Prakash Tatia, J.
1. Heard learned Counsel for the parties. This appeal is against the judgment and order of conviction and sentence dated 5.2.2005 passed by the Court of learned Additional Sessions Judge (Fast Track) No. 1, Pali Headquarter Jaitaran in Sessions case No. 98/2004 whereby the appellant Chetan Lal has been convicted for offence under Section 302 read with Section 34 IPC and in, alternative under Section 149 I.P.C. and sentenced him to undergo life imprisonment and a fine of Rs. 2,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment.
2. Hence, this appeal has been preferred by the sole convict appellant Chetan Lal.
3. The entire case of the prosecution as set up is that complainant Bhanwar Lal, Ramsukh along with Madan Ram on 29.1.2001 at 2:30 A.M gave parcha bayan Ex.P/1 at Police Station, Raipur (Camp) alleging that he along with his maternal uncle's grandson - Jagdish were going on a scooter and when they reached near Paladiya well, a truck Tata 407 came from behind and hit the scooter because of which, the complainant and victim Jagdish both fell down. Victim Jagdish immediately ran from the spot. From the said truck Tata 407, 4-5 persons dropped down and hit on the head of the complainant by lathi. The complainant stated that he saw two persons in Dhoti and faces of both were covered. From there, the complainant ran towards the Police Chowki, Bar and told about the incident to the Munshi of the Police Station upon which, Munshi took the complainant to the hospital and obtained first aid for him. Thereafter, some police constables and complainant's brother Ramsukh and his cousin Madan came there and told him that victim Jagdish has been murdered and his dead body has been thrown in an Anicut near Navora Bera and the scooter is yet lying on the road. In the FIR, he stated that because of land of Bera Navora, there is dispute and because of that dispute, about 6 months ago, Bhika s/o Changa Ji was murdered and to take revenge, Shaitan, Sohan Lal, Ganpat, Anda, Manak etc. are having rivalry with them and Ganpat has truck Tata 407 of ash colour, therefore, the above persons by criminal conspiracy with common object tried to kill the complainant and killed victim Jagdish in the manner referred above. On the basis of said report Ex.P/1, a case under Sections 302, 147, 148, 149, 323 and 120B I.P.C. was registered and investigation started.
4. It will be worthwhile to mention here that before the said parcha bayan report dated 29.1.2001 (Ex.P/1), the S.H.O., Police Station Raipur in the night at 12:30 P.M of 28.1.2001, received an information on telephone from Head Constable of Police Chowki, Bar that one Jabar Singh on telephone informed that near the boundary of Village Dholodher, two persons weregoing on scooter and they were hit by one Tata 407 (small truck) of ash colour in which one Bhanwaru Mali suffered injuries. One Jagdish was with said Bhanwaru Mali but he is not found on the scene of accident. Said information was registered in Rojnamcha and the S.H.O, PW 18 Duda Ram along with Head Constable Amar Singh, Sipahi Kana Ram, Raghunath Singh and driver Mahesh Kumar started in Governfnent jeep for Bar. They reached their at 1:40 A.M i.e. in the morning of 29.1.2001 and there, in the police chowki, they found Jabar Singh Head Constable who told that Bhanwaru suffered injury who has been sent to Hospital with Sipahi. Some Sipahies have been sent to find out other victim Jagdish. After getting this information, the S.H.O. Duda Ram leaving other police persons at Bar, came back to Raipur Police Station and thereafter, on 29.1.2001 at 2:30 AM, said Parcha Bayan Ex.1 dated 29.1.2001 was given to Duda Ram and that Parcha Bayan was recorded by SHO PW18 Duda Ram himself in his own handwriting.
