Madan Mohan Lal, J.:— This is a criminal appeal against the judgment and order dated 6-11-1978 passed by Sri V.S Agarwal, the then III Additional Sessions Judges, Agra by which he has convicted the abovenamed three appellants under Sections 302 I.P.C and 2011 I.P.C (without the help of Section 34 I.P.C) and has sentenced each of them to undergo imprisonment for life and rigorous imprisonment for one year respectively thereunder.
2. Ajai Singh, appellant, and his father Ausari Singh, were running a transport company by the name of Local Transport and Ajai Goods Carrier, Shyam Lal and his father Natthi Lal, informant, had five trucks which were attached to the said company. On 6-7-1977 Natthi Lal informant and his son Shyam Lal, deceased, separated and opened their own separate transport company by the name and style of Hind Local Transport Co. Ajai Singh appellant and his father Ausan Singh felt aggrieved because they started incurring losses oil account of the same. Ghanshyam appeallant had fired a shot at Shyam Lal on 3-12-197 for which he was being prosecuted under Section 307 I.P.C Ajai Singh appellant got friendly with the said Ghanshyam appellant Munna alias Bir Bahadur appellant was the truck driver of Ajai Singh and Satish accused was his friend. It is alleged that on 18-7-77 at about 5 p.m Ajai Singh and Ghanshyam advanced threats to Shyam Lal deceased that either he should close his own separate transport company or face consequence of death.
3. According to the case of the prosecution on 18-7-1977 at about 10.30 p.m when Shyam Lal deceased was getting truck No. U.P.U, 8274 repaired in Transport Nagar, Agra a 11 the three appellants, along with Satish accused, came there in their own truck No. 2645 and told Shyam Lal that truck No. U.T.R 6147 had got stuck in the jungle of Bainpur and that he should reach there. Shyam Lal, deceased replied that at the moment he had no arrangement for conveyance because his other truck was under repair. On the same appellants and their companion Satish offered to give Shyam Lal deceased a lift; Shyam Lal deceased accompanied them in their truck towards Sikandra and thereafter he was not seen. Natthi Lal informant remained searching for him but when he failed to trace his son Shyam Lal he went to the Police Station Hari Parbat, Agra and lodged report of the incident on 19-7-1977 at 9.10 p.m
4. In support of its case the prosecution examined fifteen witnesses P.W 1 Natthi Lal, P.W 2 Pooran Singh, P.W 3 Sirajuddin and P.W 4 Asimuddin are the witnesses in whose presence Shyam Lal was said to have been taken away by the appellants and Satish, P.W 1 Natthi Lal also deposed about the motive P.W 5 Bachchu Singh was driver of Truck No. U.T.R 6147. He deposed that his truck has never got stuck in the jungle of Bainpur or any where else. P.W 6 Har Prasad had seen one yellow coloured truck on a pathway of his village. He has heard cries for help from the said truck. P.W 8 Baboo Lal had seen Ajai Singh and Ghanshiam appellants standing near Truck No. 2645 parked at Jamuna Bridge, He heard a noise of a thing falling in Jamuna at about 11.15 a.m P.W 9 Kammod Singh was cleaner of the aforesaid truck No. U.P.U 2645. He had scratched spots of blood from the said truck at the instance of Ajai Singh and Munna appellants. P.W 10 Autar Singh is witness of the taking of bloodstained wood etc. from the aforesaid truck and blood-stained and unstained earth from Jamuna Bridge etc. Ajai Singh and Ghanshiam appellants were said to have made extrajudicial confession before P.W 11 Ramdhani. P.W 12 Bhoopo Singh was clerk constable at Police Station Hari Parbat. On 19-7-1977 he had received written report of the incident from Natthi Lal and on the same he had registered this case P.W 13 Kali Charaii is a formal police witness P.W 14 Gaya Prasad is a police photographer. The investigation of this case was conducted by P.W 15 Asha Ram Kataria, Sub-Inspector.
5. The appellants in their statements recorded under Section 313 Cr. P.C admitted that Ajai Singh, and his father Ausan Singh had a transport company, that the trucks of Shyam Lal deceased and his father were attached to the said company and that from 6-7-1977 Shyam Lal deceased had opened his own transport company. The appellants, however, denied rest of the case of the porsecution. The appellants did not examine any witnesses in defence.
6. The learned trial court did not find the case agaisnt Satish accused free from doubt. Therefore, Satish accused was acquitted. The learned trial court, however, accepted the case set up and the evidence produced by the prosecution against the three appellants and had accordingly convicted and sentenced them as aforesaid. Aggrieved by the same the appellants have filed this appeal.
