SHARMA, J. - (1.) CHALLENGE in these two appeal is to the judgment dated November 30, 2000 rendered by learned Additional Sessions Judge Kishangarh (Ajmer) whereby the four appellants were convicted and sentenced as under: Raju Ram @ Raju: u/s. 120-B IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. u/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. u/s. 364 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. u/s. 394 IPC: To suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. Ranjit, Ramesh and Keshav Das: u/s. 120-B IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. u/s. 302/34 IPC: Each to suffer imprisonment for life and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. u/s. 364/34 IPC: Each to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. u/s. 394 IPC: Each to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer rigorous imprisonment for six months. The substantive sentences were ordered to run concurrently.
(2.) WE have heard rival submissions and weighed the evidence adduced at the trial. As per prosecution story Ghisi, the wife of informant Bhanwar Lal, and Chhoti, the wife of Ram Balwa, belonged to village Brijpura and because of this fact families of Bhanwar Lal Ram Balwa came closer. Children of Ram Balwa used to address Ghisi as Masi (Maternal Aunt ). One day Raju S/o Ram Balwa (appellant herein) came to the house of Bhanwar lal and told Ghisi that his mother wanted to see her. Since Bhanwar lal was sick, Ghisi did not accompany him. After remained in the house of Bhanwar Lal for about four hours, Raju went back. Next day he came again on cycle and took Ghisi with him on the pretest that his mother was calling her. While leaving the house Ghisi told her son Ratan and Devar (brother-in-law) Soni that after spending one night with Chhoti she would proceed to her village Brijpura where she would stay for about four five days. On May, 30, 1998 one dead body of female was found in the lonely area, the informant made inquiry about his wife Ghisi and it was revealed that Ghisi never reached to village Brijpura and Raju disappeared from the village. Informant Bhanwar Lal then lodged FIR on May 31, 1998 at the Police Station Kishangarh giving the details of ornaments and clothes wore by Ghisi while leaving the house. The Police Station Kishangarh registered a case under Sections 417, 364, 302, 392 and 201 IPC against Raju and investigation commenced. Dead body of Ghisi was subjected to autopsy. Necessary memos were drawn. Statements of witnesses were recorded. The appellants 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 District Ajmer. Charges under Sections 120-B, 364, 364/34, 302 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 45 witnesses witnesses. In the explanation under Section 313 Cr. P. C. the appellants 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. Since presence of eye-witness could not be secured, the prosecution has relied on the circumstantial evidence. The first circumstance was that death of Ghisi was homicidal. As per post mortem report (Ex. P/28) the dead body was eaten by animals and it was decomposed. Although the cause of death could not be ascertained, it was opined hat time of death was between 3 to 5 days. Factual situation that emerges from the material on record may be summarized thus:- (i) On May 26, 1998 around 8. 40 a. m. Raju took the cycle on hire from Nasruddin (PW-13) and returned the cycle back on May 28, 1998 at 7. 15 a. m. (ii) Mother of Raju and deceased Ghisi both belonged to village Brijpura and Raju used to address Ghisi as `masi' (Maternal aunt ). (iii) On May 26, 1998 Raju went on cycle to `sasural' of Ghisi to take her with him but informant Bhanwar Lal (PW-30), the husband of Ghisi declined to send her on the pretext of his sickness. (iv) On May 27, 1998 while Bhanwar Lal was not in the house, Raju again went on cycle to Ghisi's house and took her with him at 3 p. m. While leaving the house Raju told the members of Ghisi's family that Ghisi was called by his mother for the engagement of Ghisi's son Ratan. (v) Ghisi, while leaving the house, was wearing green petticoat and yellow `odhni' (cloth that covers head, breasts and shoulders ). She was bedecked with gold and silver ornaments. She was also wearing `jutian' (shoes ). (vi) Soni Ram (PW-31), Ratan Lal (PW-39), Manbhar (PW-38), Magni (PW-32), Madan (PW-33) and Bidami (PW-40) had seen Ghisi in the company of Raju. (vii) Nizam (PW-1), Meghraj (PW-9) and Kailash (PW-34) had also seen Ghisi and Raju going together. (viii) Kailash (PW-34) had seen Ranjeet, Ramesh and Keshav sitting on `hoshiyara Pal'. Kailash had puffed `bidi' with them and Ranjeet told him to ask Raju to approach them. Thereafter he met Raju and Ghisi on the way and he told Raju that Ranjeet was calling him. (ix) On May 30, 1998 dead body of an unknown female aged about 35 years was found near `charagah' (pasture land ). Musharaf Ali (PW-12) united the cloth that was wrapped on the mouth and throat of dead body. (x) Dead body was identified from the clothes as of Ghisi by Bhanwar Lal (PW-30) (Husband of Ghisi) and Ratan Lal (PW-39) (son of Ghisi ). Bhanwar Lal then lodged the reported Ex. P/28. (xi) Raju disappeared from the village and could be arrested only on June 29, 1998 vide Arrest memo Ex. P/40. (xii) At the instance of Raju `gold Tusi' (Necklace) belonging to deceased Ghisi got recovered vide recovery memo Ex. P/23. (xiii) In the absence of Smt. Urmila Verma, Judicial Magistrate Kishangarh Bhanwar Lal (PW-30) and Ratan Lal (PW-39) identified `gold Tusi' recovered at the instance of Raju, as belonging to Ghisi. The shoes recovered from the place of incident were also identified as belonging to Ghisi. (xiv) Raju in his statement under Section 313 Cr. P. C. did not give any explanation as to which place he left Ghisi. (xv) As per FSL report the clothes recovered from the dead body were found stained with human semen. (xvi) All the four accused were found physically potent to commit sexual intercourse by Dr. Rajan Kumar Patni (PW-21 ). (xvii) Ranjeet while in police custody made extra judicial confession before Anandi Lal (PW-35 ). It is well settled that when a case rests on circumstantial evidence, such 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.
(3.) APPLIED these lucid tests to the facts of the instant case we find that evidence adduced at the trial is qualitatively such that on every reasonable hypothesis the conclusion is that appellant Raju is guilty. The prosecution has established that during the interval between the time when Raju and Ghisi were last seen together and the time when Ghisi died, every circumstance was inconsistent with the innocence of appellant Raju. From the evidence it appears that Raju had conspired with the the other accused persons to rob the ornaments of Ghisi and gang rape her. Act of Raju in absconding from the scene for over a month also established his guilt and ruled out hypothesis of innocence. We however find ourselves unable to place reliance on the evidence of extra judicial confession made by accused Ranjeet because at the time when Ranjeet allegedly made confession he was in police custody. It is only against appellant Raju that various links have been satisfactorily made out and Raju did not offer any explanation consistent with his innocence, the absence of such explanation itself is an additional ink which complete the chain. In the ultimate analysis we find that the evidence adduced by the prosecution created a network through which there is no escape for the appellant Raju because the facts taken as a whole do not admit of any inference but of his guilt. The prosecution although established that in the conspiracy some other persons were also involved but it could not be proved beyond a reasonable doubt that appellants Ranjeet, Ramesh and Keshav Das were those persons. For these reasons, we dispose of instant appeals in the following terms: (i) The appeal preferred by appellant Raju Ram @ Raju being devoid of merit stands dismissed. The finding of conviction and sentence under Sections 120-B, 364, 302/34 and 394 IPC arrived at by the learned trial Judge are maintained. Appellant Raju Ram @ Raju is on bail. His bail bonds are cancelled and he shall be forthwith taken into custody. (ii) We allow the appeal of appellants Ramesh, Keshav Dass and Ranjeet and set side their conviction and sentence under Section 120-B, 302 read with 34, 364 read with 34 and 394 IPC. Appellant Ranjeet is on bail. He need not surrender and his bail bonds stand discharged. Appellants Ramesh and Keshav ass, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case. . ;