IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T (1) Sheodan Singh & Anr. Vs. The State of Raj. (D.B.Criminal Appeal No.1798/2003) (2) Nand Kishore Vs. State of Rajasthan (D.B.Criminal Appeal No.1566/2003) D.B.Criminal Appeals under Section 374 Cr.P.C. against the judgment dated 20.10.2003 passed by the Additional Sessions Judge(Fast Track) No.2, Jaipur City, Jaipur in Sessions case No.148/01. ***** DATE OF Judgment ::: DECEMBER 4, 2009 P R E S E N T HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN HON'BLE MR.JUSTICE RAGHUVENDRA S.RATHORE Mr.Vinay Pal Yadav, for the appellants Mr.J.R.Bijarnia, Public Prosecutor for the State BY THE COURT:(PER HON'BLE N.K.JAIN J.)
1. Both the appeals are directed against common judgment dated 20th October, 2003 passed by Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur. Therefore, both the appeals were heard together and are being disposed of by this common order.
2. Briefly stated the facts of the case are that on 4th November, 2000 a written report (Ex.P6) was lodged by Durgpal Singh (P.W.2) father of deceased Kamal Singh at Police Station Vaishali Nagar, Jaipur, wherein it was alleged that he had gone to Delhi for his treatment. He came back on 20th October, 2000 at his village Rajpur then his wife Smt.Jamna asked him whether Lalla Kamal Singh their son had reached at Delhi or not then he told her that he did not reach. On asking, she told that on 6th October, 2000 one Jai Prakash of their village had taken Kamal Singh with him to Jaipur stating that his wife has burnt. Kamal Singh took a sum of Rs.5000/- from the house and Rs.3500/- from his nephew Rustam Singh to give it to Jai Prakash for treatment of his wife, but he did not return so far from Jaipur. His another son Pati told him that after one week of Dashehara Jai Prakash met him and when he asked about Kamal Singh then he told that they left him at Delhi to go with his father. Thereafter, he went to the house of Jai Prakash, but it was locked-up and no one was there. Thereafter, he went to Jaipur to search Kamal Singh and on second day, he reached Hasanpura at Jaipur and inquired from one Prem Singh, who told him that Kamal Singh had attended the funeral of Jai Prakash’s wife and on the said night Kamal Singh, Jai Prakash, Nand Kishore had stayed with Lakhan and other persons in the house of Sheodan, but on next day’s morning, Kamal Singh, Jai Prakash, Nand Kishore and Sheodan had gone to the room of Jai Prakash, thereafter he has not seen Kamal Singh. The description of Kamal Singh was given in the report along with other facts. On the basis of above information, a First Information Report No.356/2000 (Ex.P7) was registered under section 302, 201 & 34 I.P.C. and investigation commenced.
3. During investigation, the accused persons were arrested and as per information given by accused Sheodan about dead body, the skeleton of deceased Kamal was found and bones, ribs, skin, clothes and other articles of deceased were recovered. Similarly, as per information of accused Nand Kishore, the watch of deceased was recovered and on the information of accused Jai Prakash, a Baniyan (undergarment) was recovered. After completion of investigation, the police filed a charge-sheet against all the three accused persons for the offence under section 302, 201 & 34 I.P.C. The case was committed for trial to the court of Sessions Judge, which was transferred for trial to the court of Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur.
4. The trial court framed charge against accused appellants for the offence under section 302/34, 201 I.P.C. The accused persons denied the charge and claimed to be tried.
5. In support of the case, the prosecution examined P.W.1 Mohan Lal, P.W.2 Durgpal, P.W.3 Than Singh, P.W.4 Khamani Singh, P.W.5 Bhanupratap Singh, P.W.6 Bhudev Singh, P.W.7 Rustam Singh, P.W.8 Sube Singh, P.W.9 Bhagwan Sahai, P.W.10 Basant Kumar, P.W.11 Lakhan Singh, P.W.12, Smt.Jamna Devi, P.W.13 Smt.Darupa Devi, P.W.14 Mihilal, P.W.15 Chhotey Lal @ Shyamvir, P.W.16 Sugad Singh, P.W.17 Mishrilal, P.W.18 Premraj, P.W.19 Mahaveer Singh, P.W.20 Prempal, P.W.21 Bhudev, P.W.22 Pati Ram, P.W.23 Rohan Singh, P.W.24 Dr.B.M.Gupta, P.W.25 Kishan Kumar, P.W.26 Atmaram, P.W.27 Vidhyaram, P.W.28 Bharat Singh, P.W.29 Om Prakash, P.W.30 Ramavtar, P.W.31 Kanvarpal Singh, P.W.32 Bhagwan Sahai Sharma, P.W.33 Mukesh Bhargava, P.W.34 Mohd.Irshad and produced documentary evidence Ex.P1 to Ex.P69. Thereafter, the statements of accused persons were recorded under section 313 Cr.P.C., wherein it was stated by them that they have falsely been implicated in the case. No evidence was led in defence.
