SANDEEP MEHTA,J. - (1.) The appellant Yogendra Kumar Kumawat has been convicted and sentenced as below vide judgment dated 28.01.2016, passed by the learned Additional Sessions Judge No.6, Jodhpur Metropolitan in Sessions Case No.10/2013 (NCV No.08/2016). Offence Under Section Sentence Fine Fine Default sentences 302 IPC Life Imprisonment Rs.50,000/- Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
(2.) Brief facts relevant and essential for the disposal of the appeal are noted hereinbelow:- Inder Singh (PW-1) lodged a written report (Ex.P/1) to the SHO, Police Station Pratap Nagar, Jodhpur on 20.10.2010 at 06.00 pm. alleging inter alia that on 20.10.2010, in the afternoon, he received telephonic information that his sister Manju had fallen ill and he should reach the hospital. The informant was nearing the hospital when he got a call from his wife to reach at his sister's house. On reaching there, he saw the deadbody of his sister Manju lying on the floor of her matrimonial home at Chandna Bhakhar. He looked at the body of his sister and noticed blood on her face and on the other parts of her body. A large wound was visible on her neck which appears to have been inflicted by a sharp weapon. His brother-in-law Guman Singh told him that a gold chain and a gold ring worn by Smt. Manju was missing and a safe lying inside the house had been disturbed. On the basis of report aforestated, an FIR No.466/2010 (Ex.P/51) came to be registered at the Police Station Pratap Nagar for the offence under Section 302 IPC. The investigation was undertaken by Rajendra Prasad Diwakar (PW-24), SHO, Police Station Pratap Nagar who prepared the formal documents viz. Panchnama Lash (Ex.P/3), site inspection plan, site inspection memo; lifted the blood lying at the place of incident in a cotton swab; seized the blood stained clothes of the deceased and after autopsy, he handed over the deadbody of Manju to the family members for cremation. The place of incident was got photographed. During investigation, Shankarlal Tailor (PW-4), a neighbour of Guman Singh, gave a statement (Ex.D/1) to the I.O. on 21.10.2010 stating that on the fateful day, between 01.00- 02.00 pm., he had returned home from the market and was parking his motorcycle outside his house, when he looked towards the house of Guman Singh. At that time, an unknown person aged about 23-24 years came out of the house of Guman Singh and passed by the witness. The unknown person was wearing a dark coloured pant and full sleeved shirt. A little later, the witness heard cries coming out from Guman Singh's house. The neighbouring females collected and went to Guman Singh's house, they saw Guman Singh's wife lying on the floor in a bleeding condition. They raised a hue and cry on which, the witness also went to the house of Guman Singh and saw the woman in a badly injured condition. The witness with the aid of Bhairu Singh boarded Guman Singh's wife in Bhairu Singh's car and took her to the MDM Hospital, Jodhpur. On receiving the information, Guman Singh also reached there. Guman Singh's wife passed away. Thereafter, they brought the deadbody back home. During the course of investigation, the finger of suspicion was pointed towards the appellant who had done the job of fixing tiles in Guman Singh's house some days earlier. On getting this lead, the investigating officer arrested the accused appellant on 24.10.2010 (Ex.P/16). He was kept Baparda. The accused was put up for identification at the hands of Shankar Lal who correctly identified him to be the person who was seen coming out from the house of Guman Singh on the day of incident. On the voluntary informations provided by the accused to the I.O. under Section 27 of the Evidence Act, the I.O. proceeded to effect recoveries (Ex.P/49) of a gold chain with pendant and a gold ring as well as blood stained knife and the blood stained apparels of the accused from the room which he had taken on rent from Iqbal (PW-21).
(3.) The blood stained articles recovered from the place of incident, the blood stained apparels of the deceased, the blood stained articles recovered at the instance of the accused and the vaginal swabs and vaginal smear collected from the body of the deceased, were forwarded to the FSL for comparison/ analysis from where, three reports (Ex.P/66, Ex.P/67 and Ex.P/68) were received. As per the report (Ex.P/66), the blood stained swab of cotton collected from the place of incident, the blood stained apparels taken off from the body of the deceased, the shirt, pant, knife recovered at the instance of the accused, all tested positive for the presence of B Group human blood. After collecting these material pieces of evidence, the I.O. proceeded to file a charge-sheet against the accused appellant for the offence under Section 302 IPC in the court of the concerned Magistrate. As the offence was Sessions triable, the case was committed and transferred to the court of the Additional Sessions Judge No.6, Jodhpur who framed charge against the accused for the said offence. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 25 witnesses and exhibited 71 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution evidence, the accused denied the same; claimed to be innocent; further stated that he had been threatened by Shankar Lal to not to state anything in presence of the Magistrate; examined two witnesses and exhibited six documents in defence. After hearing the arguments advanced by the prosecution and the defence and, thoroughly appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellant as above. Hence this appeal. Shri Rajendra Choudhary, Advocate representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. It was his contention that the evidence of the star prosecution witness Shankar Lal is not reliable. The conduct of the witness in not divulging to either Guman Singh or to the I.O. on 20.10.2010 that he had seen an unknown person coming out from the house of Guman Singh in the afternoon when the incident took place, impeaches the creditworthiness of his testimony. 3. He further urged that if the evidence of PW-21 Iqbal is seen, apparently, the accused stayed in his house only for a single day and he had no belongings whatsoever. Thus, as per Shri Choudhary, the recoveries shown to have been effected from the room allegedly rented out to the accused, are absolutely unbelievable. He thus urged that there does not exist any credible evidence on the record of the case so as to connect the accused appellant with the alleged crime. As per Shri Choudhary, these signs were bound to be prominent by visible and as a consequence, Shankar Lal could not have missed to notice the same and would have immediately spoken out to the family members and the I.O. that such a man with suspicious features had been seen coming out of the house of the deceased. As per Shri Choudhary, failure of Shankar Lal to speak out immediately demolishes his evidentiary worth and also makes the recoveries redundant. Shri Choudhary further urged that the FSL reports are not reliable and rather inadmissible in evidence because the Maalkhana articles were forwarded to the FSL after delay of nearly one month and ten days. He urged that the prosecution has alleged that the accused was having numerous injuries on his face, etc. (which were allegedly received in the struggle made by the deceased and that his clothes were stained with blood). Shri Choudhary further submitted that the investigating officer did not associate independent motbirs of the locality in the seizures effected from the room allegedly rented out to the accused appellant. Furthermore, the motibr witness Kapil (PW-20) has given contradictory evidence regarding the date on which, the recoveries were effected. Shri Rajendra Choudhary, Advocate further submitted that the motbir witness Kapil admitted in his cross-examination that the articles recovered by the police from the room of the accused were sealed after the same had been brought back to the police station. He thus urged that the link evidence is broken and the recoveries become redundant. On these grounds, Shri Choudhary craved reversal of the impugned judgment and sought acquittal for the appellant.;