S. S. BYAS, J. -
(1.)THIS is a Jail appeal by accused Pratap alias Pratapsingh against the judgment of the learned Sessions Judge, Udaipur dated August 2, 1977 convicting the appellant under s. 302 and 380, I. P. C. and sentencing him to imprisonment for life under the first count and rigorous imprisonment for seven years with a fine of Rs. 300/-, in default of the payment of fine to further under go three months' like imprisonment under the second count.
(2.)PUT briefly, the prosecution case is that the deceased-victim Smt. Ghisi Bai aged about 35 years was living alone in her farm-house situate in her field known as Somtalai in Mauja Chhotisar district Udaipur, The field was cultivated by PWI Limba. In the noon of 6. 12. 76 when Limba was ploughing the field he saw some cattle damaging the standing crop. He cried aloud to ask Mst. Ghisi Bai to come out but for no response. He went to her house and found the door open. He saw Ghisi Bai lying dead in the house with a pool of blood around her. Her feet were found severed and the silver Karas, which she used to wear in her feet, were missing. He immediately informed her son Naharsingh (PW 4), her husband's brother Kesarsingh (PW 3) and other relatives. PW 2 Mansingh went to police station, Delwara and verbally lodged report Ex. P. l there at about 8 00 P. M. on the same day. The police registered a case and proceeded with investigation. The Station House Officer Shri Nisar Ahmed (PW 15) arrived at the field on 7. 12. 76, prepared the inquest report of the victim's dead body and the site plan. The post mortem examination of the victim's dead body was conducted by PW 16 Dr. Navaratan Mal on the spot at about 4. 30 P. M. on 7. 12 76. He found the following injuries : - (1) Both legs cut off at 3" above the ankle joint and lying away from the corpse. (2) Cut wound on the right leg about 1" above the leg about 1-1/2 x 1/2 x muscle deep. (3) Cut wound on the right leg about 1/2" above the cut end of the leg about 1/2" x 1/2" x sking deep. (4) Right hand compound, fractures of 1st, 2nd and 3rd metacarpal bones (5" x 2" x bone deep) cutting across the bones. (5) Left hand-compound fractures of 4th & 5th metacarpal bones cutting across the bones and upto the wrist. (6) Left wrist hanging with the heep of skin and small Flap of Flesh (rest all carpal bones handing along with 1st, 2nd and 3rd metacarpal bones ). (7) Left side of the face cut upto the bones (deep from left nostril to upper part of the left ear (wound about 7" x 2" x bone deep ). (8) Cut wound on the scalp vertically placed 1" above the left ear 2" x l" muscle deep. (9) Cut wound all along the ramus of the left side of mandible (from midline to angle) ( 4-" x 1" bone x deep. (10) Cut wound on the left side of the neck cutting the windpipe on the left side at approximately new tracheal cartilage and below vessels and other strictures of the neck on that side about 6 " x 4". The injuries were ante-mortem and the death was opined to have taken place between 24 to 48 hours before autopsy was performed. The doctor was of the opinion that the cause of death was syncope due to shock caused by haemorrhage and injuries to the blood vessels and trachea. Three persons Dhaniya, Hariya and the accused-appellant Pratapsingh were arrested on 12. 12. 76. In consequence of the information furnished by accused Dhanna, one Dhoti, one Chaddar and an axe were recovered on 16. 12. 76. In consequence of the information furnished by Hariya, one shirt, one Dhoti and a pair of shoes were recovered on that very day. In consequence of the information furnished by accused-appellant Pratapsingh on 12. 12. 76, one sword with sheath and two silver Karas were recovered lying berried in her field situate not far away from the place of occurrence. One Dhoti and a pair of shoes were also recovered on 16. 12. 76 in consequence of the information furnished by him. The test identification of the silver Karas was conducted on 23. 12. 76 by the Munsif and Judicial Magistrate Shri M. C. Garg (PW 5 ). They were correctly identified as that of the deceased-victim by her son, daughter and other witnesses. The seized art. were sent for chemical examination and all of them were found stained with human blood. After when the investigation was over, the police filed a challan against the three accused viz. , Dharma, Hariya and Pratapsingh in the Court of Additional Munsif and Judicial Magistrate, Udaipur, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sec. 302, 302/34, 380 and 404, I. P. C. against them. The accused pleaded not guilty and faced the trial. They claimed absolute innocence and alleged that they were falsely implicated. During trial, the prosecution examined 16 witnesses and filed some documents. In defence, the accused-appellant examined four witnesses to show that on the day of the alleged murder of Smt. Ghisi Bai, priar and subsequent to it he was at Udaipur. On the conclusion of trial, the learned Sessions Judge found on incriminating evidence against accused Dhaniya and Hariya. They were, therefore, acquitted. The learned Sessions Judge found the prosecution case substantially true against the accused appellant. The evidence produced by him in defence was found worthy of no credence and was rejected. Accused-appellant Pratap Singh was consequently convicted and sentenced as mentioned at the very out-set.
We have heard the learned Amicus curiae Shri M. S. Singhvi and the learned Public Prosecutor. We have also gone through the case file carefully.
Before proceeding further we may notice that the prosecution has adduced the following sets of evidence against the accused-appellant: - (1) Recovery of Dhoti and sword in consequence of the information furnished by him whilst under police custody. On examination, human blood was found on both these articles, and (2) recovery of the silver Karas Art. 1 in consequence of the information furnished by the accused-appellant lying buried in his field.
Learned Sessions Judge found that the theft and murder of the victim constituted integral part of one and the same transaction. Since the accused-appellant was found in possession of the stolen silver ornaments only after 5 or 7 days of the occurrence, a strong presumption arose against him to show his complicity in the commission of the murder. The accused had furnished no explanation for his possession of the stolen Karas. It was, therefore, taken that he was a participant in the commission of the murder of Mst. Ghisi Bai.