7. We have heard the learned counsel for the appellants and the Assistant Government Advocate and perused the record carefully. This is a case purely of circumstantial evidence, where not even the deadbody was recovered.
8. The first circumstances on which the prosecution has tried to place reliance is that the relations between the appellants and Shyam Lal deceased were strained and that, therefore, the appellants had a motive to murder Shyam Lal deceased.
9. It has come on record that Ajai Singh appellant and his father Ausan Singh were runningat Agra a Transport company by the name and style of local Transport and Ajai Goods Carrier, with which five trucks belonging to Shyam Lal deceased and his relations were attached. From 6-7-1977 Shyam Lal and his father separated and opened their own transport company by the name and style of Hind Local Transport Co. It is stated that because Ajai Singh appellant started incurring huge losses, hence he was aggrieved by the opening of the said separate transport company. It is also an admitted fact that for making firing on Shyam Lal on 3-12-1975, Ghanshyam appellant was being prosecuted under Section 307 I.P.C It is further stated in the first information report that on 18-7-77 at about 5 p.m Ajai Singh and Ghanshyam appellants had advanced a threat that either Shyam Lal deceased should close his own transport company and once again attach his trucks with the transport company of Ajai Singh appellant or face the consequence of death. Although motive is a strong circumstance in a case of circumstantial evidence, yet, as would be seen hereinafter the present case is a case where the said circumstance tends to help to destroy the case of the prosecution instead of supporting it.
10. The second circumstance alleged by the prosecution is that Shyam Lal was taken away by the appellant To prove the same the prosecution has examined P.W 1 Natthi Lal, informant, who is the father of Shyam Lal deceased. He has deposed that on 18-7-1977 at about 10.30 p.m, when Shyam Lal deceased was getting his Truck No. UPU 8274 repaired, three appellants, along with Satish, in his presence came there in their truck No. U.P.U 2645 and took Shyam Lal after telling him that his other Truck No. UPR 6147 and stuck upon the jungle of Bainpur, and that thereafter Shyam Lal was not seen. In our opinion, if the said evidence of P.W 1 Natthi Lal is to be believed, then it means that Shyam Lal, deceased, in the very presence of his father Natthi Lal at an odd time had willingly accompanied his enemies. Shyam Lal deceased could have conveniently avoided going with his enemies at that odd time. At least his father Natthi Lal, informant, could have alerted Shyam Lal and would have restrained him from going with his enemies at that time. Shyam Lal had five trucks of his own and of his relations. He was a transporter, he could have arranged for some conveyance also, and in the normal course even if he had believed that his truck had got stuck in a forest he could have gone with his own help to the said spot at his convenience.
11. The learned Assistant Government Advocate has urged before us that Ghanshyam appellant was originally not seen by P.W 1 Natthi Lal in the truck and it was only after the truck had left with Shyam Lal that P.W 1 Natthi Lal had seen Ghanshyam sitting in the Dala of the said truck. Athough the first information report did not give any such indication even then we are of the opinion that when Ghanshyam appellant had been spotted and seen in the truck and when he was inimical to Shyam Lal so much so that previously he had made an attempt to murder Shyam Lal, Natthi Lal would have immediately arranged for help and russhed to chase the enemies, who had taken away his son Shyam Lal. This was not all according to his own admission P.W 1 Natthi Lal had been informed on the morning of 19-7-1977 by his own truck driver P.W, 5 Bachchu Singh that his truck had not stuck up any where and that Shyam Lal deceased and Ajai Singh appellant etc. had not come to him; but in spite of the same he did not rush to the police station to lodge a report of the incident and to seek police help.
12. Shyam Lal deceased is said to have been abducted on 18-7-1977 at 10-30 p.m but the first information report in this case was lodged with quite delay on 19-7-1977 at 9.10 p.m i.e after an interval of about twenty three hours.
13. The evidence of P.W 1 Natthi Lal tends to show that probably the first information report was lodged after two days, after the incident, which means that if the first information report was lodged on the night of. 19-7-1977, the incident had taken place on 17-7-1977 and not on 18-7-1977, as-alleged by the prosecution. P.W 1 Natthi Lal in his evidence has stated that on the next day, i.e, 19-7-1977, at 8.30 a.m when his truck returned and the truck driver told him that his truck has never stuck up and he was never met by Shyam Lal deceased and Ajai Singh etc. he arranged for a truck and went out to search for his son and he searched for him for the day and night and that thereafter he went on the night of 19-7-1977 to lodge a report of the incident.
