S.N. Deedwania, J.
1. The State of Rajasthan has preferred this appeal against the judgment dated March 28, 1972, of the learned Sessions Judge, Bhilwara, by which respondent Dhannalal was acquitted of the offence punishable under Sections 302 and 201, of the Indian Penal Code.
2. The case according to the prosecution was this. Respondent Dhannalal was on visiting terms terms with Harskial deceased. Dhannalal wanted to borrow a sum of Rs. 3,000/- from Haraklal by mortgaging his land. On 29.5.71, Haraklal left his home at 10. a.m., with respondent Dhannalal. Haraklal had Rs. 3,000/- with him, and he was wearing khakhi pants, chocolate colour bush-shirt, silver ring in finger of one band and a copper ring in a finger of another hard. He was also having watch with him He wore an underwear with stripes. Haraklal never returned to his home. His wife Kante made search of him. On 1.6.71, she went to Bhilwara Haraklal was employed as peon in Tehsil. She was informed at Bhilwara that Haraklal bed cot come on duty after 28th of May, 1971. She also informed Schanlal, brother of his husband. On 29.5.71, Dhannalal and Haraklal deceased went to the shop of Lacuram of Mandal and form there at about 5.30 P.M. they went away by Goskhai(sic) On 2.6.71, Sangramsingh saw a dead-body floating in Am(sic) well of Bhursingh situated at a distance of one mile from village Jali P. W. 10 Chandidan then write report, Ex. P/12 and sent it with Bakhtawar Balai to Dildarkahn p.w. 4, police constable, police outpost, Daulatgarh, Dildarkhan sent this report, Ex P/12 to police station, Asind, where it was received by p.w. 11 Hazarilal, Head Constable, then in-charge of police station. He directed Dildarkhan to proceed to the spot and recover the dead-body in presence of motbirs and prepared inquest memo Ex. P.1. The dead body had only one underwear with stripes on it. Dildar Khan seized and sealed the underwear, Ex. P.4 He called Dr. Jagdish(sic) post-mortom on the dead-body and found the following injuries:
1. Lacerated wound on the right parietal region of the scalp. The size of the would 1-1/2' X 1/2'.
2. Lacerated wound on the middle of the left body of the mandible size of the wound 1' X 1/2'.
3. In the opinion of the doctor, the cause of death was injury to brain. The dead-body was in advanced stage of the decomposition. From the dead-body, the elector removed the skin of palm, thumbs and little fingers of both the hands for finger print examination. Since, the inquest memo prima farie disclosed that the deceased had been murdered, a case under Section 312, IPC was registered and investigation was taken up. During the course of Investigation , the police came to know that Haraklal was missing after he went in the company of Dhannalal respondent PW 13 Sarfuddin, SHO of police station, Asind, therefore arrested Dhannalal on 12-6-71- While in police custody, Dhannalal gave an information that the clothes were lying In Pipaliwala Kuwa, a pair of shoes in link of Jali village, wrist watch and band kerchief and some money in an earthern-pot in his house. This information was reduced into writing in a memo Ex P. 13 by Sarfuddin, SHO Dhannalal respondent then took the S.H.O to Pioliwala well and at his instance, he got recovered khakhi pants and one bush-shirt from inside the well The SHO seized and sealed these articles. The respondent then took the SHO m the tank at village Jali and at his instance and in consequence of the information furnished by him got recovered a pair of shoes from it. These shoes were also seized and sealed. Dhannalal in pursuance of his information produced a box also which was lying in his house. The box contained one wrist watch and a handkerchief which were seized and sealed by the SHO Respondent Dhannalal, in pursuance of his information furnished by him Under Section 27 of the Indian Evidence Act also produced Rs 323/- vide Ex. P. 15 from an earthen pot and Rs. 200/- from a Kothi On 15.6.71, Dhannalal further gave an information that he had paid some money to Manaklal. Nanuram, Ranglal, Bheru Dhobi and Nathulal. In pursuance of information furnished by Dhannalal. Rs. 100/- from Ranglal, Rs. 65/- from Manaklal, Rs. 200/- from Bheru Dhobi and Rs. 100/- fro, Nathuala were recovered. On 23.6.71, the respondent further gave an Information that he had given Rs. 300/- to Ugamlal and in pursuance of this Information and at his instance Rs. 278/- were recovered from Ugamlal. The respondent also give an information leading to recovery of a lathi from his horse. The service book, Ex. P. 10 and grafted skin of the deceased were seat for expert opinion P.N. Tankaha PW 9 of the Finger Print Government Bureau, Jaipur for comparison PW 9 PN Tankaha obtained an impression from the skin of the left hand thumb of the deceased and compared it with left hand thumb impression of his service book. According to the expert, the left thumb impression in the service book and thumb impression obtained from the skin of the thumb of left hand of the deceased were of the same person. That test identification parade of recovered watch, a pair of shoes, hand kerchief, pant, bush shirt and an underwear with stripes was conducted by Lajpatrai, SDM Gulabpura, Nandram, Smt Kanta, Maagilal and Sohanlal participated In the test-identification parade. Nandlal identified the pant and bush-shirt, Smt. Kanta identified all the articles except under wear and, Mangilal and Sahan Lal identified all the articles correctly. After, completing the investigation, challan was filed in the court of the Additional Munsiff Magistrate, No. 2, Bhilwara who held an enquiry, preparatory to commitment, and upon finding, a prima facie case exclusively triable by the court of Sessions committed the respondent to the court of Sessions Judge, Bhilwara for trial. The learned Sessions Judge, however, held that the circumstantial evidence was insufficient to establish conclusively that the respondent Dhannalal had murdered Haraklal and, therefore, acquitted him. Hence this appeal by State of Rajasthan.