6. The learned trial court after considering the evidence available on record and hearing both the parties convicted and sentenced each of the accused appellants for offence under section 302/34 I.P.C. to undergo life imprisonment and a fine of Rs.2000/- and in default of payment of fine to further undergo 2 months additional simple imprisonment and under section 201 I.P.C. to undergo 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine to further undergo one month additional simple imprisonment. Being aggrieved with the order of conviction and sentence, the accused appellants Sheodan Singh and Jai Prakash have preferred D.B.Cr.Appeal No.1798/2003 and accused Nand Kishore preferred D.B.Cr.Appeal No.1566/2003.
7. The learned counsel for the appellants argued that so far as evidence relating to last seen of the deceased with the accused appellants is concerned, it is clear from the statements of prosecution witnesses that no specific date or time has been given by them and on the basis of such statements it cannot be said that the deceased was seen lastly with the accused appellants. The trial court without properly considering evidence on record, wrongly recorded a finding in this regard, which is liable to be set aside by this Court. It is contended that so far as recovery of articles of deceased and skeleton are concerned, the same was also not proved from the prosecution evidence. He contended that recovery of watch at the instance of accused Nand Kishore cannot be believed as it was recovered from the house of Jai Prakash, which was not in exclusive possession of Nand Kishore, therefore, trial court committed an illegality in recording a finding that recovery of watch at the instance of Nand Kishore is fully proved in the case. Similarly, for recovery of skeleton and other articles of deceased at the instance of Sheodan is concerned, he contended that one Motbir witness Kanwarpal has been declared hostile and another witness Basant stated that he put his signatures on the memo at Police Station, which clearly shows that no recovery in fact was made from the accused. He also argued that prosecution has failed to prove any motive to commit crime by the accused and cause of death is also not proved in the present case. He contended that it is the duty of the prosecution to prove that it was a homicide, whereas from the statement of Dr.B.M.Gupta(P.W.24) it is not proved, therefore, the finding of the trial court is contrary to the facts and law both and same is liable to be set aside by this Court.
8. The learned counsel for the appellants referred to Madho Singh vs. State of Rajasthan 2002 Cr.L.R.(SC) 752, Malleshappa vs. State of Karnataka 2009(2) SCC (Cri) 394, Chandran vs. State of Tamil Nadu 1978(4) SCC 90, Dinesh Borthakur vs. State of Assam 2008 (3) SCC (Cri) 39, Hatti Singh vs. State of Haryana 2008 (3) SCC(Cri) 246 and State of Goa vs. Sanjay Thakran & Anr. – 2007 (2) SCC (Cri) 162 in support of his submissions.
9. The learned Public Prosecutor argued that there is ample evidence available on record to prove that deceased was seen lastly with the accused persons and recovery of skeleton and articles of accused as well as deceased at the instance of accused persons are also proved beyond any reasonable doubt, therefore, the trial court was right in convicting and sentencing the accused appellants. He also referred the other evidence to prove that motive to commit crime was there and it was a case of homicide and not a natural death of the deceased. He, therefore, contended that there is no merit in the appeal and the same is liable to be dismissed by this court.
10. We have considered the submissions of the learned counsel for the parties and examined the impugned judgment as well as record of the trial court.
11. In Madho Singh vs. State of Rajasthan(supra), the Hon’ble Apex Court in the facts and circumstances of that particular case observed that in the absence of proof of homicidal death the appellants cannot be convicted merely on the theory of last seen. Para 6 of the judgment is reproduced as under:-
In the absence of proof of homicidal death the appellants cannot be convicted merely on the theory of last seen-they having gone with the deceased in the manner noticed hereinbefore. The appellants’ conviction cannot be maintained merely on suspicion, however strong it may be, or on their conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that all the three were good friends for over a decade.
12. In Malleshappa vs. State of Karnataka(supra) the Hon’ble Apex Court observed that the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Para 24 of the judgment is reproduced as under:-
In the present case also, there is no proximity of time and place. We have already noted that the dead body,even if it is to be accepted, was that of the deceased Yankanna, had been recovered after 10 days after the date on which the deceased was last seen in the company of the appellant. This singular piece of circumstantial evidence available against the appellant, even if the version of PW 10 is to be accepted, is not enough. It is fairly well settled that the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. It is true as has been held by this Court in Lakshmi v. state of U.P. that it is not an inflexible rule that the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased though are factors to be established by the prosecution but it cannot be held as a general rule and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all eventualities, it ought to result in acquittal of those who may be charged with the offence of murder provided the charges against the accused otherwise can be established on the basis of the other reliable and trustworthy evidence.
13. In Chandran vs. State of Tamil Nadu(supra) the Hon’ble Apex Court held that confessional statement leading to the recovery must be proved. Para 36 of the judgment is reproduced as under:-
We have, with the aid of the counsel on both sides, examined the record and find that no statement of A-1, alleged to have been recorded under Section 27, Evidence Act leading to the recovery of the jewels (MO2 and MO3), was proved against him (A-1). The Police Inspector (PW 34) testified at the trial that in pursuance of the confessional statement (Ex.P-10), A-1 took the police party to Kodayan Kollai and produced the jewels (MO 2 and MO 3 series) from the roof of Attukottaigai, where they were lying covered in the Banian (MO 20). He seized these jewels under the Memorandum (R-11) which was attested by PW 21. We have examined Ex.P-10, dated 31-1-1974. It is conspicuous by the non-mention of anything relating to the jewels (MO 2 & MO 3). It refers only to certain clothes. In his deposition, the Police Inspector (PW34) did not reproduce the substance of the statement alleged to have been made before him by A-1 in respect of these jewels. Nor has the extract of the alleged confessional statement of the appellant leading to the discovery of these jewels been incorporated in the Memorandum (R-11). Thus the fact remains that no confessional statement of A-1 causing the recovery of these jewels was proved under Section 27, Evidence Act. The only component of circumstance 9, that had been established was that A-1 led the police party to a hut in the occupation of one Murugan and produced from the thatch (roof) of that hut, the jewels (MO 1 and MO 2) and the Banian (MO 20), and later the Serologist found human blood on these jewels. In regard to this recovery, two facts of this Circumstance and a related factor must be borne in mind. Firstly, it is undisputed that the place of the recovery was not in the control or occupation of the appellant. Secondly,this recovery was made about 23 days after the murder. The third factor to be taken into consideration in this connection is, the charge as originally laid against this appellant was that he had abetted by conspiracy, the murder committed by A-2. Indeed, the trial Judge had found that A-2 alone had murdered the deceased. He convicted A-2 for the substantive offence under Section 302, Penal Code and A-l was made vicariously liable for the act of A-2, and convicted under Section 302 read with 120B I.P.C. The High Court, however, acquitted A-2 and altered the conviction of A-l to one under Section 302 read with Section 34, I.P.C. In view of the first facet, it is doubtful whether the recovery of the jewels can
be said to have been made from the exclusive possession or control of the appellant. Even if it is assumed to be so, then also the inference to be drawn from the recovery of these jewels at the instance of the appellant, cannot in view of the other two factors noted above, be legitimately stretched to hold that he was a participant in the murder of the deceased. The safest limit to which the inference can go against the appellant is that he was only a receiver of stolen property. The blood on these jewels is not sufficient to establish unerringly the appellant’s complicity in the murder, when it was the own case of the prosecution that A-2 murdered the deceased and removed the jewels from her body and gave them to the appellant.
14. In Dinesh Borthakur vs. State of Assam(supra) the Hon’ble Apex Court observed that a finding of guilt cannot be based on a presumption. Para 33 of the judgment is reproduced as under:-
A finding of guilt cannot be based on a presumption. Before arriving at an inference that the appellant has committed an offence, existence of materials therefor ought to have been found. No motive for committing the crime was identified which, in the facts and circumstances of the case, was relevant. How the links in the chain of the circumstances led to only one conclusion that the appellant and the appellant alone was guilty of commission of the offence has not been spelt out by the learned Trial Judge.
