Milap Chand Jain, J.
1. The appellant Pukh Raj, was convicted for the offence under Section 302, IPC, for having murdered his own son, Neerkareshwar @ Buliya, aged about 20-22 years, on 24-7-1974 and was sentenced to imprisonment for life and to pay a fine of Rs. 2,000/-, in default to undergo further sentence of one year rigorous imprisonment, by the learned Additional Sessions Judge No. 2, Jodhpur, by his judgment, dated April 16, 1975.
2. Briefly, the prosecution case is that the deceased Buliya, was considered as a habitual thief. He was also considered to have committed theft at the house of his own maternal grand aunt Smt. Chandramani, PW 14, therefore, slept at the house of the neighbour of her mother Kanibai, just to see as to whether the deceased commits theft there or not. In the morning of 24-7-74, she along with Sohan Lal, the son-in-law of the accused, went to the house of Kanibai and found the accused in-side the house. On the door being knocked, it was opened and it was found that the deceased was having one bag and a water meter with him. The water meter belonged to her mother, Ranibai. Thereafter, both of them took the deceased to the house of Jugraj PW 8. According to Jugraj, his cycle was also stolen away in May, 1974 from the Cottage Ward of M.G. Hospital, Jodhpur. He also suspected the deceased of having committed the theft of his cycle. On 24-7-74, he was serving as a Compounder at the T.B. Hospital. Masuriya. He got telephonic message at about 6-6.30 AM from his brother, Nandkishore. The telephone was attended by the sweeper at the Hospital, who informed him that his brother Nand Kishore, has called him at his house. Thereupon, became to the house at about 7.30 or 8.00 AM. He found Chandramani, his maternal aunt, and Sohan Lal and the deceased Buliya, at his house. They were interrogating the deceased with regard to the theft at the house of Kanibai. Sohanlal asked him to inform the family members of the deceased. Thereafter, Sohanlal himself informed the relation of the deceased and he returned back at about 9.30 or quarter to 10. The accused Pukhraj, came to the house of Jugraj. After some time, the accused told Jugraj as to whether they had conversation with the deceased Buliya. Then the accused asked them to go out of the room so that he may have talk with his son Buliya in seclusion. Thereupon, all of them came out of the room and the accused and his son Buliya remained inside the room. The room was, thereafter, bolted. As per the version given by Jugraj in the first information report Ex. P/6, a cry was heard 'Papa Chaku Mat Maro, Mat Maro. On hearing this cry of Buliya, all of them got up and made an attempt to open the door. But the door could not be opened. Thereafter, Jugraj peeped in side the room through a ventilator. He saw the accused armed with a knife and the deceased lying on the mattress. The room was further knocked. Thereupon the accused unbolted the door and came out with the knife, which was smeared with blood. They entered into the room and saw injuries on the person of the deceased, one of his left cheek and the other on the chest near the heart, which was bleeding. The accused was reprimanded by them. Thereupon, the accused stated that he was tired of the deceased, so he has been done away with. Thereafter, the accused went away along with the knife. The injured Buliya was then brought down stairs and by telephonic message, Ambulance was called. On arrival of the Ambulance, the injured was removed to the hospital. But the injured succumbed to his injuries on the way. Jugraj lodged the report at 11.30 AM. On further interrogation, he gave out the description of the knife. On this report, case under Section 302, IPC, was registered by Shri Ummed Singh, Station House Officer, Police Station, Division 'D', Jodhpur. Two constables were sent to the site for guarding and he himself proceeded to M.G. Hospital, Jodhpur. He found the dead body in the mortupry. He got the post-mortem examination conducted and recovered the clothes of the deceased. Thereafter, he proceeded to the site and conducted spot investigation. He was informed telephonically that the accused is in the police station, so after completing his spot investigation, he went to the police station and arrested the accused at 6 PM on that very day vide arrest memo Ex.P/22. He found blood-stains on the bushirt and pocket of the pant, which the accused was wearing. His clothes were seized & sealed. After the arrest of the accused, the accused gave information regarding the knife. The information was that the knife is lying in the upper Maliya of his residential house. Thereafter, the knife was got recovered by the accused vide memo Ex. P/23. The blood-stained articles seized were sent for Chemical and Serological examination. After completion of investigation, charge-sheet was presented against the accused and the accused was committed for trial. Ultimately, the accused was tried by the learned Additional Sessions Judge No. 2, Jodhpur. The charge was framed for the offence under Section 302, IPC, to which he pleaded not guilty and claimed to be tried. At the trial, the prosecution examined in all 17 witnesses. The statement of the accused was recorded, in which he denied the prosecution case. Further he admitted that he gave information to the S.H.O. regarding the knife, but he stated that he did not get the knife recovered. One Omprakash was examined in defence as DW 1. The learned Additional Sessions Judge based the conviction of the appellant on the circumstances enumerated by him. In this connection, he stated as under:
