SHIV KUMAR SHARMA, J. - (1.) IN these appellants Bhojoo Singh and Rajendra Singh @ Raju have challenged their conviction under Sections 302, 201 and 420/120b of the INdian Penal Code recorded by the learned Additional Sessions Judge (Fast Track) No. 2 Sikar Camp Neem-ka-Thana, in Sessions Case No. 36/2002 for which they had been sentenced as under:- U/s. 302 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/- , in default to further suffer six months rigorous imprisonment. U/s. 201 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. U/s. 420/120b IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 500/- in default to further suffer three months rigorous imprisonment. Substantive sentences were directed to run concurrently.
(2.) THE relevant facts leading to these appeals are that on January 11, 2000 Shankar Lal Sarpanch (PW. 1) telephonically informed Police Station Neem-ka-Thana that dead body of an unknown person was lying near the hill. THE SHO of Police Station when reached to the spot a written report (Ex. P. 1) in connection with the dead body was handed over to him by Shankar Lal. A case under Section 302 IPC thereafter was registered and investigation was taken up. Necessary memos were drawn. Autopsy on the dead body was performed. As per post mortem report (Ex. P. 59) dead body was of unknown Hindu Male aged about 25 years whose death was caused between 1 to 5 days prior to post mortem examination. Cause of death was coma as a result of head injury. During the course of investigation it was detected that dead body was of Sardara Ram, who was killed by the appellants Rajendra and Bhojoo. After usual investigation charge sheet was filed against the appellants and investigation was kept pending under Section 173 (8) Crpc against Amar Singh and Bajrang Singh. Learned Additional Sessions Judge (Fast Track) No. 2 Sikar Camp Neem-Ka- thana framed charges under Sections 302, 420/120b and 201 IPC against Rajendra and Bhojoo, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 24 witnesses and exhibited 84 documents. In their explanation under Section 313 Cr. P. C. Rajendra and Bhojoo claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced them as indicated herein above. In the present case, admittedly, there is no eye witness of the incident and the conviction of the appellants solely rests on the circumstantial evidence. Learned trial Court founded the conviction of the appellants on the basis of circumstances which are said to be established against the appellants and the same are set out herein below:- (i) Deceased Sardara was last seen alive in the company of appellants. (ii) Blue bag containing clothes and papers of the deceased got recovered at the instance of appellant Rajendra Singh. (iii) Stone allegedly used in commission of offence, wrist watch of the deceased and sum of Rs. 19,300/- got recovered on the basis of disclosure statement of appellant Rajendra. (iv) Inland letters Ex. P. 15 and Ex. P. 16 allegedly written by deceased to his father Badri Prasad were in the hand writing of appellant Rajendra. (v) Death of deceased was homicidal in nature. (vi) Appellant Rajendra Singh had motive to kill the deceased. We have now to adjudge whether the aforesaid circumstances are proved beyond all reasonable doubt and if so whether they provide so complete a chain as not to leave any reasonable ground for a conclusion consistent with the innocence of the appellants. EVIDENCE OF LAST SEEN: A perusal of testimony of Nagar Mal (PW. 6) reveals that appellant Rajendra and deceased Sardara boarded `chetak Express' from Neemka Thana Railway Station on December 26, 1999 to go to Reengas and from there they went to Bikaner. Bajrang Singh (PW. 18) deposed that Rajendra hired his jeep, went to Jakhod and took Bhojoo Singh with them. Then they went to Bikaner, took a boy aged about 22 years from a hotel and proceeded to in-law's house of Bhojoo Singh and spent night there. Gopi Ram (PW. 3) deposed that he took Rajendra, Bhojoo and a boy aged 22 years in his taxi to the place of `bhagega Babaji'. In the taxi they were talking together and addressing each other as Bhoja and Sardara. As per his diary (Ex. P. 7) Gopi Ram took those persons in the taxi on January 2, 2000. Durga Ram (PW. 5) deposed that while he had gone to Bhagega Babaji for Ramayan-path a jeep was standing there is which three boys were sitting. From the testimony of these witnesses it is established that till January 2, 2000, Sardara was seen alive in the company of appellants. It is contended by learned counsel for the appellants that according to Dr. Sanjay Kumar (PW. 11) the death of Saradara could be caused either on January 7, 2000 or thereafter. As per post mortem report (Ex. P. 59), which was drawn on January 11, 2000, the death could have caused between 1 to 5 days preceding the date of post mortem examination. In view of long gap of five days, last seen theory does not come into play.
