NAVIN SINHA, J. - (1.) The appellant stands convicted under Section 302 I.P.C. to life imprisonment by the District and Sessions Judge, Bundi in Sessions Trial No.98/1983.
(2.) P.W.14- Hajari Lal lodged FIR (Ex.P/3) in the morning about 6:45 am on 22.07.1983 that a dead body was lying abandoned. The Postmortem of the deceased was done the same day (Ex.P/12) at 7.45 am by P.W.16- Dr. Durga Shanker. 9 injuries were found on the body of the deceased. Death was opined due to brain hemorrhage causing injury to vital center leading to instantaneous death. The time elapsed at the time of post mortem since death was estimated to be about 10 to 16 hours. The body of the deceased was identified by his brother P.W.17-Gopal. The inquest report was marked as (Ex.P/5) and the site map (Ex.P/4).
(3.) Learned counsel for the appellant submitted that the entire case of the prosecution is based on circumstantial evidence on the principle of the last seen theory coupled with recovery of a watch allegedly on the confession of the appellant stated to be belonging to the deceased. The witnesses have stated that the deceased was allegedly last seen with the appellant and PW2 Laddu the previous morning at about 9:00 am. But there is evidence also that the deceased parted company with the appellant and Laddu and subsequently Laddu also parted company with the appellant. The question of invoking the last seen theory against the appellant therefore does not arise. Furthermore if death was opined to have occurred 10 to 16 hours before postmortem on 22.07.1983 at 7.45 A.M., there is wide time gap from the time that the deceased was allegedly seen with the appellant in the morning. Invocation of the last seen theory is clearly unsustainable. The alleged recoveries of belongings of the deceased on confession of the appellant have all been disbelieved by the Trail Judge. The only incriminating material against the appellant is the recovery of a wrist watch allegedly belonging to the deceased on basis of which alone the conviction has been ordered. There has been gross mis-appreciation of evidence by the Trial Judge in failing to consider that P.W.19- Laduram who had signed the seizure memo for recovery of the watch (Ex.P/15) allegedly on the confession of the appellant deposed that the watch produced by the prosecution was not the same watch recovered and seized in his presence. The identification of the watch as belonging to the deceased by his brother P.W.17 Gopal, allegedly during TIP therefore becomes irrelevant. The conviction on basis of circumstantial evidence was thus not sustainable at all.;