5. During investigation, site report Ex.P/2 and site map Ex.P/3 were prepared, foot mould was taken vide Ex.P/5, panchnama of body of deceased Ex.P/7 and site report where the body was found Ex.P/6 were prepared. The relevant blood stained and sample soils were taken. Accused Chetan, Sohan, Manak, Anda Ram and Ganpat were arrested and their arrest memos Ex.P/11 to Ex.P/15 were duly prepared. The iron pipe, blood stain bolt and blood stained shirt were recovered and their memos were prepared. One iron knife was recovered and recovery memo Ex.P/30 and report about the place where the knife was recovered Ex.P/31 was prepared. The information given by the accused under Section 27 of the Evidence Act were recorded before effecting the recoveries. The articles were sent for chemical examination to the Forensic Science Laboratory from where the FSL reports were obtained. After completion of investigation, challan was filed against all above 5 accused and charges referred above were framed against the accused appellants which were denied by the accused appellants and they sought trial.
6. At the trial, the prosecution examined in total 19 witnesses and exhibited as many as 108 documents and 31 articles. The accused were examined under Section 313 Cr. P.C. Appellant Chetan stated that Bhanwar Lal committed murder of uncle of co-accused Sohan, who was also father, of another co-accused Manak, because of that and because of the dispute between him (Chetan) and family of Jagdish with respect to some land, the appellant has been falsely implicated. The appellant produced 6 witnesses in defence and accused Manak himself gave his statement on oath as DW 7. From defence side, 16 documents were produced.
7. The trial court acquitted all accused except appellant Chetan and convicted appellant Chetan under Section 302 read with Section 34 and in alternative under Section 149 IPC and has sentenced him as aforesaid.
8. In sum and substance, the arguments of learned Counsel for the appellant are that complainant Bhanwar Lal is neither a trustworthy witness nor he has been found trustworthy even by the prosecution and he has been declared hostile. Therefore, the testimony of this important hostile witness is liable to be rejected. Complainant Bhanwar Lal was not present at the time of any of the incident either accident of scooter by the truck or at the time when deceased Jagdish left the place of accident. Since he was not present at any point of time, therefore, he introduced two witnesses Madan Lai PW 3 and Ramswaroop @ Ramsukh PW 4. These two witnesses never met with complainant Bhanwar Lal before Bhanwar Lal reached to the police station. These two witnesses may have reached to the police station only because they came to know that the scooter of victim Jagdish was lying on road and he was found dead. These two witnesses PW 3 Madan Lal and PW 4 Ramsukh also did not disclose in Parcha Bayan Ex.P/1 that how they came to know about the position of the scooter and murder of Jagdish inspite of the fact that they signed Parcha Bayan Ex.P/1. These two witnesses have been planted as the witnesses as to whom story was told by the complainant Bhanwar Lal just after the accident and to make their evidence admissible in evidence as narration of incident by the witness to others immediately after the incident. The prosecution for the reasons best known to them took one mould of one foot from the spot where according to the prosecution, six (6) persons were there and they moved freely here and there on loose soil. The investigating agency obtained the foot mould of only appellant out of five (5) accused as though the investigating agency had full knowledge that foot impression found on the spot was of one person and that was of appellant only and, therefore, the investigating officers did not took the foot moulds of other accused. Such evidence of foot moulds is liable to be rejected as it is a created evidence; The prosecution tried to involve five (5) persons out of which four (4) have been acquitted yet the trial court illegally convicted the appellant for the offence under Section 302 read with Section 34 and in alternative under Section 149 I.P.C. and, therefore, the conviction of the appellant is contrary to the law laid down by the Hon'ble Apex Court in the case of Krishna Govind Patel v. State of Maharastra reported in A.I.R. 1963 S.C 1412.
9. Learned Counsel for the appellant also submitted that the recovery of knife was from an open place i.e. agricultural field and the alleged blood found outside the room of the appellant and near the well etc. are not sufficient evidence to connect the appellant with that blood because other accused were also living in the same building where the appellant was residing at the relevant time and other accused have been acquitted by the trial court. There is no explanation why the other accused cannot be connected with this evidence which in fact is neither evidence nor circumstance to connect anybody. The trial court also committed grave error of fact and law while considering the evidence of Shawl and Muffler recovered from the place where the scooter was hit by the truck as per the prosecution case and without coming to the conclusion whose Shawl and Muffler was, declared that circumstance against the appellant. The trial court easily discarded the evidence of PW 15 Sher Singh who proved that the alleged blood on the clothes of the appellant may be even of animal.
