BHAGWAN DASS ALIAS KALA Vs. STATE OF J&K
LAWS(J&K)-1999-7-10
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 26,1999

Bhagwan Dass Alias Kala Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

SHARMA, J. - (1.) THIS appeal is directed against the judgment of the Session Judge, Jammu, dated 31 -12 -1997, convicting the appellants under Section 302 read with Section 34 of the Ranbir Penal Code, sentencing them to imprisonment for life with a fine of Rs. 1,000/ - each. They have also been sentenced under sections 380 and 457 of the Ranbir Penal Code and sentenced to 3 years and 2 years rigorous imprisonment respectively with a fine of Rs. 1,000/ - each.
(2.) THE Prosecution story as unfolded in evidence is that on the morning of June 28, 1994. Mst. Durgi Devi -deceased was found dead in her house in village Camp Khour, Tehsil Akhnoor, by her son -in -law P.W. Badri Nath. The police was informed immediately and the investigation revealed that she has been killed by strangulation and her house had been burgled by the assailants. Accordingly, a case under sections 302/460/34 was registered in Police Station Khour. On the same date police arrested appellant -Bhagwan Dass and Sham Singh. On being interrogated they made disclosure statement with regard to the possession of some ornaments and cash which was subsequently recovered from the places indicated by them. The third accused was arrested on 29th June, 1994, and part of the stolen property recovered from him. The cause of death of Mst. Durgi Devi was found to be asphysia as a result of strangulation. After collecting evidence the accused were sent up for trial under sections 460 and 302 read with section 34 R.P.C. The Sessions Court, however, charged them under sections 302, 380 and 457 R.P.C. to which they pleaded not guilty.
(3.) THERE is no direct evidence to prove the charge of murder. The circumstantial evidence relied by the prosecution is recovery of the stolen property from the possession of the accused on the basis of information provided by them. The learned Sessions Judge examined the prosecution case under the following heads: - 1) Motive: 2) Circumstantial evidence; 3) Medical evidence: and 4) Incriminating material.  However, motive, medical evidence and any other incriminating material are all parts of a circumstantial evidence. Therefore, the circumstantial evidence in this case comprises of motive to commit the crime. Disclosure statement recorded under section 27 of the Evidence Act and recovery of the property pursuant to such disclosure statement and the proof that property so recovered belonged to the deceased. While dealing with the motive, the findings of the trial court arc as follows: - there is overwhelming evidence of unimpeachable character available on record to prove that all the three accused namely Bhagwan Dass, Sham Singh and Ajeet Singh actuated by a baser motive eliminated Mst. Durgi Devi by mental strangulation. The medical evidence also support that the deceased had died of mental strangulation According to the prosecution the accused trooped into the dwelling house of Mst. Durgi Devi on the night interceding 27/28th June, 1994 at Khour Camp with a purposive intent to commit theft by house breaking by night. It is, also forthcoming that the accused saw Mst. Durgi Devi lying asleep on a cot in the court yard of her dwelling house. Accused Bhagwan Dass gaged her mouth and accused Sham Singh pressed her throat with both hands and when she started moving her legs and hands obviously in a vain attempt to save herself from the clutches of the accused, third confedrate Ajeet Singh held out her hands and legs for 15 minutes till they became sure that Mst. Durgi Devi has died. It is, further troted out that the accused removed the bunch of keys from her undershirt (shameez), entered into the room of the dwelling house of the deceased, broke opened the two steel boxes removed valuable ornaments and cash and, thereafter, took two steel boxes to the fields nearby and broke open the nasps and pad locks and took out the ornaments and cash therefrom and decamped with the stolen ornaments and the cash from the place of occurrence and, thereafter, distributed amongst themselves and absconded. ;


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