- (1.) THIS is an appeal by two persons Hari Singh and Mamdu Singh who have been convicted by the Sessions Judge, Alwar under secs, 302 and 392 of the Indian Penal Code. For the first offence they have been sentenced to transportation for life and for the second one, to five years' rigorous imprisonment each. Both sentences have been ordered to run concurrently.
(2.) THE prosecution story in this case was that on the 7th December, 1950, one Mst. Sarupi wife of Imamkhan of village Jat Allapur went out in the jungle to collect fuel wood at about 2 P. M. She had left her little girl with her husband's brother Noorkhan. When she did not return home till sunset, Noorkhan went to his brother Imamkhan at his well and informed him about it. Imamkhan then organised a search party consisting of about eight or ten persons including Chawkhan, Jaimal, Mohmadkhan, Badsingh and others and went into the jungle to search Mst. Sarupi. It had grown dark by that time and so with the help of fire which they had kindled, they found the dead body of Mst. Sarupi lying in a clump of bushes. Some persons of that party remained at the place of occurrence while Chawkhan went to the Police Station Tijara and lodged a report that Mst. Sarupi was hacked to death and the ornaments on her body were also missing. Bhagwati Prasad Sub-Inspector, thereupon went to the site of occurrence, prepared the inquest report and the site plan and seized among other things an iron scythe with a wooden handle which that woman had probably carried for collecting fuel, a pair of her shoes, three silver rings tucked in a piece of the deceased's ear and another silver ring lying apart. THE dead body of Mst. Sarupi was sent to the Medical Officer, Tijara for post-mortem examination. From two persons named Munshi P. W. 7 and Ashraf P. W. 10, the Sub-Inspector came to know on that very day, that is 8th December, 1950, that they had seen two persons armed with tabbals (scarpines) going towards the site of occurrence. On the 12th December, 1950, he interrogated appellant Mamdo Singh who gave him information about the presence of Mst. Sarupi's ornaments at the house of Hari Singh appellant No. 1. On the 13th December, 1950, he went with Mamdo Singh to Hari Singh's house at village Bolni and recovered one pair of bangles, one pair of pacheli, one pair of karas and buttons of silver at his instance. THEse ornaments were found buried in the wall of the chhappar of Hari Singh appellant's house. THE same day, Hari Singh appellant was arrested and at that time he threw a purse towards his brother's wife Barwan Bai. That was, however, seized by the Sub-Inspector and it was found to contain silver ghugrees which had separated from the chain of buttons, It is also alleged that Hari Singh appellant took the police party to the west of his house at a distance of about 30 steps and from a tent which was used as a stable for his bullocks he took out a tabbal which was buried under ground and on which stains of blood were discovered. It is further alleged that the appellant Hari Singh informed the Sub-Inspector that one silver hansli belonging to the deceased was pawned by him with a: Sindhi shopkeeper for Rs. 30/- at Kishangarh and, therefore, the appellant was taken to Kishangarh. THE appellant led the police party at Kishangarh to the shop of one Kheduram Sindhi from whose shop silver hansli was recovered. It is stated that on the 15th December, 1950, the appellant Mamdo Singh gave to the Sub-Inspector one tehmat of red spoted chunri which he was wearing on the day of occurrence. On the same day, the police recovered at Hari Singh's instance another 'tehmat of check design, one black shirt and one under-wear of blue silk from the heap of rubbish lying towards the north of his house at a distance of about four paces. It is said that * on being asked by the Sub-Inspector, the appellant Hari Singh took him to the house of Hasan Singh from whose chhappar another tabal was recovered. With this evidence, the police challaned both the accused in the court of the Sub-Divisional Magistrate, Tijara. The tabals which were sent to the Chemical Examiner were not received back by the time the Magistrate completed his enquiry, but he found the evidence sufficient for committing the accused and therefore they were committed to the court of Sessions Judge, Alwar for their trial. During the course of trial in the court of the Sessions Judge, the reports of Serologists and Chemical Examiner Ex. P. 24 were also received. The Serologist found the tabal Ex. P. 11, recovered from the house of Hari Singh, positively stained with human blood, but on the other tabal Ex. P. 12 which was recovered from Hasan Singh's house, blood stains were not discovered. Both appellants pleaded innocence in the committing Magistrate's court and also in the Sessions Judge's court. The learned Sessions Judge, however, found both the accused guilty and convicted and sentenced them as mentioned above. Now in this case, so far as the fact of Mst. Sarupi's murder is concerned, it is fully established from the prosecution evidence. Chow-khan P. W. 1, Imamkhan P. W. 2 and Noorkhan P. W. 3 have all stated that they had seen Mst. Sarupi lying murdered at the site of occurrence. P. W. 8 Dr. Dharampal who conducted the post-mortem examination of the deceased has stated that he found the following four injuries on her person - (1) Incised wound behind right ear measuring 4"x l" x l/8". The bone was cut in the upper 5/6", while the lower 1/6 the ear was cut. (2) Incised wound on right side of neck one inch behind