In view of the proved facts of the case when the motive of commission of the crime, accused's reaching to the house of Jugraj, his taking of Bulia inside the room in privacy, closing of the room from inside, knocking of the doors and thereupon opening of it coming of the accused from the room and having seen of the deceased Buliya inside the room with injuries on his chest and cheek and his being in pool of blood at that time, washing of the hands by the accused inside the bath-room of Rukhmani Devi, noticing of Sajjan Kanwar and Abdul Gaffar of the accused coming out of the house of Rukhmani Devi and going in the way respectively, the seizure of clothes stained with human blood from the body of the accused, the presenting of an application Ex.? 4-A by the accused to his section Officer at 11.25 a.m., the time of leisure at the disposal of the accused between 9.00 a.m. to 10.45 a.m. on the day of occurence and the recovery of knife Article 1-A from the house of the accused at his instance consequent to the information given to the IO under Section 27 of the Evidence Act and the consistent evidence of the witnesses noticing the presence of the accused at the house of Jugraj and then his going to the room with Bulia alone and making out of that room the other persons by the accused Pukhraj and further Takiy and Ghasia on which the deceased was found in injured condition soon after the occurrence and also their having been stained with human blood, along with the clothes of the deceased, all go to prove that accused Pukhraj alone closed the room from inside and bolted it thereafter and then caused injuries to the person of Bulia consequent to which he died on his way to the hospital. All the necessary chains of the crime to my mind are fully proved and linked together and in these circumstances, no other hypothesis excepting the one proposed to be proved that the accused alone was the murderer of Bulia, his own son, is derivable.
Further, at page 132, the learned Additional Sessions Judge expressed himself as under:
In my opinion the substratum of the case was not the one, argued by the learned counsel but was that on being called accused came to the house of Jugraj and then knowing that the said Bulia had committed a theft in the house of Kani Devi and was admitting other thefts, asked the other persons to go out side the room and set with Bulia inside the room in privacy and later on was found coming out of the room having caused injuries to the said Bulia with knife which ultimately resulted in his death, and this substratum of the case has been fully proved by the prosecution by the set of circumstantial evidence found completely believable, credible and reliable.
Thereafter, be concluded that in view of this, the accused is found guilty of the offence of committing death of his son by causing injuries with the knife. However, he held the accused guilty of the offence under Section 302, IPC, after considering whether the offence falls within the ambit of Section 302 or 304 IPC. Dis-satisfied with the conviction and sentence, this appeal has been filed.
3. We have heard Shri D.K. Purohit, learned counsel for the appellant and Shri L.S. Udawat, learned Public Prosecutor, for the State.
4. Before dealing with the evidence on record, we may notice the medical evidence. Dr. P. Dayal, PW 10, conducted the Post-mortem examination. He found the following two injuries on the person of the deceased:
(1) Incized wound 4 cm. tailing as superficial incised wound to the right and upwards about 1 cm. The total measurment of the injury was oblique on the chest on the left border of sternum at the level of sixth and seventh ribs. The sixth and seventh ribs has been cut near their costal catilege along with the left border of sternum. There was perforation of the pericardium about 2 cm. long and perforation of the left ventricle of near about 2.5 cm. above the apex of heart. Partially clotted blood about 200 c.c. was present in the paricardial sac and about 350 to 400 c.c. partially clotted blood was present in the thoracic cavity. The left edge of the wound was not clean-cut.
2. Incised wound 2.5 cm. x 1 cm. on the left the zygomatic region of face about 3 cm. anterior to tragus of left ear. The anterior edge of the wound was lacerated and the wound was muscle-deep.
In his opinion, the cause of death was shock as a result of perforation of heart and hoemerrhage and injury No. 1 was sufficient in the ordinary course of nature to cause death.
