JAIN, J. - (1.) THE appellant Kajod was convicted of the offences under Sec. 302,201 and 404, I. P. C, by the learned Additional Sessions Judge, Tonk, by his judgment dated 15. 4. 1974. He was sentenced to imprisonment for life and a fine of Rs. 1,000/-and in default to undergo rigorous imprisonment for six months on the count (under Sec. 302, I. P. C.) and under Sec. 201, I. P. C. , he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 50/-, in default to undergo further rigorous imprisonment for one month and for the offence under Sec. 404, I. P. C, he was ordered to undergo rigorous imprisonment for one year and to pay a line of Rs. 500/, and in default to undergo further rigorous imprissoonment for four months. THE substantive sentences were ordered to run concurrently.
(2.) THE prosecution case, in brief, is that accused Kajod was a resident of village Nivai. THE father of the accused Chanda (P. W. 4) had a sister Smt. Kesar (P. W. 24 ). Kesar used to live at village Jhilai, which is at a distance of about six miles from Nivai. She was married to Ghasi (P. W. 27 ). Ghasi had two sons, Ganesh (P. W. 1) & Ram Narayan Ram Narain died some ten years' back leaving behind his son Ramphool, deceased, aged about 14 years. He was living with his grand parents at Jhilai. On the evening of 18-6-1978 the accused Kajod visited the house of his father's sister at Jhilai and stayed there that night. THE accused and the deceased Ramphool slept on that night on the same cot. In the morning Ramphool left the house and proceeded to graze his goats and sheep in the jungle. THE accused Kajod after taking his breakfast also accompanied him. At the time of departure, the deceased Ramphool was wearing Angarkhi, Dhoti and shoes and he also carried a 'dolchi,. THE accused left the house wearing Bakhtari, Dhoti and turban and was having a bag. The deceased and the accused left the house in the presence of Smt. Kesar (P. W. 24 ). She also accompanied them upto the village temple. In the evening the deceased Ramphool did not return with his herd of sheep and goats. A search was made, but no trace was found of Ramphool, as well as of the herd. On inquiry being made by Ganesh, Moolchand Khati and Moolji Jat disclosed that Ramphool and Kajod were seen going towards Bhagwanpura-Nivai along with the herd Thereupon the search party went to the village Nivai and at Nivai they came to know from Noora Dalai that one man had gone to Jaipur on that night loading the herd of sheep and goats in a truck from Chain-pura Phatak. Thereupon, Ganesh, Mangi Lal, Narayan, Bhairu, Kesara Khatik and Noora Kasai proceeded to Jaipur and, at Jaipur in the musk melon Mandi, they came to know from the broker that the herd is in the 'bara' and the man, who brought the herd, is in the Verandah. There the search party found Kajod. An inquiry was made by them from Kajod as to where Ramphool and the herd are. He pointed out that the herd of sheep and goats are in the Bara, but gave no trace of Ramphool. They brought the herd and Kajod to Nivai and at Nivai he disclosed that Ramphool is in the Swamiwala well, but no trace was found in the well. They suspected that he (Kajod had killed Ramphool. Ganesh, thereupon, proceeded to the Police Station, Nivai and lodged the report Ex. P/2, on which a case under Sections 302 and 379, I. P. C. , was registered. Bachan Singh S. H. O. , arrested the accused. At the time of arrest of the accused, he seized one bag from the possession of the accused, which contained one Dhoti, two turbans, one Chaddi, one Dolchi and suspected blood stains on the bag as well as on the Dhoti. The suspected blood stains were encircled on both the articles. These articles were seized vide memo Ex. P/4, Ex P/5 and Ex. P/6. One Dhoti and Angarkhi were also seized from the person of the accused, which were also blood stained, vide memo Ex. P/8. The nails of both the hands of the accused were also found stained with blood, so the nails were cut and were seized vide memo Ex. P/7 and were packed and sealed. On the information Ex. P/9, the dead body of Ramphool was recovered and a Panehanama Ex. P/15 was prepared. Then he prepared the site plan of the well (Ex. P/11 ). On. 21-6-1973 on the information (Ex. P/28) a parir of shoes and Bakhtari belonging to the deceased were recovered from the small Swamiwala well and its recovery memo Ex. P/16 was Prepared. On 24-6-73 Ram Karan Gujar produced octroi receipt of octroi-post, Sanganer Jaipur, vide memo Ex. P/26. On the same day 40 goats and sheep were recovered from Raranarayan and the same were handed over to him on Supar-dagi Nama. On 25-6-1973 the accused gave information (Ex. P/31) in respect of an axe and got the same recovered vide recovery memo Ex. P/18. On 27-6-1973 the accused further gave information in respect of one sheep and one she goat that he had sold them to Gwaria residing at Chainpura Phatak and one lamb was given in wages for loading the sheep and goats in the truck. After recording of the information, subsequent