G.K.VYAS, J. - (1.) THE instant cr. jail appeal has been filed by the accused appellant Narayan S/o Pratap, resident of Gangapura, District Bhilwara to challenge the judgment dated 25.9.2008 passed by the learned Addl. Sessions Judge No.1, Bhilwara in Sessions Case No.20/2007 whereby the accused appellant was convicted for offence under Section 302 and 397 IPC.
(2.) AS per the brief facts of the PW -5 Goverdhan Lal, the brother of deceased Ratni filed a written complaint (Ex.P/5) on the spot where the body of the deceased Ratni was lying in the agricultural field of the family of complainant in the village Araniya in which it is stated that his family they are 2 brothers and one sister Ratni. Today on 23.8.2007 after taking vegetables from agricultural field, I went to the market from house, at that time, his sister Ratni was in the house but at about 9.00 9.30 a.m. his uncle Pokar came and asked that body of sister Ratni, aged about 32 years is lying in his agricultural field. Upon the said information, the complainant Goverdhan Lal and his uncle Pokar rushed to the place of occurrence where they saw that body of his sister Ratni was lying on earth and in her neck one Lumadi (Cloth) was there and it was appearing that she died due to throttling and the sliver rings (Kadiya) were not found but no apparent injury was found upon her body. It was apprehended by the author of the FIR that some unknown person has killed his sister who was married with Mangi Lal of village Rewada but her husband deserted her for the reason that she was not mentally fit.
(3.) UPON above complaint, the SHO, Police Station Gangapur registered an FIR No.237/2007 under Section 302/379 IPC and commenced investigation. The Investigating Officer prepared site plan and took the body of Ratni in possession for the purpose of post mortem and after completing all the formalities on site took the body of Ratni to the hospital for post mortem. Certain photographs of site were also taken. In the investigation, the statements of prosecution witnesses were recorded under Section 161 Cr.P.C. and after arresting the accused appellant Narayan, brother of Ratni recovered 2 silver rings (Kadiya) as per his information which were wearing by the deceased Ratni at the time of occurrence took place. The police filed charge -sheet against the appellant for offence under Section 302 and 397 IPC on the basis of recovery of silver rings (Kadiya) as per his information so also, on the basis of evidence of last seen. After filing charge -sheet in the court of Addl. Chief Judicial Magistrate, Gangapur on 16.10.2007, the case was committed to the court of Sessions Judge, Bhilwara from where case was transferred to the court of Addl. Sessions Judge No.1, Bhilwara for trial. The learned trial court after hearing arguments framed the charge for offence under Section 302 and 397 IPC against the accused appellant and commenced trial. In the trial, the statements of 15 prosecution witnesses were recorded including author of the FIR Goverdhan Lal PW -5 and out of the list of the prosecution witnesses submitted alongwith charge -sheet, the prosecution did not produce witnesses Madhu, Bhawani Ram, Ratan Lal, Sohan Lal, Ghyan Prakash Maheshwari, Smt. Sandhiya Nalwaya, Rohitash and Mamood Khan in support of prosecution case. After recording evidence of prosecution witnesses, the statements of accused appellant were recorded under Section 313 Cr.P.C. in which accused appellant denied all the charges leveled against him by the witnesses and did not produce any evidence in defence. After hearing learned counsel for the parties, the learned trial court finally decided the case vide judgment dated 25.9.2008 whereby the learned trial court held the appellant Narayan guilty for committing murder of his younger sister Ratni under Section 302 and 397 IPC and passed sentence for life imprisonment alongwith fine of Rs.2,000/ - and in default of payment of fine to further undergo 6 months RI under Section 302 IPC and for offence under Section 397 IPC 7 years RI with fine of Rs.1000/ - and in default of payment of fine to further undergo 3 months RI. The learned trial court specifically observed in the judgment that both the sentences will run concurrently. In this appeal the accused appellant is challenging the judgment dated 25.9.2008. 4. The learned counsel appearing for the appellant Mr. Shaitan Singh vehemently argued that prosecution has failed to prove its case beyond reasonable doubt because the conviction for the offence under Section 302 and 397 IPC is based upon the evidence of last seen, so also, the recovery of so called 2 silver rings (Kadiya), which is alleged to be taken away by the appellant from the body of his sister Ratni after causing death. While attacking upon the evidence of last seen it is submitted that before arrest of accused appellant on 25.8.2007 there was no evidence on record with regard to last seen. To substantiate his argument, it is submitted that admittedly, the accused appellant was arrested by the police vide Ex.P/50 at 4.00 p.m. on 25.8.2007 and as per the prosecution case, the information under Section 27 of the Evidence Act was given by the accused appellant on 26.8.2007 at about 2.15 p.m. with regard to silver rings (Kadiya) and second information was given on 28.8.2007 at about 11.20 a.m. with regard to sleeper of deceased and one instrument to open the lock of silver rings. In pursuance of the said information, the recovery of silver rings (Kadiya) was made as per information vide Ex.P/11 and P/12. Likewise sleepers and other material were recovered vide Ex.P/13 but in fact, these articles were not recovered at the instance of accused appellant because there is no reliable evidence on record to prove the recovery of the silver ornament. It is also argued that deceased Ratni was elder sister of accused appellant, therefore, the so called motive taking of silver ornament (Kadiya) is baseless because the story of prosecution is totally doubtful and the conviction of the accused appellant for aforesaid offence is contrary to law. While inviting the attention towards the evidence of last seen it is submitted that admittedly deceased Ratni was real sister of the accused appellant and they were residing in a house and after his arrest, the statement of PW -15 Kishan Lal under Section 161 Cr.P.C. were recorded to create evidence of last seen which is evident from the fact that investigating officer PW -11 recorded the statements of all the witnesses of last seen in the investigation after arrest of accused on 25.8.2007, therefore, it is a case in which the prosecution has created the fabricated and false story of last seen so as to connect the accused appellant with the crime, therefore, on the basis of such evidence, the learned trial court has committed a grave error to convict the accused appellant for the offence of murder of his own sister. Lastly it is argued by the learned counsel for the appellant that it is a case in which accused appellant has been planted on the basis of false evidence because as per the statement of Patwari of concerned area PW -2 Roshan Lal S/o Mangi Lal, the agricultural field of the family of accused is situated in Khasra No.2031, measuring 0.74 hectare and in that agricultural field the accused appellant Narayan and deceased Ratni were having half share, therefore, it can be said that only to grab the agricultural land of accused appellant and deceased Ratni, the appellant has been falsely implicated in case of murder of his own sister Ratni. Because after conviction of the accused appellant and death of his sister Ratni obviously, the agricultural land will go to other family members including brother PW -5 Goverdhan Lal, the author of the FIR, therefore, there is reasonable apprehension of false implication of the appellant with the alleged crime, therefore, it is submitted that conviction, which is based upon the evidence of alleged last seen and recovery of silver ornament deserves to be quashed. ;