K.S. Sidhu, J.
1. The appellant Ram Sahai has been convicted by the learned District Sessions Judge, Gangapur City under Section 302 IPC and sentenced to imprisonment for life.
2. The case of the prosecution which resulted in the conviction and sentence of the appellant as aforementioned may be shortly stated here. On March 8, 1974 at about 5 30 P.M., Ram Narain son of Chuniya, resident of village Hitrapura, lodged a report with the police post Hitrapura that a little earlier he had caught hold of Ram Sahai accused who was on the run after committing this crime. He told the police that on hearing the shouts raised by Gaindiya (PW 4) and Gangadhar (PW 6), he become alert and saw the accused running near his field. He caught hold of the accused and asked him the reason why he was running. The accused confessed to Ram Narain that he had killed Chhotiya, one of his own friends & that he could take Ramnarain and others to the fields where the dead body who lying. The accused led Ram Narain & others to the field of Bhawaniya Regar where a man was lying grievously injured in a corner of the field. Ram Narain identified the injured as his own brother Chhotiya. He found that he was still alive, but was in extremic. He immediately went to the village and brought Iliash Khan, a compounder, from the re. Ram Narain and Iliashs Khan saw Chhotiya breathing his last in their presence. Ram Narain then went to the police post Mitrapura and lodged the aforementioned report there.
3. On investigation, Bhanwar Singh, the Investigation Officer is said to have discovered that Mr. Gaindiya and Gangadhar had seen the accused sitting on the chest of Chhotiya deceased with a knife in his hand. On seeing Gaindiya and Gangadhar, the accused ran away, but was intercepted and caught by PW Ram Narain near his field. Bhanwar Singh claims to have recovered the blood stained knife, Article 9, lying buried underground in consequence of the information supplied by the accused.
4. The prosecution produced threefold evidence in support of its case. First, PWs Gangadhar and Gaindiya were examined as eye witnesses of the occurrence. Secondly, PWs Gangadhar, Gaindiya and Ram Narain are said to have heard the accused making a confession that he had killed Chhotiya. Lastly, reliance was placed on the recovery of the blood stained knife, Article 9, at the instance of the accused.
5. The accused denied the allegations made against him He did not produce any evidence in defence.
6. The learned trial Judge has relied on the aforementioned evidence to hold the accused guilty of the offence of murder of Chhotiya.
7. Mr. Gupta, learned Counsel for the appellant, has taken us through the statements of PWs Gaindiya and Gangadhar, the alleged eye witnesses of the occurrence, and pointed out that they could not have possibly seen the occurrence and that their evidence is inconsistent and unreliable. We are inclined to agree. It will be seen that PW Gaindiya had to admit in cross examination that, in fact, he had not witnessed the occurrence & that he had given hear-say evidence on the basis of what his brother Gangadhar (PW 6) told him about it.
8. After giving our careful consideration to the deposition of Gangadhar (PW6), we are convinced that even he had not witnessed the occurrence. He made a contradictory statement in respect of one of the most material particulars in the case. He stated in the first instance that on hearing hue and cry, he went from his field to the dol of that field and saw from there that a man was sitting on the chest of another man with a knife in his hand He categorically stated in this context that the occurrence was taking place in 'Rungti Ka Rasta'. A little later in his cross examination, he contradicted himself' & stated that he saw the culprit with a knife in his hand sitting on the chest of another man in a corner of Bhawania Regar's field Now, if both Gandiya and Gangadhar had been present together in their field and it on seeing the accused 'tunning away both of them had chased him together, then Gaindiya would not have told the Court that he had not seen any such thing as is alleged & that he was giving evidence merely on the basis of what Gangadhar told him about it Gaindiya is apparently an honest witness, relatively speaking. He frankly admitted that he had nor seen anything. As will be presently seen, Gangadhar had also not seen a any thing, but he was not prepared to admit it.
9. PW Ram Narain stated that PWs Gangadhar & Gaindiya arrived only after he had already struck a lathi blow to the accused and obtained the so-called confession from him. If so, it is difficult to believe the story that PWs Gangadhar and Gaindiya had chased the accused and that PW Ram Narain had intercepted him on hearing the out-cries of the chasing men. The fact that Gangadhar and Gaindiya arrived in the field of Ram Narara only after the latter had already interrogated the accused and obtained the confession from him already indicates that the alleged interception could not have been made on hearing the shouts of Gangadhar and Gdindiya.
10. Another circumstance which clearly indicates that Gangadhar had not seen the commission of this crime consists of the remarks uttered by Gangadhar in the presence of Ram Narain. Ram Narain has testified that when the accused told Gangadhar chat he had killed Chhotiya with a stone, Gangadhar expressed surprise stating how could one kill with a stone. Had Gangadhar seen the accused killing Chhotiya with a knife, he would have asserted this fact and thus refuted the accused's alleged confession that he had killed Chhotiya with a knife. Ram Narain made it clear in this behalf that ail of them had told the police that the accused is saying that he had killed Chhotiya with a stone. If the witness had seen the accused killing Chhotiya with a knife Ram Narain would not have felt the necessity of giving the police the version of the accused. He would have in that case, straight way told the police that the accused had been seen killing Chhotiva with a knife. We are, therefore, not prepared to believe the testimony of Gangadhar either.
11. This brings us to the so-called extra judicial confession. Ram Narain (PW 1), the brother of the deceased, who lodged the FIR, mentioned therein that the accused had confessed before him immediately after he had caught him, that he had killed Chhotiya one of his own friends, and that his dead body was lying in the field which he could point out. Thereafter, in the trial, Ram Narain testified that the accused had told him that he had killed a man, and that, even on a specific question by him, he was unable to name the man killed. He added in this context that the accused had rather told him that he does not know the name of the man whom he had killed. Under the circumstances, we are far from satisfied that the accused had made any confession to Ram Narain or, for that matter, to any one else.
12. Turning now to the third plank of the prosecution evidence, the Investigating Officer has tried to introduce the so-called recovery of the blood stained knife at the instance of the accused. This recovery is not believable. If Gangadhar and Gaindia are to be believed, the accused who was sitting on she chest of Chhotiya deceased immediately ran away from there on seeing them. He is said to have been caught by Ram Narain before he had any time to bury the blood stained knife Despite this, the Investigating Officer would have us believe that the accused had buried the weapon of offence underground and that he made a disclosure statement during the investigation as a consequence of which, this weapon was recovered by him We have no hesitation in rejecting the testimony of PW Bhaawar Singh, the Investigating Officer in that behalf.
13. The learned Public Prosecutor then made a somewhat halfhearted argument that the conduct of the accused in running away from the scene of the occurrence is incriminatory. This argument is wholly devoid of force. There is no satisfactory evidence to prove that the accused was seen running away from the scene of the crime. No argument can therefore, be entertained regarding the conduct of the accused.
14. There is no other evidence to connect the accused with this crime.
15. In conclusion, we held that the prosecution has failed to prove that the accused is guilty of the charge of murder framed against him. We would, therefore, accept this appeal, set aside the order of conviction and sentence and instead acquit the accused. He is in custody. He shall be released forthwith if not required in any other case.