JUDGMENT [ENTITY], J.
1. The learned Additional Sessions Judge, Banswara, by judgment dated 7th September, 2000, has convicted the respondent [ENTITY] of offence under [SECTION] [ACT] and sentenced to death. He has submitted the proceedings to this court for confirmation of the death sentence, which has been registered as D.B. Criminal Murder Reference No. 2/2000 "State of Rajasthan v. [ENTITY]". The conviction and sentence has also been challenged by filing a joint appeal on behalf of accused respondents [ENTITY] and [ENTITY]. The second appellant [ENTITY] has been convicted of the offence under [SECTION] [ACT] and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- and in default of payment of fine to further undergo six months' rigorous imprisonment. They have also been convicted of the offence under [SECTION] [ACT] and sentenced to ten years' rigorous imprisonment and a fine of Rs. 1000/-each and in default of payment of fine to further undergo six months' rigorous imprisonment. The appeal has been rigorous imprisonment. The appeal has been registered as "[ENTITY] and Anr. v. State of Rajasthan" (1). Both the accused have also preferred appeals through Jail, registered as [CASE NUMBER].
2. The prosecution case as disclosed during trial is that deceased [ENTITY] was a wholesale dealer of cloths at Banswara. On alternate Sundays, he alongwith his munim deceased [ENTITY] used to visit number of villages of Kushalgarh area for supply of cloths to small shop keepers and recovery of dues in jeep bearing No. RJB 9191, driven by his driver appellant [ENTITY]. On the fateful day i.e. on 15.10.95, they visited number of villages on routine trip and collected dues in large sum. In this trip, second accused [ENTITY] also accompanied them. After completing the job for the day, before leaving Kushalgarh for Banswara, jeep was parked in front of a beelal shop. P.W. 7 [ENTITY] and PW 8 [ENTITY] made a request to deceased [ENTITY] for lift upto village Bagidora. The request was accepted by [ENTITY] but it was resisted by the driver. However, both the them succeeded in boarding the jeep. The appellant [ENTITY] before proceeding further, on a false pretext, got them down near Kalinjara Bridge. At about 11.15 P.M., the appellant [ENTITY] presented himself before the Police Station, Kalinjara, and lodged an oral FIR stating inter alia that he was a driver on the jeep of [ENTITY] bearing No. RJB 9191 and in the afternoon, he alongwith [ENTITY] and [ENTITY] travelled to several villages i.e. Karji, Badodiya, Kalinjara, Hejamal etc. [ENTITY] received orders for supply of cloths and whatever material was available in the jeep was supplied. He also recovered money due from various shop keepers in different villages. They left Kushalgarh at about 9.30 PM. and reached at village Bhoyan at about 10.30 P.M. Five to six persons wearing black underwear and black baniyaan appeared on the road and hurled stones on the jeep. He sustained injury on his head. The glass was broken. He left the jeep and ran away to report the matter to Police. He also stated that [ENTITY] and [ENTITY] were in the jeep. He expressed apprehension of robbery by miscreants. On this information, police registered a case for the offence under [SECTION] [ACT] and proceeded with investigation. P.W. 47 [ENTITY], Incharge of the Police Station, Kalinjara alongwith the police party reached on the spot. Accused [ENTITY] pointed out the place of incident. They could not trace [ENTITY] and [ENTITY] in the night. However, in the morning at about 6 A.M., constable [ENTITY] reported that two dead bodies were seen near the outskirt of village Bhoyan lying in a bush. The Investigating Officer, added the offence under [SECTION] [ACT], inspected and prepared the site plan Ex. P.2 He also prepared the inquest report and sent both the dead bodies for post mortem. During inspection, he suspected the involvement of informant [ENTITY] in the crimes. He found the information given by [ENTITY] false and fabricated. Firstly, because there were no marks of stones on the jeep and further no stone was lying there and the dead bodies which were lying at a distance of 30 ft. from the jeep. Secondly, the pieces of broken glass were on the blood, which suggests that murder was committed first and then glasses were broken. In case, the information given by the accused was correct, then the blood would have been on the broken pieces of glasses. Near the dead bodies, there were no marks of tyres. Ordinarily, the driver would have been the first victim. Fourthly, if it was a case of robbery, there would have been signs of struggle on the spot i.e. the place from where the dead body was recovered. Fifthly, though as per the version given by accused [ENTITY], seeing the robbers, he ran away and presented himself at the Police Station but one of his shoes stained with blood, was lying on the spot, which suggests that driver of the jeep did not immediately run away seeing the robbers but he was there for some time near the dead bodies. There were blood marks on the gate and other places inside the jeep, which suggests that struggle took place inside the jeep and thereafter the dead bodies were taken about a distance of 30 ft. and concealed in bushes. He also found the blood stains on the clothes of the driver viz; [ENTITY]. There were also some injuries on his person. Accordingly, the Investigating Officer arrested the appellant [ENTITY] on the spot. He was medically examined and injury report Ex. P.44 was prepared. The police seized and packed the other articles from the spot. During investigation, police made recovery of weapon of offence and other articles In pursuance of the informations given by the accused persons. After usual investigation, police laid chargesheet against the appellants [ENTITY] and [ENTITY] for the offences under [SECTION], [SECTION], [SECTION] [ACT].
