G.R. Moolchandani, J. - (1.)This jail appeal is preferred by convict appellant Shankar Lal against the judgment dated 14.2.2007 passed by learned Additional Sessions Judge (Fast Tract) No. 1 Udaipur in Sessions Case No. 168/2005 convicting and sentencing the appellant-accused Shankar Lal for life imprisonment with a fine of Rs. 2,000.00 for the offence punishable under Section. 302 I.P.C. and to undergo 3 years' r.i. with a fine Rs. 500.00 under Sec. 201 I.P.C. and both the sentences were ordered to run concurrently.
(2.)In nutshell, short facts of the case are that one Nirmal Kumar Jain S/o Manak Chand Bokariya lodged a report Exhibit 2 with Police Station, Dabok, laying that his younger brother Rakesh Kumar aged 27 years had gone without informing on 19.8.2002 at about 12.15 noon from his shop of Chandesra and he has lastly seen with Shankar Lal S/o Ganesh Lal on 19.8.2002. After that he and his family members searched for Rakesh Kumar but did not find any trace. So he had given a missing person report on 21.8.2002 with Thana Dabok, after that they tried level best to search Rakesh Kumar but he could not be traced. Shankar Lal, with whom, his brother Rakesh Kumar was lastly seen together was also inquired upon regarding Rakesh Kumar, who told that Rakesh Kumar had come to get back money and had left, they did not suspect, Shankar Lal, because he was aged and was not having animosity with them. Shankar Lal murdered Laxman Lal Nagla a resident of their village on 22.8.2005 and buried his body inside his Baara , because of money transaction and a case was registered with Dabok Thana, his brother Rakesh Kumar was also owning Rs. 15,000.00 from Shankar Lal land was also last seen with Shankar Lal, therefore, they have developed an ultimate doubt that Shankar Lal has murdered his brother Rakesh Kumar after kidnapping and deception.
(3.)Learned Counsel for the appellant-accused while relying upon the verdicts of Honourable Supreme Court in Anant Bhujangrao Kulkarni Vs. State of Maharashtra, AIR 1993 SC 110 , State of Punjab Vs. Sarup Singh, 1998 Cri.L.J. 3292 and State of Uttar Pradesh Vs. Kapil Deo & Anr., 1991 Cr.L.R. (SC) 795 and a verdict of this Court in Nathu Vs. State of Rajasthan, 1998-99 (Supp.) Cr.L.R. (Raj.) 227 has contended that the appellant is innocent and has not committed any offence. The alleged skeleton, which is said to have been recovered from the Baara, does not belong to the appellant-accused, Baara is open and accessible to all, human body contain 206 bones but the alleged recovery of skeleton is of shorten number of bones and alleged fracture of bones might have caused during exhumation process. Missing episode of Rakesh Kumar is alleged to be of 19.8.2002, whereas F.I.R. Exhibit 2 has been lodged on 25.8.2005 i.e. after a period of about 3 years, if Shankar Lal was seen along with deceased Rakesh Kumar lastly by Narayan Lal Ji Gopawat and if this fact was already in the knowledge of the complainant Nirmal Jain and family members of the deceased, then why the missing person report was not lodged with this contention as well, so it is improbable. Learned Counsel has further argued that the alleged body was not properly identified and recovery of alleged Chanddi Baniyan and Chappal is also doubtful, alleged recovery of gold chain, rings is also dubious. Learned Counsel has argued that the police has not investigated the matter properly because statement of wife of deceased has also not been taken, nor she has been produced in evidence to establish the identity of under garments of the deceased. Learned Counsel has also pointed out that the story of prosecution is forged because the recovery is prior to the arrest of the accused appellant and has further submitted that entire story of the prosecution is baseless and prosecution has not proved their case beyond reasonable doubt. The defence has also adduced some witnesses. Trial Court has committed error in passing the conviction order and has further submitted that the appellant-accused be acquitted and appeal be allowed. Per contra learned Public Prosecutor has vehemently argued that the Trial Court has not committed any error in passing the convicting order. Appellant-accused was lastly seen with deceased Rakesh Kumar by Narayan Lal but because the appellant-accused was bit aged and his attitude did not tend doubt that he could have been so heinous and might have killed a young boy, who was not having any animosity or ill-will against the appellant but had rendered loan money to the accused. Learned Public Prosecutor has argued that the accused-appellant is a cold blooded murderer, who also killed one another individual Laxmi Narayan, who too was owning money from the appellant and after inviting him to get back the money, he called him in his desolate Barra and after killing, buried his body beneath the earth in Baara , the appellant was also seen lastly together with Laxmi Narayan, upon F.I.R. of the relatives of Laxmi Narayan, body of the deceased Laxmi Narayan was found buried and was subsequently dug out, only then the family members of the deceased Rakesh Kumar got a clue to get things motioned on the same line because deceased Rakesh Kumar was also owing money and he too was called by the appellant-accused to collect money back and this fact was admitted by the appellant-accused, since he said that deceased Rakesh Kumar had been to him to collect money and when dubious Baara was searched, then, buried body of deceased Rakesh Kumar was found there almost turned into a skeleton of the deceased were also there, which were well recognised by the family members of the deceased. The prosecution has adduced reliable evidence. The body of the deceased was found from a Baara , exclusively possessed by the appellant, who himself informed about burying of body and helped exhumed body from buried land of Baara . He has also argued that revenue authorities have testified the property of appellant was partitioned amongst family members and this Baara was exclusively in possession of the appellant-accused. Learned Public Prosecutor has also said that there was an ill will and malice in the mind of the appellant not to repay the money and to snatch belongings of the deceased, so acting upon this mens rea, he deceptively invited deceased Rakesh Kumar, who was seen as last seen together with the appellant-accused by Narayan Gopawat , who is none else but a relative of the Accused Shankarlal and Narayan has also deposed this fact in his evidence. The ornaments of the deceased Rakesh Kumar one gold chain and two rings have also been recovered from exclusive possession and on instance of the appellant-accused and the link evidence is completely united without any frailty. The prosecution has succeeded in establishing and proving its case beyond doubt against the appellant-accused. The learned Public Prosecutor has also argued that the appellant accused is a dreaded killer, who has not only murdered Rakesh Kumar but has also murdered Laxmi Narayan and in that matter, Trial Court has convicted him for life imprisonment and this Court has also dismissed his appeal by upholding the said conviction order. The case of the prosecution has thoroughly proved and there is no error in the impugned conviction and order of sentence. The appeal does not bear force and has submitted to dismiss the appeal and to uphold the impugned judgment.