Judgment:
Kanta Bhatnagar, J.
1. This appeal is directed against the judgment dated 27-5-1976 passed by the learned Additional Sessions Judge, Jalore. By that judgment the learned Judge convicted the appellant Jessa and Kaliya for offences under Sections 302, 392, 201 read with Section 34 IPC. They were each sentenced to imprisonment for life and a fine of Rs. 1030/- in default to undergo six month's rigorous imprisonment on the first count, five years' rigorous imprisonment and a fine of Rs. 500/-, in default to undergo three months' rigorous imprisonment on the second court and three years' rigorous imprisonment and a fine of Rs. 503/-, in default to undergo three months' rigorous imprisonment on the third count with a further order that the substantive sentences awarded to both the appellants for all the offences shall run concurrently.
2. Briefly stated the facts of the case giving rise to this appeal are as under: On 3-6-1975 in the evening, the deceased Surtiya had gone from his house to Railway station Gadra Road. As he did not return, his mother Mst. Dheli PW 8 started searching him and was informed by PW Durga that he had seen Surtiya in the company of Kaliya. Mst. Dheli went to the house of Jessa, father of Kaliya Jessa and Kaliya were not there. She again went in the night to the house of Jessa to find out as to whether Kaliya had returned or not. Kaliya and Jessa were not available. She then informed Faras Ram PW 1 about Surtiya missing. She also informed Faras Ram that Durga had told that Kaliya and Surtiya were seen together in the evening at Gadara Road Railway station PW 4 Durga and Mst. Dheli went to the house of Jessa. On interrogation Kaliya informed that he, of course, had seen Surtiya in the evening at the Railway station but had parted thereafter and he returned to his house. On 5-6-1975. Faras Ram went to police station Gadra Road and lodged the report. It was mentioned in the report that there is suspicion against Jessa and Surtiya because they were not giving the correct information. It was also mentioned in the F.I.R. that Surtiya was wearing golden murkis (ear-rings). The FIR Ex. P/1 was recorded on 5-6-1975 at 2-15 p.m. at the instance of Faras Ram Investigation was entrusted to Bheru Singh, Head Constable by the Deputy S.P. Barmer. It being night time, Bheru Singh did not proceed for the investigation on that day. He on 6-6-1975 went to village Gadra for investigation. During the course of investigation, it was revealed that Surtiya deceased was wearing golden Murkis weighing half tola, and that on 3-6-1975. Surtiya was seen going with Jessa and Kaliya, towards Buthiya Bera. Kaliya and Jessa were arrested on 6-6-1975 vide memos Ex. 4 and 5 respectively. While under arrest, Jessa furnished information to the S H.O. for getting recovered the dead body of Surtiya from Buthiya Bera (well). Jessa and Kaliya were taken to Buthiya well. Hassm PW 5 was asked to bring out the dead body of Surtiya from the well. Hasam descended in the dry well and brought out the dead body of Surtiya. Jessa also pointed the place where Surtiya was done away with. The S.H.O. prepared the site memo of the place On the same day, Kaliya also furnished information Ex. P/14 for getting recovered the golden Murkis from beneath the bamboo hedge near the public tube well. Bheru Singh, Investigating Officer, took Kaliya to that place. Kaliya dug the ground near the public tube well and took cut the golden murkis. The Murkis were got weighed. The weight was half tola. Identification parade for Murkis was conducted by the Judicial Magistrate, Balotra, Smt. Kusum Bhandari PW 11 Smt. Dheli mother of the deceased Surtiya identified Murkis Ex. 1 to be those which his son was wearing.
3. Upon completion of necessary investigation, charge sheet against the two appellants was filed in the Court of Magistrate, Balotra. The learned Magistrate finding it a case exclusively triable by the Court of Sessions, committed the case to the Court of Sessions. The learned Sessions Judge charge sheeted the appellants under Sections 302, 392. 201, 369 read with Section 34 IPC and recorded their plea. Both the appellants denied the charges and claimed to be tried.
4. To substantiate its case, prosecution examined 14 witnesses in all. Both the appellants in their statements under Section 313 Cr. PC denied the allegations levelled against them Kaliya stated that there was a rumour about Surtiya's dead body in Buthiya well and, therefore, he told this fact to his father Jessa stated that as he was told by his son Kaliya about Surtiya's dead body being in Buthiya well, he told the police about it. The learned Sessions Judge placed reliance on the prosecution witnesses and passed the judgment under appeal.
5. We heard Mr. N.N. Mathur, the learned Counsel for the appellants and Mr. S.K. Mathur, learned Public Prosecutor for the State and carefully examined the record of the case.
6. At the very outset, it may be observed that the prosecution case solely rests on the circumstantial evidence. Mr. N.N. Mathur, learned Counsel for the appellants strenuously contended that the only evidence against the appellants is their being last seen with the deceased on 3-6-1975. Regarding the circumstance of recovery of the dead body in pursuance of the information of the appellant Jessa from Buthiya well, the submission is that the well was at a place where all and sundry could have gone and if the dead body had remained in that well for three days, it could not have missed the sight of the persons, who might have passed that way during that period. Regarding the recovery of the Murkis, it has been argued that the public tube well was at an open place and as that place was accessible to all and the recovery loses its importance.
