1. This appeal is directed against the judgment dated 28th August, 1979 passed by learned Additional Sessions Judge in Sessions Case No. 102/75/14/76. The prosecution case unfolded during the trial is that on 5th July, 1975, PW 1 Babu lodged the FIR at Police Station Hindaun City. In the FIR, it was alleged that Smt. Bhoori has been murdered and it is suspected that Dhan Singh appellant may be the person who committed the murder. Investigation was conducted by the Investigating Officer and charge-sheet was submitted before the court of Judicial Magistrate. The case was committed to the court of Sessions Judge. It is alleged that Mst. Bhoori was sleeping in the Chowk of her house in intervening night of 4th and 5th July, 1975.
2. On behalf of the prosecution, PW 1 Babu, PW 2 Mst. Tasviri, PW 3 Rameshwar, PW 4 Leelaram, PW 5 Dr. Surajlal, PW 6 Revati Prasad, PW 7 Subuddhi and PW 8 Mishrilal have been examined. The Sessions Judge relied upon the testimony of PW 1 Babu, PW 2 Mst. Tasviri and PW 3 Rameshwar.
3. PW 2 Mst. Tasviri has stated that she saw the accused running away with a spade in his hand. PW 1 Babu and PW 3 Rameshwar have stated that they were informed just after the occurrence by Mst. Tasviri, PW 2 that Dhan Singh is the culprit and Dhan Singh had committed the murder of Mst. Bhoori. PW 5 Dr. Suraj Lal has conducted the post mortem of the deceased Mst. Bhoori wife of Girraj. He found 7 injuries on the person of the deceased. All the injuries are incised wounds. The learned Sessions Judge has also relied upon the discovery and recovery of spade. On the spade, blood was found.
4. Mr. Gupta, appearing on behalf of the appellant has assailed the findings of the court below and submitted that there was no motive for the commission of the offence, and the court below has wrongly appreciated the evidence relating to motive.
5. PW 1 Babu the son of the deceased has stated in the examination in chief that there was a dispute about the flow of water through the drainage (Dole) between Girraj husband of the deceased and the accused. However, in his cross-examination, this witness has stated that accused is his real uncle and his father and his uncle, the present appellant were living in the same Guwadi. He has further stated that wife of Dhansingh has expired before 7 or 8 years and Dhan Singh is having 2 children. He has further stated that there was a joint kitchen of the accused and his father, and deceased Mst. Bhoori being the aunt, was not only looking after the children, but was unkeeping them. He has further invited our attention to the statement of PW 2 Mst. Tasviri who has stated in her statement that there was no dispute between her father and her maternal uncle. PW 3 Rameshwar has sttated that the relation of his father and his uncle were cordial. However, in the examination in chief, Rameshwar has stated that there was a dispute about the water but he has further stated that his father also used to sleep in the hut of the appellant.
6. From the appreciation of the evidence, it seems that there might have been some heart-burning about the use of the water but both the brothers were living together and the complainant used to upkeep the children of the present-appellant. Thus, the prosecution has failed to prove that there was an immediate motive for the commission of the murder of Mst. Bhoori. The evidence of motive may be relevant but it is necessary and the prosecution may prove the case independently. However, the motive is relevant for the purpose of appreciating the evidence and also for the purpose of knowing the cause of the incident and for this purpose, evidence is having some relevance to arrive at correct conclusion. In the instant case, the prosecution has failed to establish that there was any motive for the commission of the crime and for this reason, the evidence relating to the motive cannot be taken into consideration for the purpose of appreciation of the evidence.
7. Mr. Gupta has submitted that there is no eye witness in the instant case. He has invited our attention to the statement of Mst. Tasviri PW 2 who in her examination in chief has stated that Pappu, a child about 8 to 10 months cried. She got up and she saw the accused running with spade in his hand. She has further stated that she saw the accused running in the light of a latern as the night was a dark night. She has further stated that she cried and thereupon her brother Babu, Rameshwar and other persons of the village assembled. She has further deposed that she told that villagers as well as to his brothers that uncle Dhan Singh present appellant has ran away after committing the murder of Mst. Bhoori. She has further deposed that she told them that she saw the accused appellant Dhansingh running after the commission of the crime.
