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2005 DIGILAW 744 (RAJ)

Iqbal v. State of Rajasthan

2005-03-03

DALIP SINGH, SHIV KUMAR SHARMA

body2005
Honble SHARMA, J.–The two appellants Iqbal and Alimuddin in these appeals impugn the judgment dated January 31, 2002 of the learned Additional Sessions Judge Sambhar Lake District Jaipur in Sessions Case No. 46/1997. whereby the appellants were convicted and sentenced as under:- U/s. 302/34 IPC: Each to suffer Imprisonment for life and fine of Rs. 4000/- , in default to further suffer rigorous imprisonment for two years. U/s. 397/34 IPC: Each to suffer Rigorous Imprisonment for seven years. Substantial sentences were ordered to run concurrently. (2). In nutshell the prosecution case is that on September 10, 1997 informant Banwari Singh submitted a written report at Police station Dudu with the averments that on September 7, 1997 while the informant and his driver Gopal Chand were coming from Beawar in his truck No. HR/16-4715 and going to Sikandrabad, two tyres of the truck got bursted and the truck got halted when Dudu was just three kilometers away. The informant after instructing driver Gopal Chand to remain in the truck, proceeded to his native place Gaziabad to arrange for new tyres. After making arrangement of tyres when he came back on September 10, 1997 he found dead body of Gopal Chand lying in truck. Neck of Gopal Chand was tied with electric wires, alternator of the truck was missing and the fan belt was broken. Police Station Dudu registered a case under Section 302 IPC and investigation commenced. Circumstantial evidence collected during investigation revealed the involvement of the appellants therefore the appellants were arrested and after usual investigation charge sheet was filed. (3). The prosecution examined as many as 22 witnesses at the trial to prove the circumstances against the appellants, as indisputably, there was no direct evidence to show their complicity with the crime. Upon completion of the trial, the appellants, having been convicted and sentenced by the trial court, as stated above, the instant criminal appeal has been filed by them. (4). The circumstances which weighted with the trial court in convicting and sentencing the appellants may be enumerated hereunder:- (i) Death of Gopal Chand was homicidal. Upon completion of the trial, the appellants, having been convicted and sentenced by the trial court, as stated above, the instant criminal appeal has been filed by them. (4). The circumstances which weighted with the trial court in convicting and sentencing the appellants may be enumerated hereunder:- (i) Death of Gopal Chand was homicidal. (ii) The appellants were seen on September 8, 1997 near truck No. HR 16/4715; (iii) Alternator of truck was found missing; (iv) On September 8, 1997 at 11.00 pm Police Station Adarsh Nagar Ajmer apprehended the appellants wandering under suspicious circumstances and deshi katta (country made gun) got recovered from them; (v) The appellants had mortgaged alternator of truck with one Ram Swaroop and one of the appellants put signatures on the bill issued in this regard. The bill also bears the number of truck in which dead body of deceased was found. (v) The appellants were correctly identified in the Identification Parade as well as in the trial Court by the witnesses. (5). It is well established that circumstantial evidence can be made the basis of an accused persons conviction, if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances, for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence the whole endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain urerringly pointing to the guilt of the accused. If the circumstances proved against the accused in a case are consistent either with the innocence of the accused or with his guilt, he is entitled to the benefit of doubt. (6). Bearing in mind the aforesaid position of law, the evidence adduced against the appellants, which weighted before the court below, has to be scanned. (7). The prosecution has established that death of Gopal Chand was homicidal by examining Dr. Durga Prasad Gupta (PW. 1), who performed autopsy on the dead body of Gopal Chand and deposed that the cause of death was asphyxia due to pressure over tracheal region on neck. A look at the post mortem report (Ex. (7). The prosecution has established that death of Gopal Chand was homicidal by examining Dr. Durga Prasad Gupta (PW. 1), who performed autopsy on the dead body of Gopal Chand and deposed that the cause of death was asphyxia due to pressure over tracheal region on neck. A look at the post mortem report (Ex. P.1) reveals that at the time of autopsy the electric wire was tied around the neck of the deceased. (8). According to Mohd. Ashfaq Transporter (PW. 7) the truck No. HR 16-4715 was loaded with stone powder at Beawar by M/s. Chacha Road Lines Transport Company and Banwari Singh (Truck owner) and Gopal Chand (Driver) left Beawar for Sikandrabad (UP) around 5.30 PM on September 7, 1997. (9). Informant Banwari Singh (PW. 8) in his deposition stated that on September 7, 1997 around 5.30 PM when he along with driver Gopal Chand left Beawar for Sikandrabad the tyres of the truck got bursted when Dudu was just 3 kilometers away and the truck got halted. Gopal Chand Driver then asked him to go to Gaziabad for bringing new tyres. Informant then got himself seated in another truck and proceeded to Gaziabad. On September 9, 1997 after he purchased tyres, he received telephonic message that Gopal Chand was killed. He immediately rushed to the place of incident and found dead body of Gopal Chand in the Cabin of truck. Both hands of Gopal were tied with a rope and electricity wire was wrapped on his neck. Fan belt of the truck was broken and alternator was missing. (10). Durga Ram (PW. 9), SHO Police Station Adarsh Nagar Ajmer, deposed that on September 8, 1997 at 11.00 PM he recovered deshi Katta (country made gun) from the possession of the appellants. A case under Section 3/25 Arms Act was registered and the appellants were arrested by him. (11). Kalu Singh (PW. 11) deposed that on September 8, 1997 he was incharge of Highway party No. 4 of Police Station Dudu. On the said day around 9.30 PM just 3 kilometers away from Dudu he saw truck No. HR16/4715 standing on the right side of the road. He then instructed two persons, who were standing near the truck, to remove the truck within two hours from the road. On October 1, 1997, he got the appellants identified in the Identification