SALAM AND FAYAZ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE Sessions Judge, Pratapgarh, by his judgment dated 24 -8 -1974 convicted the appellants of the offence Under Section 302, I.P.C. and sentenced to each of them to imprisonment for life for having murdered one young Lad by name Aziz son of Kalekhan, who was found missing from the evening of 30 -11 -1973

(2.) THE prosecution case, in brief, is that Nirbhay Singh (PW 13) happened to go towards the temple on the hillock and found the dead body lying prostrate. He reported the matter to his father -in -law Deepsingh (PW 12) Deepsingh in turn informed Kalekhan that a dead body is lying inside the dilapidated temple, so he may go and find out whether it is of his son. There upon Kalekhan (PW 3) went to the temple and found that the dead body is of his son Aziz. He came back to his village Vinota and raised shrieks and told the villagers about the dead body of his son. Thereupon the villagers went to the temple. The matter was also brought to the notice of the Sarpanch Sagarmal (PW 10). Thereupon Sagarmal asked the villagers to inform the Police Hazarimal (PW 1) went to the Police Station, Nimbahera and lodged the written report Ex. P. 1. Thereupon case Under Section 302, IPC, was registered and a formal first information report (Fx. P/11) was drawn by the S.H.O. Bhupendra Singh (PW 14). Bhupendra Singh commenced the investigation. He visited the spot, prepared the site plan (Ex P/3) and site notes (Ex P/2), Panchnama Lash (Ex. P/4) and sent the dead body for post mortem examination and seized the blood stained clothes of the deceased vide memo Ex. P/6. On 4 -12 -1973 both the accused persons were arrested vide memos Ex. P 9 and Ex. P 10. On the information of the accused Faiyaz (Ex. P 12) his blood stained shirt, pant and pair of shoes were recovered vide recovery memo Ex. P 5. All these blood stained articles were packed and sealed. On the information of the accused Salam (Ex. P 3) blood stained knife was recovered vide memo Ex. P 7. Knife was also packed and sealed. All these articles were sent for chemical examination and on chemical and Serological examinations it was found that all these articles were stained with human blood. Investigation was conducted from the witnesses. After completion of the investigation, charge -sheet was present against the appellants and the appellants were committed for trial by the Munsif and Judicial Magistrate, Nimbahera, to the court of Sessions Judge, Pratapgarh. The Sessions Judge charged the accused with the offence Under Section 302, IPC, as well as Under Section 302/34 IPC. The accused persons, however, pleaded not guilty to the charges and claimed to be tried. At the trial, the prosecution examined in all 15 witnesses. In their statements, the accused persons denied the entire prosecution case and led no evidence in defence. The learned Sessions Judge, on the basis of certain circumstances, which have been found to be proved, convicted and sentenced the accused persons, as aforesaid. The learned Sessions Judge held that the following circumstances are proved against the accused persons:

(3.) THERE is no direct evidence in this case connecting the accused persons with the crime and the entire case is, based on the circumstantial evidence. Out of the circumstances, which have been relied upon by the learned Sessions Judge, the most material circumstances are the recoveries of blood stained clothes on the information and at the instance of the accused Faiyaz and blood stained knife on the information and at the instance of the accused Salam. In respect of these recoveries Mr. Doongar Singh, learned Counsel for the appellants, submitted that the evidence relating to recoveries is absolutely unreliable and there are serious infirmities in the prosecution evidence relating to the aforesaid recoveries. He pointed out that according to she investigating officer, the accused persons were arrested at village Vinota on 4 -12 -1973 and the accused persons gave informations at the Seed House soon after their arrest and recoveries of blood stained clothes at the instance of the accused Faiyaz in pursurance of his information, was first effected and thereafter the recovery of knife was effected. As against this Shamsuddin (PW 4) has stated that the knife was first recovered and thereafter recoveries of the clothes were made. Shamsuddin and Sitaram are the witnesses of the recoveries of clothes. Sitaram has stated that he remained outside the house of the accused Faiyaz and he cannot say from where the accused brought the clothes from inside the house. The statement of Sitaram is of no held to the prosecution. Shamsuddin has also stated that the Head Constable and went inside the house and brought the clothes from inside and he was standing at the door of the house. According to Shamsuddin the She recovery was effected at about 9.00 a.m., on 3.12.1973. Mr Doongar Singh also made reference to the statement of Bardichand (PW 11), who is the Motbir of the recovery of knife. He has deposed that he had visited the place where the dead body was found only twice. First he went to that place along with the villagers and second time when the police had arrived and the knife was recovered at the time when the police had arrived, which shows that the recovery was effected on 3.12.1973. Thus, the correctness of the statement of Bhupendra Singh with regard to the recoveries, became highly doubtful in as much as according to him the recoveries ware effected on 4.12.73 whereas, according to the Motbir witnesses the recoveries were effected on 3.12.1973. As regard the recovery of knife, Mr. Doongar Singh urged that the recovery of knife at the instance of the accused Salam is highly doubtful in view of the statements of Hazari Mal and Shamsuddin, who were also present at the time of the recovery of knife. Although Badri Singh (PW 5) and Bardichand (PW 1) are the Motbirs of the recovery of knife, but these witnesses admit the presence of Shamsuddin at the time of recovery and Shamsuddin's version is that both the accused persons and the Police went in search of the knife and after some time they brought the knife, which was in the hands of the Police personnal and the statement of Hazarimal (PW 1) is to the effect that a search in respect of knife was made and it was not traced, but then Badri Singh got it from the nearby bushes If the evidence of recoveries is viewed in the light of PW 1 Hazrimal and Shamsuddin (PW 5), then it cannot be found that the knife was got recovered by the accused Salam and besides that even with regard to the recovery of knife, this discrepancy is already there whether it was effected on 3. 2.1973 or 4.12.1973. According to Badrichand's statement, as already stated, it was recovered on 3.12. 973