3. Both the appellants denied the charges levelled against them and claimed trial. The prosecution in support of the case examined 49 witnesses. The accused in their statements under [SECTION] of the [ACT] denied the correctness of the prosecution evidence appearing against them. The defence examined D.W. 1 [ENTITY]. The trial Court found the following piece of circumstances proved against the appellants:
4. [ENTITY] :
i. Deceased [ENTITY] and [ENTITY] were last seen in the company of appellants [ENTITY] and [ENTITY];
ii. The presence of blood stains on the black shoe of [ENTITY] lying near the dead body and the jeep;
iii. Unexplained Injuries on the person of appellant [ENTITY];
iv. Unexplained blood stains of human origin on the clothes of [ENTITY];
v. The recovery of blood stained knife and blood stained 'danda' in pursuance of the information given by appellant [ENTITY];
vi. The presence of finger prints of appellant [ENTITY] on bag, papers etc. belonging to the deceased and recovery from the place of incident;
vii. The appellant [ENTITY] misled the police and put investigating agency on false track by lodging false F.I.R. of robbery by robbers wearing black underwear and baniyan.
viii. Motive for committing the murder.
5. SURAJ:
1. Deceased [ENTITY] and [ENTITY] were last seen in the company of the appellant [ENTITY] and [ENTITY];
ii. The recovery of currency notes of Rs. 88,800/-;
iii. The recovery of blood stained shoes belonging to [ENTITY] from the place of occurrence;
6. The trial Court found that commission of the murders and the robbery formed part of one transaction. He also found the charges proved against the appellants. In view of the finding, he convicted & sentenced the appellants in the manner noticed above.
7. We have heard Mr. [ENTITY], learned counsel for the appellants and Mr. [ENTITY], Public Prosecutor and perused the record carefully.
8. It is contended by the learned counsel that none of the circumstances has been established by cogent evidence. It is also submitted that the narration of incident given by the accused appellant [ENTITY] in the F.I.R. is more probable in the facts of the case. It is also submitted that the circumstances put forward by the prosecution are not sufficient to hold the appellants guilty of murder of [ENTITY] and [ENTITY]. On the other hand, learned Public Prosecutor has supported the judgment of the trial court.
9. We have scanned, scrutinised and evaluated the prosecution evidence exhaustively and considered the rival contentions. Before we deal with each of the circumstances, we may give the conspectus of the prosecution evidence led before the trial Court.
10. P.W. 1 [ENTITY], P.W. [ENTITY], P.W. 3 [ENTITY], P.'w. 4 [ENTITY], P.W. 5 [ENTITY], P.W. 6 [ENTITY], P.W. 10 [ENTITY] and P.W. 11 [ENTITY] are formal witnesses. They are motbirs of different memos prepared by the police.
11. P.W. 7 [ENTITY] is a resident of Kushalgarh. He has stated that on the date of incident, he was standing on a beetle shop alongwith [ENTITY] and [ENTITY]. They were waiting for a vehicle for going to village Bagidora to witness a cultural programme of [ENTITY]. They found a jeep bearing No. RJB 9191 arrived and stopped nearby them. He approached the driver of the vehicle and made a request for lift upto Bagidora, but it was turned down. Then he made a request to [ENTITY]. The request was accepted by him. The driver of the vehicle resisted the permission given by [ENTITY] but somehow he succeeded in boarding the jeep. The rear seat was already occupied by one person, who disclosed his name as [ENTITY]. They were asked to get down on a culvert before Kalinjara. After watching the cultural programme, they returned to village Kushalgarh at about 12. In the morning, they came to know that the said jeep was looted and the owner of the vehicle [ENTITY] and his [ENTITY] were murdered. The statement of P.W. 8 [ENTITY] is almost in the same line. He admitted that his statement was recorded on the same day i.e. the day on which the news about the twin murder had appeared in the newspaper.
