SHARMA, J. - (1.) RAKESH Kumar Sirwal @ Mohd Rashid Khan, Jiya Ur Rehman and Ms. Samima Khatun @ Samim Jahan, appellants herein, were found guilty for having committed murder of a Taxi Driver. Learned Sessions Judge Sikar, before whom the appellants were tried, convicted and sentenced the appellants as under:- u/s. 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 100/-, in default to further suffer simple imprisonment for one month. Jiya Ur Rehman: u/s. 3/25 Arms Act: To suffer rigorous imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently. During the pendency of appeal appellant RAKESH Kumar Sirwal @ Mohd Rashid Khan died in the intervening night of August 13 and 14, 2002 in the Jail Hospital.
(2.) A criminal case under Section 302 and 364 IPC was registered on January 6, 1998 at Police Station Laxmangarh on the basis of Parcha Bayan (Ex. D-6) of Madan Lal (PW. 32) wherein he stated that on the said day around 7 PM while he entered in Bada he saw a white car that got halted suddenly. Two persons came out of the car and started beating another person who was standing back side of the car. A woman was also standing nearby. Hearing alarm Madan Lal rushed towards them. In the meanwhile he heard sound of fire. When Madan Lal reached near them, one person threatened him. All the three persons then fled away. The injured person told Madan Lal that he was the driver of car which was hired from Jaipur. The woman wanted to case herself therefore on her request he got the car halted. Driver then laid on the rear seat of the car and asked Madan Lal to inform about the incident to `dham'. Madan Lal went to Dham and informed Baba about the incident and when he came back he found driver dead. The police commenced investigation. Dead body of driver Ashok Kumar was subjected to autopsy. Necessary memos were drawn. Statements of witnesses were recorded. The appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Sikar. Charges under Sections 364, 302/34 IPC and 3/25 Arms Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 34 witnesses. In the explanation under Sec. 313 Cr. PC. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Death of Ashok Kumar was concededly homicidal in nature and caused by gun shot wounds. As per post mortem report (Ex. P. 1) following ante mortem injuries were found on the dead body:- 1. Lacerated wound 1 cm x 1/2 cm x bone deep occipital region of scalp Rt. side. 2. Lacerated wound 1/4 cm x 1/4 cm x 1/4 cm proximal inter phalynged joint posteriorly left index finger 3. Lacerated wound 1/4 cm x 1/4 cm x 1/4 cm Bach of distal inter Phalyngral joint Rt. index finger. 4. Gun shot would 1/2 cm x 1/2 cm oval both with blacking of skin. all around 5 cm x 5 cm on back Rt. of mid line at level of T 6 spine between 6th & 7th Rt. ribs insertion. In the opinion of Dr. Richhpal Singh (PW. 1) the cause of death was shock due to hemorrhage from gun shot injury. Having scanned the material on record we notice the fact situation of the case thus:- (i) Madan Lal (PW. 32) deposed that a loud voice was heard by him which appeared to be that of gun shot and when he went near the accused, the accused fired at him. (ii) Deshi Katta used by the accused got recovered at the instance of appellant Jia r Rehman from a public place as admitted by Mangi Lal Sharma (PW. 27) and Ram Gopal (PW. 28 ). (iii) Live cartridges (five in number) got seized from the vehicle vide seizure memo (Ex. P. 17 ). (iv) One empty cartridge was found lying on the ground behind the vehicle and it got seized vide memo Ex. P. 18. (v) The bullet recovered from the dead body of the deceased was sealed in a glass vial container. As per FSL Report (Ex. P. 63) the bullet recovered from the dead body was locally made ammunition, but no definite opinion could be given to link the bullet with Deshi Katta but it was opined that empty cartridge had been fired from Deshi Katta. (vi) Gauri Shankar (PW. 15) deposed that the accused were brought by the SHO in the village and the whole village saw the faces of the accused in broad day light. (vii) The incident took place on January 6, 1998 and the prosecution witnesses identified one of the accused in the trial Court on June 17, 1999 i. e. after one year and five months. (viii) Madan (PW. 32) star witness of the prosecution, in his cross examination deposed that the incident occurred in the darkness. Learned counsel for the appellants urged that the case rests on circumstantial evidence and the circumstances that were found established are not conclusive in nature and the chain of circumstances is broken from many places. Recovery of weapon does not mean that it was used for commission of offence. Recovery weapon itself does not connect the accused with murder. The ocular evidence adduced by the prosecution is inconsistent with the medical evidence and that of ballistic expert. Evidence of identification is also infirm and it could not have been relied upon. Per contra learned Public Prosecutor supported the impugned judgment and contended that the evidence of the prosecution was rightly relied upon.