10. It is also submitted that the complainant himself not support the prosecution case and the prosecution planted witnesses and created false evidence and according to the prosecution itself, there was serious enmity between the accused party and the complainants, then that enmity itself was ground for falsely implicating the appellant in the crime.
11. Learned Public Prosecutor as well as learned Counsel for the complainant vehemently submitted that in fact, one of the member of the accused party was killed and a criminal case was pending wherein the accused were released on bail on 23.1.2001 and the present incident occurred in the night of 28.1.2001. All the 5 accused well planned to kill the victim Jagdish and by hatching criminal conspiracy with common object and common intention carefully planned to kill the victim by hitting the victim by truck so as to convert murder in accident case. The victim did not die, them they all chased the victim. They took their truck away from the road towards the running victim Jagdish. The tyre marks were found on the spot which is proved by the prosecution by photographs and by truck tyre mould comparison by expert evidence. When accused could not kill by running the truck over the victim Jagdish, the victim Jagdish was killed by inflicting several injuries by knife and the appellant was the person who inflicted the injuries by knife. This fact is corroborated by the recovery of knife from the appellant which had blood stains over it. The appellant's clothes also had blood stains over them which were recovered at the instance of the appellant himself. The appellant could not furnish any explanation about the blood over his clothes nor could explain how he came to know about knife if he himself had not thrown the knife in the agricultural field which had a big boundary wall and any man could not have seen the field or knife from outside. It is also submitted that in the site map Ex.P/3, every minute details have been shown and a large number of articles were seized from the spot which clearly proves the fact that the scooter was hit by the truck and the truck was taken away from the main road after the deceased towards the open field. The blood was found at several places. Since there were only one clear impression of foot, therefore, only one foot mould was taken and that foot mould resembled with the sample foot mould of the appellant and expert has given report that the foot impression found on the scene of incident was of appellant and not of any other person.
12. According to learned Counsel for the complainant, when there is strong motive for committing the offence, then the improvements made by the witnesses in their statements can be ignored and truth can be separated and the testimony of the witnesses as a whole cannot be rejected. It is further submitted that the accused appellant himself pointed out towards the knife which was in the agricultural field having the crop of wheat and that knife had blood stains over it. The recovery of knife at the instance of the appellant is also an important circumstance against the appellant coupled with his enmity and having motive for committing the offence of killing the victim. Further, the appellant himself identified and pointed towards and showed the blood spots to the investigation officer.
13. According to learned Counsel for the complainant, on the rim of Stepiny of the scooter, the colour of truck was found and this circumstance clearly shows that the victim was hit from behind by the truck seized in this case. The Muffler and Shawl were found on spot with blood and the blood of the same blood group was found on the Pant and Shirt of the appellant. Learned Counsel for the appellant even went to the extent that the complainant Bhanwar Lal in his report Ex.P/1 for the reasons best known to him did not clearly mention that he identified the persons on the spot but even then there are sufficient material facts narrated by the complainant to witnesses Madan and his brother Ramsukh, then to the police in his report and that is done without any delay, then that evidence is admissible in evidence.
14. It is further submitted that vehicle truck Tata 407 by which the offence was committee, an application was submitted by accused Ganpat's father namely, Bhanwar s/o Chogaji (PW19) and he got the truck released. He produced the registration certificate of the truck. He admitted that accused Ganpat was knowing driving of the truck and he admitted that this very truck was seized in the present case. Therefore, the truck was belonging to the family of the accused party and had 'evidence of hitting scooter by this truck, and this fact is also sufficient circumstantial evidence against the appellant.
15. We considered the submissions of Learned Counsel for the appellant and learned public prosecutor as well as learned Counsel for the complainant and perused the record and the reasons given by the trial court in the impugned judgment.
16. At the outset, we may observe that the prosecution witnesses including the complainant materially changed the prosecution's original case. Same was the view of the trial court. The complainant also was declared hostile by the trial court at the request of special public prosecutor.
