SHARMA, J. - (1.) THE appellant was indicted before the learned Judge Special Court (Women Atricities & Dowry Cases) Kota in Sessions Case No. 378/97 for having committed murder of Madhu. Learned Judge vide judgment dated January 20, 2001 convicted and sentenced the appellant as under:- Sec. 302 IPc To suffer imprisonment for life and fine Rs. 2000/-, in default further suffer six months rigorous imprisonment. Sec. 376 IPc To suffer ten years rigorous imprisonment and fine Rs. 2000/-, in default further suffer six months rigorous imprisonment. Sec. 201 IPc To suffer three years rigorous imprisonment and fine Rs. 1000/-, in default further suffer three months rigorous imprisonment. Sentences were ordered to run concurrently.
(2.) MADHU, a girl of 16 years of age, who left her house on May 4, 1997 at 5. 00 PM for jungle in order to attend the call of nature, did not return back and her half naked dead body was found lying in a trench. A written report (Ex. P-5) was lodged by informant Shri Nath (PW. 2) with the Police Station Kanwas where a case under Section 302 IPC was registered and investigation commenced. Inquest report was drawn, dead body was subjected to post mortem, statements of witnesses under Section 161 Cr. P. C. were recorded, the appellant was arrested and injuries found on his person were examined. On the basis of information supplied by the appellant Chhurri, pant, shirt and shoes were recovered and recovery memos were drawn. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Women Atrocities & Dowry Cases) Kota. Charge under Sections 302, 376 and 201 IPC was framed against the appellant who denied the charge and claimed trial. As many as 25 witnesses were examined by the prosecution in support of its case. In the explanation under Section 313 Cr. P. C. the appellant claimed innocence and stated that he was falsely implicated in the case. No witness in defence was however examined. On hearing final submissions the learned trial Judge convicted and sentenced the appellant as indicated herein above. The prosecution case depends on circumstantial evidence which broadly speaking is two fold. In the first category the testimony of Ramkanya (PW. 3), Kasturi Bai (PW. 6) and Babu Lal (PW. 7), who had seen Madhu going towards jungle with a pot of water. The evidence of second category comprises the disclosure statement of the appellant, recovery memos of blood stained clothes, knife (Chhurri) and shoes. One more connecting evidence is the FSL reports. It is trite that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established, all the circumstances should be conclusive in nature, all the facts so established should be consistent only with the hypothesis of guilt of accused and the circumstances should not capable of any other hypothesis except the guilt of the accused and chain of evidence should not leave any reasonable ground inconsistent with the innocence of the accused. The evidence of least suspicion cannot take place of proof. It would, therefore, necessary for us to examine the circumstances relied upon by the learned trial Judge and to find whether on the material on record it is possible to hold such circumstances taken together can be said to be completed which point to the guilt of appellant rather than his innocence. Mr. S. P. Poshwal, learned Amicus Curiae contended that none of the pieces of incriminating circumstantial evidence relied upon by the trial court are complete and on the basis of such incriminating circumstantial evidence the appellant has been convicted on the basis of suspicion only and suspicion however strong can not take place of proof. There are many missing links of the prosecution case. The evidence of recovery at the instance of appellant suffers from legal infirmities as no exclusive possession of appellant over the house, from where clothes were recovered, was established. Reliance is placed on Ganesh Lal vs. State of Rajasthan (1), Ved Prakash and Another vs. State of Rajasthan (2), Bablu @ Babulal vs. State of Rajasthan (3), Nihal Singh & Anr. vs. State of Rajasthan (4), Kevji & Ors. vs. State of Rajasthan (5), Umrao Singh vs. State of Rajasthan (6), Smt. Mathra vs. State of Rajasthan (7), Salim Akhtar alias Mota vs. State of Uttar Pradesh (8), Sarvan vs. State of Rajasthan (9), and State of Maharashtra vs. Damu Per contra, learned Public Prosecutor supported the impugned judgment and urged that all the circumstances are of conclusive nature and have been fully established and they are consistent only with the hypothesis of the guilt of the appellant.
(3.) WE have pondered over the rival submissions and scanned the material on record. A perusal of the judgment of trial court shows following pieces of incriminating circumstances of circumstantial evidence having been found proved so as to hold the appellant guilty of the offence charged:- (i) After Madhu (deceased) had gone towards the trench, appellant was seen wandering nearby. (ii) Injuries caused by human bite were found on the index fingers of the appellant. (iii) Blood of group `b' belonging to the deceased was found on the shirt of the appellant. (iv) Knife (Chhurri) recovered at the instance of the appellant was found stained with blood of group `b' belonging to the deceased. (v) On medical examination the appellant was found potent and no smegma was seen over his glans. (vi) As per medical evidence rape was committed on the deceased and death was homicidal. (vii) Chaddi of deceased got recovered and as per FSL report Chaddi was stained with semen. (viii) Chance shoe-impression moulds were found similar with that of the specimen of shoe sole of the appellant. The appellant was arrested on May 6, 1997 at 5. 20 PM vide Ex. P-54 and at the time of his arrest as many as 6 injuries were found on his person. Soon after the arrest i. e. on May 6, 1997 at 6. 00 PM, he gave information that Salwar, Chappals and pot (Lota) were kept in the trench and he could point out the place. Pursuant to the information given, the appellant led the police accompanied by Panch-witnesses to the trench and got recovered Chappals, Salwar and pot (Lota ). On May 8, 1997, the appellant gave three informations at 11. 15 AM, 12. 05 PM and 12. 50 PM and got recovered knife (Chhurri) blood stained pant and shirt and shoes. ;