15. In Hatti Singh vs. State of Haryana(supra) the Hon’ble Apex Court observed that the evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. Para 26 of the judgment is reproduced as under:-
The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis.
16. In State of Goa vs. Sanjay Thakran & Anr.(supra) the Hon’ble Apex Court observed that there can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period. Para 34 of the judgment is reproduced as under:-
From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the
company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the
accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.
17. A written report (Ex.P6) in the present case was lodged on 4th November, 2000 by Durgpal Singh (P.W.2) father of deceased, wherein it was specifically mentioned that his wife told him that on 6th October, 2000, one Jai Prakash of their village took the deceased Kamal Singh with him at Jaipur. Kamal Singh took Rs.5000/- from the house and Rs.3500/- from his nephew Rustam Singh. In the present case, there is no eye-witness of the incident but entire prosecution case is based on circumstantial evidence particularly the last seen evidence as well as recoveries of skeleton and articles of accused and deceased at the instance of accused persons.
18. So far as the first point regarding last seen of deceased with accused persons is concerned, it is relevant to refer the statement of P.W.11 Lakhan Singh, P.W.12 Smt.Jamna, P.W.13 Smt.Darupa Devi, P.W.15 Chhote Lal @ Shyamveer, P.W.18 Prem Raj, P.W.20 Prempal, P.W.21 Bhudev and P.W.22 Pati Ram.
19. P.W.11 Lakhan Singh stated before the trial court that he knows all the three accused persons. He heard that Jai Prakash’s wife has expired and Jai Prakash, Kamal Singh came to their village and thereafter they went to hospital. They stayed in the night and in morning, Kamal Singh, Nand Kishore and Jai Prakash had gone to Vaishali Nagar Police Station. Kamal Singh left with Sheodan and Jai Prakash and they went to attend their duties. P.W.12 Smt.Jamna Devi mother of deceased stated that her son Kamal Singh had gone to Jaipur with Jai Prakash, when Kamal Singh did not come back, they asked to Jai Prakash, who told that Kamal Singh had gone to Delhi. When his father came from Delhi then she came to know that Kamal Singh did not reach Delhi. P.W.13 Smt.Darupa Devi wife of deceased stated that before 9th day of Diwali accused Jai Prakash came to their house and took her husband Kamal Singh with him to Jaipur. She also stated that her husband had taken Rs.5000/- from the house and Rs.3500/- from Rustam Ji. She also gave details about clothes and their colour and wrist-watch of the deceased. P.W.15 Chhotey Lal @ Shyamveer stated that Kamal Singh, Sheodan Singh, Jai Prakash and he came at the residence of Lakhan Singh. They stayed in the night and thereafter he has not seen Kamal Singh. P.W.18 Premraj stated that Jai Prakash, Nand Kishore, Sheodan Singh had come to the residence of Lakhan and from there they went with deceased Kamal Singh. Thereafter, he has not seen Kamal Singh. P.W.20 Prempal has also stated that he saw all the three accused persons with deceased Kamal and thereafter Kamal Singh was not seen by any body. P.W.21 Bhudev also stated that he saw lastly Kamal Singh with accused Nand Kishore, Jai Prakash and Sheodan Singh. P.W.22 Pati Ram stated that on 6th October, 2000 accused Jai Prakash came at their house and took Kamal Singh with him for Jaipur.
20. From the above prosecution witnesses, it is clear that on 6th October, 2000 accused Jai Prakash came at the residence of deceased Kamal Singh and took him for Jaipur. Thereafter, Jai Prakash and Kamal Singh stayed at the residence of Lakhan Singh along with Sheodan and Nand Kishore and in the next day’s morning Kamal was seen lastly with all the 3 accused persons namely Sheodan, Nand Kishore and Jai Prakash. Thereafter, Kamal Singh was not seen. The learned trial court has considered the prosecution evidence in detail in this regard and has rightly recorded a finding that deceased Kamal Singh was seen lastly with accused persons. The learned counsel for the appellants referred to the statements of prosecution witnesses and pointed out some contradictions. But after considering the whole of the statements of the prosecution witnesses, we find that contradictions pointed out by the learned counsel for the appellants are of minor nature and they are not fatal to the prosecution case. So far as, specific date and time about last seen is concerned, it is sufficient to mention that the statements of prosecution witnesses before trial court were recorded after a gap of period of more than one year and prosecution witnesses are illiterate persons, therefore, some omission in their statement, which is not so material, is not fatal to the prosecution. However, from the contents of F.I.R. and the statement of Pati Ram (P.W.22), it is clear that on 6th October, 2000 deceased Kamal went with accused Jai Prakash. P.W.13 has also stated that before 9th day of Diwali accused Jai Prakash took Kamal with him for Jaipur. There is a specific statement of P.W.11 Lakhan Singh, P.W.18 Prem Raj and P.W.20 Prempal that deceased was seen with all the three accused persons and thereafter deceased was not seen by any one. In these circumstances, we are of the view that findings of the trial court in this regard are justified and the same does not call for any interference by this Court.