17. It is clear from the facts mentioned above that on the written complaint Ex.P/1 dated 29.1.2001, the case for offences under Sections 302, 147, 148, 149, 323 and 120B I.P.C. was registered and investigation started after recording FIR. The allegations of the complainant Bhanwar Lal in the report were only to the effect that the complainant and his cousin brother Jagdish were going on a scooter and when they reached near Palada well, a truck Tata 407 came from behind and hit the scooter because of which, the complainant and victim Jagdish both both fell down. Victim Jagdish ran from the spot. From the said truck Tata 407, 4-5 persons dropped down and hit the complainant by lathi on head. All the persons who dropped down from truck were wearing Dhoti and Shirts and their faces were covered. Therefore, the complainant had no knowledge that who were the persons who dropped down from the truck. He could note the model of the truck but could not note the number of truck. The complainant was knowing the accused persons and if he would have identified the persons who dropped down from the truck, he would have mentioned this fact in the report Ex.P/1 itself. He came to know about the death of victim Jagdish only from Ramsukh and his nephew Madan who came to the police station and told him that Jagdish has been murdered and his body has been thrown in an Anicut near Navora Bera and the scooter was lying on the road. In the report, it is clearly mentioned that 'seeing above (body of deceased, and scooter lying on the road), they (PW 3 Madan and PW 4 Ramsukh) came to the police station'. In Ex.P/1, it has not been mentioned that Ramsukh and Madan met with the complainant after the incident and before the complainant reached to the police station. From the report Ex.P/1, at the most, it appears that Ramsukh and Madan got the knowledge of incident and death of Jagdish and they came to the police station and found the complainant there. How they came to-know about the accident of scooter of Jagdish and his murder is not mentioned in the Parcha Bayan Ex.P/1. The improvements made by the complainant in the statement in Court are material and may be to implant witnesses Madan and Ramsukh as witnesses to strengthen his story with the help of statement of these two witnesses. In view of the enmity between the victim party and the accused, the evidence of the witnesses is required to be considered very cautiously. The complainant who did not name the accused in Ex.P/1, in Court stated-that he saw accused Sohan, Chetan, Manak and Anda Ram coming out from the truck and further stated that Ganpat was driving the truck and also stated from which side which accused came down from the truck, which are material improvements which cast doubt on the credibility of the witness PW1. He also narrated more facts relating to the incident and how it occurred which also contradicts fact mentioned in Ex.P/1.
18. PW 3 Madan and PW 4 Ramsukh are the witnesses whose names are mentioned in Ex.P/1 itself and they signed Ex.P/1 but from Ex.P/1 itself, it is clear that complainant Bhanwar Lal reached to the police chowki directly from the place of incident without meeting witnesses Ramsukh and Madan, and Ramsukh and Madan came there only when they saw the body of Jagdish lying near the Navora Bera near Anicut and his scooter was found lying on the road. However, the complainant in his statement in Court contradicting the fact stated in Ex.P/1 stated that from the scene of occurrence, he went to the shop of his nephew Madan which was at bus stand and Madan went and called Ramsukh and Ramsukh in turn came to the shop of Madan and they both took the complainant to the police chowki. This improvement, as held above, is for introducing PW 3 Madan and PW 4 Ramsukh as witnesses. Be it as it may be, Madan and Ramsukh are not the witnesses to the alleged accident of the truck with scooter or are witness to the killing of victim Jagdish. It may be true that a fact told by the witness immediately after the incident to another may be relevant fact and may be admissible in evidence but in this case from the evidence of PW1 Bhanwar Lal, PW3 Madan and PW4 Ramsukh, we do not find any reason to accept the statement of PW 1 Bhanwar Lal that he went from the place of incident to the shop of Madan and told the incident to Madan and his brother Ramsukh in the manner stated above. Further reason for not believing the statement of PW1 Bhanwar Lai is that the complainant Bhanwar Lal immediately after saying that all the four persons were wearing Dhoti and Shirt and had covered faces, named the accused in the same report Ex.P/1 and if the complainant had reason to know and identify the accused on the spot itself, then he would have mentioned the fact in the FIR from his personal knowledge whereas in the FIR, he has shown his doubt about involvement of the accused persons because according to him, the accused persons had enmity with deceased Jagdish as well as complainant. In Ex.P/1, complaint lodged by Bhanwar Lal and signed by Madan and Ramsukh also, only it has been disclosed that the complainant was told by Ramsukh and Madan that victim Jagdish has been murdered and his dead body has been thrown in an Anicut near Navora Bera. Therefore, from reading of report Ex.P/1, it is clear that till that report was lodged, the complainant Bhanwar Lal was not sure who were in the truck nor he told these two witnesses that the appellant and other accused came in truck and hit the scooter and thereafter, ran after Jagdish (deceased).
