JUDGMENT
R.S. Chauhan, J.
1. The abduction and murder of Rajesh Kumar forms the background of these two appeals. The appellants have challenged the judgment dated 27th April, 2002 passed by the Additional Sessions Judge (Fast Track) No. 2, Bharatpur whereby both have been convicted for offences under Sections 302/34 IPC and have been sentenced to life imprisonment and imposed with a fine of Rs. 500/- and to undergo a further sentence of 6 months of simple imprisonment in default thereof. They have also been convicted for offence under Section 364 IPC and have been sentenced to 7 years rigorous imprisonment and imposed with a fine of Rs. 500/- and to further undergo 6 months of simple imprisonment in default thereof. Since both these appeals arise out of the same impugned judgment, they are being decided by this common judgment.
2. The prosecution story starts in Bharatpur where one Mahendra Singh (PW-1) owned a jeep, bearing Registration No. UMW-7711, which he used to run as a tax. The driver of the said jeep was Rajesh Kumar, the deceased in this case. Allegedly on 16.9.1999 one Rajjo (PW-4) came to Mahendra Singh and told him that his tenant Rajesh, the appellant No. 2 before us, wants to hire his jeep for the purpose of bringing his wife and children as his wife has been transferred from Ajmer. Since he did not know the person who wanted to hire the said jeep, he asked his friend Rajesh (PW-2) to go and find out who wanted to hire the jeep. On the assurance of Rajjo, Mahendra Singh allowed his driver Rajesh Kumar to take both Rajesh and another person. The jeep left on 16.9,1999 and was scheduled to come back from Ajmer on the next day. Since the jeep did not come back, Mahendra Singh inquired from Rajjo who assured him that the jeep would return and the delay may have been caused because of some urgent work. Since, the jeep did not return till 21.9.1999, Mahendra Singh lodged a report (Ex.P. 1) with Police Station Kotwali, Bharatpur for a possible abduction of his driver Rajesh Kumar. On the basis of the said report, the police chalked out a former FIR (FIR No. 302/1999) for offences under Sections 364 & 120-B IPC.
3. Meanwhile, on 17.9.1999 one Chand Singh (PW-12) lodged a report at Police Station Adarsh Nagar, Ajmer wherein he claimed that he is working at Nursery of the Forest Department situated at Mahapura, Ajmer, He further claimed that in the morning while he was going to the Nursery, when he was crossing the bridge on Nasirabad Ghati, he noticed a half naked body of a man lying in the water. The man appeared to be around 25-26 years old and seems to have suffered a lot of sharp edged injuries. Near the dead body, one could notice a pool of blood, a vest, slippers and a belt. It seems that the person has been killed by a sharp edged weapon, On the basis of the said report, the police recorded a former FIR (Ex.P. 33). Immediately, the SHO, Hanuman Singh Kaviya (PW-14), started the investigation. During the course of investigation, not only the site plan was chalked out as Ex.P. 27, but by different recovery memos a “Gupti”, a vest, a belt and pair of slipper were also recovered from the site where the body was discovered, the body was brought back and post-mortem (Ex.P. 36) was conducted. Photographs of the body were taken as Ex.P. 1 to P. 24. Since, the body was unclaimed one, it was cremated by the police. The police issued a pubic notice about the recovery of the said body.
4. On the other hand, since the jeep had not come back to Bharatpur, Mahendra Singh and Rajesh Kumar’s cousin brother, Ranveer Singh (PW-7), contacted the police at Bharatpur. The police informed them that a wireless message was received from Ajmer about recovery of a dead body from under a bridge in Nasirabad Ghati. consequently, Ranveer Singh, Suresh Pal Singh (PW-8) and Mahendra Singh (PW-2) went to Ajmer and contacted the police there. Ranveer Singh lodged a third report wherein he reiterated the story narrated by Mahendra Singh to the police at Bharatpur. Ranveer Singh while lodging the said report also submitted a frontal photograph of Rajesh Kumar to the police (Ex.P. 9). On the basis of cloths recovered by the police at Ajmer and on the basis of the photographs of the deceased, Ranveer Singh identified the deceased as his cousin brother Rajesh Kumar.
