1. The learned Sessions Judge, Bhilwara has convicted the accused appellant Panna under Section 302 I.P.C. and has sentenced him to undergo imprisonment for life.
2. The case of the prosecution is that the accused Panna and Saman-der had a common well in village Mandalgarh. A few days prior to the occurrence which is said to have been taken place on May 22, 1975, deceased Samander and the accused had quarrelled over some matter. On the day of the incident Ladu P.W. 2 who is the real brother of deceased Samander saw that Samander deceased and the accused were on the well. After about an hour he heard that Samander is lying dead. A report was lodged in the police station by one Geesa P.W. 3 but the name of the accused was not mentioned therein because having come to know that Samander was lying injured, Geesa immediately went to the police station. The accused was suspected of having committed the offence and was arrested His clothes were found to be blood stained and were seized and sealed. After his arrest on a discovery statement made by the accused under Section 27 of the Indian Evidence Act, an axe alleged to be the weapon of offence was recovered. A charge under Section 302 I.P.C. was framed against the accused and he pleaded not guilty and claimed to be tried. The prosecution examined six witnesses and the accused was examined under Section 313 Cr. P.C. He stands on a bare plea of denial.
3. The learned Sessions Judge placing reliance on the evidence of Ladu who gave evidence about the fact that the deceased was last seen in the company of the accused, on the recovery of blood stained clothes, on the recovery of the blood stained axe, convicted and sentenced the accused as aforesaid.
4. We have heard learned Counsel and the learned Public Prosecutor and have gone through the material on record. So far as the recovery of blood stained clothes and the axe is concerned, it may be stated at the very outset that neither the clothes nor the axe were sent to the Chemical Examiner and in the absence of the Report of the Chemical Examine & the Serologist, it cannot be said that there was human blood on them. Thus the recovery of clothes and the axe cannot be said to be incriminating evidence against the accused appellant. There remains only the ft dement of Ladu P.W. 2 who is the real brother of deceased Samander. He has stated that before half an hour he had seen the accused and the deceased together. The accused and the deceased lived nearby and it has been admitted by Ladu P.W. 2 that the accused was always seen on the well. It has also been admitted by Ladu that when he and others reached the spot, the accused was in his hut. The conduct of the accused that he was present in the hut immediately after the occurrence is not consistent with that of a guilty man. Thus we are unable to say on the statement of Ladu that the accused was last seen with the deceased. That apart the only evidence that the accused was last seen in the company of the deceased, in the facts and circumstances of the case, does not connect the accused with the crime.
5. In the result, we allow the appeal, set aside the judgment under which the accused has been convicted and sentenced. We acquit the accused of the charge under Section 302 I.P.C. The accused is in jail. He shall be set at liberty, forthwith if not wanted in any other case.