R.C. Gandhi, J. - (1.) These appeals have been preferred against the judgment and order dated 25.01.2002 passed by the learned Additional District and Sessions Judge No. 1 (Fast Track) Kota (hereinafter referred as 'the Trial Court'), whereby, accused -appellant No. 1, Devendra Pathak has been convicted and sentenced to suffer imprisonment for life for commission of offence under Sec. 302 I.P.C. and appellants Avinash Pathak and Pradeep Jain have been convicted and sentenced to suffer imprisonment for life for commission of offence under Sec. 302/34 I.P.C. In Appeal No. 243/2002, appellant Mukesh @ Teekam Chand has been convicted and sentenced to suffer imprisonment for life for commission of offence under Sec. 302/34 I.P.C. The prosecution story is that on 23.07.1988 at about 10.00 p.m. four persons came to the house of the deceased Mahendra @ Hari and one of them namely Devendra Pathak entered the premises of the house of the deceased and pressed the bell. On hearing the ringing of the bell, the deceased who was watching T.V. along with his father came out, followed by his father, Madan Lal Mittal. While the father of the deceased came out from the room, he stood on the balcony and saw the occurrence therefrom wherein Devendra Phatak inflicted two knife injuries in the chest of the deceased and on his coming out from the room, the assailants ran away. The father of the deceased, P.W. 1, Madan Lal Mittal called Arvind Tiwari, his tenant, who came on spot and both of them look the injured to the hospital. In the hospital, a police constable came at about 11.20 p.m. on the same day to whom a written complaint was furnished by P.W. 1, who took it to the Police Station. On the basis of this complaint of P.W. 1. F.I.R. came to be registered at about 11.40 p.m. The Investigating Officer collected the evidence, such as prepared the site plan, recovered the clothes of the deceased, the knife, a weapon used in the commission of the crime and recorded the statements of the witnesses under Sec. 161 Cr.P.C. The Investigating Officer arrested accused Devendra and Mukesh @ Teekam Chand on 24.07.1988 and accused Avinash Pathak on 20.09.1988 and presented the Challan before the court for alleged commission of offences under Sec. 302 I.P.C. in respect of accused Devendra Pathak and 302/34 I.P.C. in respect of other accused. The prosecution cited 21 witnesses to prove the guilt against the accused. Out of these witnesses, witness No. 1 has been cited as eye witness to prove the occurrence and witnesses Nos. 2 to 7 cited in the challan, to prove that accused were roaming near the house of the deceased. Witnesses Nos. 8 and 9 have been cited to prove the seizure of blood stained shirt of the accused. Witnesses Nos. 10 and 11 have been cited by the prosecution to prove the recovery of the knife, the weapon used in commission of offence. Witness No. 12 is a doctor, witness No. 13 is a photographer and other witnesses are the police witnesses including the Investigating Officer. The Trial Court framed the charges against the accused. They pleaded not guilty and were put to trial.
(2.) The prosecution has examined only 17 witnesses out of 21 witnesses and out of the 17 witnesses, P.W. No. 2 and 5, Rajendra Kumar and Devendra Verma, respectively who have been cited to prove that accused were roaming near the house of the deceased, were declared hostile. Four witnesses have not been examined and one of them is witness No. 8 Radheshyam who was to prove the seizure of the blood stained shirt of the accused which he was wearing at the time of occurrence.
(3.) The prosecution led the evidence before the Trial Curt and the Trial Court on appreciation of the evidence came to the conclusion that the prosecution has not been able to prove the seizure memo of the knife and despite noticing the probabilities in the prosecution case, the Trial Court held that the prosecution has proved the commission of offences by the accused and recorded findings of conviction to sentence.;