SHARMA, J. - (1.) DEAD body of Deep Chand, a boy of 14 years, was found lying partially buried in a yellow field of mustard. The appellant, who was seen with Deep Chand near the field, was placed on trial before learned Additional Sessions Judge Bayana (Bharatpur), who vide judgment dated September 29,2001 convicted and sentenced the appellant as under:- U/s. 302 IPC: To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer one month rigorous imprisonment. U/s. 364 IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default to further suffer one month rigorous imprisonment. Substantive sentences were directed to run concurrently. In the instant appeal preferred by the appellant, since there is no eye witness of the incident, we have to adjudge as to whether the circumstances from which conclusion of guilt is drawn are fully proved and conclusive in nature and whether the established facts are consistent only with the hypothesis of the guilt of the appellant alone and totally inconsistent with his innocence.
(2.) THE prosecution case, based on the circumstantial evidence, is as under:- On February 20, 2000, informant Ved Ram (PW. 8) submitted a written report (Ex. P. 1) at Police Station Bayana stating therein that his relations with the appellant were inimical and just about a month ago the informant and the brother of appellant had a quarrel. On Feb. 19, 2000 around 6 PM the appellant took informant's son Deep Chand, aged 14 years, towards jungle and returned from the jungle alone after two hours. Amar Singh, Kishan and other villagers had seen the appellant and Deep Chand going towards jungle. On being enquired about Deep Chand, the appellant stated that Deep Chand never accompanied him, when the villagers repeatedly told him that they had seen the appellant and Deep Chand going together towards jungle, the appellant kept mum. THEreafter the informant and villagers started searching Deep Chand and his dead body was found partially burned in the field of Prabhu Jatav. On the basis of this report a case under Sections 302 and 201 IPC was registered and investigation commenced. Autopsy on the dead body was performed, statements of witnesses were recorded, the appellant was 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 Bayana (Bharatpur ). Charges under Sections 302 and 364 IPC were framed. THE appellant denied the charges and claimed trial. THE prosecution in support of its case examined as many as 12 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard the rival submissions and scrutinised the record. Following circumstances are relied upon by the learned trial Court in convicting and sentencing the appellant:- (i) Death of Deep Chand was homicidal in nature. (ii) Immediately before his death, Deep Chand was last seen alive in the company of the appellant. (iii) Appellant had absconded after the incident. (iv) Human blood was found on the rings worn by the appellant. (v) Abnormal conduct of the appellant. DEATH WAS HOMICIDAL: Dr. K. G. Mittal (PW. 8), who conducted autospy on the dead body, deposed that as per postmortem report (Ex. P. 7) the cause of death was antemortem asphyxia produced by compression of the neck by human hands. It is thus established that death of Deep Chand was homicidal in nature. EVIDENCE OF LAST SEEN TOGETHER: The prosecution has examined Sheela (PW. 3), Guddi (PW. 4), Amar Singh (PW. 5) and Kishan (PW. 7) to prove that soon before his death Deep Chand was seen alive in the company of appellant. Sheela (PW. 3), in her deposition, stated that while she along with Guddi, was plucking `bathua' from her field she had seen the appellant entering into the mustard field of Prabhu around 6 PM. Guddi (PW. 4) deposed that while she was on her field and plucking `bathua', she saw her real brother Deep Chand and appellant entering into the field of Prabhu. Thinking that both of them had gone to attend the call of nature, she had come back to her house. Amar Singh (PW. 5), in his deposition, stated that on Feb. 19, 2000 he had seen appellant and Deep Chand entering into the mustard field of Prabhu. After two hours when Vedram enquired about his son Deep Chand, he had informed Vedram that Deep Chand was with the appellant. Vedram and Sukh Chand then took the appellant to `agahna' (fire place of the village) where the appellant started shivering. Appellant was taken by villagers to the field of Prabhu but from the boundary of the field he disappeared. On being searched, dead body of Deep Chand was found lying partially buried in the field of Prabhu. In the cross examination Amar Singh admitted that Vedram was his brother and Sheela and Guddi were his nieces. Kishan (PW. 7) deposed that around 6 PM while he was in his field he had seen the appellant and Deep Chand going together towards the field of Prabhu. At that time his daughter Guddi and niece Sheela were plucking `bathua' from the field. When he came to the village he found Sukh Chand and Vedram searching Deep Chand. He then told them that he had seen Deep Chand with the appellant. Vedram and Sukh Chand proceeded to the house of the appellant and asked him about Deep Chand but he pleaded ignorance. On being threatened the appellant accompanied them to the boundary of Prabhu's field but from there he fled away. Dead body of Deep Chand was found in the field of Prabhu.
(3.) PLACING strong reliance on the testimony of these witnesses learned trial Court drew the inference that it was the appellant who had killed Deep Chand. Finding of learned trial Judge, in our opinion, is based on probability. By probability is meant the likelihood of anything to be true, deduced from its conformity to our knowledge, observation and experience. It is well settled that circumstantial evidence must be of a conclusive nature and circumstances must not be capable of a duality of explanation. In a case depending largely upon circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. Ratio indicated in Lakhanpal vs. State (AIR 1979 SC 1620) is squarely applicable to the facts of the instant case wherein it was held that the mere fact that the accused and the deceased were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased. ABSCONDING: Learned trial Court in the impugned judgment also considered the circumstances that the appellant had absconded after he was taken by the villagers to the field of Prabhu. Testimony of Amar Singh (PW. 5), Kishan (PW. 7), Sukh Chand (PW. 1) and Veram (PW. 8) was referred wherein it was alleged that the appellant accompanied the villagers upto the boundary of Prabhu's field and thereafter he fled away. When the villagers reached his house it was found locked. In Raghuveer vs. State (AIR 1971 SC 2156) it was held that the act of absconding even if proved, is normally considered some what as weak link in the chain of circumstances utilised for establishing the guilt. In the instant case even after the recovery of dead body the appellant was very much in his house and he had not left the village. He was arrested on Feb. 21, 2000 at 5 AM vide arrest memo (Ex. P. 8 ). Thus the prosecution has failed to establish that the appellant had absconded after the incident. HUMAN BLOOD WAS FOUND ON THE RING OF APPELLANT: ;