7. Controverting these contentions. Mr. S.K. Mathur, learned Public Prosecutor submitted that there is ample evidence on record to prove that Kaliya and Jessa were seen in the evening of 3-6-1975 in the company of Surtiya. Reference has been made by the learned Public Prosecutor to the conduct of the appellants in avoiding the queries by Smt. Dheli and Faras Ram when they had gone to their house in search of Surtiya. Regarding the recovery of the dead body in pursuance of the information and at the instance for Jessa appellant, the argument of the learned Public Prosecutor is that the well was dry, deep and situated at a place where it could not have been easy of any body to find out the dead body. Similarly importance has been attached to information of Kaliya regarding the recovery of the Murkis proved to be belonging to the deceased Surtiya.
8. Regarding the circumstance of the appellants having been seen last in the company of the deceased, it is to be noted that Durga PW 4 has clearly stated that when he had gone to the station to see off his wife on 3-6-1975, he had seen Surtiya and Kaliya there. The next link of this circumstance is the statement of Narain PW 3. This witness has stated that he had gone to see off his brother-in-law at the station. He corroborates Durga on the point that Surtiya and Kaliya were at that time at the police station This witness has stated that next day he had told Prabhuda and Farsa Ram that he had seen Kaliya and Surtiya at the station on the previous evening. Mayajal PW 7 has stated that he had met Kaliya and Surtiya on their way towards Buthiya well in the evening of the day of the occurrence. Matara PW 6 is the witness, who has claimed to have seen both the appellants in the company of Surtiya in the evening of Surtiya missing. According to this witness, at a distance of about 200 yards from Buthiya Bera, he had seen those three persons when he (the witness) was returning from village Makuri to village Gadara. According to witness, on enquiry, from Jessa as to where he was going, he informed that they are going to cut the wood. All these four witnesses have been cross-examined at length and there is nothing to infer that the witnesses were inclined to falsely implicate the appellants. Another link in the prosecution case is the statement of Prabhu (Prosecution Witness 2). Prabhu has, of course, not claimed to have seen the appellant with Surtiya on the relevant date but has stated that he had seen Jessa and Kaliya, father and son, going to their house in the mid-night when the witness had gone outside the house to case himself. There is thus, sufficient evidence to prove that the deceased Surtiya was last seen in the company of Jessa and Kaliya appellants. It is also evident from the statement of Matara and Mayajal that when they saw those three persons, they were proceeding towards Buthiya Bera. We agree with the learned Counsel for the appellants that circumstance of the deceased having been seen last in the company of the accused, is a very weak circumstance and in itself, may not always be taken to be sufficient to record conviction. In this view of the legal position, we carefully examined the other circumstances brought on record against the appellants to make out whether it would be safe to uphold their conviction.
9. It is pertinent to not that Buthiya well was dry at the relevant time. The depth of the well was 50 pores i.e. 300 feet. It is relevant to note that, that well as at such a place that ordinarily it cannot be expected of the persons passing through that jungle to know and peep into the well to find out whether any dead body was there or not. It is not a place, where it could have been possible for any body, without being informed, to trace out the deceased. It is also to be noted that from the statements of Hasam and other witnesses, it has come on record that bottom of the well was not visible from outside. Not only that, rather the witnesses have stated to that extent that even by throw of torch light from above towards the bottom, nothing was visible. It was only when Hasam reached the bottom that he could know that the dead body was there. In such circumstances, it cannot be said to be a case where without the information of Jessa, police could have been able to trace out the dead body of Surtiya. We, therefore, agree with the learned trial Judge that the dead body was recovered in pursuance of the information of Jessa and at his instance. This recovery has, therefore, been rightly considered to be a strong circumstance against Jessa appellant. Another circumstance brought on record by the prosecution against Jessa is that he pointed out the place where the offence was committed. Though the Investigating Officer has prepared the site plan of that place, we do not attach much importance to that because nothing has been recovered in pursuance of that information.
10. The circumstantial evidence against Kaliya appellant to connect him with the commission of the crime is apart from his being last: seen with Surtiya, the recovery of the Murkies in pursuance of the information furnished by him. Dungarmal (PW 9) motbir for the recovery of the dead body as well as for the recovery of the Murkis, has fully supported the prosecution case. The Murkis were not lying in a way so as to be visible to all and sundry passing near the public tube well. They were found buried in the ground beneath the bamboo hedge It was accused Kaliya who had dug the pit and took out the Murkis. It has been emphasized by the learned Counsel for the appellants that the Murkis are articles of common pattern and it cannot be said with certainty that the recovered Murkis belonged to the deceased. The submission is devoid of force. Smt. Dheli, mother of the deceased has categorically stated that Surtiya was wearing those Murkis for about eight years. Durga. Narain and Mayajal have stated that when they had seen Surtiya last with Kaliya, they had seen Surtiya wearing Murkis. It is also important to note that at the identification proceedings Smt. Dheli had identified the Murkis Ex. 1 to be belonging to his son Surtiya and that he was wearing them for about eight years, Durga, Narain and Mayajal have stated that when they had seen Surtiya last with Kaliya, Surtiya was wearing murkis. Dungarmal, the motbir to the recovery has identified Murkis Ex 1 as being the same, which were recovered at the instance of Kaliya appellant.
11. From the above discussion, it is evident that prosecution has substantiated by cogent, convincing evidence the circumstances against the two appellants and as such, the prosecution case against the appellants has been proved beyond reasonable doubt. The learned trial Judge has, therefore, rightly held the two appellants guilty for the charges levelled against them. There is no scope to interfere with the reasoned conclusion of the learned trial Judge.
12. The appeal has no force and is hereby dismissed. Appellant Jessa is in jail. Appellant Kaliya is on bail. His bail bonds are cancelled. The Chief Judicial Magistrate, Balotra, shall issue warrant of arrest to procure the attendance of Kaliya and send him to jail to suffer the sentences awarded to him.