SAXENA, J. - (1.) THIS appeal has been directed against the judgment dated 30/4/93 passed by the learned Addl. Sessions Judge, Ratangarh, whereby he found appellant Jagroop Singh guilty of the offence under section 302 IPC and sentenced him to life imprisonment with a fine of Rs. 1000/- and in default to further undergo two months' rigorous imprisonment.
(2.) THE facts necessary for the disposal of this appeal are that in the morning of 12. 03. 1992, two village girls noticed a dead body, which was partly buried under sand in the field of one Mohan Singh Rajput near village Malasar. THEy informed about this to PW 1 Ganesh Singh, who in his turn reported to the police. THEreupon, Shri Omprakash, SHO, P. S. Rajaldesar went to the spot and found that dead body of an unknown male person having multiple injuries on head, was lying in the said field nearby the road leading from Malasar to Sardar Shahar. On the report of Shri Omprakash, SHO, crime No. 21/92 under section 302-201 IPC was registered. THE Investigating Officer inspected the site, prepared its site plan (Ex. P. 2), memo of dead body (Ex. P. 2) and inquest report (Ex. P. 3 ). He also seized and sealed blood stained soil and control sample of earth vide seizure memo Ex. P. THE dead body was naked whose both hands were tied from behind. A piece of cloth was also found inserted in its mouth. Nearby the dead body, one pant and a torn shirt were also found lying. THE Investigating Officer also noticed foot prints of two persons one of the foot prints was that of shoe while other foot print was of a naked foot. Moulds of those foot prints were taken. Co-accused Kala Singh was arrested on 22. 3. 92 and in pursuance to his information, he pointed out the place where the dead body was found. Appellant Jagroop Singh was arrested on 28. 5. 92. He volunteered information and in pursuance thereof got one iron tye-rod recovered underneath a tree situated about thirty passage away from the place where the said dead body was found lying. However, the aid tye-rod was not stained with blood. THE Investigating Officer got the specimen moulds of the shoes of accused Kala Singh and those of right foot of the appellant in presence of a Magistrate. He sent those specimen moulds as well a sealed packets of moulds of the foot prints lifted from the place where the dead body was found lying, to the Finger Print Bureau, Rajasthan, Jaipur. THE chance foot mould was not found fit for comparison & examination by the Finger Print Bureau. However, the chance mould of the shoe was found to have similar features with the specimen of left shoe impression of co-accused Kala Singh. During Investigation, it transpired that the appellant Jagroop Singh and Kala Singh "were drivers of Truck No. HYN 182 and that deceased Deepak Behari was the Khalasi of the said truck. It also transpired that in the night intervening 10th and 11. 03. 1992, Deepak had an altercation with appellant Jagroop Singh and that the former had pushed the latter, who sustained injuries his head and that for that incident, appellant Jagroop Singh had lodged a report at Police Station, Chhapar at 2. 15 A. M. on 1. 3. 92 which was entered in daily diary of the police station as report No. 318, Ex. P. 38. Since no cognizable offence appeared to have been made out, no case was registered on that report. After investigation, the Investigating Officer filed a charge-sheet against the appellant and co-accused Kala Singh in the court of M. J. M. , Ratangarh, who in his turn committed the case to the Court of learned Addl. Sessions Judge, Ratangarh. A composite charge under section 302 and 302 read with 34 IPC was framed against the appellant and co-accused Kala Singh, who pleaded not guilty and claimed trial. The prosecution examined as many as twenty witnesses. The accused persons in their plea recorded under section 313 Cr. P. C. categorically denied all the circumstances appearing against them. The appellant asserted that he has been falsely implicated on the basis of suspicion. However, they did not examine any witness in defence. The learned trial Judge acquitted co-accused Kala Singh. The learned trial Judge also disbelieved the alleged recovery of iron tye-rod at the instance of the appellant. He, however, relying on appellant's report Ex. P. 38, transit pass and the road tax receipt found in the pant, found lying near the dead body, held that it was well established that appellant Jagroop Singh was last seen in the company of deceased Deepak Behari and had altercation with the latter. He further held that this circumstance was sufficient to hold the appellant guilty for the offence under sec. 302 IPC. He accordingly convicted the appellant and sentenced him as aforesaid. Hence this appeal. We have heard Mr. H. S. Kharlia, learned counsel for the appellant and the learned Public Prosecutor at length and perused the record in extenso. Mr. H. S. Kharlia has vehemently contended that it is a case of no evidence because all material witnesses have turned hostile and that the learned trial Judge on the basis of mere surmises and conjectures and relying on inadmissible evidence like report Ex. P. 38 has wrongly held that the deceased was last seen in the company of the appellant. According to him, there is neither any motive nor any incriminating evidence against the appellant to connect him with the crime. In such circumstances, the findings given by the learned trial Judge are perverse and against the record and, therefore, the conviction of the appellant deserves to be quashed. On the other hand, Mr. D. R. Bohra, the learned Public Prosecutor has tried his best to support the reasonings given by the learned trial Judge and supported the impugned judgment.
