L.S.MEHTA, J. - (1.) THE deceased Raghunath Darji, aged about 50 years, was incharge of a water -hut, opened by one Nanoolal Sukhwal, P.W. 16, In Merta city for offering free water to padestrians. He was drawing Rs. 35/ - per month in lieu of his services. His wife Mst. Rampyari was doing some domestic work in three households. She was earning about Rs. 45/ - permensum. They had three children, namely, Kalu, P.W. 17, (aged about 11 to 14 years), Bhagwati (nearly 7 years' old) and Navrat (aged approximately 5 years). Some two years prior to the date of the occurrence (i.e., April 2, 1968), Raghunath had sold his house, situate in the village of his birth, Bhakri, for Rs. 600/ - to Rs. 1000/ -, to one Moolchand. Of the money received, he deposited Rs. 300/ - with Amrit Raj alias Babulal Mahajan, P.W.1, a resident of Merta city, for safe custody NO receipt on account of the money was passed by the depository in favour of the depositor 'Later on P.W.15 Mst. Rampyari also deposited her three gold ornaments, namely, 'Tadda' Article 1, 'Tussi' Article 2 and 'Bor' Article 3 containing gold weighing about 6 tolas, with Amrit Raj somewhere in October, 1967 In February, 1968 (that is about two months before the occurence) the ornaments were brought back by Mst. Rampyari from the depository. A few days before the incident the accused Pukhraj went to the water hut, which was in charge of Raghunath, to drink water, Pukhraj inter alia inquired of Raghunath as to how he was eking out his livelihood and supporting the membres of his family. Reghunath's reply was that he was in financial tringency. He had, however, entrusted Rs. 1000/ - -, and some ornamenta to Amrit Raj for safe keeping. Having got this clue, Pukhraj suggested to him that the money and the ornaments should better be utilised elsewhere and be depositod with the Sub -Divisional Officer, Merta, so that they might carry interest and he too might get a job. Thereupon Raghunath and his wife with -drew Rs. 1000/ - -from Amrit Raj. The ornaments had already been pulled back, as stated above. Ten currency notes of the denomination of Rs. 100/ - -, each were shown by Raghunath to Pukhraj. Raghunath, an unsophisticated and simpletan Villager insisted that he would like to get back the same currency notes which he was to deposit Pukhraj with a view to create confidence in Raghunath, made tick -marking on each of the currency notes with his fountain pen on its left side. In the morning of April 2,1968, at about 7 or 8, the accused Pukhraj again approached Raghunath and told him that first he would like to show his children to the clerk of the Sub -Divisional Officer, Merta, to enable to know that he was a man of substantial family. He, therefore, persuaded him to send his children with him. Credulous Raghunath readily believed in what Pukhraj had told him and sent his three minor children, Kalu, Bhagwati and Navrat, with the accused. Pukhraj took these children to a well known as 'Kundal', The accused asked Kalu to see young fowls in the well and when he did so, he wanted to push him into it. Good luck, however, averted the tradegy as Kalu caught hold of a pararet wall. In the meantime having seen cartsmen Pukhraj came back to Raghunath along with the children. Kalu told Ragaunath that he would not like to be in the company of the accussed in future. Despite this, confidence of Raghunath in Pukhraj did not receive any jolt and that very day at about 11a m the accused succeeded in taking away Raghunath's two childern, Kalu and Bhagwati, under the pretext that they would be shown to the clerk of the Sub -Divisional Officer, Merts Road, which is at a distance of about 10 miles from Merta City. Bhagwati was seated in the train going towards Bikaner and Kalu was made to board the train proceeding to Jaipur. The accused Pukhraj came back to Merta City. Some persons seeing Bhagwati peeping managed to send her to her house that very day. Next morning Kalu also managed to return to his house. Prior to that, i.e. on April 2, 1968, at abouts 8 or 8.30 p. m., Pukhraj met Raghunath. He deceitfully told him and his wife that Kalu was sitting in the house of the Sub Divisional Officer. Pukhraj then prevailed on Raghunath to accompany him with Rs, 1000/ -, and gold ornaments for depositing the same with the Sub -Divisional Officer. Half witted or sullible Raghunath set out with his money and jewellery. Both of them reached the volleyball field, which is at a distance of about 50 yards from the Station Master's room, A news -paper vendor, Ghouth Mal, P.W.8. wanted to go to the Dak bungalow to sell his pepers. He first passed through the volleyball ground. He enquired of Pukhraj as to whether he liked to buy a paper. Pukhraj's answer was in the negative. He than asked Pukhraj whether his companion would like to get one. To this enquiry also his answer was in negative. Thereafter Raghunath was killed near the volleyball field. His two eyes were mercilessly