R. K.Saksena, J. -

Sarnam Singh, appellant, stands convicted under Section 302 of the Indian Penal Code with a sentence of imprisonment for life, per judgment and order dated the 28th of September, 1985 passed by Sri Ram Ji Lal, the then 1st Aditional Sessions Judge, Etawah, in Sessions Trial No. 60 of 1985. Sarnam Singh, accused has assailed this decision by means of this appeal.

2. An Ashram, known as Iksharanand Ashram is situate in village Birari within police circle Ekdil, District Etawah. Radhey Shyam Shukla (P. W. 1) was its Secretary and Sidheshwar Dayal (P. W. 5) was discharging the duties of' Pujari in the Ashram from before October, 1984 ; the former was then living at a distance of about one furlong from the Ashram whereas the latter was in occupation of a Kothri in the Ashram itsellf. This Ashram is to the immediate north of Etawah-Kanpur Mughal road, which runs east-west in the village. The nain entrance door of the Ashram faces the road and on each side of the entrance gate, small rooms, used as shops, facing south, exist. The rooms are owned by the Ashram but are in occupation of tenants. Raghubir and Hari Ram were running shops separately as tenants of the Ashram, Sarnam Singh, appellant, was also using a Kothari of the Ashram as tenant and was running "Cycle-repair-shop" in it. There is a chabutra in front of these shops on which Raghubir, Hari Ram (both tenants) and one Nathu Singh, brother of the Managing Director of a Co-operative Bank of that area were fatally wounded on the night between the 17th and 18th of October, 1984. Each had received incised wounds and Raghubir had suffered lacerated wounds also. The death of Raghubir was instantaneous while the other two persons breathed their last on the following day.

3. There is no constroversy about the identity of the above named three deceased persons, the date, time and place and the cause of death which was homicial ; the prosecution let in evidence to this effect, which was not assailed on behalf of the appellant even before the trial court.

4. Radhey Shyam Shukla (P. W. 1) produced a written report of the occurrence on the same night at 3.10 a.m. at police station Ekdil, which is about 1/2 Km, away from the Ashram. Shortly put, this report recites that the Pujari Baba Sidheshwar Dayal (P. W. 5) had come to the house of the author of the report at 2 a.m. and had told him that Raghubir, Hari Ram and Nathu Singh had been brutally assaulted at about 9-30 p.m. on the 17th of October, 1984 in the Ashram. The crime was registered and it is claimed by the Investigating Officer, Shrikant Dixit (P. W. 8), that the complicity of Sarnam Singh, appellant, in this crime came to his notice on the 20th of October, 1984 through Ram Babu (P. W. 2) before whom Sarnam Singh had made a confes­sional statement on the evening of the 19th of October, 1984. Per his further statement, Sarnam Singh, appellant, was arrested from his shop, referred to above, on the 22nd of October, 1984 at about 2 p.m. and on his pointing, the axe used in inflicting injuries on the person of the three deceased and some clothes having stains of blood were respectively recovered from a pit near the Tubewell of one Gyan Singh and the field of Gyan Singh, which is in close proxmity to the Tubewell in village Birari. On the basis of the evidence collect­ed in the course of investigation, he submisted charge-sheet against Sarnam Singh, appellant whose trial ended in conviction and sentence was awarded under Section 302 of the Indian Penal Code, as stated at the outset.

5. It may be recalled that there is no direct evidence for proving the alleged guilt of the appellant and the case rests on circumstantial evidence. The law relating to circumstantial evidence has been laid down in various deci­sions. Suffice it to refer to the guidelines given by the Supreme Court in Gambhir's case, reported in 1982 (2) SCC page 351. It is reproduced below : -

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;

(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of accused ;

(iii) the circumstances, taken cumulatively, should form a chain so completete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non-else ; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accussd but should be inconsistent with his innocence."

In this background we have to evaluate and scrutinise the evidence let in by the prosecution to substantiate the charge of murder framed against the appellant. It may be categorised as under : -

(i) recovery of blood-stained axe and chothes on the pointing of the appellant.

(ii) extra-judicial confession,

(iii) Last seen,

(i) Recovery of blood stained axe and clothes on the pointing of the appellant.

6. The evidence in regard to the arrest of the appellant, who was running a cycle-repair-shop in the Ashram is discrepant and appears to be a fabricated one. According to the Investigation Officer (P.W. 8) the appellant was arrested on the 22nd of October, 1984 at about 2 p.m. at his shop. The statement of Sidheshwar Dayal, Pujari, (P. W. 5) and Ram Tirath (P. W. 6) clearly shows that Sarnam Singh, appellant, was present at the scene of occurrence on the morning of the 11th of October, 1984, when the Investigating Officer had come there. This fact was accepted by the Investigating Officer in the course of cross-examination and he further stated that he had sent Sarnam Singh with a constable at 9 p.m. on the 18th of October, 1984 for medical examination becaue Sarnam Singh had told him that he received injuries at the hands of miscreants in the incident. The Pujari (P. W. 5) clearly stated that Sarnam Singh had rushed to call him from his house on that night and had given out before him at that time some criminals had made a murderous attack on the said three persons and that he too had been assaulted when he had tried to intervene. The statement of the accused under Section 313 of the Code of Criminal Procedure is that the 'Daroga' had taken him to the police station on the morning of the 18th of October, 1984, had belaboured him, had sent him to a Government Dispensary for medical examination on that night and kept him detained till the 23rd of October, 1984 at the police station. In other words, he claims that he remained in the custody of the police from the morning of the 18th of October, 1984 till he was lodged in jail on the 23rd of October, 1984. The explanation given by the Investigating Officer is that after his medical examination he escaped although a constable was with him. No such entry was made in the records maintained at the police station. It is inconceivable that Sarnam Singh, a poor illiterate rustic veillager, managed to escape from the custody of a police contsable on the night between the 18th and 19th of October, 1984. The circumstances indicate that he was all along in the custody of the police from the 18th onward as stated by him. The matter becomes clear from the statement of Radhey Shyam Shukla (P.W. 1). He stated in cross-examination that 'Daroga' had brought Sarnam Singh on the 22nd of October, 1984 to the Mandir (Ashram) in custody between 2-30 and 3 p.m. The witness further stated that 'Daroga' had said at the Ashram

