Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Arvind Kumar Mishra-I, J.) The aforesaid criminal appeal has been preferred by the appellants Ramjilal S/o Shivlal and Banti s/o Ramjilal against the judgment and order of conviction dated 23.1.2012 passed by the Additional Sessions Judge/Special Judge (S.C.S.T. Act), Bulandshahr in S.T. No.08/2009 (State Vs. Banti and others) and S.T. No.34 of 2009 (State Vs. Banti) arising out of Case Crime No.198 of 2008 (under Section 302/34 IPC) and Case Crime No.199 of 2008 (under Section 4/25 Arms Act), Police Station Ramghat, District Bulandshahr, respectively, whereby both the appellants, Ramjilal and Banti have been sentenced under Section 302/34 IPC with life imprisonment with a fine of Rs.10,000/-, in case of default they will have to suffer additional rigorous imprisonment for six months. Further, accused-appellant Banti has been sentenced under Section 4/25 Arms Act with one year R.I. and a fine of Rs.2,500/-, in case of default, he will have to suffer two months additional rigorous imprisonment. Both the sentences have been directed to run concurrently.
Heard Sri V.K. Sharma, learned counsel for the appellants holding brief of Sri Omvir Babu (counsel for the appellant) and Sri A.N. Mulla, learned AGA for the State and perused the record.
The brief facts, as trickle out from perusal of the record appears to be that complainat Ramdas s/o Gulab Singh, resident of Village-Jergawa, Police Station- Ramghat, district- Bulandshahr lodged written report at Police Station-Ramghat, district Bulandshahr on 26.10.2008 at 6.15 a.m. to the effect that there was long drawn enmity on account of land dispute between his brother Ramesh Chandra s/o Gulab Singh (deceased) and Prakash s/o Babu Ram and Ramjilal s/o Shiv Lal. Litigation was pending with Ramjilal s/o Shiv Lal. Informant's brother Ramesh Chandra as usual went for sleeping in his 'gher' from his house in the evening (25/26-10-2008). In the intervening night of 25/26.10.2008 informant's brother (Ramesh Chandra son of Gulab Singh) was murdered around 2.00 a.m. The incident was witnessed by his nephew Satish s/o Ramesh Chandra and son Raj Kumar while they were returning home after operating tubewell for watering their agricultural field. As soon as both the aforesaid witnesses Satish and Raj Kumar arrived in front of gate of 'gher', they saw in torch light, Ramjilal s/o Shiv Lal possessing axe, Ved Prakash s/o Shiv Singh possessing knife, Ulfat s/o Shiv Singh possessing farsa (axe like weapon), Raja Ram s/o Mohan Nirwasi possessing knife and Banti son of Ramjilal possessing knife in their hands. They were seen coming out from inside the 'gher' and running away towards field. Informant's nephew Satish and his son Raj Kumar raised alarm, whereupon complainant himself and a number of villagers arrived at the spot and they chased the assailants but the assailants made their escape good. First informant along with others went inside the 'gher' where they found his brother Ramesh Chandra dead lying on a cot. It was stated in the first information report that informant's brother has been murdered out of conspiracy hatched by Babu Lal s/o Munshi Singh, Prakash s/o Babu Ram and Mithlesh wife of Ramjilal and commission of offence of murder committed by Ramjilal, Ved Prakash, Ulfat Singh, Raja Ram and Banti. Dead body is lying on the spot. Report be lodged and action be taken.
The written report is Exhibit Ka-1. Relevant entries of report exhibit Ka-1 were entered in the chik FIR at Crime No.198/08 under Sections 147, 148, 149, 302 and 120B IPC on 26.10.2008 at 6.15 a.m. This Chik FIR is Exhibit Ka-3.
The case was registered against appellants on the basis of entries made in the Chik FIR at Rapat No.8 on 26.10.2008 at 6.15 a.m. at Police Station Ram Ghat, district Bulandshahr at Crime No.198/08, under Sections 147, 148, 149, 302 and 120B IPC.