pierced with an iron 'Patti'. First information report of the occurrence was lodged with the Police Station, Merta City, at the instance of Kalu, son of the deceased Raghunath, by the Circle Officer Kanhaiyalal, P.W.18. The report is marked Ex P -15 and is dated April 3, 1968. On receipt of the formal statement of facts the Station House Officer, Kanhaiyalal, P.W. 18, registered a case and entered upon investigation. The Investigating Officer recovered ten currency notes of the denomination of Rs. 100/ -, each on the information and at the instance of the accused Pukhraj. He also recovered gold ornaments 'Bor' 'Tassi' and 'Tadda', hidden underneath the floor of the shop of the accused. At the time of the arrest of the accused it was noticed that he was putting on a blood stained 'payjama' Article 23. The same was seized by the police under memo Ex.P. 10, on April 3, 1968, at 3 p.m. It was sent to the Chemical Examiner and thereafter to the Serologist. The former reported that stains on 'Payjama' were positive for blood and the latter opined that the article was stained with human blood. The police also seized fountain pen Article 33 lying near the dead body. A blood stained iron 'Patti' Article 21 was also recovered from the place of the occurence memo Ex P.8. According to the Chemical Examiner the 'Patti' was positive for the blood and the Serologist reported that it was stained with human blood. The police also found in the course of the investigation that the accused Pukhraj, who was studying in the 9th Class, was absent from the school on April 2, 1968. The autopsy of the dead body of Raghunath was conducted by Dr S. C. Jain, Medical Officer, in charge, Government Hospital, Merta City, P.W.14, on April 3, 1968 at 3 p.m. Following injuries were seen on the person of the deceased: 1. Stabbed wound 1' X ' X ' over the middle of the upper eye -lid penetrating the eye -ball. 2. Stab wound 1' X' X ' over the middle of the left eye -lid penetrating the eye -ball. 3. Stab wound over the middle of the back of scalp 5' above the pinna of the left ear 1' X' X'. 4. Fracture of the middle parts of the right side, third, fourth, fifth, and sixth rib. 5. There was a clear cut mark 5' X 3' over the front of the neck below the thyroid cartilage encircling the neck horizontally. There was extra vectitation of the blood into the subcutaneous tissues under the ligature mark and the shyat of carodit cartige. The fracture of the thyroid bone and thyroid cartilages was detected. In the opinion of the Doctor the cause of death was asphyxia, as a result of strangulation. All the injuries were ante -mortem. Injuries Nos. 1 and 2 in the eyes could have been caused by the iron 'Patti' Article 21. The Doctor further opined that the injury on the account of the strangulation was sufficient in the ordinary course of nature to cause death. The Doctor also opined that the eyes of the deceased were pierced. After the investigation was completed, the police put up a challan against the accused Pukhraj in the court of the Munsiff -Magistrate, Merta. The said Magistrate conducted preliminary inquiry according to the provisions of Section 207 -A Cr.PC, and commited the accused to the court of the Sessions Judge, Merta, to face trial under Section 302 and 394, I. P. C. The trial court read over and explained the charges to the accused under the aforesaid sections of the Indian Penal Code, to which he pleaded not guilty. In support of its case the prosecution examined 18 witnesses. In his statement, recorded under Section 342, Cr.C.P , the accused denied to have committed any offence. He, however, stated that the currency notes and the ornaments recovered at his instance belonged to his parents He further addmitted that P.W. 9 Gopal Singh was his teacher and as he was down with dysentery, he could not attend the school that day. When the police took him to his residence, he was wearing a nicker only. Then a new 'Payjama' was taken out and he wore it, It was not blood stained. Pukhraj further stated that the pan Article 22, recovered on the spot, did not belong to him. In the end he stated that a theft had been committed in his house and, therefore, his father placed the ornaments in a box and burned them underneath the floor of his shop. Rs. 1000/ -, were also kept amongst the Bazra bags by his father and he was asked by him to be on their watch. In his defence pertaining to ownership of ornaments and cash, the accused examined two witnesses, Ram Swroop D.W. 1 and his father Gopikrishan, D.W.2. The trial court by its judgement, dated April 30, 1969, found the accused guilty under Sections 302 and 394 I. P. C, and sentenced him to imprisonment tor life on the first count and to rigorous imprisonment for 10 years on the second one. Both the sentences were directed to run concurrently. The gold ornaments and the currency notes were ordered to be returned to Mst. Rampyari, wife of the deceased Raghunath.
