- (1.) This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 21.05.2004 & 24.05.2004 respectively passed by the Sessions Judge, East Singhbhum, Jamshedpur in connection with S.T. No. 115 of 1994, corresponding to G.R. No. 1292/1992, arising out of Parsudih (Sunder Nagar) P.S. Case No. 71/1992 whereby the appellant has been held guilty for the offence punishable under Sec. 302 of the Indian Penal Code and sentenced to undergo R.I. for life.
(2.) The facts appearing from the fardbeyan of Ram Chandra Choudhary recorded on 12.05.1992 at 5:00 hours at the residence of Fulchand Sharma situated within Sunder Nagar P.S., Jamshedpur is that on 12.05.1992 in the morning at 4 a.m. appellant -Kaluram Gujar informed that Ram Narayan Sharma and Mahaveer Sharma have been done to death by unknown miscreants. It is disclosed that the occurrence took place in the house of Fulchand Sharma situated within Sunder Nagar Police Station. On the date of occurrence Fulchand Sharma (owner of the house) had gone to his native village situated within the State of Rajasthan and he had left the deceased Mahaveer Sharma and Ram Narayan Sharma to look after the house. The appellant was working under Fulchand Sharma and he was also residing in that very house. After receiving information regarding murder of Ram Narayan Sharma and Mahaveer Sharma, the informant rushed to the place and found the dead body of Mahaveer Sharma lying in a room on the ground floor whereas dead body of Ram Narayan Sharma was lying in a room on the first floor. The informant inspected the entire house of Fulchand Sharma but he did not find access of any outsider in the house. According to informant only three persons were present in that very house during that fateful night and those three persons were appellant -Kaluram Gujar, deceased Ram Narayan Sharma and Mahaveer Sharma. The informant repeatedly enquired from the appellant as to what happened in the house or how the occurrence took place but no cogent information was given by him. The matter was reported to the Police, fardbeyan of informant -Ram Chandra Choudhary was recorded and a case being Parsudih (Sunder Nagar) P.S. Case No. 71/1992, under Sec. 302 of the Indian Penal Code against unknown was registered. Since the informant has raised suspicion against the activity of appellant, he was interrogated by the police whereafter he confessed his guilt. On the basis of confession made by appellant three pieces of 'Dab' (sharp cutting weapon), blood stained cloth of the appellant have been recovered. The appellant further produced a sum of Rs. 1,30,173/ - after reopening the lock of Almirah and he was in possession of the key of that Almirah. The police after due investigation submitted charge -sheet against the appellant and accordingly cognizance was taken and the case was committed to the court of sessions and registered as S.T. No. 115/1994. The charge under Sec. 302 of the Indian Penal Code was framed to which the appellant pleaded not guilty and claimed to be tried. The prosecution in order to substantiate the charge examined altogether 12 witnesses and proved documents like seizure list, inquest report, postmortem report etc. The learned Sessions Judge placing reliance on the evidence and documents available held the appellant guilty for the offence punishable under Sec. 302 of the Indian Penal Code and sentenced him as indicated above.
(3.) Learned Counsel appearing for the appellant has assailed the impugned judgment of conviction and sentence on the ground that no direct evidence against the appellant is available but the learned Sessions Judge considering the circumstantial evidence available, has held him guilty. Circumstantial evidence adduced by the prosecution are not sufficient to hold the appellant guilty. Learned Sessions Judge has considered the statement of P.W. 2 and P.W. 5 and held that the appellant was residing in that very house along with the deceased and he was present in the house on that fateful night. P.W. 2 and P.W. 5 have stated in their deposition that house in question where the alleged murder of two persons had taken place belongs to one Fulchand Sharma who had gone to his native village situated within the State of Rajasthan to arrange marriage of his son. Fulchand Sharma had entrusted the deceased and the appellant to look after the house and, therefore, they were residing in that very house. P.W. 2 is distant relative of Fulchand Sharma whereas P.W. 5 happens to be close friend. It is also disclosed by the informant that Fulchand Sharma's native village is situated near the native village of informant and they are acquainted with each other from before. It is contended that P.W. 2 and P.W. 5 had no occasion to speak that on that unfortunate night house of Fulchand Sharma was occupied by two deceased and the appellant. Information given by P.W. 5 in the fardbeyan and also in the Court derived to him from the mouth of appellant but the appellant did not admit the aforesaid fact. Confession made before the police cannot be accepted and relied upon in the eye of law. Surprisingly enough one of the deceased Ram Narayan Sharma was the close relative of Fulchand Sharma but Fulchand Sharma, who is the owner of the house, has not supported the version of P.W. 2 and P.W. 5 