5. Meanwhile, the story unfolds itself at Chittor according to SHO, Rajendra Prasad (PW-21) of Police Station Kotwali, Chittor, he received a credible information from an unknown person that a jeep bearing Registration No. UMW-7711 is standing at Ashish Spray Painting Shop situated behind Pratap Nagar Gurudwara. When the SHO reached the said spot, he discovered the said jeep standing in the Workshop. He inquired from the Workshop’s owner Manish Kumar (PW-9) about the said jeep. Manish Kumar informed him that about four or five days earlier a boy named Rajesh Punjabi, who claimed to be a resident of Alwar, had brought the jeep to his workshop and asked him to repaint the jeep. Therefore, he had applied red oxide on the said jeep. Since the jeep was being repainted and since the police officer was suspicious about the jeep, he seized the jeep under Section 102 Cr.P.C. vide recovery memo Ex.P.20.
6. While amalgamating all these different reports and FIRs, the prosecution has alleged that the appellants, Raju @ Rajesh Kumar and Sohan Lal, had hired the deep from Mahendra Singh on 16.9.1999 at Bharatpur. During the night of 16th -17th, Rajesh Kumar was allegedly killed and his body was discovered under the Nasirabad Bridge in the Nasirabad Ghati. The said body was discovered in the morning of the 17th by Chand Singh (PW-12). The missing jeep was eventually recovered at Chittor by Rameshwar Prasad (PW-21). During the course of investigation, both the appellants were arrested. Upon information given by the appellants, “Guptis” were recovered by the police. Eventually, a charge sheet for offences under Sections 364 & 302/34 IPC was submitted by the police against both the appellants. The appellants denied the charge and prayed for fair trial.
7. In order to prove its case, the prosecution examined as many as 22 witnesses and submitted 44 documents. On the other hand, the defence neither examined any witness nor submitted any document. After going through the oral and documentary evidence, vide judgment dated 27.4.2002 the learned trial Court convicted and sentenced the appellants as aforementioned.
8. The learned Amicus Curiae, Mr. P.C. Bhandari, has argued that the entire case is based upon circumstantial evidence. The appellants have been convicted on the basis of evidence of “last seen”, on the basis of their identification in the Court and on the basis of recovery of the jeep at Chittor. However, according to him, the chain of circumstances is incomplete. According to him, the evidence of “last seen” is a weak piece of evidence. Despite the fact that the appellants were arrested, they were not subjected to an identification parade. Instead, they were identified for the first time in the Court by some of the witnesses. Moreover, according to him, the frontal picture of Rajesh Kumar (PW-9) does not tally with the photographs of the deceased, exhibited as Ex.P. 10 to Ex. P. 24. Since the body has been cremated by the police, the corpus delictri is missing in the case. Furthermore, there is no evidence to connect Sohan Lal to the alleged crime. Sohan Lal was not named in the FIR lodged by Mahendra Singh. According to the evidence of the prosecution witnesses, Sohan Lal was a compounder working at Chomu. Therefore, the possibility that Sohan Lal may have been dropped of at Chomu cannot be ruled out. Allegedly, the murder has occurred near Nasirabad, which is quite a long distance off from Chomu. Therefore, the evidence of “last seen” cannot be the basis of conviction of Sohan Lal.
9. On the other hand, the learned Public Prosecutor, Mr. R.P. Kuldeep, has vehemently argued that the chain of circumstances is absolutely complete which unerringly points to appellants’ guilt. According to PW-2, Rajesh Kumar, the appellants were last seen with the deceased leaving from Bharatpur on the next day. The body of the deceased was discovered near Ajmer, According to Manish Kumar (PW-9), the jeep had been left at his Workshop by Rajesh. According to the Post-mortem Report (Ex.P. 36), the injured had received as many as 34 injuries and many of which were stab wound on vital parts of the body. From the photographs of the deceased, the deceased had been identified as Rajesh Kumar, the driver of the jeep. Thus, learned Public Prosecutor has supported the impugned order.
10. We have heard both the learned Counsel for the parties and critically examined the record.
11. It is, indeed, trite to state that the distance between “may be true” and “must be true” is a long distance, which the prosecution is required to travel. Even in the cases of circumstantial evidence, the prosecution is required to bringing cogent and reliable evidence to cover the long distance. The principles with regard to circumstantial evidence have been repeated often. In a nut shell in order to sustain conviction, the circumstantial evidence must be complete and incapable of explanation of any other hypothesis except that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused, but should also be inconsistent with his innocence. (Referred to Hanumant Govind Nargundkar v. State of M.P. ). Moreover, no matter how strong suspicion is, it cannot take the place of proof. While analyzing the evidence, we should keep these settled principles of Criminal Jurisprudence in mind.