8. Mr. Gupta learned Counsel for the appellant has submitted that this evidence has been introduced at later stage to make out a case of prosecution as the prosecution was in the dark about the person who has committed the crime. Mr. Gupta, first of all invited our attention to Ex. P 5 FIR. This FIR has been lodged by PW 1 Babu the son of the deceased and brother of PW 2 Mst. Tasviri. In this FIR; only it has been mentioned that it is suspected that Dhan Singh may be the accused. Mr. Gupta submits that PW 2 has stated that she told to Rameshwar and Babu that she saw the accused Dhan Singh running away with the spade in his hand. Mr. Gupta further submits that this version which was given according to the prosecution by Mst. Tasviri PW 2, Babu and Rameshwar in the night, must find place in the FIR lodged by Babu who is the son of the deceased and he submits that for this reason, it should be presumed that the inclusion of the theory that Mst. Tasviri PW 2 saw the accused appellant running away, is an after thought He his further invited our attention to the statement of Mst. Tasviri, PW 2 and submitted that PW 2 Mst. Tasviri has stated in her statement that she saw the accused appellant running away in the light of a lantern as the night was a dark night. However, she has been confronted with her police statement Ex. D 2. In her police statement Ex. D-2, PW 2 Mst. Tasviri has stated that at about 12 Pappu cried, she got up and saw uncle Dhan Singh running away. She went into the house and brought the lantern and saw her mother. Then Mr. Gupta submits that the theory of lantern is also an after thought and inconsistent with the statement given in the report PW 2 Mst. Tasviri in her statement in the court, has stated, that she saw the accused running in the light of the lantern. It has also come on record that the accused was running away from the Chowk towards the road and the accused has never entered the house. It has also come on record that PW 2 Mst. Tasviri saw the accused from the Chowk and the lantern was inside the house. In such circumstances, seeing the accused running away in the light of the lantern is not possible and is not probable according to Mr. Gupta.
9. Mr. Gupta has further assailed the theory of seeing the accused running away, taking into consideration Ex. P. 2 site plan. In the site plan Ex. P. 2 the house of the deceased Bhoori, is shown by putting mark 'D' and the place, where it is alleged Bhuri was lying, has been shown by putting the mark 'E' and thereafter there is a Chak 'F' on the southern side from the house. On the west side, there is a road after the house of the deceased and on the east side, there is house of one Khati. Mr. Gupta submits that there are different ways of going towards the road and if it is considered that the prosecution was in know of the fact that the accused had ran away then, the prosecution might have noted the way of running away in the site plan Ex. P. 2. He further stresses this point by saying that this site plan has been prepared at the instance of Babu Lal, the son of the deceased and brother of PW 2 Mst. Tasviri.
10. The learned Public Prosecutor submits that it was not necessary to mention the fact of running away in the FIR. He further submits that the probability cannot be ruled out that the son of the deceased went to lodge the FIR and he was not in a balanced mind as he lost his mother and was unable to give details in the FIR. He submits that the statement of PW 1 Babu has been recorded by the police and in that statement, the fact of running away has been mentioned. As far as the statement Under Section 161 is concerned, it is not admissible in evidence. The learned Public Prosecutor also submits that the statements of PW 1 Babu and PW 3 Rameshwar corroborate the statement of PW 2 Mst. Tasviri, Mst. Tasviri PW 2 has deposed to them just after the occurrence and the cumulative effect of all the three statements would be that this fact stands proved as according to Mr. Sharma PW 2 Mst. Tasviri saw the accused appellant running away.
11. We have given our thoughtful consideration to the submissions made by both the parties. Mere omission in the FIR about the detail of seeing the accused running away after the commission of the crime may some time be not very important, if other evidence is available on record. However, when we are examining the solitary testimony of Mst. Tasviri PW 2 about this fact of running away and seeing the appellant running away, we will have to examine it with great caution. In the instant case, Ex. P. 1 is the written report submitted by Babu to the Investigating Officer and he has stated in the FIR that they were having suspicion of Dhan Singh their uncle. It is not understandable why PW 2 has not mentioned this fact that PW 2 saw the accused appellant running away with a spade in his hand. Mst. Tasviri, PW 2 has deposed in the court that she told just after the occurrence in the night PW 1 Babu and PW 3 Rameshwar that she saw the appellant running away with a spade in his hand, after the commission of the crime. In the instant case, there is no eye witness and this is a very important piece of evidence and omission of this detail in the FIR lodged by Babu creates a suspicion specially in the circumstances that Babu had the knowledge about this fact in the night according to the prosecution case. However, to appreciate this point, we have taken into consideration the Inquest Report, Ex. P 3. We have asked the Public Prosecutor and the counsel for the appellant to read Ex. P. 3 to us and whether in the inquest report this fact has been mentioned or not. We have taken the assistance of the learned members of the Bar as we were unable to read the hand writing Ex. P. 3 inquest report. Both of them have submitted that this fact has not been mentioned in the inquest report and this further creates a suspicion in the mind of the court why this very important fact has not been mentioned in the inquest report, specially the name of the accused appellant has also not been mentioned as the author of the crime. In the inquest report, only it has been mentioned that there is a suspicion against Dhan Singh. This also goes to show that the probability that the appellant might have not been named at the time of the submission of the FIR Ex. P. I and the preparation of inquest report Ex. P. 3, cannot be ruled out. Apart from this, we have also taken into consideration the site plan Ex. P. 2 to find out whether the way towards which the accused appellant ran away has been mentioned but this fact also is missing in the site plan.
