SHARMA, J. - (1.) A cobber sitting outside the house of kindhearted old lady, used to visit her daily. One day he could not control his instinct of greed and he killed her and removed golden chain out of her neck. The cobbler Kailash @ Kailash Chand, appellant herein, was put to trial before the learned Special Court (Sati Nivaran) Rajasthan and Additional Sessions Judge Jaipur City Jaipur, who vide judgment dated June 8, 2001 convicted and sentenced him as under:- u/s. 302/34 IPC: = To suffer imprisonment for life and fine of Rs. 5,000/-, in default to further suffer rigorous imprisonment for three months. u/s. 392 IPC: = To suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for one month. The substantive sentences were ordered to run concurrently.
(2.) THE prosecution case is as under:- On January 14, 2000 informant Balkrishna Satya (PW. 3) handed over a written report (Ex. P. 10) to SHO Police Station Jawahar Nagar Jaipur with the averments that he was residing in house No. B-16 Govind Marg Jaipur on rent. In the same house Rajkumari Girdhar (since deceased) was also residing along with her niece Radha. In the preceding night at 11. 30 PM Radha called him to see her aunt. THE informant along with his wife went to see and found that Rajkumari Girdhar was lying dead on 8th stair of the staircase in a pool of blood. On that report a case under Section 302 IPC was registered and investigation commenced. On the basis of circumstantial evidence gather during investigation, appellant was nabbed and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Court (Sati Navaran) Rajasthan and Additional Sessions Judge Jaipur City Jaipur. Charges under Sections 302 and 392 IPC were framed against the appellant, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 16 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellant claimed innocence. Three witnesses in defence were examined Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have pondered over the submissions and with the assistance of learned counsel scanned the record. Death of deceased Rajkumari Girdhar was homicidal in nature. As per post mortem report (Ex. P. 26) she received following antemortem injuries:- 1. Incised wound 1 x 1/4 cm x pulses skin deep oblique reddish clotted blood tip of Rt. little finger 2. Incised wound 1 x 1/2 x skin pulses deep oblique reddish clotted blood palm surface of middle of distal phalanx Lt. side. 3. Incised wound 2 x 1/4 cm skin pulses deep oblique reddish clotted blood at palmer surface at Lt. side of distal phalanx of middle finger. 4. Incised wound of size 15 x 7 cm x cervical vertebra deep oblique and transverse reddish clotted blood on front of neck including both esophagus cut just above thyroid. In the opinion of Doctor H. L. Bairwa (PW. 14) the cause of death was shock and haemorrhage as a result of injuries to the neck. The prosecution at the trial relied on the following circumstances in support of its case:- (i) Foot prints on the scene of occurrence matched with the foot prints of the appellant. (ii) Recovery of golden chain of deceased at the instance of appellant. (iii) Recovery of Ranpi (cutting instrument used by cobbler) and trouser of appellant stained with human blood, at the instance of appellant. (iv) Motive. Their Lordships of Supreme Court in Hanumant Govind Nargundkar vs. State of M. P. (AIR 1952 SC 343) laid down the principles relating to circumstantial evidence thus:- (Para 10) "it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. "
(3.) BEARING these principles in mind we proceed to consider the circumstances exist in the instance case. FOOT PRINTS: In regard to first circumstance the prosecution examined Sohel Raja, IO (PW. 15), Abdul Razak (PW. 9) and Rajendra Kumar Sharma (PW. 13 ). Sohel Raja in his deposition stated that Photos of dead body and chance foot prints (Ex P. 25) were taken vide memo Ex. P. 30 by Abdul Razak (PW. 9) expert of Finger Print Bureau. Photographs of foot prints (Ex. P. 20 to P. 23) were snapped by Rajendra Kumar Sharma (PW. 13) Ramnarayan (PW. 16) deposed that Abdul Rajak took chance foot print (Ex. P. 25) of right leg of the appellant. Specimen of right foot prints of the appellant were sent for comparison to the Director Finger Print Bureau, who in the comparison report (Ex. P. 31) indicated that change foot print photograph was similar with specimen right foot print of the appellant. In the comparison report thirteen points of similarity had been mentioned. Mr. Nasimuddin Qazi, learned counsel for the appellant, canvassed that since alleged simple of foot prints of the appellant was not taken before a Magistrate, no reliance can be placed of the report of Finger Print Bureau. Reliance is placed on Mohd. Aman vs. State of Rajasthan (1997) 10 SCC 44. We have pondered over the submissions. In Mohd. Aman vs. State of Rajasthan (supra) their Lordships of the Supreme Court observed as under:- (Para 8) ". . . Rather, other circumstances appearing on record make the prosecution case doubtful in this regard; first, the articles were kept in the police station for five days without any justifiable reason, secondly the Investigating Officer (PW. 20) admitted that the seal, mark of which was put on the articles, was with him since the time of seizure and lastly his letter (Ex. P. 59) forwarding the seized articles to the Bureau contains admittedly, an overwriting as regards the date of its writing/despatch and no satisfactory explanation is forthcoming for the same. Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also casts a serious mistrust as th genuineness of the evidence. Even though the specimen finger prints of Mohd. Aman had to be taken on a number of occasion at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger prints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. " In regard to foot prints it was indicated in para 9 thus:- " So far as the foot prints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample foot prints were not taken before a Magistrate. This apart the science of identification of foot prints is not fully developed science and therefore if in a given case unlike the present one evidence relating to the same is found satisfactory it may be used only to reinforce the conclusion as to identity of a culprit already arrived at on the basis of other evidence. " ;