(3.) BEFORE dealing with the submissions of the learned counsel, it will be appropriate to re capitulate the factual situation of the case, which is as under:- (i) Appellant Rajendra was a workman in Venus Factory and used to visit at Tea-stall of Badri Prasad (PW. 8 ). (ii) Rajendra told Badri Prasad that his brother Bajrang Singh and cousin Vikram Singh were in the Army and if Badri Prasad was prepared to pay a sum of Rs. 50,000/- job could be procured for his son in the Army. (iii) On December 12, 1999 Rajendra took Badri Prasad to his house and arranged meeting with Vikram Singh, who promised to get the job for his son in the Army if he was ready to pay a sum of Rs. 50000. (iv) On December 26, 1999 Rajendra went to the tea stall of Badri Prasad and took Sardara with him. After few days Rajendra came back and told Badri Prasad that his son Saradara got employment in Army. Badri Prasad paid a sum of Rs. 48000/- to Rajendra. (v) Rajendra made promise to also get Mohan and Nagar employed in Army and received a sum of Rs. 1 lakh. (vi) On January 21, 2000 Mohan and Nagar telephonically informed Badri Prasad that Rajendra played fraud with them and thereafter on the very next day Mohan and Nagar came to Badri Prasad and asked him to search Sardara since they were suspecting some foul play on the part of Rajendra. (vii) At Papra stand a police officer was showing photograph of an unknown deceased. Badri Prasad identified the photograph as of his son Sardara. (viii) Two inland letters were received by Badri Prasad on January 2, 2000 and January 21, 2000 allegedly sent by Sardara. (ix) Rajendra and Bhojoo were arrested on February 20, 2000 and they were identified by Bajrang Singh, Gopi Ram and Durga Ram in the identification parade held on February 29, 2000. (x) Bajrang Singh, Gopi Ram and Durga Ram also identified Rajendra and Bhojoo in the trial Court. (xi) From the testimony of Bajrang (PW. 18), Gopi Ram (PW. 3)and Durga Ram (PW. 5) it is established that deceased Saradara was last seen alive in the company of appellants Bhojoo Singh and Rajendra Singh till January 2, 2000 at the place of Bhagega Babaji and from there they had gone towards hilly area. Coming to the submissions of learned counsel for the appellants we find that if the medical opinion regarding time of death of Sardara is believed then the theory of last seen would not have any relevance. In State of U. P. vs. Satish 2005 (3) SCC 114, Hon'ble Supreme Court observed that last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen 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. In the instant case as already noticed that the prosecution has established that on January 2, 2000 Saradara was last seen alive with the appellants near the place from where his dead body was found on January 11, 2000. The question that emerges is whether the medical opinion regarding time of death of Saradara has any adverse effect on the circumstance of last seen established by the prosecution. In re Kattameedi Chenna Reddi vs. State (AIR 1940 Madras 710) it was indicated that medical evidence from the text book dealing with time of death from appearance of blisters is not of value. It was observed as under:-      " The plan Ex. P. indicates roughly the scene of Nagamma's death. She lives at Venkatapuram which is 2 1/2 miles from Prodattur. On the 12. 03. some time before midday, she was alive. PW. 3, her husband, said that she gave him his food before he left for Prodattur, and PW. 2, her sister, was with her in her house on that morning. Some time afternoon she was found dead, having been throttled. There is no doubt whatever that she met her death at about midday on the 12th. No cross examination was addressed to her sister, PW. 2, or to her husband, PW. 3 to suggest that the deceased had in fact met her death long before noon on the 12th, even so early as later on the previous night. This aspect requires a passing reference because the lady Sub Assistant Surgeon, relying largely on statements in test-books, was inclined to say that from the appearance of blisters on the body death must have taken place from 22 to 35 hours prior to her examination which was 7 AM on the 13th Even 22 hours before 7 AM when blisters were seen on the body would mean, if the doctor's premises are correct, that the woman was alive in the early hours of the 12th; and 36 hours before would mean that she met her death on the 11th. Theoretical evidence of this description is not of values unless it is exhaustive with regard to all possible circumstances. This body had been left in a March sun from about noon to sundown on the 12th, if the prosecution story is correct, and all night in the open air. The text books do not deal with circumstances such as these, but ordinarily experience shows that in those circumstances decomposition sets in with great rapidity. it is notorious that bodies are burnt or buried in this country within a few hours of death. We should require the clearest possible evidence of the time when blisters appear under circumstances such as those before us in order to prefer the deductions based on such theories to the clearest evidence of the fact that this woman was alive late in the morning of the 12th. ;