12. P.W. 9 [ENTITY] is a bus driver. He has resiled from his earlier statement that after the incident, [ENTITY] had boarded the bus. Hence, he has been declared hostile.
13. P.W. 12 Mst. [ENTITY] is the widow of deceased [ENTITY]. She has stated that accused [ENTITY] was a driver on the jeep bearing No. RJB 9191. On 15.10.1995, her husband [ENTITY] alongwith [ENTITY] had gone to Kushalgarh on usual business trip. The jeep was being driven by appellant [ENTITY]. She also stated that her husband was wearing a disco designed golden chain. She has identified the gold chain in the court as well as in the identification proceedings.
14. P.W. 13 [ENTITY] is the brother of deceased [ENTITY]. He has stated that his brother [ENTITY] had gone for collecting the dues from various shop keepers in the jeep driven by [ENTITY]. He also stated that [ENTITY] accompanied him. He further stated that at about 12 in the night, an information was received to the effect that his brother met with an accident, therefore, he proceeded to the Police Station, Kalinjara in the night itself in another jeep. There was no trace of his brother and [ENTITY]. In the morning at about 6.00, the dead bodies were found at a distance of 4 kms. from the Police Station, Kalinjara. He identified the ring and other ornaments of deceased [ENTITY] in the identification proceedings as well as in the court.
15. P.W. 14 [ENTITY] runs a cloth shop at Kushalgarh. He has stated that on 15.10.1995, deceased [ENTITY] visited his shop. He paid him Rs. 150/- and obtained a receipt No. 3053. He also stated that the jeep was driven by accused [ENTITY]. The deceased's [ENTITY] was also in the jeep. He also identified the accused [ENTITY] present in the court. The statement of P.W. 15 [ENTITY] to P.W. 40 [ENTITY] are almost on the same line. They are the dealers of cloths in different villages and they have given brief account of their business transaction with [ENTITY] on the fateful day. All the witnesses have stated that deceased [ENTITY] and [ENTITY] visited their shops together in the jeep driven by appellant [ENTITY].
16. P.W. 14 [ENTITY] has stated that he conducted the post mortem of deceased [ENTITY] and noticed the following injuries:
"1. Lacerated wound : A depressed fracture and lacerated wound about the size 2-1/2" x 1/2" present just above the left orbital region with fracture of frontal bone;
2. Penetrating wound : 1/2" x 1/4" deep into peritoneum cavity passing upward from left iliae fossa to Renal area;
3. Incised wound 1/2" x 1/4" skin deep bleeding margin everted;
4. Penetrating wound : 1/2" x 1/4" x deep upto left pleural cavity;
5. Incised wound 1/2" x 1/4" x 1/4" x muscle deep;
6. Incised wound 1 -1/2" x 1/2" muscle deep;
7. Incised wound 1/2" x 1/4" skin deep."
He has proved the post mortem report Ex. P.43. He found the injuries ante mortem in nature. In his opinion, the cause of death was asphyxia and simultaneously coma with stab injury directly over the left lung and left kidney.
