SHARMA, J. - (1.) ACCUSED appellant Bablu @ Bulbul has come up in appeal before this court challenging the judgment and order dated 15. 11. 1995 passed by the learned Additional Sessions Judge No. 1, Jaipur City, Jaipur, thereby convicting appellant Bablu under Section 302 and sentencing him to imprisonment for life with a fine of Rs. 250/-, in default thereof, to further undergo imprisonment for one month. The appellant has also been convicted under Section 379 IPC and sentenced to 3 months imprisonment with a fine of Rs. 100/-, in default thereof, to further undergo imprisonment for 15 days.
(2.) BRIEFLY stated the facts of the case are that on 3. 2. 1995, PW1 Mohand Lal submitted a written report Ex. P. 1 at Police Station Brahmpuri, Jaipur, thereby informing the Station House Officer that the residents of the locality have informed at about 5. 30 PM about a dead body lying in the forest behind Mahadev Temple and the dogs were eating the dead body. Upon this report, police registered a case vide report Exp. 2 and initiated proceedings under Section 174 Cr. P. C. The Police rushed to the place where dead body was lying and prepared site plan Ex. P. 3 and seized a match box, two bodies, one photograph of unknown deceased, two packets of medicine, one packet of Natraj tobaco (Jarda), Rs. 100 cash, eight lottery tickets, one hook of silver of `s' shape from the place of occurrence, vide memo Ex. P. 4. The police also seized two stones smeared with blood and blood stained hairs from the place of occurrence vide Ex. P5 and P. 6 respectively. The Police prepared inquest memo Ex. P. 7 and seized blood smeared cloths viz. , one shirt, baniyan, belt, pent (trouser) a pair of shoes of deceased vide seizure memo Ex. P. 8. On the basis of the above proceedings, PW 4 Akhilesh Kumar, Sub Inspector prepared a report Ex. P. 9 on 4. 2. 1995 and submitted it to the Station House Officer, upon which a regular case vide No. 32/95 was registered vide FIR Ex. P. 10 and investigation commenced. During investigation, Police got conducted post-mortem on the dead body of deceased and collected the post mortem report Ex. P. 11. The accused was arrested on 8. 2. 1995 vide memo Ex. P. 16. Police seized plain soil and blood smeared soil vide memo Ex. P. 18 and recovered a silver chain vide memo Ex. P. 19. The police also recovered a trouser and shirt of accused vide memo Ex. P. 20. The accused pointed out the place of incident vide Ex. P. 21 and gave information under Sec. 27 of the Evidence that he can show the place where he has murdered Ashok Sharma. The memo of information is Ex. P. 24-A. The Police sent the recovered articles for chemical examination to the Forensic Science Laboratory, the receipts of which are Ex. P. 22 and 23. The Police collected the FSL report Ex. P. 28, which shows that the articles viz. , stones, hairs, pent with belt, bushirt, baniyan, underwear, pair of shores and blood smeared soil were contained with blood of `b' group. The trouser and bushirt of the accused were also contained with blood of `b' group. On completion of investigation, the police submitted a charge sheet against the accused appellant under Section 302, 379 and 201 IPC in the court of Additional Civil Judge & Judicial Magistrate No. 9, Jaipur City, who in turn committed the case to the court of Sessions. The learned trial Court framed charges against the accused appellant under Sections 302, 379 and 201 IPC. The appellant denied the charges and claimed to be tried. The prosecution, in support of its case, examined as many as 22 witnesses and exhibited some documents. Thereafter, the accused was examined under Section 313 Cr. P. C. and he examined DW 1 Natwar Lal in his defence.
(3.) ON conclusion of trial, hearing arguments and on the basis of material and evidence on record, the trial court found the charges under Sections 302 and 379 IPC established beyond doubt and accordingly convicted and sentenced the accused appellant as stated above. Hence this appeal against the impugned judgment of conviction and sentence. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the judgment impugned in the appeal and the evidence on record. Admittedly, there is no witness to the occurrence and the entire edifice of the prosecution is rested solely on circumstantial pieces of evidence. It is a settled position of law that in a case which is based purely on circumstantial evidence, it has to be examined minutely that the circumstances relied upon should be of conclusive nature and they should exclude every possible hypothesis except the one to be proved and that the chain of evidence must show that in all human probability the act must have been done by the accused. The circumstantial evidence should unmistakably point to the only conclusion that the accused and none other prepetrated the alleged crime. The question as to the obligation to be discharged by the prosecution and what should be the conditions required to be fulfilled before a case against an accused in a case hinges only on circumstantial evidence must be fulfilled, has been the subject matter of consideration before various High Courts and the Apex Court in series of cases. Reference may be made to one of the judgments of the Apex Court in Sharad vs. State of Maharashtra (1), wherein their Lordships have held that following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ;