SHARMA, J. - (1.) THIS is a classic case of haphazard investigation. It is clearly a matter of great concern that the Investigating Officer did not become alive to the situation and implicate an innocent person Bhanwar Lal @ Bhanwara (appellant herein), who was ultimately put to trial before learned Additional Sessions Judge (Fast Track), No. 1, Jhunjhunu. Learned Judge vide judgment dated June 20, 2004 convicted and sentenced the appellant as under:- U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 2000/- in default to further suffer simple imprisonment for two months. U/s. 201 IPC: To suffer rigorous imprisonment for seven years and fine of Rs. 1000/- in default to further suffer simple imprisonment for one month. Sentences were ordered to run concurrently.
(2.) AS per the prosecution story Natthu Khan (since deceased) and Mahaveer Chamar were close friends. On July 8, 2002 at 11 PM Bhanwara son of Mahaveer Chamar came to the house of Natthu Khan and asked Natthu Khan to accompany him. Natthu Khan while leaving his house told his family members that he would return on the next day but he never returned back. On July 9, 2002 a dead body was found in the Bada of Chandgi Ram, which was subsequently identified as of Natthu Khan. A written report (Ex. P-43) thereafter was handed over by Shamshad Ali s/o Natthu Khan (Pw. 11) at Police Station Bisau with the averments that it was Bhanwara son of Mahaveer Chamar, who took Natthu Khan with him and killed him with the help of his family members. On that report, case under sections 302 and 201 IPC was registered and investigation commenced. Necessary memos were drawn and statements of witnesses were recorded. The appellant was 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) No. 1 Jhunjhunu. Charges under sections 302 and 201 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Sec. 313 Crpc, the appellant claimed innocence and stated that he was falsely implicated in the case. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. We have heard the submissions advanced before us by learned counsel for the appellant and learned Public Prosecutor and with their assistance scanned the material on record. There is no ocular version of the incident and the prosecution entirely based its case on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decisions of Supreme Court. According to that standard the circumstances relied upon in support of conviction must be fully established and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime. Having regard to these principles enunciated with regard to the proof of guilt by circumstantial evidence we shall now examine as to whether the circumstances relied upon by the prosecution are fully established and the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the appellant. The prosecution has established that death of Natthu Khan was homicidal in nature. Vide postmortem report (Ex. P-2) following antemortem injuries were found on the dead body:- 4cm Horizontal incised wound at Rt. submandibular region present. 4. 5cm incised wound Horizontal 3cm below submandibular region. 7cm incised wound in Lt. lateral aspect of neck going post view present with blood. 6cm incised wound with presence of blood muscle deep on middle part of neck at infra scapular region. 9 cm incised wound on middle part of back of scapular region. Dr. Pramod Bajoriya (Pw. 16), who performed autopsy on the dead body, opined that cause of death was head injury.
(3.) LEARNED trial court in the impugned judgment found following circumstances established against the appellant:- (i) Appellant and the deceased both had illicit relationship with the wife of Mahaveer Chamar. Appellant had threatened to kill the deceased if he would continue the said relationship. (ii) Gandasi, allegedly used in commission of offence, got recovered at the instance of appellant. (iii) Shirt, worn by appellant at the time of incident, also got recovered at the instance of the appellant. (iv) Appellant was seen chasing the deceased by Inayat Khan (Pw. 9) and Aslam (Pw. 18 ). Turning to the first circumstance we find that there is nothing on record to establish that the appellant had illicit relationship with the wife of Mahaveer Chamar. Hari Singh (Pw. 12), who investigated the case, neither examined Mahaveer Chamar nor Bhanwara Chamar to prove the fact of illicit relationship. A bare look at the testimony of Hari Singh (Pw. 12) demonstrates that he did not carry out his statutory duty fairly. The investigation was not conducted in consonance with the ingredients of the offence. In his examination in chief Hari Singh deposed thus:- Esjh rqrh'k esa ;g Hkh vk;k Fkk fd jkr dks e`rd djhc 11. 00 cts ds yxhkx vius ?kj ls Hkaoj yky iq= egkohj pekj ds lkfk tkus vk;k Fkka Hkaoj yky pekj us esaus iwnrkn dh Fkha Hkaojyky pekj ds c;ku ugha fy[ks Fks dsoy Mk;jh esa uksv yxk;k Fkka** He further stated that:- ;