were, entrusted with their duty. These two witnesses according to the learned Counsel are chance witnesses. There is force in the argument., The learned trial Judge, has placed reliance on the circumstance of the accused being there in the late hours of the night. There is nothing strange about the appellant going on the roof in mid night after Ram Leela. Even if it is held that these two persons were there in the lane, it will not implicate the acoused because it has come on record that on that day there was rehearsal of Ram Leela and tine appellant had gone there. Bhadar does not support the prosecution case that he had asked the accused to go to house and was told that he would sleep on the roof on that day. In the absence of Bhadar supporting the prosecution, the evidence of Nathu Khan and Mangtu Khan that accused did not go to his house that night, lodses importance.
11. The learned Public Prosecutor has laid much emphasis on the circumstances of blood on the clothes and watch of the appellant. The prosecution case is that the clothes and watch were recovered at the time-of the arrest where as the defence has taken help from the statement of Shri Ram (PW) that Indra Ghand and Nand Kishore were asked to take the; injured down-stairs and they did accordingly and placed the dead bodies in the jeep and at that time their clothes got stained with blood. The witnesses to the recovery.of the clothes and watch are Balbir Singh (PW 24) and Laxmi Narayan. Laxmi Narayan has not been examined. Balbir Singh, incbarge of the Malkhana has admitted that he has not written in the Malkhaqa. register that the articles were given to him at the time of arrest of the accused. It is also important to note that there is no mention of the recovery in the endorsement (Karyawahi Police). The only witness to the recovery remains Bhagwandas. We consider the defence story, that the clothes recovered from the appellant were those which he was wearing at the time of the injured being taken down-stairs and as stated by Shri Ram the clothes got stained with blood, more plausible. Firstly, because in the natural course of events, SHO, receiving the information about two persons lying on the roof, would have rushed to the site instead of wasting time taking the clothes of the appellant, especially, when he was under arrest and there were no chances of his running away and secondly, because there is nothing to suggest as to which were clothes which the appellant was asked to put on after his arrest in case the clothes which be was wearing at the time of arrest, were taken away. The Investigating Officer has not stated that the accused was given another clothes when his, clothes,were seized and thatthe clothes which the appellant was wearing when the dead bodies ware taken,down, were those given by the police. In such circumstances, the positive report of the Serologist about there being human blood on the clothes of appellant lndra Chand, cannot be said to be a circumstance against him.
12. The learned Public Prosecutor has attached much importance to the recovery of the blood stained axe in pursuance of the information furnished by the appellant. It is relevant to note that Indra Chand was arrested on 11-9-82 and till 18-9-82, the investigation remained with SHO Bhagwandas and no information was furnished to him in connection With the axe. The investigation was entrusted to Nahar Singh (PW 14) on 18-9-82 and on the very next day Indra Chand is said to have furnished information for the recovery of the axe. True it is that there cannot be any hard and fast Rule as to at which particular moment the accused would disclose any fact but the fact cannot be overlooked that for seven days the accused remained quiet when the investigation was with one officer and on its being entrusted to other officer, he would have felt like disclosing the fact of placing the axe in Nohara and getting it recovered. The place where from the axe was recovered, is an open place accessible to all and sundry. Out of the two motbirs to the recovery Memo of the axe Ex. P. 20, Surendra Singh has not been examined and Birbal Ram has not supported the prosecution,and has been declared hostile.
13. From the statements of Balbir Singh, the items including the axe were entrusted to Dhokal Ram, constable on 6-10-1982. Balbir Singh bad stated that the key Of the Malkhana was with him upto 6-10 1982 and he could not say with whom the key remained thereafter.
14. In view of the above discussion, the scattered circumstances, attempted to brought on record by the prosecution are not sufficient to.hold the appellant guilty of the charge of murder. In the case Ota Ram v. State of Rajasthan Cr. LR (Raj) Page 288, the extra judicial confession not being proved, the accused going to lodge the FIR with a sword and knife in hand was not held to establish that he was the murderer. The blood stains on the clothes of the appellant having been reasonably explained and the recovery of the axe in pursuance of the alleged information furnished by the appellant not being believed, we do not find any justification in the conviction of the appellant.
15. Consequently, the appeal is allowed. Appellant Indra Chand is acquitted of the charge and his conviction and sentence are set aside. The appellant is in jail. He shall be set at liberty forthwith if not required in any other case.