JUDGMENT
Shiv Kumar Sharma, J.
1. On July 10, 1999 P.K. Gupta (now deceased) came from Merrut to Jaipur and stayed in Hotel Chaudhary in room No. 208. In the morning of July 11, 1999, dead body of P.K. Gupta was found lying in pool of blood. The police investigation revealed that the accused appellants Shankar and Ganesh had committed murder of P.K. Gupta, thereafter they were indicted before the learned Special Judge SC ST (PA Gases) Jaipur, who vide Judgment dated November 13, 2001, convicted Shankar and Ganesh under Section 302 alternatively 302/34 IPC and sentenced each of them to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer one year imprisonment.
2. The prosecution story is woven like this:
On July 11, 1999 at 10.30 AM the informant Rajesh Chaudhary (Pw.1) (owner of Hotel Chaudhary) submitted a written report at Police Station Vidhayakpuri Jaipur with the averments that when around 8 AM he arrived at the hotel he found Man Singh a servant of the hotel and one Balachandran. Customer of Room No. 207 standing at the counter. He however did not find Ganesh and Shankar, the two waiters of the hotel to whom night duty was assigned. Telephone wire was found broken. When the informant checked the rooms of the hotel he noticed that room No. 208 was locked from outside. Room No. 208 was occupied by P.K. Gupta on July 10, 1999 at 9 PM. On receiving telephonic message Rakesh and Vikas, brothers of the informant rushed to the hotel. Vikas peeped into the key-hole of Room No. 208 and saw the legs of a person on the floor of the room. The room was knocked but nobody gave response from inside. The informant on being suspected some foul play, telephonically informed police station Vidhayakpuri. The police arrived at the hotel and broke open room No. 208 where dead body of P.K. Gupta was found lying in a pool of blood and his attechee and cloths were missing. On the basis of the said report a case under Section 302 and 380 IPC was registered and investigation commenced. Post mortem on the dead body was performed, accused were arrested, necessary memos in connection with recovery of weapon of offence, stolen money etc. were drawn, statement of witnesses were recorded and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge SC/ST (PA) Cases Jaipur. Charges for the offences under Sections 302 and 302/34 IPC were framed, who denied the charges and claimed trial. The prosecution in support of the case examined as many as 36 witnesses. In the explanation under Section 313 Cr.P.C., the accused claimed innocence, however no witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above.
3. Having heard the submissions advanced before us we notice that the instant rase rests on circumstantial evidence therefore in order to justify the inference of guilt of the accused we have to adjudge as to whether all the incriminating facts and circumstances are incompatible with the innocence of the accused and the chain of evidence is so complete as not to leave reasonable ground for a conclusion therefrom consistent with the innocence of the accused.
4. Undeniably the death of P.K. Gupta as per post mortem report (Ex.P-23) was homicidal in nature. Following ante mortem injuries were found on the dead body:–
1. Lacerated wound 1cm x l/4cm x l/4cm on (R) side eyelid with dark red clotted blood.
2. Lacerated wound 1/2 x 1/4 1/4 cm on (R) lateral aspect of eye red clotted blood.
3. Lacerated wound 1 1/2 x 1/2 x l/4cm injuries aspect of (R) eye laterally with bruise surrounding the lacerated wound red in colour (R) eye black eye with sub conjecting haemorrhage at place darred in colour with fracture of (R) zygomatic region with ante mortem red C/l clotted blood.
4. Lacerated wound 3 x 1 x 1/2 cm transversely placed over (R) cheek. Red clotted blood with fracture of (R) moler region maxilla bone with red clotted.
5. Lacerated wound 4 1/2 x 1/2 x Ms. deep transversely placed over. Lateral aspect of (R) angle of mouth with red clotted blood
6. Lacerated wound 3cm x 1/2 x through and through over (R) nostril extending to cheek. On further examination shows fracture of nosal bone with red (dark) clotted blood.
7. Abrasion 1/2 x 1/2 cm on nose anteriorly dark red in colour.
8. Lacerated wound 2 x 1/2 x Ms. deep present over M 1/3 of (R) side upper lip obliquely placed with red clotted blood present.
9. Lacerated wound 2 1/2 x 1 1/2 x Ms. deep transversely placed over chin with red clotted blood.
10. Lacerated wound 4 x 2 x Ms. deep through and through with diffuse swelling present on further exploration show. Fracture of M 1/5 of (R) side mandible bone. Teeth displaced.
