SHARMA, J. - (1.) CHALLENGE in these appeals is to the judgment dated July 24, 2000 of the learned Sessions Sawai Madhopur whereby Nanu Khan and Jagdish, the appellants herein, have been convicted and sentenced as under:- Nanu Khan: u/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. u/s. 394 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 2000/-, in default to further suffer simple imprisonment for two months. Jagdish: u/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. u/s. 394 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 2000/-, in default to further suffer simple imprisonment for two months. The substantive sentences were ordered to run concurrently.
(2.) AT the time of hearing of appeal (No. 504 2004) we notice that only appellant Nanu Khan preferred the appeal, therefore we directed Registry to make enquiry as to whether convict Jagdish had preferred appeal or not. The Registry on the basis of report of Superintendent Central Jail Jaipur informed that convict Jagdish did not prefer any appeal. Having scanned the report of Superintendent Central Jail Jaipur, we find that two letters of Jagdish dated September 20, 2000 and November 25, 2006, written by Jagdish, have been appended with the report. In the letter dated September 20, 2000 Jagdish made request to Superintendent Central Jail Jaipur to file appeal, but the jail authorities did not accede the request. It appears that Jagdish was under the impression that his appeal was fired, therefore he made enquiry as to when his appeal came to be filed, therefore he made enquiry as to when his appeal came to be filed, therefore vide letter dated September 13, 2006 sent from Bharatpur Jail he made enquiry about his appeal. Jagdish has already undergone confinement for more than six years and we cannot render his remedy less. In the interest of justice we treat letters of convict Jagdish as appeal and in the facts and circumstances condone the delay. We directed the Registry to register the appeal today, so that the appeal preferred by convict Jagdish can be disposed of along with the appeal preferred by co-accused Nanu Khan. The prosecution story runs as under:- The informant Badri Prasad Sami (PW. 1) lodged a written report on December 24,1999 at the Police Station Kotwali Sawai Madhopur with the averments that on the said day around 9 Am Bhawani Singh (now deceased) along with Bhambal, Sunil Jagdish and driver Darshan Singh proceeded to Hindaun to purchase 50 pouches of country made liquor from M/s. Kalawati Devi Hari Singh and party. The informant gave a sum of Rs. 12,000/- to Bhawani Singh for incurring expenditure. After reaching godown. Bhawani Singh and Jagdish (appellant) remained there for some time and left the godown together around 2 PM. Around 7 PM a telephonic meassage was received by the informant that Bhawani Singh was not traceable. Informant then made request to the godown employees to search Bhawani Singh. After some time informant received another telephonic message to the effect that Bhawani Singh was murdered. The informant rushed to the spot and lodged the report. On the basis of the said report a case under Section 302 IPC was registered and investigation commenced. Autopsy on the dead body was performed. Statements of witnesses under Section 161 Cr. PC were recorded. The accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Sawai Madhopur. Charges under Sections 302, 302/34 and 394 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses and exhibited 16 documents. In the explanation under Sec. 313 Crpc, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have heard the submissions advanced before us and scanned the material on record. Since there was no eye witness of the occurrence the prosecution adduced circumstantial evidence. The incriminating circumstances against the appellants have been incorporated in para 5 of the judgment of the trial court thus:- (i) Jagdish and Nanu Khan were last seen with the deceased. (ii) Deceased and Jagdish went to Hindaun together to the liquor godown and the deceased was having money. (iii) The deceased left the godown without depositing the money and thereafter he was not seen alive. (iv) Nanu Khan and Jagdish absconded after the incident. (v) Chhurra (knife) got recovered at the instance of Nanu Khan, whereas on the basis of disclosure statement of Jagdish, sum of Rs. 5000/- got recovered. At the time of arrest Jagdish was having a `potli' (Bundle of clothes) that contained blood stained clothes and chappals. (vi) Motive of Jagdish and Nanu Khan behind the murder was to snatch money from the deceased. Before proceeding to consider these circumstances, we deem it appropriate to scan the autopsy report (Ex. P. 16 ). Undeniably the death of deceased was homicidal in nature. As per autopsy report following ante mortem injuries were found:- 1. Incised wound 8 x 5 x neek deep transversly placed in front of neck upper part. 2. Stab incised wound 10 x 4 x Abd, cavity deep (LIF) from which omentin & part of small intestine coming out and some part lying outside the dead body. 3. three incised wound vertically placed 7 x 1 x MD over frontal at mid line and R side with red clotted blood. 4. Incised wound 5 x 1 x MD on L occipital region with red clotted blood. 5. Abraded bruise over R Occipital region with surrounding swelling & crept no blood of size 8 x 6 cm 6. Incised wound 2 x 1 x through and through on L ear pinna 7. Incised wound 3 x 4 on upper part nose with cutting of nasal bone 8. Incised wound transversely & obliquely places over L side face (malen region) 7 x 3/4 x BD with red clotted blood. 9. Multiple incised wound of size 5 x 1/2 x BD to 2 x 1 4 x SD both hands with red clotted blood. 10. Incised wound 5 x 1 x BD at base of L thumb which was partially detected from L hand with dry red clotted blood. The cause of death was hemorrhagic shock brought about as a result of injury No. 1 & 2, which were sufficient to cause death in the ordinary course of nature.
(3.) COMING to the circumstance of last seen we notice that in the written report (Ex. P. 1) the information Badri Prasad stated that at the time of lodging the report Jagdish was present there. He indicated as under:- Lquhy] n'kzu o Hkecy us crk;k fd ;gka ls Hkokuh flag o txnh'k jk; dk irk ugha oks xksnke ls dc fudy x;ka vr% txnh'k ls iwnk rks ;g lgh ugha crk;k o eqks iw. kz fo'okl gs fd Hkokuhflag dh gr;k txnh'k us dh gsa** Evidently after the incident informant Badri Prasad met with Jagdish, therefore the circumstance that deceased and Jagdish were last seen together could not be established. So far as circumstance of recovery of Chhurra (knife) is concerned, we find that on the basis of alleged disclosure statement of Nanu Khan Chhurra got recovered vide recovery memo (Ex. P. 9 ). According to the prosecution Chhurra was seized, sealed and sent for FSL examination. Strangely the prosecution has failed to place on record the report received from the FSL, therefore it could not be established as to whether Chhurra was stained with human blood. It also appears that Chhurra got recovered from the residential room of Nanu Khan at 5. 15 PM on December 31, 1999 i. e. after about 7 days of the incident, but there is nothing on record to show that immediately after the incident Nanu Khan ever visited the room for the purpose of concealing the weapon. It could also not establish whether at the time of alleged recovery the room was locked and its key was in the possession of Nanu Khan. ;