CHAUHAN, J. - (1.) SINCE both these appeals challenge the judgment dated 7. 8. 2003 passed by the Additional Sessions Judge, Fast Track, Laxmangarh, District Alwar, these appeals are being decided by this common judgment.
(2.) THE discovery of the dead body of Sarfudeen, the alleged recovery of few articles from the appellants, their conviction for offence under Section 302/34 and 120-B of Indian penal Code (for short, `ipc') forms the background of this case. For the offence under Section 302/34 IPC, the appellants have been sentenced to life imprisonment and have been imposed with a fine of Rs. 500/- each and in default to further undergo six months of rigorous imprisonment. For offence under Section 120-B IPC, they have been sentenced to ten years of rigorous imprisonment and have been imposed with a fine of Rs. 500/- each and in default to further undergo six months of rigorous imprisonment. According to the prosecution, on 7. 5. 2002 at 10:30 AM, the Circle Officer, Laxmangarh gave a telephonic information to the Station House Officer (for short, `sho'), Laxmangarh informing him that in the jungle of village Kajota, a dead body is lying. He directed the SHO to reach the spot. On this information, SHO, Ramesh Singh Tanwar (PW. 18), alongwith other police personnels, reached the jungle. At the site, a written report (Ex. P/6) was submitted by Sharif Khan to the police, wherein he claimed that "on 5. 5. 2002 in between 9:00-10:00 AM his brother, Sarfudeen, left for Alwar. Yesterday on 6. 5. 2002 around 7:00 PM one Mr. Sunil S/o Banwari, resident of Kajota, had seen his brother in Baran coming towards the village on foot. On 7. 5. 2002 in the morning at about 9:00 AM, Syaboo S/o Badlu came to his house and informed him that a dead body is lying in his field. " On the basis of this report, "mrig" FIR No. 5/2002 was registered under Section 174 of the Criminal Procedure Code (for short, `cr. P. C. ' ). Subsequently, after the post-mortem of the dead body, a formal FIR, FIR No. 112/02 was chalked for offence under Section 147, 302 and 120-B IPC. After completing the investigation, the police filed a charge-sheet against the appellants for offences under Section 302 and 120-B IPC. In order to prove its case, the prosecution examined twenty witnesses and submitted forty documents. Although, the statement of the appellants were recorded under Section 313 Cr. P. C. , but they did not produce any witness in defence. After going through the oral and documentary evidence, the appellants were convicted and sentenced as aforementioned. Hence, these appeals before this Court. When the first appeal was taken up for hearing, it was noticed by this Court that Aashik Illahai @ Happaji @ Mullaji, a co-accused, who was also convicted and sentenced as the appellants, Taju Khan, Huru and Kishori, had not filed any appeal. Therefore, the Superintendent, Central Jail, Bharatpur was directed to inform this Court whether a criminal appeal had been filed by Aashik Illahai @ Happaji @ Mullaji through the jail or not. Subsequently, the second appeal was received in this Court. Vide order dated 9. 10. 2007, Mr. K. A. Khan, who was already representing the three appellants in D. B. Criminal Appeal No. 1270/03, was appointed as an amicus curiae on behalf of Aashik Illahai @ Happaji @ Mullaji. Mr. K. A. Khan, the learned counsel for the appellants and the learned amicus curiae, has raised the following contentions before this Court: firstly, the case is based entirely on circumstantial evidence. But, the chain of circumstances is incomplete. The circumstances do not unerringly point towards the guilt of the appellants. Secondly, the entire case rests on the testimony of Taiyab (PW. 4), who has been produced by the prosecution to prove the fact of ``last seen''. However, Mr. Taiyab is an unreliable witness. Therefore, the conviction cannot be based on his testimony. Thirdly, the other witnesses namely Mr. Sahab Din (PW. 10), Mr. Ajamat (PW. 12), Mr. Naseeb (PW. 13) and Mr. Nuroo (PW. 14) are all related witnesses. Therefore, their evidence needs to be accepted with due caution. Fourthly, although the prosecution has claimed through Mr. Sahab Din (PW. 10), Mr. Ajamat (PW. 12), Mr. Naseeb (PW. 13) and Mr. Nuroo (PW. 14) that Aashik Illahi, otherwise also known as Mullaji had made an extra judicial confession before these witnesses, but, the same cannot be accepted. Lastly, the recoveries have not been proven by independent witnesses. Therefore, the recoveries do not connect the appellants to the alleged crime.
(3.) ON the other hand, Mr. Suresh Dhanwal for Mr. Praveen Balwada, for the complainant, and Mr. B. N. Sandu, the learned Public Prosecutor for the State, have argued that Mr. Taiyab (PW. 4) is a reliable witness as he has clearly stated in his testimony that the deceased was last seen in the company of the appellants. Moreover, the recovery connects the appellants to the alleged crime and lastly all the circumstances narrated by the prosecution unerringly point to the guilt of the appellants. We have heard the learned counsels for the parties, have perused the impugned judgment and have examined the record. The principle for convicting a person in case of circumstantial evidence, by now, is well-settled. In the case of Trimukh Maroti Kiran vs. State of Maharasthra, (2006) 10 SCC 681, the Hon'ble Supreme Court stated the principle with regard to circumstantial evidence as under:- The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. ;