11. Lacerated wound 1 x 1/2 x Ms. deep present over center of chin with dark red clotted blood.
12. Lacerated wound 3 x 1/2 x Ms. deep present over (L) side chin irregular in shape with red clotted blood present.
13. Abrasion 1 x 1/2 cm on (R) side neck 1/3 cm lateral aspect.
14. Abrasion 1/2 x 1/2 cm on (R) side neck Ml/3 of neck laterally.
15. Abrasion 1 x 1/2 cm (R) clavicle on sternal and anteriorly red in colour.
16. Linear abrasion 1 cm (L) side of neck M 1/3 laterally red in colour.
17. Bruise 4 x 3 cm on anterior aspect of M 1/3 of neck admon appli. Red in colour.
18. Abrasion 1/2 x 1/2 cm on (L) 1/3 of right area posterior part red in colour.
19. Lacerated wound 1 1/2 x 1/2 x 1/2 cm on posterior aspect of (R) elbow joint margin irregular – defined red clotted blood.
20. Two parallel bruise each of size 11 x 1/2 cm with gap of 1/2 cm in between all along the margin red in colour extending from lower margin of (R) side costal region to (R) hypochondrium. Obliquely placed. Both ends does not meet. Further examination show extra effusion and extra cessation of blood.
21. Abrasion 2 x 1cm x 1/3 of (R) thigh red in colour.
According to Dr. L.N. Sihag (Pw.24) death was caused as a result of pressure over neck (manual strangulation).
On chemical examination of Viscera vide FSL Report (Ex.P- 22) ethyl alcohol in blood was found 57.5 mg 100 ml. of blood.
In thus appears that before the death P.K. Gupta had consumed liquor and he died as a result of manual strangulation.
5. The circumstances put forward by the prosecution against the accused Shankar and Ganesh may by summarised thus:–
(i) On July 10, 1999 P.K. Gupta had withdrawn a sum of Rupees 35,500/- from Urban Bank Vishwakarma Area Jaipur.
(ii) P.K. Gupta stayed in Room No. 208 of Hotel Chaudhary and made necessary entries in the Entry Register of Hotel on July 10, 1999 at 9 PM. At that time Rakesh Chaudhary (Pw.6) one of the partners of the Hotel was at the counter. When Rakesh Chaudhary left the Hotel at 11 PM, Waiters Ganesh and Shanker were on night duty.
(ii) Hanuman Sahai (Pw.4) and Tara Chand (Pw.17), Constables of Police station Vidhayakpuri who were on patrolling duty, saw around 3.30 AM that one light on the second floor of Hotel was suddenly on and then it was off. It was again on and then turned off. Having suspected some foul play the Constables went to the hotel door. On being inquired as to what was going on. three persons Ganesh, Shanker and Pradeep came down and explained that they were watching TV.
(iv) In the morning of July 11, 1999 dead body of P.K. Gupta was recovered from Room No. 208, which was locked from outside and Shanker and Ganesh were missing from the Hotel.
(v) At the instance of Ganesh and Shanker sum of Rs. 33,500/-, iron pipes, Air gun and empty bottle of liquor were recovered.
(vi) Chance prints lifted from Room No. 208 were matched with the finger prints of the accused.
(vii) Shanker and Ganesh had motive to kill P.K. Gupta.
6. Learned Counsel for the appellants canvassed that the circumstances brought forward by prosecution are not conclusively established and do not inspire confidence. Hanuman Das (Pw.4) and Tara Chand (Pw.7) in their deposition stated that there were three waiters in the Hotel and at 3.30 AM when waiters were called only Pradeep came out and two remained inside. Since Identification Parade was not held it was difficult for these witnesses to identify Ganesh and Shankar from a distance of 20 ft. Siddeshwari Prasad (Pw.8) also admitted that there was darkness and only light was of the sign board outside the hotel, therefore no reliance could be placed on the testimony of this witness. It was further contended that an Iron pipe was recovered from projection of a window of steps between second and third floor vide recovery memo (Ex.P-17). Since the said recovery was affected from an open and accessible place, it could not connect the accused with the crime. Further the information under Section 27 of the Evidence Act was not proved by the scribe nor Ummed Singh. SHO, to whom the information was given, was examined by the prosecution. Similarly the pipe was recovered from accused Ganesh, vide memo Ex.P-24, stained with blood stains from below the Cooler of room No. 201. Vikas (Pw.7), who was motbir of this recovery, stated that the pipe was recovered from above the Cooler. This place was easily accessible and no reliance could be placed to such recovery. Further the officer to whom information under Section 27 of Evidence Act was given, was not examined by the prosecution. It was further contended that the recovery of air gun from accused Ganesh, allegedly belonging to deceased, also does not inspire confidence since the same was recovered along with attechee prior to arrest of the accused and the prosecution has not examined the Investigation Officer Ummed Singh. It was further urged that the chance prints of Ganesh from dressing table of Room No. 208 also does not inspire confidence since the accused Ganesh was working as waiter in the hotel. Further the finger prints of the accused could not connect them with the crime since the same were not taken before or under the order of the Magistrate.