Thereafter the investigation of the case followed and the Investigating Officer arrested one Mithlesh wife of Ramjilal of Village-Jergawa, Police Station-Ramghat, district- Bulandshahr and one Banti resident of same place (as that of Mithlesh) on tip off information on 27.10.2008 and alleged knife used in this offence was recovered from the possession of Banti, therefore, a case under Section 4/25 Arms Act was registered against accused Banti at Crime No.199 of 2008. Memo of arrest is Exhibit Ka-7 and Chik FIR pertaining to Case Crime No.199 of 2008, under Section 4/25 Arms Act is Exhibit Ka-20. Pertinent to mention that appellant Ramjilal surrendered before the court below on 17.11.2008. Recovery of axe was made on 23.11.2008 at the instance of Ramjilal. Memo of the same was prepared by the Investigating Officer, which is Exhibit Ka-9.
Investigating Officer also collected plain and blood stained earth from the place of occurrence and prepared memo of the same, which is Exhibit Ka-6. Recovery of certain weapons allegedly used in the offence was made by the Investigating Officer but that weapons were recovered from the other co-accused persons, who have been acquitted, therefore, reference of the same need not be made here at this stage.
The inquest report of deceased Ramesh was prepared on 26.10.2008. It commenced at 6.50 a.m. and completed at 8.35 a.m. In the opinion of panchan, the postmortem examination was required to be done in order to ascertain the real cause of death. Inquest report is Exhibit Ka-12. Thereafter relevant papers for sending the dead body for postmortem examination were prepared by the Investigating Officer and postmortem examination was conducted at District Hospital, Bulandshahr in the night of 26.10.2008 at 8 p.m. by Dr. M.L. Agarwal. He found the following ante-mortem injuries on the body of the deceased:
1- Incised wound 9 cm x 2 cm x bone deep on left side top and back of head 5.5. cm above from left ear at 1 O'clock position on exploration Haematoma present underneath and occepital bone fractured. Membrane and brain lacerated.
2- Incised wound 6 cm x 3 cm x brain cavity deep just on left eyebrow middle part extended upto root of nose. Brain matters coming out from wound. Nasal bone and frontal bone found fractured underneath.
3. Incised wound 4 cm x 2.5 cm x bone deep on left side chin. Mandible bone found cut underneath.
4. Contused traumatic swelling 6.5 cm x 4 cm right side face 1 cm below right eye. Haematoma present underneath.
5. Incised wound 1.5 cm x 0.8 cm. x muscle deep on back of left hand 2 cm above root of right little finger.
In the opinion of doctor the cause of death was due to shock and haemorrhage as a result of ante-mortem injuries.
This postmortem report is Exhibit Ka-2 on record.
The Investigating Officer also recorded statement of various persons including the witnesses of fact and the complainant and also prepared the site plan of the incident. In this case the site plan of occurrence has been proved by the Investigating Officer, as Exhibit Ka-5 pertaining to Case Crime No.198 of 2008 under Sections 147, 148, 149, 302, 120B IPC and the site plan pertaining to Case Crime No.199 of 2008 under Section 4/25 Arms Act is Exhibit Ka-18.
Thereafter Investigating Officer also filed charge-sheets against the appellants, which are Exhibit Ka-8 and Exhibit Ka-11, respectively.
Thereafter the case of the appellants was committed to the court of Sessions from where this case was made over for trial to the court of Additional Sessions Judge/Special Judge (S.C.S.T. Act), Bulandshahr where the accused persons were heard on point of charge and prima facie ground was found existing for framing charged under Section 302/34 IPC. The charge was read over and explained to the appellants, who denied the charge and opted for trial. Charge under Section 4/25 Arms Act arising out of Case Crime No.199 of 2009 (S.T. No.34 of 2009) was also framed against the appellant Banti. He too denied the charge and opted for trial. It may be mentioned that both the Sessions Trial 8/2009 (arising out of Case Crime No.198 of 2009), Police Station Ramghat, District Bulandshahr) and S.T. No.34 of 2009 (arising out of Case Crime No.199 of 2009) under Section 4/25 arms Act were tried together by the learned trial court and a common judgment was delivered vide order dated 23.1.2012.