12. The prosecution evidence with regard to Sohan Lal is rather weak. There is the evidence of the “last seen” according to Rajesh Kumar (PW-2) and Rajjo (PW-4); Sohan Lal was identified by both these witnesses for the first time in the Court. However, there are certain lacunae with regard to the “last seen”. Although Rajesh Kumar claimed that he had seen the deceased leaving with Sohan Lal on 16.9.1999, yet in the report lodged by him at Ajmer (Ex.P. 3), he does not mention this fact in the said report. According to the said report; Raju @ Rajesh Sehgal had left with one Ghanshyam driver. However, the prosecution has neither produced Ghanshyam driver as a witness nor arrayed him as an accused. Furthermore, according to Rajjo (PW-4), when Rajesh Kumar and Sohan Lal were leaving in the jeep, they told him that they were going to Chomu where Sohan Lal was working as a Compounder. Chomu is quite a distance from Ajmer where the dead body was eventually discovered. The prosecution has nowhere proved that Sohan Lal had accompanied Rajesh, the deceased, beyond Chomu. Therefore, the possibility that Sohan Lal may have accompanied the deceased only from Bharatpur to Chomu and no further, cannot be ruled out. Therefore, merely because Sohan Lal was seen along with the deceased in Bharatpur, this fact cannot connect him to the alleged murder near Ajmer. Thus, there is a missing link in the chain of circumstances. In catena of cases, the Hon’ble Supreme Court has held that evidence of the “last seen”. Furthermore, despite the Fact that Sohan Lal was arrested by the police, no Identification parade was arranged. Rajesh Kumar (PW-2) was stranger to Sohan Lal. Yet Rajesh Kumar was asked to identify Sohan Lal not in a identification parade, but in the Court. It is, indeed, trite to state that the identification for the first time in the Court in a weak plece of evidence, (Referred to State of H.P. v. Lekh Raj ). Moreover, an identification in the Court, that too after three years of the incidence, cannot be relied upon for the purpose of convicting the appellant Sohan Lal.
13. However, as far as Raju @ Rajesh is concerned, the prosecution has a strong case. According to Rajjo (PW-4), he had told Rajesh Kumar (PW-2) that Rajesh, the appellant, happens to be his tenant, who requires a jeep for bringing his wife and children to Bharatpur. He had also told him that they could trust Rajesh, the appellant, and could rent out the jeep to him. PW-2 & PW-4 have clearly stated that they saw the deceased leaving with the appellant; both of them have identified Rajesh in the Court. Moreover, according to Manish Kumar (PW-9), the identified appellant Rajesh as the person who brought the jeep to his workshop at Chittor for repainting. According to Rameshwar Prasad (PW-21), the said jeep was recovered from Manish Kumar’s workshop at Chittor. Since, Rajesh was seen for the last time with the deceased, since the jeep was taken to Chittor by Rajesh and handed over to Manish Kumar for repaint, it is obvious that Rajesh was with the jeep from Bharatpur to Chittor, Undoubtedly, the deceased was killed between Bharatpur and Chittor near Ajmer and his body was discovered on the next morning. Moreover, in his statement under Section 313 Cr.P.C., accused Rajesh does not give any explanation as to what happened to the driver after they drove off from Bharatpur. He merely denied the statement of witnesses and pleaded that he has been falsely implicated in the case. According to Section 106 of the Evidence Act, it was within the “special knowledge” of the accused as to what happened to the driver, the deceased, while they were driving from Bharatpur to Ajmer. Instead of telling the Court the Appellant has decided to maintain a studied silence. Hence, his silence is a pointer to his guilt. The chain of circumstances is complete qua Rajesh.
14. For reasons mentioned hereinabove, we dispose of the instant appeals in the following terms:
(1) We allow D.B. Cr. Jail Appeal No. 126/2003 of appellant – Sohan Lal and acquit him of the charges under Sections 302/34 & 364 IPC. He shall be set at liberty forthwith, if not required to be detained in any other case.
(2) We dismiss D.B. Cr. Jail Appeal No. 149/2006 of appellant – Rajesh @ Raju @ Raj Kumar. Instead of Section 302/34, we convict him under Section 302 IPC and sentence him to suffer imprisonment for life and fine of Rs. 500/- in default of further suffer simple imprisonment for six months. We also confirm his conviction and sentence under Section 364 IPC.
(3) The impugned judgment of learned trial court stands modified as indicated above.