- (1.) KARNIDAN, the appellant in D. B. Criminal (Jail) Appeal No. 251 of 1977 and Kishanlal, the appellant in D. B. Criminal Appeal No. 471 of 1978, have filed these appeals against their conviction and sentence under the judgment dated May 24, 1977 passed by the Additional Sessions Judge, Jalore in Sessions Case No. 5 of 1977. In the Sessions Case aforesaid, the appellant KARNIDAN was prosecuted for the offences under Sections 302, 448, 394/397, I. P. C. and section 27 of the Arms Act and appellant Kishanlal was prosecuted for the offences under sections 302/34, 448 and 394/397, I. P. C. The Additional Sessions Judge has convicted the appellant KARNIDAN of the offences under sections 448, 302, 394/397, I. P. C. and section 27 of the Arms Act and appellant Kishanlal of the offences under sections 448, 302/34 and 394/397, I. P. C. Both the appellants have been sentenced to imprisonment for life under sections 302 and 302/34, I. P. C. respectively. They have been sentenced to rigorous imprisonment for 1 year under section 448, I. P. C. and rigorous imprisonment for 7 years under section 394/397, I. P. C. Appellant KARNIDAN has been sentenced to rigorous imprisonment for 3 years under section 27 of the Arms Act.
(2.) THE prosecution of the appellants for the offences mentioned above relates to an incident, which took place in the house of Bhanwarlal P. W. 3 in village Alasan P. S. Sayala, District Jalore on 5th November, 1976 at about 2 p. m. In the said incident, one Mohandas is said to have been killed and Smt. Mathra w/o Bhurmal (P. W. 4) and Smt. Mathra w/o Inder Mal (PW 5) are said to have been robbed of the gold chains from their persons. THE case of the prosecution is that the deceased Mohandas, who was an employee of Bhanwai Lal and on 5th November, 1976 at about 2 p. m. he was sitting in the house of Bhanwarlal. Smt. Mathra wife of Burmal (P. W. 4) was also present in the house, at the time, both the appellants entered the house of Bhanwar Lal. Appellant Karnidan was armed with a doubled barrel gun. On entering the 'pol' (entrance hall) of the house, appellant Karnidan asked Mohandas to show them the wealth and when Mohandas expressed his inability to do so, Karnidan fired the gun at Mohandas. THE gun shot hit Mohandas and he fell down injured. Smt. Mathra w/o Bhurmal (P. W. 4) shoutde that Mohandas had been killed and came to the "pol". Appellant Kami Dan came near her and she set down. THEreupon, the appellant Kishanlal put his feet over the feet of Smt. Mathra (P. W. 4) and appellant Karnidan snatched away 2 gold chains from her person, one of the gold chains weighed about 5| tolas and the other gold chains weighed about 1-1/2 tolas. On hearing the cry of Smt. Mathra w/o Bhurmal (P. W. 4), Smt. Mathra w/o Indermal (P. W. 5), who was in the adjacent house, which has a connecting window, entered the house of Smt. Mathra w/o Bhurmal (P. W. 4) through the connecting window and on seeing her the appellants ran after her and appellant Karnidan caught hold of her and appellant Kishanlal snatched a gold chain weighing about 3 tolas from her person and thereafter the appellants ran away. THE case of the prosecution further is that at the time when the appellant; came to the house of Bhanwarlal, Indermal (P. W. 8) was sitting in the "pol" of his house, which is adjacent to the house of Bhanwarlal and on seeing the appellants enter the house of Bhanwarlal, he came behind them and saw the incident of shooting of Mohandas as well as snatching of gold chains from the person of Smt. Mathra w/o Bhurmal (P. W. 4) from outside through the window in the "pol" in the house of Bhanwarlal. THE case of the prosecution further is that Khimchand (PW. 12) has his house opposite the house of Bhanwarlal and was present in the house at the time of the. incident and had seen the appellants going to the house of Bhanwarlal and shooting deceased Mohandas as well as snatching the gold chains from the person of Smt. Mathra s/o Bhurmal (P. W. 4 ). The report (Ex. P/4) about the incident was lodged by Indermal at P. S. Sayala, which is situated at a distance of about 8 miles from the village Alasan. In the said report, Indermal mentioned the name of appellant Karnidan, but he did not