Kanta Bhatnagar, J.
1. Appellant Mal Singh had been tried for the offence under Section 302 I.P.C by the learned Sessions Judge, Sri Ganganagar, and convicted for that offence and sentenced to imprisonment for life aggrieved by his conviction and sentence, the appellant has prefe(sic) the appeal.
2. Briefly stated the facts of the case giving rise to the trial and conviction of the appellant are as under : Nihal Singh, deceased, resident of village Karanpur had taken his dinner at about 8 or 9 P M. on 15-5-75 and there after went to sleep on a cot outside his he are on a raised platform. On the next morning when he was not visible his family members tried to trace him c(sic) Vidhya PW 3, his daughter, went towards the house of Mahendra Singh son of the deceased aid found the dead body of her father Nihal Singh in a room. She came to the apartment of the house In which she along with her parents and brothers Amar Singh and Pritamsingh was residing and informed about the dead body of her father lying in the room of the house belonging to Mahendrasingh, father of the appellant Mal Singh. Gurnam Kaur wife of the deceased & his so a Amar Singh and daughter Surjeetkaur went to the room where the dead body was lying and found Nihal Singh lying there injured and dead. Pritamsingh another son of Nihal Singh who had gone out to some other village on the previous day and, Mahendra Singh yet another son of the deceased residing at Chak No. 47F, were sent for. Thereafter Amar Singh went to Police Station, Shri Karanpur, on 16-5-74 and lodged the report at 7.15 P.M. with PW 14 Murhohar S.H.O. The S.H.O reduced the report into writing which is Ex. P 1 The S.H.O went to the site and prepared the Panchnama on the dead body of Nihal Singh and got the photo taken. He inspected the site and prepared the site memo and the site plan. He recovered one lock lying upon a water reservoir lying inside the house of Mahendra Singh and another lock from the door of the room near the place where the dead body was lying. He sent requisition for post mortem examination of the dead body of Nihal Singh to the Primary Health Centre, Karanpur, and Dr. Shiv Shanker PW 12 Incharge of that Primary Health Centre conducted the autopsy ever the dead body at 11 A.M. on 16-5-74. The doctor noted the following injuries on the dead body.
1. Incised wound 2'xl/4'x skin deep on the front of medial aspect of the left leg in the middle directed transversely.
2. Abrasion 1 1/2' x 1' on the front of the left knee.
3. Abrasion 1' x 3/4' on the front of the right knee.
4. Incised wound 8' x 1/2' skin deep on the posteric-medical aspect of the left forearm in the upper third directed outwards and downwards.
5. Punctured wound 3/4 'xl/4'x Chest cavity deep on the left side of the chest 2' above the nipple and l/2'medial to it, directed downwards and inwards.
6. Incised wound 1/2' x 1/4' bone deep on the left side of the chest 3' medial to the left nipple directed transversely.
7. Incised wound 1/2' x 1/4' bone deep in the left side of the chest 1 1/2' medial and 1 1/2' below the left tipple directed transversely.
8. Incised wound 1/2' x 1/4' bone deep on the left side of the chest 5' below the left nipple directed downwards and inwards.
9. Incised wound 1/2 'xl/4'x bone deep on the left zygomatic region directed downwards.
10. Incised wound 1/2 'xl/4' on the left side of the cheek 1' lateral and 1/2' below the left nose directed downwards and outwards.
11. Incised wound 1/2 'x 1/4 'x 1/4 ' on the right side of the upper lip directed downwards.
12 Punctured wound 3/4 'xl/4'x chest cavity deep on the left side of the back of the chest just lateral to the medial border of the scapula 11/2*' below the spine directed downwards and inwards
13. Punctured wound 3/4 'x l/4'x chest cavity deep on the left side of the chest 21/2' below injury No. 9 directed transversely.
14 Punctured wound 3/4'' xl/4'x chest cavity deep on the right side of the chest just below the inferior angle of the scapula directed downwards and medially.
3. The condition of the body was as under : Rigor morits present, mouth semi open, blood in nostrils, hands clinched;
4. On dissection of the body following observations were made by the doctor :
Right lung was punctured at three places. Heart was empty. Stomach contained semi digested food. Small intestines contained semi digested food and gas Large intestine contained faceal matter.
Bladder contained some urine.
