- (1.) THE two appellants Likhma and Birda have been convicted by the Sessions Judge, Jodhpur of an offence under Sec. 201 P. C. and sentenced to maximum punishment of 7 years rigorous imprisonment each. THE facts which gave rise to the prosecution of the appellants are these: - Jawan Dan S/o Prithvi Raj Jagirdar of Bhatelai who is alleged to have been murdered had admittedly enmity with the appellants. THEre was civil and criminal litigation going on between them regarding Arniawala well which had been obtained on lease by Jawan Dan from Akhey Singh and Multan Singh. Jawan Dan used to live with Smt. Mathura P. W. 5 in Bhatelai. On Baisakh Badi 1, Smt. 2013 corresponding to 26th April, 1956 he left Bhatelai after informing Mathura that he would first go to Bhambor and then at Jodhpur. At the time of his departure he was wearing a 'khaki safa', 'pesu shoes, a white coat, and a gold ring, and was carrying a bag which contained his papers and 'bahis , He went to Bhambor on Baisakh Bad 2, Samwat 2013 and met Hukamsingh P. W. 6 with whom he had monetary transactions. Without giving details of what Jawan Dan the deceased did at Bhambor, it will be sufficient to state that he left Bhambor for Moondon-ki-dhani in the morning of 26th April, 1956. On the way he reached the 'dhani' of Bena P. W. 15 at noon and asked for water to drink. . It is said that the two appellants also reached there and they were seen talking with Jawandan. Jawan Dan then left towards Moondon-ki-dhani after drinking water and invited the accused to go with him. After Jawan Dan had gone 15 or 20 panvadas, both the accused went after him in the same direction. THE prosecution case is that Jawandan was never seen thereafter and was murdered by these two persons. It may be mentioned here that when Jawandan left Bhambor his son Badridan was not at his house; having gone to Roopawas. On his return from Roopawas and finding that his father has not returned he went to search his father on 29th April, 1956. He reached the 'dhani' of Bena P. W. 15 and learned from him that his father had gone towards Moondon-ki-dhani. Badridan proceeded to Moondon-ki-dhani and on his way he saw Likhma accused going with a 'pharsi' in his hand with his 'dhoti' turned upwards. Badri Dan went and searched his father at Moondon-ki-Dhani and other places and having got no clue regarding his whereabouts he ultimately lodged a report Ex. P. 1 on 22nd May, 1956 implicating all those persons who were on inimical terms with Jawan Dan. A second report was filed on 2nd June, 1956 in which the earlier allegations were merely repeated. On 16th June, 1956 Badri Dari submitted another application Ex. P. 3 in which he gave much more information than was given in the earlier reports. It was mentioned in this report that in the way from Bhambor to Moondon-ki-dhani, Jawan Dan went to Bena's Dhani; there Birda and Likhma etc. , Jats of Bhatelai were present. It was further added that Birda and Likhma and other Jats had suggested to his father to arrive at a mutual settlement of their existing disputes but the negotiations for compromise failed and that his father then started for Moondo-ki-dhani. THEse Jats also followed his father and had forcibly abducted him to some place and that he had not been able to get any clue of place. In this report the property which was with Jawan Dan was also detailed. Besides some money, it was stated that he had 3 'chopanias' of red covers, parcha slips and Pattas of his property. It was for the first time in this application that Birda and Likhma the appellants and other Jats were positively implicated for an offence of abduction. After the submission of the Ex. P. 3, Badri Dan's detailed statement was recorded on 24th June, 1956 by Shri Kundanlal, Additional Superintendent of Police and a case under sec. 302 I. P. C. was registered at the Police Station Jhanwar. During the course of investigation the circle Inspector Gautam Prasad P. W. 30 recorded very detailed statements of the accused in which the accused are alleged to have given some information leading to the discovery of certain property. Birda accused gave information that he buried the papers of Jawan Dan including Pattas and 'bahis' in his field. He led the police to Arniawala field in the outskirts of village Bhatelai. From a corner of the field near the bush he dug out the earth knee-deep in the presence of 'motbirs' and brought out box Ex. 3 which was locked with padlock Ex. 4 containing the documents belonging to Jawan Dan. Birda also gave information to the police that he had purchased the box Ex. 3 from a shop of Mohammad Hussain P. W. 13. On this information Mohammad Hussain was discovered to be the vendor of these articles. He produced some entries relating to the sale of the articles to Birda. Likhma accused similarly in his detailed statement recorded by Gautamprasad gave information that he had thrown the dead body of Jawan Dan in Gundiwala well and that he had sold the gold ring of half 'mohar' to a shop-keeper in Jodhpur City. THEreafter only one bone was recovered from the well as there was lot of water. THE well was then emptied and several bones, one shoe and 'khaki Safa' were recovered from it. THEse articles were identified by Smt. Muthra and Badrinarain as belonging to the deceased Jawan Dan. THE bones were also found by the Doctor to be of an elderly male human being age 50 to 60 years. THE police after completing the investigation submitted charge-sheets against both the appellants under sec. 302 IPC, in the court of 1st Class Magistrate No. 2 Jodhpur who after enquiry under chapter XVII committed them to the court of Sessions for trial.