investigation was conducted by Ramswarup, who made recoveries in pursuance of the information Ex. P/32 and he took over investigation again on 1-7-1973. The pair of shoes and Bakhtari and lamb were put up for identification before the Tehsildar. Nivai, and the sealed packets were sent for chemical examination. On chemical examination blood was detected on Dhoti and Bakhtari, which the accused was wearing. The blood was further detected on the clippings of nails and also on the axe. No blood was found on the Dhoti of the deceased and the bag of the accused. On serological examination, human blood was detected on the Dhoti and Bakhtari and also on the nails cuttings of the accused. But human Wood could not be found on the scra-ppings from iron socket of axe, as the blood had disintegrated. Blood grouping on Dhoti, Bakhtari and nail cuttings could not be made, as the result of the test on the first two articles was inconclusive and the blood was insufficient for test in respect of nail cuttings. The investigation was conducted from the witnesses. On the recovery of the dead body, on 20-6-1973 Dr. Subhash Chandra Jain (P. W. 31) conducted the post-mortem examination. He found the following injuries on his person: - (1) Incised wound 2"xl/2" bone cut with double marks of injury on the occipital bone the medical table of this bone has been cut. (2) Abrasion 3-1/2 " x1/2" on left side of chest 4-1/2 " lateral to left nipple. (3) Abrasion 3-1/2 " x 1" in size, 2-1/2 below injury No. 2. (4) Abrasion 1/3" x 1/3" - 1-1/2 " lateral to manubrium sterni on right side of chest. (5) Abrasion 3" x 1/2" just below left scapula on back. According to him, death was caused due to shock and concussion in brain due to injury No. l. After completion of investigation, charge sheet was presented against the accused in the Court of Munsif-Magistrate, First Class Tonk, who committed the accused for trial to the Court of the Additional Sessions Judge, Tonk. Charges under Sections 302. 201 and 404 I. P. C. . were framed against the accused. The accused pleaded not guilty to the charges and claimed to be tried. The prosecution in support of its case, in all, examined 42 witnesses. The statements of the accused was recorded, in which he denied the prosecution case He stated that there is old enmity with Ganesh and the witnesses are of his acquaintance and the acquaintance of the S. H. O. He stated that blood stained Dhoti and Bakhtari do not belong to him and there was no blood on his nails. However, he stated that the nails clippings were taken by the S H. O. , but they were not sealed in his presence. He also denied the recovery of axe. As regards the prosecution case that he was found at Jaipur along with the herd of sheep and goats, he stated that he was waiting for the truck at Mandi at Jaipur in order to go to Nivai. Ganesh and Mangilal caught hold of him and forcibly put him into a Tempo and brought him to Nivai. There was not herd of sheep, nor he was sleeping at the shop at Jaipur. He also stated that he did not carry any herd in the truck to Jaipur, nor got any octroi receipt issued at the Octroi Post, Sanganer, nor he disclosed his name to any one. No evidence was led in defence. The learned Additional Sessions Judge, after the hearing the arguments, founds that the following propositions are established from the prosecution evidence: - (i) The accused went to the house of Smt. Kesar on the evening of 18. 6. 1973. (ii) He stayed at the house of Smt. Kesar for the night and slept with deceased Ramphool on the same cot. (iii) Next morning i. e. on 19. 6. 73, Ramphool left for jungle to graze his flock of sheep and goats. He was wearing a Dhoti, Angarkhi, a pair of shoes. He also carried a Dolchi of water with him. The accused was also seen going with him. (iv) Ramphool died on 19. 6. 73 due to injury No. 1 which could have been homicidal or accidental. (v) The accused did not inform the relation of the deceased about his death, even though he was closely related to him, but instead when away to Jaipur with the flock of sheep and goats belonging to the deceased. He sold one got to Naru and give one lamb to him, (vi) He was apprehanded by Ganesh and others at Jaipur and told Ganesh that deceased had fallen in the well. (vii) The wearing apparel and the nail clippings of the accused were seized at the time of the arrest and were found stained with blood of human origin. (viii)A Dolchi of the deceased, and also his Dhoti were found in the bag of the accused. (ix) Bakhtari, of the deceased as also his pair of shoes were recovered from a well at the instance of the accused and it appears that he must have thrown them in the well. (x) The dead body of Ramphool was recovered from a well having one head injury and some abrasions. The learned Additional Sessions Judge first expressed doubt as to whe-ther the death is homicidal or accidental. But considering the circumstances that the clothes of the accused and his nails of both the hands were found stained with human blood and that his conduct points out his guilty conscious, he drew the necessary inference that the accused must have murdered Ramphool. He also caused disappearance of the evidence of his guilt with a view to screen himself from punishment and that he committed criminal misappropriation of the flock of sleep and goats belonging to Ramphool, In view of these findings, the learned Additional Sessions Judge, convicted and sentenced the appellant, as aforesaid. Dis-satisfied with his convictions and sentences, the present appeal has been filed. We have heard Shri Doongar Singh, learned counsel for the accused-appellant and Shri R. C. Maheshwari, learned Public Prosecutor for the State,
