SHARMA, J. - (1.) CHALLENGE in this appeal is to the judgment dated February 20, 2002 rendered by learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City whereby Narpat Singh and Ganpat Singh, the appellants herein, were convicted under Section 302 IPC and sentenced to suffer imprisonment for life and fine of Rs. 100/-, in default to further rigorous imprisonment for three months.
(2.) AS per prosecution story on August 23, 2000 informant Dhanraj Sharma (PW. 2) submitted a written report (Ex. P. 1) at Police Station Subhash Chowk Jaipur stating therein that in the temple of Akhandeshwar Mahadev the room of Pujari was closed and foul smell was spreading. The police on reaching the spot found that room was locked from out side. The lock got broken and in the room dead body of Ram Charan. . . . tied with electric wire was found lying in a pool of blood. Dead body was subjected to post mortem. On August 26, 2000 one Jugal Kishore (PW. 1) informed the police that appellants made confession before him that they killed Ram Charan. Statements of Jugal Kishore and other witnesses were recorded under Section 161 Crpc, appellants were arrested and at their instance certain incriminating articles got recovered. Chance prints from the place of incident got lifted and sent for comparison along with the finger prints of the appellants and on completion of investigation, charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City. Charge under Section 302 IPC was framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants expressed that they were innocent. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard rival submissions and weighed the evidence adduced at he trial. HOMICIDAL DEATH: Since presence of eye witness could not be secured, the prosecution has relied on the circumstantial evidence. The first circumstance relied upon by the trial court was that death of Ram Charan was homicidal. We notice that as per post mortem report (Ex. P. 26) following ante mortem injuries were found on the dead body:- 1. Lacerated wound 4 x 3. 0 cm on left side of temporal region of scalp involving upper 1/3 part of left pinna with depressed area of size 16. 0 x 8. 0 cm around it. 2. Two incised wounds of size 1. 0 cm x 1/4 cm x muscle deep and 1/2 x 1/4 cm x muscle deep found on distal phalanx of left ring and little finger at its palmer aspect all the antemortem hematoma skin of his hand was not fully deglosed and found attached. 3. Bruise of size 4. 0 x 3. 5 cm on right knee anteriorly in lower part, red bruise in colour covering skin is missing. 4. Bruise of size 3. 0 x 2. 5 cm on left knee anteriorly in lower part with red bruise discontrution covering skin is missing. 5. The demis which is exposed due to feeling off the skin around both ankles and feet due to putrefactive process also shows the mark of electric wire ligature at the level of ankle is on antero lateral aspect with hematoma corresponding. In the opinion of Dr. S. R. Kochar (PW. 11) the cause of death was ante mortem strangulation. Having closely scrutinized the evidence of Dr. S. R. Kochar, we find that the prosecution is able to establish that the death of Ram Charan was homicidal in nature. EXTRA JUDICIAL CONFESSION: Second incriminating circumstance relied upon by the trial Court was that the appellants made extra judicial confession of the guilt before Jugal Kishore (PW. 1) who in his deposition stated that on August 26, 2000 while he was returning from temple Govind Devji he saw appellants sitting on the wall of temple. On being asked as to why they were not visiting temple Akhandeshwar, the appellants replied that deceased was not repaying them a sum of Rs. 800/ -. When on the proceeding night they went to the deceased and demanded money, the deceased instead of making payment, threatened them to kill. The behaviour of deceased got Ganpat Singh angry and they caused injury with stone on the person of deceased and killed him. Relevant portion of statement of Jugal Kishore reads thus:- *** In the cross examination Jugal Kishore stated:- *** Evidently Jugal Kishore was stranger to the appellants and he used to meet them occasionally. The confession so made was not disclosed by Jugal Kishore to anybody though he had occasion to meet many people. Jugal Kishore admitted that after the confession made by the appellants, he straightway went to the police station and informed the police about the confession. Jugal Kishore deposed thus:- *** In Lakhan Pal vs. State (AIR 1979 SC 1620) their Lordships of the Supreme Court indicated that where a prosecution witness, stranger to the accused, deposed that he made the disclosure about the extra judicial confession of the accused for the first time in the police station and that he never told about this to anyone else though he met a number of persons, it was unsafe to rely on his evidence.
(3.) THE evidence of Jugal Kishore appears to us as hightly unreliable and untrustworthy and conviction cannot be founded on such evidence. THEre is also nothing to show that Jugal Kishore and appellants were ever friendly with each other. So it is highly improbable that the appellants would open their heart before him to make a confession. RECOVERY OF KNIFE: Third incriminating circumstance relied upon by learned trial Court against the appellants was that the knife allegedly used in commission of the offence got recovered at the instance of appellant Narpat Singh. Dilip Sharma, Investigating Officer (PW. 18) deposed that on the basis of disclosure statement of Narpat Singh (Ex. P. 61) knife was recovered by him vide recovery memo (Ex. P. 6) from the roof of temple Akhandeshwar. Madho Kishar (PW. 6) motbir of recovery, however in his examination in chief, stated that it was Ganpat Singh who got the knife recovered. This infirmity creates suspicion as to the recovery of knife. The prosecution has also not led any evidence that from the date of incident till his arrest Narpat Singh had any opportunity to go to the roof of temple Akhandeshwar for the purpose of concealing the knife. We thus find that the prosecution could not establish this circumstance beyond a reasonable doubt. FINGER PRINTS: Fourth incriminating circumstance, relied upon by the learned trial Court, was that finger prints of the appellants matched with the chance prints lifted from the place of incident. It appears from the report of Finger Print Bureau (Ex. P. 64) that Photographer visited the crime scene on August 23, 2000 and four chance prints were developed by expert. Specimen ten digit finger and palm prints of appellants were also taken. Chance print photographs were compared with the specimen ten digit and palm prints of the appellants and it was opined that they were similar and identical with the specimen finger prints of appellants. It may be noticed that finger prints of the appellants were not taken before the Investigating Officer. Dilip Sharma, IO (PW. 18) stated thus:- *** ;