Dalip Singh, J. - (1.) THESE two appeals have been preferred by the State of Rajasthan as well as by the informant ? Islam, who is the brother of the deceased Wahid being aggrieved by the judgment dated 01.10.2011 passed by the learned Additional Sessions Judge No.1 Deeg, District Bharatpur in Sessions Case No.11 of 2010 by which the accused-respondent ? Fakroo son of Shri Juharoo by caste Mev, resident of Kalyanpura, Police Station Deeg, District Bharatpur has been acquitted by the learned trial Court from the offence under Sections 302, 147, 149 and 120-B I.P.C.
(2.) FACTS, in brief, are that an F.I.R. came to be lodged by PW-2 Islam, which is Exhibit-P/1, on 05.10.2009 at Police Station Deeg, District Bharatpur alleging therein that on the night of 2nd & 3rd of October, 2009 at about mid-night his brother Wahid, the deceased and his wife Smt. Asmina, both were sleeping in their room. In the intervening night at about 12-01 Asmina came out shouting, then he and his family members went inside the room and saw that Wahid was lying dead on the cot. It is alleged that they inquired from Asmina about the cause of death of Wahid on which she said that Wahid died all of a sudden. It is further stated that they were not satisfied with her reply and they informed Asmina's family at her Village Baghola by telephone that they should reach immediately. On being informed Sattar, Suban Khan, Munshi, Samsu, Salim etc. came from Baghola and they had a talk with Asmina separately. Thereafter, before all the people, who had gathered and the Panchas of community Asmina stated that Wahid has died and accepted that he died due to her fault and she was responsible and she requested everyone to pardon her mistake. On this assurance on 03.10.2009 deceased Wahid was cremated. It is further alleged that after the cremation people inquired from Asmina, including Rujdar, Ayub, Yunush, Chhutta, and Kursaid. Asmina is reported to have told the Village Panchas and these persons that she had administered poison to deceased Wahid in the milk and this she had done in collusion with Moharam and Khusshi and his younger brother, as a result of which he became unconscious and thereafter they strangulated Wahid by putting an electric wire round his neck and murdered him. It was further stated that Asmina told the gathering that she was afraid of so many people being there and so she was unable to disclose these facts at the time when Wahid was lying dead before the cremation. On this report, a Murg report bearing No.27 of 2009 under Section 174 Cr.P.C. was registered and the investigation was carried out by the A.S.I. Shri Prabhudayal. Shri Prabhudayal, A.S.I. submitted his report on 20.10.2009 and as a result thereof an F.I.R. bearing No.752 of 2009 for the offence under Section 302 I.P.C. was registered and investigation started. On the report of investigation, the accused Asmina was arrested and so also the present accused-respondent Fakroo. They were produced before the learned Magistrate and after challan was filed, the charges under Sections 147, 302, 302/149 and 120-B I.P.C. came to be framed against the accused-respondent? Fakroo and so also Asmina. In the instant case against other accused-persons investigation was kept pending under Section 173 (8) Cr.P.C. The trial of the two accused; Fakroo and Asmina was conducted, as many as 19 prosecution witnesses were examined, statements of the accused under Section 313 Cr.P.C. were recorded and from the side of the defence six witnesses were examined. The learned trial Court after considering the evidence on record acquitted the accused-respondent Fakroo while convicting the accused Asmina.
(3.) ADMITTEDLY, in this case the case of the prosecution is based solely upon circumstantial evidence, as there is no direct evidence or eye witness of the offence. So far as the case against accused-respondent Fakroo is concerned, the sole evidence against him is that of the circumstance of last seen. The learned trial Court has after considering the evidence of the prosecution witnesses disbelieved the same on several grounds. ;