5. The material question is as to how the deceased sustained the above two injuries on his person. The most material evidence in this case consists of Jugraj PW 8, Sohan Lal PW 9 and Smt. Chandramani PW 14. These three witnesses, were asked to go out of the room so that accused may have a talk with his son. Jugraj PW 8 stated that the room was bolted from inside. Thereafter, he heard Buliya speaking him 'Chaku Nahin-Chaku Nahin'. Thereupon, they knocked the door, but the door could not be opened, then he peeped into the ventilator. He observed Buliya armed with a knife and Pukhraj was holding the hand of Buliya by his wrist. The deceased was telling 'Papa Chaku Nahin-Papa Chaku Nahin'. Thereupon the accused was telling him to throw away the knife. Then he asked Sohan Lal to look into the ventilator. Thereafter, he again knocked the door. Then it was opened and Pukhraj came out of the room, but he did not observe any knife in the hand of the accused, Pukhraj, at that time. Jugraj denied the various portions of his FIR statement A to B, C to D, E to F, G to H, I to J and K to L, and in these portions, he stated that he was confused, he wrote out them, as was asked by the SHO. Although the occurrence was narrated by him to the SHO orally. It would appear from his statement that he did not hear the deceased speaking to his father that knife may not be inflicted. He also did not state that the accused came out with a knife in his hand. On the contrary, what he has stated that the knife was held by the deceased and the accused was resisting him by holding his wrist and the accused was asking him to throw away the knife. Sohanlal PW 9, has stated that the accused did interrogate the deceased and, thereafter, he himself had left the place and then he learnt that ambulance had come, then he returned to the house of Jugraj. Thus, Sohanlal has also not supported the prosecution. Both these witnesses were allowed to be cross-examined by the learned Public Prosecutor. Likewise, Smt. Chandramani PW 14, as well has not) supported the prosecution. She has stated that she does not know whether the door of the room was kept open or closed by Pukhraj and Buliya. But, thereafter, she observed that when Sohanlal and Jugraj knocked the door, the door was closed. But she further stated that the accused Pukhraj was telling to throw away the knife, which Buliya was refusing. She also stated that the deceased Buliya used to keep knife with him. Thereafter, she does not know what happened. From the statements of these three witnesses what can be gathered is that the knife was seen being held by the deceased and that the accused was telling the deceased to throw away the knife. From the evidence of these three witnesses, no doubt it is established that the accused and the deceased were inside the room, which has bolted. But what transpired in the room, can only be judged from what these witnesses have stated. Looking to the statements of these witnesses, it cannot be taken that the accused was armed with a knife and the deceased was any way crying, asking his father not to inflict knife blows. These witnesses have also not stated that the accused was seen in possession of any knife at the time when the accused appeared at the room. On the contrary, Smt. Chandra Mani's statement is that deceased used to keep knife. From the statements of these witnesses, therefore, it cannot be taken that the accused was armed with a knife. In the light of the statements of these witnesses, the medical evidence also needs to be considered, ft has been put to Dr. P. Dayal in cross-examination as to whether the injuries can be sustained by the deceased in a suicidal attempt Dr. P. Dayal said that no definite opinion can be given regarding suicide or homicide. He further stated that because of the presence of two injuries at remote sites, possibility of homicide is greater, but he further agreed to the suggestion that these two injuries can result during an attempt to commit suicide when the attempt is obstructed by another person and there is a scuffle under such circumstances.
6. It may be stated that the prosecution case is that on the information and at the instance of the accused, blood-stained knife has been recovered and so on the basis of the recovery evidence of knife, it should be taken that it was the accused, who was armed with a knife and made use of the same inside the room. In connection with the evidence of recovery of knife, we would like to state that there are some suspicious circumstances which render the story of recovery of knife doubtful. The accused has denied the recovery. Although he has stated that information about knife was given by him. The Motbir witness of the recovery has not supported the prosecution case. Shri Amar Dutt PW 15, has not supported the prosecution and has stated that accused did not get any knife recovered to the police. Rukmani Devi has stated that the accused had washed his hands in her bathroom. When the accused had washed his hands in the bathroom, where was the question of holding any knife by the accused and carrying the same to his house. As already stated, the three witnesses did not see any knife in the hands of the accused. Thus, the evidence of recovery of knife at the instance of the accused, in our opinion, is not trust-worthy and the prosecution cannot press into service the contention that because of the recovery of knife, it should be found that the accused handled the knife in a deadly manner inside the room. On the contrary, it is quite probable that the deceased, who used to keep knife, handled the same inside the room, which. was being resisted and obstructed by the accused and its possibility also can not be ruled out that the deceased may have himself either inflicted the blows or in the process of resistance and obstruction, the injuries were sustained by the deceased. In any circumstance, it cannot definitely and positively found that the accused was responsible for inflicting the knife blows on the deceased. It would be a mere surmise and conjecture that the accused was responsible for causing knife blows. It is also significant to note, which cannot be lost sight of that the prosecution has failed to establish, as to how the accused came in possession of the knife. It was the duty of the prosecution to establish the guilt against the accused beyond all reasonable doubt, which, in our opinion, the prosecution has utterly failed. From the evidence on record, thus, in our opinion, offence is not brought home to the accused and in any case the accused is entitled to benefit of doubt.
7. In the result, this appeal is allowed. The conviction and sentence of the appellant for the offence under Section 302, IPC, are set aside and he is acquitted of the offence under Section 302, IPC. He is already on bail, so he need not surrender to his bail bonds. The bail bonds are discharged.