19. Witnesses PW 3 Madan and PW 4 Ramsukh changed the prosecution story in the same line in which complainant PW1 Bhanwar Lal changed. PW 3 Madan stated that in the night of 28.1.2001 (winter season) at 11:30 P.M, he was sitting on his shop and his uncle Bhanwar Lal came injured on his shop. He had injuries on head, back, knee and elbow. He asked the complainant how he was injured, then the complainant told that after taking meals, he and Jagdish went to the Bar Bus Stand for taking beetle and thereafter started on a scooter for going to Navora Bera via Jaitaran Road. Near Palaydiyon Ka Bera, they were hit by truck Tata 407 which was of ash colour. Complainant Bhanwar Lal saw the truck coming towards them and told Jagdish to go down from the road. Even when they took their scooter on the side of the road, the truck hit them and both fell down. PW 3 Madan further stated that the complainant told him how these all accused to whom he identified drop from the truck, then he telephoned PW4 Ramsukh and called him on his shop and Ramsukh is brother of complainant Bhanwar Lal. Complainant Bhanwar Lal again told the entire story to his brother Ramsukh and they took complainant to the police chowki. According to PW3, thereafter, he along with complainant and Ramsukh and Munshi of the police stationwent to the house of Dr. Suresh Yadav and got treatment for complainant. Thereafter, he with Ramsukh and Munshi took car from the bus stand and started for searching Jagdish and found dead body of Jagdish with full of blood and at the residence of Dr. Suresh Yadav, they told the complainant that Jagdish had died. He stated that the S.H.O. Duda Ram came to the house of Dr.Suresh Yadav and enquired about the complainant and there the complainant narrated all the facts to the S.H.O, From there, the S.H.O. went on the spot and came back after half an hour to the residence of Dr. Suresh Yadav and took witnesses Madan and Ramsukh and complainant Bhanwar Lal to the police-station. PW 3 Madan further stated that thereafter, the Dy. S.P. reached to the police station and then complainant Bhanwar Lal was interrogated by the S.H.O. The S.H.O. wrote the report and came and got the signatures of all the three complainant, Madan and Ramsukh and that report is Ex.P/1. Bhanwar Lal put his thumb impression on the report. The statement of PW 4 Ramsukh is similar to the statement of PW3 Madan and PW 4 Ramsukh also stated that Ex.P/1 was brought before them prepared by S.H.O. and it was not written before them. As stated, it was a total new case of the witnesses.
20. All three material witnesses PW 1, PW 3 and PW 4 in cross examination contradicted their earlier statement recorded during investigation Ex.D/5 and Ex.D/6 respectively as well as report Ex.P/1. In addition to the above, it is clear that they were not the witnesses who saw the incident. Their evidence involving the accused is based only on the basis of the alleged information given by complainant Bhanwar Lal and the complainant's statement regarding giving information to these two witnesses cannot be believed in view of the reasons mentioned above.
21. Therefore, the trial court rightly held that from the evidence of PW 1 Bhanwar Lal, the identity of the accused is not established. In the same way, from the evidence of PW 3 Madan and PW 4 Ramswaroop also, the identity of the accused is not established. The trial court from the same evidence which was accepted and relied upon for conviction of appellant, for other coaccused held that there is no circumstantial evidence against the accused Anda, Sohan Lal, Ganpat and Manak and acquitted them. Further very material fact is that the complainant PW 1 Bhanwar Lal is hostile witness. Therefore, it is unsafe to rely upon the statement of this witness.