14. This evidence shows that P.W 1 Natthi Lal got concerned only after P.W 5 Bachchu Singh, truck driver met him on the next morning at 8.30 a.m and thereafter one more night was spent in searching for Shyam Lal before the first information report was lodged. This means that the first information report was lodged after two nights. Any-way, the first information report was lodged with delay. The delayed first information report, therefore, does not lend corroboration tot he version given by P.W 1 Natthi Lal.
15. Besides P.W 1 Natthi Lal, the prosecution also examined P.W 2 Pooran Singh, who deposed that the appellants in his presence had taken away Shyam Lal deceased in their truck on that night It may be noted that not only this witness is an interestsed witness because he has in service of Natthi Lal, informant, for the last 4-5 years but also his evidence otherwise is not convincing. This witness did not support the case of the prosecution against Ghanshiam appellant and simply named the other appellants and Satish accused having come to take away Shyam Lal deceased in their truck on that night. We are not impressed by his evidence. Athough P.W 3 Sirajuddin and P.W 4 Asimmuddin were also witnesses of the same fact but they did not support the case of the prosecution. Therefore, we are not convinced that Shyam Lal deceased was taken away by the appellants in truck No. U;P.U 2645 on the night of 18-7-1977.’
16. The next circumstance which is relied upon by the prosecution is that Truck No. U.P.U 2645, on which Shyam Lal deceased had been taken away, was seen going towards Sikandara and was thereafter spotted on a lonely pathway and that cries of save-save were also heard from the said truck at that time. Only two witnesses, i.e P.W 6 Khem Chand and P.W 7 Har Prasad, have been examined to prove the said circumstance. The evidence of both these witnesses appears to be useless because by the same the appellants or any of them is not connected.
17. P.W 6 Khem Chand has simply stated in his evidence recorded on 21-9-1978 that about 1-1-1/4 years ago when he was going to the village and was near the “Kiran Hotel” on Mathura Road he saw one truck of Ausan Singh coming towards the side of Mathura and that thereafter when he reached near the liquor shop of Sikandara he saw the said truck parked. This witness at one stage ventured to state that Munna driver was standing but in the same sentence in the examination-in-chief itself he immediately added that he could not recognise the said Munna. He did not name any other appellant he also admitted that because he was illiterate, hence he could not read the number of the truck. In our opinion, the evidence of this witness does not connect the appellants or any of them with this crime in any way whatsoever.
18. P.W 7 Har Prasad stated in his evidence recorded on 21-9-1978 that one year and 1-2 months ago his cow had been lost and that when he was returning after searching his cow, he saw one yellow coloured truck having come from Sikandara parked and from the said truck he heard cries for help. Hearing the said cries he went away. He admitted that he did not recognise anybody. He was not a are as to whom the said truck belonged. This witness is not merely a solitary chance witness but his evidence is also useless because it does not connect any of the appellants with this crime in any manner whatsoever.
19. The learned Assistant Government Advocate has urged before us that because Truck No. U.P.U 2645 which was used by the appellants in this crime was yellow, hence the aforesaid truck was the same yellow truck belonging to the appellants. We find no merit and force in the said argument because the appellants could not be said to be the owners of each and every yellow truck going on the road.
20. The other circumstance which is relied Upon by the prosecution against the appellants is that the aforesaid truck was also seen in the midnight at Jamuna Bridge along with Ajai Singh and Ghanshiam appellants and at the said time something was thrown in the river.
21. P.W 8 Babu Lal is a solitary witness who was examined to prove the said circumstance. He has deposed that when he was returning after seeing the cinema show that at 1-1-1/2 a.m and reached the Jamuna Bridge he saw Truck No. 2645 parked there. He found Ajai Singh and Ghanshiam Singh appellants standing near the said truck. He further deposed that he heard a Dhamaka in the Jamuna river but could not see which ithing had created the said “Dhamaka”. “Dhamaka” can also mean an explosion. This witness admitted that two other persons were also going on the road at that time and other trucks were also passing there. This witness did not state at all either that the aforesaid “Dhamaka” (either an explosion or a thud) took place near about the aforesaid truck or was made and created by Ajai Singh and Ghanshiam appellants. When this is so and also when a noise in the mid of night can be heard from a long distance, it cannot be said either that Ajai Singh and Ghanshiam had created the said “Dhamaka” or in any way were connected with the same. This witness was a chance witness. Solitary evidence of such a chance witness is difficult to be believed specially when he admitted that he did not tell the aforesaid incident to anybody. Besides, we are of the opinion that the assailants would not have selected the aforesaid bridge, which was frequented by people and trucks etc., for dumping the deadbody when they could have driven the truck to secluded place to dispose of the deadbody there. We are neither impressed by the evidence of P.W 8 Babu Lal nor are willing to accept that the said evidence goes so far to establish that Ajai Singh and Ghanshiam appellants at that time had thrown the deadbody of Shyam Lal in the Jamuna River.
