- (1.) These three appeals are arising out of the judgment and order dated 31.3.2009, whereby the Learned Additional Sessions Judge, Bali convicted the accused appellants for the offences punishable under Sections 302/34, 449 and 397 Indian Penal Code, thus, sentenced each of them as under:- U/s.302/34 IPC : Imprisonment for life with a fine of Rs.500/- and in default of payment of fine further to undergo six months simple imprisonment; U/s.449 IPC : Imprisonment for life with a fine of Rs.500/- and in default of payment of fine further to undergo six months simple imprisonment; and U/s.397 IPC : Seven years rigorous imprisonment. The factual matrix necessary to be noticed for adjudication of present appeals is that PW-25 Lachhi Ram, brother of deceased Ganeshmal, submitted a written report (Ex.P/27) at Police Station Nana District Pali on 22.4.2002 at 08:00 PM, with assertion that Ganeshmal and his wife were residing at Chimanpura Road and were also running a provision store there. In early morning of 22.4.2002, PW-7 Harjiram Driver informed to PW-13 Devichand son of PW- 25 Lachhi Ram about closure of the house of Ganeshmal at its exit. Devichand then went to the house where he found that windows were opened and all the household articles were lying scattered. He then telephonically informed the police about some ill-happening at the residence of Ganeshmal. The police officials in presence of PW-28 Chiman Singh, Sarpanch of the village, opened the door and found dead bodies of Ganeshmal and his wife Vimla lying in varandah. Other household articles including weight measures and provision material were lying on the floor. On basis of the information aforesaid, a case under Section 460 IPC was registered and after investigation all the accused persons viz. Om Singh @ Tiger son of Bheek Singh, Jitendra Singh son of Hanuman Singh, Man Singh son of Dhan Singh and Rajendra Singh son of Chiman Singh were arrested on different dates. During the course of investigation certain recoveries were made from the accused persons and after completion of the investigation, charge sheet was filed. The trial court framed charges against the accused appellants for commission of the offences punishable under Sections 460, 397 and 302/34 IPC. On denial of the same, regular trial was conducted.
(2.) The prosecution supported its case with the aid of 37 witnesses and several documents marked as Ex.P/1 to Ex.P/56. Learned trial court examined the accused persons as per provisions of Section 313 Cr.P.C. for getting an explanation relating to the adverse material available in the prosecution evidence against them. All the accused stated that whatever evidence available against them is false and they were falsely implicated in the case in question. Accused Man Singh while pleading his innocence also stated that witnesses Jitendra, Devichand and Ganeshmal were partners in a business. Ganeshmal was issueless and Devichand was interested in getting himself adopted as son by Ganeshmal. On the day of incident Devichand alongwith his other friends consumed liquor. On basis of the aforesaid explanation this accused tried to defend himself with allegation that as a matter of fact Devichand and his other friends who consumed liquor on the day of incident may be responsible for killing of Ganeshmal and Vimla.
(3.) trial court after considering the entire material available on record reached at the conclusion that chain of circumstances framed by the prosecution indicates only one conclusion i.e. guilty of the accused appellants for the charges levelled. Learned trial court while establishing guilt of the accused appellants relied upon the following circumstances:- - availability of a hand written note in the palm of deceased Ganeshmal, writing of which was found similar to the handwriting of accused Man Singh; - the accused persons stayed at several Dharamshalas at Jodhpur, Bikaner, Ambaji etc. with forged identity; - recovery of knife from the baggage of accused Jitendra Singh; - recovery of a note book from accused Jitendra Singh mentioning therein the date of incident i.e. "21.4.2002" and then mentioning the term "the end"; - recovery of news cutting pertaining to the incident in question from accused Om Singh; - verification and acceptance of the incident by accused persons in witness of responsible persons; - extra judicial confession of Man Singh and threatening given by him to Arjun Singh; - reky of the spot by the accused persons as stated by PW-27 Vada Ram; - visit of village Nagana as stated by PW-15 Ladu Singh; and - recovery of certain articles from the accused persons and their test identifications. For convenience, it shall also be appropriate to summarise the evidence available against each of the accused, and that is as under:- Accused Man Singh : - A paper chit mentioning certain food and provision articles, found in the palm of deceased Ganeshmal. The chit aforesaid was found to be having a writing similar to the writing of this accused; - Ex.P/22 is the forwarding letter from Superintendent of Police Pali remitting the chit aforesaid for its examination to the Assistant Director (Documents), Forensic Science Laboratory, Jodhpur; - Ex.P/23 is receipt given by Forensic Science Laboratory on receiving the chit and other documents said to be written by the accused; - Ex.P/24 is report of Forensic Science Laboratory with opinion that "the writer of standard writings as S/1 to S/27, A/1 to A/12 also wrote the disputed writing marked as Q1"; - recovery of silver rod from this accused as per recovery memo Ex.P/40. The recovery aforesaid was made in presence of motbirs Durga Prasad and Jitendra Mewara; - Ex.P/6 is a document wherein PW-10 Arjun Singh stated that accused Man Singh threatened him on telephone for dire consequences and also confessed about commission of crime by him, however, PW-10 Arjun Singh in his statements before the court did not supported the prosecution and as such was declared hostile. Accused Jitendra Singh : - This accused was arrested on 7.9.2002 and the arrest memo is Ex.P/9; - As per Ex.P/11 the accused was searched at the time of arrest and from his possession following articles were recovered:- -A knife -Receipts relating to his stay at certain Dharamshalas; -A note book mentioning the date "21.4.2002" and showing his name as "Baba Thakur"; -As per spot verification report Ex.P/20 dated 12.9.2002 he narrated entire chain of incidence and his involvement in the crime. -Recovery of gold pendent as per recovery memo Ex.P/21. Accused Om Singh @ Tiger : - This accused was arrested on 7.9.2002 as per arrest memo Ex.P/10. At the time of arrest a search was made and the search report is available on record as Ex.P/12. During search a news cutting relating to incident in question was found from possession of this accused; - On 11.9.2002 as per Ex.P/19 a report of site verification was made wherein the accused verified the entire incident and his participation in crime in question; - Recovery of gold chain as per recovery memo Ex.P/44 from the accused in presence of Natwar and Jitendra Kumar. Accused Rajendra Singh : - This accused was arrested on 2.7.2003 as per arrest memo Ex.P/50. - Ex.P/55 is the report of site verification wherein the accused verified the incident and accepted his participation therein; - recovery of ear rings as per Ex.P/53 from a place at the distance of 200 meters from Kothar Railway Station near a bani entry. The recovery aforesaid was made in presence of PW-36 Gopal Lal. In appeal, learned counsel for accused Man Singh urged that the circumstances upon which learned trial court relied are having no evidentiary value and those in no manner leads to establish guilt of the accused. It is stated that the writings on the papers which were taken from the house of this accused though are said to be undisputed, but as a matter of fact no evidence is available on record to settle that the specimen documents were written by the accused. It is also urged that the report of a handwriting expert is nothing but only an opinion, being not based on scientific studies but on observations only, and as such the opinion given by handwriting expert cannot be a foundation for conviction. It is also urged that recovery said to be made at the instance of the accused too is not reliable. The silver rod was recovered as per Ex.P/40 in absence of the reliable witnesses. According to the counsel for this accused, the accused was arrested on 24.8.2002 i.e. after a lapse of more than four months from the date of incident and thereafter recovery of a minor article was made and i.e. not at all reliable in view of the erroneous test identification. It is asserted by learned counsel that though PW-10 Arjun Singh was declared hostile, the trial court relied upon document Ex.P/6 which as a matter of fact could have not been a credil to sustain the conviction.;