OMPRAKASH Vs. STATE

JUDGEMENT

(1.) Being aggrieved by the judgment and order of conviction passed by the Additional Sessions Judge, Nagaur, in Sessions case No. 43/97 on 8-9-1993, convicting the accused under S. 302, IPC, to suffer imprisonment for life, the appellant has filed this appeal. He has preferred this appeal on the grounds mentioned in the memo of appeal as also orally canvassed before us.

(2.) Facts giving rise to the prosecution are stated briefly that a First Information Report was lodged in the Police Station, Khinvsar on 14-5-1992 by one Nenuram, stating that at about 11-00 a.m., on that day, he heard that one Omprakash has killed Shivpyari, his wife, due to old quarrel. Thereafter, investigation was conducted. The accused was arrested and the prosecution commenced. The prosecution has examined 22 witnesses during the trial to prove its case along with certain documents which were duly proved. On appreciation of this oral and documentary evidence, the learned Additional Sessions Judge came to the conclusion that the accused has committed murder under S. 302, IPC and, therefore, proceeded to punish him to suffer imprisonment for life as aforesaid.

(3.) Assailing the order of conviction as recorded by the learned Additional Sessions Judge, Mr. J. R. Beniwal, learned counsel for the appellant, argued that the order of conviction is unsustainable in law as conclusions of guilt are not supported by the evidence on record. According to the learned counsel, the entire conviction is rested upon the sole testimony of an interested witness, who is younger brother of the deceased Shivpyari and the corroboration which is sought to be used for supporting the testimony of P.W. 1 Omprakash is the recovery of blood stained knife and clothes at the instance of the accused. Mr. Beniwal very strenuously argued, after pointing out the evidence to us, that the order of conviction is unsustainable in law. The delay caused in lodging the First Information Report is not satisfactorily explained. The explanation for the so-called delay does not overrule the possibility to concoct the entire case against the accused, the investigation is very faulty and the evidence, as is accepted by the learned trial Judge, is not sufficient to safely convict the accused of murder. According to the learned counsel, the evidence admits of reasonable explanation which can exclude the participation of the accused and in such circumstances, conviction on such evidence is not legal and proper. Assailing the investigation, it was pointed out by the learned counsel that the Police visited the scene of occurrence immediately on the receipt of the First Information Report and had seen the premises. The accused was arrested thereafter and then, it is alleged that at his instance, the blood stained knife and clothes were recovered. The learned counsel argued that the possibility of plantation of these articles cannot be overruled. He then argued that the Investigating Officer has committed a blunder in not connecting the knife to the accused. According to him, assuming that the knife and clothes were discovered at the instance of the accused, mere discovery is not enough, unless the knife, connected to the accused, is shown to have been used by him. It was the submission of the learned counsel for the appellant that the police could have ascertained the finger prints from the knife and could have either proved or excluded use of the knife by the accused. Failure on the part of the prosecution is a serious lacuna, which raises a reasonable doubt regarding involvement of the accused and, therefore, the evidence, as is accepted, is grossly insufficient for sustaining the order of conviction.