injury No. 1, 6" x 4" x 3", cutting the fourth cervical vertebra and separating it from the fifth. (3) Incised wound on right fore-arm 5"x 3" x 1-1/2". (4) Upper portion of right ear was cut off. Injuries No. 1, 2 and 4 were grievous. Injury No. 2 was sufficient in the ordinary course of nature to cause death. It is clearly established by this evidence that Mst. Sarupi was killed by some one with a sharp edged weapon. The fact of Mst. Sarupi's murder is not challenged even by the appellant's advocate. What is contested is the responsibility of the appellants for her murder. The learned advocate for the appellants has contended that the evidence against the appellant Mamdu Singh does not proceed beyond any suspicion because even if it be believed that the ornaments were discovered from Hari Singh's house at his instance, this fact only showed that the appellant had knowledge of the presence of those ornaments. No property belonging to the deceased was recovered from his possession. The tehmat Ex. P. 27 recovered from his house was not found stained with blood and thus there was no sufficient evidence to warrant his conviction and therefore, he should be acquitted. About the other appellant Hari Singh, it was argued that although the ornaments belonging to the deceased were recovered from his possession, the trial court should not presume that they were obtained by the appellant by committing Mst. Sarupi's murder. At the most, it could be presumed against him that he had either stolen those ornaments or that he was a receiver of the stolen property. According to the learned advocate, even this presumption should not be made against the appellant because he had stated that he had seen a person taking away these ornaments and since the appellant challenged him, he threw them at him and ran away. Under the circumstances, it could be said against the appellant that he had only misappropriated the ornaments. We have carefully gone through the re-cord of this case. We agree with the learned advocate for the appellants that so far as the appellant Mamdu Singh is concerned, the evidence against him is very weak for his conviction. The first piece of evidence against him is that of P. W. 7 Munshi and P. W. 10 Ashraf, both of whom have stated that they had first seen Mst. Sarupi going towards the jungle and that after sometime, they had also seen both the appellants going together in the same direction. They have also stated that both of them were armed with tabals. P. W. 15 Ganpat Rai Magistrate 1st Class, Tijara has stated that these witnesses had identified both the appellants in his presence at an identification parade in which several persons of the same age and appearance were mixed with the accused. The trial court has believed this evidence and it has not been assailed before us. We have, therefore, no reason to doubt that the witnesses had identified the appellants wrongly or that the identification was carried on in any suspicious manner. But the evidence of these two witnesses does not point conclusively that both the appellants had murdered Mst. Sarupi together on the day of occurrence. The appellant Mamdu Singh had stated in the committing Magistrate's court that on that day the appellant Hari Singh had told him that he had got some ornaments from a man who was running with them. The appellant Hari Singh had also stated in that court that at the time when he got these ornaments Mamdu Singh was not in his company. Thus whatever suspicion may be entertained against Mamdu Singh because of his being seen in Hari Singh's company sometime before the occurrence, it can not be said definitely that he had gone with him right up to the site of occurrence, or that he was present at the time of Mst. Sarupi's murder. The next piece of evidence against him is tehmat Ex. P. 27 which according to the prosecution was in his possession on the day of occurrence but it has also not been found stained with blood. The only other evidence, therefore, left against him is that the ornaments belonging to Mst. Sarupi were discovered from Hari Singh's house at his instance. This evidence also is not sufficient to convict him for offences of robbery or murder because he had come to know from Hari Singh that he (Hari Singh) had the ornaments in his possession. It is no doubt true that there are good reasons to suspect Mamdu Singh's hand in the foul play but suspicion howsoever strong is not sufficient for convicting the accused. The learned Government advocate has also conceded that he does not press the case against the appellant Mamdu Singh and in our view he is fit to be acquitted of both the offences with which he has been charged. As regards the appellant Hari Singh, it is definite from the evidence of P. W. 7 and P. W. 10 discussed above that he was seen on the day of occurrence going towards the same direction as Mst. Sarupi had gone earlier sometime before. Besides, it is proved that bangles Ex. P. 2, pacheli Ex. P. 3, Balas Ex. P. 4 and buttons Ex. P. 5 were recovered from his house on the seventh day after the murder. P. W. 14 Ganeshi Lal and P. W. 16 Bihari who are witnesses to the search memo have supported the fact of this recovery. It is also proved from the evidence of P. W. 13 Kheduram that on the next day of the occurrence i. e. , on the 8th December, 1950, the appellant had gone to him at Kishangarh and pawned a hansli Ex. P. 6 with him for Rs. 30/ -. All these ornaments Ex. P. 2, Ex. P. 3, Ex. P. 4, Ex. P. 5 and Ex. P. 6 have been identified by P. W. 2 Imam-khan, P. W. 6 Mohmad Khan and P. W. 1 