GARG, J. - (1.) THIS appeal has been filed by the accused appellant from jail against the judgment and order dated 2. 12. 2000 passed by the learned Additional Sessions Judge, Nimbahera in Sessions Case No. 30/98 by which he convicted the accused appellant for the offence under section 302 IPC and sentenced him to undergo imprisonment for life and to pay of fine of Rs. 1000/-, in default of payment of fine, to further undergo RI for one month.
(2.) BY the same judgment and order, the learned Additional Sessions Judge acquitted another accused Hema for the offence under section 302/34 IPC. It arises in the following circumstances:- On 24. 3. 1998 at about 9:30 AM, PW20 Dhanna lodged an oral report (Ex. 17) with the Police Station Bhadsoda District Chittorgarh before PW 19 Sumer Singh, SHO of that Police Station stating inter-alia that on 23. 3. 1998 at about 10:00 PM his brother Dalu S/o Pema, aged about 30 years, resident of Arniya (hereinafter referred to as "the deceased") left the house and slept on the well in his field. PW20 Dhanna has further stated that the well was joint one, but their fields were separate. It was further stated in the report Ex. P/17 by PW20 Dhanna that on the next day i. e. on 24. 3. 1998 at about 7. 00 AM in the morning he reached on his well and when he was going to ask the deceased to give water in the field, he saw blood on the leaves of trees (patti) and therefore, he reached the place where his brother-deceased was sleeping and he found that the cot was stained with blood and he also found a kulhari lying near the cot and the handle of that kulhari was broken and the same was also stained with blood. It was further stated in the report Ex. P/17 by PW20 Dhanna that after seeing that kulhari, he recognized that it belonged to the accused appellant Magna and he did not find Gudre (Bisters) on the cot nor his brother deceased. It was further stated in the report Ex. P/17 by PW 20 Dhanna that when he was returning following the blood stained leaves (patti), at a distance of one furlong from the place of occurrence, he saw the dead body of the deceased in the field of Rama and he found so many injuries on the dead body of the deceased which were caused by kulhari and the dead body was stained with blood. It was further stated in the report Ex. P/17 by PW20 Dhanna that thereafter, he returned to his village and informed Kalu (PW18), Ghasi (PW4), Mana (PW5) and Hemraj (PW6) and as soon as the accused appellant Magna came to know about this, he ran away and when he was running away, he was seen by PW7 Ratanlal, PW10 Motilal and PW8 Nawalram. Thereafter, PW18 Kalu, PW4 Ghasi, PW5 Mana and PW 6 Hemraj reached the place where the dead body of the deceased was lying and witnessed the dead body of the deceased. It was further stated in the report Ex. P/17 by PW 20 Dhanna that the accused appellant Magna was having illicit relations with the wife of deceased, namely, Bhaggu (PW9) and because of that, the deceased was murdered by the accused appellant. On this report, PW19 Sumer Singh registered the case No. 60/98 for the offence under Section 302 IPC and chalked out regular FIR Ex. P/18 and started investigation. During investigation, PW19 Sumer Singh prepared the site plan (Ex. P/5) and site inspection memo (Ex. P/6) in presence of PW3 Shanker and PW 12 Bherulal. Through fard Ex. P/9, PW 19 Sumer Singh seized the kulhari, the handle of which was broken, in presence of PW 3 Shanker and PW 12 Bherulal. Though fard ex. P/10, the clothes (dhoti and bushirt) of deceased were seized in presence of PW 3 Shanker and PW 12 Bherulal. The further case of the prosecution is that on 24. 3. 1998 proceedings of panchayat-name were got conducted and the dead body of the deceased was got identified by PW20 Dhanna and the fard of panchayat-nama of the dead body of the deceased is Ex. P/3. The further case of the prosecution is that on 24. 3. 1998 at about 3. 20 PM, PW19 Sumer Singh, SHO alongwith two motbirs, namely, PW 3 Shanker and PW 11 Hemraj visited the house of the accused appellant and since the accused appellant had run away, therefore, in his absence, the lock of the house of the accused appellant was got broken by PW 19 Sumer Singh and after that, Bushirt and Pent of the accused appellant, which were stained with blood, were recovered by PW 19 Sumer Singh and the fard of search and seizure is Ex. P/12. During investigation, the post mortem of the dead body of the deceased was got conducted by PW13 Dr. Asif Khilji on 24. 3. 1998 and the post mortem report is Ex. P/13 where it was opined that death of the deceased was caused due to shock which was due to excessive bleeding. The accused appellant was got arrested on 30. 3. 1998 through arrest memo Ex. P/19 and on 31. 3. 1998, he gave information (Ex. P/20) to PW 19 Sumer Singh to the effect that the broken handle of kulhari was concealed by him in his field, which he could get recovered and in consequence of that information Ex. P/20, the accused appellant got recovered that broken handle of kulhari on 1. 4. 1998 from his field in presence of two motbirs, namely, Shankarlal (PW1) and Hazarilal (PW2) and (PW19) Sumer Singh prepared the fard of recovery and seizure and the same is Ex. P/2. The further case of the prosecution is that on 31. 