- (1.) APPELLANT Prabhu has been convicted by the learned Sessions Judge, Jalore, of offences under sections 302 and 201 I. P. C. vide his judgment dated 6-7-83. On the first count, he has been sentenced to undergo life imprisonment and to pay a fine of Rs. 200/- and in default to undergo rigorous imprisonment of three months; on the second count, he has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 200/- and in default to undergo, rigorous imprisonment for three months. Aggrieved, he has come to this Court.
(2.) BRIEFLY stated, the prosecution story is that appellant Prabhu, who is resident of Bakasar within jurisdiction of police station, Sarvana, district Jalore, had been married some three or four years prior to the incident to Shanta daughter of Moolji PW 2 r/o Khadol, police station Bab, district Banaskantha (Gujarat ). It is alleged that Smt. Shanta used to complain of ill-treatment from her husband to her parents whenever she visited them at Khadol. It is alleged that two months prior to the incident, Smt. Shanta visited her parents at Khadol and returned after staying for some time to Bakasar with her husband, the present appellant. The prosecution story, further, is that on 26. 6. 82, Naga PW 4 r/o Kukadia Dhani saw appellant at the shop of Jhumarmal at Kukadia. This was at about 4 p. m. He also saw the wife of the appellant there. The appellant was asking his wife to go to Bakasar with him but she was not willing to go. Inspite of this, accused proceeded towards Bakasar with his wife. Tee same day, PW 5 Magan Lal r/o Dasoria saw the appellant proceeding from the direction of Kukadia Dhani to Bakasar. It is alleged that at that time, the appellant was having an axe with him and some heated arguments were going on between the husband and the wife. The prosecution story, further, is that the same day soon after sun set or near about sun set, PW 3 Himmat Singh, who was going to Antila with his bullock heard the shricks of a lady. When he went nearer, he saw the accused standing with an axe and nearby lay the dead body of his wife hacked into two or three pieces. Himmat Singh tried to proceed towards the accused but the accused threatened him with dire consequences. Scared, Himmat Singh went away to Antila. He stayed there for a couple of days and on 30. 6. 82, went to Khadol and informed PW 2 Moolji about this incident. The prosecution story, further, is that on 30. 6. 82, PW 6 Chakuji, PW 12 Bherji and PW 13 Bhinya Ram were sitting in front of shop of one Balwant Singh at Bakasar. They saw the accused appellant passing that way and accosted him because a rumour had been afloat in the village. that accused had killed his wife. On being accosted, the accused took all the three of them to his house and told them that he had done his wife to death by hacking her into pieces by an axe and had also burnt her body. The prosecution story is that Chakuji Bherji and Bhinya Ram were not satisfied and asked the accused to take them to the place where the incident had taken place. Upon this, accused appellant took them to the outskirts of the village Ankodeo where lay a heap of ashes and some bones were lying scattered. The prosecution story is that Moolji on being informed by Himmat Singh about the incident, went to Bakasar, where Chakuji, Bherji and Bhinya Ran informed him of this alleged extrajudicial confession of the accused. Moolji was also taken by them to the scene of occurrence. After having visited the scene of occurrence, Moolji went back to Khadol where he summoned his cousin Ganga Ram. Both of them eventually went to Jalore where a report Ex. P1 was got typed by Moolji. Moolji presented this report to Superintendent of Police, Jalore on 8. 7. 82. Thereafter, Moolji handed over report Ex. P1 with the endorsement of Superintendent of Police, Jalore, to Ganga Ram because he (Moolji) was feeling unwell. Ganga Ram went with this report to police station, Sarvana, on 11. 7. 82 and submitted the same to the S. H. O. On this report being presented, S. H. O,. Sarvana, registered a case under sections 302 and 201 I. P. C. and proceeded to investigate into the matter. On 13. 7. 