1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Bhagwat Singh & ors. Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.404/2007 against the judgment dt.28.4.07 passed by the Addl.Sessions Judge (FT) No.1, Udaipur in Sessions Case No.141/2006. Date of Judgment: Oct.17, 2008 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Dhirendra Singh, for the appellants. Mr.J.P.S.Choudhary, Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI J.) 1. This appeal is directed against the judgment of the learned Addl.Sessions Judge (FT) No.1, Udaipur dated 28.4.07, whereby he convicted & sentenced all the three accused appellants viz; Bhagwat Singh, 2 Jalalm Singh and Kishan Singh as under: U/S.302/34 IPC : Life imprisonment and a fine of Rs.5000/- & in default, to further undergo one year's S.I. U/S.201/34 IPC : Five years' R.I. and a fine of Rs.2000/- & in default, to further undergo six months' S.I. 2. Facts leading to this appeal are that on 22.5.2006, Gopal Singh filed the F.I.R., Ex.P.1 that his cousin brother Prem Singh aged 30 years was married ten years back at Bhagwat Singh Rajput's house resident of Vanu. On 20.5.06 at 8.30 PM, he left for village Shishki to attend the marriage at his in-laws. On 21.5.06, he died. His post mortem was conducted on 22.5.06 at Udaipur Govt. Hospital, where he went and saw multiple injuries on his person. When he went at the village Vanu, he was told by Gajendra Singh and Lalit Singh that on 20.5.06, when they were going at the house of Laxman Singh in the night at 9 P.M., deceased Prem Singh told them that he wanted to talk with Sohan Kunwar. Upon this, Bhagwant Singh's sons 3 Jalam Singh and Kishan Singh became angry. It was also reported that Sohan Kunwar wife of Prem Singh told that near `Piao', Lalit Singh's father slapped her. Upon this, Jalam Singh, Kishan Singh and Bhagwant Singh inflicted lathi blows to Lalit Singh's father. On seeing her husband on the one side and his brothers & father on the other side, she became nervous. Prem Singh died due to the multiple injuries, sustained by him. The police registered a case on this report for the offence u/ss.302 & 201/34 IPC and commenced investigation. After investigation, the police filed challan against all the above three accused appellants for the offences u/ss.302 & 201/34 IPC in the court of Judicial Magistrate No.2, Udaipur City, who committed the case to the court of learned Sessions Judge from where it was transferred to the court of learned Addl.Sessions Judge (FT) No.1, Udaipur, who upon hearing the arguments on charge, framed charges against the accused appellants for the offences u/ss.302/34 and 201/34 IPC, to which the accused 4 pleaded not guilty. The prosecution examined 19 witnesses. The statements of the accused were recorded under Section 313 CrPC. They led no evidence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. 3. It has been contended by the learned counsel for the accused appellants that it is a case of no evidence and merely on the basis of recovery, conviction has been recorded by the learned trial Judge, which is contrary to law and cannot be sustained. 4. On the contrary, learned Public Prosecutor has supported the judgment of the learned trial Court. 5. In the present case, the principal eye witnesses are Sohan Kunwar (PW 3), Meena Kunwar (PW 7) and Smt.Lalita Kunwar (PW 9). The F.I.R. was based on the version of Sohan Kunwar (PW 3), who is the wife of deceased Prem Singh. The informant Gopal Singh (PW 5 1) in his statement has proved the F.I.R., Ex.P.1 but did not say anything that either he was told by Sohan Kunwar about inflicting injuries by the appellants on the person of deceased Prem Singh or by Gajendra Singh or Lalit Singh as named in F.I.R., who have not been examined by the prosecution. On the contrary, he stated in examination in chief that the dead body was brought to his house and on enquiry, it was told that Prem Singh had consumed some tablets and because of that, his condition had become serious. Since Prem Singh was in Govt. service, therefore, his post mortem was conducted and in the post mortem report, there were multiple injuries on his back side and the neck was broken. Eye witness Sohan Kunwar (PW 3), who is the wife of deceased Prem Singh and saw the incident, has turned hostile. Meena Kunwar (PW 7) is also a hostile witness. Smt.Lalita Kunwar (PW 9), who has also been declared as hostile by the prosecution, has stated that when they went for taking `Bandola', all the accused appellants were with her. When they came 6 back, they all slept and in the morning, they came to know that Prem Singh was ill and he was taken to hospital. She has denied her police statement Ex.P.16 with regard to inflicting injuries on the person of deceased Prem Singh by the accused appellants and also giving slap to Sohan Kunwar by deceased Prem Singh. Thus, all the eye witnesses have not supported the prosecution case. However, the learned trial Judge convicted the accused appellants merely on the basis of F.I.R., Ex.P.1 lodged by Gopal Singh and on the basis of medical evidence as also the recoveries. The recoveries in this case are of shirt and sticks, which were blood stained as per the FSL Report, Ex.P.46 and were found with blood group `B'. 6. In our opinion, when the case is based on direct evidence and the direct evidence is not supporting the case of the prosecution with regard to inflicting injuries on the person of deceased Prem Singh, then it cannot be ascertained as to who was the author of those 7 injuries. Merely because the injuries were found on the person of deceased Prem Singh and recoveries were made from the accused appellants in pursuance to the informations furnished by them u/s.27, Evidence Act and blood stains were found on them, it cannot be termed as sufficient evidence to connect the accused appellants with the commission of crime. The recovery of blood stained clothes and weapons, is a corroborative evidence, which can be considered only when the case is not based on direct evidence. Learned trial Judge, simply on the basis of these recoveries, made by the investigating officer and the application of accused Bhagwant Singh, Ex.P.49 about taking some poisonous substance by deceased Prem Singh, which appears to be false, cannot be a ground to presume that the accused appellants were the authors of these injuries. 7. It is true that the death is homicidal, caused by multiple injuries, which were seen on the body of 8 deceased by Mahendra Singh (PW 2), Manoher Singh (PW 10), Madhu Singh (PW 11) and Kan Singh (PW 13), supported by the testimony of Dr.Akhilesh Sharma (PW 15) in the post mortem report Ex.P.28, but this is all a corroborative evidence, which cannot be looked into, when the direct evidence of eye witnesses is available and is not supporting the case of the prosecution. The judgment of the learned trial Judge is based on surmises and conjectures, which cannot be sustained in the eye of law. 8. Consequently, we allow this appeal and set aside the judgment dt.28.4.07 passed by the learned Addl.Sessions Judge (FT) No.1, Udaipur convicting appellants Bhagwat Singh, Jalam Singh and Kishan Singh for the offences u/ss.302/34 and 201/34 IPC and they are acquitted of the charges levelled. They are in 9 jail, they shall be set at liberty forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS