JAGTAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal against the judgment of the learned Sessions Judge, Bikaner dated 7 -7 -1981 where by the accused appellant was convicted under Sections 302 and 404 IPC and sentenced him to life imprisonment and a fine of Rs. 500/ - under Section 302, IPC and 1 year's rigorus imprisonment with fine Rs. 100/ - under Section 404 IPC and in default of payment of fine to further undergo 4 months rigorous imprisonment and 1 month's rigorous imprisonment respectively.

(2.) THE facts giving rise to this appeal are that in the night intervening between 26 and 27th September, 1979 Bhopal Singh PW 6 who was T.X R. was informed by the railway staff's Shiv Kishan, Carpenter that in coach No. 806 which was on washing line No. 2 a dead body is lying in the toilet of this coach, Bhopal Singh went to the toilet and found that one person aged between 40 to 45 was lying dead. He sent a memo Ex. P 3 to S.H.O., G.R.P. On receiving this memo Jeet Singh PW 18 S.H.O., G.R P. registered this as First Information Report and went to see coach No. 806. On reaching there he took the dead body and prepared the Ex. P 23 and thereafter site plan Ex. P 24. The clothes of the dead body were also seized. All the articles recovered from the pocket of the deceased were also seized. During the inspection of dead body, it was found that the deceased has been strangulated. On the basis of this First Information Report, the investigation was taken up and during the course of investigation, it was found that the dead body is of deceased Om Prakash Agarwal resident of Khajuwala who has business of wood and iron. On establishing the identity of the deceased the son of deceased Ramesh Kumar PW 13 was contacted. Thereafter, he indentified the dead body to be of his father. It further came to the notice that deceased Om Prakash was resident of village Goluwala Mandi District Sri Ganganagar and he had a shop at Khajuwala. In fact, he was going to Sri Ganganagar via Bikaner. It further came to the notice that the accused Jagtar Singh was at one time an employee of Om Prakash. Deceased Om Prakash removed him from his shop when he found that he has committed theft at his shop. Thereafter, accused Jagtar Singh started working at Samundra Singh's shop. There co accused Ramesh Kumar was also working. On 26 -9 -1979 at about 9 to 10 a.m. Jagroop Singh and Om Prakash were taking their food at that time both the accused persons came there and some food was also given to these persons by Jagroop Singh and Om Prakash. On that day, deceased Om Prakash wanted to go to his village Goluwala Mandi. He took about Rs. 1,400/ -from his partner Jagroop Singh for payment and Rs. 400/. from one Choudhary. He with this amount along with one black hand bag boarded a bus at Bikaner at 2 p.m. Both these accused persons are said to have boarded the same bus. At Bikaner when they got down at Jassusar Gate and took a Tonga on hire and in that deceased Om Prakash along -with two accused persons. Pradeep Kumar, Santok Singh and Jogendra Kaur PW 1 also travelled. They went to Railway Station, Bikaner. As Jogendra Kaur and her husband were also going to Sri Ganganagar, deceased Om Prakash asked them to keep some space for him also in the compartment and they may also take his ticket. Om Prakash got down near Kot Gate but mean while both the accused persons also got down. A ticket was purchased for Om Prakash by Santok Singh Jogendra Kaur and her hushand. Deceased Om Prakash reached at the railway station before the departure time of the train where he found all of them sitting, namely, Jogendra Kaur, Santok Singh and her husband. The train for Sri Ganganagar was in siding and it has not arrived at the platform. The deceased handed over his hand -bag to Jogendra Kaur and her husband and went to toilet and since there was no water in the toilet therefore he told them that he is going to another compartment. The deceased went to another train, which was standing there for easing himself. It is said that both the accused persons had followed him there. Thereafter, neither the accused persons came nor Om Prakash turned up. The train came to the main platform and left for Sri Ganganagar. But neither deceased Om Prakash turned up nor both the accused persons came there. The hand bag of the deceased, Om Prakash, remained with Jogendra Kaur and her husband. They handed over this to Santok Singh because it is said that Santok Singh was known to deceased Om Prakash. This black hand bag was handed over by Santok Singh to the police on 27 -10 1979. During the course of investigation both the accused persons were arrested on 5 -10 -1979. When the accused persons were in the custody of police, they gave information on 7 -10 -1979. On the information given by accused Ramesh Kumar, the police recovered a sum of Rs. 700/ - of Rs. 100/ - denomination from his house at Khajuwala from one pillow. On 10 -10 -1979 accused Jagtar Singh also got Rs. 700/ - from a purse recovered at his instance. This was got recovered from the house of the accused by opening the lock. He also got recovered one printed card of deceased Om Prakash and one paper in which the account of deceased Om Prakash was written. This purse was got identified by Ramesh Kumar son of the deceased. Similarly, that account paper Ex. P 2 was also identified by Ramesh Kumar to be in the hand writing of deceased Om Prakash. One white Safa and towel were also got recovered from the dead body. The Safa is said to be of accused Jagtar Singh while the Towel is said to have belonged to accused Ramesh Kumar. It is alleged that this was purchased by accused Ramesh Kumar from the shop of Gauri Shanker PW 12. After close of the investigation, the accused persons were sent for trial under Section 302 read with Sections 34 and 394 or in the alternative under Section 404 IPC.

(3.) LEARNED Counsel for the appellant submitted that in the present case the evidence against the accused Jagtar Singh is only circumstantial evidence and there is no direct evidence. The circumstances which the prosecution wanted to prove against the accused are of last seen, recovery of Rs. 700/ -, one purse and one account paper which is said to have been recovered at the instance of the accused and the motive. Mr. Garg learned Counsel for the appellant has streneously urged that the circumstances which have been used by the prosecution has failed to establish the guilt of the accused. In this connection, learned Counsel submitted that so far as last seen evidence is concerned that in itself is not sufficient and he has further submitted that for the purpose of proving the evidence of last seen, Jogendra Kaur and Santok Singh have been produced by the prosecution who are said to be co -passengers in Tonga. Learned Counsel submitted that both these accused persons were not put to identification parade that whether these accused persons are the same who were last seen with the deceased. We have examined this aspect closely and have gone through the evidence of PW 1 Jogendra Kaur and PW 10 Santok Singh. Though the learned Sessions Judge did not attach much importance to the identification parade. But Mr. Garg, learned Counsel for the appellant has emphasised that without putting these accused persons to identification parade the identification of the accused in the court by these witnesses hardly carries much weight. In this connection, learned Counsel has invited our attention to State (Delhi Admn.) v. V.C. Shukla and Am (1) AIR 1980 SC 1372 and Kanan and Ors. v. State of Kerala (2).