JUDGMENT 1. - The instant criminal jail appeal has been filed by the life-convict, Ramjan Khan, against the judgment dated 29th of May, 2008 passed by learned Addl. Sessions (Fast Track) No.2, Pali, in Session Case No.55/2007, by which the learned trial court convicted the appellant for the offence under Section 302 of IPC and passed sentence for life imprisonment along with fine of Rs.5000/-, in default of payment of fine, to further undergo six months' simple imprisonment. 2. As per facts of the case a written report (Ex.P/12) was submitted by complainant, Joru Khan (PW.5), father of deceased Khairun, in which it was stated that marriage of my daughter, Khairun (deceased) was solemnized with Ramjan Khan 7-8 years back and from the wedlock of Khairun with appellant, two issues, one son and daughter were born. The beheaviour of accused appellant, Ramjan Khan with Khairun (deceased) was so bad after married, for which she regularly made complaints.On 21.10.2007, at about 07.00 AM in the morning, an information was received from Police Station-Rohat that his daughter was taken to the Pali Hospital for treatment, where she died due to grievous injuries caused upon various parts of her body. 3. After receiving the aforesaid information, the complainant immediately went to the Govt. Hospital, Pali, where he saw numbers of injuries were appearing upon hand, leg, head, neck ear and other parts of body of deceased, Khairun. Upon enquiry, it was informed that her husband, Ramjan Khan (appellant herein) gave severe beatings to her in his house at Village Artiya, and the villagers and other family members after breaking, open the door and took Khairun (deceased) for treatment to hospital. 4. Upon the aforesaid written report, FIR No.166/2007 (Ex.P/23) was registered at Police Station-Rohat on 31.10.2007 under Section 302 of IPC against the accused appellant. 5. During investigation, the appellant was arrested and after completion of investigation, charge sheet was filed in the court of Addl. Chief Judicial Magistrate (Communal Riots) Pali, from where the case was committed to the court of Sessions Judge, Pali, but the case was transferred to the court of Addl. Sessions Judge (FT) No.2, Pali for trial. 6. The learned trial court framed charge against the accused appellant on the basis of evidence on record under Section 302 of IPC, after providing opportunity of hearing, but accused appellant denied the charge and prayed for trial. 7. Sessions Judge (FT) No.2, Pali for trial. 6. The learned trial court framed charge against the accused appellant on the basis of evidence on record under Section 302 of IPC, after providing opportunity of hearing, but accused appellant denied the charge and prayed for trial. 7. In the trial, statements of 24 prosecution witnesses were recorded including real brother of the accused appellant, namely, Ismile Khan (PW.8), who was present in the house at the time of incident and 37 documents were exhibited from the prosecution side in the trial. 8. After recording prosecution evidence, statements of the accused appellant were recorded u/s 313 Cr.P.C., in which he gave following explanation: " eq>s >wBk Qalk;k x;k gSA eSa lRlax esa FkkA jkr dks rhljs ihgj ?kj vk;k rks irk pyk fd [ks:u dks vLirky ys x;s gS] eSa vLirky igqapk rc rd [ks:u ej pqdh FkhA " 9. The learned trial court after recording the statement under Section 313 Cr.P.C. although granted opportunity to lead evidence to the accused appellant, but no evidence was led by him in defence. 10. The learned trial court, finally heard the arguments and vide judgment impugned dated 29.05.2008 convicted the accused appellant for the offence under Section 302 of IPC and passed sentence against the appellant for life imprisonment along with fine, with default stipulation to undergo six months' additional simple imprisonment. 11. While assailing the aforesaid judgment, learned counsel for the appellant Mr. Shambhoo Singh and amicus curiae, Mr. K.L. Joshi, argued that finding of conviction under Section 302 of IPC arrived at by the learned trial court is totally erroneous because there is no eye-witness and reliable evidence on record to hold accused appellant guilty, so also there is no evidence of motive for committing murder, therefore, the judgment impugned deserves to be quashed because the prosecution has failed to prove its case beyond reasonable doubt. 12. Learned counsel for the appellant submit that the day on which the occurrence took place, the appellant was not in the house, he went to participate in a 'Satsangh', but the learned trial court committed an error while not accepting the explanation given by the accused appellant. Therefore, the finding of learned trial court to hold accused appellant guilty is totally erroneous. 