- (1.) ON referencethis is an appeal by ONe Umrao and has been placed before me ON a difference of opiniON between the Judges hearing the appeal in DivisiON Bench. Umrao was put ON trial in the court of the AdditiONal SessiONs Judge, Alwar ON two counts; ONe under sec. 302 Indian INDIAN PENAL CODE, 1860 and the other under sec. 201 Indian INDIAN PENAL CODE, 1860. The learned AdditiONal SessiONs Judge found Umrao guilty under sec. 302 of the Indian INDIAN PENAL CODE, 1860 , but acquitted him of the other charge observing that an act of cONcealing the dead body of the deceased was not screening the offender as the accused himself was the offender. The learned trial Judge relied ON State vs. Mohanlal (l) for his cONclusiON that a murderer by removing a dead body from a place of murder to another place cannot be held to screen himself as the persON to be screened must be somebody else than the offender within the meaning of sec. 201 Indian INDIAN PENAL CODE, 1860.
(2.) THE convict appealed and the appeal was heard by a Division Bench consisting of V. P. Tyagi and J. P. Jain JJ. While Tyagi J. held that the accused was responsible for causing the death of the deceased Gulla and had, therefore, been rightly convicted by the trial court for the offence of murder under sec. 302 Indian INDIAN PENAL CODE, 1860 , Jain J. held that the evidence was not of such a character as to exclude every hypothesis but the one proposed to be proved by the prosecution namely, that of the accused being the murderer of Gulla. As regards the count under sec. 201 Indian INDIAN PENAL CODE, 1860 while Tyagi J. did not make any observation, Jain J. thought that in the circumstances the accused could be held guilty for causing disappearance of the evidence of the crime of murder and he could be punished under sec. 201 Indian INDIAN PENAL CODE, 1860 , but he felt that there was a difficulty in convicting him of that charge as he had been acquitted by the trial court and there had been no appeal against the accused's acquittal under sec. 201 Indian INDIAN PENAL CODE, 1860. In the result he was of the opinion that the appeal be allowed and the accused acquitted of the charge under sec. 302 Indian INDIAN PENAL CODE, 1860 as well. It is in these circumstances that the appeal has been placed before me under orders of Hon'ble the Chief Justice. The prosecution case has been set out both by Tyagi J. and Jain J. in their respective opinions and I need not cover the same ground over again. Suffice it to say that the essence of the indictment against the accused was that on account of previous enmity between the deceased Gulla and the family of the accused Umrao the latter had caused Gulla's death with an axe on the morning of 24-7-68 in the jungle of Machi (Distt. Alwar) near Surajwala Nala. The deceased had left his village Machi for Behror early in the morning to attend the hearing of one case. Umrao came to know of it and he followed Gulla and he attacked Gulla in the jungle of Machi with the axe and killed him on the spot There was no eye witness in the case and the case depended on the circumstantial evidence consisting of (1) the motive for the crime, (2) extra judicial confession said to have been made by the accused before P. W. 1 Manna Lal and P. W. 7 Surja. These witnesses were further corroborated by P. W. 2 Sheoram, P. W. 3 Lila and P. W. 4 Ram Kanwar, (3) the discovery of the dead body of Gulla from a well in pursuance of an information given by the accused Umrao to P. W. 21 Shri Surat Singh, Investigation Officer, vide Ex. P/15. Recovery of the dead body was made by Shri Surat Singh from the well in presence of the motbirs P. W. 14 Banshi-dhar and P. W. 15 Atmaram, (4) discovery of the clothes of the deceased and the axe Article 1, alleged to be the weapon of offence and a blood stained 'dhoti' Article-6, worn by accused Umrao when he was arrested. In appeal it was argued on behalf of the convict by his learned counsel that the circumstantial evidence had not been properly appreciated by the trial court. As regards the recovery of axe Art 1 and the 'dhoti' of the accused it was argued that the blood on these articles being disintegrated by the time the articles came to be examined by the Sarologist, it could not be said that they bore human blood and, therefore, the accused could not be said to be connected with the crime on the basis of these two circumstances. As regards the 'dhoti' of the deceased said to have been recovered at the instance of Umrao it was submitted that it did not connect the accused with the crime as it had not been proved that the 'dhoti' belonged to the deceased. Regarding the extra judicial confession it was contended that the statements of P. W. 1 Mannalal, P. W. 2 Sheoram, P. W. 3 Lila, P. W. 4 Ram Kanwar and P. W. 7 Surja were unreliable. Tyagi J. came to the conclusion that the trial Judge had committed grave error in seeking corroboration from the statements of Lila and Ram Kanwar for the proof of the extra judicial confession of the accused. His conclusion was that the extra judicial confession had not been established. Tyagi J. has, however, accepted the statement of P. W. 2 sheoram, P. W. 3 Lila and P. W. 4 Ram Kanwar in part for holding that these witnesses happened to see Umrao when they were on their way to Bansur while they happened to pass from near the Nala. According to these witnesses, Umrao had come to them and on enquiry informed them that it was Gulla with whom abuses were exchanged by Umrao. His Lordship was impressed by the statement of P. W. 2 Sheoram. In cross-examination this witness had turned hostitle to the prosecution. He stated, when confronted with his statement in committing court Ex. P/l, that there was exchange of abuses between him and Gulla. Relying on this admission of Umrao about the presence of Gulla at a place from where