Chawkhan as belonging to the deceased Mst. Sarupi. It is clear from the evidence of P. W. 13 Kheduram that the appellant was in possession of Mst. Sarupi's ornaments on the next day after the murder. The appellant himself has admitted that the ornaments Ex. P. 2, Ex. P. 3, Ex. P. 4 and Ex. P. 5 were recovered from his possession and that hansli Ex. P. 6 was pawned by the appellant with Kheduram and that it was recovered at his instance. It is also proved from the evidence of P. W. 14 Ganeshi Lal and P. W. 17 Piarelal that the tabal Ex. P. 11 was recovered from his stable. The report of the Chemical Examiner and the Serologist Ex. P. 24 is also positive about the presence of human blood on the tabal. Thus although no eye witness has been produced by the prosecution to say that he had seen the appellant Hari Singh murdering or even assaulting Mst. Sarupi, the following three things are proved against him - (1) that on the day of occurrence he was seen going in the jungle armed with a tabal in the same direction in which Mst. Sarupi had gone a little earlier, (2) that soon after the murder of Mst. Sarupi he was found in possession of the ornaments which she was wearing before her murder, (3) that the tabal recovered from his possession was found stained with human blood. The appellant's learned advocate has argued that the mere fact that the appellant was found in possession of the ornaments of the deceased does not raise a presumption that he had murdered her. According to him the explanation given by the appellant about the manner in which he came in possession of the ornaments is not improbable that the facts proved against him are not incompatible with his innocence and therefore, he should be acquitted. In support of his arguments, he has referred to a number of cases of the High Courts of Lahore, Bombay and Allahabad and also one case of this Court. We have gone through these cases and they may be distinguished from the present one In the last case of Dasuram vs. State (1) (Rajasthan Law Weekly, 1951, p. 74.) relied upon by the appellants' learned advocate it was remarked at page 77 that "it cannot be said without doubt' that the recovery was made in the manner alleged by the prosecution. Moreover, even if the prosecution evidence is believed, the only thing which is proved is that the appellant recovered the ornaments in question from a thatch meant for tethering cattle of the family of the accused which consisted of several members including his parents. It cannot, therefore, be said that the said thatch was in exclusive possession of the accused. " Thus in the first instance, the manner of recovery, was doubted. The exclusive possession of the ornaments by the appellant was also in doubt and there was no other evidence to connect the appellant with the crime of murder. In the present case the manner of recovery is not doubted and the appellants' exclusive possession of the deceaseds' ornaments is not disputed and there are additional circumstances linking the appellant with the murder as will shortly be discussed hereafter, and therefore, the case cited above is easily distinguishable from this one. Among the cases of Lahore High Court, the first one cited by the appellant's learned advocate is that of Wallu vs. The Emperor (1) (A. I. R. 1924, Lahore, p. 109. ). In that case the body of the deceased was found in a canal and the post-mortem examination had not revealed the cause of death because putrefaction was too far advanced. It was thought by the learned Judges that it was not impossible that the deceased might have fallen into the canal without the agency of the appellant. It was for these reasons, among others, that although the appellant had knowledge of the place in which the ornaments worn by the deceased prior to his death were concealed and although the appellant had dug them up during the police investigation, it was held that the evidence did not exclude every reasonable hypothesis other than that the deceased's death was caused by the accused. In the other case of Ghauns vs. Emperor (2) (A. I. R. 1926, Lahore, p. 691.), it was held by their Lordships that "in order to justify the inference of guilt, the circumstantial evidence, where there is no direct evidence must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. " So far as the principle involved in these remarks is concerned, we are in respectful agreement. In that case, the ornaments of the deceased were recovered at the instance of the accused but there was no further evidence like that of recovery of the instrument of murder in the possession of the accused. In the third case of Muhammad Ali vs. Emperor (3) (A. I. R. 1929, Lahore, p. 61.), the body of the deceased was not found. The deceased was a taxi driver and about his clothes which were recovered from the possession of the accused, it was remarked that they were not necessarily those which the deceased was wearing on the day of occurrence. It was thought that they might be lying in the car and it was under these circumstances that it was held that the circumstantial evidence did not exclude the possibility of the accused's innocence. In the case of Bhikha Gober vs. Emperor (4) (A. I. R. Bombay, 1943, p. 458.) it was remarked by their Lordships of the Bombay High Court that "the mere fact that the accused produced, shortly after the murder, ornaments which were on the murdered woman is not enough to justify an inference that the accused must have committed the murder. Evidence to connect the accused with the murder is necessary. " In that case the prosecution