BYAS, J. -
(1.)BY his judgment dated February 26, 1979 the learned Sessions Judge, Bhilwara has convicted the accused Chhogalal under secs. 302 and 379, I. P. C. and sentenced him of imprisonment for life on the first and two years rigorous imprisonment on the second count. Both these sentences were directed to run concurrently. The accused has come up in appeal to challenge his conviction and sentence.
(2.)SMT. Nandu, the deceased victim in the case, aged about 17 years was the daughter of PW 5 Lalu Chamar of village Dhuwala P. S. Mandal district Bhilwara and was living with him. A few days before the occurrence (January 11, 1978) she was married to Kana Chamar of village Mandal. After marriage SMT. Nandu came to her parents. In the afternoon of January 11, 1978 she went to the accused's house to get a ring prepared from him. Thereafter she was not seen alive When she went to the accused's house in the afternoon, she was wearing numerous silver ornaments e. g. Oganiya, Hansli, Madaliyas, Dodiya, Kangariya and Kariyas etc. When she did not return to her parental house, effots were made to trace her out but with no success. On January 18, 1978 her deadbody was found on the Ibank of a pond situate nearby village Dhuwala. Report Ex P. I was drawn up by Patal Deo Karan and was sent to Police Station, Mandal. As the Station House Officer Kalyansingh (PW 27) was out of the Headquarters, no action could be taken on that day. The Station House Officer resumed duty on Jan. 19, 1978. On that day he arrived at the spot where the deadbody was lying and prepared the inquest report. Near the victim's dead body some gram and were lying scattered. There were seized. The post mortem examination of the victim's deadbody was conducted on the same day by PW 25 Dr. G. C. Mahajan, the then Medical Officer Incharge, Government Dispensary, Mandal. The following injury was found on the victim's neck: "bruise 2" x 1" on left side neck 1/2" below the sub-mandibular region!" away from the medical line. Some other abrasions were also found in the vagina, semen was present which was collected and preserved. "
In the opinion of Dr. Mahajan. the cause of death of the victim was as phyxia resulting from throttling. He was also of the opinion that sexual intercouse was committed with her before death. He prepared report Ex. P. 18. Since the death of Smt. Nandu was not natural, a case under section 302, IPC was registered at about 3. 30 P. M on the same day. The accused was arrested on January 23, 1978. In consequence of the disclosure statement made by him, silver ornaments Dodiyas (Article 5) was recovered from a Sarraf, to whom the appellant had sold them. Some silver ingots were also recovered from the persons to whom he had sold them. The suggestion was that the accused had melted the silver ornaments of the victim and sold their melten pieces. A ring was also recovered from the possession of the accused, which also belonged to the deceased-victim. It also transpired during investigation that the appellant after committing the murder of the victim put her dead body in a gunny bag and took it on a bicycle towards the tank In consequence of the information furnished by the accused, the gunny bag. the rope and the pieces of cloth used in the commission of the offence and in taking the dead body were also discovered. The accused's wife Smt. Chandi was also arrested by the Investigating Officer on January 29, 1978 On the completion of investigation, the police submitted a challan against the appellant and his wife Smt. Chandi, in the Court of Judicial Magistrate (3), Bhilwara, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under section 302 and 379 against the appellant and under section 414, IPC against his wife Smt. Chandi, to which they pleaded not guilty and faced the trial. During trial, the prosecution examined as many as 27 witnesses and filed some documents. In defence the accused adduced no evidence on the conclusion of trial, the learned Sessions Judge found no incriminating material as against accused Smt. Chandi. She was, therefore, acquitted. The charges were held duly proved against the appellant. He was consequently convicted and sentenced as mentioned above.
We have heard the learned Amicus curiae and the learned Public Prosecutor. We have also gone through the case file carefully.
The cause of death of Smt. Nandu has not been assailed before us. We have gone through the testimony of Dr. G. C. Mahajan (PW 5 ). We have no reasons to disagree with him that the case of death of the victim was that as stated by him. It, therefore, stands established that the cause of death of the victim was asphyxia resulting from throttling. The death of the victim was, thus, not natural but homicidal in nature.
