S. K. SHARMA, J. - (1.) TWO nephews of Babu (deceased) viz. Dharmendra Singh and Nepal Singh, appellants herein, were put to trial before learned Additional Sessions Judge (Fast Track) No. 1, Bharatpur on the allegation of committing murder of Babu. Learned Judge vide judgment dated April 18, 2003 convicted and sentenced them under section 302 IPC to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month.
(2.) BRIEF facts necessary of this appeal are as follows : Siya Ram had four sons namely Chet Ram, Babu, Biri Singh and Balbir. Since whereabouts of Biri Singh were not known for the last 20 years, agricultural land belonging to Siya Ram was divided in three parts and Chet Ram, Babu and Balbir each had a share of 13 bighas of land. Babu remained unmarried throughout. Chet Ram and Balbir had three and four sons respectively. About six years back Babu adopted Chet Ram's son Rajendra Singh, who used to plough 13 bighas of land of Babu's share and looked after Babu. Since Rajendra Singh became the patient of T. B. , Babu decided to sell a part of his land in order to arrange money for the treatment of Rajendra Singh. On October 24, 2002 Babu came back to his village Kumher from Borai. Rajendra Singh arranged for his food and Babu ate his dinner around 8 P. M. and thereafter slept in the corridor. On October 25, 2002 at 5 AM when Anjani wife of Rajendra Singh went to serve tea to Babu he was found killed. Rajendra Singh then handed over written report at Police Station Kumher at 7 AM on October 25, 2002. In the report Rajendra Singh stated that Dharmendra S/o Balbir Singh and Balbir S/o Siya Ram could be the culprits. On that report a case was registered under sections 302 and 456 IPC and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1, Bharatpur. Charge under section 302 IPC was framed against the accused, denied the charge and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Undeniably death of Babu was homicidal in nature. As per Post Mortem report (Ex. P-36) following ante mortem injuries were found on the dead body:- 1. Incised wound 10" x 31/2" x bone deep from sub occipital region to Lt. sub mandibular region. Laterally placed with fracture of mandible at angle and c3. c4 vertebrae. 2. Two parallel incised wound with 1cm apart of 5" x 11/2 x 6" x 1" bone & muscle deep laterally placed on lt. side of the mid neck. 3. Incised wound 10" x 5" deep to vertebral column extending from lt. shoulder to back upto the level of T1 vertebra about lt. scapular region with fracture of T1 vertebrae and sharp cuts & fracture of c6 & c7 vertebra with multiple cuts into the muscle & fascia. 4. Incised wound of 4" x 1/2" on dorsal surfaces of Rt. hand reaching to the web space of little finger. 5. Amputation of Rt. ring finger at Ist interphalangeal joint. 6. Incised wound of 3" x 1/2" deep to muscle present on the antro medial aspect of middle 1/3 of Rt. forearm. 7. Incised wound of 1" x 1/2" on Rt. middle finger. In the opinion of Dr. Nishith Kumar (Pw. 24) the cause of death was hemorrhage & and shock due to ante mortem injuries. We have given our anxious consideration to the submissions advanced before us and with the assistance of learned counsel, gone through the evidence on record. Since there was no eye witness of the incident, the prosecution founded its case on circumstantial evidence. Learned trial court convicted the appellants only on the basis of recoveries of weapons allegedly made at the instance of the appellants.
(3.) IN order to test the findings of learned trial court when we look at the evidence adduced by the prosecution at the trial we notice that Ramniwas IO (Pw. 23) conducted the investigation of the case. He arrested appellant Nepal Singh on October 26, 2002 vide memo Ex. P-5 and on the basis of his disclosure statement (Ex. P-32), Gandasa which was found lying behind Godrej Almirah in the residential house of Nepal Singh, got recovered vide memo Ex. P-8. The recovery was effected in presence of chetram (Pw. 3) and Jaggo (PW. 6 ). Thereafter on the next day Benta (wooden handle of Gandasa) was recovered vide memo Ex. P-10. Appellant Dharmendra Singh was arrested on October 26, 2002 vide memo Ex. P-14 and on his informations (Ex. P-34 and Ex. P-35) recorded under section 27 of Evidence Act Gandasa and its wooden handle, kept in a Bori (Bag) in the residential house of Dharmendra got recovered vide memos Ex. P-9 and Ex. P-11. The recovery was effected in presence of Chet Ram (Pw. 3) and Jaggo (PW. 6 ). The INvestigating Officer admitted to have visited the house of Dharmendra where he found his parents, brothers and sisters residing in the house. IN the house of Nepal Singh also at the time of recovery of weapon, his father was found in the house. Chet Ram (PW. 3) and Jaggo (PW. 6), who were motbirs of recovery of Gandasas and wooden handles, did not support the prosecution case and they were declared hostile. In Harjit Singh vs. State of Punjab (2002)6 SCC 739 observed that it is unbelievable that all the accused persons who have alleged to use their firearms/ weapons kept all the arms concealed in an open field in a gunny bag under a heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to the public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied on by the trial court to convict the accused by treating it as eyewitness account. In Bhupan vs. State of M. P. (2002) 2 SCC 556, the Apex Court held that the mere fact of the prosecution having recovered a sword at the instance of appellant, on facts and circumstances of the case would not permit to base a conviction under section 302 IPC in the background of the fact that almost all other evidence produced by the prosecution were disbelieved by the courts below. ;