13. Therefore, the finding of learned trial court to hold accused appellant guilty is totally erroneous. 13. While inviting attention of the Court towards the statement of PW.10-Shrawan, PW.11-Gheesu Khan, PW.12-Mehphooli, PW.13-Barkat, PW.14-Yusuf, PW.15 Muma @ Mumal, PW.16-Nawaram and PW.17-Omaram, and PW.18-Nainaram, it is submitted that all above witnesses who turned hostile, so also, the prosecution has purposely did not produce two witnesses, namely, Nasir and Barkat before the court even though their names were appearing in the list of witnesses. Therefore, the entire prosecution evidence is not reliable because no independent and impartial witnesses gave his statement before the court in support of prosecution case. The entire prosecution case, is based upon circumstantial evidence, which is not proved by trustworthy evidence, deserves to be rejected solely on the ground that prosecution has failed to prove its case beyond reasonable doubt. 14. Learned amicus curiae as well as counsel appearing for the appellant vehemently argued that the recovery of "Lathi" which is said to be recovered upon the information given by the accused appellant u/s 27 of the Evidence Act vide Ex.P/2 cannot be used as an evidence so as to connect the appellant with the crime because recovery has been made from open place. Therefore, the judgment impugned may kindly be quashed. Learned counsel for the appellant lastly argued that the prosecution has not only failed to prove the recovery but also failed to support any allegation of the complainant PW.5-Joru Khan, so also, PW.20 Hurmat, mother of the deceased, who gave hearsay evidence, contrary to her statement recorded u/s 161 Cr.P.C. 15. While inviting attention towards the statement of PW.22, Iqbal Hussain, it is submitted that this witness was working as police officer but he was not vigilant to conduct investigation after receiving information because he did not went to the hospital immediately to ascertain the correctness of the facts and, therefore, the whole prosecution story suffers from material irregularity and far from the truth. According to appellant's counsel, in the FIR (Ex.P/12) there is no disclosure of name of any eye-witness and this fact has been accepted by the Investigating Officer, Peparam PW.23, who has categorically stated before the court that the names of eye witness were not disclosed. Therefore, the statement of PW.8-Ismile Khan (real brother of accused appellant), deserves to be rejected for the reason that he is planted witness. Therefore, the statement of PW.8-Ismile Khan (real brother of accused appellant), deserves to be rejected for the reason that he is planted witness. The crux of the argument of learned counsel for the appellant is that none of the witness has supported the testimony of author of FIR, therefore, findings given in the judgment impugned deserves to be quashed and set aside and the appellant is entitled to be acquitted from the charge levelled against him. 16. Per contra, learned Public Prosecutor submitted that no error has been committed by the learned trial court in convicting the appellant for the offence u/s 302 of IPC because the prosecution has proved its case beyond all shadow of reasonable doubt. The argument of learned Public Prosecutor is that although some of the witnesses turned hostile, viz. PW.17 Omaram, who turned hostile, but said witness stated before the court that in the night at about 12-12.30 PM, Khairun become ill, therefore, she was taken to hospital, but upon perusal of the postmortem report and statement of PW.3, Dr. Ishwar Lashkari, it is evident that there were as many as 12 injuries on the person of deceased, Smt. Khairun. Thus, it is also clear from the statement of hostile witnesses that they were win over by the accused appellant. 17. While inviting attention of the Court towards the statement of PW.8, Ismile Khan (real brother of accused appellant), it is argued by the learned Public Prosecutor that said witness has categorically stated before the court that marriage of deceased, Khairun, was solemnized with his brother, Ramjan Khan, 7-8 years back and she was living with his brother, Ramjan Khan in the village. The said witness specifically stated before the court that incident took place in front of him when he entered into the room the occurrence took place, thereafter he took Khairun (deceased) to hospital for treatment. According to learned Public Prosecutor, if the brother of accused appellant, Ismile Khan himself has stated before the court on oath that the alleged incident took place in front of him, then there is no question to disbelieve the prosecution evidence upon which finding of conviction is bad. 18. According