SHARMA, J. - (1.) THE appellants, two in number, (hereinafter described as `accused') along with other five co- accused were indicated before the learned Additional Sessions Judge, No. 2, Ajmer in Sessions Case No. 51/1992. Learned Judge vide judgment dated March 20, 1999 convicted and sentenced the accused as under:- Accused Heera and Rama @ Ram Singh: U/s. 302/34 IPC: Each to suffer Imprisonment for life and fine of Rs. 5000/- in default to further suffer Six Months Imprisonment. U/s 364 IPC: Each to suffer Imprisonment for Life and fine of Rs. 5000/-, in default to further suffer Six Months Imprisonment. U/s. 342 IPC: Each to suffer Rigorous Imprisonment for One Year and fine of Rs. 1000/-, in default to further suffer One Month Simple Imprisonment. U/s 323 IPC: Each to suffer Rigorous Imprisonment for One Year and fine of Rs. 1000/-, in default to further suffer One Month Simple Imprisonment. All the substantive sentences were directed to run concurrently.
(2.) ON September 5, 1992 the informant Kama submitted a written report with the Police Station Bhinay stating therein that on the road near bus-stand a person had been crushed to death by a vehicle. The police registered a case under section 304a IPC, recovered the dead body, necessary memos were got drawn, autopsy on the dead body was performed, statements of witnesses were recorded and it was revealed that deceased Bablu @ Mohan Singh was killed by seven persons. The accused Heera and Rama @ Ram Singh along with co accused Anna. Mangla, Modu, Dharma and Satya Narayan were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2 Ajmer. Charges under Sections 147, 149, 302, 364, 342, 323 and 120b IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 20 witnesses. In the explanation under Sec. 313 Cr. P. C. , the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused Heera and Rama @ Ram Singh as indicated herein above but acquitted Anna, Mangla, Modu, Dharma of all the charges. It is contended on behalf of the accused that since the Surgeon, who performed post mortem on the dead body, was not examined, nature of injuries could not be established and conviction could not be based on the opinion of doctor incorporated in the post mortem report as opportunity to cross examine the doctor was not provided to the accused. It is next contended that the accused could not be convicted only on the basis of circumstance of last seen. Even otherwise the conduct of witnesses Sohan Lal (PW. 2), Ram @ Bos (PW. 7), Tara Chand (PW. 8) and Danveer (PW. 9) was highly abnormal and no reliance could be placed on their testimony. It is lastly urged that case of the present accused and other co-accused was identical and once co- accused Anna. Mangla, Modu and Dharma got acquitted, there was no reason to convict and sentence the present accused persons. Reliance is placed on Babu Ram vs. State of M. P. (1), State of Rajasthan vs. Khuma (2), Ram Prasad vs. State of U. P. (3), Arjun Marik vs. State of Bihar (4), and State of Orissa vs. Brahmananda Nanda Per contra, learned Public Prosecutor supported the impugned finding and took us to the testimony of Sohan Lal (PW. 2), Ram @ Bos (PW. 7), Tara Chand (PW. 8) and Danveer (PW. 9 ). Admittedly the case of prosecution rests upon circumstantial evidence that requires to satisfy the following tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the case on hand learned trial judge has placed reliance on the evidence of Sohan Lal (PW. 2), Ram @ Bos (PW. 7) Tara Chand (PW. 8) and Danveer (PW. 9) and came to the conclusion that they had last seen the deceased in the company of accused persons. Having closely scanned the material on record we find that statements under section 161 Cr. P. C. of Ram @ Bos (PW. 7) and Tara Chand (PW. 8), Danveer (PW. 9) and Sohan Lal (PW. 2) were respectively recorded on September 6, 1992, September 7, 1992 and September 15, 1992 i. e. after the FIR was lodged and dead body got recovered. Undeniably these witnesses did not inform the father of the deceased that the accused got the deceased down of the bus although the father of the deceased and the witnesses resided in the same village. Even the matter was not reported to police. The witnesses did not offer any explanation for this. Such non-disclosure in our opinion is a serious infirmity. In State of Orissa vs. Brahmananda Nanda (supra), their Lordships of the Supreme Court indicated that in a murder case depended on the evidence of a person claiming to be eye witness and this witness did not disclose the name of assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness.
(3.) EVEN otherwise the accused could not be convicted on the basis of only circumstance of last seen as is held by the Apex Court in Arjun Marik vs. State of Bihar (supra), that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilty of the accused and, therefore, no conviction on that basis alone can be founded. Indisputably Dr. Hemant Kumar, who performed the autopsy on the dead body was not examined by the prosecution and the autopsy report was allowed to be exhibited by the Investigating Officer Learned trial Judge in the impugned judgment observed that the nails of right hand of the deceased were found removed, which could not have been the result of the accident. We find ourselves unable to accept this conclusion in absence of the evidence of Dr. Hemant Kumar and on the face of the Inquest Report wherein it was stated that right hand including the fingers of the deceased got crushed. Case of co-accused Anna, Mangla, Modu and Dharma who have been acquitted by the learned trial Judge, is not distinguishable with that of the present co-accused. According to the testimony of witnesses Sohan Lal, Ram @ Bos, Tara Chand and Danveer, co- accused Anna, Mangla, Modu and Dharma participated in getting down the deceased of the bus and the deceased was last seen in their company. They were identified by these witnesses in the court. Once these witnesses were not found creditworthy qua co- accused Anna. Mangla, Modu and Dharma, no reliance could be placed on them qua the present accused. ;