R.L. Gupta, J.
1. Appellant Tena alies Tinia and Kalia son of Hurji have preferred this appeal from Jail against their convictions and sentences passed been convicted under Section 302 read with Section 34, IPC for the murder of one Kalia son of Lallu.
2. The prosecution case, in brief is that on 17.4.71 deceased Kallia son of Lallu along with Tinia Kalia and some other had gone to the 'jungle, to collect the leaves of 'mahua' trees Kalia deceased did not return and afterwards his dead body was found floating in the well known as Gada-Khakhra, which was so noticed by PW 7 Shankar. He, therefore, reported the matter to the police vide his report Ex. P/2. The police started investigation under Section 174, Cr.P.C. 1898. On the report of Shankar Ex.P/2 the police recovered the dead body of deceased Kalia and the autopsy was performed by PW 6 Dr. Harish Chandar Agarwal. In the opinion of the Doctor the cause of the death was shock as a it suit of complete laceration of the spinal cord of the fourth cervical vertebrae. Such an injury in his opinion was sufficient in the ordinary course of nature to cause death. This autopsy was performed on 22.4.71. No foul play was discovered during that investigation & the investigation was closed on 22.4.71, However, Lallu, the father of the deceased Kalia, submitted a written report on 4.5.1971 before the SP Udaipur naming therein the appellants as assailants and responsible for the murder of his son Kalia deceased. The SP Udaipur passed an order for taking quick and stern action against the accused and to see that the case was worked out at the earliest and challan was put up in the Court. On this report the case was registered by the S.H.O., P.S. Pahada on 24 5.1971.
3. According to the prosecution the investigation revealed that Kalia (appellant) Tinia and Nania had conspired to kill deceased Kalia. Kalia appellant, and Tinia killed him in furtherance of heir common intention. Accused Tinia had twisted the neck of the deceased Kalia. Kalia appellant, Nania and Tania were put tip for trial before the Sessions Judge, Udaipur. Nania, however, after, trial was acquitted, while the appellants were covnicted and were sentenced to imprisonment for life by the learned Sessions Judge.
4. The accused in their statements under Section 342, Cr.P.C., denied the prosecution story. It was alleged that they have been falsely implicated at the instance of one Deeta Master who had animosity with them.
5.The prosecution case was that Kalia deceased went for collecting 'mahua' leaves in the company of PW 3 Smt. Jivli, PW 4 Atli and PW 5 Smt. Santu and some others Out of them the prosecution produced Smt. Jivli, Atli, Santa and Hut ma. It may be said at the out set that except PW 5 Mst. Santu, none of these witnesses has beer of any help to the prosecution. They have turned hostile and have denied having gone with the deceased or the appellants on the fateful day for collecting 'mahua' leaves. PW 7 Shankar has been examined by the prosecution. He is the same pet son who lodged the report Ex P/2 It is said that the well Gada Khakhra is situated at a distance of about 100-150 yds. from his house the learned Sessions Judge has held that there is no direct evidence to connect the appellants with the crime. He has relied on the circumstantial evidence and for this he has placed reliance on the statement of PW 5 Santu and PW 7 Shankar. In brief, the evidence of Mst. Santu is to the effect that appellants Kalia and Tinia along with decased Kalia and witness Mst Santu and others had gone to the 'jungle' of Sarwan and on the way accused Nania met them near village Beda and had talk with the accused Tinia. The party proceeded further, accused appellants Kalia and Tinia along with decased Kalia stayed back and the rest of the party went further. Thereafter Tinia appellant alone met them at Gada-Khakhra well and told them that appellant Kalia and deceased Kalia were coming behind. When they were near Kaluwa School appellant Kalia came there leaving the deceased lying near Gada-Khakhra well and when it was asked from appellant Kalia where the deceased was, it was informed that he is lying at Gada-Khakhra well Santu and others came back to Gada-Khakhra well and found deceased Kalia lying there unconscious with froth coming cut of his mouth. Accused-appellant Tinia gave him beating with shoes perhaps with the intention of making the deceased regain consciousness and then he was placed under the shadow of a tree. She has also stated that the 'chaddi' of the appellant Kalia had some blood-stains. PW 7 Shankar has stated that on that day he saw a person lying near the well Gada-Khakhra and a young boy was sprinkling water on him. Later a man and two girls also reached there and the man gave shoe-blows on the buttocks of the person lying near the well. They lifted that man and placed him under the shadow of a tree, Shankar has neither named the appellants nor identified them in Court or even at the time of the occurrence, but he tried to support, in some particulars, the version given by Mst. Santu (PW 5), to the extent as stated above.
6. On placing reliance on the evidence of these two witnesses the learned Sessions Judge has held the guilt of the appellants as well proved,
7. It may be pointed out at the out set that it is a case of no evidence. The evidence of PW 7 Shankar is of no avail to the prosecution, as he had neither named the appellants nor identified them as the culprits. His evidence is also unworthy of reliance. It was he who lodged the report Ex. P/2 on 21-4-1971. He did not narrate the incident alleged to have seen by him on 17-4-1974 in the report Ex P/2, Moreover, this witness seems to be a man of obliging nature. In his statement before the committing Court, when he was confronted with his statement recorded under Section 164, Cr.P.C. he slated that he gave that statement under pressure of the police at the instance of one Deeta master. When he was confronted in the trial court he denied having so stated, but has stated that he deposed so at the instance of the counsel for the accused. Thus, this witness is not a truthful witness. His credibility has been sufficiently impeached to show that he was making varying statements Besides, the statement under Section 161, Cr.P.C., of this witness was recorded on 1-7-1971, that is, after a lapse of a month and a half Moreover, he does connect the appellants with the commission of the crime.
8. As regards the statement of Mst. Santu, she does not state that the appellants or any one of them had twisted the neck of deceased Kalia resulting in his death. On the contrary, there is no mention in her testimony that she ever said any one twisting the neck of the deceased. More over she is not a reliable witness. The appellants in their statements have alleged that it was Deeta master at whose instance they have been entangled in this case. The appellants have animosity with Deeta master and Veerji in connection with some land. Mst. Santu (PW 5) is the daughter of Veerji and grand daughter of Deeta master In that way she is an interested witness. Any how her evidence firstly does not inspire any confidence as she did not report that matter, whatever she saw on the date of occurrence to any one in the village and second, her testimony does not go to connect the appellants with the crime. The alleged conduct of the appellants in sprinkling water on the deceased and their efforts to get the deceased in consciousness also is not compatible with their guilt. The 'chaddi' of the accused, which is said to be blood stained, was not sent to the Chemical Examiner and the Serologist. The recovery of the 'chaddi' is, therefore, not a incriminating circumstance against the appellant Kalia. Thus, there is complete lack of evidence and we are surprised that the learned Sessions Judge should have convicted the appellants for a serious offence like murder without any evidence whatever.
9. In the result, the appeal is allowed. The conviction and sentences passed against Kalia tinder Section 302 read with Section 34, IPC, and against Tena, alias Tinia, under Section, 302, IPC, are set aside, and they are acquitted of the offences with which they are charged The accused appellants Kalia and Tena alias Tinia are in jail. They be set at liberty forth with if not required in any other case.