Parade held by the Judicial Magistrate, Sambhar Lake. He then instructed two persons, who were standing near the truck, to remove the truck within two hours from the road. On October 1, 1997, he got the appellants identified in the Identification Parade held by the Judicial Magistrate, Sambhar Lake. Kalu Singh also identified the appellants in the trial court and deposed that he saw the appellants standing near the truck. (12). Ram Swaroop (PW. 16) in his deposition stated that he had a small shop of motor parts at Kishangarh bye-pass. Around 9.30 10.00 PM two persons came to him and asked him to purchase the alternator, but he declined. After some time those persons came again and told him that their vehicle met with an accident and the driver had gone to bring some money. Since they were hungry they needed money. On their persuation Ram Swaroop got the alternator mortgaged with him and paid Rs. 400/- to them. Since he was not having any bill book, he arranged for a bill book of Ashish Motors. Those persons put their signatures on the bill and mentioned truck number on the bill. The bill was exhibited as Ex. P.44 and alternator Article 4 was identified by Ram Swaroop in the trial Court. (13). Conjoint reading of the statements of prosecution witnesses goes to show that on September 8, 1997 at 11 PM the appellants were arrested by Police Station Adarsh Nagar Ajmer while they were wandering with country made gun. During investigation of the case under Section 3/25 Arms Act it was revealed the complicity of the appellants with the murder of driver Gopal Chand. The Police Station Dudu therefore arrested the appellants on September 19, 1997 and identification parade was held on October 1, 1997 before the Magistrate. The bill (Ex. P. 44) bears the signatures of appellant Alimuddin and the alternator got identified by informant Banwari Singh. Kalu Singh of Police Station Dudu saw the appellants on September 8, 1997 near the truck HR16/4715 and identified them in Identification Parade as well as in the trial Court. (14). It is contended on behalf of the appellant that the circumstances were not properly considered by the learned trial judge. Alternator of the truck was not seized from the possession of the appellants. The testimony of Kalu Singh (PW. 11) and Ram Swaroop (PW. (14). It is contended on behalf of the appellant that the circumstances were not properly considered by the learned trial judge. Alternator of the truck was not seized from the possession of the appellants. The testimony of Kalu Singh (PW. 11) and Ram Swaroop (PW. 18) could not be believed as the appellants were shown to the witnesses before conducting the Identification Parade. It is also canvassed that bill Ex. P. 44 was drawn by one Raju, but he was not examined as witness. It is also argued that the appellants have been acquitted of the charge under Section 3/25 Arms Act, therefore the circumstances do not form the chain, since the very circumstances sought to be relied upon themselves stood seriously undermined the existence or proof of one or more of stray circumstances in the chain, break and dislocate the link in such a manner so as to irreversibly snap the link in the chain rendering it difficult inappropriate as well as impossible too, to consider even or more of them alone to either sufficiently constitute or provide the necessary basis to legitimately presume the guilt of the appellant. Reliance is place on Ashish Batham vs. State of Madhya Pradesh (2003 Cr.L.R. (SC) 54). (15). Having carefully pondered over the submission and scanned the material on record we notice that Sanjay Kumar, I.O. (PW.17) saw the dead body of Gopal Chand lying in the cabin of the truck, electric wire was wrapped around his neck and his both hands were tied with plastic rope. On inspecting the truck it was revealed that fan belt was broken and alternator was missing. The appellants were brought from Central Jail Ajmer and arrested on September 19, 1997. On September 22, 1997 at the instance of appellant Alimuddin piece of rope got recovered vide memo Ex. P.48. Alimuddin also disclosed that he mortgaged alternator with Ram Swaroop and on the basis of said information alternator was recovered from Ram Swaroop, a small shopkeeper of motor parts. The bill Ex. P.44, on which Alimuddin put his signatures also got recovered vide memo Ex.P.51. Broken pieces of rope, electric wire and hand writings of appellants Alimuddin and Iqbal were sent to FSL and report of FSL also establish the complicity of appellants with the crime. The bill Ex. P.44, on which Alimuddin put his signatures also got recovered vide memo Ex.P.51. Broken pieces of rope, electric wire and hand writings of appellants Alimuddin and Iqbal were sent to FSL and report of FSL also establish the complicity of appellants with the crime. During the course of investigation the appellants were identified by members of Highway Petrolling party No. 4 in the Identification Parade. Alternator of the truck was also identified by Banwari Singh. (16). The prosecution in our opinion, is able to establish following circumstances:- (i) Gopal Chand driver was strangulated in the cabin of truck No. HR16/4715. (ii) The death occurred between September 7, 1997 and September 8, 1997. (iii) On September 8, 1997 the appellants were seen near truck No. HR16/4715. They were asked by the Highway Petrolling Party to remove the truck and the appellants had promised to remove it. (iv) On September 8, 1997 at 11 PM the appellants were found wandering a the place which was not very far from the place of incident. (v) The appellants had mortgaged alternator of truck with a petty shopkeeper of motor parts in consideration of Rs. 400/- and a bill was issued on which appellant Alimuddin put his signatures. The bill bears the number of truck. (17). The circumstances indicated above are of such a character that the same are wholly inconsistent with innocence of the appellants and are consistent only with their guilt. They lead only to a hypothesis of guilt of the appellants and reasonably exclude every possibility of their innocence. These circumstances form themselves into a complete chain unerringly pointing to the guilt of the appellants. (18). We see no merits in the submission of learned counsel for the appellant. The infirmities shown by the counsel are not material and do not help the appellants in any manner. We find no ground to disbelieve the evidence adduced at the trial. (19). For these reasons, the appeals being devoid of merit stand dismissed.