Honble MATHUR, J.–This Murder Reference has been made by the learned Additional Sessions Judge, Raisinghnagar, by the judgment dated 14.12.99 in Sessions Case No. 41/1998 for confirmation of death sentence awarded to the accused Rakesh. The learned Sessions Judge convicted the appellant of the offence under Section 302 IPC on the charge of committing the murder of his elder brother Ramesh in the intervening night of 17th and 18.04.1998, being proved. Accused has also preferred an appeal from jail challenging the conviction and sentence awarded to him by the trial court. Accused Rakesh is being represented by learned counsel Mr. J.S. Choudhary. The Murder Reference and the Appeal are decided by common judgment.

PROSECUTION CASE:

(2). The prosecution case in brief is that on 18.4.98 at 12.45 A.M., P.W. 3 Baldev submitted an F.I.R. Ex.P.17 at the Police Station, Raisinghnagar, stating inter-alia that they are five brothers and they are living separately. The wife of elder brother Krishna died about eighteen years back. He brought second wife and for last two years, he is residing at Loonkaransar. He has got two sons namely Ramesh and Rakesh. They are living in the village Likhmewala. The elder brother Ramesh (deceased) was married and the younger brother Rakesh (accused) is bachelor. In the night at about 11.30 while he was sleeping at his residence, Rakesh gave a call to him in raised voice. On enquiry, Rakesh disclosed that somebody has killed Ramesh. He alongwith his brother-in-law P.W. 4 Mani Ram rushed to the house of his brother Krishna and found dead body of Ramesh lying in the house. He suspected the act of Rakesh as relations between the two brothers were not cordial and there was a foot print at the entrance of the house, of a person not having thumb of the foot. Ramesh was not having quarrel with anybody in the village. On this information, police registered a case for the offence under Section 302 IPC and proceeded with the investigation. The police prepared the inquest and sent the dead body of Ramesh for post mortem. The accused Rakesh was arrested on 18.4.98. In pursuance of the information given by him, a blood stained kassi and mattress were recovered. After usual investigation, police laid chargesheet against the accused Rakesh for the offence u/s 302 IPC.

(3). The accused Rakesh pleaded not guilty and claimed trial. The prosecution in support of the case examined 14 witnesses and produced number of documents. The accused in his statement under Sec. 313 Cr. PC stated that the evidence produced by the prosecution against him is false. The trial Court relying on the circumstantial evidence of the recovery of blood stained Kassi and the mattress and the evidence of presence of finger prints of the accused on the handle of the Kassi, held the appellant Rakesh guilty of murder of his elder brother Ramesh and, accordingly, convicted him for the offence under Sec. 302 IPC and sentenced as noticed above.

(4). We have heard learned counsel for the parties and examined the record carefully. The prosecution has mainly relied upon the circumstantial evidence of recovery of blood stained Kassi and mattress in pursuance of the information given by the accused u/s 27 of the Evidence Act and secondly, the report of the finger prints expert showing that the finger prints on the handle of the Kassi tallied with the specimen finger prints of the accused Rakesh. The prosecution has also relied upon the evidence of extra judicial confession and motive.

PROSECUTION EVIDENCE:

(5). P.W. 1 Krishna Kumar has stated that on the date of incident in the night at about 11, Lal Ram had come to his house and informed that somebody has killed Ramesh. After sometime, they went to the house of Ramesh. Large number of people had assembled outside the house of deceased Ramesh. This witness has not supported the prosecution case and has been declared hostile.

(6). P.W. 2 Suresh has stated that on being called by Dayala Ram, he went to the house of deceased

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