22. It will be worthwhile to mention here that the acquittal of four (4) accused Sohan Lal, Ganpat, Anda Ram and Manak has been upheld by this Court as per the counsel for the complainant, then in view of the above finding, the effect of acquittal of 4 accused is that they did not conjointly acted with the fifth accused in committing the murder. In identical facts, the Hon'ble Apex Court in the case of Kishan Gopal (supra) set aside the finding of conviction of one of the qccused after acquittal of three accused against whom charge was under Section 302 read with Section 34 IPC. The Hon'ble Apex Court held as under:
Held that the conviction of the fourth accused was clearly wrong. When accused were acquitted either on the ground that evidence was not acceptable or by giving benefit of doubt to them the effect in law would be that they did not take part in the offence. Hence the effect of acquittal of the three accused was that they did not conjointly act with, the fourth accused in committing the murder. If that was so the fourth accused could not be convicted under Section 302 read with Section 34 for having committed the offence jointly with the acquitted persons.'
23. Appellant in this case fully finds support from the said judgment.
24. The trial court considered other circumstance against the appellant that the appellant's Pant and Shirt were recovered in pursuance of the information given under Section 27 of the Evidence Act (Recovery memo Ex.P/25) and the Pant and Shirt of the appellant had blood stains over them. Appellant Chetan was wearing Pant and Shirt at the time of incident is not the case of even the complainant. The complainant in report Ex.P/1 as well as in his statement during investigation Ex.D/1, stated that the accused were wearing Dhoti and Shirt and not Pant and Shirt. In his statement under Section 161 Cr.P.C., Ex.D/1, the complainant Bhanwar Lal was confronted with his statement that he stated that appellant Chetan was vearing Dhoti. He denied that he stated so in his police statement. The complainant even denied his statement in Ex.D/1 that he identified the appellant from his Dhoti. From the above, it is clear that first the complainant did not knew who were in the truck and he could not have known about the identity of those persons because their faces were covered. In the statement during investigation, the complainant tried to improve the statement by saying that he identified the appellant by his Dhoti and that statement has been contradicted by the complainant by saying that he did not gave said statement to the police. In view of the above reason, it is clear that nobody saw the accused appellant on the spot or running towards the victim Jagdish at the time of incident. The recovery of Pant and Shirt is absolutely irrelevant in view of the fact that the prosecution's own case was that the accused were wearing Dhoti and Shirt and not Pant and Shirt and because of this recovery, the appellant cannot be connected with the crime.
25. Another fact which was considered by the trial court was that near the place of accident of truck and scooter, one Shawl and Muffler were found which had blood spots over them. The trial court was of the view that whether the said clothes were of deceased Jagdish or of appellant Chetan is immaterial because of the reason that the blood group which was found on the Pant and Shirt of the appellant was the same as which was on the Muffler and Shawl. This finding of the trial court is absolutely illegal. Firstly because of the fact that the prosecution failed to prove that any person wearing Pant and Shirt committed the crime and secondly, the prosecution failed to lead any evidence how the blood came on the Shawl and Muffler of Jagdish when according the prosecution evidence, the truck hit behind the scooter and Jagdish ran from the spot. There is no evidence that because of this hitting to scooter by truck, the victim suffered any injury which may have given blood on Shawl and Muffler. Nobody gave any injuries to Jagdish on the spot near the place of accident of truck and scooter, then how blood came on Shawl and Muffler remained unexplained. Even if, the blood on Shawl and Muffler was of the victim Jagdish, then recovered Pant and Shirt were not of the person who dropped from the truck as they were wearing Dhoti and Shirt (Shirt for Dhoti is of different type than Shirt for Pant). Therefore, this evidence does not go against the appellant in any manner.
