MOHD. TAYAR SON OF MOHD. SHAFI, BY CASTE MUSALMAN, RESIDENT OF ALIGARH, LAST RESIDING AT JHOTWARA, JAIPUR Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant stands convicted under Sec. 302/34 Penal Code with fine by the Sessions Judge, Jaipur dated 24/11/1983 in Sessions Case No.3/1983. The separate appeal of co-accused Ganga Singh stands abated due to his demise during the pendency of his appeal.

(2.) The dead body of Fateh Singh was found hanging from a tree. PW-11, Dinesh Sharma, SHO deposed that on information he registered Rojnamcha no.1615 dated 26/09/1982 and handed it over for enquiry under Sec. 174 Crimial P.C. to PW-1, Bhola Ram the constable. The latter registered FIR Exhibit P/12 that the deceased had a deformity in the left leg because of which he needed a lathi to walk. Therefore he was incapable of hanging himself. His lathi was also not to be found near the body concluding that the deceased had been killed and hanged.

(3.) Learned Counsel for the Appellant submitted that case of the prosecution is based wholly on circumstantial evidence alone. The prosecution has completely failed to establish any link of chain of circumstances pointing out to the complicity of the Appellant much less that the chain was complete. There is no evidence that the deceased was last seen with the Appellant. The post-mortem report is clearly suggestive of death by hanging. There is no warrant for the presumption that the deceased was incapable of hanging himself due to physical deformity in his left leg so as to reach a presumptive conclusion of having been killed and hanged. It is purely a speculative and opiniated view of PW-1, Bhola Ram without any basis for the same. The post-mortem report is clearly suggestive of death by hanging and the opinion of the doctor that the deceased had been killed and hanged is merely an expression of opinion contrary to the medical evidence. If the deceased had been killed and then hanged there had to be commensurate injuries on his person noticed in the post mortem report. Likewise if he was hanged forcibly by two persons surely there would have been a struggle by him when again there would have been injuries on his person. The tongue was also caught between teeth short of protrusion which clearly suggest death by hanging. The onus lay on the prosecution to establish beyond all reasonable doubt that the deceased had been killed and hanged or hanged to death while alive. The prosecution has failed to discharge that burden. If the possibility that the deceased may have committed suicide cannot be ruled out the benefit of doubt has to be given to the Appellant. The fancy story of the pug marks of the Appellant having been found near the place of occurrence cannot be accepted as the prosecution has admitted that several villagers had assembled at the place of occurrence and there is no forensic basis for alleged identification of the pug marks.