4. We have heard the learned Public Prosecutor for the State and Mr. J M Bhandari for the respondent and perused the record of the case carefully.
5. It was not disputed that Haraklal was not seen alive since 29-5-71, when Laduram PW 6 saw him with respondent Dhannalal going away from Mandal in Gorkhia bus. No controversy was raised before us that on 3-6-71 the dead-body which was recovered from Amritia well of Bhursingh situated at a distance of one mile from village, Jali, was not of Haraklal. From the testimony of PW 9 P N. Tankaha, hand-writing and finger prints expert, Government Bureau, Jaipur it is established that the dead body was of Haraklal. It is also proved beyond reasonable doubt from the postmortem examination and the statement of doctor Jagdish recorded before the committing court that Haraklal deceased met lemicidal death on account of ante-mortem brain injury received by him, which was sufficient in the ordinary course of nature to cause death. There is no direct evidence of commission of the crime by the respondent. The case hinges solely on the circumstantial evidence. The law with regard to proof of an offence by circumstantial evidence is well established. Each link of circumstantial evidence must be proved by cogent and reliable evidence and further the chain of such circumstantial evidence must be capable of leading to an irresistible conclusion that no there person but the accused was the perpetrater of the crime. Such circumstantial evidence must be incabale of explanation on any hypothesis other than that of the guilt of the accused. The two circumstances relied upon by the learned Public Prosecutor to prove the evidence against the respondent are as follows:
1. deceased Haraklal was last seen with the respondent.
2. Recovery of clothes and other articles belonging to deceased at the instance of the respondent, and in pursuance of his information recorded under Section 27 of the Indian Evidence Act.
6. As regards, the first circumstance, the learned Session Judge was of the opinion that it has been proved beyond reasonable doubt but it was Insufficient to connect the respondent with the crime. PW 1 Smt. Kanta deposed at the trial that her husband left the house with Rs. 3000/- in the company of respondent Dhannalal on 29-5-71 at about 10 a.m. Her husband thereafter was never seen alive, PW 6 Laduram stated that respondent Dhannalal and deceased. Haraklal came to his shop at about 10 a.m. on 29-5-71 and were there till 5.30.p.m. Thereafter, both of them went away from his shop to Mandal in Gorkahiabus. We have no reason whatsoever to disbelieve the testimony of this witness and it is, therefore, proved that after his dead-dead was noticed on 2.6.71 in a well, however, there is no evidence that the respondent was seen about in the company of Haraklal, near about village Jali or the well which is situated in that village Hence, the mere fact that the deceased was seen in the company of the respondent by Ladhu Ram, p.w. 6 at his shop till they went away from there to Mandal in there from the Bus at Mandal and reached village Jali wherein, the well from, which the dead-body of the deceased recovered, was situated. This circumstance may give rise to some suspicion but under the law, the suspicion but how so ever strong, it may be, could not play role of proof. The possibility of deceased having gone alone to village Jali after getting down alone from the bus could not be ruled out altogether.
