SHARMA, J. - (1.) SONU a child of 4 years who was seen in the company of appellant (known as Pagla Baba) was found lying dead in a bush. Appellant was charged for having committed offences under Sections 302 and 364 IPC and convicted and sentenced by the learned Additional Sessions Judge (Fast Track) Ajmer vide Judgment dated November 24, 2001 as under:- U/s. 302 IPC: To suffer life imprisonment and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. U/s. 364 IPC: To suffer rigorous imprisonment ten years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Substantive sentences were directed to run concurrently.
(2.) IT is the prosecution case that a written report was lodged on March 27, 1999 with the Police Station Dargah (Ajmer) by informant Ainoor (PW 1) with the averments that on the preceding Friday while he has gone out and his younger brothers and sister viz. Sonu, Monu and Laila were in the house, the appellant came, pursuaded Sonu and took Sonu with him. Thereafter where about of Sonu were not known. On the basis of said report a formal report FIR No. 50/1999 was registered for the offences under Sections 363 IPC and investigation commenced. During investigation the dead body of Sonu got recovered and Section 302 IPC was added. Autopsy on the dead body was performed. Statements of witnesses were recorded, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Ajmer. Charges under Sections 364 and 302 IPC were framed. The appellant denied the charges and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions decided the case as indicated above. We have heard the submissions and scrutinised the record. Death of Sonu was indisputably homicidal in nature. As per post mortem report (Ex. P. 20) following ante mortem injuries were found:- There was a skin flab seen sharply cut extending from the root of neck on mid line to Lt. side of neck, veading upto the mid of left side of neck, the wound was gaped under lying tissue so decomposed at the neck and maggots semi lodged in it. No other injuries were seen on the body. According to Dr. Jagdish Chand Jhanwar (PW 10) the cause of death was cut injury on throat. Since there was no eye witness of the occurrence the prosecution based its case on circumstantial evidence, It is well settled that case based on circumstantial evidence must satisfy three 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 the 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. Bearing these principles in mind we proceed to consider the submissions advanced before us.
(3.) LEARNED Amicus Curiae canvassed that the prosecution has failed to establish that Sonu before his death, was seen in the company of the appellant. In order to appreciate that contention we gave a close look to the prosecution evidence. Ram Nath Sharma (PW. 2) in his deposition stated that he had seen the appellant and Sonu on the hill. At that time appellant was having a `jhola' (bag), whereas Sonu had a `kamandal' (pot kept by saint ). After some time when Ainoor came searching`sonu', he (Ram Nath Sharma) told Ainoor that the appellant took Sonu with him. Mohd. Karim (PW 3) had also seen the appellant took Sonu with him. Mohd. Karim (PW. 3) had also seen the appellant and Sonu together. Kumari Laila (PW. 8), elder sister of sonu, was a child when the appellant came to her house. She deposed that while she and her brothers Monu and Sonu were playing in their house, the appellant came and took Sonu with him. Having scanned the cross examination of Ram Nath Sharma, Mohd. Karim and Kumari Laila we find that their testimony could not be shattered. It is the testimony of three witnesses that has been relied upon by the trial Court as the evidence of `last seen together' we see no infirmity in the finding. Learned Amicus Curiae next urged that the appellant was implicated in the case only on the basis of suspicion. The FIR was lodged after two days and memos of recovery of dead body and knife at the instance of appellant were concocted by the I. O. This possibility that Sonu could fall from the hill was not ruled out by the prosecution. We find no substance in this contention. A plain reading of FIR reveals that the information Ainoor even after vigorous search when could not locate Sonu, he lodged FIR. In his deposition Mohd. Ainoor (PW. 1) stated that he belonged to the family of beggar and was residing on the hill in a hut with his parents, four younger brothers and one sister. The appellant resided near his hut and used to beg from the people who had come to the hill. On March 26, 1999 his parents had gone to Kilkata and he left his house at 8 AM. After some time he received information that his brother Sonu was missing. He along with Aziburrahman and Ummed Singh started searching on that day and next day thereafter on Saturday night he lodged report at police station. We find that delay in instituting report has properly been explained. Following circumstances were also considered by the learned trial Court in the impugned judgment:- (i) The dead body of Sonu got recovered at the instance of appellant; (ii) On the basis of disclosure statement of appellant knife allegedly used in commission of offence, which was concealed under a stone, got recovered from the place adjacent to which there was a `honey-cumb'. (Vide memo of site plan Ex. P. 12 ). (iii) Mohd. Hussain (PW. 14) had seen the appellant in a disturbing state. His hair got sticked with honey-bee, dust and plant leaf. ;