V.P. Tyagi, J.
1. Narsingh has filed this appeal against the judgment of the Additional Sessions Judge No. 1, Jodhpur, whereby the appellant has been convicted under Section 302, IPC, and sentenced to death, Criminal Murder Reference No 4 of 1974 has arisen out of this judgment for the confirmation of the death sentence.
2. The prosecution case against Narsingh is that on the night between 15th & 16th of May, 1973, when Abhaysingh was sleeping at his 'dhani' known as 'dhani' of Bharatsingh Jasol in village Bhainsada, the accused inflicted injuries on his person with a sharp edged weapon. In the morning Narsingh came to PW. 5 Prabhu Singh, the real brother of Abhaysingh, and informed him about the condition of Abhaysingh. Prabhusingh went to the place where Abhay Singh was sleeping and found that he was breathing his last. Prabhusingh then went to the village and informed witness Lachmansingh Sarpanch and collected few other persons including Bhartsingh Singh, Sajjan Singh and Ramlal and brought them to the place of occurrence. By the time they reached the 'dhani' of Bharatsingh Jasol, Narsingh was dead. A report was then written at the instance of Lachman Singh (C.W. 1) and was tent with Prabhu Singh (P.W. 5) to the Police Station, Sankada, District Jaisalmer. On receipt of that report P.W. 6 Aman Singh, who was incharge of the police station; started for the place of occurrence, but he reached there late in the night and; therefore, could not start investigation In the morning Aman Singh prepared the inquest report and sent report Ex. P/13 to be registered as the first information report at Police Station, Sankada. The SHO. PW. 10 Shri Murlidhar after registering the case came to the place of occurrence and suspecting Narsingh as the murderer, arrested him After arrest Narsingh furnished an information to the SHO. vide Ex. P/14 regarding the axe the weapon of offence, concealed by aim in the 'bakhar' of his Jhumpa. In pursuance of that information the axe was discovered vide seizure memo Ex. P/6 form the 'bakhat' in the corner of a room belonging to the accused. This axe was found to be blood stained and, therefore, it was sealed and sent for chemical examination. At the time of the arrest a shirt Article 3 was seized from the body of the accused and having found that it contained blood spots, it was also sealed for being sent for chemical examination. Dr. Jitendra Kumar (PW. 1) performed the autopsy of the dead body of Abhaysingh and he found the following external injuries:
(1) Incised wound 3 cm x 5 cm x 3 cm on forehead 4cm above on right eye brow.
(2) Incised wound 1 cm x 5 cm x 3 cm on forehead parellel to wound No. 1.
(3) Incised wound 5 cm x '5 cm x '3 cm on forehead 4 cm from bridge of nose.
(4) Incised wound 15 cm x 3 cm shole depth of skin and bone of skull (brain matter coming out) from lateral angle of right eye brow.
(5) Incised wound 15 cm x 3 cm x whole depth of skin and skull bone on scalp behind right ear (brain matter coming out).
In the opinion of the doctor the cause of death was shock and rupture of membrance of brain and hemorrhage. The injuries, which were found on the body of Abhaysingh. were in the opinion of the doctor sufficient in the ordinary course of nature to cause death The 'Kulhari' (Article 1) and the shirt (Article 3), which were suspected to have blood spots on them, were sent for chemical examination and the result of the Chemical Examiner arid that of the geologist Is that both of them are positive for human blood.
3. After Investigation accused Narsingh was challaned in the Court of Munsif Magistrate, First Class, Pokaran, from where he was sent to the Court of Session to stand his trial for murder of Abhaysingh.
4. The prosecution examined 10 witnesses, but there was no eye witness to the occurrence and, therefore, the prosecution had to rely on circumstantial evidence, which, according to the prosecution, connects the accused with the act of murder. These circumstances are.
(1) The recovery of the blood stained axe in pursuance of the information given by the accused and at his instance.
(2) The seizure of the shirt (Article 3) from the body of the accused at the time of his arrest, which was subsequently found to have human blood on it.
(3) The extra judicial confession alleged to have been made before Lachmansingh (CW. 1) and Ramlal (PW. 3).
5. Lachmansingh could not be examined by the trial court, because he was not produced by the prosecution inspite of the opportunity having been granted by the Court to the prosecuting inspector and, therefore, the Court closed the evidence of the prosecution. But on scrutiny in this Court it was discovered that Lachmansinqh was not properly served to appear before the trial court and, therefore, considering him to be an important witness before whom the accused had made extra judicial confession, he was called as the Court witness in this Court. After the examination of Lachmansingh (CW. 1) the accused was examined and he expressed his desire to produce in the witness box his father Rughsingh, but inspite of the summons having been issued to Rughsingh and given 'dasti' to the learned Counsel for the accused, his presence before the Court could not be secured and, therefore, he could not be examined. Shri Amansingh, who was already examined as PW. 6, was however produced by the defence counsel in the witness box arid his statement was recorded by the Court.