22. The prosecution has also produced evidence that some stains of blood were found in the aforesaid truck. P.W Kammod Singh was a cleaner of Truck No. 2645. He deposed that at the instance of Ajai Singh and Munna appellants he had washed and scratched blood from the said truck. This witness can hardly be relied upon becuase according to his own admission he participated in the crime while trying to remove and conceal the evidence about murder. He has admitted that he was taken away by the police on 21-7-1977 and was freed on 22-7-1977. The learned counsel for the appellants has urged before us that possibly on a promise of help to the prosecution the police had released this witness from detention. Any way evidence of such a witness does not inspire confidence.
23. P.W 10 Autar Singh had deposed that blood stained articles from the aforesaid truck were taken in his presence. In our view, even if it may be believed that some stains of blood were found in the aforesaid Truck No. U.P.U 2645 and the articles placed therein, it cannot connect any of the appellants with the same or with this crime. In our view, even if it may be said that the said truck was owned either by Ajay Singh appellant or his father Ausan Singh it would be difficult to say that merely on account of ownership the said persons would be responsible for the said blood. Similarly, if Munna alias Bir Bahadur appellant was driver in any of the trucks owned by Ajai Singh appellant or his father Ausan Singh, he would not be held responsible for the said blood. Whatever the position may be, the prosecution has not succeeded to prove that the said blood was human blood, in our view, when there is no evidence that the aforesaid stains of blood were of human, the said circumstance cannot be used against the appellants or any of them in any view of the matter.
24. The last circumstance relied upon by the prosecution is that Ajai Singh and Ghanshiam Singh appellants had made an extra-judicia confession before P.W 11 Ram Dhani. This witness stated in his evidence that on the second day of this incident Ajai Singh and Ghanshiam appellants came to him and told that after murdering Shyamlal they had thrown his dead body in the Jamuna River. In the first place it may be observed that according to the case of the prosecution itself this extra-judicial confession is not wholly true because they were not two persons but they were four persons who had committed the murder of Shyam Lal Again, this witness had deposed that it was at about 7-8 P.W that when he had gone to ease himself, then Ajai Singh and Ghanshiam appellants had come to him to make the aforesaid extra judicial confession. What a time. Then there is nothing on record to show as to what was the special reason for Ajai Singh and Ghanshiam appellants to make the extrajudicial confession before this witness. P.W 11 Ram Dhani has admitted that once he was prosecuted for murder but was ultimately acquitted. He is the solitary witness of the said extra-judicial confession; This witness did not tell about the extra-judicial confession to any one, including the police. P.W, 16 Sri Asha Ram Kataria, I.O, has admitted that he had recorded the statement of this witness as late as on 16-8-1977, i.e after about a month. The fact that the statement of this witness was recorded by the Investigating Officer after about a month shows that this witness was simply a got up witness. Any way, the solitary evidence of such a witness is not sufficient to prove the aforesaid alleged extrajudicial confession.
25. In a case of circumstantial evidence it is necessary, firstly, that the circumstances from which the conclusion of guilt is to Be drawn should be fully established, secondly, that the facts so Established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable any other hypothesis except that the accused is guilty, thirdly, that the circumstance should be of a conclusive nature and tendency; fourthly, that they should exclude every possible hypothesis except the one to be proved, and, fifthly, that there must be a chain of evidence so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused, and must show that in all human probability the act must have been done by the accused.
26. In this case except for the fact that the relations between the parties were strained no other circumstances have been established. The motive in this case is not consistent with the hypothesis of the guilt of the appellants, but on the other hand, tends to show that Shyam Lal deceased would have in no case accompanied the appellants specially at an odd time and also when there, was no compelling reason. In this case there is no chain of evidence so complete as to say that in all human probability the murder of Shaym Lal must have been committed by the appellants or any one of them. Thus, the prosecution has failed to prove that the appellants or any of them had committed this crime.
27. Accordingly, this appeal is allowed and the conviction and the sentences of the appellants under Sections 302, and 201, I.P.C are hereby set aside. They are held not guilty of the said offences. They are acquitted of the same. They are on bail. They need not surrender to their bail bonds, which hereby stand discharged.
28. Appeal allowed.