In order to prove its case the prosecution examined as many as nine witnesses. P.W.1 is complainant Ram Das. He has proved Exhibit Ka-1, the written report and claims himself to be the witness of fact regarding presence of assailants at and near the 'gher' during night intervening 25/26.10.2008. P.W.2 is Satish. He is witness of fact regarding the presence of assailants at and near the place of occurrence. P.W.3 is Chaman, he is witness of fact of conspiracy. P.W.4 is Dr. M.L. Agarawal, who conducted postmortem examination on the dead body of the deceased (Ramesh Chandra) on 26.10.2008 and has proved the same as Exhibit Ka-2. P.W.5 is Constable-Preetam Singh Bhati. He has prepared chik FIR and the concerned GD, (whereby the case was registered against the present appellants) as Exhibit Ka-3 and Exhibit Ka-4, respectively. P.W.6 is Raj Kumar. He is also witness of fact regarding presence of appellants at and near the place of occurrence (gher) in the intervening night of 25/26.10.2008 at about 2.00 a.m. P.W.7 is S.I. Adil Rashid, who is the Investigating Officer. He has proved various steps taken by him, in completing the investigation. He has also submitted the charge-sheet against the appellants as Exhibit Ka-8 and Ka-11, respectively. P.W.8 is Ashok Kumar Singh. He is witness of preparation of inquest report and other relevant papers and has proved Exhibit Ka-12 to Ka-17. Besides, he has conducted investigation in the case bearing Case Crime no. 199 of 2008, under Section 4/25 Arms Act, P.S. Ram Ghat against appellant Bunty. He has detailed various steps taken by him culminating into filing of charge sheet in aforesaid case crime number (199 of 2008) as paper no. 19.
PW-9 is Constable Amit Prakash, he is witness of fact of making entry in the relevant chik pertaining to aforesaid case crime no. 199 of 2008, under Section 4/25 Arms Act and the concerned GD Rapat No. 12 at 8.05 hrs on 27.10.2008 as exhibit Ka-20 and Ka-21, respectively. Thereafter, evidence for the prosecution was closed and statement of appellants was recorded under Section 313 Cr.P.C. In their statements appellants have termed their implication false and claimed to have fallen a prey to village partibandi and long drawn enmity. Besides, appellant Ramjilal stated that he is aged about 80 years and his visibility is very poor. Bunty has further stated that Ramshree was wife of Ramjilal. Her land was deceitfully got sold out through registered sale deed by the complainant side and thereafter Ramshree was killed. A case has been registered for the same by Ramjilal against the complainant. It was because of the aforesaid case that the complainant side in order to exert pressure, has wrongly framed this case. Fact is that the deceased died at some unknown place. Relevant to mention here that various material/weapons have been also got proved as material exhibits. Defence has not led any ocular testimony however, by list 94-B they have produced certain papers before the trial court.
After hearing both the sides on merit the learned trial court convicted appellant Bunty and Ramjilal under Section 302/34 IPC and sentenced them with life imprisonment and a fine of Rs. 10,000/- each, in case of default, directed that they will have to suffer additional imprisonment for six months R.I. Besides, appellant Bunty was also convicted u/s 4/25 Arms Act with one year R.I. and a fine of Rs. 2500/-, in case of default, he was directed to suffer two months additional imprisonment.
Consequently this appeal.
Learned counsel Sri V.K. Sharma, vociferously urged that the entire judgment of conviction is vitiated on several counts. First and foremost the chain of circumstances is not complete and in case no one has seen the actual occurrence- say the murder of deceased-Ramesh Chandra. Therefore, the case is confined to circumstantial evidence. Chain of circumstances are woefully missing. Next, Mr. Sharma urged that initially the FIR was lodged against 8 persons out of whom only Bunty, Prakash, Smt. Mithilesh and Ramjilal have faced trial whereas, other four accused were not found involved in the case during investigation. This shows hollowness of prosecution case set up in FIR. It is next, contended that motive is very bleak in this case. There was infact no motive to commit the crime, as suggested by the prosecution. Ocular testimony is not in conformity with the medical evidence. Evidence and circumstances show and establish that the FIR is ante-timed. Even the recovery of knife from appellant Bunty and axe from Ramjilal is tainted one and has not been proved by any witness, therefore, the very recovery of weapon, as claimed by the prosecution, has no legal teeth to stand legal scrutiny. There are two witnesses of fact PW-2 Satish and PW-6 Raj Kumar. They have stated that they saw the appellants coming out and fleeing away from the 'Gher'. There is material contradiction in their ocular testimony. Testimony regarding seeing the offenders in the torch light by the aforesaid two witnesses appears to be improved one and it does not inspire any confidence. While concluding his argument Mr. Sharma tried to engage our attention to certain factual aspects by pointing out that deceased had many rivals / opponents against whom he had moved complaints/ FIR. In this backdrop of things whether it can be positively said that the assailants alone are the perpetrator or author of the crime and on the same evidence two accused persons who were tried along with appellants -say- Prakash and Mithilesh- have been acquitted. In support of his contention learned counsel has placed reliance upon few decisions i.e.- State of U.P. Versus Abhiman Singh and others, 2002(45)ACC 1124, Harendra Narain Singh and others Versus State of Bihar (1991)3 Supreme Court Cases 609, State of Haryana Vs. Ram Singh, 2002(44)ACC 471, Arun Bhakta @ Thulu Vs. State of West Bengal (2008)17 SCC 367.
