BANSAL, J. - (1.) THIS appeal is directed against the judgment dated October 16, 2001 passed by learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur whereby appellant Mahesh Kumar has been convicted for the offences under Sections 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to further undergo simple imprisonment for three months and rigorous imprisonment for three years and a fine of Rs. 100/-, in default to further suffer simple imprisonment for three months respectively. The appellant has been acquitted of the charge under Section 380 IPC. However learned Additional Sessions Judge has acquitted co-accused Deepak Rajput of all the charges.
(2.) THE facts relevant for the disposal of the instant appeal are that on November 23, 1998 at around 5. 15 p. m. when PW1 Jagdish Chandra Katil, the then Executive Director, R. F. C. came back at his residence from his office, he found his domestic servant Satyanarain @ Kaluram missing from his house. He also found one speaker and one V. C. R. missing whereupon he informed the SHO, P. S. Jawahar Nagar, Jaipur about it over the phone. THEreafter PW1 Jagdish Chandra sent his driver and gardener to the village of Satyanarain for his search and to inform his parents about the incident. Satyanarain was not found in his village. THE driver and gardener of PW1 Jagdish Chandra brought the brother of Satyanarain to the residence of Jagdish Chandra. In the morning of 24. 11. 98, the body of said Satyanarain was found inside the underground water tank situated in the courtyard of the house of PW1 Jagdish Chandra whereupon police was informed about the recovery of the dead body of Satyanarain. On reaching on the spot, the SHO, P. S. Jawahar Nagar, Jaipur took out the dead body of Satyanarain. A written report Ex. P1 was submitted at 9. 30 a. m. on 24. 11. 98 by PW1 Jagdish Chandra at his residence to the SHO, P. S. Jawahar Nagar, Jaipur. On the basis of written report Ex. P1, proceedings under Section 174 Cr. P. C. were initiated. THE SHO drew up the Inquest Panchnama Ex. P2. THE dead body was sent to S. M. S. Hospital, Jaipur for autopsy which was conducted by a Medical Board consisting of Dr. Ashok Mathur, Dr. Sheetal Jain and Dr. M. L. Kawat at 1. 45 p. m. on the same day and prepared Post-mortem Report Ex. P. 17. On the same day at 3. 30 p. m. PW2 Sitaram Sain, brother of deceased Satyanarain @ Kaluram S/o Ramniwas, by caste Nai, R/o- Aakeda Chod, Rampura Dabdi, Thana Chomu, District Jaipur submitted a written report Ex. P6 to PW17 Ravi Shekhar Mishra, SHO, P. S. Jawahar Nagar at mortuary of S. M. S. Hospital. On the basis of written report Ex. P6. , Incharge, P. S. Jawahar Nagar registered a case under Section 302 IPC and investigation commenced. THE Investigation Officer came to the spot and inspected the scene of occurrence and drew up the Site Plan Ex. P3. Chance prints were lifted from the glass of wardrobe, T. V. stand and V. C. R. THE appellant and co-accused Deepak were arrested on 25. 11. 98 and 29. 11. 98 respectively. On the disclosure statement of appellant Mahesh Kumar and at his instance, one Music System, C. D. Player and three C. D. cassettes were recovered from his room on 28. 11. 98 and the I. O. prepared Recovery Memo Ex. P1. On the disclosure statement of co-accused Deepak Rajput and at his instance, one V. C. R. , three C. D. Cassettes, one towel etc. were recovered from his room on 30. 11. 98 and the I. O. prepared Recovery Memo Ex. P15. THE I. O. also recovered two speakers, Rs. 700/- and four keys on the disclosure statement of appellant Mahesh Kumar and he prepared Recovery Memo Ex. P16. Statements of the witnesses were recorded under Section 161 Cr. P. C. Chance prints and finger prints of both the accused were sent to Finger Print Bureau, Rajasthan, Jaipur for comparison. THE report of Finger Print Bureau is Ex. P56. On completion of investigation, charge-sheet was laid against the appellant and co-accused Deepak in the Court of Judicial Magistrate No. 19, Jaipur City who committed the case to the Court of learned Sessions Judge, Jaipur City for trial. On transfer the file was received by Special Judge (Sati Niwaran) Cum Additional Sessions Judge, Jaipur City who framed charges under Sections 302, 302/34, 201 and 380 of the Indian Penal Code against both the accused. THE appellant as well as co-accused Deepak pleaded not guilty and claimed trial. During trial the file was transferred to the Court of learned Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur. In order to prove its case the prosecution examined as many as 18 witnesses. In their statements recorded under Section 313 Cr. P. C. , the appellant and co-accused Deepak pleaded innocence and false implication. However no evidence was adduced in defence. Learned Additional Sessions Judge on hearing the final submissions, convicted and sentenced the accused appellant Mahesh Kumar and acquitted co-accused Deepak Rajput as indicated here- in-above. We have heard learned Amicus Curiae for the appellant, learned Public Prosecutor and with their assistance, carefully scanned and scrutinized the material on record. In the absence of any direct evidence, the prosecution relied upon the following circumstances to prove the guilt of the appellant:- (i) The death of deceased Satyanarain was homicidal. (ii) The deceased was last seen in the company of the appellant. (iii) Iron-pipe was recovered on the disclosure statement and at the instance of the appellant. (iv) Finger prints of the appellant were found on the glass of wardrobe, T. V. stand and V. C. R. of the house of PW1 Jagdish Chandra.
(3.) NOW we proceed to deal with each piece of circumstantial evidence relied upon by the prosecution. (i) Homicidal death of deceased Satyanarain. Pw12 Dr. Ashok Mathur, Medical Jurist, S. M. S. Hospital, Jaipur who was one of the members of the Medical Board, stated that on 24. 11. 98 he conducted post-mortem examination on the dead body of Satyanarain and found the following injuries on his person:- EXTERNAL INJURIEs (1) Abrasion reddish 4cm. x 3cm. on forehead mid part. (2) Abrasion 4cm. x 1/2cm. on left shoulder reddish. (3) Diffused swelling present over occipital region extending upto cervical region. INTERNAL INJURIEs On dissection-Underneath scalp haematoma present over occipital region. More on right side on further exploration the muscle haematoma was seen over cervical region which was also diffused into the adjacent muscles of neck posteriorly and laterally. There was a fracture of cervical vertebra (C1) with massive haematoma around. On further dissection spinal cord found contused at the site of fracture. Communited fracture of posterior cranial fossa of right side was seen on further dissection of head. Membrane at the site fracture found lacerated. On further exploration, sub-dural haematoma was seen over right side of occipital lobe with contusion. Contusion also seen over pons and cerebellum inferior surface. Dr. Mathur further stated that all the injuries were ante-mortem, in nature and were sufficient in the ordinary course of nature to cause death. He also stated that in the opinion of the Medical Board, the cause of death was Coma brought about as a result of ante-mortem injuries to skull and brain with spinal cord. Post- mortem Report Ex. P17 was prepared. Learned Amicus Curiae did not challenge the veracity of Dr. Mathur. We also see no grounds to discard the testimony of Dr. Mathur. Therefore, it has been established by the prosecution that deceased Satyanarain met with the homicidal death. Thus, first circumstance relied upon by the prosecution stands proved. (ii) The deceased was last seen in the company of the appellant. ;