21. So far as recovery of skeleton i.e. Bones, ribs, skin and other articles of deceased and accused persons are concerned, it is relevant to mention that accused Sheodan was arrested on 4th November, 2000 vide arrest memo Ex.P1 from the house of Mohan Balai (P.W.1) where he was residing as a tenant, by Investigating Officer Mohd. Irshad (P.W.34). Accused Sheodan voluntarily furnished an information to Investigating Officer under Section 27 of the Evidence Act as to where the dead body of deceased Kamal Singh is lying, the same was reduced in writing vide memo Ex.P60 by P.W.34 Mohd. Irshad. Thereafter, as per recovery memo Ex.P8 the underwear and two keys of deceased were recovered along with skeleton i.e. bones, ribs, skin of the deceased. Since dead body had been ruined by animal or otherwise by lapse of time as there was some gap of time, therefore, corpse could not be recovered. However, prosecution has proved that skeleton was of deceased Kamal Singh. In this regard it is relevant to mention that the blood of Durgpal Singh (P.W.2) and Smt.Jamna Devi(PW.12) parents of the deceased was taken and the same was sent for DNA Test along with bones and ribs of the deceased. DNA Report ExP69 dated 3rd January, 2003 was placed on record by prosecution, wherein result of examination was that it is concluded that source of Exhibit D (bones) cannot be excluded from being the biological offspring of the sources of Exhibits A and E (Smt.Jamna and Shri Durgpal Singh) respectively. The result of examination and the conclusion of DNA report are reproduced as under:-
RESULT OF EXAMINATION
On comparison, the DNA fingerprint of the source of exhibit D (bones) is comparable with the DNA fingerprints of the sources of exhibits A and E (blood samples of Smt.Jamoona Devi and Shri Durg Pal Singh) respectively. Therefore, it is concluded that source of exhibit D (bones) cannot be excluded from being the biological offspring of the sources of exhibits A and E (Smt.Jamoona Devi and Shri Durg Pal Singh) respectively.
CONCLUSION
The above test (STR analysis) is sufficient to conclude that the source of exhibit D (bones) is the biological offspring of the sources of exhibits A and E (Smt.Jamoona Devi and Shri Durg Pal Singh) respectively.
22. The above DNA report makes it clear beyond any reasonable doubt that bones recovered vide recovery memo Ex.P8 in pursuance of information furnished by accused Sheodan under Section 27 of the Evidence Act was belonging to deceased Kamal Singh and none else. The information Ex.P60 has been proved by P.W.34 Mohd. Irshad Investigating Officer, Ex.P8 recovery memo has been proved by Basant Kumar (P.W.10) and Mohd. Irshad (P.W.34). The recovery memo has also been proved by P.W.2 Durgpal Singh and P.W.22 Pati Ram, who identified the other articles of the deceased including two keys from which the room of deceased was also opened. Therefore, recovery of bones and other articles of deceased are fully proved in the present case.
23. Similarly, the accused Nand Kishore was arrested on 7th November, 2000 vide arrest memo Ex.P17 and he gave information under Section 27 of the Evidence Act vide Ex.P66 about watch of deceased, the same was reduced in writing by P.W.34 Mohd. Irshad and in pursuance thereof the watch was recovered vide recovery memo Ex.P14, which has been proved by P.W.6 Bhudev and P.W.7 Rustam. Therefore, the said articles of deceased recovered at the information from accused Nand Kishore are also proved in the case.