mention the name of the other accused-person for the reason that he did not know him from before. The description of the other accused, who accompanied Karnidan was, however, mentioned by Indermal at the time when the report was lodged at the police station and according to the said description, the other person had black complexion, average built and medium stature. On the basis of the report (Ex. P/4), the first information report (Ex. 5) was recorded by the Head Constable Shri Jaggaram (P. W. 6) because Shri Premsingh, S. H. O. , P. S. Sayala was not present in the P. S. at that time. Shri Premsingh arrived at the police station at 3. 45 p. m. and, after recording the statement of Indermal, he proceeded to the scene of the occurrence. A telephonic message was sent from P. S. Sayala to the Superintendent of Police, Shri Jalore about the incident and by the time, Shri Premsingh, S. H. O. reached the scene, Jalam Singh (P. W. 15) Dy. Superintendent of Police, Jalore as well as Shri Lakhsingh, Superintendent of Police, Jalore had also reached the scene. Under the instructions of the Superintendent of Police, Jalore, Shri Jalamsingh (P. W. 15) Dy. Superintendent of Police, Jalore took up the investigation and prepared the memo of site-inspection (Ex. P/7) as well as the site-plan (Ex. P/8a ). He also prepared the memo (Ex. P/13) relating to the condition of the dead body of Mohandas and seized the clothes and other articles found on the person of the body of the deceased vide memo Ex. P/14. The post-mortem examination of the dead body of deceased Mohandas was conducted by Dr. Keshav Kotwani (P. W. 2) vide post-mortem report (Ex. P/l ). The appellants Karnidan and Kishanlal were arrested at Soniyana in District Udaipur on 11th November, 1976, vide memos of arrest Ex. P/10 and Ex. P/ll respectively. At the time of his arrest, appellant Karnidan was found in possession of a double barrel muzzle loading gun and both the barrels of the said gun were loaded. At the time of his arrest, the appellant Karnidan was wearing a gold chain (Ex. 3) with a round "phool" (pendent) bearing "paglias" (feet of the goddess ). The said chain weighing 2 tolas and 15| anas was seized. Appellant Kishan Lal, at the time of his arrest, had with him a bag containing gun powder. After their arrest, the appellants were brought to Jalore and by order dated November 13, 1976, they were remanded to judicial custody. While in judicial custody, a test identification parade was conducted on November 18, 1976 by Shri Padamsingh (P. W. 14) vide memo Ex. P/l5 and the appellants were put up for identification by the three witnesses; namely, Imam khan, Nabia and Bhanwardan (PW. 11 ). After the completion of the said identification proceedings, the appellants were placed in police custody by the Chief Judicial Magistrate, Jalore by his order dated November 18, 1976. On November 21, 1975, appellant Karnidan gave information vide memo Ex. P/17, about his having sold one gold chain weighing 1 tola and 7 anas having a "phool" bearing the name of Mataji to a gold-smith near the temple of Charrbhuja for Rs. 790/- and on the basis of the said information, a gold chain (Ex. 2) was recovered from the possession of Shankarlal Sunar (PW 7) at Charbhuja, vide recovery memo Ex. P/6. On Nov. 24, 1976, appellant Kishanlal gave information vide memo Ex. P/10 about his having concealed one gold chain, in an old Dharamshala in village Leta and on the basis of the said information, a gold chain (Ex. 1) weighing 5 tolas and 5 anas was recovered vide memo Ex. P/16. After the aforesaid recoveries had been made, the appellants were remanded to judicial custody by the order of the Chief Judicial Magistrate, Jalore dated November 25, 1976. On December 2, 1976, appellant Kishanlal was put up for identification in an identification parade conducted by Shri Padamsingh (P. W. 14) vide memo Ex. P. 8. In the said identification parade, the appellant Kishanlal was identified by Indermal (P. W. 8), Khimchand (P. W. 12), Amichand, Smt. Mathra w/o Bhurmal (P. W. 4 ). Smt. Mathra w/o Indermal (P. W. 5) and Shankaria (P. W. I ). The three gold chains were put up for identification in the identification proceedings conducted by Shri