K. C. SHARMA, J. - (1.) THIS criminal appeal by appellant Surajbhan arises out of the judgment and order dated 27. 9. 1999 passed by the learned Judge, Special Court (Communal Riots and Man Singh Murder Case), Jaipur, whereby the learned Judge found the appellant guilty for offence under sections 302/120b, 364, 379 and 201 IPC and accordingly convicted and sentenced him in the manner stated below: Under Sec. 302/120 B IPc Imprisonment for life and fine of Rs. 10000/-, in default, to further under go simple imprisonment for one year Under Sec. 364 IPc to undergo 10 years' rigorous imprisonment with a fine of Rs. 5000/-, in default thereof, to undergo 6 months' simple imprisonment Under Sec. 379 IPc to undergo 2 years' rigorous imprisonment Under Sec. 201 IPc to under to 3 years' rigorous imprisonment with a fine of Rs. 2000/-, in default thereof, to further undergo 3 months' simple imprisonment
(2.) SUCCINCTLY stated the facts of the case are that at 9. 45 PM on 27. 5. 1993 PW 5 Dhokal Ram lodged a written report, Ex. P. 4 to the SHO, Police Station, Brahmpuri, Jaipur alleging therein that on 24. 5. 93 at about 11-12, in the night while his son Hanuman was sleeping, one Jai Singh Gurjar came to his house and called his son. Hearing the call, his younger son Shyam who was awakened got Hanuman awakened. Jai Singh asked Hanuman to accompany him to Daruheda and also assured that they will return by 6 AM. As per the written report, his son Hanuman left the house along with Jai Singh Gurjar in Jeep No. RPH 371. Dhokal Ram also annexed the photographs of Hanuman and Jai Singh with the written report and requested the police to trace out his son Hanuman. On receiving the report, the SHO handed over investigation to PW 19 Hakim Singh, Assistant Sub Inspector with the direction to trace out both the missing persons. While investigation was being carried out by ASI Hakim Singh, in the meantime, the SHO of Police Station Brahmpuri received a report Ex. P. 2 which was submitted to SHO, Police Station Jalupura, Jaipur by PW 3 Dilip Mathur. In the subsequent report Ex. P. 2, Dilip Mathur claimed himself to be the owner of Jeep No. RPH 371, which was being kept at Ajmeri Gate Taxi Stand. Jai Singh was driver on that jeep. Dilip Mathur alleged that on 24. 5. 93 at 11. 00 PM two persons came at the Taxi Stand and asked Jai Singh to take them to Daruheda in the taxi of his possession. Jai Singh alongwith aforesaid two persons first went to the house of Hanuman. Having satisfied, Jai Singh and Hanuman took these two passengers in Jeep No. RPH 371 and left for Daruheda at 12. 30 in the night. As per the report, Jai Singh had to return by 25. 5. 93, but both Jai Singh and Hanuman did not return till 27. 5. 93. Lastly, it was stated in the report that despite all sincere efforts to trace out Jai Singh and Hanuman at various places viz. , Daruheda, Rewari, Bhiwadi, Gurgao etc. , whereabouts of missing persons could not be known. The SHO, Brahmpuri ordered to tag the report of Dilip Mathur with the report Ex. P. 4 lodged by PW 5 Dhokal Ram and directed Hakim Singh ASI to carry out investigation on the report of Dilip Mathur as well. Having completed inquiry on the report submitted by Dilip Mathur, PW 19 Hakim Singh, ASI submitted the inquiry report, Ex. P. 14, upon which a case No. 130/93 was registered at Police Station Brahmpuri vide FIR Ex. P. 15. As per the report, Ex. P. 14, the Investigating Officer found that two unknown persons with an intention to gulp the jeep, took away the jeep by deceiving the driver and his companion and for that purpose Jai Singh and Hanuman were abducted. the Investigating Officer concluded that offence punishable under Secs. 420 and 365 IPC was committed. After registering the case vide FIR, Ex. P. 15, the police proceeded with investigation. In the course of investigation, police recorded the statements of witnesses under Sec. 161 Cr. P. C. Police arrested accused Rishi Pal, Krishan Chand and appellant Surajbhan vide arrest memos Ex. P. 26, 27 and 28, respectively. Accused Rishipal furnished information, Ex. P. 30 as regards recovery of watch and licence of a shop in the name of Hanuman. Accused Kishan Chand furnished information (Ex. P. 31) under Sec. 27 of the Evidence Act regarding shirt, trouser and shoes. Appellant Surajbhan also furnished information, Ex. P. 29 regarding stepni of the jeep in question. In pursuance of their information the items referred in the information memos were recovered from their possession vide recovery memos Exs. P. 11, P. 8 and P. 9, respectively. The accused also pointed out the place of occurrence vide Exs. P. 10, P. 12 and P. 23 After completion of usual investigation, the police submitted a charge sheet against the accused persons in the court of learned Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur. The learned Magistrate having found the case exclusively triable by the court of Sessions, committed the case to the court of Sessions, committed the case to the court of Sessions Judge. Ultimately, the case came up for trial in the court of Special Judge Communal Riots and Man Singh murder Case, Jaipur. On the basis of evidence and material collected during investigation and submitted before the court and after hearing counsel for the parties, the learned trial court framed charges against the accused under Sections, 302, 201, 120b, 379 and 364 IPC. The accused denied the charges and claimed trial. To prove its case, the prosecution examined as many as 26 witnesses and exhibited some documents. Thereafter, accused appellant Surajbhan was examined under Section 313 Cr. P. C. It may be stated that accused Rishipal and Krishan Chand died during trial after framing the charges.
(3.) AFTER conclusion of trial and hearing counsel for the accused and the Public Prosecutor, the learned trial Judge found the accused appellant guilty for committing offence under Sections 302/120b, 364, 379 and 201 IPC and accordingly convicted and sentenced him in the manner stated above. Hence the present appeal by appellant Surajbhan. We have heard Mr. Sanjay Tyagi, learned counsel for the accused appellant and Mr. B. M. Sharma, learned Public Prosecutor and have gone through the judgment under appeal, the evidence and material available on record. Admittedly, there is no witness to the occurrence and the entire edifice of the prosecution case is rested solely on circumstantial pieces of evidence. It is well 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 perpetrated 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 which hinges solely 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 accuse". ;