"Mulzim ne apna jurm ikbal kiya hai ki kapare va torchiya waha para hai. Us wakt Sarnam Singh ne ham logo ke samne kuch nahi bataya ki kya chiz kanhapari hai"

. He further stated that after the recovery of the said articles, Sarnam Singh had made a disclosure statement about the guilt at the police station. He goes on to say that the articles (Kulari and clothes) had been, taken out before he had reached and that the 'Daroga'' had told the place where the blood-stained clothes were lying and some one had brought those clothes from the field. He is a witness of the relevant recovery memo prepared by the Investigating Officer. Truth appears to have come out in unguarded moment and the statement referred to above gives a death blow to the claim of the Investigating Officer and the other two recovery witnesses, Ram Babu (P. W. 2) and Ram Tirth (P. W. 6) about the place of arrest of Sarnam Singh and about the disclosure statement made by Sarnam Singh at the Ashram, in pursuance whereof Kulari and blood-stained clothes were recovered. The circumstances clearly indicate that right from the morning of the 18th of October, 1984, the accused remained in the custody of the police which created fabricated evidence about the arrest and disclosure statement. No implicit reliance can be placed on the evidence adduced by the prosecution in this respect.

(ii) Extra-judicial confession :

7. Lekhraj Tiwari (P.W. 3) is a teacher in a Primary School. He resides at a distance of about one furlong from police station Ikdil. It is his statement that Sarnam Singh, appellant, had come to him on the evening of the 19th of October, 1984 and had made a confessional statement to the effect that he had killed the said three persons. The witness further stated that Sarnam Singh required him to extend aid in the matter and speak to police for showing favour to him. The facts elicited in his cross-examination show that the witness had never been contacted earlier by the appellant for help of any nature whatsoever. It does not stand to reason that Sarnam Singh had rushed to him to make a confessional statement. Moreover, we have already shown above that Sarnam Singh was in the custody of the police from the morning of the 18th of October, 1984 till he was lodged in jail. The evidence of Lekhraj Tiwari is, therefore, palpably false and we have no hesitation in rejecting it.

(iii) Evidence of last seen

8. Sideshwar Dayal, Pujari (PW 5) has stated that Sarnam Singh was sleeping on a cot by the side of the deceased on that night. 3e that as it may, this by itself does not fasten any responsibility on the appellant and does not provide a clinching material to make the appellant responsible for committing such a heinous crime. This is also note-worthy that the prosecution has not shown any motive at all for the commission of such a dastardly crime. It is also pertinent to note that besides a sharp cutting weapon, a lethal weapon was also used in inflicting injuries on the person of Raghubir. It follows that the assailants were at least two in number. Further as the attack was simul­taneously made, the number non est necessarily be more. The Investigating Officer has not made any effort to find out as to who were the real assailants. He has no contrary created false and fabricated evidence to rope in an inno­cent person.

9. From the discussions made above, it is abundantly clear that there is no evidence at all to connect the appellant with the crime. The learned trial court has not properly scrutinised the evidence rather has ignored the circum­stances which speak in favour of the innocence of the accused. His conclu­sions are erroneous and cannot be allowed to stand.

10. Before parting, we would like to express that we find with a sense of anguish and heaviness of heart that a poor innocent man (appellant), who was bread-winner of his family and used to eke out his livelihood by repairing cycles, has been sobbing and crying in silence for over five years in Jail. The liberty guaranteed under Article 21 of the Constitution of India stands curtailed in the instant matter, obviously for the reason that there was no expeditious hearing of the appeal on account of back-log. It can be unhesitantly observed that right to speedy trial is not merely a twinkling star in the high heaven to be worshipped. The delay is evading the faith in our judicial system ; let us see what is in store.

11. In the result, the appeal is allowed. The judgment and order pas­sed by the 1st Additional Sessions Judge, Etawah on 28-9-1985 in Sessions Trial No. 60 of 1985 are set aside and the appellant is found not guilty and is acquitted on the charge framed against him in the above noted case. He is in jail. He should be released forthwith, if not wanted in any other crime.

12. The office shall send a copy of this order to the Chief Judicial Magistrate, Etawah for compliance. The Chief Judicial Magistrate, Etawah, will subm it compliance report within 7 days of the receipt of this order.

Appeal allowed.