SHIV KUMAR SHARMA, J. - (1.) THE two appellants namely, Teka @ Tekchand and Bhushan were placed on trial before the learned Sessions Judge Jaipur Distt. in Sessions Case No. 30/95 for having committed murder of Surendra Singh Banjara. Learned Sessions Judge vide judgment dated August 25, 2001 convicted the appellants under sections 302/34 IPC and sentenced each to suffer imprisonment for life and fine of Rs. 5000 in default to further suffer rigorous imprisonment for one year.
(2.) FACTS of the prosecution case leading to the instant appeal are these : On October 17, 1994 informant Bhanwar Lal (PW. 2) orally lodged report with the Police Station Sanganer that at 7. 30 a. m. while he was standing near Mahadev Temple, he saw two jeeps coming from the side of Tonk. Jeep of green colour which was ahead suddenly took turn towards Ganesh Colony and got halted. Two persons got down from the Jeep. The person who was driving the jeep entered into Ganesh Colony while the other got himself seated on a Tempo and proceeded towards Jaipur. After sometime the informant and other persons went near the abandoned jeep and found a dead body lying on the back side of the jeep. The Police Station Sanganer on the basis of the said information, registered a case under Sections 302, 201 IPC and recovered the dead body which was identified as of Surendra Singh Banjara. In the course of investigation the police came to the conclusion that deceased Surendra Singh Banjara was driver of the said jeep and the appellants who got the jeep hired from Kota, killed Surendra Singh Banjara on the way and left the jeep abandoned at Sanganer. After usual investigation the police filed charge sheet against the appellants. In due course the case came up for trial before the learned Sessions Judge Jaipur Distt. Charges under Sections 302/34 and 201/34 IPC were framed against the appellants who denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Section 313 Cr. P. C. the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. We have heard the submissions of learned Amicus Curiae as well as the learned Public Prosecutor and carefully gone through the record of the case. The case of prosecution rests on circumstantial evidence. Evidence which proves or tends to prove the factum probandum indirectly by means of certain inferences of deduction to be drawn from its existence or its connections with other `facts probentia' is called circumstantial evidence. The law relating to circumstantial evidence no longer remains res integra and it has been indicated by catena of decisions that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charges. Before the court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn, have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation or any reasonable hypothesis save the guilt of the accused. Bearing this principle in mind when we proceed to scan the impugned judgment we find that the learned Trial Court has found following circumstances established against the appellants:- (i) Appellants Bhushan and Tek Chand on October 15, 1994 stayed at Pankaj Hotel Kota by giving fictitious name as `manohar'. At that time Bhushan's leg was covered with plaster. Concealing their identity, they gave false address of Jabalpur and told that they had come to Kota for attending a marriage. (ii) Tek Chand who hired Taxi No. 255 belonging to Jagdish Prasad Sharma (PW. 16) returned the Taxi back finding that Jagdish Prasad was adamant to send two drivers with the jeep. Tek Chand then went to betel shop of Nand Kishore (PW. 14) for hiring another Taxi. Nand Kishore and Tek Chand came together to Pankaj Hotel and after having talked with Bhushan, Nand Kishore agreed to send jeep No. RJ-20c 1917 to Jaipur. (iii) In the evening of October 16, 1994 driver Surendra Singh Banjara (deceased) was asked by Nand Kishore to take Tek Chand and Bhushan in Jeep No. RJ-20c 1917 to Jaipur and at 8 PM Surendra Singh Banjara drove away Tek Chand and Bhushan in Jeep No. RJ-20c 1917 from Pankaj Hotel Kota. (iv) Bhanwar Lal (PW. 2) Prakash Chand (PW. 3) and Suva Lal (PW. 11) saw Tek Chand and Bhushan getting down from the jeep while it was on and dead body was lying on its rear seat. (v) On November 8, 1994 identification parade was held and Tek Chand and Bhushan were identified by Bhanwar Lal (PW. 2) Prakash Chand (PW. 3) Girdhari @ Bharat (PW. 5) and Suva Lal (PW. 11 ). (vi) Death of Surendra Singh Banjara was homicidal. (vii) Photo state copies of papers related to Insurance and Registration of Jeep No. RJ-20c 1917 were recovered at the instance of Bhushan. (viii) One trouser and iron chain got recovered at the instance of Bhushan and Tek Chand. Mr. R. S. Chauhan learned Amicus Curiae vehemently canvassed that evidence of identification of appellants stands demolished since the appellants were shown to the witnesses prior to the identification parade. The prosecution failed to adduce link evidence to the effect that right from the arrest till being lodged in jail, the faces of appellants were kept veiled and no one had opportunity to see them. The circumstances founded established by the Trial Court were not closely knitted and inference of guilt of the appellants could not be drawn.
