G.R. Moolchandani, J. - (1.) - The Jail Appeal No.534/2006 has been preferred by the accused from the Jail, whereas subsequently Criminal Appeal No. 586/ 2006 has been preferred by the appellant through an Advocate against the judgment dated 18/4/2006 passed by Additional Sessions Judge (Fast Track) No. 2, Jodhpur in Sessions Case No.24/2005 whereby he has been convicted for the offence under Section 302 of IPC and sentenced to undergo life imprisonment with a fine of Rs.5,000/- and in default further to undergo six months simple imprisonment.
(2.) In nutshell, the FIR narrates as under:- ...[VERNACULAR TEXT OMITTED]...
(3.) Heard the arguments advanced by both the sides, learned counsel for the accused-appellant has contended that case of the prosecution is devoid of positive evidence, all the material witnesses have become hostile and have not supported the story of the prosecution, even the complainant-author of the FIR has not supported its version and has turned hostile, recovery witnesses have also turned hostile and accused-appellant has explicitly narrated in examination under Section 313 Cr.P.C. that he was at Phulera and when he returned home by Mandore Express in the morning, then he found his wife dead there, PW-17 Ganesh has also supported even this version that accused was in Phulera and in the evening of 16.8.2005 at 8 PM, he had left for taking train and journey ticket was also given to the Investigation Officer, which was deliberately withheld by I.O. to render a twist to the story, so far as recovery of a belt is concerned, it is also futile, since alleged cause of death has been stated to be by asphyxia and learned trial court has committed gross illegality in passing the impugned judgment, so the appeal of the appellant may be accepted and he be acquitted. Learned counsel for the appellant has relied upon the following judgments:- (i) Nizam & Anr. v. State of Rajasthan (Criminal Appeal No.413/2007) decided on 4.9.2015 by Hon'ble Supreme Court. (ii) Mangilal v. State of Rajasthan (Criminal Jail Appeal No.700/2007) decided on 22nd April, 2016 by this Court. On the contrary, learned Public Prosecutor has contended that there is no error apparent on the face of findings of the learned trial court and appellant has committed murder of his wife, there is positive evidence against the accused-appellant and nothing wrong is there in the verdict, so appeal be dismissed.;