26. Another evidence found against the appellant was similarity of his sample foot mould with the similarity of mould taken of a foot from spot during investigation. For this, the foot impression found on the spot--mould Q3 was taken from the spot. Accused appellant was arrested and his foot impression--mould Q4 was taken. Both were sent to FSL from where the report Ex.P/19 was received with the opinion that the foot impression Q3 and Q4 are similarly. The prosecution produced witness PW 16 Iqbal Ahmed, an expert from FSL, who examined two foot moulds. Learned Counsel for the appellant rightly pointed out an important material fact that only one foot mould was taken from the spot and that is said to be Q3 whereas according to the prosecution case, 5 accused ran after victim Jagdish and as per the site map submitted by the prosecution, the blood was found on various places. Therefore, moving of six persons on loose soil and taking one foot mould by investigating agency, cast serious doubt about the investigation itself. Coupled with this, the prosecution took foot mould of only one accused appellant as though the investigating agency was sure that the foot mould on the spot was of appellant Chetan alone and, therefore, instead of finding out, whose foot mould was on the spot, they sent one foot impression of the appellant alone to the FSL. That clearly indicates that the investigating agency itself selected the appellant in the case and the appellant was the target. There was no reason for not talcing more foot moulds from the sport and for not taking the foot mould of other accused, if the prosecution was not sure about the identity of the foot mould found on the spote find substance in the submission of learned Counsel for the appellant. We do not find any reason for taking one foot impression from the spot and selecting one of the accused for taking his foot mould and sending the same for FSL report. The recovery of knife with blood stains as well as recovery of Lungi and one other cloth from the room of the appellant with blood stains on 2.2.2001 vide Ex.P/20 as well as evidence about having blood in front of the house of the appellant near the well and on the soil, the trial court rightly held that the said recoveries were not in pursuance of any information given by the appellant under Section 27 of the Evidence Act. In addition to the above, it will be worthwhile to mention here that how the investigating agency came to know about this evidence, has not been explained. Be it as it may be, it is not disputed that other accused were also living in the nearby rooms to the room of the appellant, then how the appellant alone could be connected with the blood found near the well and on the soil near the well. It is not the case that no other person was coming to the well. These evidence cannot be read against the appellant to implicate him in the commission of the offence. Even the prosecution alleged that some blood was found in the nails of the appellant but for that, the prosecution witness PW 15 Sher Singh, who is senior scientist in the FSL, in his cross examination clearly admitted that he is not sure that the blood which was alleged to be taken from the nails of the appellant was human blood or blood of animal and this evidence is also of no relevance nor can connect the appellant with the crime. Then one more evidence and that may be important is recovery of knife in pursuance of the information given by the appellant and the report of FSL Ex.P/108 in support of the prosecution having human blood over the knife (Ex.P/18). The said knife was recovered from an agricultural field near the place of occurrence. This agricultural land was surrounded by a boundary wall. Wheat crop was standing on this land. From there, it is alleged that the knife was recovered at the instance of the appellant. This recovery was witnessed by the witnesses Chunni Lai, Pratap Ram and Teja Ram. Ex.P/31 is the site report from where the knife was recovered. It appears that near a village way, this agricultural land was situated. The wall of the agricultural land had four feet height. The land was not belonging to the appellant. Looking to the height of the wall, it is possible that anyone could have thrown the knife in the agricultural land. This recovery in the facts of the case is a weak piece of evidence for connecting the appellant with the crime and merely on the basis of recovery of knife, it cannot be declared that the appellant has put the knife or threw the knife at that place. The information under Section 27 of the Evidence Act for the knife was recorded at Police Station, Raiput at 11:00 AM (Ex.P/94). On the basis of this information, recovery was effected for which recovery memo (Ex.P/30) was prepared at 11:15 A.M. Whereas according learned Counsel for the appellant, the distance between Police Station, Raiput and place of recovery Is about 18-20 kilometers. The photographer PW9 stated in cross examination that when he took the photographs, the knife was lying on the place of occurrence. Therefore, the police also took the photographer with the accused to the place of occurrence, then the police and accused could not have reached to the place within 15 minutes time nor the report could have prepared. It is also submitted that the agricultural field was not belonging to the accused appellant.