17. He also stated that on the same day, he conducted the post mortem of the dead body of [ENTITY] and noticed the following injuries:
"1. Incised wound 2-1/2 x 1/2" in dimension margin, Clar smoth Extending from upper part of right ear to downward;
2. Lacerated wound 2" x 1/4" x skull bone deep, bleeding, margin inverted edge, teared, just above the right ear region;
3. Lacerated wound 1-1/2" x 1/4" x skull bone deep, bleeding, [ENTITY] inverted, edge rough irregular, just above and lateral to injury No. 2;
4. Lacerated wound 1" x 1/12" x skull bone bleeding, [ENTITY] inverted, teared, rough, just above the injury No. 3;
5. Lacerated wound 1/2" x 1/12" x skull bone, bleeding, [ENTITY] inverted, teared, rough, just above injury No. 4;
6. Lacerated wound 1/2" x 1/12" in dimension skull bone deep, bleeding, [ENTITY] inverted, just above the left ear region;
7. Lacerated wound 1/2" x 1/12" in dimension skull bone deep bleeding, inverted margin, just above the injury No. 6;
8. Lacerated wound 1/4" x 1/12" in dimension skull bone deep bleeding, margin inverted, teared Rough, irregular, just above and lateral to rib No. 7;
9. Incised wound 1/4" x 1/12" dimension skin deep, margin everted, smoth clear, just below the right orbital region;
10. Incised wound 1/4" x 1/12" x dimension skin deep, margin everted, clear smoth, just at the sub mndibular angle right side;
11. Incised wound 1/4" x 1/12" in dimension skin deep, [ENTITY] everted, Clear smoth. Just at the centre of middle of lower jaw;
12. Incised wound 1/2" x 1/12" x muscle deep, bleeding, [ENTITY] everted. Smoth clear situated over the upper part of left lateral side of neck;
13. Incised wound 3/4" x 1/4" in dimension, penetration obliquely downward to pleural cavity causing rupture of middle part of left lung;
14. Incised wound 1/2" x 1/4" in dimension muscle deep, margin everted. Smoth just below the injury No. 12;
15. Incised wound 1/2" x 1/4" in dimension skin deep margin everted. Smoth situated 1/4" below the injury No. 13;
16. Incised wound 1/2" x 1/4" in dimension muscle deep, margin everted, Smolh situated. Just lower border of 9th rib on left side of back of chest just near to midline;
17. Penetrating wound about 3/4" x 1/4" in dimension going direct penetrating to the liver causing rupture of liver in the upper and posterior part situated Rib No. 9 right side on the back of chest near midline;
18. Penetrating wound 1/2" x 1/4" in dimension going deep upto peritoneal cavity."
He has proved the post mortem report Ex. P.42. He found the injuries ante mortem in nature. In his opinion, the cause of death was coma and multiple stab wound injuries with rupture of left lung, liver cavity by povolumic shock.
18. On the same day, he also examined accused [ENTITY] and noticed the following injuries;
"1. Abrasion 3/4" in length linear in shape bright red in colour over the forehead region vertical in direction;
2. Abrasion 1/4" in length linear in shape bright red in colour over the top of the scalp forehead region;
3. Abrasion 1-1/2" long linear in shape bright red in colour vertical in direction over the body of mndibular sterno;
4. Abrasion 1-1/2" long linear in shape bright red in colour transverse in direction over the mndibular slerno jusl below injury No, 3;
5. Abrasion 3/4" x 1/4" in dimension bright red in colour over the upper 1/3rd of right forearm;
6. Abrasion 1/4" length linear in shape bright red in colour over the lower 1/5 anterior surface right forearm;
7. Abrasion 1/4" length linear in shape bright red in colour over the right forearm 1/2" below the injury No. 2."
He has proved the injury report Ex. P.44.
19. P.W. 42 [ENTITY] is a photographer. P.W. 43 [ENTITY], PW 48 [ENTITY] and P.W. 49 [ENTITY] are the police witnesses to prove that articles seized and packed remained intact till they were delivered in the Forensic Science Labora-
lory, Jaipur. The link evidence has not been challenged by counsel for appellants, still we have perused and satisfied ourselves but we do not consider it necessary to discuss the same.
20. P.W. 44 [ENTITY] is the Tehsildar, Bagidora. The test identification proceedings of golden chain belonging to deceased [ENTITY] was conducted in his presence. He has proved the test identification memo Ex. P. 38.
21. P.W. 45 [ENTITY], P.W. 46 [ENTITY] and P.W. 49 [ENTITY] are the witnesses to prove the fingerprints of accused [ENTITY] on the bag and other papers belonging to deceased [ENTITY].
22. P.W. 47 [ENTITY] is the Investigating Officer. He has given complete details of the investigation.
23. D.W. 1 [ENTITY] is the neighbour of appellant [ENTITY]. He has simply stated that he is a vegetable seller and earns about Rs. 40 to 50 per day.
24. The prosecution case entirely rests on circumstantial evidence. It is now well settled that in a case of circumstantial evidence, the prosecution is required to establish each circumstance firmly by cogent evidence. Further, such circumstances, taken together, should form a chain pointing towards the guilt of the accused and the cumulative effect of circumstances should lead to no other hypothesis, but the guilt of the accused. Keeping this in mind, we proceed to deal with each circumstance against, each of the appellants separately.