Padam-Singh (PW 14) on. December 3, 1976 vide memos Ex. P. 3 and Ex. P9 and the gold chains (Ex. 1 and Ex. 2) were identified by Bhanwar Lal (P. W. 3) and Smt. Mathra w/o Bhurmal (PW. 4) as belonging to Smt. Mathra w/o Bhurmal (P. W. 4) and the gold chain (Ex. 3) was identified by Indermal (P. W. 8) and Smt. Mathra w/o Indermal (PW. 5) as belonging to Smt. Mathra w/o Indermal (P. W. 5 ). After completing the investigation, the police filed the charge-sheet against both the appellants in the court of the Chief Judicial Magistrate, Jalore and by order dated January 4, 1977, the Chief Judicial Magistrate, Jalore committed the case for trial to the court of Sessions and thereupon, the appellants were tried by the Additional Sessions Judge, Jalore on the charges referred to above. The appellants pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined 15 witnesses. Smt. Mathra w/o Bhurmal (P. W. 4), Smt. Mathra w/o Indermal (P. W. 5), Indermal (PW 8) and khimchand 'pw, 12) have been examined as the eye-witnesses of the occurrence. P. W. 11 Bhanwardan has been examined to prove that both the appellants had stayed at his house in village Kharal on the night preceding the occurrence and had left his house at about 12 'o' clock in the noon on November 5, 1976. P. W. 1 Shankaria has been examined to prove that both the appellants had come to his field to drink water some time before the incident and that about two hours thereafter he had learnt about the incident. Dr. Keshav Katwani (P. W. 2) is the Medical Officer, who had conducted the post-mortem examination of the deceased Mohandas and has proved the post-mortem report (Ex. P. 1 ). P. W. 7 Shankarlal has proved the recovery of the gold chain Ex. 2 from his possession. P. W. 3 Bhanwarlal is the son of Smt. Mathra wife of Bhurmal (PW 4) and has identified the gold chains (Ex. 1 and Ex. 2 ). P. W. 13 Okharam is the attesting witness of the recovery memo (Ex. P. 16) relating to the gold chain (Ex. 1 ). P. W. 14 Padamsingh is Tehsildar, Jalore, who was officiating as Magistrate at Jalore and had conducted the identification proceedings relating to the accused-persons as well as the gold chains and has proved the memos of identification (Exs. P. 3, P. 8 and P. 15 ). P. W. 6 Jaggaram was the Head Constable at P. S. Sayala, who had recorded the first information report. P. W. 9 Premsingh is S. H. O. of P. S. Sayala and had arrested the appellants. P. W. 15 Jalamsingh, Dy. S. P. , Jalore is the police officer, who had investigated the case. The appellants, in their statements recorded under sec. 313, Cr. P. C. denied their complicity in the occurrence. Appellant Karnidan denied that any gold chain was recovered from his possession or was recovered at his instance and has also stated that the identification proceedings, which were held were not properly conducted. Appellant Kishanlal also denied having got any gold chain recovered and has stated that the identification proceedings were not properly conducted and that he had been shown earlier by the police. The Additional Sessions Judge held that the presence of the appellant Karnidan was established from the evidence of Smt. Mathra w/o Bhurmal (P. W. 4), Smt. Mathra w/o Indermal (PW 5), Indermal (P. W. 8) and Khimchand (P. W. 12), who knew the appellant from before and that apart from the evidence of the aforesaid eye-witnesses, there was the evidence of Shankaria (P. W. 1) and Bhanwardan (P. W. 11), who had seen the said appellant and that in addition, there was the evidence with regard to the recovery of gold chain (Ex. 3) from the possession of appellant Karnidan and the recovery of gold chain (Ex. 2) on the basis of the information given by the said appellant, and that the gold chains had been identified belonging to Smt. Mathra w/o Indermal (P. W. 5) and Smt. Mathra w/o Bhurmal (P. W. 4) respectively. As regards appellant Kishanlal, the Additional Sessions Judge has held that his complicity in the crime was established from the evidence of Shankaria (P. W. 1), Smt. Mathra w/o Bhurmal (P. W. 4), Smt. Mathra w/o Indermal (P. W. 5), Indermal (P. W. 8), Khimchand (P. W. 12) and Bhanwardan (P. W. 11), who had identified the said appellant as the other person, who was accompanying appellant Karnidan and further from the recovery of the gold chain (Ex. 1) at the instance of the said appellant and that the said gold chain had been identified as belonging to Smt. Mathra w/o Bhurmal (P. W. 4), In view of the findings aforesaid, the Additional Sessions Judge, Jalore convicted the appellants of the offences referred to above, and sentenced them to various terms of imprisonment. Hence these two appeals.
