D.L.MEHTA, J. -
(1.)DECEASED Virendra Singh was managing the affairs of truck No. RRQ 44, which was used for transporting the goods from jodhpur to Bombay. Mukansingh was the owner of the truck. He was the cousin of deceased Virendra Singh. Accused Hardaram was the driver of the truck and on February 4, 1978, he left for Bombay with a loaded truck. Deceased Virendrasingh was accompanying him. On 7th February, 1978, Virendra Singh and accused Shankeriya, Anandram reached Bombay and after unloading the goods, they left for Kankroli. On 9th February, 1978, they unloaded the goods at Kankioli J.K. Tyres Factory and, thereafter, reached the Nathdwara and loaded the truck and left for Bombay. It is further stated that the truck passed on 1th February, 1978 from Bornbay -Ahmedabad High -way.
(2.)IT is alleged that accused Anandaram was the cleaner of the truck and he was accompanying deceased Virendra and the accused Shankeriya, through -out. On 11th Feb., 1978, Shankeriya unloaded the goods and informed about their arrival at Bombay Branch Golden Transport Company. It is further stated that accused Snankeriya informed the Manager that Virendra Singh has dropped at Gorbandar and has directed him that after unloading the goods, he should report at the Branch Office. Shankeriya also informed the manager of the Tiansoort Company that Virendra Singh deceased has dropped at Gorbandar for the purpose of realisation of the dues, which was outstanding as inst the persons who were using the truck for the purpose of loading and unloading the truck Accused Shankeriya further requested on the new day that the information should be given to the Head Office that Virendra Singh has not reached so far. Padam Singh, who is the first informant in the case and who has been examined as a prosecution witness, was informed that Virendra Singh has not reached so far at Bombay. On the next day, Padam Singh contacted.the Transport Company Bombay Branch and enquired about Virendra Singh, Bombay Brach informed Padam Singh that Virendra Singh has left for Gorbandar and has not reached so far Padam Singh was also informed that the driver and the cleaner have unloaded the goods. Padam Singh waited for three days and, thereafter, he left for Bombay. On 16th Feb., 1978, Padam Singh lodged the information at police station, Jodhpur. He also requested the Superintendent of Police, Jodhpur to send a radio -gram to Police Commissioner, Bombay to trace out Virendra Singh. On 16th February, 1978, a radio -gram was sent by S.P., Jodhpur to the Commissioner of Police, Bombay Padam Singh directed Shivnardyan, who is his brother -in -law, to proceed for Bombay in search of Virendra Singh. Shivnarayan returned on 26th February, 1978, and he could not succeed in tracing out the deceased. Thereafter, Padam Singh and Shivnarayan both left for Bombay along with the accused persons to trace out Virendrasingh. In a daily news -paper 'New BharatTimes' photo of Virendra Singh was published and general public was requested to inform about his where abouts. On July 3, 1978. Padam Singbjlodged the first information report at police station, Sardarpura, Jodhpur under Sections, 364 and 120B, IPC. Ex P/44 is the FIR and the details of the occurrence have been given in it. He has stated therein that be has made enquiries and now be is satisfied that both the accused are history -sheeters of Maharashtra and have committed the murder of his son Virendra singh. Motive for the commission of the crime has been shown in the first information report is that Virendre Singh has 2.5000 to 3,000 Rupees with him at the relevant time.
Accused Andaram was arrested on 11th July, 1978. Tie investigating agency was of the view that Virendra Singn has been murdered nearby Chin choti Ki Ghati, Maharashra. The investigating agecy, at the instance of the accused persons, recovered some bones from nearby the place, which is shown as Chin -choti Ki Gbati However, during the trial it was found that the bones recovered by the police are not of the bones of human being, but the bones are of the animal. Some articles were also recovered from the possession of the accused, after their arrest. Accused Kisohriya was arrested on August 21, 1978 and some articles of the deceased; were recovered from him after, investigation, the prosecution submitted off charge -sheet under Sees. 302/24, 20B and 201, IPC. Accused person in their statements have stated that they have not committed the murder art they have stated the same version, which was given by them to the Bombay Branch Office. There is no direct evidence to connect the accused with 4th commission of the crime 1 he whole case hinges on the circumstantial evidence. The first question which arises for the consideration of the Court is whether Virendra Singh is dead or not? On behalf of the accused, it was stated that the prosecution has miserably failed to estiblish that Virendra Singh is dead. Recovery of the dead body may be a linking evidence, but in the absence of the recovery of corpse, the court cannot come to the conclusion that Virendra Singh is dead.
(3.)IN the instance case, the prosecution has recovered the bones at the instance of the accused -persons. However, during the investigation it was found that the bones recovered are not the bones of the human being, but are the bones of the animal. Learned Sessions Judge has considered the point and found that Virendra Singh is dead. PW 3 Harnarayan, Manager of the Jodhpur Golden Transport Company, has stated that on February 4, 1978, Virendra Singh left Jodhpur and has not returned so far. Budhlal (PW 27) has also stated that Virendra Singh left Jodhpur on 4th February 1978, and, thereafter, he has not relumed. PW 14 Mukan Singh, who is the owner of the truck, has also stated that Andaram was the driver of the truck since 1977 and Shankeriya was the cleaner of the truck since then. He has further stated that he made a search and he has come to the conclusion that he has been murdered. PW. 30 Parmanand has states that in the month of February, 1978, he was the Assistant Manager Jodhpur Jodhpur Golden Transport Company, Bombay Branch. He has futher stated that Virendra Singh used to accompany them and both the accuse -persons were driver and cleaner. He has further stated that on 12th February, 1978, he went to Gorbandar, but he could not find out about the deceased. PW. 28 Chimnaram, who is the driver of the other truck, has stated that he could not find out Virendra Singh and so he suspects that he might have bjen done to death. PW 26 Padatnsingh the father of the deceased, bas stated that his son left Jodhpur on 4th February, 1978, and, thereafter, he lodged the missing report Ex. P/48 on 15th February, 1978. He has further stated that he lodged the information about the missing of Virendra Singh at police station, Udaipur and, thereafter, when he was satisfied that his son is not alive, he lodged the first information report Ex. P/3 ' on 3rd July, 1978. Thus, he wants to say that for, a period of about 5 to 6 months, he tried to search out Virendra Singh and when he failed to find out where abouts of Virendra Singh, he lodged the FIR. PW 21 Mohandas has also stated that he tried to find out Virendra Singh but he could not traca him out. PW. 5 Shivnarayan, who is the maternal uncle and who has raken a lot of trouble to search out Virendra Singh, has stated that he could not trace oat Virendra Singh. PW. 4 Ganesha Sitaram Taterkar, Head wonstable has come in the witness box and has stated that Kishoriya accused lodged the information about the missing of Virendra Singh, which has been recorded at police station, Mahinder and has been marked as Ex. P/36. He has also proved the diary Ex. P/18, in which missing report has been mentioned. He has also proved Ex. P/59, the register in which the factum of missing of Virendra Singh has been mentioned, thus, PW 41 Ganesha Sitaram Taterkar, is the witness to show that the missing report was lodged at police station, Mahinder. Virendra Singh had a Saving Bank Account at Vijaya Bank Ltd. Jodhpur. PW. 18, K Shanker Sethi, the Manager of the Bank, has stated that account was opened on 18th January. 1978 and has not been operated since then. Missing report and the photo of the Virendra Singh have also been published in 'Navbharat Times'. Learned Sessions Judge has considered this evidence as sufficient to establish the fact that Virendra Singh is dead.