SALIM @ BABRU @ BABRUDDIN Vs. STATE OF RAJSTHAN

JUDGEMENT

(1.) This DB Cr. Appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order dated 11.1.2005 passed by Additional Sessions Judge, (Fast Track) No.2 Distt. Ajmer in Sessions Case No. 2/2004(5/2004) whereby the present appellant has been convicted and sentenced as under:-

(2.) The short facts of the case are that on 22.7.2003, an information has been received by Police Station Jawaja that a dead body is lying at Rajiawas by pass. On this information, SHO went on the spot where Dhool Singh filed a report in which it has been stated that today at about 7.30 AM in the morning, he came to Rajiawas Road where some persons were standing when he reached near, he saw a dead body was lying there. Thereafter on 27.7.2003 PW/22 Jeevanram- brother of the deceased has lodged a written report Ex.P/38 stating therein that his brother is working with Super Cargo Company at Gandhi Dham and on 18.7.2003, his brother left Gandhidam to Kanpur in a tanker and appellant Salim has also accompanied him and they have to reach Kanpur by 22.7.2003. He has been informed that tanker in which his brother was traveling has been seized at Parbatsar Police Station and oil loaded in the tanker has been sold to Ramniwas by Anil Kothari. He went to Police Station Parbartsar where he identified the photo and clothes of his brothers and further it has been stated that Salim,Ramniwas and Anil Kothari have murdered his brother Rameshwar after hatching conspiracy. On this, report FIR No. 115/2003 has been registered. After investigation, charge-sheet has been filed against present appellant and other 5 co-accused persons. Charges have been framed against the appellant and other accused persons for the offences under sections 302,201,379,411 and 414 IPC which were denied by the accused persons and they claimed for trial. To prove the case against the present appellant, prosecution has examined PW/1 Prabhu Singh, PW/2 Jagdish Singh, PW/3 Ramkumar, PW/4 Shravan, PW/5 Omprakash, PW/6 Mohan Lal, PW/7 Suresh Kumar, PW/8 Dr. Madhusudhan Tak,PW/9 Vijay Kumar Jain, PW/10 Omprakash, PW/11 Dhool Singh, PW/12 Dr. Ashish Saxena,PW/13 Rajendra Singh, PW/14 Dashrat Singh, PW/15 Amarjeet Singh, PW/16 Deva Ram, PW/17 Manish Bakshi, PW/18 Sanjay Kumar Vijay, PW/19 Dalpat Singh, PW/20 Rajeever Singh , PW/21 Shambhoo Singh, PW/22 Jeevan Ram, PW/23 Shyam Singh, PW/24 Rakesh Kumar, and PW/25 Kailash Choudhary and also relied upon documents Ex. P/1 to P/48. The accused appellant has been examined under Section 313 Cr.P.C. No oral defence evidence has been produced. After conclusion of trial,the present appellant has been convicted and sentenced as indicated above whereas other accused appellants have been acquitted. Hence, this appeal has been preferred by the appellant.

(3.) The contention of the present appellant is that it is a case of circumstantial evidence and the chain of circumstance is not complete.The only evidence against the present appellant is recovery of shirt of the deceased and identification of the place where the dead body was lying. Both the evidence are unreliable. Shirt has not been identified by any of the witnesses that it belongs to accused appellant and place where the body is lying was already within the knowledge of the police, hence it could not be looked into under Section 27 of the Evidence Act, hence appellant be acquitted.