ultimately blood stained earth was seized by the Investigating officer the Tyagi J held that this incriminating circumstance was established against the accused. Tyagi J. further held that the recovery of the dead body was made on the information furnished by the accused vide Ex. 15. For this he relied, by and large, on the statement of P. W. 21 Shri Surat Singh, Investigating Officer. Tyagi J. further reached the conclusion that at the time of his arrest the accused was putting on the 'dhoti' Art. 6 which bore the blood stains which had been washed. He considered it as an important piece of evidence even though it had not been proved that the blood on the 'dhoti' was human blood as by the time the articles reached the Serologist the blood has disintegrated. Tyagi J. further put weight on the fact that in his statement under sec. 342 of the Code of Criminal Procedure the accused had denied the recovery of this 'dhoti' and that was an additional circumstance against him Tyagi J. further held that the axe Art, 1 was recovered at the instance of the accused. So were the other articles like the 'dhoti' and a pair of shoes belonging to the deceased recovered at the instance of the accused. One and a half 'chapati' were was found tied in the 'dhoti' According to the Chemical Analyst, the axe had stains of blood on it, but according to the Serologist, the origin of the blood could not be known as the blood was disintegrated. Tyagi J. further took into consideration the nature of the incised wound found on the dead body and observed that such injuries could be caused by the axe Art. 1. Tyagi J. referred to Wasim Khan vs. State of U. P. (1) in support of his conclusion that even though the article was not shown to have human blood on it, the circumstance of there being blood on the article could yet be taken into consideration against the accused. As regards the motive, he held that even the accused bad admitted in his examination under sec. 342 Criminal Procedure Code that there was enmity bet ween the deceased Gulla and the accused. In the result, therefore, Tyagi J. concluded the discussion in the following words: " In the instant case, I think that the prosecution has succeeded in proving the following circumstances: (1) Enmity between the parties which provided a motive for the accused to commit the offence of murder. (2) The presence of the accused at the site of the murder as admitted by the accused himself to Sheoram (P. W. 2), Lila (P. W. 3) and Ram Kanwar (P. W. 4 ). (3) Recovery of the blood-stained earth from the Nala at the instance of the accused which suggests the commission of offence at the Nala. (4) The manner in which the dead body was concealed by the accused in the well known as Kothiwala two miles away from the alleged spot of occurrence and the recovery thereof in pursuance of the information supplied by the accused. (5) Concealment of axe (Art. 1) by the accused near the alleged place of occurrence and the discovery of the same in pursuance of the information supplied by the accused. It was found to be blood stained for which no explanation is coming forth from the side of the accused except a bare denial which cannot be accepted in view of the evidence of P. W. 21 Surat Singh and P. W. 15 Atmaram. (6) The recovery of a blood-stained Dhoti (Art. 6) from the person of the accused for which no explanation except denial is given by the accused. (7) The nature of the injuries sustained by the deceased which could be inflicted by a weapon like axe (Art. 1 ). The cumulative effect of these circumstances leave no room for doubt to infer that the accused was the author of the injuries sustained by the deceased and that the guilt of the accused under sec. 302 Penal Code is, therefore, established beyond any realm of doubt. "
(3.) JAIN J. dissented. He prefaced his discussion by referring to the principles regarding circumstantial evidence. He observed that the circumstantial evidence must be such as from which the inference of the guilt of the accused is irresistible and inescapable. The entire chain of circumstantial evidence must be conclusive as to give rise to the only inference of the guilt of the accused and it must not be consistent with any hypothesis of his innocence and it is only when there is such an evidence on record that an accused can be convicted on the basis of the circumstantial evidence. He referred to a recent case of the Supreme Court Kaliram vs. State of Himachal Pradesh (2 ). Then he embarked on the discussion of the various pieces of evidence relied on by the learned trial Judge. Regarding the motive JAIN J observed that there was not an iota of evidence to prove that there was enmity between the deceased and the accused. Referring to the statement of P. W. 13 Maujiram, Station House Officer, Bansur, he observed that all that: the witnesses stated was about registration of a case of theft against Birbal, Fakira and Deena on a report made by Gulla and he also deposed that he had put up a challan, but the witness did not state as to what happened in that case or what were the actual allegations made by Gulla. Further a copy of Gulla's report had not been placed on record. He observed that the contents of the first information report cannot be assumed without legal proof of the same. Then he referred to the statement of the accused under sec. 342 Criminal Procedure Code. He observed that the accused had, no doubt, stated that the allegations against him were false and he had been implicated on account of 'ranjish', but the accused was not asked to explain what P. W. 13 Maujiram had deposed, nor was any question put to him about the litigation. The circumstance brought out against the accused regarding the motive could not thus be availed of by the prosecution. As regards the extra judicial confession he agreed with Tyagi