CHAUHAN, J. - (1.) THIS appeal arises out of judgment dated 17. 9. 2002 passed by Additional Sessions Judge (Fast Track) Jhunjhunu, whereby the learned Judge has convicted the appellant for offences under Sections 302, 307 and 342 IPC. For offence under Section 302 IPC the learned Judge has sentenced the appellant to Life imprisonment and imposed a fine of Rs. 2,000/- and to further undergo a sentence of two months of simple imprisonment in default thereof. For offence under Section 307 IPC, the appellant has been sentenced to ten years of rigorous imprisonment and has been imposed with a fine of Rs. 500/- and to further undergo a term of fifteen days of simple imprisonment in default thereof. For offence under Section 342 IPC, the appellant has been sentenced to a simple imprisonment of six months and has been imposed with a fine of Rs. 100/- and to further undergo a simple imprisonment of seven days in default thereof.
(2.) THE brief facts of the case are that on 25. 4. 1998, one Mr. Shyam Sunder, (PW. 1) lodged a report (Ex. P. 8) wherein he claimed as under: On 25. 4. 1998, about seven O'clock, his neighbor, Yamuna Dutt s/o Ram Singh came to his farm and told him that he needs to take a jute bag ("bori") from his house to the road. Yamuna Dutt, therefore, needed his help. He accompanied Yamuna Dutt to his house. When I reached his house, Yamuna Dutt locked me in a room and took out a "lathi" (bamboo stick) and pulled out a pistol, which was concealed in his pajama, and asked me as to what is the relationship between his own wife and my tractor driver, Daluram. I told him that "i didn't have any idea about any relationship between the two. " He, thereupon, stuck me thrice with the `lathi' on my left foot and below the left shoulder. I pulled the "lathi" out of his hand and threw it away. He pulled the pistol and tried to shoot me. I grappled with him and threw him on the floor. He shot at me, but the bullet missed me. I tried to snatch away the pistol; he bit me on the right side of my chest. THE pistol fell from his hand and slipped under the bed in the room. I pushed him and ran to my house. Upon reaching my house, I informed my father. In my house, at that time, Mahendra's brother, Indraj was also sitting there. He told us that Yamuna Dutt had also taken his brother Mahendra to his house in the morning. THEreafter my father, Hanumanaram, my uncle Ram Kumar, Indraj and I went to the house of Yamuna Dutt. As we approached the house, we saw that Mahendra was running out of Yamuna Dutt's house. We heard a gun shot. We ran. Near his own well, Yamuna Dutt fired again on Mahendra. Mahendra ran and fell near Satya Prakash's house. We went to Mahendra, but he had become unconscious. We took him in Naurang Singh's jeep along with Indraj, Rajesh, Radhuveer, Sunil, Ram Pratap and my father. We took him to the Jhunjhunu hospital. Mahendra was injured on the right side of his chest and was bleeding. Yamuna Dutt has shot at Mahendra with an intention to kill him. On the basis of this report the police registered a formal FIR (Ex. P. 16), FIR No. 47/98, for offences under Sections 323, 307 IPC. However, with the death of Mahendra, the offence under Section 302 IPC was added. The appellant was eventually charged with offences under Sections 302, 307 and 342 IPC. In order to prove its case, the prosecution examined twenty-six witnesses and submitted nineteen documents. The defense, in turn, examined a single witness and submitted ten documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. Mr. S. K. Gupta, the learned counsel for the appellant, has raised a plethora of contentions before us; firstly, there is large number of lacunae in the prosecution story. According to the prosecution. Yamuna Dutt had come to the fields of Shyam Sunder and had taken him to his house. However, the prosecution has not explained as to when did Mahendra reach Yamuna Dutt's house. According to Indraj (PW. 14) and according to Shyam Sunder (PW. 1), Yamuna Dutt had taken Mahendra at 5:30 in the morning. Yet, when Shyam Sunder was at Yamuna Dutt's house and was confined there, there is no mention of Mahendra being there. Thus, the prosecution has failed to establish as to how Mahendra reached the house of the appellant. Secondly, according to Shyam Sunder, Indraj, the brother of the deceased, was with him when they went to Yamuna Dutt's house at 7:00 O'clock. According to Shyam Sunder, they both saw the alleged crime together. Yet, Indraj in his cross-examination admits that by the time they reached the deceased, the deceased had already fallen on the ground, and was bleeding. Thus, they are not eyewitnesses as they claim to be. Thirdly, according to these witnesses, the appellant chased the deceased. Hence, the deceased was running in front and the appellant was behind him when he allegedly fired the fatal shot. Yet, according to the Post Mortem Report (Ex. P. 11) (henceforth to be referred to as `the PMr', for short), the bullet entered from the front of the chest and not from the back. Moreover, both according to the trial left by the bullet inside the body and according to Dr. J. P. Bugaliya (PW. 8), the Medical Jurist, the assailant shot the deceased from a height as the bullet traveled diagonally downwards. However, the prosecution witnesses do not reveal this position. According to them, the deceased was running and so was the appellant when he allegedly fired at the deceased. Thus, both the assailant and the deceased were at the same level. Hence, the medical evidence contradicts the ocular evidence. Fourthly, the learned Judge has presumed that "the appellant was standing at the plinth level of his house when he fired the fatal shot. " However, the eyewitnesses claim that he was running and chasing the deceased. They further claim that the appellant shot the deceased near his well, which is away from the house. Therefore, the learned Judge has assumed a fact not warranted from the evidence on record. Fifthly, according to the PMr the deceased has sustained five other injuries, which were also ante-mortem in nature. But the prosecution has not explained those injuries. The learned Judge has merely assumed that the appellant must have assaulted the deceased prior to killing him. Thus, the impugned judgment is based on conjectures and surmises. Lastly, the prosecution has not established any motive for the alleged murder. On the other hand, Mr. M. L. Goyal, the learned Public Prosecutor has supported the impugned judgment. Mr. Dharamveer Tholia, the learned counsel for the complainant has also raised a number of contentions before us: firstly, it is a case of direct evidence. Therefore, merely because the prosecution has not proved the motive would not dilute the case of the prosecution. Secondly, a large number of witnesses have been examined as eyewitnesses. Their testimonies support each other. Moreover, their testimony is supported both by the Site Plan (Ex. P. 1) and by the PMR (Ex. P. 11 ). Hence, the prosecution has succeeded in establishing its case beyond a reasonable doubt. Lastly, the appellant had absconded for almost two and half years. His absconding for such a long time clearly proves his guilt. We have heard the learned counsels for the parties, have considered the impugned judgment and have examined the record.
(3.) UNDOUBTEDLY it is the duty of the prosecution to establish the guilt of the accused beyond any reasonable doubt. The prosecution must discharge this duty by producing convincing and cogent evidence. The distance between "may be true" and "must be true" is a long distance, which the prosecution must successfully traverse. In case the prosecution story is replete with gaps and contradictions, with improbable and inexplicable events, then no matter how strong the suspicion might be, but the conviction cannot be sustained. To convict a person on suspicion is not a legal conviction, but a moral one. Moral conviction is alien to our criminal jurisprudence. The cardinal principle of the Common Law is that every person is presumed to be innocent till proven guilty. Hence, it is for the State-the prosecution to prove his guilt. Merely showing the probability of the occurrence does not discharge such a burden. The prosecution must stand on its own strong wicket. Shyam Sunder (PW. 1) is the complainant in this case. According to him, the appellant had come to him at his farm and asked for help in carrying a mustard jute bag ("bori") from his house to the road. He had gone with the appellant to the appellant's house. There the appellant confined him in a room and asked about the relationship between his own wife and the witness' driver, Daluram. When the witness told him that he knew nothing about it, the appellant assaulted him first with a "lathi" (bamboo stick) and then fired a shot at him with a pistol, which missed him. He fought with the appellant. The appellant bit him on his chest. He rushed out of the room and made his escape good. He ran to his house, informed about the incident to his father, his uncle and the brother of the deceased Mahendra who was sitting there. All of them walked towards appellant's house as Indraj, Mahendra's brother, told them that in the morning the appellant had taken Mahendra with him to his house. As soon as they reached near the appellant's house, they heard a gun shot. They saw Mahendra running from the appellant's house and the appellant was chasing him. Mahendra was running in front and the appellant was behind him. Near the well, the appellant again shot Mahendra, Mahendra was struck and he ran towards the house of Satya Prakash, where he collapsed. The witnesses rushed towards him and took him to the Jhunjhunu hospital in a jeep. He further claims that after the incident, he went to Yamuna Dutt's house and stayed there. Yamuna Dutt came back to his house and ran away after five to ten minutes of staying there. According to the said witness, the appellant was not seen for about two and a quarter years. In his cross-examination he admits the contradictions pointed out in his statement given under Section 161 of the Criminal Prosecution Code (Ex. D. 1 ). He, however, donies the fact that he and the appellant's wife had an illicit affair. He also donies that it is he who has killed the deceased. ;