SHARMA, J. - (1.) IRSHAD @ Risal, the appellant herein, has impugned the judgment dated January 30, 2002 of the learned Additional Sessions Judge Kishangarh (Ajmer), whereby the appellant was convicted and sentenced under Section 302 IPC to suffer imprisonment for life and fine of Rs. 2,000/-, in default to further rigorous imprisonment for one year.
(2.) IT is the prosecution case that the appellant personated himself as Rajendra Singh and came to the house of Rupendra Singh (since deceased ). Rupendra Singh believed that Rajendra Singh was the brother of his wife Rajesh Kanwar and took him on scooter to the house of his cousin brother Prahlad Singh. Appellant pretended to go to Jammu but on the pretext of stomach pain he remained in the house of Prahlad Singh and thereafter went to Bus-stand. In the Bus-stand around 4. 15 AM the appellant forced Rupendra Singh to go to Marble factory in search of his wrist watch. Rupendra Singh and the appellant together left the bus- stand on scooter and after about three hours dead body of Rupendra Singh was found lying near the small bridge of R. K. Road. Prahlad Singh lodged written report on May 17, 1999 at Police Station Madanganj where case under Section 302, 120b and 109 IPC was registered against Rajendra Singh and investigation commenced. The appellant and Rajesh Kanwar wife of the deceased were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Kishangarh, who discharged Rajesh Kanwar of all the charges. The appellant who was charged under Section 302 IPC, denied the charge and claimed trial. The prosecution in support of its case examined as many as 26 witnesses. In the explanation under Sec. 313 Cr. PC. , the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. Learned counsel for the appellant vehemently assailed the findings of learned trial Judge and made following submissions:- (i) The trial Court failed to consider that identification proceedings do not contain stipulation to the effect that persons having similar hair style were mixed. The Magistrate who conducted identification proceedings was not examined and the identification proceedings could not be taken into consideration. The identification proceedings were conducted on June 17, 1999 whereas the appellant was arrested on June 5, 1999 and he was not kept Baparda (with covered face ). Prior to identification the appellant was taken to the place of recovery of knife and the place of alleged incident. The memos Ex. P. 23 and Ex. P. 3 did not bear this note that the face of the appellant was covered. (ii) The alleged recovery of knife was farce and it could not be established that blood on recovered knife was of the deceased. (iii) The appellant was not named in the FIR. The FIR was registered against Rajendra Singh and no justifiable reason is available on record for his inclusion at later stage. Per contra, learned Public Prosecutor supported the impugned findings and urged that the appellant was rightly convicted and sentenced. We have pondered over the submissions and with the assistance of learned counsel scanned the record. Factual situation emerges from the material on record may be summarized thus:- (i) The appellant was arrested on June 5, 1999 and was searched in the office of Circle Inspector situated in court compound. Arrest memo and search memos Ex. P. 18 and Ex. P. 19 were drawn. (ii) On June 9, 1999 the appellant was taken to the site from where dead body was recovered and later on to the place from where recovery of knife was effected. Memos Ex. P. 16 and Ex. P. 17 were drawn. (iii) On June 10, 1999 the appellant was taken to Surajpura (Jaipur) to recovery his own shirt and letters. Memos Ex. P. 23 and Ex. P. 24 were drawn. (iv) None of the aforequoted memos contain stipulation that the appellant was kept and taken to the various places Baparda (with covered face) (v) Setha Ram (PW. 26) who conducted investigation is not certain whether the appellant was kept with covered face or not. (vi) Identification parade was conducted on June 17, 1999 and the Magistrate who conducted identification parade was not examined. (vii) The place from where knife got recovered at the instance of the appellant on June 9, 1999 vide recovery memo Ex. P. 16, had already been searched on May 17, 1999 vide memo Ex. P. 3 but at that time knife was not found there. (viii) Ex. P. 12 is the seizure memo of Diary which contains writings of appellant about Rajesh Kanwar (wife of the deceased ). (ix) Parma Ram (PW. 19) another Investigating Officer deposed that diary Ex. P. 12 was not sent to the Hand Writing Expert to establish that it contains the hand writing of the appellant. (x) The place from where knife got recovered at the instance of the appellant was an open place where every body had access. Recovery got effected after 22 days of the incident. (xi) On the basis of information of appellant under Section 27 Evidence Act which was recorded in Memo Ex. P. 27 on June 10, 1999 shirt and letters got recovered vide recovery memo Ex. P. 23 from Badi Surajpura Jaipur. Site plan Ex. P. 24 of place of recovery was drawn. Two motbirs of Ex. P. 23 and Ex. P. 24 were not examined. (xii) There is nothing on record to establish that Hut/land at Surajpura was owned and possessed by the appellant and it was in his exclusive possession. This fact has been admitted by Parma Ram I. O. (PW. 19) that the Hut/land was open and accessible to all. (xiii) A look at the FIR (Ex. P. 1) reveals that it was the deceased Rupendra who introduced his brother in law Rajendra Singh to the informant Prahlad Singh (PW. 1 ).
(3.) THERE is no eye witness of the incident and the appellant has been convicted on the basis of circumstantial evidence. It is now well settled by a catena of decisions of the Hon'ble Supreme Court that for proving the guilt of commission of offence under Section 302 IPC, the prosecution must lead evidence to connect all links in the chain so as to clearly point the guilt of the accused alone and nobody else. The Apex Court in Ramreddy vs. State of A. P. (JT 2005 (4) SC 16) indicated as under:- " It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave may be, cannot be substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. . . " IDENTIFICATION OF APPELLANT: It is significant to note that the person who introduced himself as the brother of Rajesh Kanwar (wife of deceased Rupendra Singh) came for the first time to the house of the deceased and only Rajesh Kanwar could testify that the said person was not her brother. But instead of making her witness, the IO implicated her as co-accused. Since there was no evidence against her, she was discharged by the learned trial Court. The prosecution examined Prahlad Singh (PW. 1), Gend Kanwar (PW. 7), Kan Singh (PW. 8), Nand Singh (PW. 9), Moman Singh (PW. 10) and Hukam Singh (PW. 12) to establish that it was appellant who personated himself as Rajendra Singh, the brother-in-law of the deceased. These witnesses identified the appellant before the Magistrate who conducted identification parade but the Magistrate was not examined. It is no doubt true that identification test do not constitute substantive evidence and such tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines but when a person's identity with an ascertained person is in issue, it may be proved not only by direct testimony or opinion evidence, but presumptively by similarity. It is the duty of the prosecution to establish that suspect during identification parade was mixed with so many persons and all necessary precautions were taken. The memorandum of identification proceedings drawn by the Magistrate acting under Section 164 Cr. P. C. could be proved by Magistrate and the accused was entitled to cross examine the Magistrate. ;