JUDGMENT
Shiv Kumar Sharma, J.
1. After the death of his first wife. Hanuman (since deceased) got married second time with Ms. Chhimma who developed illicit relationship with the appellant Girraj. Chhimma and Girraj were placed on trial before the learned Additional Sessions Judge Behror. District Alwar in Sessions Case No. 30/99, for having committed murder of Hanuman. Learned Judge vide Judgment dated November 7, 2001 convicted and sentenced the appellant Girraj under Section 302 IPC to suffer life imprisonment and fine of Rs. 1000/-, in default to further suffer imprisonment for one year. Charge against Chhimma was however not found proved and she was acquitted.
2. First information report was lodged by Mahada (PW.5), elder brother of Hanuman, on April 25,1999 with the Police Station Bansoor to the effect that Hanuman his youngest brother, after division of properties was residing separately. Since burden of agricultural work was heavy, he employed one Giriraj (appellant) some five six years ago During this period Chhimma wife of Hanuman had developed illicit relationship with Giriraj. After coming to know about this fact Hanuman used to quarrel with Chhimma. On the preceding night of the incident. Hanuman and Giriraj had come back from the marriage of their caste fellow and got down at the well “Keekron wala” around 10.30 PM and in the next morning the informant came to know that Hanuman was done to death. The informant had suspicion that some body throttled Hanuman and killed him. Police Station Bansoor registered a case under Sections 302 and 120B IPC and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn and on completion of investigation charge sheet was filed against the appellant and co-accused Chhimma. In due course the case came up for trial before the learned Additional Sessions Judge. Behror District Alwar. Charges under Sections 302, 120B and 201 IPC were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions decided the case as indicated above.
3. We have heard the submissions and weighed the record.
4. There is no direct evidence to connect the appellant with the murder of Hanuman. In support of charge levelled against the appellant the prosecution relied upon circumstantial evidence which consisted of:-
(i) The fact that death of Hanuman was homicidal;
(ii) The fact that appellant and Chhimma (wife of deceased) has illicit relationship;
(iii) The fact that Hanuman and the appellant were seen near the place of incident just before the death of Hanuman;
(iv) The fact that on the might of the incident the appellant came to the house of Chhimma to call her;
(v) Finger prints of appellant were found at the place of accident.
5. Death of Hanuman was unquestionable homicidal nature. As per post mortem report (Ex.P-15) following ante mortem injuries were found:-
1. Conjunctional haemorrhage was present in both eyes.
2. Stintly bleeding was present in the nose, ear.
3. Tongue was swallowed.
4. Congestion & Cynosis of ear & near mouth & chin.
5. Ligature was present on the neck which is transversely & completely encircling the neck below the thyroid According to Dr. Narsingh Kanwat (PW. 11) the cause of death was strangulation.
6. In regard to the fact that the appellant and Chhimma had illicit relationship, the prosecution adduced the evidence of Chhitar (PW. 1), Mahada Ram (PW. 5), Dadki (PW. 7) and Chhaju Ram (PW. 14). Learned trial Judge on carefully scrutinising the testimony of these witnesses held that the appellant and Chhimma did not have illicit relationship.
7. The circumstance that the appellant and the deceased were the members of Barat (marriage party) and got down from the bus at the well of ‘Keekarwala’ together can be accepted as proved. But this circumstance in our opinion does not raise even a cloud of suspicion against the appellant. From the evidence of Chhitar (PW. 1), Mahada Ram (PW. 5) and Dadki (PW. 7) it is evident that the appellant and the deceased were working together for the last five years, therefore, there was nothing unnatural, if they both got down from the bus together. Moreover as per the testimony of Chhaju Ram (PW. 14) and Bholu Ram (PW. 18) all the members of marriage party including the appellant and the deceased got down from the bus together near ‘Johad’ as the bus got halted there.
8. The circumstance that on the night of the incident the appellant came to the house of Chhimma to call her was not found established by the learned trial Judge.
9. Coming to the circumstance that the finger prints of appellant were found at the place of incident, we notice that the learned trial Judge placed reliance on the testimony of Mahaveer Prasad, ASI (PW. 10), Pratap Singh (PW. 15), Shiv Lal, ASI (PW. 16) and Girdhari Singh. I.O. (PW. 21). A look at the evidence of these witnesses reveals that the finger prints of the appellant were found on a steel tumbler in the house of the deceased. The glass was seized, packeted and sealed and forwarded to Finger Print Bureau. The Finger Print Bureau gave its report with the opinion that the chance, finger prints, found on the steel tumbler were similar to and identical with specimen finger prints of the appellant. Girdhari Singh, 1O (PW. 21) in his deposition stated that even though the Magistrate’s Bunglaw was very near to the police station still the chance prints were not taken before the Magistrate Girdhari Singh further deposed in the cross examination that ‘Gilas’ (steel tumbler) was not shown to him in the court.
10. In Mohd. Aman v. State of Rajasthan, , their Lordships of the Supreme Court while considering finger- print evidence observed that although under Section 4 of the Identification of Prisoners Act the police is competent to take finger prints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence it is eminently desirable that they are taken before or under the order of a Magistrate in accordance with Section 5. In regard to non production of article on which finger prints found, the Hon’ble Supreme Court observed thus:-
“The other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial-for reasons best known to the prosecution and unknown to the court.”
11. The facts of the instant case, as earlier noticed, demonstrate that neither the finger prints of the appellant were taken before or under the order of Magistrate nor the steel tumbler in proof of the claim of its seizure and subsequent examination by the Finger Print Bureau, was produced and exhibited during trial. This lapse on the part of the investigating officer creates serious doubt about the genuineness of the prosecution case. It is well settled that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. In the instant case the circumstances attendant upon the incident militate entirely against the conclusion that the murder was committed by the appellant. We are unable to share the Trial Court’s view and in our opinion the charge under Section 302 IPC could not be proved beyond reasonable doubt.
12. For these reasons we allow the appeal, set aside the conviction of the appellant and the sentence imposed upon him. We acquit the appellant of the charge under Section 302 IPC. The appellant who is in jail shall be set at liberty forthwith, if not required to be detained in any other case.