(2.) THE accused denied their guilt and came forward with a complete denial including the recovery. THE Sessions Judge after trial arrived at the following findings: - (1) that the evidence on record leaves no doubt that the prosecution has succeeded in proving the death of Jawan Dan beyond any doubt. (2) that the prosecution has not succeeded in proving beyond doubt that Jawan Dan's death was caused by, or in pursuance of, the act of Likhma and Birda accused. (3) that there is, however, conclusive evidence on record that Likhma and Birda accused concealed the evidence relating to the offence of Jawan Dan's murder. On these findings he convicted the two appellants under section 201 I. P. C. sub-section (1) and sentenced them to 7 years rigorous imprisonment each. The appellants have filed the present appeal challenging their convictions and sentence. I have heard Mr. Kishan Singh for the appellants and the learned Government Advocate for the State. At the outset it must be observed that to constitute an offence under section 201 I. P. C. it must be proved in the first instance that the offence punishable with death was committed in respect of the person of Jawan Dan. Analysing the judgment of the Sessions Judge I find that he proceeded in the first instance to determine whether the prosecution has succeeded in proving the death of Jawan Dan. His discussion and findings are contained in paras 9 to 20. At that stage whether an offence of murder had been committed or not was not specifically considered and determined. However, while determining the liability of the appellants under section 201 I. P. C. the learned Sessions Judge in para 24 observed as follows: - "as has been stated in paragraphias 9 to 20 above, I have no doubt that he had been murdered". The learned Advocate for the appellants has criticised this statement in the judgment of the Sessions Judge. He points out that paragraphs 9 to 20 only primarily discuss the question whether the deceased met his death or is still alive. The question whether an offence under sec. 302 IPC. had been committed in respect of person of Jawan Dan was not specifically discussed and determined. It was not ascertained whether any injuries were inflicted upon the deceased and whether those injuries were sufficient in the ordinary course of nature to cause death. There is some force in the above line of criticism but I will not attach much importance to this formal defect and will assume that the learned Sessions Judge arrived at the conclusion that an offence of murder was committed in respect of person of Jawan Dan. The question however, is whether the finding of the learned Sessions Judge can be sustained on the materials on record. The Sessions Judge appears to have relied in support of his finding on the following materials: - (1) The evidence of Jogla P. W. 1 and Mania P. W. 2. (2) Recovery of the deceased in consequence of information given by Birda. " (3) Recovery of bones from Gundiwala well in consequence of information given by the accused Likhma. Now proceeding with Jogla who according to the Sessions Judge is the most important witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In my opinion the infirmities in the testimony of Jogla were not given due weight and consideration by the Sessions Judge and the finding therefore, stands vitiated on the ground.
