MUKESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been preferred by the accused -appellant Mukesh Jat aggrieved by the judgement of the learned Additional Sessions Judge, Sambhar Lake, District Jaipur dt. 07.09.2006 by which he has been convicted for offence u/s. 302 read with 34 of IPC and sentenced to life imprisonment. He has already served out sentence of more than eight years. The facts of the case are that a written report was submitted by Man Singh (PW 19) to SHO Police Station, Dudu on 27.11.2004 (Ex.P.27) that he was resident of village Keria Bujurg and that Vijay Jat, resident of Chhota Narayana, Chhotu Daroga (PW 4), resident of Keria Bujurg and Kalu Kumhar (PW 5) resident of Keria Bujurg had taken his son Mukesh Badwa @ Mukesh Rao with them at about 10 -11 AM on 26.11.2004. When his son did not come back to their house in the evening, they made a search for him and later he was found dead in the house of Navrang Lal Jat of Village Shekawaliyon Ki Dhani Tan Padsoli. There was a mark on his neck. The accused -appellant Mukesh Jat son of Navrang Lal was found in the house, but co -accused Vijay Jat was missing. The complainant expressed the doubt that his son might have been murdered by Mukesh Jat and his companions. On the basis of the aforesaid written report, a First Information Report was chalked out for offence u/s. 302/34 of IPC. After investigation, police filed challan against the accused -appellant Mukesh because co -accused Vijay Jat was absconding. The prosecution has produced 27 witnesses and exhibited 31 documents, whereas the defence produced 1 witness and exhibited 5 documents. The accused in his examination under Section 313 Cr.P.C. denied the allegation and submitted that when the Police came to his house, he did not abscond. Had he actually committed the murder of the deceased Mukesh Badwa @ Mukesh Rao, he would have easily thrown his dead body in the adjoining well or in the nearby jungle so as to make it look like a case of suicide and the dead body would not be recovered from his house. He claimed he was innocent. The learned trial Court after completion of trial, convicted and sentenced the accused -appellant in the manner indicated above. Hence this appeal.

(2.) SHRI Suresh Sahni, learned counsel for the appellant has argued that the entire case hinges on the circumstantial evidence. The charge against the accused -appellant has not been proved beyond reasonable doubt. The chain of circumstances against the accused -appellant has several missing links. Chain of circumstances, which have been relied on by the trial Court in convicting the accused -appellant, has very many missing links. Howsoever grave may be the offence, the accused -appellant could not have been convicted only because dead body was found in a room of his house, which was owned by his father. The evidence has come on record that on the night of the fateful day, he was sleeping with his wife in another room, who was carrying the pregnancy of more than eight months. The deceased Mukesh Badwa @ Mukesh Rao had gone to village Dantri along with co -accused Vijay Jat who happens to be brother in law of the appellant, being brother of his wife and therefore had access to his house. They returned back very late in the night. The evidence has proved that they had gone together to village Dantri. They had drinks together, which has been proved by Dr. Sanjay Bundela (PW 7), who conducted the postmortem vide post -mortem report (Ex.P.5). FSL report (Ex.P.31), which has been exhibited by the Investigating Officer Bhagwan Singh (PW 27), proves that the visra of the deceased gave a positive test for the presence of aluminum phosphide and ethyl alcohol.

(3.) SHRI Suresh Sahni, learned counsel submitted that statement of the mother of the deceased clearly proves that the conduct of the appellant throughout is natural. There was no evidence of last seen against the appellant. When the witnesses Prem Kanwar (PW 15) and other two witnesses Chhotu Singh (PW 4), Kalu Ram (PW 5) and Hanuman (PW 6) came to the house of accused -appellant to enquire about deceased Mukesh Badwa @ Mukesh Rao, the appellant was through out available in the house. He made no efforts to flee from the house. Had he actually committed the murder of Mukesh Badwa @ Mukesh Rao, he would have not been present in the house. In this connection, learned counsel extensively referred to the statement of Chhotu Singh (PW 4), Kalu Ram (PW 5) and Hanuman (PW 6). Learned counsel submitted that the conviction of the accused -appellant with the aid of Section 34, in any case, could not have been made because there was no proof of his sharing any common intention with the co -accused Vijay Jat:, nor there exist any other circumstance which may otherwise show his involvement in the crime. Learned counsel in support of his arguments relied on the judgments of Supreme Court in Rameshbhai Pandurao Hedau vs. State of Gujarat, : (2010) 4 SCC 185, Jai Bhagwan & Ors. vs. State of Haryana, : (1999) 3 SCC 102 and Randhir Singh Rana vs. State, : (1997) 1 SCC 361. It is argued that the police in the present case has utterly failed to pin pointedly prove any violence in the room wherefrom the dead body of Mukesh Badwa @ Mukesh Rao was recovered, nor was any other evidence to prove any struggle which might have ensued between the deceased and the accused -appellant and co -accused Vijay Jat. The evidence even otherwise has come on record that Vijay and Mukesh Jat had together gone to village Dantri as stated by Chhotu (PW 4) and Kalu Ram (PW 5). Chhotu (PW 4) has even staled that he along with accused -appellant Mukesh Jat came back to the house. Man Singh (PW 19), the informant and father of the deceased has also named only three persons for the offence of last seen namely; Vijay Jat, Kalu Kumar and Chhotu Daroga, who had taken the deceased with them.