- (1.) THE appellants, three in number, were indicted before the learned Additional Sessions Judge (Fast Track) No. 1 Bundi in Sessions Case No. 314/2001. Learned Judge vide Judgment dated December 20, 2003 convicted and sentenced the appellants as under:- u/s. 302 IPC: Each to suffer life imprisonment and fine of Rs. 2000/-, in default to further suffer three months simple imprisonment. u/s. 201 IPC: Each to suffer rigorous imprisonment for five years and fine of Rs. 1000/-, in default to further suffer one month simple imprisonment. u/s. 120-B IPC: Each to suffer rigorous imprisonment for five years and fine of Rs. 2000/-, in default to further suffer three months simple imprisonment. Substantive sentences were directed to run concurrently.
(2.) ON September 1, 2000 stark named dead body of Shree Lal got recovered from machhli River by Police Station Dei District Bundi. A case under sections 302 and 201 IPC was registered and investigation commenced. Statements of witnesses under Section 161 Cr. P. C. were recorded, dead body was subjected to autopsy, necessary memos were drawn and the appellants were arrested. 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) No. 1 Bundi. Charges under sections 302, 201 and 120b IPC were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr. P. C. , the appellants claimed innocence. Four witnesses in defence were examined. Learned trial Judge on hearing final submissions observed that although there was no eye witness of the occurrence, the prosecution was able to establish the guilt of the appellants by circumstantial evidence. Since the chain of circumstances was found complete, the appellants were convicted and sentenced as indicated above. We have heard the submissions and scrutinished the record. The first circumstances found established by the learned trial court against the appellant was that death of Shree Lal was homicidal in nature. We find no infirmity in this observation. As per post mortem report (Ex. P. 5) following ante mortem injuries were found on the dead body:- 1. Incised wound 1/2 x 1/4 x 1/2 at back 7'' below the nape of neck situated at 1/2 left side of vertebral column 2. Incised wound 1 x 1/4 x 1/4 at right side of back 1'' below the scapula 3. Incised wound 1/2 x 1/4 x 1/4 at right side of back 4'' below the scapular 4. Abrasion 2'' x 1 1/2 at right side of back 1 1/2 below the scapula 5. Abrasion 2'' x 1 1/2 at right buttuck 6. Abrasion 3/4 x 1/4 at medial side of left elbow joint 7. Abrasion 1 x 3/4 at medial side of right elbow joint 8. Abrasion 1/4 x 1/8 at forehead 1 1/2 above the right eye brow 9. Abrasion 1 1/2 x 1/8 at left side of forehead 1 1/4 above the eyebrow 10. Incised wound 1 x 1/8 x 1/8 at right nostril. 11. Lacerated wound 1/4 x 1/8 x 1/8 at right ear lobule 12. Lacerated wound 1/2 x 1/4 x full thickness at left ear lobule. 13. Incised wound 1/2 x 1/4 x 1/4 at left cheek. 14. Incised wound 1/4 x 1/4 x 1/8 at left side of face 1 1/2 below the injury No. 13. 15. Incised wound 3/4 x 1/2 x muscle deep at left side of chest 4'' below the nipple. 16. Stab wound 3/4 x 1/2 x cavity deep left side of abdomen 6'' below the nipple. 17. Stab wound 3/4 x 1/2 x cavity deep at left side of abdomen 8'' below the nipple. 18. Incised wound 3/4 x 1/2 x muscle deep at right side of chest 4'' below the nipple. 19. Stab wound 3/4 x 1/4 x cavity deep at right hypochondric region of abdomen. 20. Stab wound 3/4 x 1/4 x cavity deep at right hypochondric region of abdomen 1'' medially away from injury No. 19. 21. Incised wound 3/4 x 1/4 x muscle deep at epigastic region of abdomen 1 1/4 medially away from injury No. 20 at same lane 22. Incised wound 1/2 x 1/4 x muscle deep at epigastic region of abdomen 1/4 medially away from injury No. 21 at same lane above the umblicus. According to Dr. A. K. Saxena (PW. 3) the cause of death was internal hemorrhage. Second circumstance against the appellants was that they were last seen in the company of the deceased. Two witnesses viz. Harpal (PW. 11) and Ram Chandra (PW. 13) have been examined by the prosecution to establish the circumstance of last seen. Harpal, brother of deceased Shreelal in his deposition stated that appellants Badri s/o Tej Mal and Kamlesh came to his house at village Bamangaon and asked Shreelal to accompany them since they wanted to make payment of money borrowed by them from Shreelal. Shreelal then accompanied them from village Bamangaon to Nainwa. In his cross examination Harpal deposed that since he did not accompany Shreelal, he did not know as to at which places Shree lal visited- ;g