(1.) The present appeal has been filed by the appellant against the judgment of conviction dated 29.08.2008 and order of sentence dated 01.09.2008, passed by the Additional Sessions Judge, Panipat, whereby he was held guilty and convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of five months under Section 302 IPC. Co-accused Kedar Nath was found not guilty and was acquitted of the charges as framed against him. The brief facts of the prosecution case are that FIR in the present case has been registered on the basis of application of Maya, mother of deceased Bhim Nath, addressed to SHO, Police Station, Bapoli. It is stated in the application by complainant that her son Bhim Nath along with Khandu Nath, Raja Nath, Vijay Nath and Mukesh had gone to UP for demanding alms etc. Vijay Nath, Mukesh Nath and Khandu Nath had stayed in village Tanda District Bagpat in the night. On 08.11.2006, her son Bhim Nath and Raja left for village Goela Khurd from UP in the night. Accused Khandu Nath having a lathi in his hand, started following them. In the area of Yamuna river of village Goela Khurd, he surrounded them and started beating them with the lathi. He gave two blows to Raj Nath, who ran away from the spot and came to village Goela Khurd. Khandu Nath was beating her son Bhim Nath with the lathi. It is not known whether her son is alive or dead. When Raja Nath came to house, he narrated that Bhim Nath was beaten by Khandu Nath in the area of Yamuna river of village Goela Khurd. On the next day, Khandu Nath along with belongings of her son came to her. On enquiry from him about Bhim Nath, he told that he would come. On asking about beating, accused started abusing the complainant and threatened her to kill. It is also stated in the application that Khandu Nath is a person of bad nature and without any reason, he is nursing enmity with her and her family. After conducting search and enquiry, nothing about Bhim Nath could be revealed. On the basis of this application, which is dated 10.11.2006, FIR was registered on 12.11.2006 at 8.30 P.M. under Section 364 IPC. On 13.11.2006, ASI Mahender Singh along with other police officials had gone to village Goela Khurd for investigation of the case. Statement of Raj Nath was recorded. Raj Nath told him that dead body of Bhim Nath was lying in the area of Yamuna river. Thereafter, they proceeded towards the place of occurrence. Dead body of Bhim Nath was lying there. The Investigating Officer prepared rough site plan Ex.PK and photographs of the dead body were taken. The inquest proceedings were carried out at the spot and inquest report Ex.PF was prepared. The dead body was sent for post-mortem examination. Statements of witnesses were recorded. On 13.11.2006, accused Khandu Nath was produced before SI Dharambir Singh by Kiran Rawal, Ex-sarpanch, before whom the accused had made extra judicial confession. That confession was recorded by the police in the police station, which is Ex.PA. Accused was arrested. During interrogation, accused demarcated the place where he had committed the murder and thrown the dead body. He also made disclosure statement regarding concealing lathi in the sand of Yamuna river and in pursuance of his disclosure statement, he got recovered the same. After necessary investigation, challan was presented against the accused-appellant before the Court. On presentation of challan, copies of challan and other documents were supplied to the accused-appellant under Section 207 Cr.P.C. Finding prima facie case, the appellant was charge-sheeted under Section 302 IPC and Section 201 read with Section 34 IPC, to which he pleaded not guilty and claimed trial. In support of its case, prosecution examined PW-1 Raj Nath, who is the eye witness to the occurrence and has deposed as per prosecution version. He also deposed that after he sustained injuries, he looked back and saw that accused Khandu Nath inflicted lathi blow on the back of neck towards left side of Bhim Nath. After sustaining that blow, Bhim Nath fell down and succumbed to the injuries at the spot and he (Raj Nath) ran away to save himself. He further deposed that next day at about 4.00 A.M., he, as well as Karambir and Soni and 10-12 other relations saw Khandu Nath and Kedar Nath accused near the place of occurrence and their clothes were stained with mud etc. PW-2 Kiran, Ex-Sarpanch mainly deposed regarding extra judicial confession made by accused-appellant Khandu Nath before her on 13.11.2006 and she produced the accused before the police. PW-3 Karambir Nath mainly deposed that on the next i.e. on 09.11.2006, they located Khandu Nath and his father Kedar Nath coming from the area of Yamuna river and their clothes were stained with the sand of the river. On 13.11.2006, they had seen the dead body of Bhim Nath, which was lying near the bank of Yamuna river. He identified the dead body. PW-4 Soni Nath mainly deposed the