In the opinion of the doctor, the came of death was internal injury in the chest cavity and S.H.Ock due to injury to the lung resulting from injuries of the chest cavity. The post mortem examination report h Ex. P 20
5. On 18-5-74 Mal Singh appellant was arrested by the S.H.O Murli Dhar. After his arrest the appellant furnished information to the S.H.O for getting recovered the cycle lying in his S.H.O (sic) at Karanpur The S.H.O took him to that S.H.Op and after opening the bolt of the snap the appellant got recovered the cycle lying inside the S.H.O (sic). The S.H.O also took in his possession the bolt and the lock hanging thereon suspecting it to be stained with blood. On the same day the appellant furnished information to the S.H.O that he had burnt his pants and shirt in the herth of his house at Chak No 47F and was prepared to get those burnt clothes recovered. In pursuance of that information the S.H.O recovered buttons and hooks from the ash lying in the herth of the house of Mahendra Singh, father of the appellant. Oa 23-5-74 while under police custody the appellant furnished information for getting recovered the iron keys of the two locks taken in possession by the police and in pursuance of that information got the keys recovered from his residential house at Chak No.47F. Oa 28-5-74 the appellant furnished information to the S.H.O for getting the dagger recovered from beneath the heap of wastage lying at his house at Chak No 47F and on the next day i.e. 29-5-74 got the dagger recovered at his instance. The dagger was suspected to have blood stains on it. All the articles recovered by the S.H.O during the course of investigation were sealed by him then and there and were subsequently sent for chemical analysis, The report of the Chemical Analysis Ex P. 31 and that of the Serolgist is Ex P 32
6. After completion of the necessary investigation charge sheet against the appellant was filed in the court of Munsif Magistrate, Karanpur. The learned Magistrate, finding a prima facie case exclusively triable by the court of Sessions Judge, committed the appellant to the court of Sessions, Sri Ganganagar, to stand his trial. The learned Sessions Judge charge sheeted the appellant for the off nee under Section 30 I.P.C, and recorded t is plea He denied the indictment and claimed to be (sic)d. To substantiate its case prosecution examined 14 witnesses in all. In his statement under Section 313 Gr. CP. the appellant totally denied the allegations levelled against him and stated he had gone to village Mirjawala to bring his material grand mother and en return to Karanpur he came to know that some body had murdered his grand father and he thereafter joined the funeral The learned Sessions Judge placed reliance on the prosecution evidence and held the accused guilty for the offence of murder and passed the judgment under appeal.
7 The learned Counsel for the appellant has strenuously contended that, in the absence of any direct evidence against the appellant and the circumstantial evidence not being of convicting nature, the conviction of the appellant cannot be said to be justified It to has been vehemently argued by him that the allegation about the appellant absconding for three days and his having enmily with his grand father is not substantiated by the record. It has also been contended that there is no cogent and convincing evidence to substantiate the prosecution case that the room, in which the dead body of Nihal Singh was found, was in the exclusive possession of Mal Singh. About the recovery of the lock and the chain suspected to be stained with blood from the S.H.O (sic) of the appellant at Karanpur the submission of the learned coun(sic)l is that the mo(sic)birs to the recovery memo have been declared hostile by the prosecution and there remains the testimony of the police office-alone which S.H.O (sic)uld not have been relied upon in view of the fact that the S H O has lied upon the point of recovery of another lock from the house of Mahendra Singh i.e. his contention is that the lock was cut and then recovered while the lock produced in the court was intact.
8 The learned Public Prosecutor, controverting these arguments, submitted that the circumstantial evidence in the case makes a complete chain against the appellant According to him the very fact that the deceased was found in the room in the possession of the appellant and the recovery of the blood stained lock and the chain from the S.H.O p of the appellant S.H.O ws that it was he who after committing the murder m(sic)mt have gone to the S.H.O p and thereby causing blood stains on the lock and the chain of the S.H.O p It has been emphasized that there is the evidence of Anmarsingh and Surjeet Kaur to the effect that the appellant was not happy with his grand father because he had refused to give him his share in the . agricultural land and a few months prior to this incident he had give a beating to Nihal Singh. It has been urged by the learned Public Procecutor that the appellant' going to the house of Nihal Singh at 8 or 9 in the night of the occurrence and taking water there and thereafter going towards the house of Mahendra Singh here the (appelant) used to sleep is a strong circumstance to connect the appellant with tie commission of the crime.
9. We heard the rival contentions and gave our anxious consideration to the material on record.
10. At the very out set we may observe that there is no direct evidence against the appellant and the prosecution case binges on circumstantial evidence only.
