[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- JUDGMENT CRIMINAL JAIL APPEAL No. 459 of 2003 PAPIYA @ GURMAIL SINGH V/S STATE Date of Judgment : 05.12.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. Mr. K.L. Joshi, Amicus Curiae. Mr. K.R. Bishnoi, PP BY THE COURT (PER HON'BLE THANVI, J.): 1. This Jail Appeal is directed against the judgment of learned Addl. Sessions Judge Sangaria dated 27th March, 2003 whereby he convicted accused appellant Papia alias Gurmail Singh under Sec. 302 IPC and sentenced him to imprisonment for life alongwith fine of Rs.1,000 and in default to further undergo six months' rigorous imprisonment. 2.Facts leading to the appeal are that on 23.06.2002, Bhola Singh (PW5), brother of deceased Sukhdev Singh alias [2] Sugra and the accused, made an oral report before Ramdev Singh PW6 SHO PS Sangaria that they all three brothers are living in the same house in different rooms, his elder brother deceased Sukhdev Singh was living with his mother but was addicted of taking poppy husk. On the day of incident, in the morning at 6 O' Clock, wife of his younger brother Papiya came to take tea leaves from his mother and on denial, his brother Sukhdev Singh deceased told accused Papiya that why he used to take liquor for whole of the day and why not bringing household articles. Upon this, they both started fighting and came out on the street. Accused appellant caught hold the neck of Sukhdev Singh and gave blows to deceased on account of which Sukhdev Singh fell down and died. At that time, complainant was taking tea. His mother, wife and children were at home at that time and the neighbours also assembled there. On this report, police registered a case under Sec. 302 IPC and commenced investigation. 3.After investigation, accused appellant Papiya was chargesheeted under Sec.302 IPC in the Court of Magistrate, who committed the case to the Court of Sessions. Learned Sessions Judge framed charge under [3] Sec. 302 IPC against the accused appellant, who pleaded not guilty. 4.Prosecution examined 9 witnesses. Statement of accused Papiya was recorded under Sec. 313 Cr.P.C. He led no evidence in defence. After hearing arguments, the learned trial Judge convicted accused appellant under Sec.302 of the IPC and sentenced him as above. 5.We have heard learned counsel Amicus Curiae as well as the learned Public Prosecutor and appreciated the evidence on record. 6.Upon perusal of the evidence on record, we are surprised as to how the learned Sessions Judge has convicted the accused purely on the basis of hypothesis and surmises. The reason assigned for the guilt of the accused is that soon after the incident he ran away from the spot and was arrested after considerable time. In our view, the impugned judgment is based on conjectures and not on any evidence. A conviction is to be recorded either on direct or circumstantial evidence and not merely on the basis of surmises and presumptions. In the present case, all the eye witnesses are hostile including [4] complainant Bhola Singh, who is the real brother of the accused and is examined as PW5. Sahi Ram PW4 is another independent eye witness but he has turned hostile. Gurdev Kaur PW7 mother of the accused as well as mother of the deceased, from whom the wife of the accused demanded tea leaves, has also turned hostile. PW1 Dr. Naresh Kumar Garg is the Doctor who examined the dead body of deceased and prepared Post Mortem Report Ex.1. PW2 Shaitan Singh and PW3 Baldev Singh are the witnesses of Malkhana articles and Ramdev Singh PW6 is the Investigating Officer. Thus, it is purely a case of no evidence but the learned trial Judge has convicted the accused appellant without any basis. Merely on the basis of recovery of Tankla, accused cannot be convicted especially when as per the report of FSL no blood was detected on that iron Tankla. 7.In view of this, we are unable to affirm the finding arrived at by the learned trial Judge convicting the accused appellant under Sec.302 IPC. 8.Accordingly, we allow this appeal, and while setting aside the judgment of conviction of accused appellant under Sec. 302 recorded by learned Addl. Sessions Judge, [5] Sangaria vide his judgment dated 27.03.2003, we hereby acquit the accused. He is in jail. He will be set at liberty forthwith if not required in any other case. ( DEO NARAYAN THANVI ),J. ( AM KAPADIA ),J. jpa/