Sri A.N. Mulla, learned A.G.A. vehemently refuted aforesaid argument and submitted that the case of the appellant is reasonably proved and the chain of the circumstances is complete in all respect which unmistakably exclude every hypothesis of innocence of the appellants and establishes guilt of the accused that they alone are the perpetrators and the author of the crime and none else. Right from the very beginning the two witnesses of fact have categorically stated their names in their testimony before the court and nothing adverse has emerged even in their cross-examination, which may throw any doubt on the veracity of the incident. Principle of stair decisis is attracted because presence of accused in gher at 2.00 A.M. with weapons and instant death of Ramesh Chandra- the deceased in the gher are intricately linked. Presence of appellants coincides with death of Ramesh Chandra at the relevant point of time. It is obvious that as soon as the appellants left the 'Gher' where the deceased was sleeping the witnesses rushed to the spot and found the deceased murdered seeped in pool of blood.
In view of above rival submissions from both the sides point for determination, in this appeal, arises whether the charge against the present appellants is reasonably proved beyond reasonable doubt and the chain of circumstances is complete so as to exclude every hypothesis of innocence of the present appellants?
Upon careful scrutiny of record and particularly the testimony adduced by the prosecution we come across certain facts and at the very onset, we may take note of the FIR which has been lodged at P.S. Ram Ghat on 26.10.2008 at 6.15 a.m. by complainant Ram Das son of Gulab Singh. Obviously, the FIR names as many as 8 accused persons involved in the incident. If we get to the substance of the FIR, we come across the allegation that the incident allegedly took place in the night intervening 25/26.10.2008 at about 2.00 a.m. At that point of time, it is stated that the two witnesses-PW-2 Satish and PW-6 Raj Kumar were returning home after operating their tubewell in their agricultural field at about 2.00 (A.M.) in the night, on way they came in front of Gate of 'Gher' of deceased Ramesh. They saw appellants Ramjilal and Bunty son of Ramjilal in company of other co-accused persons possessing axe and knife, respectively in their hands, coming out from 'Gher' and fleeing away towards agricultural field. At this, alarm was raised by both the witnesses-Satish and Raj Kumar, whereupon a number of villagers arrived at the spot, including the complainant. It is stated that they gave chase to the assailants but in vain. The witnesses along with villagers entered into the 'Gher' where they saw deceased Ramesh Chandra lying dead on a cot. In this factual background the FIR alleges that death of Ramesh Chadnra has been caused after entering into criminal conspiracy with Babu Lal, Prakash and Mithilesh and the present appellants in company with other three persons have committed murder. Motive for commission of the crime has been suggested in the FIR as old enmity due to landed property. Now, we may switch over to the meritorial aspect of the case and particularly the testimony of the two witnesses of fact PW-2 Satish and PW-6 Raj Kumar who claim to have seen the appellants coming out from the gher of deceased. Before adverting to that it would be desirable that testimony of Ram Das P.W.-1, is taken note of at this juncture for proper appraisal of the evidence. PW-1 Ram Das is the complainant and it is stated that he arrived at the spot only after hearing alarm raised by his nephew Satish PW-2 and his son Raj Kumar PW-6, thereafter, they tried to chase the assailants, but could not succeed. He has testified about the very motive for commission of the crime. He has testified that Ramshree was his 'Buwa' and she was wedded to Ramjilal, the accused. Ramjilal began to live/reside in his village and performed second marriage with one Mithilesh as no offspring was born to him out of wedlock with Ramshree. Ramshree separated herself from her husband Ramjilal and began to live with this witness. Father of Ramshree bequeathed 28-30 bigha of land to her. The first informant took care of Ramshree due to which Ramshree was pleased with him and his brothers and she sold out her land in favour of their wives. This land transaction was the bone of contention and Ramjilal was having grudge against complainant and his brothers particularly deceased Ramesh Chandra. He started false and frivolous litigation against deceased and his brothers. Villagers intervened in the matter and ensured some compromise between the complainant and Ramjilal but appellant