B.R.ARORA, J. - (1.) This appeal is directed against the judgment dated 31-3-84, passed by the Sessions Judge, Balotra, by which the learned Sessions Judge convicted the appellant for the offences under Sections 302, 394 and 201 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 100.00 and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 302, IPC; six year's rigorous imprisonment and a fine of Rs. 100.00 and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 394 IPC and four year's rigorous imprisonment and a fine of Rs. 100.00 and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 201 IPC.
(2.) On 21-1-82, the nephew of PW 1 Rau Ram saw the hand of one dead person emerging from a pit. On receiving this information, PW 1 Rau Ram, alongwith his nephew Phoosa Ram, went to the place where his nephew had seen the hand of a dead person and saw the same. He thereafter sent Phoosa Ram to inform the police and he himself stayed there to keep a watch over the deadbody. The police reached there, took-out the deadbody from the pit and started investigation under Section 174 Cr. PC and the doctor was called on the spot. On post-mortem it was found that the deadbody was of a young man and a Dhoti was tied on his loin. The deadbody was tied in a cloth. After the post-mortem examination, the cremation of the dead body was performed. One Dama S/o Shri Amba (PW 4) R/o Loona had left his village some days before the occurrence. PW 4 Amba, father of dama on receiving the information that some deadbody has been recovered, reached at the place where the deadbody was found but he could not identify the deadbody. The police, thereafter, proceeded with the investigation and it was revealed that the deadbody recovered was that of Dama, who had left his village on a camel. The camel was sold by Dama to PW 18 Uda Ram and in exchange thereof he took twenty-one she-goats and some sheep and Rs. 500.00 in cash. Deceased Dama, alongwith the cattles, was last seen by PW 5 Dau Ram. PW 6 Bhaira, PW 7 Adu Ram and PW 8 Mst. Khetu in the company of the accused-appellant. Thereafter, as per be prosecution case, the accused-appellant committed the murder of Dama and concealed his deadbody after teging it in the cloth under the earth where from it was recovered by the police on the information given by PW 1 Rau Ram. The police, after necessary investigation, presented the challan against the accused and the accused-appellant was committed to the Court of the learned Sessions Judge, Balotra, to stand his trial. The appellant was, thereafter, tried by the learned Sessions Judge, Balotra, for the offences under Sections 302, 394 and 201 IPC. The prosecution, in support of its case, examined thirty-three witnesses and the learned Sessions Judge, after trial, convicted and sentenced the accused-appellant as stated above. It is against this judgment dated 31-3-84, passed by the learned Sessions Judge, Balotra, convicting and sentencing the accused-appellant that the appellant has preferred this appeal.
(3.) It is contended by the learned counsel for the appellant that the learned Sessions Judge has convicted and sentenced the accused-appellant on the basis of the three circumstances, namely, (i) the last seen of the accused in the company of the deceased by PW 5 Dau Ram, PW 6 Bhaira Ram, PW 7 Adu Ram and PW 8 Mst. Khetu, but the evidence of these witnesses does not conclusively prove that the accused was seen with the deceased immediately before this occurrence. The second circumstance, which has been relied-upon by the learned Sessions Judge is the recovery of the cattles and the various articles belonging to the deceased on the information and at the instance of the accused, which, also, do not stand proved from the evidence produced by the prosecution and there is not even an iota of evidence to connect the accused-appellant with the crimes and he has been wrongly convicted by the learned Sessions Judge. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below.;