[ENTITY] :
25. The first circumstance against appellant [ENTITY] is that both the deceased [ENTITY] and [ENTITY] were last seen in the company of appellants [ENTITY] and [ENTITY]. To prove this circumstance, prosecution has examined P.W. 7 [ENTITY], P.W. 8 [ENTITY], P.W. 12 Mst. [ENTITY] and P.W. 13 [ENTITY].
26. P.W. 7 [ENTITY] has stated that in Kushalgarh town, he alongwith [ENTITY] and [ENTITY], was standing on the Jugnu Beetle Shop, looking for a vehicle for going to Bagidora to attend a cultural programme, performed by [ENTITY]. He found a jeep bearing No. RJB 9191 parked nearby. He approached to the driver of the vehicle for giving him lift upto village Bagidora but the same was denied. However, the owner of the vehicle namely [ENTITY] allowed them to board the jeep. They occupied the rear seat. One more person was sitting there. On the way, he enquired his name, upon which he disclosed his name as [ENTITY] of Banswara. The driver stopped the jeep before village Kalinjra near a culvert and asked them to get down. They were, in total, 3 persons and as such paid the driver Rs. 12A. Thereafter, they boarded another car and reached Bagidora. He also stated that alongwith [ENTITY], his [ENTITY] was also sitting in the Jeep. He returned to Kushalgarh at about 12 in the night. In the morning, he heard that a robbery has been committed in which [ENTITY] and his [ENTITY] have been murdered. The statement of P.W. 8 [ENTITY] is also almost on the same line.
27. P.W. 12 Smt. [ENTITY] is the widow of deceased [ENTITY]. She stated that on 15.10.95, her husband [ENTITY] alongwith [ENTITY] went to Kushalgarh and nearby villages in jeep No RJB 9191. The jeep was driven by appellant [ENTITY]. They left in the morning at about 11 A.M. Normally, he used to return by 9 or 10 P.M. but on that day, he did not return. At about 12 or 1 in the night, she received a telephonic message to the effect that her husband has met with an accident. Her relatives went to Kalinjra. In the morning, she came to know that her husband and [ENTITY] have been Murdered near Kalinjra. In the cross examination, she admitted that appellant [ENTITY] was a driver on the jeep for last more than 3 to 4 years. She also stated that she knew [ENTITY] well as she used to visit her relatives in the jeep driven by appellant [ENTITY].
28. P.W. 13 [ENTITY] is the brother of deceased [ENTITY]. He has stated that on 15.10.95, his brother [ENTITY] had gone to Kushalgarh and nearby villages on business trip. He was accompanied by [ENTITY]. The jeep was driven by appellant [ENTITY].
29. P.W. 14 [ENTITY] has stated that on 15.10.95, deceased [ENTITY] and [ENTITY] visited his shop, took the order and received the payment due. He also state that they came to his shop in the jeep driven by appellant [ENTITY]. He has stated that he knew appellant [ENTITY] as he has been visiting his shop for last number of years as driver on the jeep of [ENTITY]. Similar is the statement of P.W. 24 [ENTITY], P.W. 26 [ENTITY], P.W. 27 [ENTITY], P.W. 28 [ENTITY], P.W. 29 [ENTITY], P.W. 30 [ENTITY], P.W. 31 [ENTITY], P.W. 32 [ENTITY], P.W. 33 [ENTITY], P.W. 34 [ENTITY], P.W. 38 [ENTITY] and P.W. 39 [ENTITY].
30. It is contended by Mr. [ENTITY], learned counsel for the appellants, that no identification parade has been arranged and, as such, it cannot be said that the jeep was driven by appellant [ENTITY]. There is no substance in the contention. P.W. 12 Smt. [ENTITY] has stated that appellant [ENTITY] was driver on the jeep for last more than four years. He used to accompany her husband on the business trip towards Kushalgarh. In addition to P.W. 7 [ENTITY] and P.W. 8 [ENTITY], there are number of other witnesses referred to above, who knew appellant [ENTITY] as he used to regularly visit their shops alongwith deceased [ENTITY]. They have stated that on the date of incident also, [ENTITY] alongwith [ENTITY] arrived at their shops in the jeep driven by appellant [ENTITY]. Thus, there is overwhelming evidence that deceased [ENTITY] and [ENTITY] were last seen in the company of appellant [ENTITY]. The prosecution has succeeded in establishing the first circumstance firmly by cogent evidence.