to learned Public Prosecutor, if the brother of accused appellant, Ismile Khan himself has stated before the court on oath that the alleged incident took place in front of him, then there is no question to disbelieve the prosecution evidence upon which finding of conviction is bad. 18. While controverting the arguments of learned counsel for the appellant that there is no disclosure of eye witness in the FIR (Ex.P/12), it is submitted that the FIR was filed by the father of deceased, who was admittedly present at the time when occurrence took place. Later on, when reached in the hospital, the FIR was submitted by him but in the investigation, the family members gave their statements that accused appellant assaulted deceased in his room and due to injuries caused by him, she died in the hospital. It is also argued that upon the clothes of deceased blood was found and in all 12 injuries were found upon the body of deceased. 19. According to opinion of the doctor, deceased Khairun died on account of head injury caused by a blunt weapon. After arrested the accused appellant gave information u/s 27 of the Evidence Act and the weapon of offence i.e. "Lathi" was recovered on 22.10.2007 at 08.00 PM vide Ex.P/34 and in pursuance of information, Lathi was recovered vide Ex.P/2 in front of two witnesses, namely, Kailash Dan and Ghewar Ram. Upon the said "Lathi, blood was found and the same was sent for chemical examination to the FSL. Upon the said "Lathi" human blood of "O" group was found, which is evident from FSL Report (Ex.P/35). Therefore, it is argued that the prosecution has proved its case beyond reasonable doubt and the learned court below has rightly appreciated the evidence so as to hold accused appellant guilty for committing offence under Section 302 of IPC, therefore, this appeal deserves to be dismissed. After hearing the learned counsel for the parties, we have perused the entire evidence, so also, the finding recorded by the learned trial court so as to convict the appellant for the offence of murder of his own wife, Smt. Khairun. 20. PW.5 Joru Khan (author of FIR) has categorically stated before the court that the FIR was filed by him with regard to crime of murder of his daughter, Khairun, who was married with appellant, Ramjan Khan. 20. PW.5 Joru Khan (author of FIR) has categorically stated before the court that the FIR was filed by him with regard to crime of murder of his daughter, Khairun, who was married with appellant, Ramjan Khan. After perusal of evidence, it is revealed that PW.10, Shrawan and PW.11, Gheesu Khan, PW.12 Mehphooli, PW.13, Barkat, PW.14 Yusuf, PW.15 Muma @ Mumal, PW.17 Omaram and PW.18 Nainaram, turned hostile, but it is very important to mention that all these witnesses were not present in the house when the occurrence place, therefore, they are not relevant witnesses. On the contrary, PW.8 Ismile Khan, real brother of accused appellant, Ramjan Khan was very much present in the house and the said witness has categorically stated before the court that in his presence accused appellant gave beatings to his wife. The relevant extract of the statement of PW.8 reads as infra:- " eSa gkftj vnkyr eqyfte jetku dks tkurk gwa tks esjk HkkbZ gS] bldh 'kknh [kS:u ds lkFk 8&7 lky igys gqbZ FkhA esjh HkkHkh [kS:u 'kknh ds ckn esjs HkkbZ jetku ds lkFk gh jgrh FkhA [kS:u xqtj pqdh gS ftldks xqtjs gq;s lk<+s rhu eghus gks pqds gSA mldh ekSr dSls gqbZ bl ckr dh eq>s tkudkjh ugha gSA [kS:u dh ekSr ikyh vLirky esa gqbZ FkhA [kS:u dks esjs HkkbZ us ydM+h ls Bksd fn;k Fkk bl dkj.k mldks vLirky ysdj vk;s FksA esjs HkkbZ us jkr ds le; dejs ds vUnj mls ydM+h ls Bksdk FkkA Bksdrs oDr eSaus ns[kk FkkA fnu esa eSaus [kS:u dks ns[kk Fkk ftlds gkFk ij yxh gqbZ ns[kh Fkh vkSj flj ij Hkh yxh gqbZ FkhA ge lc ?kj okys lks jgs Fks rc esjs ckbZ us dgk fd dkSu dkSu yM+ jgk gS rc ge lc mBs Fks] mBdj geus jetku ds dejs dk fdokM+ [kqyok;k fQj [kS:u dks ysdj jksgj vLirky] vk;s] fQj jksgu ls ikyh jsQj fd;k vkSj ikyh vLirky esa bZykt ds nkSjku [kS:u dh ekSr gks xbZA lkjs xkao okys ?kj ij bdBs gks x;s FksA " In the cross-examination, said witness has reiterated the allegations levelled against the accused appellant for committing crime. 21. PW.9 Haji Khan, uncle of the accused appellant, also made allegations against the appellant in his statement. 