11. The first circumstances brought on record against the appellant is his having inimical relations with his grand-father Nihal Singh PW 1 Amar Singh has stated that 5 or 6 months prior to the death of his father he was informed by him that Mal Singh had gone to give him a beating with a sela on the roof PW 2 Gurnamkaur, wife of deceased Nihal Singh, has stated that about a month prior to the murder of her husband there was a quarrel between her husband and Mal Singh and Nihal Singh had slapped Mal Singh, whereupon, Mal Singh threw a challenge that be would take revenge from him, Whereas Amar Singh had stated about this previous quarrel to have occurred 5 or 6 months prior to the incident Garnamkaur has stated about the period being only a month before the incident of murder. Amar Singh had admitted that he was not present at the time of the alleged quarrel between his father and the appellant. Gurnamkaur has not stated that any attempt was ever made by Mal Singh to give a beating to Nihal Singh with Sala or any other weapon. Even according to the prosecution witnesses, the appellant used to visit the house of his grand father and had even gone there in the night of the occurrence to take water. We therefore do not feel persuaded to accept the cessation of the learned Public Prosecutor that there was any motive for the appellant to commit the murder of Nihal Singh.
12. Another circumstance brought on record against the appellant is his going to the house of Nihal Singh at about 8 or 9 P.M. on 15-5-74, taking water there and inquiring about Pritamsingh and thereafter going towards the house of Mahendra Singh in which the appellant used to sleep. Gurnamkaur has stated that Mal Singh had gone to her house at 8. 9 P M and asked about Pritamsingh and on being informed that he bad gone to Chak No. 48F he further inquired whether he would return that night or not The witness stated that on her telling Mal Singh that Pritamsingh will not return that night appellant went away to his house after taking water PW 3 Surjeetkaur and PW 4 Vidhya have also stated about Mal Singh taking water as their house in the night and the presence of Nihal Singh and Amar Singh there at the time. In her cross examination attention of Gurnamkaur was drawn to her police Statement Ex D 1 where she had not stated about the appellant's going to her house and taking water there in the night. The witness could not explain the reason for that omission. Surjeetkaur has stated that the appellant went to her house and had inquired about the whereabouts of Pritamsingh Attention was drawn to her police statement Ex. D 2 where this fact is missing and the only explanation given by the witness is that she had so stated and cannot say why the police his not written it. Similarly, attention of PW 4 Vidhya was also drawn to her police statement Ex D. where the fact of Mal Singh's going to her house and taking water in the night does not f(sic)id place and the witness could not explain the reason for the omission. G urnamkaur has stated that Surjeetkaur had told her that Mal Singh was walking on the roof in the night. From this version the learned Pablic Prosecutor has tried to emphasize that after going from the house of Nihal Singh the appellant was there in the house of Mahendra Singh, in the room of which the deadbodv of Nihal Singh was recovered. The argument has no force because Gurnamkaur had not stated this fact in her statement Ex. D 1 and could not explain the reason, even when her attention was drawn to her police statement. Sujeetkaur had also not supported Gurnamkaur on this point and has stated that she had not seen Mal Singh after he had gone to from her house after taking water in the night. According to her, she had gone to sleep and had not seen Mal Singh on the roof of his house It is p(sic)inmt to note that three witnesses, namely; Gurnam Kaur, Surjeetkaur and Vidhya devi have stated about the presence of Amar Singh at the time when Mal Singh is alleged to have gone to their house for taking water, but Amar Singh has not stated anything in that connection. It is also noteworthy that Gurnamkaur has stated that Surjeetkaur had told about Mal Singh having been seen on his roof in the night, in the presence of Amar singh while the statement of Amar Singh is that his mother and sister had not told him anything about this occurrence prior to his going to lodge the report. With this type of evidence before us we have no hesitation to hold . that the circumstance about the appellant going to the house of Nihal Singh in the night of the occurrence and taking water appears to be an after thought. The reason for this opinion of ours is that absence of this fact in the police statement of the witnesses who professed to be present in the house at the time. Even assuming this part of the prosecution case to be true, it is not sufficient to hold the accused guilty unless it is further proved that the accused was present there in the house where the incident is said to have taken place in the night. The learned P.P. could not point out any evidence to that effect.
