UDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant was convicted under section 302 I.P.C. and was sentenced to imprisonment for life by the learned Sessions Judge, Udaipur by his judgment dated April 26, 1976.

(2.) The prosecution case is that on 25, 1975, Nandlal P. W. 1 submitted a written report that one man is lying dead beneath the road of village Kadia near whom one idol and one medal are lying. On this report proceeding under section 174 Cr. P.C. were undertaken by the S. H.O. Govind Joshi, Spot investigation was conducted and the dead body was sent for post-mortem examination. Dr. Gordhan Lal Dad P. W. 7 conducted the post-mortom examination of the body of deceased Roopa. He found four external injuries. On internal examination, he found liqui-fication of the brain tissus due to purification and he further found fracture of ribs from 1st to 4th anterior side on the left side and fracture of ribs from 1st to 3rd anterior on the right side and there was a wound 1" x 1/2" on pericardium. In his opinion the cause of death was shock as a result of hemorrhage and according to him the injuries were sufficient in the ordinary course of nature to cause death. On the receipt of this report, the S. H. O. Bharat Singh P.W. 9 registered a case under section 302 I.P.C, He arrested the accused on June 24, 1975 vide memo Ex. P. 6 and on his information he visited the spot & he prepared memo Ex.P.7. He conducted investigation from the witnesses and thereafter presented charge sheet against she accused. The accused was ultimately tried and during the trial the prosecution examined in all nine witnesses. the prosecution evidence primarily consists of the evidence of P.W. 4 Kana and P. W. 5 Bena who are said to have seen the accused in the company of the deceased on the night of vaishakh Sudi 14. Besides this evidence, the other material evidence consists of the testimony of Dalu, the brother of the deceased and the accuse. Relying on the evidence of last seen and the conduct of the accused as deposed by Dalu P.W.8, the learned Sessions Judge entered into a finding of guilt of the appellant & consequently convicted and sentenced him. The appellant has preferred this appeal through jail.

(3.) We have heard Mr. B. Advani, learned Amicus Curiae for the appellant and Mr. R.P. Dave the public prosecutor for the State. Having heard the learned counsel for the parties, we are of the opinion that the conviction recorded by the learned Sessions Judge cannot be sustained. The connecting evidence is so flimsy & weak that on the basis of such evidence we cannot find the appellant guilty of the offence under section 302 I.P.C. We may refer to the evidence of Kana and Bena P.W.4 and P.W.5. According to them about eight persons from Bena, one from Godan and two from Barda went to the village Mulela to purchase idols. It is said that Ex.l madal & Ex.2 idol were purchased by Roopa deceased of village Godan. They then visited the village Kadia and there they went to the hotel of Nandlal P.W. 1 where they had seen the accused, and the deceased said about the accused that he is his brother. There was a lighted lentern lying at the hotel. They left the hotel leaving behind the accused and the deceased. Although, they told the deceased to move from there but it is said that the deceased told them that the accused is his brother, so he will talk to him. No identification parade was got conducted during the investigation and without test identification parade the learned Sessions Judge relief on the identification made by these two witnesses of the accused at the trial. Without test identification parade in our opinion it is unsafe to rely on the testimony of these two witnesses. Besides that the testimony of these two witnesses is not in any way pointer to the guilt of the accused. When and at what time they left the hotel, in whose company the deceased left the hotel is not on record. Nandlal P.W. 1 had stated that he does not know as to whether the deceased took tea at his hotel or not. With regard to the deceased, Nandlal makes no statement. He has simply stated that the accused did come to his hotel for taking tea. Thus there is no evidence on record that the deceased left the hotel in the company of the accused. According to P.W. 1 Nandlal, the dead body was lying at a distance of about 25 ft. from his shop on the road. If both would have left the hotel in the night after taking tea and after departure of Kana and Bena P.W. 4 and P.W. 5, Nandlal would have either seen or attracted to the scene of occurrence if the occurrence would have taken place at that time. Thus the evidence of P.W. 1, 4 and 5 does not in any way connect the accused with the commission of the offence. Further there was no motive with the accused. The learned Sessions Judge pressed into service the statement of Dalu showing the conduct of the accused Uda. According to Dalu, Uda returned to the house in the morning of 'Poonam' but by then Roopa deceased had not returned. So the accused was asked about Roopa. He pleaded his ignorance. When he was asked to accompany him to make a search of Roopa, he told that he is having pain in his legs, so he did not accompany. When the dead body was recovered and was taken to the hospital according to Dalu, he returned to the house for taking the 'motbirs'. At that time also the accused was asked to accompany them. Thereupon the accused said that they may proceed, he will come in the morning. In the morning when an enquiry was made about the accuse, it was informed that he had already left saying that he was going to Udaipur. It may be stated that Dalu in his cross examination has admitted that another brother of the deceased namely Deva was also not at the house. Deva was also not present upto the time of cremation of the dead body. The alleged conduct of the accused Uda is not such on the basis of which a finding of guilt can be recorded. Suspicion though may arise, yet suspicion cannot take the place of proof. Thus there is absolutely no evidence on record which may connect the appellant with the commission of the offence of murder of Roopa.