(3.) WE have given our most anxious and earnest consideration to the rival contentions. There is no direct evidence of the alleged crime in this case. The whole case hinges on circumstantial evidence. It may be mentioned here that there is not an iota of evidence to establish that the recovered dead body was of Deepak Behari. In the FIR, it has been mentioned that the dead body of an unidentified and unknown person was found lying. In the post mortem examination report, Ex. P. 24, that dead body was not identified by any person. The prosecution has not examined any witness, who had either identified the dead body or its photographs Ex. P. 14 to Ex. P. 17. PW-19 Omprakash, I. O. , did not know Deepak Behari personally. Not a single witness has testified that the dead body of the said unknown person was that of Deepak Behari. Merely on the basis of transit pass (Ex. P. 19) and toll tax ticket Ex. P. 21 found in the pocket of the pant lying near the dead body, it cannot be conclusively held that the said dead body was that of Deepak Behari. Thus, the finding of the learned trial Judge on this score is not based on any evidence recorded in this case. The learned trial Judge has rightly disbelieved the alleged recovery of iron tye-rod at the instance of the appellant. Moreover, as per testimony of PW-9 Dr. Mohd. Farooq, who conducted the post mortem of the said dead body, there were three incised wounds on the left occipital, right occipital and left parietal region from which brain matter was coming out. It is needless to mention that the iron tye-rod is not a sharp edged object and by that, incised wounds could not have been inflicted. Therefore, the alleged recovery of iron tye-rod is worthless. There is no direct evidence to the effect that deceased Deepak Behari was last seen in the company of appellant Jagroop Singh. The learned trial Judge has mainly relied on Rojnamacha report Ex. P. 38 alleged to have been made by appellant at Police Station, Chhapar on 11. 3. 92 at 2. 15 A. M. This report was scribed by Amar Singh, but the prosecution did not care to examine him. On the other hand, PW 18 Bhanwarlal, the then SHO, Police Station Chhapar has been examined. Appellant Jagroop Singh has categorically denied in his plea recorded u/s 313 Cr. P. C. to have made this report. Apart from it, even if report Ex. P. 38 was lodged by the appellant, still then from this report, it cannot be held that he was last seen with the deceased immediately before the alleged occurrence. Firstly, report Ex. P. 38 was lodged at 2. 15 A. M. on 11. 3. 92, while PW 9 Dr. Mohd. Farooq has in most unambiguous and categorical terms stated that he had conducted the post mortem examination of the said dead body of the unknown person on 12. 3. 93 at 3. 30 P. M. and that the death of that person had occurred about 10-18 hours before the post mortem examination was conducted. Thus, as per version of the Doctor, that unknown person had died in the night intervening 11th and 12. 03. 1992 between 9. 30 PM to 5. 30 AM. Thus, report Ex. P. 38 was lodged about 19-27 hours before the death of that unknown person. In such circumstances, by no stretch of imagination, it can be held that the appellant was last seen in the company of that dead person immediately before his death. ;