GARG, J. - (1.) THIS appeal has been filed by the accused appellant from jail vide letter dated 30. 7. 2001 aggrieved from judgment and order dated 9. 7. 2001 passed by the learned Addl. Sessions Judge (Fast Track), Chittorgarh in Sessions Case No. 90/2001 by which he while acquitting for the offence under Section 324 IPC, convicted the accused appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs. 1000, in default of
(2.) SINCE this appeal was preferred by the accused appellant from jail and he was not represented by any counsel, therefore, this Court vide order dated 10. 9. 2001 appointed Shri Anshuman Mishra as Amicus Curiae to argue the case on behalf of the accused appellant. However, thereafter, since Shri P. S. Bhati and Dhirendra Singh Bhati filed their power to represent the accused appellant, therefore, this Court vide order dated 6. 3. 2002 ordered that the order of appointing amicus curiae dated 10. 9. 2001 may not be given effect to. It arises in the following circumstances: On 28. 2. 1999 at about 6. 15 PM, PW2 Himmat Singh lodged a written report Ex. P/2 before PW16 Pawan Singh, who was at that time, SHO, Police Station Akola District Chittorgarh, stating inter-alia that accused appellant Thakur Singh aged about 26 years, resident of village Hingwania, is the son of his elder brother and the accused appellant was doing labour work in Ahmedabad for the last 10-15 years. It was further stated in the report Ex. P/2 by PW2 Himmat Singh that his elder brother Tej Singh (PW10) also used to do labour work in Ahmedabad and on 25. 2. 1999, PW10 Tej Singh had brought the accused appellant to village Hingwania because accused appellant was not feeling well there. It was further stated in the report Ex. P/2 that on 26. 2. 1999, PW3 Bagh Singh, who is brother of accused appellant, was sent to Kishoreji-Ka- Kheda for bringing accused appellant's brother-in-law Gotu Singh and he came back with Gotu Singh in the evening. It was further stated in the report Ex. P/2 that on 27. 2. 1999, both Gotu Singh (not produced by the prosecution) and accused appellant took rest and at about 4. 30 PM in the evening, Gotu Singh left the village Hingwania for village Gundli where he stayed in the night and on the morning of 28. 2. 1999 at about 7. 45 AM, Gotu Singh came back again to village Hingwania from Gundli and before he reached Hingwania, the accused appellant, after putting his wife Dhapu Kunwar (hereinafter referred to as the deceased) and minor child Neeru in the house, locked the gate from inside. It was further stated in the report Ex. P/2 by PW2 Himmat Singh that thereafter, he alongwith Gotu Singh (brother of deceased) left Hingwania for Chanderiya to bring PW1 Shyam Singh, elder brother of accused appellant and they returned back in the evening at about 4. 30 PM. It was further stated in the report Ex. P/2 that thereafter, Gotu Singh had gone to some other place and in the noon, PW18 Chanda Kunwar, wife of PW6 Pratap Singh and PW20 Pushpa Kunwar, wife of Ram Singh, PW7 made efforts to open the door of the house, but accused appellant did not open the door as he had killed his wife (deceased ). It was further stated in the report Ex. P/2 by PW2 Himmat Singh that thereafter his father PW1 Shyam Singh asked him to inform the villagers and thereafter, he went to village and called Bhanwar Singh, Samundar Singh and Others. It was further stated in the report Ex. P/2 that accused appellant had closed the house by putting lock on the door from inside and did not open the door for whole day. It was further stated in the report Ex. P/2 that thereafter so many other people assembled there and then, on seeing from roof of the house after removing the kelu, it was found that deceased had been murdered and thereafter, door of the house was got opened by people by pushing and the accused appellant was caughthold and he was tied there. It was further stated in the report Ex. P/2 that deceased was killed by sword and after pressing her neck. It was further stated in the report Ex. P/2 by PW2 Himmat Singh that the accused appellant was a man of bad character and he had not seen the dead body of the deceased after entering the room as many people had assembled there and people were crying and thereafter, PW1 Shyam Singh asked him to lodge the report and thus, he has lodged the report Ex. P/2. On this report Ex. P/2, police registered the case and chalked out regular FIR Ex. P/3 and investigation was started by PW23 Kuber Singh. The further case of the prosecution is that during investigation on 1. 3. 1999 at about 8. 45 AM, from the room where murder of deceased had taken place, sword and kulhari (Article 2), which were lying in that room, were seized by PW23 Kuber Singh through fard Ex. P/5 in presence of PW 13 Shanker Singh and PW4 Gaj Singh and both articles were stained with blood and site plan Ex. P/4 was also got prepared by PW23 Kuber Singh. The blood smeared soil (Article 3) and control soil (Article 4) were seized by PW23 Kuber Singh through fard Ex. P/6. The clothes i. e. Lungda, Lahanga and kurti (Article 5) of deceased were seized by PW23 Kuber Singh through fard Ex. P/7. The safa (Article 6) was also seized by PW23 Kuber Singh through fard Ex. P/8. The further case of the prosecution is that PW23 Kuber Singh had got arrested accused appellant on 28. 2. 1999 through arrest memo Ex. P/13 in presence of PW4 Gaj Singh and PW8 Ganpat Singh and on 1. 