SHARMA, J. - (1.) THIS appeal stems from the judgment dated September 5, 2001 of the learned Sessions Judge, Jaipur City, Jaipur, whereby the appellant was convicted and sentenced under Section 302 IPC to suffer imprisonment for life and fine with default stipulation.
(2.) AS per the prosecution story Bhagwan Sahai Head Constable (PW. 2) submitted a written report (Ex. P. 5) at police station Vidhayakpuri Jaipur on March 25, 1997 with the averments that on March 24, 1997 around 11. 30 PM he received information that a person was lying injured on the road near `ajmer fly over'. On reaching to the spot Bhagwan Sahai found that injured person was already dead. Dead body was taken to the SMS Hospital where was detected that the death was caused by inflicting knife blows. On the report a case under Section 302 IPC and 4/25 Arms Act was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Jaipur City. Charges under Section 302 IPC and 4/25 Arms Act were read over to the appellant who denied the charges and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Section 313 Cr. P. C. the appellant claimed innocence. Two witnesses in defence were examined. The learned trial Judge hearing final submissions convicted and sentenced the appellant as indicated herein above. We have given our/thoughtful consideration to the rival submissions and scanned the record. Since there was no eye witness of the occurrence the prosecution based its case on circumstantial evidence. It is well settled that the 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 or a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cummulatively, 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. We have therefore to adjudge as to whether the circumstances established by the prosecution are like a spider's who leaving no exit for the appellant to slip away and, whether the links in the chain of circumstances together, unmistakably point out the guilt of the appellant? Broadly speaking the circumstantial evidence relied upon by the prosecution is as under:- (i) Homicidal death. (ii) Prior to the death the deceased was last seen in the company of appellant. (iii) various incriminating articles got recovered at the instance of appellant. (iv) Plea of alibi raised by the appellant was found false. (v) Motive.
(3.) MR. A. K. Gupta, learned counsel for the appellant, urged that the prosecution has utterly failed to link up the chain and as a matter of fact the snap in the chain is not very far to seek. According to learned counsel there is no cogent evidence to connect the appellant with the alleged murder of Nand Kishore. The prosecution has miserably failed to establish motive for the alleged crime. So far as the evidence of last seen is concerned, there is nothing unusual about it as the deceased and the appellant were the friends. The evidence created through disclosure statement and consequent recovery of articles and weapon is per se fake and fabricated. In order to examine is to whether the chain of circumstances has been linked up or not, let us advert to the testimony of witnesses examined at the trial. The evidence of Dr. M. L. Kanwath (PW. 26), who performed autopsy on the dead body vide post mortem report (Ex. P. 27) shows that Nand Kishore sustained as many as 23 ante mortem injuries that included more than a dozen incised wounds. According to the Autopsy Surgeon the cause of death was shock due to injuries No. 20, 21, 22 & 23, which were sufficient to cause death in the ordinary course of nature. A look at the material on record demonstrates that Mohan Lal (PW. 3), father of the deceased, in his deposition stated that on the day of Dhulandi (Holi) around 7 PM the appellant came to his house and started gossiping with his sons Nand Kishore (deceased) and Dinesh. Thereafter appellant and and Kishore went out of the house together. Thereafter Nand Kishore did not return back and his dead body was found. Dinesh Kumar (PW. 4), son of Mohan Lal, stated that around 7 PM on the day of Dhulandi (Holi) appellant came to his house and remained there for about one and half hour. The appellant asked Dinesh to learn driving from his but on the next breath appellant said that to become driver was not a good thing. It would however be better for that person to become driver, who had enmity with some one. Appellant further said that after becoming driver he had killed. 2-3 persons. Appellant and his brother Nand Kishore then went out of the house together and thereafter Nand Kishore never returned back. On 26th Morning he came to know that Nand Kishore was murdered. Statement of Dinesh gets corroboration from the statement of Geeta (PW. 5) (widow of Nand Kishore), Santosh (PW. 14), son of Mohan Lal and Kamla (PW. 9), the mother of Nand Kishore. According to Kamla the appellant wanted to play Holi with Geeta but no such opportunity was provided to him. Geeta deposed that the appellant used to quarrel with her husband, but since they entered into compromise, her husband had accompanied the appellant. Pushpa (PW. 7), Tulsa (PW. 10) and Meenu (PW. 11) deposed that the appellant and deceased together came to their house around 8. 30 PM and remained there upto 9 PM. Prabhati Lal (PW. 12) in his deposition stated that on day of incident he was posted as Junior Engineer in PHED and the appellant was serving in his office as Class IV employee. On March, 24, 1997 the appellant was to present on duty at 10pm and remain in the office till next day upto 6 AM, but he did not arrive till 11 PM, therefore he handed over the key of the office to Phoola Devi, another IV class employee, and instructed her to handover the keys to appellant on his arrival. ;