Before proceeding further, it may be poined out that there is no direct evidence against the accused. The prosecution case rests squarely on circumstantial evidence. The circumstantial evidence adduced by the prosecution may, for the sake of convenience, be classified as under: - 1. The victim went to the house of the accused in the afternoon of January 11, 1978. Thereafter she was not seen alive. 2. Before going to the house of accused, Smt. Nandu (the victim) had gone to jungle to comect the firewood alongwith her brother's wife (Bhabhi) (PW 7) Smt. Sohni. There Smt. Nandu took ring Article 4 from Smt. Sohni as she wanted to have a ring prepared for herself of that design. This ring Article 4 was recovered from the possession of the accused in consequence of the information furnished by him. 3. The victim went to the house of the accused wearing numerous silver ornaments including the pair of silver Dodiya (Article 5 ). In consequence of the information furnished by him, the pair of silver Dodiyas (Article 5) and some other melted pieces of silver were recovered from different persons to whom he had sold them. 4. He was seen going on a bicycle with a gunny bag on the carrier. In consequence of the information furnished by the appellant, one piece of cloth was recovered from a place nearby the tank. A piece of the same cloth was recovered in consequence of the information furnished by the accused from his house.
(3.)IT was vehemently contended by the learned Amicus curiae that in the first instance, these sets of circumstantial evidence do not stand proved. The learned Sessions Judge acted merely on surmises and conjectures in taking these sets of circumstances are taken as fully proved. IT was next argued that even if these sets of circumstances are taken as duly proved they are not sufficient to suggest affirmatively that the victim was done to death by the appellant. In reply, the learned Public Prosecutor supported the findings of the learned Sessions Judge and submitted that the various circumstances fully indicate the complicity of the appellant in the commission of the murder of the victim. We have taken the respective submissions into consideration.
We propose to examine each set of evidence at seriatim. Re: 1: It was alleged that the victim Smt Nandu went in the afternoon of January 11, 1978 to the house of the accused to get a ring prepared. There after she was not seen alive. The prosecution has examined three witnesses in this regard. PW 13 Balu Ram Sunar, who is a caste fellow of the accused, deposed that at about 4. 00 P. M. on January 11, 1978 he had seen Smt. Nandu entering the house of the accused. When she went there, she was wearing numerous silver ornaments. In the evening, the brother of the victim came there at the accused's house and knocked at the door but with no reply. The house of this witness is situate near to that of the accused. PW 6 Nanuram is the brother of the victim. He deposed that on being informed by her mother that Smt. Nandu had gone to the house of the accused, he went there and knocked at the door. He also gave three or four calls but nobody opened the door. Nobody responded from inside He came back and told his father that there was no response from the accused's house. His father told that Nandu might have gone to the house of her mother's parents PW 7 Smt. Sohni is the aunt of the victim. She stated that on the day of occurrence, she and Smt. Nandu went in the jungle to collect the firewood. There Smt Nandu asked her to give her ring (Art. 4) to her because she also wanted a similar ring prepared from the accused. She (witness) gave her ring Article 4. On that day, Smt. Nandu was wearing numerous silver ornaments. All these witnesses were cross-examined at length but with nothing to help the accused. The learned Sessions Judge did not accept the evidence of these witnesses on the ground that these witnesses remained silent till the case was registered with the police and the deadbody of the victim was recovered. In our opinion, the approach of the learned Sessions Judge was not correct. These witnesses remained silent till the victim's deadbody was found because they were under the impression that she had gone to the house of her mother's parents. We should not forget that Smt Nandu and her parents are members of a poor class and reside in village. They had nothing to suspect that Smt Nandu was killed by the accused till her dead body was recovered. In these circumstances the silence or inaction of these witnesses has no significance. We are of the opinion that the evidence of these witnesses establishes the fact that the victim entered the house of the accused in the afternoon of January 11, 1978 and thereafter she was not seen alive.
Re. 2. There is the direct testimony of PW 7 Smt. Sohni on the point. She deposed that on the day of occurrence she and the deceased-victim Smt. Nandu went in the jungle to bring firewood. They returned at about 4. 00 P M. Smt. Nandu asked her to give her ring (Article 4) to her as she also wanted to get a ring prepared of that design. She gave her ring (Article 4) to Smt. Nandu and told her that she might get it prepared from the accused. This witness is the aunt of the victim. There is nothing in her testimony to discredit or disbelieve what she testified on oath.