G.R.MOOLCHANDANI,J. - (1.) The appellant-accused persons have preferred separate appeals assailing the impugned judgment dated 23/01/2007 passed by Additional District and Sessions Judge (Fast Track), Anoopgarh, District Sriganganagar in Sessions Case No. 38/2005(20/05), whereby the appellants have been convicted and sentenced to life imprisonment, distinctly as under:- Under Section 302, 302/34 IPC Each of the accused has been convicted and sentenced for life imprisonment with a fine of Rs.5,000/- in default to pay, further to undergo one years simple imprisonment. Under Section 380 I.P.C. Each of the accused has been convicted and sentenced for three years rigorous imprisonment with a fine of Rs.1,000/- in default to pay, further to undergo two months simple imprisonment. Under Section 450 I.P.C. Each of the accused has been convicted and sentenced five years rigorous imprisonment with a fine of Rs.2,000/- in default to pay, further to undergo six months simple imprisonment. Under Section 27 of Arms Act Accused Charanjeet Singh @ Chatra has been convicted and sentenced for three years rigorous imprisonment with a fine of Rs.1,000/- in default to pay, further to undergo two months simple imprisonment and another appeal No. 184/2007 filed by accused Rooplal alias Rupi v. State of Rajasthan got abated because of his demise and three appeals as detailed are being decided by this single order because of arising out of a solo judgment.
(2.) In nutshell, the factual matrix of the case is that on 10.12.2004 at about 10.45 p.m. one Narendra Kumar S/o Ramgopal Bagri, resident of Ward No. 12, near Vishkarma Temple, Anoopgarh, lodged an oral report with Police Station, Anoopgarh mentioning that he was working with Indian Gas Agency, Anoopgarh as a Manager. Surendra Kumar son of Ramswaroop Sharma, who his younger brother-in-law (Saadu), was running Mahesh STD/PCO shop in Ward number twelve and his family was residing in Ward number eight, on 10.12.2004, while his Saadu was there at his shop, Shiv Nandan Ojha informed him at about 1:30 PM, asking to go to PCO shop to take care of it, so he went to PCO Shop, on reaching there, he found Surender Kumar lying straight on the floor with his throat cut by sharp weapon and blood lying scattered, he touched him and found his body cool, who had since died. Shivdhan Ojha and Raja Ram were with him, belongings of the shop were lying scattered, PCO Machine was there, telephone and small radio were lying upon the counter with broken wires. Some stranger had killed Surender Kumar by inflicting sharp edged weapon injuries upon his neck and had stolen PCO Machine, his corpse is lying in PCO and on this information, a case was registered at crime No. 562/2004 under Sections 302 and 380 I.P.C. Post submission of charge-sheet, charges were framed against all the accused persons and trial was conducted, prosecution produced seventeen witnesses and exhibited 174 documents, during the evidence twenty two articles were exhibited, completion of the trial, culminated in convicting and sentencing the accused as dealt above.
(3.) Heard learned counsels for the appellants and learned Public Prosecutor, learned counsels for the appellants have argued that the prosecution has failed to establish its case beyond reasonable doubt despite the trial court has given wrong findings by convicting the accused persons. Recovery of PCO machine, said to have been made from a distant place, which too has been sealed and in absence of getting it properly sealed, the alleged impressions taken from the machine are of no use, so on the basis of alleged matching of finger prints accused-appellants cannot be connected with the alleged offence. Moreover, the arrest has been made after about five months of the incident and recoveries too have been made thereafter, so delay of five months makes the entire story of the alleged recovery fake and concocted, it has further been argued that the alleged incident has been said to have occurred during continuance of curfew, so it is improbable and unbelievable, as to how four persons allegedly equipped with alleged deadly weapons will come to a PCO from a far place and will commit offence during continuance of curfew, it is also probable to fetch the alleged stolen PCO machine and throwing it away in secluded premises, there is no eye witness at all. The case of the prosecution is based on circumstantial evidence, the links of circumstantial evidence are drastically missing, arrival of Gamdur Singh for obtaining the prints and moulds have also been established, so procurement of any such prints or moulds becomes false. It has also been submitted that there is no testimony, as to when the moulds and samples were taken after objection of FSL, which is enough to indicate fragmentation of link evidence. The prosecution has initially informed about the theft of PCO machine and nothing more was informed to have been stolen from the PCO premises, then recovery of PCO registers or any document relating thereto, becomes futile and has got no connection to convict the appellants. There is no motive at all and prosecution has failed to establish it. Moreover, recovery of the PCO registers is also stale, which has allegedly been made after lapse of five months from the date of occurrence and prosecution has proved nothing despite the learned trial court has convicted and awarded sentence to the accused-appellants on the basis of hypothesis. The prosecution witnesses and recovery witnesses are bogus and implanted. No independent witness has been taken by the prosecution, the FIR was lodged against anonymous 4 to 5 months later. The accused-appellants were arrested without any grounds and had the machine would have been stolen by alleged culprits, then wherefore, it would have been left abandoned and this fact is self-explanatory, which is capable to collapse the story of the prosecution. Learned counsels for the accused-appellants have taken support of following precedents namely:- (i) Mohd. Aman Babu Khan And Another v. State of Rajasthan - 1997 AIR SCC 777 (ii) Mal Singh and Anr. v. State of Rajasthan - 1995 Cr.L.R. (Raj.) 180 (iii) Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., Hyderabad - 2002 SCC (Cri) 1370 (iv) Durga Devi v. State of Rajasthan - 1992 Cr.L.R. (Raj.) 782 (v) Sharad Birdhichand Sarda v. State of Maharashtra - 1984 Cri.L.J. 1738 And have submitted that case of the prosecution is proved beyond bounds of reasonable doubt, so the appeal be accepted and the impugned judgment be set aside. On the other hand, learned Public Prosecutor has contended that the case of the prosecution is fortified by recovery, which has been made on the instance of the accused persons and there is no such flaw as alleged by the defence in the prosecution case. Weapons of assault have been recovered from the possession and on instance of the accused persons which have been found stained with human blood and PCO Machine has also got finger prints of one of the accused Jasveer, which have found to be matching and the chance foot moulds have also matched with specimen moulds, registers stolen from the PCO have also been recovered from the possession of the accused persons. The prosecution has completely succeeded in proving its case against the accused persons and the learned trial court has passed a correct judgment without any error whatsoever. The accused-appellants are heinous criminals, who have killed a young man and looted PCO, there is positive evidence against all the appellants, their appeals have got no force and same be dismissed. ;