The first contention raised by the learned Amicus curiae is that the evidence relating to the information and recovery of silver Karas was discrepant and worthy of no credence. The Karas were found lying in an open field accusa-ble to all and sundry. Since the field was not in the exclusive possession of the accused-appellant, it cannot be said that the Karas were in his possession.
(3.)ACCUSED Pratapsingh was arrested on 12. 12. 76 vide arrest memo Ex. P. 17. The Investigating Officer Shri Nisar Ahmed (PW 15) deposed that on 12. 12. 76, accused Pratapsingh gave him the information which he recorded in Ex. P. 23. The information on furnished was that he had buried the sword with sheath and the two silver Karas in his field and that he would got them recovered. This information is admissible in evidence under Section 27 of the Evidence Act. This information was recorded at about 4 00 P. M. while the accused was arrested at 3 00 P. M. The Investigating Officer further stated that after giving the disclosure statement, the accused took him and the Motbirs to his field Mahurawala situate in Mauja Chhotisar. There he dug a pit nearly one Balist (7 or 8 inches) deep and took out a sword with its sheath and a pair of silver Karas (Art. l ). He seized and sealed these articles in separate packets and prepared seizure memo Ex. 20. PW 11 Manoharsingh is the Motbir witness of this recovery. He deposed that on 12. 12. 76, the Investigating Officer called him as a Motbir. The accused-appellant was then in police custody. He took him, the police and the other motbirs to his field Mahudawala. There the accused dug a pit nearly 7 or 8 inches deep and look out a pair of silver Karas (Art. 1) and a sword with sheath. The Investigation Officer seized and sealed these articles in separate packets. Seizure memo Ex P 20 was prepared then and there on which he appended his signatures A to B. The other Motbir Kishan Singh appended his signatures C to D on it The specimen of the seal with which the packets were sealed, was affixed on seizure memo Ex. P. 20. Both these witnesses were cross-examined at some length but nothing could be elicited from them which may make their testimony unworthy of belief or credence. It is true that field from which the silver Karas were recovered is an open place accessable to all and sundry, but that is immaterial in view of the fact that the recovered articles were found lying concealed under the earth. They were not visible to any person till the place of their concealment was dug and they were taken out. Nobody else other then the accused know about their existence they lying buried in the field. In these circumstances, it will be presumed that the accused was in possession of the recovered articles. The accused has given no explanation except denying to have given the information and to have made the recovery in consequence of it. He did not lay his any claim on these recovered articles.
There is overwhelming evidence that the silver Karas (Article 1) belonged to the deceased-victim Smt. Ghisi Bai. She used to wear them constantly and was wearing them when she was done to death. P. W. 1 Limba was the domestic servant of the victim. He deposed that he used to cultivate her fields and used to live there. Ghisi Bai used to wear silver Karas (Article 1 ). He correctly identified them in the test identification conducted by M. J. M. Shri Nemichand (PW 5 ). He also correctly identified silver Karas during trial. He further deposed that when he went to the house of Ghisi Bai and found her lying dead, he also found the silver Karas (Art. 1) missing Pw 3 Kesarsingh is the real brother of the victim's husband. He deposed that silver Karas (Article 1) belonged to Ghisi Bai. She used to wear them constantly he correctly identified these Karas both in the test identification and during trial. PW4 Naharsingh is the son of the deceased-victim. He also deposed that his mother Ghisi Bai used to constantly wear silver Karas (Art. l) He correctly identified these Karas both in the test-identification and during trial-PW 6 Smt. Ratan is the daughter of the victim. She also stated that silver Karas (Article 1) belonged to her mother Ghaisibai She used to constantly wear them. She has also correctly identified these Karas both in the test-identification and during trial. PW 5 Nemichand was Munsif Magistrate, Nathdwara. He deposed that on the request of police he conducted the test identification of silver Karas (Article l)on 23. 12. 76. He received the packet of silver Karas with seals intact. He mixed four pairs of similar silver Karas with the Karas Article 1. The prosecution witnesses Limba, Kesarsingh, Naharsingh and Smt. Ratan correctly identified silver Karas Article 1. He prepared the identification memo Ex. P 7. All these witnesses were cross-examined on behalf of the accused-appellant but again nothing could be extracted from them which may make their testimony unworthy of belief or credence. The learned Judge of the trial Court accepted this recovery and on a careful scrutiny of the relevant evidence, we find no good or convincing reasons to take a different view. It, therefore, stands established that the accused-appellant was arrested at about 3. 00 P. M. on 12. 12. 76. After his arrest he gave the disclosure statement recorded in Ex. P. 23 at about 4. 00 P. M. to the Investigation Officer Shri Nisar Ahmed (PW 15 ). In pursuance to this disclosure statement, the accused took the Investigating Officer and the Motbirs to his field Mahurawala There he dug out a place and took out the silver Karas (Article 1) lying burred underneath. These silver Karas were seized and sealed. They were correctly identified by as many as four witnesses belonging to the deceased-victim. The accused was, thus, in possession of silver Karas Article 1.
It was next argued that the accused should not have been convicted under section 302, I. P. C. only on the basis of this recovery of silver Karas. It was argued that there was no other connecting evidence to link the accused with the commission of the murder of Ghisibai. Unless there is some more material, it would not be proper to convict the accused for the main offence only on the basis of this recovery. Reliance in support of the contention was placed on Hukamsingh vs. The State of Rajasthan (1) and Nagappa Dondiba Kalal vs. The State of Karnataka (2 ).