1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: D.B. CRIMINAL JAIL APPEAL NO.1043/2006 (Kundan Singh Vs. The State of Rajasthan) D.B. CRIMINAL JAIL APPEAL AGAINST THE JUDGMENT DATED 24.01.2003 PASSED BY THE LEARNED ADDL. DISTRICT & SESSIONS JUDGE (FAST TRACK), SIROHI IN SESSIONS CASE NO.14/2002. DATE OF JUDGMENT : 15th April, 2009 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Anuj Sahlot ) Amicus Curiae for the appellant. Mr. S.S. Sharma ) Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI, J.) 1. This criminal jail appeal has been filed by accused appellant - Kundan Singh against the judgment dated 24.01.2003 passed by the learned Additional District & Sessions Judge (Fast Track), Sirohi, whereby, he convicted 2. accused appellant - Kundan Singh for offence under Section 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs.5000/-, and in default of payment of fine to further undergo one year's additional imprisonment on account of killing his wife Suraj Kanwar with sword. The report of the incident was lodged before the S.H.O., Police Station Pindwara on 2.10.99 at 7.40 AM Ex.P-1 by brother of deceased namely Gopal Singh that accused appellant - Kundan Singh resident of village Viroli was married with his sister 8 to 9 years back and has been informed by Shambhoo Singh on telephone that his sister has been killed by accused appellant - Kundan Singh. He along with his elder brother Pabu Singh, Nen Singh, uncles Shambhoo Singh and Keshar Singh went at village Viroli and came to know that his sister has been killed by accused appellant - Kundan Singh on account of having suspicion on his wife's character. Upon this report, a case was registered and investigation was commenced. After investigation, the challan was filed before the court of Judicial Magistrate, Pindwara, who committed the case to the court of Sessions, which was transferred in the court of Addl. Sessions Judge, where, accused appellant was charged for offence under 3. Sections 302 and 428 IPC. Prosecution examined 15 witnesses. Statements of the accused appellant was recorded under Section 313 Cr.P.C. He led no defence. The learned trial court convicted and sentenced the accused appellant on the basis of the extra judicial confession as also on the basis of the recovery of 'churra' (knife), which was sent for chemical examination and the blood group of the knife was telling with the blood found on the pants of the accused appellant. After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellant as indicated above. 2. We have heard Mr.Anuj Sahlot, learned Amicus Curiae as well as the learned Public Prosecutor. 3. Mr. Anuj Sahlot, learned Amicus Curiae has submitted that in this case, the extra judicial confession is not voluntarily as it has been made before the police officers and the recovery is also doubtful because recovery of one knife is at the time of arrest of accused appellant which is Ex.P-13 and another recovery of knife has been made on the basis of the information furnished by the accused 4. appellant under Section 27 of the Evidence Act after two days of arrest, which is Ex.P-59, and of 'kulhari' Exs.P-62 & P-63. 4. On the contrary, learned Public Prosecutor has submitted that the information furnished by the accused appellant under Section 27 of the Evidence Act, which is Exs.P-62 and P-63 relates to the axe, by which, accused appellant has killed one dog and the knife by which accused appellant has killed his wife has been recovered vide Ex.P-59 on 3.10.99. The another knife recovered vide Ex.P-13 was found with accused at the time of his arrest. According to him, the accused appellant has furnished voluntary extra judicial confession before his relatives, therefore, it is admissible in evidence. 5. We have perused the statements of those witnesses before whom, the extra judicial confession was made and also the recovery memos. Shambhoo Singh PW-1 is the uncle of accused appellant, Gopal Singh PW-2 and Pabu Singh PW-3 are the brothers-in-laws of the accused appellant. They have categorically stated that accused 5. appellant - Kundan Singh told them that he killed his wife on having suspicion over her character. Of-course some police people were standing where these witnesses were present. This by itself cannot discard the testimony with regard to the extra judicial confession. In addition to it, Fateh Singh PW-4, who is the brother of accused appellant - Kundan Singh has too stated that when he reached on the spot, the neck of Suraj Kanwar was separated and accused appellant Kundan Singh was standing there with knife and on seeing, he ran towards them. This conduct of the accused appellant shows that it was no one except accused appellant - Kundan Singh, who killed his wife with a strong motive of deceased's bad character in the mind of accused appellant - Kundan Singh. 6. The judgment of Mathra Vs. The State of Rajasthan, reported in 2003(2) Cr.L.R. (Raj.) 959, cited by the learned Amicus Curiae is not helpful to the facts of the present case, because in the cited case, the extra judicial confession was not voluntarily and it was made in the presence of police, whereas, in the present case, the extra judicial confession was made before the relatives, who were having no animus 6. with the accused appellant, coupled with the circumstance that he was seen present on the spot by his own brother Fateh Singh PW-4. 7. So far as recovery is concerned, knife has been recovered on the spot vide Ex.P.13, when accused appellant was arrested on 2.10.99, whereas, the another recovery of 'kulhari' and clothes have been made on 4.10.99 vide Exs.P-62 and P-63 as per the information furnished by the accused appellant under Section 27 of the Evidence Act by which the accused appellant killed one dog on the spot. The 'kulhari', knife and clothes were sent for chemical examination and as per the report of the chemical examiner Ex.P.56, churra Ex. Article-8 was found to be of 'B' blood group and 'B' blood group was also found on kamij Article-7 and pants Article-9 and churra Article-8 was found with the same blood group i.e. group 'B' along with 'odani' 'ghaghara, & 'kurti' of the deceased. In this way, the recovery of the clothes of deceased as well as of accused appellant and the recovered 'churra' were of the same blood group i.e. group 'B'. The necessary inference which can be drawn is only that it was accused appellant - Kundan Singh, 7. who inflicted knife blow on the neck of deceased - Suraj Kanwar his own wife, whereby, she died. Of-course, there were two knifes recovered from the accused appellant, one at the time of his arrest vide Ex.P-13 on 2.10.99 and another vide Ex.P-59 on the next day on account of information furnished by the accused appellant under Section 27 of the Evidence Act. Both the knifes were sent for chemical examination and they were found to be of 'B' blood group. The possibility of having two knifes with the accused appellant, therefore, cannot be ruled out. 8. Accordingly, we are of the view that the learned trial court has rightly held accused appellant - Kundan Singh guilty for offence under Section 302 IPC. 9. Consequently, this criminal jail appeal is dismissed. The judgment dated 24.01.2003 passed by the learned Addl. District & Sessions Judge (Fast Track), Sirohi is confirmed. Accused appellant - Kundan Singh is in jail, he will serve out the remaining part of the sentence. (DEO NARAYAN THANVI), J. (A.M. KAPADIA), J. ms rathore