31. As regards the second circumstance, P.W. 47 [ENTITY] has stated that he prepared the site plan Ex. P.1 He found one shoe, [SECTION] on the spot. It was seized and packed vide Ex. P.20 and sent to. Forensic Science Laboratory, which has been found stained with human blood vide F.S.L. report Ex. P. 108. The seizure has been supported by motbirs P.W. 1 [ENTITY] and P.W. 3 [ENTITY]. The appellant [ENTITY] has not given any explanation as to presence of human blood on the shoe. Thus, this circumstance has also been established by the prosecution.
32. As regards the third circumstance, P.W. 47 [ENTITY] has stated that appellant [ENTITY] was arrested on 16.10.95 vide Ex. P.30. He was medically examined on the same day vide Ex. P.44 by Dr. [ENTITY]. In the cross examination, the doctor admitted that injuries shown in Ex. P.44 cannot be caused by striking stones. He also stated that there were trait of scratches and abrasions. The injuries were typically of the kind which a person may sustain while grappling. The incident alleged to have taken place on 15.10.95 between 9.30 to 11.00 P.M. and the appellant was examined by the doctor at 6.30 P.M. on 16.10.95. According to medical evidence, duration of the injuries was 24 hours. This shows that appellant sustained injuries in the course of the incident in which [ENTITY] and [ENTITY] died. Failure of any reasonable explanation of the injuries by the appellant [ENTITY], slrongly points towards, his culpability in the crime.
33. As regards the fourth circumstance, P.W. 47 [ENTITY] has stated that clothes which the accused [ENTITY] was wearing at the time of arrest, viz; pant, bushirt and baniyaan, were seized vide Ex. P. 15. These clothes were stained with blood. P.W. 4 [ENTITY] is a motbir of the recovery of seizure of the clothes. They were seized and packed on the spot. They were sent to the Forensic Science Laboratory. As per the F.S.L. report Ex. P. 108, the blood stains on pant, bushirt and baniyaan are of human origin. The appellant has not given any explanation as to the presence of human blood on his clothes. It is a strong conclusive incriminating circumstance against the appellant.
34. As regards the fifth circumstance i.e. the recovery of blood stained knife and blood stained 'danda' in pursuance of the information given by appellant [ENTITY], P.W. 47 [ENTITY] has stated that appellant [ENTITY] made a disclosure statement Ex. P. 93 leading to recovery of a blood stained knife vide Ex. P,24. The recovery has been made in the presence of P.W. 6 [ENTITY]. The blood stains on the knife has been found to be of human origin. In pursuance of the information Ex. P.92, a blood stained 'danda' has also been recovered vide Ex. P.24. The 'danda' was packed and sealed on the spot. The blood stains on the 'danda' have been found to be of human origin as per F.S.L. report Ex. P. 108. Thus, this circumstance has also been proved firmly by cogent evidence against the appellant.
35. Sixth circumstance is with regard to presence of finger prints of appellant [ENTITY] on bag and papers etc. found on the spot near the dead bodies. Two bags and papers were seized by the police vide Ex. P.7. P.W. 3 [ENTITY] is motbir to support the recovery. P.W. 45 [ENTITY] is the photographer. He has stated that on 19.10.95, he had taken the photographs of the chance print at the Police Station, Kalinjra in the [CASE NUMBER]. He has proved the photographs Ex. P. 83 to Ex. P.91. He also stated that chance prints were later on sent to the Finger Print Bureau, Jaipur. P.W. 46 [ENTITY] has stated that he was posted as Police Inspector in the Finger Print Bureau. On receiving the message from Superintendent of Police, Banswara, he alongwith photographer [ENTITY] reached Kalinjra on 19.10.95. From the black powder, chance prints were developed, which were on the bag and certain papers. He also stated that three chance prints marked 'C' were developed as 'C-1' and 'C-2'. As per the F.S.L. (Finger Print) report Ex. P.109, chance print photographs marked 'C-'4' are similar and identical with the specimen finger print photographs. Thus, this circumstance has also been established against the appellant.
36. The last but the most important circumstance against the appellant is that he tried to mislead the police.
The Apex Court in [PRECEDENT] (2), considered the contradictory statement of the accused, with respect to the incident as an important incriminating circumstance. The Apex Court observed thus:
"Making of a contradictory statement on a fact which the accused knew well that it is a wrong statement on a very vital aspect concerning the death of the deceased can also be counted, among other circumstances, as a link in the chain of circumstances to connect the accused with the commission of the crime."