6. The accused denied the charge, but he did not produce any defence before the trial court.
7. The learned trial judge, after scrutinizing the testimony of the persecution witnesses, came to the conclusion that the prosecusion has succeeded to establish all the three circumstances, namely, the recovery of the kulhari (Article 1) on furnishing the information by the accused from the 'bakhari' of his house; the seizure of the shirt (Article 3) from the person of the accused; and the extra judicial confession alleged to have been made by the accused before Lachman Singh (C.W. 1) and Ramlal (P.W. 3) and in the opinion of the learned Judge all these three circumstances lead to the inference that Narsingh was perpetrator of the crime in this case and, therefore, he passed on him the semence or death.
8. Mr. Bajwa was appointed as amicus curiae to represent the accused. He urged on that the three circumstances on which reliance has been placed by the trial court, have not been established by the prosecution and, therefore, on the basis of the circumstantial evidence, which has been brought on the record, the conviction of the accused appellant ordered by the trial court, cannot be sustained. We propose to deal with his arguments in respect of these three circumstances, one by one.
EXTRA JUDICIAL CONFESSION:
9. Bajwa urged that the testimony of Ramlal (P.W. 3) and Lachman singh (C.W. 1), before whom the extra judical confession is said to have been made by the accused, is most unreliable on this point and his argument is that according to the statement of sajjan Singh (PW. 9), all these four persons, namely, Lachman Singh, Bairisal Singh Ramlal & Sajjan Singh, went together to the place of occurrence after bearing from Prabhu Singh (PW. 5) that some body had killed Abheysingh and they remained at the 'dhani' upto 2 p.m They were together at the 'dhani' and they returned from the 'dhani' together and then went to their respective homes in the village. According to Mr Bajwa, if at all extra judicial confession had been made to Lachman Singh and Ramlal by Narsing, then both Bairisal Singh and Sajjan Singh should have immediately known about such a confession, but both these witnesses P.W. 2 Bairisal Singh and P.W. 9 Sajjan Singh have not stated that such a confession was ever made before them by Narsingh.
10. In this connection the statements of Lachman Singh and Ramlal were scrutinized by as very carefully and we find that the versions given by Lachmansingh and Ramlal are not identical. According to Lachmansingh the extra judicial confession was made to him by Narsingh at the time when Aman Singh reached the 'dhani' while Ramlal (PW. 3) states that the approximate time when the extra judical confession was made on enquiry being made by Ramla1, was 12 noon or 1 p.m. It may be recalled that Amansingh reached the 'dhari' (the place of occurrence late at night. There is, therefore, glaring discrepancy about the time of the confession in the statement of these two witnesses. Apart from this discrepancy the motives for making confession, as disclosed by Lachmansingh is totally different from what has been deposed by Ramlal (PW. 3). According to Ramlal (P.W. 3) the accused disclosed that he killed Narsingh, because the deceased, while demanding the price of a camel called bad names to him whereas Lachmansingh (CW. 1) has stated that the accused had told him that the motive for murder was that the deceased bad committed a theft of goat and called bad names him.
11. Apart from these contradictions in the testimony of these two witnesses there is one glaring circumstance which totally belie this fact of extrajudicial confession and it is that Amansingh (PW. 6), who reached the 'dhani' late in the night or the 16th of May,1973, was not informed by these two persons about the confession that was made by the accused to these two witnesses. If this fact of extra judicial confession had been communicated to Amansingh, then there was no reason why he should not have taken care to arrest the accused immediately. The accused was arrested after the arrival of the S.H.O. on 17th May, 1973, at about noon. The exact words in which the confession is said to have been made to the witnesses Lachmansingh (CW. 1) and Ramlal (PW. 3) are not identical, as deposed by these two witnesses. Extra judicial confession is a very week type of evidence which can easily be concocted, but which brings heavy burden on the accused to rebut successfully and, therefore, before accepting such an evidence the court must be quite cautious to scrutinise the evidence to prove the extra judicial confession very minutely The defects pointed out by Mr. Bajwa in the proof to establish the extra judicial confession, are quite weighty and the discrepancies pointed out by him, as discussed above, make this circumstance very doubtful We cannot, therefore, place reliance on the evidence of Lachmansingh (CW. 1) and Ramlal (PW. 3) to prove the extra judicial confession of accused Narsingh.
RECOVERY OF THE AXE (KULHARI Article I)
12. P.W. 10 Murlidhar has proved the information memo Ex. P/14. According to this witness the accused took the police party to his Jhumpa from where he got the 'Kulhari' Article I recovered. This witness, when appeared in the witness box, stated that the 'Kulhari' was taken out from the 'bakhari' by the accused himself. It was found to have blood stained and, therefore, ii was sealed before the witnesses and sent for the chemical examination.
