Order
1. This case entirely rests on the circumstantial evidence. Both the courts below have convicted the appellant under Sections 302, 394/120-B, 201 and 404 IPC and sentenced to imprisonment for life, 10 years, 7 years and 3 years respectively. All sentences were directed to run concurrently.
2. Mr U.R Lalit, learned Senior Counsel for the appellant submits that in the first instance the whole case is of suspicious nature and even if the circumstances which are relied upon by the High Court are accepted to have been proved still the chain is not complete and therefore it is highly unsafe to convict the appellant merely on suspicion. The prosecution case is as follows:—
3. The deceased Shyam Sunder was a partner in a firm which dealt in cloth business. He wanted to open a shop in the canteen in the Army Ordnance Company at Jhansi. On October 15, 1973 at 7.00 p.m he left his shop for seeing Lt. Col. S.S Judge (PW 14). The deceased wanted to buy some sweets for presentation to Lt. Col. Judge (PW 14). On the way he got two-seater vehicle driven by PW 5. He picked up another passenger who is said to be the accused and they went to the shop and thereafter the deceased was found to be missing. This happened on 15-10-1973 and the dead body was found on 18-10-1973. A case was registered and inquest was held and the Doctor PW 15 conducted post-mortem on 19-10-1973. He found the body in a decomposed stage and he noticed some incised wounds on dead body and he opined that the death was due to the injuries. PW 18 informed the police saying that he suspected the accused as he has made a confession before him which was relied upon by the prosecution as extrajudicial confession in this case. The Police Officer arrested the accused on 23-10-1973 at 3.30 p.m and a ring was recovered from the accused. On an interrogation, it is alleged that the accused made the statement in the presence of punch witness and some more articles were recovered at the instance of the accused. Some of the articles were identified as those that belonged to the deceased.
4. The prosecution, however, examined PW 1 as an approver in the case, namely, an accomplice in the matter of sharing of the stolen property. Before the trial court, three main circumstances relied upon are the evidence of PW 1, the approver, the extrajudicial confession made to PW 18 and that the deceased was last seen with Gulab Singh. The High Court after a careful examination of the evidence of PW 1, the approver, rejected it as not trustworthy. The extrajudicial confession made to PW 18 was also rejected.
5. After considering the other evidence, the Court relied upon the following circumstances: (1) the appellant and the deceased were together on October 15, 1973 from 5.00 p.m to 8.00 or 8.30 p.m, (2) the deceased and the appellant were last seen on that day at 8.00 or 8.30 p.m, (3) the dead body of the deceased was recovered near that place on October 18, 1973, (4) the medical evidence shows that the deceased may have died on October 15, 1973 between 9.00 or 9.30 p.m, (5) the recovery of ring of deceased from appellant when he was arrested, (6) the pyajama and bag of the deceased were discovered in pursuance of the statement of the appellant to the investigating officer.
6. The High Court held that these circumstances complete the chain.
7. From the above-stated facts it can be seen that the only important circumstance is that the accused and the deceased were last seen together on October 15, 1973. The accused was arrested on October 23, 1973. It is alleged that a ring was recovered from him. The recovery of other articles i.e pyajama and bag of the deceased, does not establish the guilt of the accused.
8. We find that the chain is not complete. No doubt these circumstances throw a strong suspicion, however, it cannot take place of proof. Presumption under Section 114 of the Evidence Act cannot be (sic raised) said to that extent in the present case, however, the accused has no valid explanation for recovery of ring from him.
9. In the result, we hold that the circumstantial evidence is not sufficient to convict the appellant with murder. His conviction and sentence under Sections 302, 394/120-B, 201 and 404 are set aside, instead he is convicted under Section 411 IPC and sentenced to two years' RI. If he has already served out the sentence, he shall be set at liberty.