PRASAD, J. - (1.) THE accused appellants Mangilal and Bhanwarlal have filed the present appeal being aggrieved by the decision of the learned additional Sessions Judge,nathdwara,in sessions case No. 21/2001 dated 31. 10. 2001 whereby the accused appellants have been convicted under Section 302 read with Section 34 IPC and have been sentenced to life and a fine of Rs. 2,000/ -. Accused Mangilal was charged under Section 201 IPC also. THEy have also been convicted under Sections 380 IPC and have been sentenced to one years rigorous imprisonment and a fine or Rs. 200/- each.
(2.) THE prosecution was initiated on the basis of a first information report lodged by accused Mangilal on 30. 5. 2000 at Police Station Nathdwara on an oral report. THE formal FIR, Ex. P/46 was recorded by police on the basis of the report given by the accused. According to this report, accused Mangilal stated that he was at his place and in the morning while he was at the temple where he used to take care of the daily routine of the temple when he got up early morning he started to arrange things and while he was engaged in those tasks he saw that his `kaki' was lying blood smeared in her court yard. He went there and saw that she had died then he made hue and cry and Ramesh Mali and Jasoda etc. came. He then lodged the First Information Report. On this report, the police started investigating the case and during the investigation Police came to the conclusion that the report lodged by accused Mangilal was not a correct report. In fact it was he, along with his brother Bhanwarlal, who were responsible for causing the death of the deceased and they were impleaded as accused. After completion of the investigation, charge sheet was filed and the case was made over to the Trial Court where the accused appellants were charged under Sections 302/34 and 380 IPC or in the alternative under Section 380/34 IPC. Accused Mangilal, in addition, to the above charge, was charged under Section 201 IPC also. Both the accused persons denied their charges and claimed trial. Itnesses were examined by the prosecution. Accused in their examination under Section 313 Cr. P. C. , denied the charges and produced two defence wItnesses. The Trial Court, after considering the case of the trial came to the conclusion that deceased Keshi was the adoptive mother of accused Mangilal who had an eye on the property of the deceased, for which there was a continued dispute. She was enraged by the behaviour of the accused Mangilal and she used to say that she would not favour him with the property. The accused entered into many kinds of disputes with her. There was some kind of panchayat etc. Thus, there was a strong motive with the accused to commit the crime. There is no direct evidence available on record and the offence has been held proved by the Trial Court on the basis of the recoveries of the ornaments owned by the deceased and identified by her daughters. The recoveries further have been made of the weapon of offence and the clothes of the accused which have been found to be blood stained of human origin with A-B group and then the Trial Court came to the conclusion that there is a consistent chain of circumstances which establish that the accused has been guilty of the offence charged and consequently, the accused were convicted and sentenced as aforesaid. The learned counsel for the accused who filed the appeal submitted before us that the accused has taken away the file from him and have engaged another counsel. Mr. Anil Kaviraj, did not turn up when the case was called and, therefore, Mr. R. S. Chundawat who submitted that he is ready with the case, was appointed as amicus curiae and he was competent enough to conduct the case. Learned counsel appearing for the accused appellants submitted that the case is based on circumstantial evidence and the most circumstantial evidence which has been relied upon by the Trial Court against the accused is the recovery of articles. The information from accused u/s 27 of Evidence Act was received on 02. 06. 2000 whereas police waited upto 03rd of June for making recovery which is a circumstance unworthy of credence. Because once an information is received, the recovery is pursued normally. What is startling in the case is that on 04. 06. 2000 the prosecution recorded yet another information i. e. , Ex. P/52 at 10. 30 AM. Pursuant to this information, it is stated that the accused took the police to the baada where ox is tied. There in a stony stretcher he brought out a green plastic bag and out of which silver ornaments were taken out by him. This recovery, according to the police, was made on 4. 6. 00 at about 1. 15 PM. The learned counsel criticised the recovery proceedings by saying that the recovery proceedings only show that the recovery has been made from a baada which is open and accessable to all and sundry. The ornaments have been hidden behind the stones which cannot be said to be in the exclusive possession of the accused and, therefore, the recovery cannot be said to be a recovery made from the exclusive possession of the accused. The learned counsel further emphasized that the law relating to the admissibility of the information of the accused under Section 27 is to the effect that as and when an information leads to the recovery then so much of the information which leads to the recovery is admissible in evidence. In the instant case, there appears to be hardly any connection in the recovery made and the information received and, therefore, implicit reliance cannot be placed on the recovery so made.
(3.) SIMILARLY, the factum of recovery by the accused Bhanwarlal has been assailed by the learned counsel, stating interalia that his first information being an information Ex. P/49 was recorded by the police on 2. 6. 00 at 11. 00 AM and attempt was made for recovery on 3. 6. 00 at about 9. 15 AM which resulted into no recovery. Accused Bhanwarlal on 4. 6. 00 at 10. 00 AM gave information Ex. P/16 and pursuant to this information recovery memo Ex. P/18 was recorded on 4. 6. 00 at 10. 40 AM. The information, as given by the accused was that he has concealed the ornaments and the weapon of offence in a pit in the baada. The memo of recoveries show that having entered into the baada near the same place from where accused Mangilal had got the ornaments recovered, he removed fodder and woods and got the ornaments and weapon of offence recovered. There is no reference to the pit at all here. Thus, the learned counsel asserted that there is hardly anything in the recovery memo which would make the information given by the accused under Section 27 as admissible and thus these informations are hardly of any consequence. The learned counsel for the accused further asserted that the prosecution, though made identification of the ornaments in question, vide Ex. P/2, P/3, and P/4 and the police recorded that the ornaments which were put for identification were mixed with similarly weighing ornaments there is no details given of the ornaments mixed. The source of procuring these ornaments have also not been shown. Thus, there is every likelihood that nothing was mixed and it was only said that similar ornaments have been mixed. Therefore, the proceedings of identification are a mere sham. In this background, the identification loses its significance. If the recovery of the ornaments and the identification proceedings are held to be of no consequence then there remains no evidence available on record to fasten the liability of the accused for the offence, as has been held by the Trial Court and in that light of the matter, the offence is not liable to the established. The accused is entitled to be acquitted of the charges levelled against them. ;