21. PW.9 Haji Khan, uncle of the accused appellant, also made allegations against the appellant in his statement. The relevant portion of statement of PW.9, Haji Khan, reads as infra:- " gkftj vnkyr eqyfte jektu [kka esjk Hkrhtk gS] ftldh 'kknh 7&8 lky igys [kS:u ds lkFk gqbZ FkhA [kS:u ej pqdh gSA [kS:u dSls ejh eq>s irk ughaA [kS:u dh ekSr fdl LFkku ij gqbZ eq>s irk ughaA eSa [kS:u dks jksgV vLirky ysdj x;k Fkk fQj eSa rks esjs ?kj vk x;k FkkA [kS:u ds lkFk esa ekjihV gqbZ Fkh blfy;s vLirky ysdj x;k FkkA mlds lkFk ekjihV fdlus dh eq>s irk ughaA ekjihV mlds ?kj /k.kh us dh vkSj dkSu djrkA [kS:u dks vLirky yk;s rc eSaus mls ugha ns[kk FkkA vkt ls rhu lk<+s ekg igys dkjhxjksa ds ?kj lRlax Fkk eSa ogka x;k gqvk FkkA ogka esjk yM+dk ;qlqQ eq>s cqykus vk;k vkSj eq>s dgk fd HkkHkh dks ekj jgs gS] pyksA fQj eSa esjs ?kj vk;k fQj dgk fd eSa esjs ?kj ugha vk;k jetku ds ?kj x;k] vkSj ogka ls [kS:u dks VSEiksa esa ysdj jksgV vLirky x;sA VSEiksa vksekjke es?koky dk FkkA jetku ds ?kj eSaus dqN ugha ns[kk fQj dgk fd ogka va/ksjk FkkA ykbZVsa xbZ gqbZ FkhA jetku ds ?kj dksbZ ugha Fkk fQj eSa cqykdj yk;k FkkA Jo.k] uokjke] uSukjke dks cqykdj yk;k Fkk fQj [kS:u dks ckgj fudkydj jksgV ysdj x;sA " In the cross-examination, the said witness has reiterated and supported the allegations levelled with regard to commission of offence by the appellant. 22. The weapon of offence i.e. "Lathi" has been recovered upon the information given by the accused appellant u/s 27 of the Evidence Act, in the presence of two witnesses, namely, Gheesu Khan and Kailash Dan. The statements of PW.11, Gheesu Khan, were recorded in the trial court in which he has categorically proved that in pursuance of information given by accused appellant, one "Lathi" was recovered in front of him. He has further narrated in his statement that from the place of occurrence, one "Rali", pieces of bangles were also taken in the possession by the Investigating Officer vide Ex.P.4. The place of occurrence was also inspected by the investigating officer and site plan (Ex.P/5) was prepared in front of him. The blood stained "Lathi" and the clothes of the deceased along with other articles were sent for chemical examination to the FSL. The place of occurrence was also inspected by the investigating officer and site plan (Ex.P/5) was prepared in front of him. The blood stained "Lathi" and the clothes of the deceased along with other articles were sent for chemical examination to the FSL. In FSL Report (Ex.P/35) dated 25.10.2007, it is reported that upon "Salwar", "Jumper", bangles, "Kholi", "Gudri" and "Lathi" human blood of "O" group was found. Meaning thereby the prosecution has proved the fact that human blood of "O" Group was found upon the clothes of deceased as well as upon the "Lathi". Thus, the FSL report corroborates the statement of eye witness PW.8, Ismile Khan. 23. The Investigating Officer has further stated before the court that investigation was conducted by me and recovery was made by me. In view of above, we are of the opinion that although some of the witnesses turned hostile and did not support the prosecution case, but there is no question to disbelieve the testimony of eye witness PW.8, Ismile Khan, who is none other than the real brother of accused appellant, who was very much present at the time, when incident took place in the house on 21.10.2007. It is also relevant to mention here that PW.3 Dr. Ishwar Lashkari, who conducted the postmortem of deceased, reported that there were 12 injuries on the body of deceased. With regard to cause of death, following opinion is given by the medical jurist PW.3, which reads as under:- "In opinion of the Board of Medial cause of death of Kherun W/o Ramjan age 25 years after PM is Head Injury." 24. It is very important fact that the accused appellant, is husband of deceased, Khairun, and in the night both (deceased and accused appellant) were in the room, where the incident of murder of wife took place. Therefore, it is beyond imagination that someone else has committed murder of Khairun. 25. In view of above discussion, the finding of conviction of accused for the alleged offence under Section 302 of IPC is based upon trustworthy and reliable evidence of PW.8, Ismile Khan, brother of accused appellant, which is corroborated by evidence of recovery of "Lathi" proved by independent witnesses, so also the postmortem report and FSL report. 25. In view of above discussion, the finding of conviction of accused for the alleged offence under Section 302 of IPC is based upon trustworthy and reliable evidence of PW.8, Ismile Khan, brother of accused appellant, which is corroborated by evidence of recovery of "Lathi" proved by independent witnesses, so also the postmortem report and FSL report. Therefore, there is no question to accept the argument of learned counsel for the appellant that finding of learned trial court suffers from any illegality or infirmity, more so, it is a case in which the prosecution has proved its case beyond reasonable doubt on the basis reliable and trustworthy evidence.Consequently, there is no force in this appeal, therefore, the same is hereby dismissed.Appeal dismissed. *******