In Smt. [ENTITY] v. State of Himachal Pradesh (3), the accused appellant Smt. [ENTITY] was charged for murder of her husband. One of the circumstances that she misled her brother-in- law and other villagers and put them on a false track telling them that deceased [ENTITY] had gone away from the village and had not returned, was found to be an important incriminating circumstance. The Court held that her conduct was clearly admissible under [SECTION] of the [ACT] as part of res gestae as a evidence of conduct immediately after the occurrence. It will be convenient to extract the observations of the Apex Court in para 3 as follows:
"There is evidence that Smt. [ENTITY] put the villagers including her brother-in-law [ENTITY], PW27 on a false track by telling them that deceased [ENTITY] had gone away from the village and had not clearly admissible under [SECTION] of the [ACT] as part of res gestae as a evidence of conduct immediately after the occurrence."
A reference may also be made to the decision of the Apex Court in [PRECEDENT] (4), [PRECEDENT], and [PRECEDENT].
37. In the instant case, there is evidence of P.W. 7 [ENTITY] and P.W. 8 [ENTITY] that the jeep occupied by [ENTITY] and [ENTITY] and driven by accused [ENTITY], left Kushalgarh at about 9 P.M. towards Banswara. He was dropped aiongwith others near culvert at Kalinjra. After one and half hours, appellant [ENTITY] a F.I.R. at Police Station, Kalinjra stating that he alongwith deceased [ENTITY] and [ENTITY] left Kushalgarh at about 9.30 P.M. and reached at village Bhoyan at about 10.30 P.M. where five to six persons wearing black underwear and black baniyaan abruptly appeared on the road and hurled stones on the jeep. He also sustained injury on the head, the glass was broken and he left the jeep and ran away to report the matter to the police. He also expressed his apprehension that miscreants must have looted the large sum collected. This version of the appellant is, on the face of it, false and fabricated. Firstly because if he ran away from the spot, there was absolutely no occasion for presence of human blood on his clothes. He has not given any explanation as to the presence of blood on his clothes. In the F.I.R., he has stated that miscreants hurled stones on his jeep but no marks of stones have been found on the jeep. Further, no stone has been found lying near the jeep. The dead bodies were lying at a distance of 30 ft. away from the jeep. Thirdly, as stated by the appellant in the F.I.R., the glass of the jeep was broken first and then the murder was committed. In such eventuality, the blood would have been on the broken pieces of glass but infact, broken pieces of glass have been found on the blood. The presence of blood stains on the shoes of the appellant on the spot suggests that the driver of the jeep did not immediately run away from the spot suggests that the driver of the jeep did not immediately run away from the spot seeing the robbers. In statement under [SECTION] [ACT], he has simply stated that he has been falsely implicated. He did not give version of the incident as given in the F.I.R. Thus, it is clear that he lodged a false F.I.R, with a view to mislead and put the investigation on false track. It is an important incriminating circumstance of conclusive nature against the appellant.
38. The motive behind the crime which infuriated the appellant [ENTITY] to commit the crime clearly appears to be robbery as it is he, who knew well that deceased [ENTITY] had collected and carrying large sum.
39. Thus, the prosecution has succeeded in establishing each circumstance firmly by cogent evidence against the appellant forming a complete chain leading to inference of guilt against the appellant [ENTITY].
SURAJ:
40. The first circumstance against the appellant [ENTITY] is of last seen. P.W. 7 [ENTITY] and P.W. 8 [ENTITY] have stated that they boarded the jeep as per the permission given by deceased [ENTITY]. They occupied the back seat. A person already on the back seat, on enquiry, introduced himself as "[ENTITY]". They travelled with him upto Kalinjra. When they were asked to get down near a culvert outside village Kalinjra. When both of them and one more person got down near the culvert, the jeep proceeded towards Banswara and appellant [ENTITY] alone was sitting on the rear side of the jeep. The criticism levelled against this part of the evidence by the learned counsel for the appellant is that admittedly, P.W. 7 [ENTITY] and P.W. 8 [ENTITY] were not known to appellant [ENTITY] prior to the boarding of the jeep and, as such, it was incumbent upon the prosecution to arrange an identification parade. We find substance in the contention. In absence of identification parade, the evidence of P.W. 7 and P.W. 8 on this aspect is of no use. The prosecution has failed to establish the circumstance of 'last seen' against appellant [ENTITY].
