HON'BLE GOVIND MATHUR, J. - (1.) THE present appeal is directed against the judgment of the learned Additional Sessions Judge (Fast Track) No.1, Sirohi Camp Abu Road in Sessions Case No.92/2002 dated 20.9.2003. Learned Additional Sessions Judge has convicted the accused appellant as under:- "OFFENCES PUNISHMENT Section 302/34 IPC Life imprisonment and a fine of Rs.5000/- each in default of payment of fine, one year additional imprisonment. Section 397 IPC Seven year RI and a fine of Rs.5000/-, in default of payment of fine, additional one years imprisonment. Section 201 IPC One years RI and fine of Rs.1000/-, in default of payment of fine, six months additional imprisonment."
(2.) THE prosecution was launched on the basis of a report Ex.P/16 lodged by Amra Ram, Sarpanch, Gram Panchayat Aamthala at Police Station Abu Road Sadar on 14.5.2001 at about 12:00 Noon. It was given out by the complainant that on 14.5.2001 at about 10:00 AM, he was at the bus stand Aamthala where, he heard that in the village Aamali Fali and Nopa Fali where three roads meet, in the bushes a dead body wearing pant shirt is lying. After having received this information, he alongwith Secretary of the Gram Panchayat Shri Virendra Vyas went on the site and saw that a person wearing blue pant and light blue coloured shirt and black sandals in foot was lying dead in the thorny bushes. It was expressed that this person was killed some time on 13.5.2001 and 14.5.2001 and has been placed here. On this information, a case was registered under Section 201/34 IPC and 397 IPC. At the investigation, three accused persons were traced to be accused being Kiran, Kailash and Umesh. The accused persons were chargesheeted. They were made over to the trial where, the trial court framed charges against them under Section 302/34, 201/34 and 395 IPC. At the trial, the prosecution examined 21 witnesses. The accused were examined under Section 313 Cr.P.C. The accused appellant Kiran produced two witnesses in defence. After considering the case of the prosecution, the trial court convicted the accused appellants as under:- "NAME OFFENCES PUNISHMENT Kiran,Kailash Sec.302/34 IPC Life imprisonment and a Umesh fine of Rs.5000/- each in default of payment of fine, one year additional imprisonment. Kiran,Kailash Sec.397 IPC Seven years RI and a fine Umesh of Rs.5000/-, in default of payment of fine, additional one years imprisonment. Kiran,Kailash Sec.201 IPC One years RI and fine of Umesh Rs.1000/-, in default of payment of fine, six months additional imprisonment." The trial court, after considering the case of the prosecution, came to the conclusion that there is no direct evidence in the case, however, five circumstances were held proved against the accused persons and those are :- (i) On 13.5.2001, accused Kiran, Kailash and Umesh hired a taxi No.GJ-6/3222 at about 7:00 PM from Palanpur, whose driver was deceased Sadique. (ii) In morning of 14.5.2001, the dead body of driver Sadique was lying at Aamali Fali and Nopa Fali where, three roads meet. (iii)The death of the driver Sadique was caused by strangulation. (iv) On 16.5.2001, accused Kailash and Kiran were caught roaming with Sadique's vehicle Tata Estate in mysterious condition. Kailash and Kiran had changed the number plate. (v) From the possession of Kiran, the purse of the deceased containing Insurance of his vehicle No.GJ- 6/3222 and photograph of deceased was recovered. From the possession of Kailash, ring of the deceased was recovered. Accused Kiran assailed conviction made under the judgment impugned dated 20.9.2003 by way of filing an appeal i.e. DBCr.Appeal No.1118/2005 and that came to be accepted by this Court on 11.8.2005. The present accused appellants preferred this appeal after acceptance of the appeal preferred by accused Kiran.
(3.) ARGUING the case of the accused persons, learned counsel for the appellants submitted that the circumstances which have been held proved against the accused persons are not at all sufficient to give a finding of conviction. The circumstance held proved about availability of the dead body of driver Sadique at Aamali Fali and Nopa Fali on 14.5.2001, as per counsel for the appellants, is quite innocuous circumstance and i.e. of not much consequence so far as adjudication of the matter is concerned. The circumstance about the fact that Sadique died due to strangulation, is a benign circumstance for all the accused persons. It is empathetically submitted that PW-1 Kadar Khan, PW-2 Arif Mohd. and PW-4 Mayub, though identified accused Kailash and Umesh @ Udayram, but the identification so made is of no consequence in view of the fact that the accused persons were not kept under well. It is also asserted that the trial court itself has not relied upon trustworthiness of PW-1 Kadar Khan and PW-2 Arif Mohd., therefore, no part of their statements is required to be read against the accused persons. With regard to recovery made from the accused persons, it is stated that those have not been established. Heard counsel for the appellants and the Public Prosecutor. The circumstances against accused Umesh @ Udayram are that PW-1 Kadar Khan identified him as a person who came to hire the taxi. The other accused Kailash too was identified by PW-1 as the person who came for hiring the taxi alongwith Umesh and Kiran. Accused Kiran was not identified by this witness. PW-4 Mayub also identified accused Kailash as the person who came to deceased Sadique for hiring the taxi. The another circumstance against this accused is recovery of a silver ring from him. Pertinent to note here that no evidence is available on record about identification of the ring itself. A presumption is drawn about ring on the basis of mark of letter "S" on it. Similarly, the circumstance against the another accused Umesh is his identification as the person who came alongwith Kailash and Kiran to hire the taxi and recovery of a wrist watch. So far as recovery of wrist watch is concerned, that was not found reliable by the trial court itself. As such the only circumstance against accused Umesh is his identification as the person who came to deceased Sadique for hiring a taxi. The circumstances relied upon are not at all sufficient to hold a person guilty for commission of a serious offence of murder. It is well settled that to establish guilty of a person the circumstantial evidence should be of strong nature and all circumstances should frame a complete chain to reach at a definite conclusion. In the instant case the only settled circumstance is identification of the accused persons by PW-1 and PW-4. PW-1 was not found reliable even by the trial court, therefore, the only evidence available is identification of accused Kailash by PW- 4. ;