(2.) AGGRIEVED by the above verdict, the accused Pukhraj has filed the present appeal. Learned Counsel for the appellant quarrels with the judgement of the trial court on several grounds, The deceased Raghunath and his wife Mst. Rampyari, he urged, were having hand to mouth existence and it was hardly possible for them to arrange for and to have deposited Rs. 1000/ -and gold ornaments 'Tadda' Article 1, 'Tussi' Article 2 and 'Bor' Article 3 with Amrit Raj P.W.1. Amrit Raj, counsel adds, has made an untrue statement. These ornaments, on the other hand belonged to the appellant's mother, as is borne out from the testimony of Ram Swroop D.W.1 and Gopikrishna, D.W.2 Learned Counsel further submitted that the identification of the ornaments was not conducted in conformity with law by Shri Daulal, P.W.7, Tehsildar and Second Class Magistrate, Merta City. Therefore, the identification of the ornaments is nothing short of farce. Counsel also challanged the testimony of the identifiers because of certain inconsistencies discernible in their statements and for not examining the goldsmith who had prepared the ornaments. Counsel tried to persuade us to rely on the statement of D W.1 Ram Swroop Sunar, who is alleged to have prepared the ornaments on behalf of the mother of the accused as also on the testimony of D.W. 2 Gopikrishan, father of the accused who has said that the ornaments were owned by his wife. Learned Counsel for the appellant also attacked the finding of the trial court regarding the tickmarking alleged to have been done by the accused on the 10 currency notes Exs 4 to 13 and asserted that such a marking could have possibly been made by the Investigating Officer. It was also argued on behalf of the appellant that the testimony of P.W.6 Shyamdas Bohra, Public Prosecutor, Sessions Court, Merta, is utterly false and the trial court went wrong in reposing confidence on it. Learned Deputy Government Advocate, on the other hand, subscribed to or agreed with the raison detre contained in the judgement of the court below. There is no manner of doubt that Raghunath Sarji died of homicidal violence during the night intervening April 2, and 3, 1969 Dr. S. C. Jain, Medical Officer, Incharge, Government Hospital Merta City, P.W.14, conducted the autopsy of Raghunath's corpse on April 3, 1968, at 3 p.m. The injuries noticed by the Doctor have already been delineated above. In the opinion of Doctor the cause of Raghunath's death was asphyxic, as a result of strangulation. All the injuries were ante -mortem. Stabbing of the two eyes of the deceased could have been caused by the iron 'Patti' Article 21. The strangulation was sufficient in the ordinary course of nature to have caused his death'.This aspect of the case has not been challenged on behalf of the appellant. The trial court, therefore, justly and correctly reached the conclusion that Raghunath died of homicidal injuries caused to him.
(3.) IT is now to be considered whether it is Pukhraj Dakot who is responsible for the wrong doing. In this case there is no eye witness to the commission of the crime. The whole case hinges on circumstantial evidence. The most important evidence is that of Mst. Rampyari, P.W. 15, wife of the deceased Raghunath She states that Pukhraj came to her husband at the water -hut of which Raghunath was incharge, to have a glass of water. He inter alia asked Raghunath as to how much salary he was getting. Raghunath replied that he was drawing Rs. 35/ - per mensem, Pukhraj then told Raghunath that his pay was much too meagre and it was hardly possible for him to pull on therewith and that he should take to some other work. Thereupon Raghunath divulged that he had had with him Rs. 1000/ - and some gold ornaments, weighing about 6 tolas. Pukhraj then suggested to Raghunath that the cash and the ornaments should be deposited with the Sub Divisional Officer, Merta, to enable him to get interest in lieu thereof. He was further tempted that by such a course of action he would also be able to secure a job for himself. The cash, which was lying deposited with Amrit Raj, P.W. 1, was withdrawn. The ornaments had already been taken back from Amrit Raj. The currency notes and the ornaments were shown to Pukhraj. Pukhraj tick marked all the ten currency notes of the denomination of rupees hundred each. After such marking Pukhraj returned the notes to Raghunath and told him that he should accompany him to the office of the Sub -Divisional Officer. Pukhraj told the witness that he tick -marked the notes so that these very notes would be returned to the depositor. On April 2, 1968, Pukhraj came to the water hut at about 6 or 7 p. m,, and told Raghunath to send his children with him to be shown to the clerk of the Sub Divisional Officer. Thereupon the witness and Raghunath entrusted their three children, Kalu, Bhagwati and Navrat to Pukhraj. Pukhraj went away to a well, known 'Kundal', These three children came back after sometime. Pukhraj again took two children, Kalu and Bhagwati. to Merta Road. These children were seated in two different trains one going towards Jaipur and the other towards Bikaner. Bhagwati, however, returned home that very evening. Kalu could come back next morning at about 8 o'clock. In the evening of April 2, 1968, Pukhraj again came and started talking to her husband near the water -hut. Pukhraj told Raghunath that he should accompany him to the office of the Sub -Divisional Officer along with the cash and ornaments. The witness then gave Rs. 1000/ - bearing the tickmarkings of the accused and the three gold ornaments 'Tadda', 'Tussi' and 'Bor' to Raghunath. Thereafter both Pukhraj and Raghunath went towards the bunglow of the Sub -Divisional Officer. After 10 o'clock in the night Pukhraj came to the witness and told her that Kalu was at the residence of the Sub -Divisional Officer and that Raghunath had gone to Merta Road and that he had to proceed to Jodhpur. After saying so, Pukhraj left the place. This led the witness to get suspicious. She approached the Public Prosecutor, Shyamdas Bohra, P.W.6, and informed him of the whole happening. Shyamdas called his peon, Pukhraj son of Heeralal, P.W.11. Thereafter the witness and the peon went to the Station House Officer, Merta City. The police officer was found near the cinema house. He was informed of what had befallen. Next day morning the witness was informed that her husband had been murdered and that his dead body was lying on a bench near the volleyball field.;