7. The other link connecting the accused with the crime is the various recoveries made at his instance and in pursuance of his information supplied by him under Section 27 of the Indian Evidence Act. P.W. 13 Sarfuddin, S.H.O. stated that in pursuance of his information incorporated in Ex. P 16, the respondent got recovered Rs. 100/- from Haraklal, Rs. 65/- from Manskaial, Rs. 200/- from Bheru Dhobf and, Rs. 100/- from Nathulal. Rs. 278/- were recovered from Ugamlal in pursuance of another information given by the respondent . It may be stated that none of these witnesses were examined at the trial. The cash recovered from these persons is not identifiable and, therefore, it could not be said that this amount belonged to deceased Haraklal. This is, therefore, hardly an incriminating circumstance against the respondent.
8. Learned Public Prosecutor argued that the fact that deceased Haraklal paid this amount to these person would mean that he came in possession of the cash from Haraklal. We have considered this argument, which has little force. In the absence of any evidence whatsoever, it is difficult to bold that this amount belonged to deceased Haraklal. The text circumstance relied upon by the prosecution is the recovery of some clothes and cash from various places, in consequence of the information, supplied by the respondent, white in the police custody. The information supplied by the respondent is incorporated in Ex. P. 13. The respondent did not say that he threw the clothes in the well known as Pipliwala well and a pair of shoes In a tank of village Jali or that he had concealed one wrist watch; one hand kerchief and same cash in his house. The respondent merely gave the information that these articles were lying at those places as is evident from the statement of PW 13 Sarfuddin, SHO and information memo Ex. P. 13. From the mere statement of the respondents that the aforesaid articles were lying at the places mentioned in the information, it could not be presumed that he himself had placed the articles there. The possibility of somebody else having placed the articles there and the respondent, having knowledge about the concealment of those articles, could not be ruled out together, especially when the clothes and the pair of shoes were recovered from places accessible to all sundry and the wrist watch and the hand-kerchief and some each were recovered from his house, which was not in his exclusive possession. Hence, the recovery of those articles could not be regarded as a conclusive proof of the fact that the respondent was in recent and exclusive possession thereof. It wet, thus, observed in the following authorities.
(1) Trimtek (sic) The State of MP. (AIR 1934 SC 39)
When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of some body else having placed the the article there and of the accused somehow acquiring knowledge about their where abouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.
(2) Mohammed Inoyatullah v. State of Maharashtra AIR 1976 SJ 483.
It must be remembered that an inference under Section 114, Illustration (a) should never be reached unless it is necessary inference from the circumstances of the given case, which cannot be explained on any other hypothesis save that of the guilt of the accused. Such is net the case here.
The facts proved by the prosecution, particularly the admissible pet lion of the statement made by the accused, could give rise to two alternative hypothesis, equally possible, namely; (i) that it was the accused who had himself deposited the stolen drums in the Musafirkhana, or (ii) the accused only knew that the drums were lying at that place, The second hypothesis was wholly compatible with his innocence.
9. That apart, the evidence of PW 13 Sarfuddin Is not very convincing, in as much as, it appears that he has tampered with the information memo, Ex. P. 13. In the cross-examination, the witness stated that nothing has been added to or subtracted from Ex. P 13 However, when the carbon copy of Ex P. 13 (D/3) was shown to him he could not explain away the inconsistency between the original & the carbon copy. From comparison of the original with carbon copy, it is evident that the following sentences were subsequently added the original memo, Ex. P. 13.
'kVZ gkQ vkLrhu drbZ jax o isUV [kkdh jax dh gS] o cfu;ku lQsn gS A
The evidence of PW 13 Sarfuddin regarding information given by the respondent which led to recovery of Shirt, Pant, and Baniyan does not inspire confidence. In view of this fact that some advantages were made to the original memo of information, Ex P. 13 by Sarfuddin PW 13, Which did not find place. In the carbon copy of Ex. P. 13 marked Ex D. 3. This fact throws considerable doubt on fairness of the investigation and it could not be safely said that these articles were recovered in consequence of an information furnished by the respondent, while in the police custody.
10 No other point has been argued or pressed before us.
11. In our opinion, the learned Sessions Judge rightly acquitted the respondent of the offences punishable under Section 302 and 201, IPC. A heavy onus lay on the prosecution in an appeal from the acquittal to prove that the order of acquittal is erroneous. The prosecution, in our opinion, could not discharge this onus and we find no compelling circumstances to persuade us to adopt a different view than the one takes by the learned Sessions Judge, Bhilwara, we, therefore, find no force in this appeal filed by the State against the acquittal of respondent Dhannalal and dismiss the same.