13. The question raised by Mr. Bajwa is vhether this 'kulhari' could be taken as the weapon of offence in this case The argument of Mr Bijva is that the dimenssion of the injuries recorded by Dr. Jitendra Kumar (PW.s 1) show that the injuries Nos. 4 and 6, which were 15 cm long and 3 cm wide, could not be inflicted by a weapon like Article 1, The 'kulhari' (Article 1) was sent for by us and we measured the blade of the 'kulhari', the length of which was found only about 13 cm. It is also of round shape We find great force in the argument of Mr. Bajwa that injuries Nos. 4 and 5 could not be inflicted by this 'kulhari', which had blade only 13 cm, long. Width of the injuries, which was recorded by the doctor, is 3 cm. also creates doubt about the use of this weapon in inflicting these two injuries, The doctor in his examination in chief has, no doubt, stated that Article 1 could cause such injuries, but in his cross examination he has expressed a doubt that two different weapons might have been used to inflict these injuries on the person of the deceased though at the later stage he tried to nullify this part of the statement that two weapons could be used to inflict these injuries. A gap of 3 cm. in our opinion, could not be caused by using 'kulhari' (Article 1) and, therefore, this theory of the prosecution that Abheysingh was killed only by one person and the injuries were inflicted with weapon of offence Article 1 'kulhari' stands demolished It may be noted here that Lachmansingh (CW. 1) was examined by the police duties the course of investigation on 16th May, 1973 and that statement of his Ex. P/6 on the record This statement was recorded by Amansingh (PW. 6). Portion C to D of this statement was proved by Amansingh as correct and it was recorded by him faithfully, as deposed by witness Lachmansingh From this portion of the statement of the witness Lachmansingh it is clear that Lachman Singh and already informed Amansingh that the accused had informed him that the 'kulhari' was hidden by him in his 'Kotha'. It shows that the information regarding the where about of the 'kulhari' (Article 1) had already reached the police authority and, therefore, the disclosure memo Ex. P/14 prepared by the S.H.O. after the information had already reached Amansingh loses all its probative value and on that basis it is difficult for us to hold that the 'kulhari' (Article 1) was recovered as a result of the information supplied by the accused. This Circumstance that the discovery of 'kulhari' (Article 1) was made at the instance of the accused, is not established and it cannot, therefore, be used against the accused.
RECOVERY OF SHIRT (Article 3)
14. Now remains the circumstance of the seizure of the shirt (Article 3) by the S.H.O. from the body of the accused at the time of the arrest. This fact has been tried to be established by the prosecution by bringing only one witness namely the SHO himself in the witness box. There is no other evidence on the record to prove the seizure of the shirt except the statement of PW. 10 Murlidhar, who states.
eSus oj oDrk okdk deht cjken fd;k tks [kwu vkywnk Fkk ftldh fy[kk ih b- ,l- ih- 18 gS A^^
Learned P.P. urged before us that the evidence of PW. 10 Murlidhar on this point has not been correctly and faithfully recorded by the trial court, because at the time when the incident had taken place the S.H.O. was not present on the scene of occurrence and, therefore, the shirt could not have been seized by him at the time of the commission of the crime. The words ^oj oDr fxjrkjh^^, according to learned P.P., should be read as ^oj oDr fxjrkjh^^. i.e., at the time of the arrest It is true that Ex. P 8, which is the memo prepared by the SHO at the time of the seizure of the shirt was seized from the person of the accused when he was arrested, but in his deposition before the court the SHO has not said in so many words that the shirt was recovered from the person of the accused. Even if we take it that ^oj oDr fxjrkjh^^ was not rightly recorded by the trial court and suggested by Mr. Tiwari it should be read as ^oj oDr fxjrkjh^^ even then he cannot accept that the seizure of the shirt has been established in accordance with the Rules of evidence. Ex. P/8 cannot be taken as a substantive piece of evidence. It was the duty of the prosecution to see that the SHO should have deposed before the court that the shirt was actually seized from the person of the accused when he was arrested. Apart from this defect we find that the prosecution had not taken care to bring on the record any evidence to show that the shirt really belonged to the accused and that he was putting on this shirt at the time of the incident.
15. Apart from this infirmity we find from the evidence of the prosecution witnesses that the accused was all through moving with the villagers at the time when they were making searching enquiry about the cause of this incident and when they were trying to find out as to who could be the real culprit who bad committed this murder. None of these witnesses say that the shirt, which the accused was wearing, had blood stains on it Lachmansingh, Bairisal Singh, Ramlal & Sajjansingh, who remained at the 'dhani' for a pretty long time, do not say that they had seen the blood stained shirt on the person of the accused. In view of this infirmity this circumstance of recovery of blood stained shirt from the body of the accused at the time of his arrest loses all its force and it cannot be pressed into service to connect the accused with the crime.
16. From the above discussion the case of the prosecution against the accused becomes doubtful and, therefore, we shall have to give him the benefit of doubt
17. The result is that the appeal is allowed and the conviction and death sentence passed by the trial court, are set aside. The accused is acquitted of the charge under Section 302, IPC and be shall be released forthwith from the Jail, if not required in any other case; The reference, in view of the result of the appeal, also fails and is here by rejected.