K. BHATNAGAR, J. - (1.) THIS appeal is directed against the judgment dated 27. 5. 76 passed by the learned Addl. Sessions Judge, Jalore. By that judgment, the learned Judge convicted the appellant Jessa and Kaliya for offences under section 302, 392, 201 read with section 34 I. P. C. They were each sentenced to imprisonment for life and a fine of Rs 1000/- in default to undergo six month's rigorous imprisonment on the first count, five years' rigorous imprisonment and a fine of Rs 500/-, in default to undergo three months' rigorous imprisonment on the second court and three year's rigorous imprisonment and a fine of Rs. 500/-, in default to undergo three months' rigorous imprisonment on the third count with a further order that the substantive sentences awarded to both the appellants for all the offences shall run concurrently.
(2.) BRIEFLY stated the facts of the case giving rise to this appeal are as under- On 3. 6. 75 in the evening, the deceased Surtiya had gone from his house to Railway station Gadara Road. As he did not return, his mother Mst. Dheli (P. W. 8) started searching him and was informed by P. W. 4 Durga that he had seen Surtiya in the company of Kaliya. Mst. Dheli went to the house of Jessa, father of Kaliya Jessa and Kaliya were not there. She again went in the night to the house of Jessa to find out as to whether Kaliya had returned or not. Kaliya and Jessa were not available. She then informed Faras Ram (PW. l) about Surtiya missing. She also informed Faras Ram that Durga had told that Kaliya and Surtiya were seen together in the evening at Gadara Road, Railway station. P,w. 4 Durga and Mst. Dheli went to the house of Jessa. On interrogation Kaliya informed that he, of course, had seen Surtiya in the evening at the Railway station but had parted thereafter and he returned to his house, On 5. 6. 75, Faras Ram went to police station Gadara Road and lodged the report. It was mentioned in the report that there is suspicion against Jessa and Surtiya because they were not giving the correct information. It was also mentioned in the F. I. R. that Surtiya was wearing golden murkis (ear rings ). F. I. R. Ex. P/l was recorded on 5. 6. 75 at 2. 15 p. m. at the instance of Faras Ram. Investigation was entrusted to Bheru Singh, Head Constable by the Deputy S. P. , Barmer. It being night time, Bheru Singh did not proceed for the investigation on that day. He on 6. 6 75 went to village Gadara for investigation. During the course of investigation, it was revealed that Surtiya deceased was wearing golden murkis weighing half tola, and that on 3 6. 75. Surtiya was seen going with Jessa and Kaliya, towards Buthiya bera. Kaliya and Jessa were arrested on 6. 6. 75 vide memos Ex, 4 and 5 respectively. While under arrest, Jessa furnished information to the S. H. O. for getting recovered the dead body of Surtiya from Buthiya bera (well ). Jessa and Kaliya were taken to buthiya well. Hasam (P. W. 5) was asked to bring out the dead body of Surtiya from the well. Hasam descended in the dry well and brought out the dead body of Surtiya. Jessa also pointed the place where Surtiya was done away with. The S. H. O. prepared the site memo of the place. On the same day, Kaliya also furnished information Ex. P/l4 for getting recovered the golden murkis from beneath the bamboo hedge near the public tube well. Bheru Singh, Investigating Officer, took Kaliya to that place. Kaliya dug the ground near the public tube well and took out the golden murkis. The murkis were got weighed. The weight was half tola. Identification parade for murkis was conducted by Judl. Magistrate. Balotra, Smt. Kusum Bhandari (P. W. 11 ). Smt. Dheli mother of the deceased Surtiya identified murkis Ex. 1 to be those which his son was wearing. Upon completion of necessary investigation, charge sheet against the two appellants was filed in the Court of Magistrate, Balotra. The learned Magistrate finding it a case exclusively triable by the Court of Sessions, committed the case to the Court of Sessions. The learned Sessions Judge charge sheeted the appellants under sections 302, 392, 201, 369 read with section 34 I. P. C. and recorded their plea. Both the appellants denied the charges and claimed to be tried. To substantiate its case, prosecution examined 14 witnesses in all. Both the appellants in their statements u/s 313 Cr. P. C denied the allegations levelled against them Kaliya stated that there was a rumour about Surtiya's dead body in buthiya well and, therefore, he told this fact to his father. Jessa stated that as he was told by his son Kaliya about Surtiya's dead body being in buthiya well, he told the police about it. The learned Sessions Judge placed reliance on the prosecution witnesses and passed the judgment under appeal. We heard Mr. N. N. Mathur, the learned counsel for the appellants and Mr. S. K. Mathur, learned Public Prosecutor for the State and carefully examined the record of the case.