same facts as deposed by PW-3 Karambir Nath. He also deposed regarding recovery of lathi. PW-5 Maya, is the complainant. She deposed as per prosecution version. PW-6 SI Dharambir Singh, mainly deposed regarding partly investigation conducted by him in the present case. PW-7 Dr.Vijay Pal Khanagwal mainly deposed that he conducted post-mortem examination on the dead body of Bhim Nath. It was lying naked. He further deposed that dead body was in advanced stage of decomposition. No definite opinion regarding the cause of death could be given at the time of autopsy. He gave the opinion that exact cause of death cannot be determined in this case. FSL report and results of chemical analysis of viscera and Diatom test were negative. Both the above reports suggested that deceased had not died due to poisoning or drowning. When a body is in advanced stage of decomposition or when it is eaten away by animals, the injuries over the body may not be appreciable. PW-8 ASI Ishwar Singh and PW-9 Constable Satish Kumar, are the formal witnesses, who tendered into evidence their affidavits Ex.PG and Ex.PH respectively. PW-10 ASI Mahender Singh, Investigating Officer, mainly deposed regarding initial investigation conducted by him in the present case. PW-11 Rishi Pal, Patwari mainly deposed regarding preparing of scaled site plan Ex.PM. At the close of prosecution evidence, the accusedappellant was examined under Section 313 Cr.P.C. and he denied the correctness of the evidence and pleaded himself as innocent. In defence, accused-appellant examined DW-1 Raj Pal, who mainly deposed that he did not produce Kedar Nath before the police nor Kedar Nath had made any statement before the police in his presence. DW-2 Alladin mainly deposed that a verbal altercation had taken place between Khandu Nath, Raja Nath and Bhim Nath and one another person, whose name he did not know. Then, Raja Nath, Bhim Nath and one another person left that place for their native village. It was about 10.00 P.M. He further deposed that Khandu Nath and Vijay Nath stayed with him in the night and they left for their village in the morning. On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced as stated above by the Additional Sessions Judge, Panipat. At the time of arguments, learned counsel for the appellant argued that there is no motive for causing the occurrence. He further argued that there is no medical opinion regarding the cause of death. There is also unexplained delay in reporting the matter to the police. Learned counsel for the appellant further argued that PWs are false witnesses and have been introduced by the Investigating Officer to strengthen the case. PWs are unreliable and not trustworthy witnesses. He next argued that there are so many missing links and from the facts on record, it cannot be held that appellant has committed the murder of Bhim Nath. Therefore, he argued that appeal should be accepted and appellant should be acquitted. On the other hand, learned Asstt. Advocate General, Haryana for the respondent-State has argued that case of the prosecution has been duly proved. There is statement of eye witness PW-1 Raj Nath, who supported the prosecution version. His statement is supported and corroborated by recovery of lathi by the appellant and also by the demarcation memos. The extra judicial confession made by the accused before PW-2 Kiran, Ex-sarpanch further supports and corroborates the prosecution version. Learned State counsel further argued that PW-3 Karambir Nath and PW-4 Soni Nath also supported and corroborated the prosecution version. Therefore, he argued that case of the prosecution has been duly proved and there being no merit in the appeal, it should be dismissed. We have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellant and learned Asstt. Advocate General, Haryana for the respondentState. From the evidence on record, we find merits in the arguments of the learned counsel for the appellant. First of all, as per eye witness, PW-1 Raj Nath, occurrence took place on 08.11.2006 at about 10-11.00 P.M. and Khandu Nath also gave two injuries to him. But, there is no MLR of PW-1 Raj Nath regarding his injuries to support his version. Secondly, he told all these facts on coming back to the village, to the mother of the deceased Bhim Nath, namely Maya Devi, complainant. As per PW-1 Raj Nath, Bhim Nath succumbed to the injuries at the spot but this fact was not mentioned in the FIR i.e. in the application Ex.PB given to the SHO. The date on the application has been given as 10.11.2006 but the FIR was registered on 12.11.2006. There is no mention in this application that PW-3 Karambir Nath and PW-4 Soni Nath went on the next day towards Yamuna river and had seen appellant Khandu Nath and his father Kedar Nath in the clothes stained with mud. The statement of PW-1 Raj Nath being eye witness, cannot be believed. It looks unnatural that if PW-1 