ckr lgh gs fd cke. k xkao ls tc esjk Hkkbz Jhyky x;k rc esa vksj esjs firkth Jhyky ds lkfk ugha x;sa fqj Jhyky dgka dgka x;k eqks irk ughaa Ranchandra father of deceased Shreelal stated that- esjs ymds Jhyky dks cnzh deys'k vksj nwljk cnzh cqykdj ys x;s Fks vksj dgk Fkk fd rsjs isls nsaxsa mldks cqykdj usuok ys x;s Fks fqj pksfks fnu rks gekjs lekpkj gh vk x;s fd rqegkjk Jhyky ykec cjmk dh unh esa ejk imk gsa It is well settled that circumstance of last seen can be taken into consideration when it it established that the time gap between the point of time when the accused and the deceased is such that possibility of any other person being with the deceased could completely be ruled out. The Apex Court in State of Goa vs. Sanjay Thakran JT 2007 (5) SC 146 indicated in para 29 thus- ``29. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. In the instant case even if we place reliance on the testimony of Harpal and Ram Chandra that the deceased and the appellants had gone together from village Bamangaon to Nainwa, the possibility of any other person meeting the deceased in the intervening period cannot be ruled out. The time gap between the appellants seen in the company of the deceased and the recovery of dead body is four days. During the period of four days it was quite possible that some other person came into contact with the deceased. Deceased relations with his inlaws were strained as has been admitted by Harpal in his cross examination thus- Jhyky dh ,d vksjr dk uke dkyh Fkk tks ukrs pyh xbz Fkh fqj Jhyky nwljh vksjr yk;k Fkk tks Hkh ukrs pyh xbz-- ;g ckr lgh gs fd Jhyky viuh iruh dks ysus tkrk Fkk vksj og ugha Hkstrs Fksa bl ckr dk buds chp kxmk pyrk Fkk-- ;g ckr lgh gs fd usuok esa Jhyky ds fo:) ekjihv dk eqdnek ugha pyk] ekjihv vo'; gqbz Fkha
(3.) WE thus find that evidence of last seen adduced by the prosecution could not clinchingly fasten the guilt on the appellants. That takes us to another circumstance of recovery of earings of the deceased at the instance of appellant Badri s/o Tejmal. In order to establish recovery of earings, the prosecution examined Ram Niwas ASI (PW. 15 ). In his deposition Ram Niwas stated that pursuant to the information given by Badri he had gone to the house of Mangilal (maternal uncle of Badri) and got recovered golden earings weighing 10 gms. 800 miligrams vide recovery memo Ex. P. 6. In his cross examination Ram Niwas however admitted that the earnings recovered by him did not have any specific mark and they could be belonged to some other person also. Neither he got the earings identified nor he recorded statement of witnesses in this regard. He deposed as under- ;g lgh gs fd tks eqfdz;k cjken dh os fdlh vksj dh Hkh gks ldrh gsa eqfdz;k dk dksbz [kkl fu'kku ugha Fkka bldh f'kuk[rxh Hkh ugha djokbz Fkha ;g lgh gs fd eqfdz;k ;g lgh gs fd eqfdz;k fdldh Fkh bl laca/k esa esaus fdlh xokg dk c;ku ugha fy;ka From the statement of Ram Niwas it does not appear that in order to effect the recovery of earings he took appellant Badrilal with him to Jaipur. Ram Niwas who alone had gone to Jaipur did not seek assistance of any police station of Jaipur and he of his own contacted Mangi Lal and recovered golden earings. It also appears that golden earings were not produced alongwith the charge sheet before the trial Court. Who kept those golden earings is a subject matter of inquiry. Learned trial Judge did not look at the material on record from this angle. Learned trial Judge drew adverse inference against appellant Badri s/o Tejmal under section 114 (a) of the Evidence Act on the ground that Badri had absconded after the incident but while drawing such inference evidence of Harpal escaped notice who in his cross examination stated that on the day when dead body was recovered the appellants were present in their houses- ;g ckr lgh gs fd ftl fnu esjs Hkkbz Jhyky dh yk'k feyh ml fnu lhkh eqyfteku eqks fey x;s Fks] tks vius ?kjksa ij Fksa It is no doubt true that one ear lob of the deceased was found cut but the prosecution has failed to establish beyond reasonable doubt that it were the appellants who removed the earings. The evidence of recovery of knife and T-shirt is also not qualitative and it cannot be used for convicting the appellants. In absence of FSL report it can not be presumed that the knife and T-shirt were stained with human blood. In the ultimate analysis we find that chain of circumstantial evidence is not complete and the circumstances established by the prosecution are not consistent with the guilt of the appellants and incosnsistent with their innocence. ;