Shiv Kumar Sharma, J. - (1.) The appellant Gopal Nai was indicated before the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City Jaipur in Sessions Case No. 7/2001 for having committed murder of Sukhpal. Learned trial Judge vide judgment dated June 23, 2001 convicted and sentenced the appellant under Section 302 IPC to undergo imprisonment for life and fine of Rs. 100/-, in default to further suffer one Month Rigorous Imprisonment.
(2.) Put briefly the prosecution case is that Babu Lal SHO Police Station Vaishali Nagar, Jaipur recorded parcha bayan of informant Sugan Chand (PW 2) on June 21,1998, wherein Sugan Chand stated that as house over plot No. D-53, Vaishali Nagar belonging to Dr. Jai Kumar Motwani was under construction, he along with his family were residing there. Sukhpal chowkidar (now deceased) had also his abode there. Some two months back the appellant was also residing with Sukhpal but Contractor Laxmi Narain got the appellant replaced from the said plot. The appellant thought that Sukhpal was behind all this, therefore he became angry with Sukhpal. On June 20, 1998 around 3 AM in the night the informant awoke on hearing hue and cry of his wife Maya and found Sukhpal badly injured. He then tied bandage on the cut wound appeared on the neck of Sukhpal and took him near the gate in the meanwhile the assailants scaled the wall and fled. Sukhpal died around 3.30 AM on account of injuries sustained by him on his neck, shoulder and head caused by sharp edged weapon. The informant raised hue and cry but no one from the neighborhood reached at the spot. On the basis of Parcha Bayan a case under Section 302 IPC was registered and investigation commenced and the appellant was arrested. On completion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur. Charge under section 302 IPC was framed against the appellant who denied the charge and claimed to be tried. The prosecution in support of its case examined as many as 12 witnesses. In his explanation under Section 313 Cr. P.C. the appellant claimed innocence and stated that the Contractor Laxmi Narayan had illicit relationship with the wife of informant Sugan Chand and because he and Sukhpal were against the relationship, the Contractor implicated him in the case falsely. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.
(3.) Mr. Bhanwar Lal Sharma, learned counsel for the appellant pointed out following infirmities in the prosecution case:- (i) The appellant was not name din the parcha bayan (Ex.P-3) by informant Sugan Chand; (ii) Initially the case of prosecution was that the knife was used in committing the crime, but subsequently the story was changed and axe was shown as the weapon of offence. (iii) The appellant though was available to police but was arrested after one month of the occurrence and before that other persons were suspected and interrogated by the police; (iv) In the site-plan (Ex.P-1), which was drawn on June 21, 1998 the word "MULJIMAN" (more than one accused) was incorporated; (v) As per the recovery memo of axe (Ex.P-10) no blood was found on the axe. Whereas motbirs of the said memo viz., Laxmi Narayan and Sugan Chand have deposed that while the axe was recovered it was profusely stained with blood; (vi) Clothes allegedly recovered at the instance of appellant, were not produced at the trial no opportunity of defence was provided to the appellant; (vii) Even the mattress where the occurrence is said to have been occurred was not seized; (viii) A look at the site plan shows that the assailant could easily flee after scaling the boundary wall and the story that the assailant after committing the crime came to the place where the informant and his wife were sleeping, is exfacie false. (ix) Dog-squad remained wandering inside the house and did not got out side the place of incident which goes to show that the assailant never scaled the wall; (x) Informant Sugan Chand and his wife Maya who are the star witnesses of the prosecution have made material improvements in their statements at the trial and they came under the category of highly unreliable witnesses. (xi) The story that Sukhpal before his death disclosed the name of the appellant is exfacie false as nature of injury on his neck was such that he was not in a position to speak. (xii) The testimony of Sugan Chand that he covered the injury on the neck of Sukhpal with bandage, appears to be false as no bandage was recovered by the Investigating Officer. (xiii) As per testimony of Constable Maliram (PW 7) when police reached at the spot 5-6 persons were already present at the place of occurrence, whereas Sugan Chand stated that nobody was present when police arrived; (xv) A look at the FSL report (Ex.P-18) demonstrates that no blood was found on the axe.;