Mohammad Rafiq, J. - (1.) This appeal is directed against the judgment of the learned Additional Sessions Judge No. 2, Sikar dated 19.7.2010 passed in Sessions Case No. 40/2008 by which the accused-appellant was convicted for offence under Section 302 I.P.C. and sentenced to life imprisonment with fine of L 1,000, in default whereof, he was to further undergo rigorous imprisonment of one month.
(2.) Facts of the case are that SHO Police Station, Losal District Sikar received a telephonic information in the night intervening on 24th and 25th September, at 12.10 AM about the accused-appellant having committed murder of his wife. He made an entry thereabout in the rojnamcha and along with police party reached at the place of incident, where Purna Ram, father of deceased submitted a written report (Ex.P9) to the effect that his daughter Anita @ Nannu was residing with her husband for last one and half years. Bhagirath, R/o Rewasi, his brother-in-law informed him on telephone on 24.9.2008 at about 12.10 AM that his daughter had reached Rewasi along with her husband at about 5.00 PM. She has been murdered by her husband i.e. appellant by a sharp edged weapon. Informant further stated that he reached village Rewasi with certain other persons and saw the dead body of his daughter. He saw deep wounds on her neck caused by sharp edged weapon. On the basis of the said written report, F.I.R. No. 133/2008 was registered on 25.9.2008 itself. Police on conclusion of investigation, filed charge sheet under Section 302 I.P.C. Accused denied the charges and claimed to be tried. Prosecution produced as many as 15 witnesses and exhibited 27 documents, whereas defence produced 2 witnesses and exhibited 5 documents in their defence. After hearing both the parties, the learned Trial Court has convicted and sentenced the accused-appellant vide impugned judgment in the manner as stated above. Hence this appeal.
(3.) Shri Kapil Gupta, learned amicus curiae for the appellant has argued that guilt of the accused-appellant cannot be held to have been proved beyond reasonable doubt. While the prosecution witnesses alleged that the appellant along with his wife and child reached Village Rewasi only a day earlier, but no one has alleged that he saw accused-appellant committing murder of his wife. He has referred to the statement of Purna Ram (PW-13), who is the informant and submitted that all what he has stated is merely a hearsay and there is no evidence thereabout at all. Even from his statement, it is evident that accused-appellant used to earn his livelihood outside his village and the deceased was residing with him. It cannot be believed that the appellant would bring his wife to village Rewasi only with a view to commit her murder. He has stated that Bhagirath (PW-15) informed him about the fact that appellant has committed murder of his wife Nannu by use of sharp edged weapon and her dead body was lying on the roof. Learned amicus curiae submitted that Mali Devi (PW-8) has claimed that she was the first, who heard the hue and cry from the house of the appellant and went to call Bhagirath. This witness (Mali Devi) has not stated a single word whether she saw murder of Nannu or heard any cry of her, asking for help. Merely because this witness stated that accused-appellant was at his home with his wife, this cannot be regarded as proof of murder against him. In cross-examination, this witness stated that she was hard of hearing and if that was so, it was not possible for her to hear the sound of cry. In cross-examination, she has also stated that accused-appellant came to the village after about one and half years and she did not know where did he reside all that time. She has also , proved that Bhagirath was not arrested but was taken by the police with them. Learned amicus curiae submitted that Sugna Ram (PW-11) has stated that he heard the sound of hue and cry. He came out of his house and heard accused-appellant-Kishna Ram crying that he has murdered his wife. However, on that basis, it cannot be proved that the accused-appellant was the only one, who committed the murder of deceased. This witness was confronted with his police statement (Ex.D3) where he did not state that accused-appellant Kishna Ram was crying from the rooftop that he committed murder of his wife. This witness has stated that there were two programs of jagran; one in Shivji temple, which is situated about 60 yards away from the house of Kishna Ram and another at Ramdevji temple, which is about 50-60 yards away from the house of Kishna Ram. It was, therefore, not possible for anyone to hear the sound of alleged hue and cry, especially not for Mali Devi (PW-8), who in cross-examination has stated that she was hard of hearing and her vision was also very poor.;