24. The accused Jai Prakash was arrested on 7th November, 2000 and he also gave an information about one Baniyan, which was recovered vide recovery memo Ex.P2 and which has been proved by P.W.1 Mohanlal and P.W.5 Bhanupratap Singh. A site plan of recovery memo Ex.P3 is also proved. In this connnection, FSL report Ex.P67 is also important, from which it clearly reveals that Baniyan was found to be stained with A Group Blood. The description of articles and result of examination mentioned in FSL report dated 4th November, 2000 (Ex.P67) are reproduced as under:-
DESCRIPTION OF ARTICLES
___________________________________________________
S.No. PACKET EXHIBIT NO. DETAILS OF EXHIBIT
___________________________________________________
1. c. 1. Skin piece.
2. D. 2. Hairs.
3. E. 3. Blood smeared soil
4. E-1. 4. Control soil.
5. H. 5. Baniyan
___________________________________________________
RESULT OF EXAMINATION
1. On Serological examination, the blood stains on the following exhibits were found to be of HUMAN origin :-
1(from C), 2(from D), 3(from E), 5(from H).
2. Blood could not be detected in the following exhibits:-
X
3. The origin of the stains on exhibits noted below not be determined for the reason stated:-
X
NOT SUFFICIENT FOR THE
REPORT ON BLOOD GROUP
4. The following exhibits were found to be stained with ‘A’ group blood:-
1(from C), 3 (from E), 5 (from H).
5. The blood groups of the stains on the exhibits noted below could not be determined for the reason stated:
2(from D). RESULT REMAIN IN-CONCLUSIVE.
25. The above referred FSL report Ex.P67 makes it clear that human blood was found on Baniyan, which was belonging to accused Jai Prakash. It further makes it clear that the same blood was found on the skin of deceased Kamal Singh and the blood smeared soil collected from the spot. Ex.P67 has been proved by P.W.24 Dr. B.M.Gupta and P.W.34 Mohd. Irshad Investigating Officer. Therefore, it is proved beyond reasonable doubt that the blood of deceased Kamal Singh was established on the Baniyan belonging to accused Jai Prakash. The accused Jai Prakash has not given any explanation in this regard in his statement recorded before the trial court under Section 313 Cr.P.C.
26. So far as death of deceased Kamal Singh, whether it was homicidal or natural or accidental, and cause of death is concerned, it is relevant to refer to the statement of P.W.24 Dr.B.M.Gupta, who has not stated specific cause of death for the simple reason that skeleton of deceased Kamal Singh was recovered when accused persons were arrested after some gap of time from the date of incident. The deceased was a young man of about 32 years, he was not suffering from any disease. When he was seen lastly with the accused persons, he was carrying Rs.8500/- with him, his last seen with the accused persons is established from the above discussion of the evidence. The recovery of skeleton and other articles of deceased are also proved from prosecution evidence as discussed above. If death of deceased was natural or accidental then why the accused persons did not inform the parents of the deceased immediately particularly when they were known to each other and were belonging to nearby villages and why the skeleton and other articles of deceased were hidden by them. The trial court after considering all the evidence available on record has recorded a finding that death of Kamal Singh was homicidal. The reasonings given by the trial court in this regard appear to be reasonable and justified and we do not find any justified reason to interfere with the same.
27. The above discussed facts and evidence show that the case law cited on behalf of appellants as referred above are not applicable in the facts and circumstances of the present case. The Hon’ble Apex Court in Ramdas & Ors. vs. State of Maharashtra 2006 AIR SCW 5675 considered its earlier judgment in Pandurang & Ors. vs. State of Hyderabad (AIR 1956 SC 216) and held that it is a settled law that however similar the circumstances, facts in one case can not be used as a precedent to determine the conclusion on the facts in another. The relevant part of Para No.23 of the judgment is reproduced as under:-
23. ………….
No strait-jacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another…..
……….
28. The above facts and discussion of prosecution evidence make it clear that prosecution has proved the last seen of the deceased with the accused persons by cogent evidence, the recovery of skeleton and other articles of deceased and death of deceased was homicidal are also proved by prosecution evidence. The trial court has discussed the evidence in detail and we have also discussed the relevant evidence in this regard and we are satisfied that the finding of the learned trial court for holding the accused persons guilty is based on sufficient evidence and same cannot be said to be illegal or perverse so as to interfere with the same.
28. In view of above discussion, we do not find any merit in any of the submissions of the learned counsel for the appellants. Both the appeals are accordingly dismissed being devoid of any merit.
(Raghuvendra S.Rathore) J. (Narendra Kumar Jain), J.
BKS/