3. 1999, accused appellant gave information Ex. P/38 for recovery of iron rod (sariya) and woodan patiya and in pursuance of that information Ex. P/38, the accused appellant got recovered iron rod (sariya) and woodan patiya (Article 1) and the same was seized by PW23 Kuber Singh through fard Ex. P/14 in presence of PW8 Ganpat Singh and PW4 Gaj Singh. The FSL report is Ex. P/24. During investigation, the post mortem of the dead body of the deceased was got conducted by PW15 Dr. Khem Chand Saini and the post mortem report is Ex. P/26 where it was opined that mode of death was asphyxia and cause of death was strangulation. After usual investigation, police submitted challan for the offence under Sections 302, 326, 324 IPC against the accused appellant in the Court of Magistrate and from where the case was committed to the Court of Session. On 18. 9. 1999, the learned Addl. Sessions Judge No. 2, Chittorgarh framed the charges for the offence under Sections 302 and 324 IPC against the accused appellant. The charges were read over and explained to the accused appellant, who denied the charges and claimed trial. During the course of trial, the prosecution got examined as many as 26 witnesses and exhibited several documents. Thereafter, statement of the accused appellant under Section 313 Cr. P. C. was recorded. In defence, no evidence was produced by the accused appellant. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Chittorgarh through impugned judgment and order dated 9. 7. 2001 while acquitting for the offence under Section 324 IPC, convicted the accused appellant for the offence under Section 302 IPC and sentenced him in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts that the accused appellant had murdered the deceased and in coming to that conclusion, he has placed reliance on some portion of statements of PW2 Himmat Singh and PW4 Gaj Singh, which were recorded by police, though both were declared hostile and he also placed reliance on recovery of iron rod (Article 1) at the instance of accused appellant. Aggrieved from the said judgment and order dated 9. 7. 2001 passed by the learned Addl. Sessions Judge (Fast Track), Chittorgarh, this appeal has been filed by the accused appellant from jail. In this appeal, the following submissions have been made by the learned counsel for the accused appellant :- (i) That in this case, the main prosecution witnesses, namely, PW1 Shyam Singh, PW2 Himmat Singh, PW3 Bagh Singh, PW4 Gaj Singh, PW6 Pratap Singh, PW7 Ram Singh, PW8 Ganpat Singh, PW9 Laxman Singh, PW10 Tej Singh, PW11 Fouj Singh, PW18 Chanda Kunwar, PW19 Indra Kunwar, PW20 Pushpa Kunwar and PW21 Gamer Kunwar have been declared hostile and therefore, there is no credible evidence against the accused appellant for connecting him with the commission of crime. (ii) That the main witness of the alleged incident was Gotu Singh, who was brother of the deceased, but he has not been produced by the prosecution and therefore, there is no evidence to prove the fact that the accused appellant, after putting his wife (deceased) and minor daughter, in the house, closed the door of the house from inside by putting lock and thereafter, he murdered his wife (deceased ). (iii) That so far as recovery of sword and kulhari (Article 2) is concerned, the same was recovered from the room and it was not recovered at the instance of the accused appellant and furthermore, recovery of iron rod (Article 1) at the instance of accused appellant does not at all connect the accused appellant with the commission of crime. Thus, it was submitted that it is a case of no evidence and the findings of conviction recorded by the learned trial Judge are wholly erroneous and perverse and based on no material or evidence and therefore, the same cannot be sustained and liable to be set aside and the accused appellant is entitled to acquittal. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 9. 7. 2001 passed by the learned Addl. Sessions Judge, (Fast Track) Chittorgarh. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and gone through the record of the case.
(3.) BEFORE proceeding further, first medical evidence of this case has to be seen. The post mortem report of deceased is Ex. P/26 and to prove the same, the prosecution has produced PW15 Dr. Khem Chand Saini. Pw15 Dr. Khem Chand Saini in his statement recorded in Court has stated that on 1. 3. 1999 he was Medical Officer in Primary Health Centre, Akola District Chittorgarh and on that day, he conducted the post mortem of the dead body of the deceased and found the following injuries on his body:- 1. Incised wound 3 x 2. 0cm x muscle deep on dorsal side of right hand. 2. Incised wound 3 x 1. 0cm x muscle deep on right palm near little finger. 3.Incised wound 3 x 1. 0cm x muscle deep just near to injury No. 2 4. Incised wound 2. 5cm x 1cm x muscle deep on right thumb ventral side. 5. Incised wound 5 x 2. 0cm x muscle deep on left little finger medical side. 6. Incised wound 4. 5 x 1. 5cm x muscle deep on left wrist joint medical side. 7. Incised wound 3 x 1cm x muscle deep on left upper lateral side just above the elbow joint. 8. Incised wound 9. 0cm x 3. 5cm x muscle deep on right knee joint medical side. 9. Bruise 6inch x 1inch front of the neck transversely placed across windpipe. He opined that the mode of death was asphyxia and cause of death was strangulation. He has proved the post mortem report Ex. P/26. ;