that appellant -Kaluram Gujar was appointed as care taker and he was residing in that very house. Non -examination of Fulchand Sharma has become fatal to the prosecution. P.W. 3 (Ram Bahadur Singh), P.W. 4 (Ridhikaran Malyani), P.W. 6 (S.P. Chakravorty), P.W. 7 (Ajit Kumar Chakravorty), and P.W. 8 (Vijay Kumar Pandey) have turned hostile and have not supported the prosecution case. None of the neighbour of Fulchand Sharma has come forward to support the contention of informant. P.W. 9 (Gauri Shankar Ghosh) and P.W. 10 (Baidyanath Awasthi) have not stated that they heard any 'Hulla' from the house of Fulchand Sharma during night rather they could learn about the occurrence only in the morning. They have expressed their inability to disclose about the miscreants. It is submitted that two persons were murdered in the house and place of occurrence is surrounded by many houses but no person from the nearby house has come forward to support the prosecution case. No witness has come forward to say that he had heard 'Hulla' from the house of Fulchand Sharma on that unfortunate night. Ashok Tiwari happens to be the Investigating Officer and he has been examined as P.W. 12. A perfunctory investigation has been done in a case of double murder. Admittedly, the prosecution case is based on circumstantial evidence and the appellant has been convicted considering the only circumstance that he was present with the deceased in that very house on the date of occurrence but the I.O. did not bother to prepare sketch map of the place of occurrence. Blood stained cloth, blood stained 'Dab' (sharp cutting weapon) were seized but not sent for its chemical examination. No finger print was taken. Investigating Officer had taken help from Dog squad but the result is unknown. He did not bother to record statement of Fulchand Sharma, who was the owner of that very house. Learned Trial Judge has relied on the statement of P.W. 2 and P.W. 5 and recorded that the appellant was also living in that very house with those two deceased but the statement of P.W. 2 and P.W. 5 are contradictory on many vital points and the evidence of those two witnesses is not conclusive on the point that the appellant was present with the deceased in that very house on the date of occurrence. P.W. 2 is the resident of Telco which is situated at the distance of 18 -20 K.M. from the place of occurrence whereas P.W. 5 happens to be the resident of Gulmuri which is also far away from the place of occurrence. P.W. 2 has stated in para 9 that "SUNDER NAGAR SE TELCO LAGBHAG 18 -20 K.M. DOOR HAI". In para 10 he has deposed that on 12.05.1992 at 6:30 a.m. he was informed by Ram Chandra Choudhary (informant) about the occurrence. Learned Counsel has drawn our attention towards fardbeyan which was recorded at 5:00 a.m. at the place of occurrence. It is further pointed out that after recording of the fardbeyan, the investigation was carried out, alleged confession of appellant was recorded, seizure list, inquest report were prepared and the inquest report bears the signature of informant. Had it been so the informant had no occasion to leave the place of occurrence and to go to Telco colony to inform P.W. 2. This also goes to show that seizure list were not prepared on the time mentioned on it. It is further submitted if the suspicion had cropped up in the mind of informant, he should have named the appellant in the First Information Report. The prosecution has brought on record a motive that the occurrence was committed for committing theft of said sum of Rs. 1,30,173/ - alleged to have been recovered at the instance of appellant. Evidence on record suggest that the appellant was authorized on behalf of Fulchand Sharma to collect money and he was the custodian. Had he intended to commit theft, he would have fled away to a suitable destination with the money which was already with him. There was no need for him to commit murder of two persons because the prosecution story did not disclose that the deceased were the custodian of that money. Furthermore, one of the deceased was sleeping in a room on the ground floor whereas another was sleeping in a room on the first floor. It was not possible for the appellant alone to commit murder of those two persons who were sleeping at two different places at that point of time. The facts and circumstances available on record clearly suggest that there were more persons who had committed murder of those two persons, who were sleeping in two different rooms in the house of Fulchand Sharma. It is submitted that Exhibit A and Exhibit B are the documents which goes to show that one Badri Narayan Sharma was also charge -sheeted under Sec. 302/120B of the Indian Penal Code for the alleged murder. If the involvement of one more person was available, the appellant should not have been held guilty only on the evidence that he was alone residing in that very house with two deceased and, therefore, findings of the trial court is erroneous. Considering all these aspects, it is submitted that impugned judgment is highly erroneous and the learned Judge has committed gross error by relying on the circumstantial evidence because many link of chain of circumstantial evidence are missing and it is not leading towards the guilt of the appellant.;