(3.) HAVING scanned the material on record we find that the evidence adduced by the prosecution can broadly be divided under four heads: (i) Evidence that death of deceased was homicidal. (ii) Evidence which establishes that the deceased and appellants proceeded together in jeep No. RJ-20c 1917 from Kota on October 16, 1994. (iii) Evidence which proves that at about 7. 30 AM on October 17, 1994 the appellants got down from Jeep No. RJ-20c 1917 and escaped leaving the jeep abandoned. At that time the jeep contained a dead body. (iv) Evidence of identification of appellants. HOMICIDAL DEATh Dr. Viveka Nand Sharma (PW. 23) performed autopsy on the dead body of the deceased and as per post mortem report (Ex. P-32) following antemortem injuries were found:- " 1. Bruise found red in colour size 3 x 2cm on Rt. molar region of face upto below Rt. lower eye lid. 2. Diffuse swelling on bridge of nose on dissection there is no fracture. 3.Abrasion 4 x 3cm dark red in colour on left molar region of face. 4.Multiple abrasions varying in size from 3 x 1/2 to 1/2 x 1/4cm in an area of 8 x 4cm on left side mandible upto chin on below & above of the mandible. 5.Ligature mark: There is ligature mark 29cm long - interruption at places encircling the neck over middle of neck- just below thyroid protuberance on front of neck. Thus on Rt. side of neck goes to Rt. lateral side of neck transversely & till oblique. Ligature mark is 6cm below Rt. angle of mandible & 7cm below on Lt. angel of mandible on Rt. side lateral aspect of neck ligature is interrupted & 3 oblique. Abrasions of size 1. 5 x 1/4, 1cm x 1/4 & 3/4cm x 1/4cm are seen placed obliquely then there is gap of about 1cm after that ligature is 4cm long & 1. 5cm in width. otherwise the width of ligature is 1 to 3/4cm. Ligature is dry hard & dark red in colour. On dissection underneath soft tissues show dark red coloured haematoma on both side front of neck further dissection shows haematoma 3 in number of size 1/2 x 1/4cm each two on area near ends of thyroid bone i. e. corner & one on posterior part of trachea on left side. there is no fracture of thyroid bone & cricond cartilage. Further examination haematoma seen on inner surface of trachea in upper region which is slightly compressed. The gap between two ends of lature is 5cm on left side back of neck. " Cause of death was asphyxia brought about as the result of ligature mark injury on neck. Prior to autopsy the dead body was identified by Hans Raj Banjara (PW. 4) as of his son Surendra Singh Banjara who was driver on jeep No. RJ-20c 1917 and proceeded from Kota to Jaipur in the evening of October 16, 1994. The prosecution thus is able to establish that dead body found in Jeep No. RJ-20c 1917 was of Surendra Singh Banjara and his death was homicidal. LAST SEEn Girdhari @ Bharat (PW. 5) in his deposition stated that on October 15, 1994 while he was managing the counter of Pankaj Hotel two persons came in the hotel and booked Room No. 22. In the Hotel Register (Ex. P-33) they got entered at serial No. 92 the name of Manohar Lal s/o Meva Ram inhabitant of Jabalpur and put signatures. Out of those two persons one had plaster on a leg. They checked out the room at 8 PM on October 16, 1994. Nand Kishore (PW. 14) deposed that appellants got hired, his jeep No. RJ-20c 1917 in the evening of October 16, 1994. Giving detailed narration Nand Kishore stated that while he was sitting on his betel shop, one person (who was identified subsequently as Tel Chand) came to him and told him that his friend met with an accident and he stayed in Pankaj Hotel, since they had to attend a marriage at Jaipur they wanted to hire a vehicle for four days. Nand Kishore then went to Pankaj Hotel and met with a person (who was identified as Bhushan) having plaster on his leg. They agreed to pay Rs. 2500/- as a fare of four days and paid a sum of Rs. 500/- as advance. Nand Kishore then called Surendra Singh Banjara from his house, arranged for Jeep No. RJ-20c 1917 and went to Pankaj Hotel in the jeep. The person who had plaster on his leg got seated himself on the rear seat of the jeep. Photo stat papers of the jeep were handed over by Nand Kishore to Surendra Singh Banjara and around 8 P. M. Surendra Singh Banjara, Tekchand and Bhushan together left Pankaj Hotel in Jeep No. RJ 20c 1917. On October 17, 1994 after receiving information that some body was murdered in vehicle No. RJ-20c 1917 at Sanganer, he proceeded to Sanganer along with Hans Raj Banjara and four five persons and found Surendra Singh Banjara murdered. Nand Kishore identified Bhushan as the person who had plaster on his leg and Tek Chand as the person who came to his shop. Mohan Lal (PW. 7) corroborated the testimony of Nand Kishore. ;