SHARMA, J. - (1.) TWO accused appellants namely Nizam a Shafique have been held guilty of the offence punishable under Sections 302 & 201 IPC by the Additional Sessions Judge, (Fast Track) No. 2, Dholpur in Sessions Case No. 213/2001 and each of the accused appellants has been sentenced as under:- Under Section 302 IPC :-Life imprisonment and a fine of Rs. 2,000/-, in default of payment of fine, six months imprisonment. Under Section 201 IPC :-TWO years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine, one month imprisonment. The sentences were ordered to run concurrently.
(2.) A written report (Ex. P1) was submitted by informant Shahjad (PW4) at Police Station Maniya, District Dholpur on 26. 1. 2001 at 4 pm with the averments that one Koke Singh (PW13) came to him with the oral information that at about 3 PM he (PW13) went to his (informant) agricultural field to have the fodder (Karab) he saw one dead body lying under the fodder (Karab) whose neck and penis were tied with a string (rassi) with blood oozing out from his nostrils. On the basis of this information, FIR No. 16/01 was registered for the offences under Sections 302 and 201 IPC and the investigation commenced. Police rushed to the place where the dead body was lying. In the course of seizure of the dead body one builty (Ex. P17) and one receipt (Ex. P18) were recovered from the pocket of trouser of the deceased vide seizure memo Ex. P5. The site-plan with its description (Ex. P6) was prepared. Photographs of the dead body were also taken on the record. Inquest report (Ex. P3) was prepared. Autopsy on the dead body was conducted by PW6, Dr. Bhagwan Agarwal on 27. 1. 2001 who prepared postmortem report Ex. P11. String (rassi) which was tied around the neck was also seized vide seizure memo Ex. P15. Accused Nizam and Shafiq were arrested vide arrest memos Ex. P12 & Ex. P13 respectively. On the informations of accused persons under Section 27 of the Indian Evidence Act, truck No. DL-1-GA-5943 was recovered vide recovery memo Ex. P14. Blood stained clothes of the deceased were also seized and after usual investigation, charge sheet was filed, and in due course the case came up for trial before learned Additional Sessions Judge, (Fast Track) No. 2, Dholpur. Charges under Sections 302 & 201 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses. After completion of the prosecution evidence, the statements of accused persons under Section 313 Cr. P. C. were recorded. The appellants claimed to be innocent and stated that the deceased Manoj did not travel with them in the truck. However, no witness in defence was produced. After hearing final submissions, learned Additional Sessions Judge vide judgment dated 9. 9. 2002 convicted and sentenced the appellants as mentioned hereinabove. We have heard the learned counsel for the appellants and learned Public Prosecutor and have gone through the impugned judgment and entire material evidence on record. Undisputedly, there is no eye witness of the said occurrence and the case of prosecution solely rests on the circumstantial evidence. Before analyzing the factual aspects, it may be stated that it is not necessary that crime must be proved by direct ocular evidence but the offence can be proved by circumstantial evidence also. Factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, in other words circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue which taken together form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
(3.) IT has been consistently laid down by the Hon'ble Apex Court that in order to base conviction on circumstantial evidence each of the incriminating piece of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the proved pieces of circumstantial evidence taken together form a complete chain wherefrom to inference other than of guilt against the accused persons can be drawn or in other words proved pieces of circumstances should be of conclusive nature and tendency and they should be such as to exclude hypothesis but the one proposed to be proved. The case at hand has to be gauged in the background of the aforesaid legal parameters. According to the prosecution, following circumstances were proved which unerringly point the finger of guilt on the accused persons, namely; (i) Deceased Manoj was the helper on the truck No. MP-07- 2627 and had gone to Puna and thereafter Barar along with its first driver Rajkumar (PW2) and second driver Ramprakash (PW1) and from Barar they loaded the truck with pipes for the destination to Gaziabad on 23. 1. 2001. (ii) Accused appellants Nizam and Shafique who were the driver and cleaner respectively on the truck No. DL-1-GA-5943 also loaded their truck with pipes from the same company at Barar on the same day and started for Gaziabad with truck No. MP-07- 2627 and during this period drivers and cleaners of both the trucks developed acquaintance with each other. (iii) Driver Rajkumar of truck No. MP-07-2627 got into quarrel with some local persons while on the way to Gaziabad. Consequently Barar Police detained him along with his truck. Feared with such situation Rajkumar instructed his second driver Ramprakash to hand over the amount of rupees about 20,000/- to Manoj with instructions to give this money to the truck owner. (iv) As directed by PW1 Ramprakash and PW2 Rajkumar Shri Manoj left for Gwalior with accused persons by the truck No. DL- 1-GA-5943 on 23. 1. 2001. (v) As stated earlier the dead body of the deceased Manoj was found on 26. 1. 2001 under the suspicious circumstances in a field near village Maniya. (vi) One builty Ex. P17 bearing the signatures of accused Nizam and Ex. P18 receipt of `naka Shivpuri', M. P. pertaining to truck No. DL-1-GA-5943 were recovered from the deceased. (vii) Subsequent conduct of the accused appellants was unnatural and they gave false explanation in this regard. ;