had produced two eye witnesses to the murder and both of them were disbelieved by the trial court. Thereupon it was remarked by their Lordships that "if one disbelieves the evidence of these eye witnesses, it necessarily follows that an attempt has been made to manufacture evidence against the accused, and that necessitates the court being particularly careful in relation to the rest of the evidence. " It is apparent that the prosecution having produced some suspicious evidence, the court could not easily believe the remaining evidence. It was for these reasons that the mere fact of the recovery of ornaments from the possession of the accused was not considered sufficient to connect him with the murder. In the last case State vs. Shankar Prasad and another, it was reiterated by their Lordships following Queen Empress vs. Hosh Nak (1941. Allahabad L. , J. 416) that "to proof by circumstantial evidence four things are essential - (1) That the circumstances from which the conclusion is drawn be fully established. (2) That all the facts should be consistent with the hypothesis. (3) That the circumstances should be of a conclusive nature and tendency. (4) That the circumstances should, to a moral certainty actually exclude every hypothesis but the one proposed to be proved. " It is further remarked by their Lordships that "no hard and fast rule can be laid down as to what inference can be drawn from a certain circumstance. The cumulative effect of all the circumstances established by evidence and the nature of these circumstances have to be taken into consideration and then it has to be judged whether, having regard to the ordinary course of human conduct, it is safe to presume that the offence was committed by the accused. Where the only evidence against an accused is the recovery of the stolen property, although circumstances show that the theft and the murder were committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof. " The learned Government advocate on the other hand has referred to the case of Emperor vs. Chintamoni Sahu (1) (A. I. R. Cal , 1930, p, 379 (2 ).), in which it was held that "the possession of stolen goods recently after the loss of them may be indicative' not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated crime which has been connected with the theft; this particular fact of presumption forms also a material element of evidence in case of murder. "
(3.) WE agree with the remarks of the learned Judges of the Allahabad High Court made in the case of State vs. Shankar Prasad and another mentioned above that it is not possible to lay down any hard and fast rule as to what inference may be drawn from certain circumstances. In the first instance, the circumstances from which the conclusion is to be drawn in a certain case must be fully established. Secondly where the circumstances show that the theft and murder are committed at the same time and if the only evidence against the accused is that of possession of the stolen property of the deceased, it is not generally safe to draw an inference that the accused himself was the murderer. But if there are other circumstances also to connect the accused with the murder, then the fact that he is also in possession of the property which was with the deceased immediately before his murder is a very strong circumstance pointing towards his guilt and should not be lightly ignored. In the present case, the appellant has tried to convince the court that some one was taking away the ornaments of the deceased and when he challenged him, he threw them at him and ran away and that he then picked them up and took them away to his house. In the first instance, this explanation is not easily believable. If any person had murdered Mst. Sarupi with the only purpose of robbing her of her ornaments then he could not just throw them away at the appellant. Still if the evidence against the appellant was that of mere possession of the ornaments of the deceased, we would not have maintained his conviction because it could be explained in other ways and it could not necessarily be incompatible with the innocence of the accused so far as murder was concerned. But in the present case there are two additional circumstances namely: - (1) That he was seen going towards the same direction as the deceased shortly before her murder armed with tabal and (2) that the tabal recovered from the possession of the appellant was found stained with human blood. It is significant that the appellant has given no explanation as to how human blood came on his tabal. The circumstance that the tabal was found buried under ground is also significant because that is not the usual mode of keeping such articles and it lends further support to the other circumstantial evidence. P. W. 8 Dr. Dharampal who conducted the post-mortem examination of the deceased has stated that the injuries could have been caused by the tabal Ex. P. 11. All these circumstances taken together are incapable of reasonable explanation and they clearly, point out that it was none else but the appellant himself who had committed murder of Mst. Sarupi. In our opinion, the appellant has been rightly convicted both under secs. 302 and 392 of the Indian Penal Code and there is no reason to make any change in the sentence awarded to him. Hari Singh's appeal is therefore, dismissed and his conviction and sentence is maintained. Mamdu Singh is acquitted of the charges under secs. 302 and 392 of the Indian Penal Code and it is ordered that he be released forthwith unless required in some other case. .;