J. that the same has not been established. However he dissented from the conclusion reached by Tyagi J regarding the testimony of P. W. 2 Sheoram, P. W. 3 Lila and P. W. 4 Ram Kanwar for establishing the presence of the accused near the site of the occurrence. He subjected their statement to a close scrutiny and found that they were unnatural. When these witnesses heard the cries Sheoram shouted as to who was making the cries and then Umrao accused came there and on enquiry informed him that it was he who was making the cries and accepting the explanation of the accused the witnesses proceeded ahead This was, according to JAIN J. an unnatural conduct of the witnesses. Regarding P. W. 2 Sheoram, JAIN J. observed that he was hostile right from the beginning and when he was confronted with the statement made by him in the committing court Ex. P/l he admitted that Umrao had told him that there was a quarrel between him and Gulla and it was the cause of the noise. From this statement, according to JAIN J , it could not be spelt out that he had seen Gulla at that place and further even accepting his statement made in Ex, P/l it was only the word of Umrao which disclosed that there was a quarrel between him and Gulla. Lila P. W/3 deposed that the cry that he and others heard was 'ram Re, Toba Re, Hay Re" and it was on hearing this cry that the witnesses shouted to find out as to what was the cause of the noise. But when Umrao had come near them and alter he had told them that there was exchange of abuses between him and Gulla, the witnesses merely advised him not to fight. This was most unnatural. His lordship observed that it should have aroused their suspicion and they should not have gone away by merely accepting what Umrao had told them. Then there was some discrepancy about the distance between the witnesses and Umrao, one said it was 1000 paces, the other said 200 paces and the third said 50 paces, this lordship concluded the discussion by observing : " It was only the word of Umrao which informed them (witnesses) that he was exchanging abuses with Gulla. In my opinion this short of testimony is of hear-say character. " Thus, the prosecution had failed to prove, according to Jain J. that the deceased Gulla was with the accused on that morning; the testimony being of hear say character. He further noticed that no attempt had been made by the prosecution to prove that Gulla left his house in the early morning of the 24th to go to Behror as alleged in the first information report. Therefore, Jain J. did not find it possible to assume the presence of Gulla near or about the village Machi. He, however, agreed with Tyagi J. in holding that the dead body of the deceased Gulla was recovered from the Kothiwala well in the outskirts of village Guta on the information supplied by the accused, His lordship however, did not accept the recoveries of a pair of shoes, a piece of 'dhoti' and some 'rotees', as it was not established that they belonged to the deceased. Consequently, according to him, this recovery was of no help to the prosecution. Then as regards the recovery of axe Art. 1, Jain J. held that it would not be sufficient to connect the accused with the crime as it had not been established that the axe had human blood on it. The mere fact that the injuries could be inflicted by an axe on Gulla deceased would not, according to his lordship mean that the axe that was used was Art. 1. His lordship pointed out that the doctor had even stated that a knife too could cause the injuries on the body of Gulla. As regards the recovery of 'dhoti' Art. 6, from the person of the accused he observed that he would not place reliance on the testimony of Surat Singh, as the prosecution did not care to prove the seisure of the Dhoti' from P. W. 15 Atmaram when he was in the witness-box. Apart from this Jain J. observed that the 'dhoti' had not been found positive for human blood and therefore, the recovery was of no value as a piece of evidence. In the result, he came to the conclusion that there was no evidence leading to the inevitable conclusion that the accused Umrao alone could have murdered Gulla. 8. The whole case is open before me and, therefore, I have heard learned counsel for the appellant and the learned Deputy Government Advocate on all the points arising for consideration in the appeal. The motive for the crime is said to be previous ill-will between the deceased Gulla and the family of the accused. P. W. 13 Shri Maujiram stated that on 4-11-67 the deceased Gulla had made a report regarding a theft against Birbal, Fakira & Deena Gujars of Nachi and he had put up a challan against them. He further stared that Birbal was the father of Umrao. It cannot, therefore, be said that there was no evidence of previous ill-will. It is true no direct question was put to the accused regarding this testimony of P. W. 13 Shri Maujiram. Nevertheless the accused did state that there was ill-will between the deceased and the family of the accused though he added that this was the reason for his being falsely implicated for the murder of Gulla. It is desirable that the evidence to be considered against an accused is put to him in his examination under sec. 342 Criminal Procedure Code so that the accused may have an opportunity of explaining the same, but the mere fact that the attention of the accused was not drawn to the particular piece of evidence will be of no consequence, unless it was likely to result in the mis-carriage of justice. In the circumstances of the case it cannot be said that the accused was mis led, because his attention was not drawn to what Shri Maujiram stated as the accused had admitted the previous enmity with the deceased and his family. I, therefore, agree with Tyagi J. that the motive can be taken to have been established against the accused for the crime. ;