12. For the reasons mentioned above, we are of the view that this part of the testimony of PW 2 Mst. Tasviri that she saw the appellant running away after the commission of the crime, cannot be accepted.
13. Now, there remains the third part regarding the recovery of spade. Ex. P. 14 is the discovery memo and information given by the appellant has been mentioned in the memo Ex. P. 14. SHO Mishrilal PW 8 has recorded the information given by the accused appellant in this memo. This is dated 21st August, 1975. Vide Ex. P. 13, the spade has also been recovered and Dhoti has also been recovered on 21st August 1975 in consequence of the information given by the accused appellant vide Ex. P. 14, Ex. P. 15 is the site memo from where the Dhoti and spade has been recovered. Mr. Gupta, has pointed out that the accused was arrested on 19-10-1975 and has invited our attention to Ex. P. 16 in which the date of arrest of the accused has been shown as 19-10-1975. The learned Public Prosecutor states that in Ex. P 16 the date of arrest has been shown as 19-10-1975 and this may be because of the mistake somewhere and instead of writting 19-8-1975 it may be possible that the Investigating Officer might have committed mistake. To satisfy ourselves, we wanted the police diary and wanted to look into it for the purpose of satisfaction. Though the police diary cannot be used in evidence but it can be used Under Section 172 Cr.PC for the purpose of satisfaction of the court. Generally, the police diary should be made available by the public prosecutor and he should have the police diary if it is not submitted in the court, but the practice is otherwise. The police diaries are generally not available with the Public Prosecutor and the Public Prosecutors generally submit that they are helpless in the matter as they are not getting the record from the Public Prosecutors in the lower courts and this fact has also been referred to the Government. Mr. Sharma submitted after the dictation of this part of the judgment, that he may be allowed to call for the diary. The experience of the court is that the Government is not taking steps for the assistance of the court in such old cases. The case is pending since 1976 before this court and if the diary is not available today, how it can be expected that it will be available in a day or two. This type of request is generally made and ultimate result is that after giving the time also, generally the Public Prosecutors fail to submit the diary and submit that diary has not been received. It is for the State consider the matter to take appropriate action in the matter. We expect from the State Government that some assistance should be given to the Public Prosecutors who are representing the State Government in the High Court to deal with the problem and should see that the cause of the State does not suffer only because of the negligence or omission on the part of the officers concerned. The arrest memo shows that the accused was arrested on 19-10-1975. Thus, the position becomes that Ex. P. 14 information memo/discovery memo cannot be considered at all and is not admissible in evidence as the accused was not in the custody of the police. Apart from that, the Investigating Officer has also not stated that the accused was in the custody of the police in any other case. To satisfy ourselves, about the correctness we have looked into the remand papers, inspite of the objection of Mr. Gupta, counsel for the appellant. In the remand papers submitted to the court of Magistrate from time to time, the date of arrest has been shown as 19-8-1975 and the remand has been granted in the month of August as well as in the month of September, 1975. The remand was also granted on 22nd August, 1975, 25th August, 1975, 3rd September, 1975 and on other dates, by the court. In such circumstances, it seems that the argument of Mr. Sharma that the probability that the Investigating Officer might have committed a mistake in writing the date in the arrest memo, is having force, and we are of the view that the Investigating Officer has committed an error in writing 19th October, 1975 as the date of the arrest. In fact, the date of the arrest is 19-8-1975 as mentioned in the remand papers and also in the charge-sheet. In these circumstances, the objection of Mr. Gupta is not tenable and we think that Ex. P. 14 is admissible in evidence and can be used against the accused as he was in the custody of the Police Officer in the case.
14. Mr. Gupta, faced with this problem submitted that on the spade, blood stains are not there. He has also invited our attention to the report of the Chemical Examiner marked as Ex. P. 10 and Ex. P. 11 and submitted that from the perusal of the report also, it is clear that the Dhoti marked as 'E' which was in packet 'D' was found negative for blood. Then he submits that the recovery of the Dhoti and the blood on the spade is not relevant and cannot be used to connect accused with the crime. We find force in this submission made by Shri Gupta.
15. Suspicion cannot take place of the truth. It is the duty of the prosecution to prove the case with cogent evidence. We find that the prosecution has failed to prove the case against the accused.
16. In the result, we set aside the judgment of conviction and sentences passed on 28th August, 1976and allow the appeal. We hereby direct that the accused, may be acquitted and he may be set at liberty, if not required in any other case. Mr. Gupta submits that the accused is on bail; if it is so, the accused need not surrender. The bail bonds automatically stand cancelled.