HARIOM @ ARVIND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against judgment dated 15.06.2012 passed by Additional District and Sessions Judge, Bandikui, District Dausa (for short 'the trial court') whereby accused-appellants have been convicted for offence under Sec. 302 Penal Code and sentenced to life imprisonment with fine of Rs. 5,000.00, in default whereof, he was to further undergo three months imprisonment.

(2.) Facts of the case are that Babulal (P.W.4) son of Chhuttan submitted a written report (Exhibit P-8) to SHO, Police Station Bandikui on 10.10.2010 at 8.30 A.M. stating therein that he was resident of Ward No. 1, Bandikui, Tehsil Baswa District Dausa. He and his deceased brother Tulsiram son of Chhuttan Lal were residing in Ram Chandra Ki Dhani in two rooms. The informant went to sleep at 10.00 P.M. on 09.10.2010. At that time, Ram Phool Meena, their neighbourer Hari Om and Mukesh Meena resident of Ram Chandra Ki Dhani were sitting with his brother Tulsiram. When the informant woke up in the following morning at 6.00 A.M., he found that his brother has been murdered by someone after slitting his neck. Blood was speared all over the floor. His dead body was lying on the cot outside the room. Pieces of meat and roti were spread in the room. The police was informed on telephone. The police on the basis of the aforesaid written report, registered a regular FIR No. 750/2010 (Exhibit P-35) under Sec. 302 Penal Code and commenced investigation. Upon completion of investigation, charge sheet was filed under Sec. 302/34 Penal Code against the accused-appellants in the Court of concerned Magistrate. The case was committed to the Court of Sessions, Dausa from where it was transferred to the Court of Additional Sessions Judge, Bandikui, District Dausa. The trial court framed charges against the accused-appellants for offence under Sec. 302 IPC, which they denied and claimed to be tried. The prosecution in support of its case examined as many as 15 witnesses and exhibited 39 documents. Thereafter, accused appellants were examined under Sec. 313 Crimial P.C., 1973 who pleaded innocence and stated that they have been falsely implicated in the case. In defence, no witness was produced and only one document was got exhibited. The trial court, on conclusion of the trial, vide judgment and order dated 15.06.2012 convicted and sentenced the accused-appellants in the manner indicated here in above. Hence, these appeals.

(3.) Mr. Anshuman Saxena, learned counsel for the accused-appellant Hariom @ Arvind argued that learned trail court has committed serious illegality in convicting the accused appellant for the alleged offences inasmuch as there is absolutely no evidence against the appellant to connect him with the crime. The prosecution has relied on two circumstances against the accused appellant. First circumstance was of last seen and second circumstance was of recovery of weapon and one shirt. The trial court has failed to appreciate that the evidence of last seen was not only against Mukesh and Hari Om, but it was also against Ram Phool (P.W.6) to the effect that he was also with the deceased at the time when he went to sleep. It is also amply proved by evidence that Ram Phool was having money dealings with the deceased. The prosecution could not have therefore excluded accused Ram Phool of the charge sheet. The trial court has recorded wholly perverse finding on the basis of last seen evidence against the accused-appellants as per the statement of Babulal (P.W.4), who stated that when he went to sleep at 10' o Clock, the deceased was in the company of Ram Phool, Mukesh and Hariom. As per the post mortem report (Exhibit P-1), which was conducted at 10.30 A.M., duration of death was 6 to 12 hours before the post mortem was conducted. It indicates that murder of the deceased took place early in the morning. But the prosecution failed to prove that the accused-appellant Hari Om continued to be in company of the deceased in close proximity of time of death of the deceased. Recovery of weapon, kulhadi at the instance of accused-appellant Hari Om vide Exhibit P-11 was made from open place and therefore, said recovery cannot be attributed to the appellant. Recovery of white shirt having blood stains at the instance of Hari Om cannot be considered as reliable evidence unless blood group of the deceased and blood group found of the shirt is same. While one of the prosecution witnesses stated that investigating officer recovered the weapon of offence from the place of occurrence, still prosecution sought the information of the weapon and made the recovery at the instance of accused appellant. It was no body's case that the deceased consumed liquor along with the appellant, still investigating officer has recovered empty bottle of liquor only in order to show that the deceased and the accused-appellants were consuming liquor. Report of Forensic Science Laboratory with regard to alcohol in the body of deceased has not been proved by the prosecution. Factum of recovery of liquor therefore could not have been used against the appellant.