- (1.) SO close was the trap to the nest that Kalu Ram was caught unaware and done to death. Lala Ram @ Jitendra, appellant herein, and his brother Chhote Lal were indicted for committing murder of Lala Ram before learned Additional Sessions Judge (Fast Track) Alwar, who vide judgment dated February 26, 2003 did not find the charge against Chhote Lal established and acquitted him. The appellant was however convicted and sentenced as under:- U/s.302 IPC: To suffer life imprisonment and fine of Rs.5000/-, in default to further suffer rigorous imprisonment for one year. U/s.3/25 Arms Act: To suffer rigorous imprisonment for three years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for three months. Substantive sentences were ordered to run concurrently.
(2.) THE synopsis of the prosecution case can be narrated as follows:- On December 19, 2001 around 2.30 PM while Kalu Ram (deceased) was at his home and his wife Suman was about to serve him lunch, Lala Ram (appellant) came on a motor cycle and persuaded Kalu Ram to immediately accompany him since there was some emergency. Kalu Ram leaving served food on the plate, accompanied Lala Ram. After a short while a boy of Vyas community came running and informed the wife of Kalu Ram that Kalu Ram was lying dead in the `Kothri' (store room) of Lala Ram. Wife of Kalu Ram then rushed to the Kothri and found dead body of Kalu Ram in a pool of blood on the floor whereas Katta (country made pistol) allegedly used in commission of offence, was lying on the cot. Information of the incident was communicated to Mool Chand, brother of the deceased, who was posted as Constable at Police Line Alwar. Mool Chand reached to the Police Station Malakhera (Alwar) and submitted written report (Ex.P-8) to SHO at 5 PM. On that report case under section 302 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, accused 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 (Fast Track) Alwar. Charges under sections 302 IPC and 3/25 Arms Act were framed against the accused, who denied the charges and claimed trial. THE prosecution in support of its case examined as may as 23 witnesses. In the explanation under Sec.313 CrPC, the accused claimed innocence. Two witnesses in support of defence were examined. Learned trial Judge on hearing final submissions while acquitting co-accused Chhote Lal convicted and sentenced the appellant as indicated above. We have heard rival submissions and weighed the material on record. A look at the impugned judgment demonstrates that learned trial court while convicting the appellant has placed implicit reliance on the following circumstances:- (i) Deceased was last seen alive in the company of appellant. (ii) Within half an hour thereafter dead body of deceased was found lying in a pool of blood in the Kothri belonging to appellant and his brothers. (iii) Appellant did not give any explanation as to at which point of time, prior to the death of deceased, he got himself detached from the deceased. (iv) Appellant also did not explain as to at which place he took the deceased on Motor Cycle and what was such urgency which forced him to persuade the deceased to accompany him. Evidently, there is no ocular evidence and the case of the prosecution is based on circumstantial evidence. It is well settled that in order to convict a person on circumstantial evidence the circumstances must be fully established and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistence with the innocence of the accused. Learned counsel for the appellant vigorously urged before us that the circumstances relied on by the prosecution have not been satisfactorily established and that in any event the circumstances said to be established against the appellant do not provide a complete chain to bring home the guilt against the appellant. He vehemently submitted that since the report of the incident drawn by the villagers was torn by Constable Mool Chand (Pw.4), real brother of deceased, the fact of institution of report itself was shrouded in mystery. It was further canvassed that trial court committed illegality in ignoring the testimony of Rameshwar (Dw.1) who was an independent witness. It was also urged that the medical evidence gives rise to the presumption that the deceased might have committed suicide. Learned counsel raised following questions before us:- (i) Whether the death of deceased was homicidal in nature? (ii) Whether there was any evidence of last seen, just before the incident? (iii) Whether Lala Ram was the owner of the kothri? (iv) Whether Lala Ram was in the exclusive possession of the said Kothri? (v) Whether the weapon desi katta belonged to the appellant? (vi) Whether it was possible to open fire at a distance of one feet to another person's face more specifically to the eye and the deceased person got no time to save his face? (vii) Whether the chain of circumstances got broken in not lifting finger prints from the fire arm? (viii) Whether the chain of circumstances got broken in not recovering the blood stained clothes and shoes of the appellant? (ix) Whether the chain of circumstances got broken in absence of motive behind the incident? (x) Whether there was any evidence of resistance by the deceased? (xi) Whether Section 106 Evidence Act could be pressed into service when other circumstances are not proved by the prosecution? (xii) Whether the chain of circumstances was broken in not lifting moulds? (xiii) Whether the chain of circumstances got broken in the absence of explanation of the heavy blood on the cot? (xiv) Whether the incident was more suggestive of accidental death? (xv) Whether the chain of circumstances got broken in not examining the boy of Vyas Community who informed about the incident to the wife of deceased? (xvi) Whether the case of appellant is not distinguishable with that of the case of co-accused Chhote Lal?"
(3.) HAVING regard to the principles enunciated with regard to proof of guilt by circumstantial evidence, we shall now deal with the various circumstances said to be appearing against the appellant and at the same time examine the contentions advanced by the learned counsel for the appellant referred to above. EVIDENCE OF LAST SEEN: Coming to the circumstance that the deceased was last seen alive in the company of appellant we notice that the prosecution examined Suman (Pw.3), wife of deceased, Chando Devi (Pw.5) Bhabhi (sister-in-law) of the deceased and Pyari Devi (Pw.6) mother of deceased. Conjoint reading of the statements of these witnesses revealed that on the date of incident around 2.30 PM while Kalu Ram was about to take food, the appellant and his brother Chhote Lal came on a motor cycle and created such a situation that Kalu Ram hurriedly accompanied them in a hunger state and within half an hour thereafter Kalu Ram was shot dead and his dead body was found in a pool of blood in the `Kothri' belonging to Lala Ram and his brothers. It was also stated by these witnesses that on hearing the message about the death of Kalu Ram when these witnesses went to the `Kothri' they found Lala Ram and Chhote Lal standing outside the Kothri. Testimony of these witnesses could not be shattered in the cross examination. Since in the police statement Ex.D-1 Suman stated that Lala Ram came alone on motor cycle, learned trial court gave benefit of doubt to Chhote Lal and acquitted him. In order to appreciate the contention of learned counsel we have closely scrutinised the testimony of Mool Chand. It is no doubt true that Mool Chand was the brother of deceased and at the relevant time he was posted as Constable in Police Line Alwar, but this fact itself cannot be a ground to discard his testimony. Mool Chand in his cross examination deposed that he received information about the incident at 2.30 PM and within twenty minutes he reached to the police station Malakhera on motor cycle. Leaving motor cycle at police station he along with the SHO reached to the spot in a Jeep. Having carefully weighed the testimony of Mool Chand, we find that nothing helpful to the appellant could be extricated. Even Mool Chand was not cross examined on the issue that the villagers wrote the report of the incident and that Mool Chand torn it. Whatever Mool Chand did on hearing the news of murder of his brother was quite natural and it cannot be held that the report submitted by Mool Chand was shrouded in mystery. ;