Ramjilal was not satisfied with the same. He has further testified that in the fateful night of 25/26.10.2008 his brother Ramesh Chandra went for sleep in his gher and around 2.00 a.m. when his son Raj Kumar and nephew Satish were returning home after operating tubewell in their agricultural field they saw in torch light Ramjilal possessing axe, Ved Prakash possessing knife, Ulfat possessing Pharsa (axe like weapon) and Bunty possessing knife, Raja Ram also possessing knife, coming out from Gher where deceased was sleeping and fleeing away towards the agriculture field, whereupon Raj Kumar and Satish raised alarm and then this witness also arrived on the spot. All gave pursuit to the assailants but to no avail. They entered in the Gher where they found dead body of Ramesh Chandra lying on cot. At this stage, we may appropriately glance over testimony of the other two witnesses PW-2 Satish Kumar and PW-6 Raj Kumar. They have stated categorically in their testimony that it was around 2.00 a.m. in the intervening night of 25/26.10.2008 when they were returning from their field after operating tubewell and when they reached near gate of their 'Gher' they saw in torch light the appellants in company with few others possessing axe and knife in their hands rushing out of the Gher and fleeing towards agricultural field. These two witnesses raised alarm whereupon Ram Das, Bholi, Budhsen, Bachchu etc. arrived on the spot chased the assailants but to no avail. They came inside Gher, they found dead body of Ramesh Chandra lying on the cot. It has been specifically stated that Ramshree had executed sale deed of her land due to which, Ramjilal and other co-accused had conspired to kill Ramesh Chandra. It has been suggested that presence of the two witnesses on the spot is most unnatural but nothing adverse has emerged in their cross examination which may throw any doubt regarding their presence on the spot. They have specifically answered to each specific question put to them in their cross examination and in the cross-examination it has been established that Ramshree had executed sale deed of her entire land 28/30 bigha for Rs. 8 lacs, out of which Ramshree gave Rs. 3.5 lacs to Ramjilal but he was not satisfied with the same and this simmering discontent has been said to be the very motive for committing the crime. In such situation motive so suggested is, in normal course, sufficient to give rise to ill-will and jealously on the part of appellants and it cannot be said that execution of sale deed in favour of wives of complainant side by Ramshree was ever reconciled by the appellants. In their cross examination both the witnesses have described that they saw in torch light the appellants in company with other assailants and they were seen coming out of Gher and immediately fleeing away from the scene through agricultural field. Both these witnesses raised alarm and number of villagers thronged on the ground, they rushed inside the Gher where they found Ramesh Chandra lying dead on a cot. It is no denying fact that no one saw the murder being committed by the present appellants. But the very testimony given by these two witnesses virtually attracts principle of stair decisis and presence of appellants on the spot is unmistakably established by the innocuous testimony of both the witnesses and death of Ramesh Chandra was immediately noticed by these two witnesses along with other persons. Presence of appellants in gher around 2 A.M. in the night (25/26-10-2008) simultaneously coincides with death of Ramesh Chandra. This impeccable circumstance unmistakably takes one to inescapable conclusion that death/murder of Ramesh Chandra synchronises with the presence of the appellants in the very gher itself at 2.00 a.m. Things are self speaking. Evidence forthcoming regarding presence of the appellants at the gate of gher by the two witnesses (P.W.2 and P.W.6) is upon appraisal found to be most consistent, wholly reliable, clinching and inspiring confidence. The necessary inference regarding culpability of accused in such circumstances is found reasonably established. The assailants were well known to the witnesses and immediately after their departure dead body of Ramesh Chandra was found lying on the cot inside the gher. There is virtually no time gap between the period when the assailants left the Gher and the witnesses arrived on the spot where the deceased was lying dead on a cot. In this view of the matter, there is no need of direct testimony of incident of murder. Therefore, the happening of murder invariably becomes an act of the appellants and the circumstances are unerringly and conclusively established against the appellants.
