KOTHARI, J. - (1.) THESE two appeals are directed against the judgment of Additional Sessions Judge No. 2, Sikar dated 7. 12. 2001 whereby appellants Hari Ram and Dayal Ram were convicted for the offence under Section 302 r/w Section 34 IPC and were sentenced to undergo life imprisonment and fine of Rs. 10000/- each; and in default of payment of fine to further undergo simple imprisonment for six months each.
(2.) THE unfortunate incident occurred on 25. 1. 2000 at about 6. 15 p. m. where as per FIR lodged with Police Station Raghunathgarh on 26. 1. 2000 by Bodu Ram to the effect that his younger brother Pyare Lal who came in bus towards Sikar side, his dead body was found in an agricultural field in Jodla Johda and when he went to the said agricultural field, he found the dead body of his younger brother Pyare Lal and there were several injuries on the body and around the neck was a tie of cloth and some unknown person has killed his brother and had thrown the dead body there. THE police investigated in the matter and the prosecution before the learned trial court produced 16 prosecution witnesses and 38 prosecution documents and the defence side produced 7 defence witnesses and 2 defence documents. THE learned Sessions Judge after holding the aforesaid trial, convicted the aforesaid two appellants and one of these appellants, Hari Ram is in jail and sentence of Dayal Ram was suspended on 15. 9. 2005. According to PW1 Madan Lal S/o Shri Nathu Singh/nathu Ram on 25. 1. 2000 when he came at the bus stand Goliyana at about 3. 00 p. m. in the afternoon, he saw Pyare Lal with appellants Hari Ram and Dayal Ram and all three were found in a drunken state and Hari Ram also asked him that from where he was coming and PW1 informed him that he had gone to Nangal for depositing his electricity bill and was coming back from there and thereafter the bus for village came and he went to his village and on the next day he came to know that Pyare Lal was found killed and he heard from various persons of the village that Hari Ram and Dayal Ram had killed him. The said witness has stated in his examination that there was enmity between Pyare Lal and Hari Ram for last 4 years because about 4-5 years ago, Pyare Lal had beaten up the father of Dayal Ram, Sultan and had also denuded him of his clothes and that was the cause of the said enmity. In his cross-examination, he stated that the said incident of father of Dayal Ram had occurred in front of him but since Pyare Lal had apologized at that time, no report was filed with the police station. In the later part of his cross, the said witness admitted that the grand father of himself and Pyare Lal deceased was same person Shri Chandra Ram and he also admitted that there was no enmity between Pyare Lal and Hari Ram and that Hari Ram was implicated in the matter because he was available at the spot. Mool Singh (PW 4) deposed before the court that on 25. 1. 2000 he was standing at Goliyana bus stand with his jeep where he was approached by appellant Dayal Ram and Hari Ram with a third person who was in more drunken state than the other two and Hari Ram asked him that they had to go for some marriage in Johda, Johda and, therefore, he may drop them in his jeep and he paid Rs. 100/- for the said drop. Hari Ram was sitting in the front seat of the jeep and Dayal Ram and said person were in the back side. During the transit on the way, Hari Ram abused Pyare Lal whereupon Dayal Ram stopped him for doing so. He said hat he was plying the jeep at the Goliyana bus stand for last 4-5 years. He knew Dayal Ram and Hari Ram very well as they had earlier also hired his jeep. In his cross-examination he admitted that the said third man was away from his vehicle about 40-50 yards and on account of the liquor influence, he was not able to walk properly and he was virtually lifted upto the jeep. On 26th evening he came to know that Pyare Lal had been murdered. He stated that he did not inform anybody at the police station or persons of village about the incident of 25th about dropping of the said three persons to Jodla Johda. As against the said version of the prosecution PW 4, PW 12 Sultan has stated that on 25. 1. 2000 he was also standing at the bus stand of the village around2. 00 P. M. When he found that Hari Ram, Dayal Ram and Pyare Lal had gone in the bus coming from Udaipur side towards Sethawali Pyau and all these three persons were inside the said bus. This version of these three persons going in the bus, is also supported by Bodu Ram (PW10) and Balbir (PW10) who has stated that he found these three persons at Sethawali Pyau under the influence of liquor. Ram Niwas Jat, I. O. (PW 13) gave entirely different version in his statement regarding the motive of the said crime to the effect that the deceased Pyare Lal had illicit relationship with the wife of the appellant Hari Ram and there was enmity between deceased Pyare Lal and also Dayal Ram about the incident of father of Dayal Ram. However, no further evidence about this angle of illicit relationship has come on record and no other prosecution witnesses supported this version.
(3.) THEREFORE, this case of the conviction of the appellants has been based mainly on the circumstantial evidence only and there was no eye-witness of the appellants having committed the said crime. Dr. Mahesh Chand Sharma (PW 6) who conducted the post- mortem, in his cross-examination has also stated that it is true that the lungs of a person may become congested on account of the over drinking and on account of such over drinking one can have loss of breath and it can also result in the death on account of excessive intoxication. In the post-mortem report (Ex. P 14), two doctors, Dr. Mahesh Chand Sharma and Dr. S. S. Sharma gave the cause of death as asphyxia due to strangulation (throttling) and both the lungs right and left were found to be congested. The law relating to the circumstantial evidence and conviction based thereon has been discussed by the Apex Court from time to time including the evidence of last seen. In Subhash Chand vs. State of Rajasthan ( (2002) 1 SCC 702), the Hon'ble Supreme Court held that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions". Between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict. The evidence of the Investigation Officer given in the court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him. This is necessary to exclude the likelihood of any innocent having been picked up and branded as a culprit and then the gravity of the offence arousing human sympathy persuading the mind to be carried away by doubtful or dubious circumstances treating them as of "beyond doubt" evidentiary value. In that case in a rape-cum-murder case while allowing the appeal of the accused, the court further held that in clue-less crimes, the ends of justice are not achieved merely by catching hold of the culprit, but the accusation has to be proved to the hilt in a court of law. Similarly, the Hon'ble Supreme Court in State of Rajasthan vs. Smt. Kamla (AIR 1991 SC 967) while upholding the judgment of High Court and dismissing the State appeal held that the High Court was right in holding, "that the deceased was last seen in the house of the appellant, though established on the record, by itself does not necessarily point to the guilt of the appellant in the absence of any other direct or circumstantial evidence regarding her complicity in the crime, especially when possibility of the deceased having fallen down from the wall of the house of the appellant and received the fatal head injury. " ;