- (1.) This criminal appeal preferred by appellant Kanhaiya Lal @ Kanaha S/o Govind Lal is directed against the judgment of conviction and order of sentence dated 12.04.2004 passed by the learned Additional District and Sessions Judge (Fast Track) No.1, Bhilwara in Sessions Case No. 186/2003, whereby the appellant was convicted under Section 302 and 201 IPC and sentenced for the offence under Section 302 IPC to undergo life term imprisonment alongwith a fine of Rs.1,000/- and in default of payment of fine, further to undergo rigorous imprisonment of three months and for the offence under Section 201 IPC to undergo rigorous imprisonment of seven years alongwith a fine of Rs.500/- and in default of payment of fine, further to undergo rigorous imprisonment of one month. Both the sentences were ordered to run concurrently.
(2.) Filtering unnecessary details the prosecution version as unfolded during the trial is as follows. On 25.06.2003, a message was received at the Police Station Hamirgarh that one dead body is lying in Banas river near well of PHED. On this information, proceedings under Section 174 CrPC were initiated and body was cremated. On 27.06.2003, P.W.13 Ganga Ram came to Police Station Hamirgarh and on the basis of the clothes, tabiz and photograph, identified the deceased as Devilal, who was his brother and was driver of Truck No. RJ-27-G-5954 and he alongwith cleaner Kanhaiya Lal went to Indore and from Indore they took goods for Gulabpura. On this information, a case under Section 302 IPC was registered bearing No. 97/2003. After usual investigation charge-sheet under Section 302, 201 IPC was filed against accused Kanhaiya Lal in the court of Judicial Magistrate, First Class, (East), Bhilwara. The offence being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions Judge, Bhilwara, from where the case was transferred to the Court of Additional District and Sessions Judge (Fast Track) No.1, Bhilwara for trial. The accused was charged for the offence under Section 302, 201 IPC, to which he did not plead guilty and faced trial. The prosecution to prove its case examined as many as 23 witnesses, namely, P.W.1 Dr. Vijay Kumar Maheshwari, P.W.2 Bhuwana Lal, P.W.3 Devnath, P.W.4 Prem Singh, P.W.5 Shyam Lal, P.W.6 Kan Singh, P.W.7 Raghunath, P.W.8 Bhagwati Lal, P.W.9 Hem Singh, P.W.10 Govind Soni, P.W.11 Smt. Narbada, P.W.12 Kanhaiya Lal, P.W.13 Ganga Ram, P.W.14 Jagannath, P.W.15 Sukhdev, P.W.16 Mujaffar Khan, P.W.17 Giriraj Singh, P.W.18 Naresh Kumar, P.W.19 Abhay Singh, P.W.20 Gopal, P.W.21 Ratan Singh, P.W.22 Bhagwati Lal and P.W.23 Bhanwar Singh. The incriminating evidence adduced by the prosecution was put to the accused for his explanation under Section 313 CrPC. The accused stated that the prosecution story is false and he is innocent. The accused led no evidence in his defence. The learned trial court after hearing both the parties, vide the impugned judgment convicted accused-appellant Kanhaiya Lal for the commission of offence under Section 302, 201 IPC and sentenced him as narrated in earlier para. Being aggrieved by the judgment of conviction and order of sentence passed by the learned trial court on 12.04.2004, accused-appellant Kanhaiya Lal has preferred this appeal.
(3.) The learned counsel for the accused-appellant contended that the learned trial court has erred in relying upon the incriminating evidence put during the course of the trial. He contended that the incriminating circumstances put forward by the prosecution during the course of trial are not of clinching nature. The learned counsel further contended that the case is totally based on circumstantial evidence and the chain of the circumstances is not complete and not proved beyond reasonable doubt against the present accusedappellant. The learned counsel for the appellant also contended that the learned trial court has erred in relying upon the evidence of last seen and the recovery of the dead body as well as recovery of the purse of the deceased alongwith the currency notes of Rs.8200/-.;