JUDGMENT

Raghvendra Singh Chauhan, C.J. - The appellant, Devendra Singh Rawat, has challenged the legality of the judgment dated 26.11.2012, passed by the learned District and Sessions Judge, Tehri Garhwal, in Sessions Trial No. 18 of 2011, whereby the learned Trial Court has convicted the appellant for the offence under Section 302 IPC, and sentenced him to life imprisonment, and has imposed a fine of Rs. 5,000/-, and further directed him to undergo a sentence of two years of rigorous imprisonment in default thereof.

2. Briefly, the facts of the case are that on 24.11.2010, one Bijendra Singh Rawat, (P.W. 1) submitted a written complaint at Chambha Police Station wherein he stated that on 23.11.2010, there was a marriage at the house of one Sri Hukum Singh Rawat (P.W. 2). His brother, namely Uttam Singh, had attended the said marriage. On the next day, i.e. on 24.11.2010, the dead body of his brother, Uttam Singh, was discovered in a field. Some unknown persons have killed his brother. The complainant was not present in the said marriage.

3. On the basis of the said report, the police chalked out a formal FIR, namely FIR No. 24 of 2010 (Ex. Ka. 1) for the offence under Section 302 IPC. Upon receiving the said report, the Police visited the site and recovered the dead-body. Subsequently, during the course of investigation, on 27.11.2010, the accused was arrested by the Police and was put up for trial.

4. In order to prove its case, the prosecution examined nineteen witnesses, and submitted thirty documents. After going through the evidence, by judgment dated 26.11.2012, the learned Trial Court convicted the appellant for offence under Section 302 IPC. Hence, the present appeal before this Court by the appellant.

5. Mrs. Shruti Joshi, the learned counsel for the appellant, has raised the following contentions before this Court:-

Firstly, the entire case is based on circumstantial evidence. However, the prosecution has failed to establish the complete chain of circumstances, which would unerringly point towards the guilt of the accused. Therefore, the learned Trial Court has erred in convicting the appellant.

Secondly, the learned Trial Court has relied on five circumstances in order to convict the appellant : (i) the presence of the appellant at the marriage of Hukum Singh Rawat's son; (ii) the alleged recovery of the flap (cap) of the pocket of the shirt worn by the accused from the scene of the crime; (iii) the recovery of the shirt worn by the accused at his instance; (iv) the forensic examination report (Ex. Ka. 20) of the shirt establish that the flap (cap) of the pocket of the shirt belongs to the same shirt which was recovered from the appellant; and (v) the recovery of a blood stained stone, which was discovered at the instance of the appellant. However, an in-depth analysis of the evidence would reveal that even these pieces of evidence are not sufficient for convicting the appellant.

Thirdly, according to the prosecution, the flap (cap) of the pocket of the shirt was discovered near the dead-body. However, the Panchnama (Ex. Ka. 2) drawn at the time of the discovery of the dead-body, does not indicate the recovery of any flap (cap) of the pocket of the shirt from the scene of the crime. Even Guman Singh Negi (P.W. 18), the Investigating Officer, clearly admits that the recovery of the flap (cap) of the pocket of the shirt is not indicated in the Panchnama (Ex. Ka. 2). If, indeed, the flap (cap) of the pocket of the shirt were discovered at the scene of the crime, the Police would not have failed in recording an important clue in the Panchnama. After all, the flap (cap) of the pocket of the shirt was a vital clue for linking the accused to the alleged murder. Moreover, the recovery memo of the flap (cap) of the pocket of the shirt does not indicate the presence of any blood. Therefore, the possibility cannot be ruled out that the alleged recovery of the flap (cap) of the pocket of the shirt at the scene of the crime is a plan