7. In order to appreciate the submissions of learned Counsel for the appellant, we have carefully scrutinised the material on record. Ashok Gupta (Pw.5) who was clerk in Urban Bank, in his deposition stated that the deceased had withdrawn a sum of Rs. 35,500 – from the bank on July 10, 1999. At the instance of accused Ganesh Rs. 35,500 – got recovered vide recovery memo (Ex.P-31) from the pocket of black Plant that was concealed in a basket covered by waste and filth. Rakesh Chaudhary (Pw.6) deposed that on July 10, 1999 at 9 pm deceased came to the Hotel and made necessary entries in the Entry Register. The deceased was allotted Room No. 208. Rakesh Chaudhary when left the counter at 11 PM, accused Ganesh and Shankar, the waiters of the Hotel were on night duty. Hanuman Sahai (Pw.4) and Tara Chand (Pw. 17) who were the constables of Vidhayakpuri and were on patrolling duty found around 3.30 AM in the intervening night of July 10 and July 11, 1999 that one light of the second floor of Hotel Chaudhary was suddenly on and then turned off. It was again on and then off. Suspecting some foul play the Constables went to the Hotel and inquired as to what was going on. The accused Ganesh and Shankar along with one other person came down and explained that they were watching TV. Both the constables identified Ganesh and Shankar in the court. Siddeshwari Prasad (Pw.8) Receptionist of Gayatri Hotel corroborated the testimony of Hanuman Sahai and Tara Chand. Presence of Hanuman Sahai. Tara Chand and Siddeshwari Prasad at the odd time of 3.30 AM was quite natural. They are independent witnesses and we see no reason to discard their evidence. Recovery of blood stained iron pipes, keys and bottle of liquor were affected at the instance of the accused and necessary memos were drawn. It is no doubt true that Ummed Singh, IO could not be examined because he had gone out of the country and the memos drawn during identification were proved by secondary evidence but for the fault of the prosecution, the perpetrators of such a ghastly crime cannot be allowed to go scot-free vide State of U.P. v. Jay Deo (2003) 1 SCC 456. As already noticed that before his death the deceased had consumed liquor but no empty bottle of liquor was found in room No. 208. One empty bottle of liquor was however recovered at the instance of the accused. The places from where recovery of money and weapon of offence got affected at the instance of the accused were not accessible to all. Only the accused could know that money which was stolen by them was kept in the pocket of a pant that was concealed in a basket under the waste and filth. The accused did not give any explanation that why they left the hotel without accomplishing their night duty. Informant Rajesh Chaudhary (Pw.1) deposed that when he reached Hotel at 8 AM the accused Shankar and Ganesh were not there and waiter Man Singh and one Balachandran, customer of Hotel, were standing at the counter and telephone wire was found broken and Room No. 208 was locked from the outside and the key of the room was missing.
8. Iqbal Ahmed (Pw.26), who was Director of Finger Prints Bureau, gave report Ex.P-51. From the testimony of Iqbal Ahmed and the report it was revealed that Expert and Photographer visited the crime scene on July 12, 1999 and seven chance prints were developed by Expert on the spot and marked C, C1, C2, G3, C4, C5 and co which were photographed on the spot specimen of left thumb print of Ganesh and specimen right middle finger print of Shankar were marked S and S1 and photographed chance prints were compared with the finger and palm prints of Ganesh and Shankar and it was opined that chance print photograph marked C3 was similar and identical with the specimen left thumb print photograph marked S of Ganesh and chance print photograph marked C5 was similar and identical with the specimen right middle finger print photograph marked SI of Shankar. It is no doubt true that the finger prints of the accused were not taken before or under the order of Magistrate but under Section 4 of the Identification of Prisoners Act the police was competent to take the finger prints of the accused. Having closely scanned the material on record we do not see any malafide on the part of the investigating authority. We also do not notice any possibility of fabrication of evidence. The evidence collected by the prosecution is qualitatively such that on every reasonable hypothesis the conclusion is that the accused Ganesh and Shankar are guilty. We find that the chain of circumstantial evidence against the accused is complete and incapable of any explanation or any other hypothesis than of the guilt of the accused.
9. For these reasons we find no merit in the instant appeals and the same accordingly stand dismissed.