JUDGMENT

1. Appellant has filed this appeal challenging the judgment/order dated 15.12.2016 passed by the Trial Court, whereby, he was convicted and sentenced qua offence punishable under Section 302 & 328 Indian Penal Code, 1860 (hereinafter referred to as 'IPC').

2. Appellant- Om Prakash Jangid was convicted and sentenced as under:-

U/s. 302 IPC: Life imprisonment, to pay a fine of Rs.10,000/- and in default thereof to undergo one year simple imprisonment.

U/s. 328 IPC: Ten years simple imprisonment and to pay a fine of Rs.5,000/- and in default thereof to undergo six months simple imprisonment.

3. Prosecution story was set in motion on the basis of the report Exhibit P-23 lodged by the complainant Satish Kumar. On the basis of the report Exhibit P-23, formal FIR Exhibit P-24 bearing No.402 dated 21.11.2011 was registered at police station Chirawa, District Jhunjhunu under Section 307, 328 IPC.

4. Prosecution story, in brief, as per the FIR is that appellant had taken Rupees twenty lacs from Ramavtar on the pretext of providing him a plot. On 20.11.2011, appellant called Ramavtar to his house between 6.00 a.m. to 9.00 a.m. and gave him a Bhabhuti (sacred ash) to consume. Ramavtar informed the complainant about the said fact at his residence before losing his consciousnesses. After consuming the puriya (small paper packet), Ramavtar left for his village. Ramavtar became unconscious and was removed to the hospital at Chirawa and from there he was referred to Sikar hospital. Since, condition of Ramavtar was serious, he was referred to Jaipur and was got admitted in Soni hospital at Jaipur. Doctor disclosed that it was a case of poisoning and Ramavtar was admitted in ICU on account of his serious condition. Appellant Om Prakash was a Tantrik (Occultist).

5. Ramavtar died on 21.11.2011 at 6.00 p.m. Thereafter, offence under Section 302 IPC was added in the FIR.

6. After completion of investigation and necessary formalities, challan was presented against the appellant.

7. Charges were framed against the appellant under Section 302, 328 I.P.C. Appellant did not plead guilty to the charges framed against him and claimed trial.

8. In order to prove its case, prosecution examined twelve witnesses, during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), after the close of prosecution evidence prayed that he was innocent and had been falsely involved in this case. He had not met the deceased prior to the incident nor had given him any Bhabhuti. He was not a Tantrik.

9. Appellant did not examine any witness in his defence.

10. Learned counsel for the appellant has submitted that the prosecution had failed to prove its case. In-fact, from the police proceedings recorded in Exhibit P-23, it was evident that a fax message had been received from Satish Kumar with regard to the crime-in-question. However, the said fax message was not attached with the challan and had been later taken on record as Exhibit P-20 on an application moved by the prosecution under Section 311 Cr.P.C. A perusal of Exhibit P-20 reveals that it is purported to be signed by Sandeep in Hindi, whereas, Exhibit P-19, application moved by Sandeep to police station Jaipur bore the signatures of Sandeep in English. Thus, the fax message Exhibit P-20 had been created later by the prosecution to strengthen its case. Moreover, as per the fax message, deceased was alive and the fax message had been sent on 21.11.2011 at 7.15 p.m, whereas, the deceased had already died on 21.11.2011 at 6.00 p.m. Moreover, PW-7 in his cross-examination deposed that they had sent information to the police after the death of Ramavtar. As per PW-7, he had been told by his father Ramavtar that Om Prakash had administered him Bhabhuti and the residue part of the Bhabhuti had been kept by him under the mattress. The ash, which was lying under the