- (1.) SHIV Charan, J. The instant appeal has been filed against the judgment and order dated 19-12-2000 delivered by Sessions Judge, Firozabad in Special Session Trial No. 80 of 1997, State of U. P. v. Harish Kumar alias Bablu, under Sections 302/394 I. P. C. , P. S. Tundla, District Firozabad. By the impugned judgment and order the learned Sessions Judge convicted the appellant Harish Kumar alias Bablu for the offences under Section 302/394 I. P. C. and sentenced him to undergo life imprisonment for the offences under Section 302 I. P. C. and further sentenced him to undergo R. I. for 10 years and fine of Rs. 5,000/-, failing which to undergo imprisonment for a period of 10 months for the offences under Section 394 I. P. C. The sentences awarded are to run concurrently. The prosecution story as stated in the F. I. R. is as follows :
(2.) RAM Kishan son of Chunni Lal resident of Tundla lodged the F. I. R. on 2-1-1997 at about 7. 30 p. m. It has been alleged that he is carrying on the business of gold smith at his house. On 2-1- 1997 at about 6. 00/6. 30 p. m. he alongwith his sister's son Vinod Kumar were returning from the market after purchasing domestic articles and they were going up stairs in the house then the accused Harish Kumar alias Bablu was descending from the stairs and he escaped after pushing both of them. When both of them went in side the house then he saw his wife Raj Kumari lying dead in a pool of blood on the floor. She had several injuries of knife on the body. It was Harish Kumar alias Bablu who committed the murder of his wife by causing repeated injuries of knife. The gold chain from the neck and gold earing, which she was wearing and 3 gents golden rings and four ladies gold rings lying in a Kanister were taken away. On the day of occurrence the accused came at the house of the complainant at about 1. 00 p. m. to dispose of one silver chain, but he refused to purchase the silver chain and then he went from there. On earlier occasion also he happened to visit to his house to sell certain jewelery but he never purchased the jewelery from him, because he is a criminal type of man. After registration of the case investigation was entrusted to the S. I. , Shish RAM. During investigation he visited at the spot. Earlier to his visit on the spot the then S. H. O. P. S. Tundla Shukh Lal also reached at the spot. On the instruction of S. H. O. S. I. Ghanshyam Sachan prepared the inquest report and fard of articles of Raj Kumari alongwith other documents for sending the dead-body for post-mortem. Investigating Officer conducted search at the house of the accused and from his house clothes which the accused was wearing at the time of the incident were recovered. Shirt and muffler were washed by the accused-appellant which had stains of blood. One sweater having blood stains was also recovered from behind an almirah, for which recovery memo was prepared on the spot. He also prepared the site plan of the place of occurrence and recorded the statement of the complainant and other witnesses. After recording the statement of the witnesses and completing all the formalities he submitted charge-sheet report. Before the Trial Court the prosecution produced RAM Kishan (P. W. 1) and Vinod (P. W-2) as the witnesses of facts and incident. Dr. U. S. Tiwari (P. W. 3) conducted the autopsy of the dead-body of the deceased. RAM Kishan also proved written F. I. R. Ext. Ka-1. Dr. U. S. Tiwari proved the documents sent by the I. O. alongwith dead- body Ext. Ka-2 to Ka-6. He also proved the post-mortem report Ext. Ka-7, clothes and articles taken from the dead- body of the deceased Raj Kumari Ext. Ka-1 to 14. The Head Constable Manohar Lal (P. W. 4) is a formal witness. He proved the chick F. I. R. and also copy of the G. D. Ex. Ka-5, Ext. Ka-8. Shish RAM (P. W. 5) is the Investigating Officer, he proved the fard recovery Ext. Ka-9, and clothes of the accused, Ext. 15 to 17 and rite plan Ext. Ka- 10. Ghanshyam Sachan (P. W. 6) is also the formal witness. He prepared the inquest report and also prepared the furd of some Jewelery taken from the body of the deceased Ext. Ka-11. Ext. Ka- 12 is the inquest report. He also proved other documents prepared, Ext. Ka-2 to Ka-5, blood stained and simple earth which were taken into custody and proved Ext. Ka to 15. The accused appellant in his statement under Section 313 Cr. P. C. denied from all the allegations and evidence of the prosecution. He further stated that Ashok, the brother of Vinod kidnapped his younger brother, Manish, about 15 years earlier. His father lodged an F. I. R. at Police Station Tundla but the matter was compromised due to which the relations with the complainant the maternal uncle of Vinod were strained. Due to enmity he has been falsely implicated in the case, that he is a innocent person. Vinod after commencement of the trial in order to change his statement demanded Rs. 30,000/- from him. But he could not pay this amount, but no defence evidence was produced by him. We have heard learned Counsel for the appellant Sri Sudhir Kumar and learned A. G. A. for the State. We have also perused the entire material on record.
(3.) IT has been argued by learned Counsel for the appellant that there is no direct evidence against the appellant of the factum of murder. Only evidence which is produced against the appellant is that when the complainant and the witness were returning from the market after purchasing and going up stairs in the house then the accused was descending from the same stairs and escaped from there. IT was only, when these persons reached in side the house up stairs, they saw Raj Kumari lying dead. From this evidence no inference can be drawn about the complicity of the accused in the murder. That the place of incident situated in a thickly populated area and it is not probable that in such a thickly populated area a person going up stairs would not be noticed by any one of the vicinity. He also stated that no other circumstantial evidence was collected by the I. O. The son of the deceased and the complainant, who vas present at the spot was not interrogated by the I. O. He was present at the house when the complainant and witness went to the market. He was also not produced for evidence. On the ground floor, there were shops in the house of the complainant but the shopkeeper were also not interrogated by the I. O. , who were a material witnesses of the incident. He also argued that prior to the arrival of the I. O. on the spot the S. H. O. reached on the spot and they started preparing inquest report of the dead- body. IT shows that even without registering of the case, process of preparing inquest report was started. The name of the accused has also not been mentioned in the inquest report. That Ram Kishan and Vinod, witnesses are close relations to each other and the deceased was the wife of Ram Kishan. The statements of these witnesses are rot reliable. False recovery of the clothes of the deceased having blood stains had been shown. Even the clothes of the deceased were not sent for chemical examination in order to ascertain that there was human blood on the clothes. The learned Counsel for the appellant further argued that there is a considerable gap in the age of complainant Ram Kishan and his wife- deceased. The complainant was aged about 67 years at the time of incident, whereas the age of the deceased was 45 years according to the post-mortem report and this considerable gap of age shows that it was a case of illicit relations. Some unknown person committed the murder of Raj Kumari due to this reason. Learned A. G. A. disputed the argument of the learned Counsel for the appellant and further argued that the circumstance which has been established by the prosecution evidence shows that it was the accused, who committed the murder of Smt. Raj Kumari and he also committed theft of golden jewelery from the house. When the complainant and the witnesses were going up stairs then the accused was descending from the stairs and he by pushing the complainant and witness Vinod escaped from the spot. After words blood stains clothes of the deceased were also recovered from the house of the accused. The F. I. R. was lodged promptly and appellant was named in the F. I. R. This fact ruled out any possibility of false implication of the appellant in the commission of the offence.;