GOYAL, J. - (1.) THE appellant Sanjay has been charged, convicted and sentenced as under:- Under Section 302 IPC :-Life imprisonment and a fine of Rs. 1,000/-, in default of payment of fine six months imprisonment. Under Section 394 IPC :-Seven years rigorous imprisonment and fine of Rs. 500/-, in default of payment of fine, to further undergo three months imprisonment. Under Section 201 IPC :-Two years rigorous imprisonment. THE sentences were ordered to run concurrently.
(2.) IT is the case of prosecution that deceased Harjeet Singh who was the driver on the truck No. DL IGB-0688 [owner by his uncle Ashok Kumar (PW20)] departed on 7. 8. 1998 from Yamuna Nagar for Indore along with cleaner Sanjay Kumar. The truck was loaded with the ply wood. On the way they had a halt at Ladwa. They moved for Indore on the next day and met with an accident on 9. 8. 1998 at Kalanaur. PW20 Ashok Kumar having information of the accident sent Baldev Raj (PW1) (brother of the deceased) and one mechanic to Kalanaur. After a compromise with the concerned persons of other truck involved in the said accident and after necessary repairs of the truck they proceeded for Indore on 10. 8. 1998. When the truck did not reach Indore till 17. 8. 1998, both PW20 Ashok Kumar and PW1 Baldev Raj along with one person Sitaram left in search of the truck but the same could not be traced out. Thereafter, they went to the residence of appellant Sanjay Kumar at village Telipura, District Bijnor and upon an inquiry, he disclosed that driver Harjeet Singh was murdered by him and his dead body was thrown away near a beer factory of Shahjahanpur and thereafter he took away the truck and left it near Railway crossing, Hapur. Thereupon, Baldev Raj and others went to Police Station at Shahjahanpur. Having seen the clothes and photos of the dead body, they identified the same as of deceased Harjeet Singh. PW1 Baldev Raj lodged a written report Ex. P4. A formal F. I. R. No. 212/1998 Ex. P1 was registered under Sections 302, 394 & 201 IPC on 5. 9. 1998. A memo Ex. P2 regarding identification of photos and clothes of the deceased was prepared. Papers of builty etc. were seized vide Ex. P3. During investigation the Investigation Officer collected Ex. P26-Marg report No. 4/1998 which was already registered at Police Station Shahjahanpur along with other documents prepared with the Marg report including the clothes, photographs, memo of descriptions of the dead body, the postmortem report and the said truck already seized under Section 102 Cr. P. C. by Police Station Hapur Rural. Accused Sanjay was arrested on 10. 9. 1998 vide arrest memo Ex. P17. On the basis of the information given by Sanjay under Section 27 of the Indian Evidence Act, ply wood worth price more than rupees 2 Lakhs was recovered vide memo Ex. P7 on 13. 9. 1998. The site-plan of the place of recovery Ex. P8 was also prepared. Further upon information supplied by the accused Ex. P29 site-plan of the place where the dead body was thrown was prepared on 15. 9. 1998. Thus, having completed usual investigation, the charge-sheet came to be filed. In due course the case came up for trial before learned Additional Sessions Judge, Behror. Charges under Sections 302, 201 & 394 IPC were framed and were explained to the accused appellant who pleaded not guilty and claimed trial. Prosecution examined 23 witnesses to prove its case. The appellant was examined under Section 313 Cr. P. C. While claiming himself to be innocent he did not produce any evidence in defence. After hearing final submissions, learned trial Judge convicted and sentenced the accused appellant as indicated hereinabove. Aggrieved of the aforesaid judgment dated 2. 9. 2000 the accused appellant preferred this appeal.
(3.) UNDISPUTEDLY, there is no eye-witnesses of the occurrence and conviction of the appellant is solely based on circumstantial evidence. By now it is well settled principle of law that when case rests purely on circumstantial evidence, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and such circumstances must be consistent and must unerringly point to the guilt of the accused and the chain of circumstances must be established by the prosecution. In Hanumant Govind Nargundkar vs. State of M. P. , reported in A. I. R. 1952 SC 343, the Hon'ble Supreme Court observed in para 10 as under :- " It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " Reference may also be made to the judgment rendered by the Hon'ble Supreme Court in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, reported in A. I. R. 1984 SC 1622 wherein their Lordships have held that before conviction could be based on circumstantial evidence, following conditions must be fully established:- 1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must or should' and not `may be' established; 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved, and 5. there must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. " The case at hand has to be gauged in the background of the aforesaid principles. Prosecution has mainly relied on following circumstances:- (i) Deceased Harjeet Singh and accused Sanjay Kumar were employed on the said truck No. DL IGB-0688 as driver and cleaner respectively and after loading the ply wood both departed from Yamuna Nagar for Indore on 7. 8. 1998, halted on their way at Ladwa and lastly they started for the destination to Indore from Kalanaur on 10. 8. 1998. Thus they were last seen together. (ii) An unidentified dead body was found near beer factory, Shahjahanpur on 13. 8. 1998 which was identified to be that of deceased Harjeet Singh. (iii) Truck No. DL IGB-0688 was seized under Section 102 Cr. P. C. near Railway crossing, Hapur on 17. 8. 1998. (iv) Conduct of the accused appellant Sanjay Kumar (cleaner) was unnatural as he went away to his home town Telipura, Bijnor without informing about the truck and its driver to the owner of the vehicle. (v) Ply wood was recovered at the instance of the accused Sanjay Kumar. ;