At this stage, we may also consider the medical testimony. Upon careful scrutiny of the ante-mortem injuries noticed in the post-mortem report (Exhibit ka-2), we come across fact that as many as five ante-mortem injuries were found on the body of deceased Ramesh Chandra. The Post-mortem examination was conducted at mortuary Bulandshahr on 26.10.2008 and this post -mortem report has been proved by PW-4 Dr. M.L. Agrawal. Injury No. 1 is stated to be incised wound 9 cm x 2 cm x bone deep on left side top and back of head 5.5. cm above from left ear at 1 O'clock position on exploration Haematoma present underneath and occipital bone fractured. Membrane and brain lacerated.
Injury No. 2 is Incised wound 6 cm x 3 cm x brain cavity deep just on left eyebrow middle part extended upto root of nose. Brain matters coming out from wound. Nasal bone and frontal bone found fractured underneath.
Injury No. 3 is Incised wound 4 cm x 2.5 cm x bone deep on left side chin. Mandible bone found cut underneath.
Injury No. 4 is Contused traumatic swelling 6.5 cm x 4 cm right side face 1 cm below right eye. Haematoma present underneath.
Injury No. 5 is Incised wound 1.5 cm x 0.8 cm. x muscle deep on back of left hand 2 cm above root of right little finger.
In the opinion of doctor these ante-mortem injuries were found on the body of the deceased, which injuries could have been caused by use of knife and pharsa and death in question can be caused around midnight at about 2.00 a.m. Again in his cross examination doctor witness has specifically stated that injury no. 5 may have been caused by weapons like farsa and axe. No apecific challenge has been made to the testimony of doctor that no such injury could have been caused at 2.00 a.m. in the night intervening 25/26.10.2008. Thus point of death of Ramesh Chandra at 2.00 a.m. in the night is established and factum of death coincides with the presence of appellants in the gher near dead body of Ramesh Chandra.
It is relevant to take note of the fact that PW-7 S.I. Adil Rashid, Investigating Officer has proved recovery of knife from appellant Bunty on 27.10.2008 at his instance and a case under Arms Act was got lodged by him against appellant Bunty at Case Crime No. 199 of 2008 on 27.10.2008 at P.S. Ram Ghat. He prepared memo of arrest and recovery of knife and has proved the same as exhibit ka-7. Likewise he proved recovery of axe from appellant Ramjilal made on 23.11.2008 although the date has been wrongly written as 23.08.2008, which on the face appears to be and is clerical one because custody of Ramjilal was taken by the Investigating Officer on 22.11.2008 and on the very next day i.e. 23.11.2008 at 9.00 a.m. recovery of axe was made at his instance and which recovery has been proved by the Investigating Officer as exhibit Ka-9.
Again it is relevant to take note of fact that these weapons along with other materials were sent for chemical examination at Forensic Science Laboratory, Agra where human blood was found on examination of the axe, blood found on the knife could not be ascertained because it was disintegrated therefore, presence of human blood on the axe so recovered from Ramjilal is amply borne out by the evidence on record. In so far as the place of occurrence is concerned, the Investigating Officer has himself taken simple and blood stained soil from the spot and has made memo of the same as exhibit Ka-6.