82, he inspected the site in presence of Moolji and prepared site plan Ex. P12 and its legend Ex. P2. According to the prosecution story, some blood was lying at the spot and the blood stained earth was recovered by Ummed Singh; he likewise, recovered control soil from the said spot. Memos Ex. P5 and Ex. P6 were prepared in this regard. Ummed Singh found some ashes and some burnt bones at the spot. He also recovered them along with some pieces of bangles vide Ex. P3. Some coins, hooks of a bodice and a burnt ring were also lying there. They were also recovered vide Ex. P4. All these articles are said to have been duly sealed at the spot. The prosecution story is that the accused appellant was arrested on 19. 7. 82 at 3. p. m. vide Ex. P13. On 21. 7. 82, an axe was recovered at the instance of the accused. Likewise, certain ornaments allegedly belonging to the deceased were recovered by the Investigating Officer. These ornaments and the burnt ring were eventually put up for identification before PW 9 Mohan Singh on 18. 8. 82. At such identification parade, PW 7 Smt. Kallu mother of the deceased identified these ornaments as belonging to the deceased. During the course of the investigation, statements of various witnesses were recorded and various articles were sent to State Forensic Laboratory at Jaipur. However, it appears that no report with regard to any examination from the Forensic Laboratory was received. Upon such material, the accused was challaned before Munsif and Judl. Magistrate, Sanchore, who on 22. 9. 82 committed him to Sessions to stand trial for offences under sections 302 and 201 I. P. C.
(3.) THE learned Sessions Judge framed due charges against the accused, who pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as 14 witnesses. Various documents pertaining to recoveries were also, inter alia, produced in evidence. In his statement recorded u/s 313 Cr. P. C, the accused denied his complicity in the alleged crime. According to him, his wife had left two months prior to the alleged incident for the house of her parents and she had not returned thereafter. According to him, he had been falsely implicated. He, however, did not lead any defence. Learned trial Judge after hearing both the sides, found that the testimony of Himmat Singh was absolutely unreliable and did not inspire any confidence. He, however, found that the appellant had been seen firstly by PW 4 Naga and secondly by PW 5 Magan Lal proceeding with his wife towards Bakasar. He also found that an extra-judicial confession, as alleged, had been made by the accused in presence of PW 6 Chakuji, PW 12 Bherji and PW 13 Bhinya Ram. In his opinion, the extra-judicial confession was voluntary and reliable. He held recovery of a burnt ring, from the spot established but found it hazardous to place reliance upon the same. He found recovery of ornaments from the house of appellant also established but found that this factor was not of any consequence inasmuch as there was no evidence that the deceased had been wearing these ornaments immediately before her death. According to the learned Judge, these ornaments could have been in the natural and normal custody of the husband because the wife used to live with him. He, however, found that there was no evidence to show that blood stained earth recovered from the spot contained human blood. He, further, found that there was no evidence of human blood having been found on the axe. Upon such evidence, he convicted and sentenced the appellant as stated above. In the present case, it has been urged on behalf of the appellant that prosecution has failed to establish that Smt. Shanta had at all died or for that matter, had died an unnatural death. It is submitted that the bones said to have been recovered from the spot, were not got chemically examined to establish that they were bones of a human being or for that matters bones of a lady. It is submitted that the testimony of Naga and Magan Lal is unworthy of credence inasmuch as they were examined quite late by the Investigating Officer and prier to such examination, they had not disclosed the fact to anybody, that they had seen the appellant going with the deceased. It is urged that the evidence regarding extrajudicial confession also does not inspire any confidence and the evidence is unworthy of belief. It is submitted that according to the prosecution, PW 6 Chakuji, PW 12 Bhorji and PW 13 Bhinya Ram had narrated the story of the said extra-judicial confession to Moolji. But surprisingly enough, the report made by Moolji does not even faintly refer to such an extra-judicial confession. It is submitted that the F. I. R. in the case had been lodged with great deal of delay and this creates a reasonable doubt about the veracity of the prosecution story. ;