2. 1998, the accused appellant gave another information (Ex. P/21) to PW 19 Sumer Singh to the effect that Gudre (Bisters), which were stained with blood, had been concealed by him in his field, which he could get recovered and in consequence of that information Ex. P/21, the accused appellant got recovered Gudre (Bisters) on 1. 4. 1998 from his field in presence of two motbirs, namely, Shankarlal (PW1) and Hazarilal (PW2) and PW 19 Sumer Singh prepared the fard of recovery and seizure and the same is Ex. P/1. The blood stained kulhari, clothes of the deceased as well as the clothes of the accused appellant were sent to FSL and the report of the FSL is ex. P/29. After usual investigation, police submitted challan against the accused appellant Magna and another accused Hema for the offence under section 302/34 IPC in the Court of Magistrate and from where, the case was committed to the Court of Session. On 7. 1. 1999, the learned Addl. Sessions Judge, Nimbahera framed charges for the offence under section 302/34 IPC against the accused appellant and another accused Hema and the same were read over and explained to them. They pleaded not guilty and claimed trial. In support of its case, the prosecution got examined as many as 20 witness and got exhibited nearabout 34 documents. Therefore, statements of accused appellant and another accused Hema under section 313 Cr. P. C. were recorded. They did not lead any evidence in defence. After recording evidence and conclusion of trial, the learned Additional Sessions Judge, Nimbahera through his judgment and order dated 2. 12. 2000 acquitted accused Hema of the charge for the offence under Section 302/34 IPC, but after placing reliance on seven circumstantial evidence, convicted the accused appellant Magna for the offence under Section 302 IPC and sentenced in the manner as indicated above. Aggrieved from the said judgment and order dated 2. 12. 2000 passed by the learned Additional Sessions Judge, Nimbahera, the present appeal has been filed by the accused appellant from jail. Since this appeal was filed by the accused appellant from jail, therefore, this Court vide order dated 24. 9. 2001 appointed Mr. B. S. Sandhu, Advocate as Amicus Curiae. In this appeal, Mr. B. S. Sandhi, Amicus Curiae has assailed the judgment of the learned trial Judge on various grounds and the main grounds are as follows:- (i) That the chain of circumstantial evidence connecting the accused appellant with the commission of crime is not complete and therefore, the accused appellant is entitled to acquittal on ground of benefit of doubt. (ii) That the witnesses of the recovery are interested one and furthermore, one of the witnesses pertaining to recovery of blood stained Gudre (Bisters) and handle of Kulhari, namely, PW2 Hazarilal has been declared hostile and he has not supported the case of the prosecution and therefore, the so-called recovery is also doubtful. (iii) That the evidence of last seen and the evidence of seeing the accused appellant running away, upon which reliance has been placed by the learned trial Judge is also doubtful and similarly, the recovery at the instance of the accused appellant is also under suspicion and therefore, recovery should be discarded. (iv) That some contradictions were found in the statements of the prosecution witnesses and, therefore, their evidence should not have been believed by the learned trial Judge. On the other hand, the learned Public Prosecutor has supported the impugned judgment and order passed by the learned Additional Sessions Judge, Nimbahera. We have heard the learned Amicus Curiae for the accused appellant and the learned Public Prosecutor and gone through the record of the case.
(3.) BEFORE proceeding further, we would like to first see the medical evidence of this case, which is found in the statement of PW 13 Dr. Asif Khilji. Pw 13 Dr. Asif Khilji in his statement recorded in Court states that on 24. 3. 1998, he was Medical Officer in the Primary Health Centre, Mangalwad and on that day, he conducted the post mortem of the dead body of the deceased and found the following injuries on the dead body of the deceased:- 1. Incised wound on forehead Rt. side with # skull. 2. Incised wound on Lt. eye size 4"x1". 3. Incised wound on Lt. cheek in front of Lt. ear size 3"x1" # fracture skull. 4. Incised wound on Lt. ear size 4"x1". 5. Incised wound on Rt. cheek including # Rt Joint size 1"x1/2". 6. Lacerated wound with fracture on tip of index finger size 1/2"x1/2". 7. Incised wound size 1"x1/2" below Rt. eye. 8. Incised wound with # at Lt. wrist joint size 4"x1-1/2". 9. Abrasion-multiple abrasion on back Lt. hip joint to Lt. knee joint etc. " He has further stated that the cause of death of the deceased was shock which was due to excessive bleeding. He has proved the post mortem report Ex. P/13. Thus, from the statement of Pw13 Dr. Asif Khilji, the fact that the deceases received nine injuries and that the deceased died because of shock due to excessive bleeding stands proved and thus, it can be said that death of the deceased was homicidal one. ;