HON'BLE JOSHI, J. - (1.) THIS criminal appeal preferred by appellant Balchand S/o Dalu, by caste Meghwal, resident of Ladpura, Police Station Rawatbhata, District Chittorgarh is directed against the judgment and sentence dated 23.04.2008 passed by the Additional District and Sessions Judge No. 2, Chittorgarh in Sessions Case No. 42/2007.
(2.) THE brief facts of the case are that on 20.04.2007 complainant Govardhan submitted a written report at Police Station Rawatbhata to the effect that his grandmother Kanwari Bai, who was living with him at village Ladpura, used to keep all her ornaments with her and she used to go away from home without telling anybody. In the evening, his grandmother left the home and stayed at the house of Prabhu in the night. When he came to Ladpura in the evening, he came to know that dead body of his grandmother is lying on the way in front of the house of Prabhu Meghwal. On making enquiry, Prabhu told that during the day Balchand inflicted injury to Kanwari Bai, due to which she died. On inspecting the dead body, it was found that there were injuries on head and back and all the ornaments that she was wearing were missing. On the aforesaid report, FIR No. 70/2007 under Section 302, 394 IPC was registered and investigation was commenced by police. During the investigation, statements of witnesses were recorded, autopsy was conducted on the corpse of the deceased and the accused appellant was arrested and in pursuance of the information recorded under Sec.27 of the Indian Evidence Act, blood-stained weapon of offence and ornaments were recovered. After usual investigation, chargesheet was presented in the Court of Judicial Magistrate, 1st Class, Rawatbhata from where the case was committed to the Court of Additional District & Sessions Judge No.2, Chittorgarh Camp Begun. Accused appellant Balchand was charged with offences under Sec.302 and 394 of the IPC. In support of the alleged charge, prosecution examined 24 witnesses. The incriminating evidence available on record was put to the accused for his explanation under Sec.313 Cr.P.C. and accused produced no evidence in his defence. Learned trial Court after hearing both the parties, convicted the accused appellant under Sec.302 and 394 of IPC and recorded the order of sentence as under: (i) Under Sec. 302 IPC Life imprisonment and fine Rs.1,000/-, in default of payment of fine to further undergo one month's imprisonment. Iii) Under Sec. 394 IPC - 10 years imprisonment and fine Rs. 1,000/-, in default of payment of fine to further undergo one month's imprisonment. In reaching the conclusion as aforesaid, the trial Court relied on the evidence of PW8 Prabhulal, who stated in his statement recorded during trial that accused appellant brought the body of deceased Kanwari Bai in front of his house and after putting it in front of his house ran away out of fear. Further, the trial Court held that the statement of PW8 Prabhulal had been corroborated by PW9 Umkar and PW11 Govardhan. While relying on the evidence of recovery of ornaments made in pursuance of the information recorded under Sec.27 of the Indian Evidence Act, the trial Court held the appellant accused guilty under Sec.394 of the IPC.
(3.) THE counsel for the appellant assailed the judgment of the trial Court and contended that the trial Court in Para No.22 of the judgment held that the statement of eye witness PW8 Parbulal was corroborated by PW9 Umkar and PW11 Gordhan. Whereas First Information Report Ex.P/14 itself contains this fact that Prabhulal Meghwal informed about the fact of incident to Umkarlal s/o Fatehji Meghwal. Another contention of the learned counsel for the appellant is that the learned trial court convicted the accused appellant under Section 394 IPC on the basis of recovery made by the Investigating Officer in pursuance of the information furnished under Section 27 of the Indian Evidence Act vide recovery memo Ex.P.20. THE motbirs of the above recovery memo Ex.P.20 were examined as P.W.16 Rajaram and P.W.17 Ratiram and the same were the witnesses who were the motbirs for the recovery of weapon of offence alleged to be axe which was recovered vide recovery memo Ex.P.19. Learned counsel for the appellant argued that in the cross-examination both these witnesses P.W.16 Rajaram and P.W.17 Ratiram deposed that their signatures were obtained on blank papers by the police in the village and they have denied the fact of recovery of articles. Moreover P.W.17 Ratiram deposed that for what purpose his signatures were obtained by the Investigating Officer, he does not know. In the absence of corroboration by independent witnesses of the fact of recovery of the ornaments as well as the weapon of offence, the testimony of the Investigating Officer cannot be relied upon, whereas the learned trial court solely relying upon the evidence of P.W.20 Bhagwan Sahay Investigating Officer and convicted the appellant accused under Section 394 I.P.C. Regarding the offence under Section 302 I.P.C., the main contention of the learned counsel for the accused appellant is that P.W.8 Prabhulal who is said to be the eye-witness of the offence deposed in his statement that soon after the incident when Balchand brought the body of Kanwari Bai in front of his house, he immediately ran away from his residence and went to the residence of Umkar and when several persons gathered there, he came back. In the cross-examination, this witness P.W.8 Prabhulal deposed that on the date of incident he and his wife both went to the residence of their daughter. In view of the statement of P.W.8 Prabhulal, the evidence of P.W.9 Umkar and P.W.11 Gordhan cannot be relied as eye-witnesses. The contention of the learned counsel for the accused appellant is that non-disclosing of the fact of the incident by P.W.8 Prabhulal to any person in the village is not according to normal human conduct and behaviour and solely on the basis of the evidence of P.W.8 Prabhulal, the conviction of the appellant cannot be sustained, moresoever when the corroborating evidence of the recovery of blood-stained weapons and ornaments has not been proved by the independent motbirs of Ex.P.19 and Ex.P.20. Learned Public Prosecutor vehemently controverted the above arguments of the learned counsel for the appellant/accused and defended the judgment of the learned trial court and further argued that P.W.8 Prabhulal is the sole eye-witness in the case and his evidence cannot be thrown away and the recovery of the blood-stained weapon and ornaments as proved by P.W.20 Bhagwan Sahay very well prove the offence under Section 302 and 394 I.P.C. against the accused appellant. We have considered the rival submissions and scanned and scrutinized the oral as well as documentary evidence available on record. So far as the offence under Section 394 I.P.C. is concerned, whether the sole evidence of the Investigating Officer regarding the recovery of the blood-stained weapon and ornaments can be relied upon is the question of fact and it depends upon the facts of each case. Particularly in this case when the independent witnesses P.W.16 Rajaram and P.W.17 Ratiram have not corroborated the fact of the recovery made vide Ex.P.20, we think it proper not to rely upon the evidence of the Investigating Officer P.W.20 Bhagwan Sahay and solely on the basis of the evidence of the Investigating Officer, the fact of recovery of ornaments in pursuance of the information given by the accused appellant under Section 27 of the Indian Evidence Act cannot be relied upon. So far as the evidence of P.W.8 Prabhulal is concerned, he has stated that just after the incident, when the accused appellant brought the body of the deceased Kanwari Bai in front of his house, he and his wife left their house and ran away to the house of their daughter. The conduct of this witness is not according to natural human behaviour because when the dead body of Kanwari Bai was brought in front of his house by the accused appellant, the natural conduct for him was to inform any of his neighbours or immediately rush to the police station to inform about the incident or to inform the relatives of the deceased, but none of the above steps were taken by this witness and he kept mum for reasonable good time and when other persons from the neighbourhood reached there, P.W.8 Prabhulal alongwith his wife came on the spot and informed about the incident to the relatives of the deceased. ;