- (1.) THIS appeal has been preferred against the impugned -judgment dated 23/09/2008 rendered by Additional Sessions Judge (Fast Track) No.3, Ajmer camp Kishangarh in Sessions Case No.22/2006 [State Vs. Chakrabahadur & Anr.] whereby, the accused -appellants have been convicted for offence under Section 302/34 IPC and have been sentenced, as under: - Chakrabahadur: -
(2.) FOR offence u/S.302/34 IPC: - Life Imprisonment and pay a fine of Rs.1000/ - and in default thereof, to further undergo simple imprisonment for three months. Take Singh: -
(3.) FOR offence u/S.302/34 IPC: - Life Imprisonment and pay a fine of Rs.1000/ - and in default thereof, to further undergo simple imprisonment for three months. 2) The facts giving rise to this appeal in brief are that Upendra Singh Rathore (PW6) A.S.I. P.S. Madanganj, District Ajmer lodged a written report (Ex.P.11) to the S.H.O. Police Station Madanganj, District Ajmer with the contention that on 04/03/2006 at about 9.00 a.m., an information was received in the police station that one dead -body was lying behind the Dak Bungalow near the cemetery situated adjacent to the 'kachcha way' of an open plot in Pragati Nagar; on which, he rushed there and saw that a dead -body of a person aged 35 years was lying there having injuries on nose and right eye and blood was oozing out from his nose, ear etc. and he was also having abrasions on his back, abdomen etc. One Citizen Watch was also found there in a broken condition. The watch was stopped at 2.00 a.m. The person present there viz. Shivdayal Singh S/o Bheron Singh identified the dead -body of the person as Tej Singh Nepali. On this written report (Ex.P.11), F.I.R. No.79/2006 (Ex.P.12) was got registered at P.S. Madanganj, District Ajmer for offence u/S.302 IPC. After completion of usual investigation, police filed charge -sheet against appellants for offence u/S.302 IPC and they were put to trial, which was entrusted to the Court of Additional Sessions Judge (Fast Track) No.3, Ajmer camp Kishangarh. 3) After committal, the charges were framed against the accused -appellants for offence u/S.302/34 IPC. The charges were read over to them but they denied charges and claimed trial. 4) To support the case, the prosecution produced 21 witnesses and exhibited 45 documents, whereas accused -appellants were examined u/S.313 Cr.P.C. 5) After conclusion of the trial, accused -appellants were convicted for offence u/Ss.302/34 IPC and were sentenced in the manner stated hereinabove. 6) Contention of the learned counsel for the accused -appellants is that the appellants have been implicated falsely. There is no evidence to connect the appellants with the alleged crime. Chain of circumstantial evidence is not complete. Witness of last seen is not reliable and the witness of recovery of blood stained clothes and stones has failed to connect the appellants with the crime. There is no evidence of blood group of the deceased or of the appellants. It has further been agitated by the learned counsel for the appellants that information has been procured by using pressure and they have been implicated falsely. 7) Per contra, the contention of the learned Public Prosecutor is that prosecution has amply proved the offence against the appellants as they were last seen with the deceased. Blood stained clothes of the appellants were recovered and stones with which the injury was caused, leading to death, had also been recovered, which completes the chain of circumstance and there is no need to interfere in the finding and conclusion of the trial court. 8) Heard learned counsel for the accused -appellants, learned Public Prosecutor for the State and perused the impugned -judgment as well as original records of the case. 9) Upendra Singh Rathore (PW6) A.S.I. stated that he reached at the spot and he saw the dead -body of Tej Singh Nepali and lodged the first information report (Ex.P.12). He is formal witness and had not stated anything, which can connect the appellants with the crime. 10) Prahlad (PW1) is the witness, who stated that he employed the deceased -Tej Singh Nepali as chowkidar on the recommendation of appellant -Chakrabahadur, which shows that relations between the two were amicable. 11) Manoj Agrawal (PW7) is the person with whom the deceased was employed as chowkidar but he had not stated anything, which can lead to the conclusion that appellants are culprits. He stated that on one day prior to the occurrence, Tej Bahadur came to his house. One other person was also with him. He paid Rs.160/ - to the person, who was accompanied by Tej Bahadur. Thereafter, Rampal informed him that Tej Bahadur came to his house in a drunken state and on that day, he did not turn up to his duty. Hence, he had not stated anything, which can connect the appellants with the crime. 12) Tej Singh (PW20) is the star witness of the prosecution and contention of the Public Prosecutor is that he had stated that deceased was last seen with the appellants. This witness further stated that appellant -Chakrabahadur came to him two days prior to the incident. Appellant -Take Singh was also with him. Deceased also came there being drunked. All the three again consumed a quarter of wine and, thereafter, altercation took place between all the three, which was pacified by this witness and, thereafter, they left the house and on the next day, he learnt that Tej Singh Nepali had died. In cross -examination, he stated that there was no quarrel or dispute between the three prior to this incident. Hence, the only evidence, which has been brought on record by the prosecution is that two days prior to the incident, there was some altercation between the three but it cannot be said to be the evidence of last seen as deceased Tej Singh Nepali was found dead after two days and there is no proximity of time between the deceased last seen with the appellants and death of deceased -Tej Singh Nepali. What transpires in two days, has not been brought on record by the prosecution, which is a missing link. Reliance has been placed on the judgment of Hon'ble the Supreme Court in State of Goa Vs. Sanjay Thakran and Anr., 2007 3 SCC 755, wherein the Supreme Court in paras 31, 32, 33 and 34 of the said judgment has held, as under: - "31. . . . . It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above -mentioned general principle with reference to the principle of last seen together in Bodhraj v. State of J and as under : (SCC p.63, para 31) "31. The last -seen theory comes into play where the time -gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. .." [See also : State of U.P. v. Satish(SCC para 22) and Ramreddy Rajesh Khanna Reddy v. State of A.P. (SCC para 27)]. 32. In Ramreddy Rajesh Khanna Reddy, this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration. 33. In Jaswant Gir v. State of Punjab, it was observed that (SCC p.441, para 5) "5. . . . . . In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'last seen' evidence, even if the version of PW 14 in this regard is believed. .." 34. From the principle laid down by this Court, the circumstance of last -seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case". Hence, in the light of the above fact that the appellants were seen together with deceased two days prior to the incident, cannot connect the appellants with the crime as possibility cannot be ruled out of meeting of other persons with the deceased in the time gap of two days and this fact cannot be considered as incriminating circumstance against the appellants. 13) The other circumstances, which have been brought on record to connect the appellants with the crime is the recovery of the blood stained clothes of the appellants and blood stained stones on the information and disclosures of the appellants. Tejaram (PW14) is the investigation officer, who stated that appellants suffered disclosure as regards to the recovery of blood stained stones and in furtherance of the information, recoveries have been made. Further deposition of this witness is that both the accused made disclosures as regards to the blood stained clothes, which were recovered at their instance. Information, which had been suffered by the appellants are the disclosure statements vide Ex.P.40, Ex.P.41 and Ex.P.43.;