27. We have already observed that the recovery which is doubtful is not sufficient to connect the appellant with the crime.
28. Learned Counsel Mr. KS Rathore relied upon the judgment delivered by the Hon'ble Apex Court in the case of Sucha Singh and Anr. v. State of Punjab reported in : 2003CriLJ3876 , wherein it has been held that, 'Even if major portion of evidence of a witness is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, conviction of one of the accused can be maintained. The Hon'ble Apex Court further held that, 'It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. It has further been held that, 'Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim 'falsus in uno falsus in omnibus' has not received general acceptance nor has the maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is of what may be called a mandatory rule of evidence. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. In the same judgment, the Hon'ble Apex Court while considering the dictum, 'it is better to let hundred guilty escape than punish an innocent', observed as under:
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation. 'A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.' Doubts would be called reasonable if they are free, from a zest for abstract speculation. Law cannot afford any favourite other than truth.'
29. Learned Counsel Mr. Rathore also relied upon the judgment of the Hon'ble Apex Court delivered in the case of State of Rajasthan v. Teja Ram and Ors. reported in : 1999CriLJ2588 wherein the Hon'ble Apex Court held that 'sometimes due to disintegration of serum in the meanwhile or when the blood stain is too insufficient or due to haematological changes and plasmatic coagulation that a Serologist might fail to detect the origin of blood, then guess was that blood on the weapon would have been of animal is unrealistic and farfetched in the broad spectrum'. The Hon'ble Apex Court also observed that, 'the effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity no benefit can be claimed by the accused.
30. Learned Counsel Mr. Rathore also relied upon the judgment of the Hon'ble Apex Court delivered in the case of Shankaria v. State of Rajasthan reported in A.I.R. 1978 S.C. 1248 in support of its contention that foot mould evidence is a relevant circumstance which can be taken into account along with other evidence and identity of culprit can be established. In support of the-same plea, learned Counsel Mr. Rathore also relied upon the principles laid down in Medical Jurisprudence on this point.
31. We discussed, the facts in detail and consider the case on question of fact first. Even if the above facts are considered in the light of the law laid down by the Hon'ble Apex Court, then also, we are of the view that it is not a case where it is alleged that the portions of evidence of witnesses particularly, PW 1 Bhanwar Lal, PW 3 Madan and PW 4 Ramsukh are deficient or contain some improvements only but it is a case where the witnesses have changed the entire prosecution case and made so much of improvements that without those improvements, the accused cannot be identified. Not only this, but the above three witnesses made all their efforts in involving the accused in the crime when according to their own Parcha Bayan, they had doubt of involvement of the accused because of old rivalry. In addition to the above, learned Counsel Mr. Rathore himself was of the view that the witness PW 1 might have not supported the prosecution and shown his doubt about the conduct of the prosecution's main witness PVV1 Bhanwar Lal, then it is not a case of giving benefit of doubt on fanciful grounds but it appears to be more a case of zeal of the witnesses to connect the accused with the crime with the help of evidence which are not reliable. The Hon'ble Apex Court in the case of Shankaria (supra) held that 'the science of identification of foot-prints and foot-moulds is not a developed science and track evidence by itself may not be deemed sufficient to carry conviction in a criminal trial. Therefore, the said evidence may be relevant as held by the Hon'ble Supreme Court but in this case, we have already considered the manner in which the foot-mould was taken by the investigating officer by choosing one out of five accused i.e. Appellant and collecting one foot-mould from the spot and sending one foot-mould of the accused. It casts serious doubt on the investigation itself as observed by us in the preceding paragraphs.
32. In view of the above discussion, this appeal of the appellant Chetan Lal is allowed, the judgment and order of the trial court of conviction and sentence dated 5.2.2005 passed in Sessions Case No. 98/2004 is set aside and the appellant is acquitted for the charges under Section 302 read with Section 34 IPC and in alternative under Section 149 IPC.
33. The appellant is in jail, he be released forthwith, if not needed in any other case.