41. The second circumstance against the appellant is the recovery of gold chain of deceased [ENTITY]. P.W. 47 [ENTITY] has stated that in pursuance of the information given by appellant [ENTITY] vide Ex. P.25, a gold chain was recovered from his house vide Ex. P.80. He prepared the site plan of the house vide Ex. P.90. The recovery was made in the presence of motbirs P.W. 5 [ENTITY] and [ENTITY]. The gold chain has been identified by P.W. 12 Smt. [ENTITY], widow of deceased [ENTITY]. The golden chain belonging to deceased [ENTITY] has been recovered from the possession of appellant [ENTITY]) within two days of the murder of [ENTITY]. He has not given any explanation as to how, the gold chain came into his possession. This incriminating circumstance has been established by the prosecution firmly by cogent evidence.
42. The third circumstance against the appellant is the recovery of currency notes. P.W. 47 [ENTITY] has stated that the appellant was arrested on 17.10.95 vide Ex. P.92 and he made a disclosure statement stating that he concealed three bundles of Currency Notes of Rs. 10,000/- each and 5 bundles of Rs. 50/- each of Currency Notes beneath the gas cylinder and four bundles of Rs. 50/- each in the kitchen. The Currency Notes worth Rs. 88,880/- were recovered vide Ex. P.16 from the kitchen of the house of appellant [ENTITY]. The currency notes of Rs. 10,000/- were also recovered vide Ex. P.37 in pursuance of the information memo Ex. P.98. The appellant [ENTITY] is a person of very little means. He has not disclosed as to how he came in possession of such a huge amount of Rs. 88,880/-. The recovery has been made within two days of robbery and murder. It is argued that there is nothing to show that recovered Currency Notes were part of looted property. The contention is not sustainable. It is difficult to comprehend that police will implant such a huge amount to implicate the accused [ENTITY]. In absence of his explanation, there is a presumption against appellant [ENTITY] under [SECTION] of the [ACT]. In [PRECEDENT], the fact of recovery of the unexplained possession of the incriminating article within six days was considered as "quite a short period" and it was held to be not only a proof of robbery but presumptive evidence of the charge of murder as well.
43. A blood stained rubber shoe has also been recovered vide Ex. P.20 in pursuance of the information given vide Ex. P.80. As per the F.S.L. report Ex. P.108, the blood stains on the shoe are of human origin. He has not given any explanation with respect to the presence pf human blood on his shoes.
44. The recent recovery of huge amount of Rs. 88,000/-, a gold chain of the deceased and the presence of human blood on his rubber shoes lead to the irresistible conclusion that appellant [ENTITY] also participated in the murder of [ENTITY] and [ENTITY].
45. In view of the aforesaid, on an exhaustive appreciation of evidence, we conclude that the learned Additional Sessions Judge has rightly held the appellants [ENTITY] and [ENTITY] guilty of robbery and murder of [ENTITY] and [ENTITY].
As regards the sentence, the crimes like the one before us, cannot be looked upon with equanimity because they tend to destroy one's faith. We condemn the utterly disgraceful conduct of the appellant [ENTITY]. Looking to the age and the surrounding circumstances, we do not find it to be a case falling under the category of 'rarest of rare case.' Thus, we are not inclined to confirm the death sentence awarded. However, we adopt the course provided by the Apex Court in recent decision rendered in [PRECEDENT] The Court observed:
"In [PRECEDENT], after referring to the decision of the case of [PRECEDENT], the Court reiterated that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence under the Prison Rules but such remissions in the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term is served. It was observed that though under the relevant Rules, a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose."
46. Consequently, the. Murder Reference made by the learned Additional Sessions Judge is rejected. We find no merif in the appeal Tiled by appellants [ENTITY] and [ENTITY] and, therefore, they are also rejected. The conviction of the appellants under [SECTION], [SECTION] [ACT] is upheld. The sentence of death awarded to appellant [ENTITY] is commuted to imprisonment for life. On the point of sentence, the case of appellants [ENTITY] and [ENTITY] is distinguishable. Appellant [ENTITY] has taken advantage of his position of confidence and betrayed the faith of his master. Thus, we further direct that appellant [ENTITY] shall not be released from prison until he has served out atleast twenty years of imprisonment including the period already undergone by him. Thus, his case shall not be considered for permanent parole before the expiry of 20 years. The sentence awarded to appellant [ENTITY] shall remain intact. They will serve out the remaining part of the sentence.