(3.) COMING to the recovery evidence I propose to examine the cases of the two appellants separately. In consequence of the information given by Birda, only certain documents and papers belonging to deceased Jawan Dan have been recovered some three to four months after the alleged commission of murder. The recovery of the property belonging to the deceased soon after their alleged removal may be considered for drawing an appropriate presumption under section 114 of the Evidence Act. The presumption may be with regard to offence of theft or receiving property and it is not usual to draw an inference of the commission of murder from such recovery by themselves, especially when the recoveries were made after a good deal of time. The recovery of property belonging to the deceased immediately after the occurrence coupled with some other evidence may justify a presumption regar-ding the commission of murder but in the present case Jogla's evidence having been discarded I am not prepared to draw a presumption regarding the commission of murder on account of the recovery of certain papers belonging to the deceased after three to four months of the date of the incident. The recovery at the instance of Birda does not justify a conclusion that Jawan Dan would have been necessarily murdered. Dealing with Likhma I find a number of infirmities in the recovery evidence. In the first instance the information which led to the recovery was not recorded separately but was recorded as a part of the long statement of the accused, in which all sorts of things have been introduced. No motbirs were present at the time of recording the information. It is ofcourse true that it is not necessary that 'motbirs' should be called at the time of recording information memo but in the facts and circumstances of the case,keeping in view the very long statement recorded by the Sub-Inspector, I entertain some doubts regarding the accuracy of the information recorded in the statement. Besides there has been no recovery corresponding to the information given during the course of statement. What has been recovered are some bones and a turban and shoes. It has been brought to my notice that some of the important bones are missing. The bones were not in the form of skeleton but Were found scattered. It has not been explained how the bones got detached and scattered during the short period for which they remained in the well. It is also significant that while the turban and shoes alleged to belong to the deceased were found in the well neither the 'dhoti' nor the shirt or baniyan were found. It is difficult to believe that any person throwing the dead body in the well would remove the dhoti and shirt and would throw the shoes and turban into the well. The present condition of shoes and turban do not prima facie indicate their having remained in water for three or four months. Identification of such articles cannot also be considered as safe and conclusive. It is also significant that neither the Circle Inspector nor the Sub-Inspector or motbirs remained present at the time when the well was being emptied. The recovery evidence in these circumstances is not above suspicion. Even accepting the recovery evidence I find it difficult to conclude that it conclusively proves that an offence of murder had been committed. The Doctor has expressed an opinion that after an examination of the bones he was not in a position to ascertain the cause of death. The bones were not preserved for use at trial. The Doctor recorded an opinion about the age and sex of the person whose bones they could be without recording in the report any premises. It is only during the course of his statement at trial that he gave reasons for holding that the bones were of a male human being and that male human being must have been 50 to 60 years. It is not very safe to place implicit reliance upon the opinion of the doctor made under these circumstances. There being thus no correspondence between the information being given by the accused and the discovery I do not feel inclined to attach any much importance to the recovery of bones and shoes from the Gundiwala well. Jogla's evidence having been discarded, from the mere recovery of certain bones and other articles it is difficult to positively conclude that an offence of murder must have been necessarily committed in respect of the person of Jawan Dan. The possibility of the deceased having died by accident or on account of commission of minor offences cannot be completely over-ruled. In these circumstances while expressing no opinion as to whether Jawan Dan met his death or not I have no hesitation in saying that the prosecution has failed to prove that an offence punishable with death was committed in respect of the person of Jawan Dan. It is necessary to establish liability under sec. 201 IPC that it must be proved that the offence had been committed; for no man can be tried for any delusion or mis-conception, however, mis-conception may appear to be. The conviction of the appellants under sec. 201 sub-clause (1) IPC, therefore, cannot be sustained primarily on the ground that there is no clear proof of the commission of such offence. The question remains to be considered whether the recovery evidence itself does in any manner establish that the appellants caused any evidence of the commission of offence to disappear, with the intention of screening the offender. So far as Birda is concerned obviously there is nothing to suggest that he caused evidence of the commission of an offence to disappear. The expression 'any evidence of the commission of that offence' clearly refers, not to evidence in the extensive sense in which that word is used in the Indian Evidence Act, but to evidence in its primary sense as meaning anything that is likely to make the crime evident such as the existence of a wounded crops, or blood stains, fabricated documents or similar material objects indicating that an offence has been committed. Removal of the properties on the person of a deceased or with him cannot be presumed to have been intended to cause evidence of an offence to disappear with the intention of screening the offender. Such removal may easily be associated with a desire to appropriate them. The fact that the articles removed although capable of easy destruction are kept in possession even though concealed strongly militates intention of causing evidence to disappear. Removal and possession of such property is on the other hand a piece of evidence of the commission of an offence against the person possessing them. In these circumstances I am unable to hold that recovery of some papers and documents belonging to Jawan Dan at the instance of Birda accused can safely justify a presumption of the commission of an offence under sec. 201 IPC especially when no presumption as to the commission of an offence under sec. 302 IPC can be raised against anybody. The case of Likhma, of course will be a little different if the prosecution version about the information given by him and discovery is accepted at its face value. Throwing of a wounded corpse into a well may prima facie be presumptive of an offence of causing evidence of the commission of an offence to disappear. Still it will be difficult to presume on merely this circumstance that an offence under sec. 302 IPC and punishable with death must have been committed and that the person throwing the wounded corpse into the well must necessarily be convicted under sec. 201 (1) IPC. Conviction under sec. 201 (1) IPC would not be safe and proper merely on the recovery evidence. The question of liability under other clauses of sec. 201 IPC would have arisen but as discussed earlier I consider the evidence of recovery as hardly safe and reliable therefore I need not peruse the matter. On a careful consideration of all the circumstances of the case I find that the prosecution has not succeeded 'in proving that an offence of murder was committed in respect of Jawan Dan and that the accused knew or had reason to believe that such an offence had been committed and that they caused any evidence to disappear for the purpose of screening the offence. ;