(3.) WE have heard Mr. B. R. Arora, learned counsel for the appellant Karnidan and Mr. Doongarsingh, learned counsel for the appellant Kishanlal in support of these appeals and Shri R. C. Bhati, the learned Public Prosecutor for the State. The fact that an incident took place in the house of P. W. 3 Bhanwarlal in village Alasan on November 5, 1976 and that in the said incident, Mohandas sustained gun shot injuries as a result of which, he died at the spot, is established from the evidence of Smt. Mathra w/o Bhurmal (P. W. 4), Smt. Mathra w/o Indermal (P. W. 5), Indermal (P. W. 8), Khimchand (P. W. 12) as well as by the site-plan (Ex. P. 8), memo of site-inspection (Ex. P. 7), the memo of the condition of the dead-body (Ex. P. 13), which have been proved by Jalamsingh (P. W. 15), and the postmortem report (Ex. P. 1), which has been proved by Dr. Kotwani (P. W. 2 ). The snatching of two gold chains (Ex. 1 and Ex. 2) from the person of Smt. Mathra w/o Bhurmal (P. W. 4) is established by the evidence of Smt. Mathra w/o Indermal (P. W. 5), Indermal (P. W. 8) and Khimchand (P. W. 12) and the identification of the said chains as belonging to Smt. Mathra w/o Bhurmal (P. W. 4) by Bhanwarlal (PW. 3) and Smt. Mathra w/o Bhurmal (PW. 4) in the court as well as at the test identification held on December 3, 1976 by Shri Padamsingh (P. W. 14) vide memo of identification Ex P. 3, which has been proved by Shri Padamsingh (P. W. 14 ). Similarly the snatching of the gold chain (Ex. 3) from the person of Smt. Mathra w/o Indermal (P. W. 5) is established by the evidence of Smt. Mathra w/o Indermal (P. W. 5) and Indermal (P. W. 8) and the first information report (Ex. P. 5) and the identification of the said chains as belonging to Smt. Mathra w/o Indermal (P. W. 5) by her and her husband Indermal (P. W. 8) in the court as well as at the test identification held on December 3, 1976 by Shri Padamsingh (P. W. 14) vide memo of identification (Ex. P. 9) which has been proved by Shri Padamsingh (P. W. 14 ). The question, which needs to be determined in these appeals is whether the appellants were the persons responsible for the said crimes. We will first take up the case of appellant Karnidan. As against the said appellant, the prosecution has. relied upon the evidence of the eye witnesses namely; Smt. Mathra w/o Bhurmal (P. W. 4), Indermal (P. W. 8) and Khim- chand (P. W. 12), who claim to know appellant Karnidan from before and have deposed that appellant Karnidan was one of the two persons, who had entered the house of Bhanwarlal (P. W. 3) and was the person, who had fired the gun and had caused the death of Mohandas deceased and had snatched the two gold chains from the person of Smt. Mathra w/o Bhurmal (P. W. 4) and Smt. Mathra w/o Indermal (P. W. 5) who also claims to know appellant Karnidan from before and has deposed that appellant Karnidan had caught hold of her to enable his companion to snatch the gold chain from her person. The evidence of these witnesses is sought to be corroborated by the report (Ex. P. 4) lodged by Indermal (P. W. 8) at P. S. Sayala wherein the name of Karnidan is mentioned and the evidence of Shankaria (P. W. 1) and Bhanwar-dan (PW. 11 ). In addition, there is the evidence with regard to the recovery of the gold chain (Ex. 3) from the person of the appellant Karnidan at the time of his arrest, which gold chain has been identified by Smt. Mathra w/o Indermal (P. W. 5) and Indermal (P. W. 8) as belonging to Smt. Mathra w/o Indermal (P. W. 5) and the evidence of recovery of the gold chain (Ex. 2) at his instance from the possession of Shankarlal Sunar (P. W. 7) and the said gold chains (Ex. 2) has been identified as belonging to Smt. Mathra w/o Bhurmal (P. W. 4) by her son, Bhanwarlal (P. W. 3) and Smt. Mathra w/o Bhurmal (P. W. 4 ). ;