(3.) THE crucial question in the present case is as to whether the evidence on record is sufficient to connect the accused with the commission of the offence of murder ? In order to connect the accused with the commission of the offence of murder of Ramphool, the prosecution relies on circumstantial evidence only. THEre is no direct evidence on record. It is to be seen, what circumstances are proved against the accused and whether those circumstances lead to only one and one conclusion that it was the accused, who committed the murder of Ramphool. It is also to be seen that the death of Ramphool was homicidal in nature or it was accidental. THE prosecution in this connection has placed reliance on the following circumstances: - (1) that the deceased was last seen in the company of the accused in the morning of 19. 6. 1963; (2) that the accused was found in possession of the flock of sheep and goats, which he carried from Nivai to Jaipur. He was found at Jaipur and was brought to Nivai. Out of the flock he had disposed of one she goat and one sheep and lamb; (3) that the nails and the Dhoti and Bakhtari of the accused were found stained with human blood; and (4) the accused gave no information in respect of the death of Ram-phool to his relations instead of giving information he went away to Jaipur. The learned Sessions Judge, however, also relied that the Bakhtari of the deceased and the pair of shoes of the deceased were recovered from a near-by small well at the instance of the accused and the other belongings of the accused were also found in possession of the accused, namely, one turban, Dolchi and a Dhoti. The dead body of Ramphool was also recovered from the well having one head injury and some abrasions. But the learned Additional Sessions Judge did not place reliance on the recovery of axe on the information and at the instance of the accused and the recovery of dead body was not found at the instance of the accused. Out of the connecting circumstances, stated above, the most material circumstances are the circumstances that the nails of both the hands of the accused were found stained with human blood and that the clothes on person, namely, Dhoti (Art. 13), Bakhtari (Art. 12) were also found stained with human blood, in respect of which the accused instead of giving any explanation, has denied that there was any blood on his nails and that there was any blood on his Dhoti and Bakhtari. He even went to the extent of stating that both these clothes did not belong to him. With regard to this incriminating piece of evidence Mr. Doongar Singh, learned counsel for the appellant, submitted that the above evidence relating to nails and clothes of the accused, having been found stained with human blood, cannot be pressed into service in view of the fact that there is no complete evidence on record to the effect that the seals on the packets of these articles, remained intact and untempered till they reached the hands of the chemical examiner. He referred the statement of Bachan Singh (P W. 40) and submitted that his statement is incomplete He has not even stated that on what dates what sealed packets were deposited by him in the Malkhana of the Thana & at the time of deposit, what was the condition of the sealed packets? He has contended himself by simply stating that the sealed packets were sent to the Chemical Examiner, Jaipur, through Sahjad Singh Thus, his evidence does not establish that the packets of the incriminating articles remained intact and their seals remained untempered. The prosecution has not examined the Incharge Malkhana, where the packets remained upto 26 7. 1973. According to Sahjad Singh (PW 26), Head Mohrir Ramswarup delivered him the sealed packets, but the Head Mohrir Ram Swarup has not been examined. According to Sahjad Singh, the sealed packets were taken by him on 26. 7. 1973 and that in the very condition they were delivered by him to the Chemical Examiner, Jaipur. The prosecution, thus has not lead the link evidence, so Mr. Doongar Singh urged that in the absence of proper statement of Bachan Singh and in the absence of complete link evidence, the circumstances of nails clippings, being stained with human blood and the Dhoti and Bakhtari of the accused, being stained with human blood, cannot be employed against the accused. ;