(3.) AT the very outset, it may be observed that the prosecution case solely rests on the circumstantial evidence. Mr. N. N. Mathur, learned counsel for the appellants strenuously contended that the only evidence against the appellants is their being last seen with the deceased on 3 6 75. Regarding the circumstance of recovery of the dead body in pursuance of the information of the appellant Jessa from buthiya well, the submission is that the well was at a place where all and sundry could have gone and if the dead body had remained in that well for three days, it could not have missed the sight of the persons, who might have passed that way during that period. Regarding the recovery of the murkis, it has been argued that the public tube well was at an open place and as that place was accessible to all and the recovery loses its importance. Controverting these contentions, Mr. S. K. Mathur. learned Public Prosecutor submitted that there is ample evidence on record to prove that Kaliya and Jessa were seen in the evening of 3. 6. 75 in the company of Surtiya. Reference has been made by the learned Public Prosecutor to the conduct of the appellants in avoiding the queries by Smt. Dheli and Faras Ram when they had gone to their house in search of Surtiya. Regarding the recovery of the dead body in pursuance of the information and at the instance of Jessa appellant, the argument of the learned Public Prosecutor is that the well was dry, deep and situated at a place where it could not have been easy of anybody to find out the dead body. Similarly, importance has been attached to the information of Kaliya regarding the recovery of the murkis proved to be belonging to the deceased Surtiya. Regarding the circumstance of the appellants having been seen last in the company of the deceased, it is to be noted that Durga (PW. 4) has clearly stated that when he had gone to the station to see off his wife on 3. 6. 75, he had seen Surtiya and Kaliya there. The next link of this circumstance is the statement of Narain (P. W. 3) This witness has stated that he had gone to see off his brother-in-law at the station He corroborates Durga on the point that Surtiya and Kaliya were at that time at the police station. This witness has stated that next day he had told Prabhuda and Faras Ram that he had seen Kaliya and Surtiya at the station on the previous evening. Mayajal (P. W. 7) has stated that he had met Kaliya and Surtiya on their way towards buthiya well in the evening of the day of the occurrence. Matara (P. W. 6) is the witness, who has claimed to have seen both the appellants in the company of Surtiya in the evening of Surtiya missing. According to this witness, at a distance of about 200 yards from buthiya bera, he had seen those three persons when he (the witness) was returning from village Makuri to village Gadara. According to this witness, on enquiry, from Jessa as to where he was going, he informed that they are going to cut the wood. All these four witnesses have been cross-examined at length and there is nothing to infer that the witnesses were inclined to falsely implicate the appellants. Another link in the prosecution case is the statement of Prabhu (P. W. 2 ). Prabhu has, of course, not claimed to have seen the appellant with Surtiya on the relevant date but has stared that he had seen Jessa and Kaliya, father and son, going to their house in the mid night when the witness had gone outside the house to ease himself. There is, thus, sufficient evidence to prove that the deceased Surtiya was last seen in the company of Jessa and Kaliya appellants. It is also evident from the statement of Matara and Mayajal that when they saw those three persons, they were proceeding towards buthiya bera. We agree with the learned counsel for the appellants that circumstance of the deceased having been seen last in the company of the accused, is a very weak circumstance and in itself, may not always be taken to be sufficient to record conviction, In this view of the legal position, we carefully examined the other circumstances brought on record against the appellants to make out whether it would be safe to uphold their conviction. ;