In this view of the matter suggestion given by the appellant that Ramesh Chandra would have been killed somewhere else and his body was brought in Gher, cannot be accepted to be fitting in the circumstances of this case for two reasons, first, that the two witnesses of fact PW-2 and PW-6 rushed to the spot where Ramesh Chandra was lying dead soon after the assailants had left the scene. They found Ramesh Chandra lying dead on a cot with several injuries on his body, secondly, the very nature of the injuries so caused has been proved as the ante-mortem injuries and the testimony of doctor (PW-4) that these injuries can be caused by use of knife and axe remained unchallenged. Therefore, the inescapable conclusion follows that the appellants themselves were the author of the crime and the chain of circumstance is conclusively complete at that point of time. The very circumstance that the appellants were seen running away from the Gher and immediately after their departure when the witnesses rushed to the spot they found Ramesh Chandra dead in a pool of blood lying on cot. What else will be the conclusion in that event? Certainly authorship of the crime invariably can be imputed to none other but the appellants themselves. It is obvious that first informant PW-1 has himself proved that he got scribed the report with Dinesh and thereafter, it was lodged at the police station in the following morning at 6.15 a.m. The lodging of FIR at 6.15 a.m. on 26.10.2008 finds support from testimony of PW-7 S.I. Adil Rashid and Constable (PW-5) who entered the relevant chik entry and registered the case at relevant rapat number. PW-5 constable Preetam Singh, has proved the chik and the relevant GD. Nothing adverse has emerged from their testimony, which may throw any doubt on the very timing of the lodging of the FIR at 6.15 a.m. on 26.10.2008. Merely because certain technical defects have been noticed, which technical defects are trivial in nature, which may be attributable to the alleged mistake committed by the Investigating Agency, will not by itself create any doubt on the lodging of the FIR at 6.15 A.M. and it cannot be said that the FIR is ante-timed.
Further there is no whispering under circumstances to support claim of appellants that the deceased was killed by some unknown person at some unknown place. Moreso, there was no use to falsely implicate the appellants in this case sparing the real culprits. The very motive imputed against the appellants being in form of grudge, is sufficient for committing the crime in question. Every link in the chain of the incident say the very motive, the presence of the appellants at the place of occurrence at a particular point of time, recovery of dead body of Ramesh, immediately after the assailants left the place of occurrence is intertwined and established. The very weapons, which were possessed by the appellants were recovered from their possession. The weapons contained blood stains and presence of human blood on axe was noted, blood mark on knife could not be ascertained because it was disintegrated. In the opinion of the doctor, these injuries as found on the body of deceased Ramesh, could have been caused by knife and axe, further strengthens guilt of the accused. Appellants were seen possessing weapons axe and knife. These circumstances taken as a whole virtually prove beyond doubt guilt of the accused and each and every link of chain is thus conclusively established which completeness of chain leaves aside every hypothesis of innocence of the appellants. The learned trial court has rightly taken view that the circumstances pointing out guilt of appellants and their participation in the crime are established.
The moot point worth consideration is that presence of the appellants at the place of occurrence unflinchingly synchronizes with recovery of dead body from the place of occurrence which fact leaves no room for doubt regarding guilt of the appellants. No doubt there are certain minor contradictions in the testimony of two witnesses (PW-2 and PW-6) of fact but the so called contradictions are not hitting at the root of the case but are of trivial nature.
In so far as case under Section 4/25 Arms Act against appellant Bunty is concerned in that regard PW-7 S.I. Adil Rashid has categorically testified that on 27.10.2008 he recovered knife from the possession of appellant Bunty and a memo of arrest and recovery was prepared and has proved the same as exhibit ka-7. The accused could not show any licence or authority to keep the knife. Investigation of the case under Section 4/25 Arms Act was conducted by PW-8 S.I. Ashok Kumar, he prepared the site plan of the place of recovery and proved the same as exhibit ka-8. Besides he has also proved the various steps taken by him in completing investigation and filing of charge sheet (exhibit ka-18). Certain cuttings made in the document by itself appeared in usual course of proceeding, which cannot question the very authenticity and veracity of fact of recovery of knife from the appellant. Nothing adverse has emerged from the testimony of PW-8 S.I. Ashok Kumar, the Investigating Officer of Crime No. 199 of 2008, under Section 4/25 Arms Act, which may throw any shadow of doubt on the fact of recovery. Trial court has taken note of every aspect of the case in detail and has gone to base its specific finding of conviction on material on record which reasonably proved beyond doubt charge u/s 4/25 Arms Act. Therefore, conviction of appellants u/s 302/34 IPC and conviction of appellant Bunty u/s 4/25 Arms Act in case crime no. 198 of 2008 and 199 of 2008, respectively is sustained by us in appeal.
