MEHTA,J. - (1.) The appellant herein stands convicted and sentenced as below vide judgment dated 08.07.2014 passed by learned Sessions Judge, Balotra in Sessions Case No.45/2012: Section 302 Life Imprisonment with fine of Rs. 5000/-, in default of payment of fine to further undergo six months' imprisonment.
(2.) Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. Facts in brief are that Umed Singh (PW-16) lodged a written report (Ex.P/23) to the SHO PS Siwana on 11.08.2012 at 7:20 PM inter alia alleging that his brother Chatar Singh had gone from his Krishi Farm to Ramaniya Village on the previous evening at 4 O' Clock. On 11.08.2012, people informed him that a dead body was lying on the road going to Mamaji Wala Jaav. On this information, he rushed to the scene of occurrence. The villagers and In-charge, Police Outpost Mokalsar were present there. They asked the first informant to identify the dead body. The head of the dead body was chopped off and the intestines were coming out. The first informant identified the dead body to be of his brother Chatar Singh on the basis of the clothes available on the body. The first informant alleged that some unknown person had murdered his brother. This report was forwarded to the Police Station Sewana where an FIR No.131/2012 was registered on 11.08.2012 at 9:15 pm for the offence under Section 302 IPC. Shri Umed Singh submitted yet another report to SHO PS Siwana on 12.08.2012 at 3.45 PM inter alia alleging that he had submitted a written report regarding the murder of his brother Shri Chatar Singh on 11.08.2012 whereafter Devi Singh S/o Shri Jawan Singh Rajput R/o Ramniya told him that in the night he (Devi Singh) and Narpat Singh S/o Shri Migraj were proceeding towards the village on a tractor at about 11 O' clock when they saw the deceased Chatar Singh and Kaluram standing at Mamaji Wala Jaav. The accused appellant Kaluram was grappling with the deceased Kaluram. He was having an axe in his hand. Devi Singh and Narpat Singh thought that these persons might be intoxicated and therefore, they did not stop there. The first informant Umed Singh expressed a suspicion that Chatar Singh must have been murdered by Kaluram with the blows of the axe he was holding. The accused appellant was arrested on 13.08.2012 vide arrest memo (Ex.P/28). In furtherance of the information supplied by the accused, the axe and the blood stained dhoti allegedly worn by him at the time of the incident were recovered. After completion of investigation, the police proceeded to file a charge sheet against the accused appellant for offence under Section 302 IPC. Since the offence under Section 302 IPC was exclusively sessions triable, the case was committed to the Court of Sessions Judge, Balotra where charge was framed against the accused appellant for offence under Section 302 IPC to which he pleaded not guilty and claimed trial. The prosecution examined as many as 21 witnesses in support of its case. The accused upon being examined under Section 313 Cr.P.C denied the prosecution allegations but did not lead any evidence in defence. After hearing the arguments advanced by the defence and the prosecution and upon appreciating the evidence available on record, the learned Sessions Judge proceeded to convict and sentence the appellant as aforesaid, by the impugned judgment dated 08.07.2014. Hence, this appeal.
(3.) Learned Counsel Shri Pritam Solanki, representing the appellant vehemently and fervently urged that there is no evidence worth the name on record of the case so as to connect the appellant with the alleged crime. The FIR (Ex.P/23) was lodged against unknown persons. Thus, the second report (Ex.P/24) submitted by Shri Umed Singh to the SHO PS Siwana on 12.08.2012 could not have been admitted in evidence as the same is hit by Section 162 Cr.P.C. He further submitted that all the three witnesses who claim to have seen the accused and the accused together are cooked up witnesses, inasmuch as, had they seen the appellant with the deceased Chatar Singh any time soon before his death, then they definitely would have disclosed this fact to the first informant because admittedly, the FIR was lodged in presence of these witnesses. As per Shri Solanki, the conduct of these witnesses i.e,. Narpat Singh (PW- 15) and Devi Singh (PW-20) in not disclosing to the first informant or the police officials that they had seen the accused appellant grappling with the deceased in the night of 10.08.2012 makes it clear that the witnesses are created only. He further urged that even if the evidence of PW-11 Smt. Bebu Kanwar (wife of the deceased Chatar Singh) and PW-21 Bhanwar Singh (owner of the liquor shop) is accepted that the appellant had left the house of the deceased in his company and that both of them purchased liquor from the shop of Bhanwar Singh, manifestly no inference of guilt can be drawn against the accused appellant as, firstly Smt. Bebu Kanwar has stated that her husband and the accused left the house together in the evening at 4 O' Clock happily. In her cross examination, she admitted that she had no suspicion whatsoever on accused appellant Kaluram. He, thus urged that the inference of motive which learned trial court drew based on the conjectural aspersion in the statement of Smt. Bebu Kanwar that a quarrel had taken place between Kaluram and her husband previously is absolutely unfounded, inasmuch as, had there was any animosity between the deceased and the appellant, then the deceased would not have gone with the appellant happily and both would not have purchased liquor together from the shop of PW-21 Bhanwar Singh. Regarding the recovery of blood stained axe and clothes of accused, the contention of Shri Solanki was that the FSL report cannot be read in evidence because firstly the recoveries were falsely foisted on the appellant and secondly as per Shri Solanki, the recovered articles were forwarded to the FSL after more than twenty days and no explanation is forthcoming for this significant delay leading to the FSL report becoming redundant. He thus, craves acceptance of the appeal while setting aside the impugned judgment of conviction and sentences.;