Ishwar Singh @APPELLANT@Hash State of Rajasthan & Ors.

The appeal has reached for hearing. None has appeared for the appellant. But since we had read the file we put it to the learned counsel for the

State whether he is ready to argue the appeal. Learned counsel states that he is ready to argue the appeal.

Vide impugned decision dated 16/02/2013 the appellant has been convicted for offences punishable under Sections 458/450/302 IPC and has been

sentenced to undergo imprisonment for life.

The charge-sheet filed shows that the prosecution sought to establish the case by proving motive through the testimony of the brothers of the

deceased i.e. Ishwar Singh, PW-2 and Om Prakash, PW-5. Last seen evidence through the testimony of Satyaveer, PW-7 and Ram Pratap, PW-11

and recovery of the axe stated to be the weapon of offence pursuant to the disclosure statement made by the appellant through the testimony of Ram

Pratap and the Investigating Officer, Ramniwas, PW-12.

Process of criminal law was set into motion when Ishwar Singh S/o Data Ram (PW-2), brother of the deceased named Ashok went to Police

Station Khetri on 22/04/2011 and stated that in the morning at 10.00 a.m. he received information that in their fields, in a room near a well, his brother

Ashok has been murdered by somebody. His neck was cut. As per the statement some unknown person had murdered Ashok.

The investigation was conducted by Ramniwas PW-12, SHO of the police station. He proceeded to the place where the crime took place and

recovered a mobile phone as recorded in the seizure memo Exh.P-4, the seizure being witnessed by Ram Pratap PW-11. The dead body was

seized and sent for post mortem. Dr.Hari Singh Gothwal PW-6 conducted the post-mortem and recorded in the post-mortem report Exh.P-30 that the

stomach was empty. Small intestine contained semi-digested food. There was an incised wound on the left side of the base of neck as also on the

posterior lateral aspect of the upper part of the neck, an incised wound below left ear and an incised wound on the right middle finger. Cause of death

was shock due to haemorrhage. Â

As deposed to by the SHO, investigation revealed that the number of the mobile phone recovered from near the dead-body was 9461925953 and

thus he obtained the call record details Exh.P-39 pertaining to the said mobile number which showed large number of inter-se calls between said

number and Mobile No.7597968715. The said mobile number is stated to be in the name of the wife of the accused and thus the appellant became a

suspect having a motive for the fact that the ultimate case of the prosecution was that the deceased was having illicit relations with the wife of the

accused.

The appellant was arrested on 23/04/2011 and as per the prosecution he made a disclosure statement and pursuant thereto got recovered an axe on

25/04/2011 as per seizure memo Exh.P-34 witnessed by Ram Pratap PW-11.  Â

After twelve days of the crime statement of Satyaveer PW-7 was recorded under Section 161 Cr.P.C. as per which he saw the appellant come out

of the room when Ashok was murdered at 2-2.30 a.m. in the night and was armed with an axe. Statement of PW-11 was also recorded after 12-13

days of the crime and even he claimed to have seen the appellant near the scene of the crime with an axe. 9. At the trial informant Ishwar Singh

PW-2 deposed that he, Om Prakash and the deceased were brothers. Om Prakash was in service. The deceased used to manage the family fields. At

night Ashok used to sleep in the room near the well in the fields. On 21/04/2011 Ashok took dinner at 9.00 in the night and left the house for the field

to sleep in the room next to the well in the fields and the next day morning he learnt that his brother was murdered. His brother was having illicit

relationship with Bina Devi, wife of the accused.

Om Prakash PW-5 also deposed that his brother was having illicit relationship with the wife of the accused.

The first witness of the last seen i.e. Satyaveer PW-7 deposed that his field was 100 feet away from the field of the deceased and on the

intervening night of 21/22.04.2011 he was sleeping in his field. At 2-2.30 in the night he went to the well of the deceased to take water. He saw

accused leaving the room with an axe in his hand and when he asked him what he was doing there, the accused told him that he had come to meet

Ashok. As per him, because his maternal aunt was unwell at Delhi, next day morning he went to Delhi. He came to the village after 12-13 days. He

told the brothers of the deceased that he had seen the accused at night when the murder took place and thus his statement was recorded by the

police.

On being cross-examined he stated that he left the village at 5.00 in the morning and reached Delhi at around 9.00 a.m. on 22nd April. Which

hospital he visited to meet his maternal aunt was the next question. The reply was that he does not remember. Asked about the address of his

maternal aunt, he said that he does not know her address.

The next witness of the last seen is Ram Pratap. As per him he was in his house in the village on 22nd April. He learnt about Ashok being

murdered and went to the place of the crime. In his presence the mobile phone was seized as recorded in the memo Exh.P-4 which he has signed. He

was also a witness to the recovery of the axe by the accused as per memo Exh.P-34 which he had witnessed. In the night when the crime was

committed he had seen the accused near the room where Ashok was murdered and the accused was carrying an axe. In cross-examination he stated

that his statement was recorded by the police after 15 days. Interestingly he said during cross-examination that the day next of the murder he went to

Jaipur where he stayed for 6-7 days.Â

In our opinion, the witnesses have been planted for the reason both gave information of the last seen to the police after 12-13 days of the incident

and the claim of Satyaveer PW-7 that next day morning he went to Delhi to meet his maternal aunt, who was unwell, is a claim which is very shaky.

He could not disclose where his maternal aunt resides. He could not disclose the hospital where his maternal aunt was admitted. In this connection,

we find that even Ram Pratap PW-11 claims that he saw the accused near the premises of the deceased at the night where the crime took place is

full of contradictions. In cross-examination he admits that his statement was recorded by the police after about 15 days. During cross-examination this

witness stated that next day he went to Jaipur and returned from Jaipur after 6-7 days. If this be true it is apparent that he could not be a witness to

the seizure of the axe as per Exh.P-35 which was drawn up on 25th April, 2011.Â

In this connection, the post-mortem report of the deceased and the testimony of PW-2 needs to be highlighted a little more. As noted above, as per

PW-2 dinner was taken by the deceased at 9 in the night. As per the post-mortem report there was no food in the stomach of the deceased. Semi-

digested food was in the intestine. This means that the murder took place around 12 in the mid-night. The testimony of the first last seen witness that

he saw the accused leave the well at 2-2.30 in the night also gets dented.

We reject the testimony of last seen.

As regards the call details Exh.P-39 showing calls between the two mobiles hereinabove noted, we find that neither any witness from the service

provider company has been examined nor a certificate tendered as per Section 65B of the Evidence Act and thus, the electronically generated print

out of the call record details has to be held to be an unproved document.

The axe recovered from the appellant has not been sent for opinion to the doctor who conducted the postmortem and thus we have no evidence

that the axe in question was the weapon of offence. Further, with respect to the testimony of Ram Pratap PW-11 we have already brought out

enough material to discredit his testimony that he was a witness to the recovery of the axe on 25th April, 2011.

Motive sought to be proved through the testimony of the two brothers of the deceased is a weak evidence because in their earlier statements to

the police they never suspected the appellant to be the accused on account of their brother having illicit relationship with the wife of the accused. 20.

Assuming motive is proved. It would be insufficient evidence to establish the guilt of the appellant because there is no other evidence which stands

scrutiny of the Court for its credibility as incriminating evidence.Â

The appeal is allowed. The appellant is acquitted of the offences he was charged against. The appellant is in jail.

He is directed to be set free if not required in any other case.

However, keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a

personal bond in the sum of `10,000/-, and surety bond of the like amount before the trial court. The bonds so furnished shall be effective for a period

of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the

appellant on receipt of notice thereof, shall appear before the Supreme Court.