S.N.DEEDWANIA, J. - (1.) THE State of Rajasthan has preferred this appeal against the judgment dated March 28, 1972, of the learned Sessions Judge, Bhilwara, by which respondent Dhannalal was acquitted of the offence punishable under Sections 302 and 201, of the Indian Penal Code.
(2.) THE case according to the prosecution was this. Respondent Dhannalal was on visiting terms terms with Harskial deceased. Dhannalal wanted to borrow a sum of Rs. 3,000/ - from Haraklal by mortgaging his land. On 29.5.71, Haraklal left his home at 10. a.m., with respondent Dhannalal. Haraklal had Rs. 3,000/ - with him, and he was wearing khakhi pants, chocolate colour bush -shirt, silver ring in finger of one band and a copper ring in a finger of another hard. He was also having watch with him He wore an underwear with stripes. Haraklal never returned to his home. His wife Kante made search of him. On 1.6.71, she went to Bhilwara Haraklal was employed as peon in Tehsil. She was informed at Bhilwara that Haraklal bed cot come on duty after 28th of May, 1971. She also informed Schanlal, brother of his husband. On 29.5.71, Dhannalal and Haraklal deceased went to the shop of Lacuram of Mandal and form there at about 5.30 P.M. they went away by Goskhai(sic) On 2.6.71, Sangramsingh saw a dead -body floating in Am(sic) well of Bhursingh situated at a distance of one mile from village Jali P. W. 10 Chandidan then write report, Ex. P/12 and sent it with Bakhtawar Balai to Dildarkahn p.w. 4, police constable, police outpost, Daulatgarh, Dildarkhan sent this report, Ex P/12 to police station, Asind, where it was received by p.w. 11 Hazarilal, Head Constable, then in -charge of police station. He directed Dildarkhan to proceed to the spot and recover the dead -body in presence of motbirs and prepared inquest memo Ex. P.1. The dead body had only one underwear with stripes on it. Dildar Khan seized and sealed the underwear, Ex. P.4 He called Dr. Jagdish(sic) post -mortom on the dead -body and found the following injuries: 1. Lacerated wound on the right parietal region of the scalp. The size of the would 1 -1/2' X 1/2'. 2. Lacerated wound on the middle of the left body of the mandible size of the wound 1' X 1/2'. In the opinion of the doctor, the cause of death was injury to brain. The dead -body was in advanced stage of the decomposition. From the dead -body, the elector removed the skin of palm, thumbs and little fingers of both the hands for finger print examination. Since, the inquest memo prima farie disclosed that the deceased had been murdered, a case under Section 312, IPC was registered and investigation was taken up. During the course of Investigation , the police came to know that Haraklal was missing after he went in the company of Dhannalal respondent PW 13 Sarfuddin, SHO of police station, Asind, therefore arrested Dhannalal on 12 -6 -71 - While in police custody, Dhannalal gave an information that the clothes were lying In Pipaliwala Kuwa, a pair of shoes in link of Jali village, wrist watch and band kerchief and some money in an earthern -pot in his house. This information was reduced into writing in a memo Ex P. 13 by Sarfuddin, SHO Dhannalal respondent then took the S.H.O to Pioliwala well and at his instance, he got recovered khakhi pants and one bush -shirt from inside the well The SHO seized and sealed these articles. The respondent then took the SHO m the tank at village Jali and at his instance and in consequence of the information furnished by him got recovered a pair of shoes from it. These shoes were also seized and sealed. Dhannalal in pursuance of his information produced a box also which was lying in his house. The box contained one wrist watch and a handkerchief which were seized and sealed by the SHO Respondent Dhannalal, in pursuance of his information furnished by him Under Section 27 of the Indian Evidence Act also produced Rs 323/ - vide Ex. P. 15 from an earthen pot and Rs. 200/ - from a Kothi On 15.6.71, Dhannalal further gave an information that he had paid some money to Manaklal. Nanuram, Ranglal, Bheru Dhobi and Nathulal. In pursuance of information furnished by Dhannalal. Rs. 100/ - from Ranglal, Rs. 65/ - from Manaklal, Rs. 200/ - from Bheru Dhobi and Rs. 100/ - fro, Nathuala were recovered. On 23.6.71, the respondent further gave an Information that he had given Rs. 300/ - to Ugamlal and in pursuance of this Information and at his instance Rs. 278/ - were recovered from Ugamlal. The respondent also give an information leading to recovery of a lathi from his horse. The service book, Ex. P. 10 and grafted skin of the deceased were seat for expert opinion P.N. Tankaha PW 9 of the Finger Print Government Bureau, Jaipur for comparison PW 9 PN Tankaha obtained an impression from the skin of the left hand thumb of the deceased and compared it with left hand thumb impression of his service book. According to the expert, the left thumb impression in the service book and thumb impression obtained from the skin of the thumb of left hand of the deceased were of the same person. That test identification parade of recovered watch, a pair of shoes, hand kerchief, pant, bush shirt and an underwear with stripes was conducted by Lajpatrai, SDM Gulabpura, Nandram, Smt Kanta, Maagilal and Sohanlal participated In the test -identification parade. Nandlal identified the pant and bush -shirt, Smt. Kanta identified all the articles except under wear and, Mangilal and Sahan Lal identified all the articles correctly. After, completing the investigation, challan was filed in the court of the Additional Munsiff Magistrate, No. 2, Bhilwara who held an enquiry, preparatory to commitment, and upon finding, a prima facie case exclusively triable by the court of Sessions committed the respondent to the court of Sessions Judge, Bhilwara for trial. The learned Sessions Judge, however, held that the circumstantial evidence was insufficient to establish conclusively that the respondent Dhannalal had murdered Haraklal and, therefore, acquitted him. Hence this appeal by State of Rajasthan.
(3.) WE have heard the learned Public Prosecutor for the State and Mr. J M Bhandari for the respondent and perused the record of the case carefully.;