SHARMA, J. - (1.) SAYEED Moeen, the appellant herein, along with three co-accused, was put to trial before the learned Additional Sessions Judge (Fast Track) Ajmer, who vide judgment dated January 16, 2003 convicted and sentenced the appellant as under: U/s. 302 I. P. C. To suffer imprisonment for life and fine of Rs. 5,000.00, in default to further suffer simple imprisonment for six months. U/s. 3/25 Arms Act: To suffer imprisonment for three years and fine of Rs. 1,000.00, in default to further suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently. Co-accused Hussain Ujjaman was discharged and SAYEED Fareed and Aziz Rehman stood acquitted. Acquittal of co-accused has been assailed by the State of Rajasthan and complainant in appeal No. 1248/2003 and revision petition No. 559/2003 respectively.
(2.) AS per the prosecution story Saiyad Riyaz Ali @ Pappu suddenly disappeared on September 24, 1999. His elder brother Hasan Mazhar Ali lodged missing report at Police Station Dargah Ajmer on September 25, 1999 at 6. 15 PM. In the course of investigation a dead body was identified as of Saiyad Riyaz Ali. On the basis of evidence collected during investigation the IO nabbed the accused persons and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Ajmer. Charges under Sections 302, 201, 120b I. P. C. and 3/25 Arms Act were framed against 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. The witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have pondered over the submissions and with the assistance of learned counsel carefully 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 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 of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, 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. Circumstantial evidence means the evidence afforded not by the direct testimony of an eye witness to fact to be proved, but by the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than truth of the principal facts. Circumstantial evidence is not an evidence direct to the point in issue, e. g. the statement of a person that he saw another giving a fatal blow to the deceased, but evidence of various fact other than the fact in issue which are so associated with the fact in issue that taken together they form a chain of circumstances leading to an inference or presumption of the existence of the principal fact. The circumstantial evidence should be like spider's web leaving no exit for the accused to slip away. The various links in the chain, when taken in isolation, might not connect the accused with the commission of the crime but when taken together may unmistakably point out the guilt of the culprit. Bearing these principles in mind we have to adjudge the cumulative effect of two circumstances that were found established by the learned trial Judge against appellant Sayeed Moeen. They are as under: (i) Homicidal death. (ii) Recovery of country made pistol at the instance of Sayeed Moeen. Homicidal Death :
(3.) DEATH of Sayeed Riyaz Ali @ Pappu was undeniably homicidal in nature. As per post mortem report (Ex. P-28) as many as 20 antemortem injuries were found on the dead body. In the opinion of Dr. Nand Lal (PW-17), who conducted autopsy on the dead body, the cause of death was injuries to vital organs i. e. head, neck and lungs. Thus the prosecution is able to establish that death of deceased was homicidal. Recovery of Pistol: Regarding the circumstance of recovery of country made pistol at the instance of appellant Moeen. Devi Singh IO (Pw. 26) in his deposition stated that Moeen gave information under Section 27 of Evidence Act on September 29, 1999 regarding the country made pistol and used cartridge (Ex. P-47) and the same got recovered vide Ex. P-18 from the office near Dargah. Site plan (Ex. P-19) of the place of recovery was drawn. Motbir Sakhawat Ali (Pw. 11) supported the recovery, Devi Singh IO further stated that the seized articles were sent to FSL on October 26, 1999 through Suraj Mal (Pw. 25) vide receipts (Ex. P-43 to P-45 ). Learned counsel for the appellant urged that the recovery of country made pistol from the appellant is concocted and fabricated as the appellant had not given any information and the place from where the pistol got recovered was not in exclusive possession of the appellant. He further urged that without prior sanction of District Magistrate under Section 39 of the Arms Act the appellant could not be charged and convicted under section 3/25 Arms Act. Learned counsel also urged that the FSL report could not be read against the appellant since no question regarding the same was put to him under Section 313 Cr. P. C. ;