13. The most important circumstances against the accused on which prosecution has placed reliance is the dead body of Nihal singh being found in the room of the house of Mahendra Singh where Mal Singh is said to be living. In order to arrive at a conclusion whether this fact can connect the accused with the commission of the crime, it will have to be looked into whether prosecution has succeeded in proving appellant's exclusive possession of that house. The prosecution witnesses i.e. the family members of the deceased have stated about the house belonging to Mahendra Singh father of Mal Singh appellant and the latter sleeping there. None of them has stated that he was regularly living in that house. The deposition rather is that he very often used to sleep there. It is evidence from the statement of Amar Singh that Pritamsingh used to sleep on the roof of that house. This is the admitted position that the room in which the dead body of Nihal Singh was found had two doors, one opening towards the south on the road and the other inside the house facing the north. At the time when the dead body was seen the door towards the road was bolted from inside. The door towards the north had no shutters. Amar Singh had stated that in the morning when his sister Vidhya Devi had gone to the room of Mal Singh to broom it she saw Nihal Singh lying dead with knife injuries on his person and bleeding. Vidhya Devi has also stated that when Nihal Singh was not found on the cot out side the house of the platform he was searched and when she went towards the house of Mahendra Singh she saw the dead body of her father lying in the room. This clearly S.H.Ows that the main door also used to remain open and the house was accessible to all. This being the position, it cannot be said that the room in which the dead body was found was in the exclusive possession of the appellant so as to suggest that he and none else could have committed the crime. This circumstance is therefore of no help to the prosecution to bring the guilt home against the appellant.
14. Yet another circumstance relied on by the prosecution is the recovery of blood stained chain and the lock from the S.H.Op of the appellant at Karanpur. The learned P.P. has laboured much to convince us that the appellant must have gone to that S.H.Op after committing the murder and must have opened the lock and door causing blood on the same and as the blood on the lock has been detected to be human blood by the Serologist the crime against the appellant stands duly proved by this circumstance.
15. PW 9 Jeet Singh and PW 10 Amar Singh the two motbirs of the recovery of the chain and the lock have been declared hostile by the prosecution and therefor, this recovery rests only on the statement of the investigating officer Murli Dhar. It is relevant to note that the S.H.O has stated that the lock was hanging open on the door when he along with the appellant reached there. This being the position, it cannot be said that it was the appellant who had hung the opened lock in the bolt. This recovery is of 18-5-74 after the lapse of 2 days of the occurrence. We, therefore, do not consider it to be an incriminating circumstance against the appellant.
16. Another circumstantial evidence against the appellant is the recovery of buttons and hooks from the ash in the hearth of the house of his father Mahendra Singh at Chak No. 47 F. The hooks and buttons according to prosecution, were of the shirt and pants of the appellant. The house where from these buttons and hooks are said to have been recovered belongs to Mahendra Singh where he and his family members reside. No piece of any burnt cloth has been recovered from near the hearth. The occurrence relates to intervening night of 15th and 16th May, 1974 and this recovery of the buttons and the hooks is of 19-5-74. The herth must have been used all those days. Otherwise also the hooks and the buttons, even if recovered, do not connect the accused with the commission of the crime because this is nowhere the prosecution case that there was any blood on them. Similarly, the allegation about the recovery of Kachha from the person of the accused suspected to be stained with blood and the Katar (dagger) said to have been recovered in pursuance of the information given by the appellant is no incriminating circumstance against him because these articles were not sent to the serologist. The learned trial Judge has also not placed any reliance on this circumstance against the appellant and in our opinion rightly so.
17. So far as the appellant's absconsion is concerned, we need not think much because the prosecution witnesses Amar Singh, Surjeet Kaur and Vidhya Devi have deposed that when Nihal Singh was being taken for funeral, Mal Singh had reached there,. According to Surjeet Kaur, he was then taken by the police. In case the appellant was present on 16-5-74 and the police had reached there and still he was not apprehended that day, he cannot be said to be at fault. This also strengthens the argument of the learned Counsel for the appellant that on 16-5-74 there was no material against the appellant. In view of our discussion above, we are inclined to hold that prosecution could not substantiate its case against the appellant beyond reasonable doubt. We, therefore, find no justification in the conviction of the appellant for the murder of Nihal Singh.
18. Consequently, we accept the appeal, set aside the conviction and sentence passed by the Sessions Judge, Sri Ganganagar against the appellant and acquit him of the offence under Section 302 I.P.C. The appellant is in jail. He shall be set at liberty forthwith if not required in any other case.