In so far as various citations relied on by the appellants are concerned, it is obvious that all the aforesaid citations are not helpful to the appellants for the reason that in this case in hand every link in the chain of circumstances is consistently proved leaving aside hypothesis of innocence of the accused and unerringly alludes to the inference that none other than the appellants themselves were the author of the crime. In the case of Harendra Narain Singh Vs. State of Bihar (1991)3 Supreme Court Cases 609, the Hon'ble Apex Court has observed in case of death of widow, who was carrying four months' pregnancy, was solely based on circumstantial evidence and the only evidence that was proved by the prosecution was confined to the fact that the death was caused by the strangulation in the neck and later on dead body of deceased widow was recovered from the courtyard of accused in the village. In this case obviously the face of the dead body was not seen by any of the witnesses, therefore, doubt was expressed by the Hon'ble Apex Court regarding identity of the dead body in question in possession of accused.
In so far as the case of State of Haryana Versus Ram Singh, 2002 (44) ACC 471 is concerned, in that case eye-account testimony regarding shot being fired on the deceased had been evidenced by the witnesses. Therefore, the factual aspect of the case is entirely different from one, as existing in the present case in hand, therefore, aforesaid citation is also not applicable in this case.
In so far as the case of Arun Bhakta @ Thulu Vs. State of West Bengal (2008)17 SCC 367 is concerned, even in this case, the Hon'ble Apex Court after contemplating various circumstances putforth by the prosecution recorded finding to the effect that these circumstances cannot be called to be circumstances proving and pointing to the guilt of the accused. In this case the last-seen theory was not believed by the Hon'ble Apex Court as per the testimony on record, it was observed by the Hon'ble Apex Court that diametrically opposite versions of witnesses have emerged and therefore, it would be unsafe to direct conviction. The relevant para-11 of the judgment is being extracted herein below:-
"11. So far as the evidence relating to the last-seen aspect is concerned, P.W.1 stated that the accused and the deceased slept together in the room. Strangely, P.W.9 stated that the deceased slept alone and the appellant had not come to his house. P.W.1 is the sister of the deceased. P.W.8, the de facto complainant, i.e. the father fo the deceased, resiled from the statement made during investigation and stated that he had not told anybody that the appellant was sleeping with the deceased. In view of the diametrically opposite versions as to whether the accused and the deceased were seen together in the house it would be unsafe to direct his conviction."
However, the context involved in the present case in hand is quite different where all the circumstances at the cost of repetition can be stated to have been established conclusively against the appellants and in such cases conviction of the concerned accused/appellant can be based on such established circumstances and as per the dictum and mandate of law even in the same judgment in para-8 relevant observation has been made by the Hon'ble Apex Court and a number of cases have been referred to as guideline for cases concerning circumstantial evidence, therefore, the aforesaid citation is also not helpful to the appellants.
In so far as case of State of U.P. Versus Abhiman Singh and others 2002(45) ACC 1124 is concerned, the ratio of conviction was quite different and the factual aspect of the case is very much distinguishable from the present context in hand and the principles of aforesaid citation are not attracted in this case.
Even in the case of Birender Poddar Vs. State of Bihar, 2011 ACC 283 the Hon'ble Apex Court has observed that for appreciating circumstantial evidence, the court has to be cautious and find out whether the chain of circumstances led by the prosecution is complete and the chain must be so complete and conclusive as to unmistakably point to the guilt of the accused. The aforesaid observation of Hon'ble Apex Court is squarely applicable in the present case because chain of circumstances is complete in all respect.
In view of above discussion, we may sum up that the trial court while appreciating and appraising the evidence available on record has consistently considered every factual aspect of the case vis-a-vis necessary circumstances and the appraisal so made is very much upheld by us, at this stage and we may reasonably observe that the chain of circumstances has been conclusively established in this case and the guilt of the appellants is established beyond reasonable doubt. We may further observe that the point for determination in this appeal, upon careful scrutiny as above, stands answered in the affirmative that the charge made against the appellants is reasonably proved beyond doubt.
Consequently, appeal lacks merit and is accordingly dismissed.
Both the appellants are in jail. They will serve out the remaining part of their respective sentences so imposed upon them by the trial court.
Let a copy of this order be certified to the learned trial court for information and necessary action.
Dt.18.3.2016 RK/