RAJARAM RAI Vs. NOOR MOHAMMED

JUDGEMENT

(1.) Both the appeals arise from the same Judgment, hence they are being disposed of together. Appellants being aggrieved by their conviction under section 302/201 of the Indian Penal Code and sentence of life imprisonment and rigorous imprisonment for two years respectively by the First Additional Sessions Judge, Balaghat, in Sessions Trial No. 121/89 by judgment dated 15.3.1989 have preferred this appeal.

(2.) According to the prosecution, at the relevant time Komalchand, a Constable was attached to the Police Station Changotola. In the morning of 19.6.1988 he reported for duty at the Police post and was assigned certain Police duties along with Constable Radharam Constable Radharam returned to the Police post at 8.40 p.m. but deceased Komalchand did not come back to the Police post. Constable Radharam gave report (Ex. P 31) to the said effect in the Police post. Prosecution story further is that at about 10 p.m. on 19.6.1988, appellant Mehtu gave an oral information at the Police post, which was entered in Rojnamcha register (Ex. P 27), stating therein that the deceased Constable Komalchand has been assaulted by appellants Nanu, Radhe and Kanchan. On the basis of the aforesaid information, Head Constable Rajendra Prasad and Constable Girdharilal along with officer in charge of the Lamta Police Station went to the village Urnemeta in the night and made enquiries from the accused persons. According to the prosecution, on enquiry being made from appellant Nanu in presence of witness Senkumar (PW 5), he stated that the dead body of Constable Komalchand has been buried in the sands of Sekhi Nala. On the basis of the aforesaid information, Police personnel along with appellant Nanu went to the place where the dead body of Head Constable Komalchand was alleged to have been buried. Police personnel being satisfied that the dead body is buried at the place shown by appellant Nanu, after Obtaining the orders from the Executive Magistrate, the dead body of Kanchan was exhumed on 20.7.1988. According to the prosecution, on the basis of the memorandum of appellant Mehtu, sandal of the deceased was recovered by PW 13 Kewal Singh in presence of PW 5 Senkumar. Similarly, on the memorandum of Radhelal and Kanchan, PW 13 Kewal Singh the Sub Inspector of Police recovered bicycle, dress and belt of the deceased in presence of PW 5 Senkumar. The dead body of Komalchand was sent for post mortem examination which was conducted by PW 7 Dr. V.B. Khati who found ten injuries on his person. In the opinion of doctor, Komal died on account of fracture of his skull and laceration of brain. Police after investigation, submitted charge sheet against the appellants. The case was ultimately committed to the Court of Sessions for trial. Appellants denied to have committed the crime and their plea is that they have been falsely implicated in the case.

(3.) Mr . S.L. Kochar appears on behalf of the appellants. Mr. R.K. Verma, P.L. appears on behalf of the State. Mr. Kochar appearing on behalf of the appellants submits that conviction of the appellants have been based on purported recovery of articles belonging to the deceased. He submits that the articles supposed to have been recovered on the memorandum of these appellants are doubtful and as such, it would be unsafe to sustain the conviction of these appellants. Mr. Verma, however, appearing on behalf of the State submits that recovery of articles belonging to the deceased at the instance of the appellant leads to one and the only conclusion that the crime has been committed by the appellants. Having appreciated the rival submissions, we are of the opinion that the circumstantial evidence brought on record does not establish beyond all reasonable doubt that the crime has been committed by these appellants. It is relevant here to state that articles which have purportedly been recovered on the memorandum of these appellants were not put on T.l. parade. PW 8 and PW 9 have although identified those articles in Court but we arc of the opi nion that no weight can be attached to such an identification as according to the evidence of PW8 himself, he had identified those articles in the Police Station. Thus, articles were shown to this witness earlier. Further, we find that no evidence has been laid by the prosecution which proves beyond ail reasonable doubt that these articles, the deceased was wearing immediately before the incident. Even if we assume in favour of the prosecution that the articles, recovered on the basis of the memorandum of the appellants, were of the deceased, in the absence of any material to suggest that the deceased was wearing the same immediately before the commission of the crime, its recovery will not lead to the only conclusion that the appellants have committed the crime. Further, prosecution witnesses have also not stated that articles recovered contained any specific mark. These infirmities create doubt in the case of the prosecution and we are of the opinion that the appellants deserve to be given the benefit of doubt.