SHASHI KANT SHARMA, J. - (1.) INSTANT appeal has been filed by the accused appellant Ashok Kumar @ Sarkari against the judgment dated 14. 11. 2000 passed by the learned Addl. Sessions Judge, Shahpura District-Jaipur whereby the appellant Ashok Kumar @ Sarkari was convicted for the offences under sections 302/34 and 397/34 IPC and was sentenced for the offence under Section 302/34 IPC for life imprisonment and a fine of Rs. 1000/- and for the offence under Section 397/34 IPC for seven years R. I. and a fine of Rs. 1000/- and in default of payment of fine to further undergo two months RI for each of the fine.
(2.) MISS Anupama Parashar was appointed as amicus curiae for appellant and arguments were heard. The brief facts which are relevant and essential for the disposal of this appeal are as under: Pw-1 Banshidhar lodged a written report on 1. 10. 99 to SHO Shahpura wherein he mentioned that Mst. Gulari was living in his neighbouring house. On 30. 9. 1999, he was searching her for giving meal on the occasion of `shradh' of his father but he could not find Gulari. On 1. 10. 1999 at about 7-8 am some foul smell was coming from the house of Gulari. He saw through the window that dead body of Gulari was lying in the room, her legs were cut. It was also mentioned in this report that on the fateful night Ashok Kumar and Ramesh were also there but now they are not traceable. Banshidhar had a doubt that Ramesh and Ashok Kumar have murdered Gulari. On this report, police registered a case for the offences under Section 302 IPC. Statement of witnesses were recorded under Section 161 Cr. P. C. Autopsy was done on the body of deceased Gulari. Post mortem report Ex. P-5 was prepared. Site plan Ex. P-2 was also prepared. Accused Ashok Kumar @ Sarkari was arrested and after completion of the investigation, police filed challan before the concerned Magistrate against the accused appellant Ashok Kumar @ Sarkari for the offence under Section 302 and 398 IPC and then the case was committed to Addl. Sessions Judge, Shahpura. After hearing arguments, learned Addl. Sessions Judge framed charges for the offences under Sections 302/34 and 397/34 IPC against the appellant. Appellant denied the charges and claimed trial. Prosecution examined as many as 26 witnesses namely Pw-1 Banshidhar, Pw-2 Nathuram, Pw-3 Baliram, Pw-4 Deep Chand, Pw-5 Dr. Smt. Madhu Gupta, Pw-6 Girdhar Gopal, Pw-7 Dr. Smt. Pratibha Meena, Pw-8 Dhapabai, Pw-9 Ramkumar, Pw-10 Ramesh, Pw-11 Kani Devi, Pw-12 Laxmi Devi, Pw-13 Kanaram, Pw-14 Ramlal, Pw-15 Dharmpal, Pw-16 Nagarmal. Pw-17 Mohanlal. Pw-18 Narsinghlal, Pw-19 Durgaprasad, Pw-20 Gopal Singh, Pw-21 Harphool, Pw-22 Ramchandra, Pw-23 Santosh, Pw-24 Kailash, Pw-25 Chandrabhan Sharma and Pw-26 Bhim Singh. Accused was examined under Section 313 Cr. P. C. Arguments were heard and accused appellant was convicted and sentenced as mentioned hereinabove. Learned Amicus Curiae Miss Anupama Parashar has argued that the accused appellant Ashok Kumar @ Sarkari is innocent and he has been falsely implicated in this case. It is also argued that there is no eye witnesses of this occurrence and accused appellant has been convicted only on the basis of some blood stains found on his pants and T-shirt. It is also argued that according to prosecution accused appellant has committed the murder of Smt. Gulari for taking her silver ornaments. He was arrested but no such ornaments has been recovered from him. It is also argued that prosecution could not prove that any pants or T- shirt have been seized from the person of accused. It is argued that no independent witnesses were present at the time when the alleged recovery of pants and T-shirt was made by the police. It is argued that this alleged recovery of pants and T-shirt was made in presence of only two police constables namely Dharmpal and Krishnadatta. It is also argued that there is no evidence on the record to prove that if any pants and T-shirt was taken from the person of accused then that sealed packets of such pants and T-shirt were deposited in the Malkhana. It is argued that Head Morarir of the Malkhana PW-26 Bhim Singh was examined as prosecution witness and in examination in chief he has deposed that sealed packets b, c and d were sent to Forensic Science Laboratory directly and those packets were not entered in Malkhana register. If this is the prosecution case then some evidence should have been produced to prove, where those sealed packets were kept from the date of recovery till the date they were sent to FSL. In this matter, according to prosecution, these pants and T-shirts were taken by the police from the person of accused on 5. 10. 99 and those packets were deposited in the FSL by PW-8 Narshinglal on 2. 12. 99. There is no evidence where these sealed packets containing pants and T-shirt of the accused were kept in safe custody from 5. 10. 99 to 2. 12. 99 and if it is not proved then prosecution cannot get any advantage of FSL Report and it cannot be said that there were blood stains on the pants and T-shirt of accused and if it is so then no incriminating evidence remains against the accused appellant. It is also argued that accused is grand son of deceased Gulari and resident of that village, therefore if at all at some point of time he was present in that village it does not prove that he has committed this murder. Learned Public Prosecutor has argued that Trial Court has rightly convicted the accused for the offences as mentioned above and the appeal of the accused appellant is devoid of merit and should be dismissed.
(3.) WE have considered the rival contentions of the parties and perused the entire record as well as the impugned judgment. After reading entire record, we come to the conclusion that there is no eye witness of this occurrence. This accused appellant has been convicted on the basis of blood stains which were found on the pants and T-shirt of accused. We have considered the argument advanced by the amicus curiae that alleged recovery of these pants and T-shirt were made only in the presence of two police constables. Prosecution could not persuade us why any independent witness were not taken at the time of such alleged recovery of pants and T-shirt. After reading the statement of PW-26 Bhim Singh who was Malkhana In charge it becomes clear that sealed packet containing these pant and T- shirt was not kept in Malkhana. It is also clear that such alleged recovery was made on 5. 10. 99 and such sealed packet was deposited in FSL on 2. 12. 99. There is long interval of time between the date of seizure and date of depositing its sealed packet in FSL. There is no evidence on record by which it can be proved that during this period sealed packet containing these clothes were kept in safe custody and under these circumstances, FSL report relating to the blood stains on pants and T-shirt looses its importance. We have also considered the fact that according to prosecution this offence was committed by the accused for taking silver ornaments from the person of the deceased. Accused was arrested only within six days from the date of occurrence but even then such silver ornaments were not recovered. We have also considered this fact that the accused appellant is grand son of deceased and if he was present at any time in the village it is not such evidence which may show that it is only Ashok Kumar who has committed the murder of Gulari. We have examined entire evidence available on record, we are of the view that prospection could not prove this offence against this accused Ashok Kumar @ Sarkari beyond reasonable doubt, therefore this appeal deserves to be allowed. ;