Raj Nath had seen Bhim Nath died at the spot after receiving injuries, why he had not taken the villagers and other persons to that spot to locate the dead body. It is stated that the dead body was lying at a distance of about 1 acre from the place of occurrence but not in the water of the river. Therefore, it could be easily located there on the next day. Even, in the application Ex.PB, there was no mention regarding the death of Bhim Nath. As per the statements of PW-3 Karambir Nath and PW-4 Soni Nath, they saw appellant Khandu Nath and his father Kedar Nath coming from Yamuna river side having their clothes stained with mud. This also does not connect the appellant with the crime. As per prosecution version, all of them were poor persons and beggars. Therefore, if their clothes were stained with mud, it does not prove anything to connect the appellant with the crime. As regarding the medical evidence, no definite opinion regarding cause of death was given. Even, as the dead body was in the advanced stage of decomposition, no opinion was given regarding the injuries. Therefore, medical evidence in the present case along with FSL report and Chemical Examiner's report could not establish the cause of death. In other words, there is no corroboration from the medical evidence to the statement of PW-1 Raj Nath. As per prosecution version, a lathi was recovered in pursuance of the disclosure statement of appellant Khandu Nath but that lathi was not blood-stained nor it was sent to FSL. The lathies are easily available in the houses and markets. Therefore, this recovery also does not connect the appellant with the crime. Similarly, as regarding the demarcation of the place of occurrence etc., till that time the dead body was already recovered. Therefore, everybody was knowing the place of recovery of dead body. The dead body was not recovered in pursuance of the disclosure statement of the appellant. It was lying in the open. As regarding extra judicial confession, we find that PW-2 Kiran was Exsarpanch of the village. At one stage, she stated that she called the police and handed over the appellant to the police. But, in the crossexamination, she stated that after meeting appellant Khandu Nath, she had gone to the police station at 6.00 P.M. and Khandu Nath was with her. No other person accompanied them. She also deposed that appellant Khandu Nath made statement that he had buried the dead body under the cover of sand and later on with the help of his father, he threw the body in the water of river. This statement in extra judicial confession has not been supported and corroborated by prosecution version. The dead body was not recovered from the water of the river as per statement of PW-1 Raj Nath. Otherwise also, it looks unnatural that once a dead body was buried in the sand, what was the purpose to dig it out and then to throw it in the open. Further, we find that in the extra judicial confession, it is stated to have been told by appellant Khandu Nath to PW-2 Kiran that they had taken liquor and Khandu Nath demanded expenses of liquor and on that account there had been an altercation between them. But, this version is notCrl. supported and corroborated by any cogent evidence. Further, PW-1 Raj Nath also stated regarding the same but in cross-examination, when confronted with his statement under Section 161 Cr.P.C., this fact regarding the dispute of liquor etc. was not found recorded there. Otherwise also, PW-1 Raj Nath had already told these facts regarding causing of injuries by appellant Khandu Nath to Bhim Nath and regarding his death, much earlier to this extra judicial confession. From the perusal of evidence on record, we find that statement of PW-2 Kiran does not repose confidence. PW-1 Raj Nath, in crossexamination stated that he did not get himself medico legally examined. On the next day of occurrence, police had met him in the police station. They were three i.e. he himself, Mukesh Nath and Bija Nath. Maya Devi was also with them. The police had recorded their statements on the same day when they had gone there. The mother of the deceased had given complaint to the police on the same day.
(2.) He also stated in cross-examination that the dead body was not recovered from the place of occurrence, rather it was recovered from the different place and it was lying near the bank of the river. He also stated in cross-examination that Vijay Kumar, Sarpanch of the village was informed on the evening of next day. Further, we find that no motive has been proved in the present case. The delay in recording the FIR has not been explained, which creates a reasonable doubt in the prosecution version. There are material improvements and material contradictions in the version of the statements of PWs.
(3.) Therefore, we find that a reasonable doubt exists in the prosecutionCrl. version and the benefit of doubt is to go to the appellant.