(3.) THE prime question that requires consideration in the instant case is whether the prosecution has been able to establish that the pistol recovered was the one which was used for commission of the offence. As correctly canvassed by learned counsel there are serious infirmities which affects truthfulness of the prosecution story. Firstly in the so called disclosure statement (Ex. P. 62) the appellant Jiya Ur Rehman did not say that the pistol to which reference was made (315 Deshi Katta) was the weapon of assault. Secondly the motbirs of the recovery memo of pistol (Ex. P. 60) viz. Mangi Lal Sharma (PW. 27) and Ram Gopal (PW. 28) deposed that recovery of pistol got affected from the place which was the thorough fare. ******* Bhanwar Lal, IO (PW. 33) also deposed thus:- ********* In the factual situation of the instant case recovery of country made pistol from the open place accessible to all affects the credibility of prosecution version. Thirdly Superintendent of Police Sikar vide letter dated April 1, 1998 sent four packets to the Forensic Science Laboratory (FSL ). In the FSL report (Ex. P. 63) details of packets have been given as under:- Packet `a' contained Five 8 mm/. 315 K. F. cartridges marked L/1 to L/5. Packet `b' contained one 8 mm/. 315 K. F. cartridge case marked C/1. Packet `e' contained one country made pistol marked W/1. Unmarked packet contained one soft nose copper jacketed bullet marked B/1. It appears from the document Ex. P/22 that the Medical Board forwarded the cartridge recovered from the dead body of driver to the SHO Laxmangarh in a Glass Vail and it was sent to FSL in an unmarked packet. THE live cartridges (five in number) were recovered from inside the vehicle vide seizure memo Ex. P. 17 and contained in packet marked `a'. One empty cartridge was found lying on the ground behind the vehicle and it go recovered vide seizure memo Ex. P. 18 and contained in packet marked `b'. Deshi Katta (country made pistol) recovered vide seizure memo Ex. P. 60 contained in packet marked `e'. In regard to bullet recovered from the dead body (contained in an unmarked packet) following opinion was given in the FSL report (Ex. P. 63):- ``however, no definite opinion could be given on one locally made 8mm/. 315 copper jacketed bullet (B/1) from unmarked packet in order to link with submitted 8mm/. 315 country made pistol (W/1) due to lack of sufficient evidence. '' It thus appears that the bullet found in the dead body was not fired from the pistol recovered at the instance of appellant Jiya Ur Rehman. That takes us to the other question related to identification of the appellants. From the material on record it is revealed that in the test identification parade conducted during investigation Sugan Singh (PW. 7) identified appellant Ms. Samima Khatun but in his deposition Sugan Singh did not state that he had gone to identify Ms. Samima Khatun in the identification parade. The statement of Sugan Singh was recorded in the trial Court on September 17, 1998, but he only stated that he knew the accused present in the court. Sh. Tek Chand (PW. 31), who was posted as Additional Chief Judicial Magistrate Fatehpur and drew memo of test identification parade (Ex. P. 61), deposed that Sugan Singh correctly identified Ms. Samima Khatun. Witness Gauri Shankar (PW. 15) however stated that SHO brought the accused in the village and whole village saw the faces of the accused in broad day light. Star witness of the prosecution viz. Madan (PW. 32) identified appellant Jiya Ur Rehman in the court and deposed that he opened fire at the deceased. Madan admitted this fact that at the time of incident there was dark and lights of vehicle were on. As already noticed the incident occurred on January 6, 1998 and the statement of Madan at the trial got recorded on June 17, 1999 i. e. after one year and five months. In Shaikh Umar Ahmad vs. State of Maharashtra (AIR 1998 SC 1922) their Lordships of the Supreme Court found the identification of the accused in the court meaningless when the accused were already shown to the witnesses. It was observed as under:- ``under such circumstances when the accused were already shown to the witnesses their identification in the court by the witnesses was meaningless. The statement of witnesses in the court identifying the accused in the court lost all its value and could not be made basis for recording conviction against the accused. '' The several discrepancies and short comings in the evidence as noticed supra considerably corrode credibility of the prosecution version. That being so, the inevitable conclusion is that the prosecution has not established the accusation against the appellants beyond reasonable doubt. Learned trial Court did not properly appreciate the evidence adduced by the prosecution and committed illegality in convicting and sentencing the appellants. ;