J. R. Chopra, J. - (1.) These two appeals : one by the State and the other filed by Mst. Pani & ors., arise out of the same judgment delivered by the Sessions Judge, Pali in Sessions Case No. 23 of 1972 : State of Rajasthan v. Prithvisingh & three others , whereby accused Prithvisingh and Budhiya have been acquitted of the offences under sections 302, 454 and 380 I.P.C. and accused Mst. Pani and Mrs. Jadav have been acquitted of the offences under s. 302 read with s. 109 I.P.C. and S. 380 read with s. 109 I.P.C. and s 554 read with s. 109 I.P.C. & 457 I.P.C. However, all the accused-persons have been held guilty of the offence under s. 411 I.P.C. Mst. Jadav has been given the benefit of the Probation of Offenders Act, whereas the p remaining three accused persons have been sentenced to three years rigorous imprisonment. The State has filed appeal against the acquittal of the accused-persons from the offences under s. 302 and s. 302 read with s 109. and sections 454, 457, 380, 454/109 & 380/109 I.P.C. whereas Mst. Pani, Mst. Jadav and Prithvisingh have filed this appeal against their conviction under s. 411, I.P.C. States appeal I was not admitted against Mst. Pani and Mst. Jadav and, therefore, States appeal stands only against Prithvisingh and Budhiya.
(2.) The facts of the case, briefly stated are : that Mst. Dakhu wife of Dhanraj, resident of Auwa was living in her own house as a widow. She however, took Amolak son of Birdichand in adoption. Amolak and his family were not living with her and he was doing his business at Bangalore. Mst. Dakhu engaged herself in money-lending trade. She used to lend money to the villagers on their pledging silver and gold ornaments with her. She was seen alive on October 30, 1971. On October 31, 1971, it is alleged that P.W. 1 Vasudev, Government Vaidya by profession, posted at Auwa saw accused Prithvisingh, Budhiya and Mst. Jadav entering the house of Mst. Dakhu. Thereafter, he went inside his own house. When he was on his way to his Aushdhalaya, he found the outer door of the I A Dakhus house locked. It was found locked till the morning of 1st November, 1971 On the morning of November 1, 1971, when he saw the main door of deceased Dakhus house open, he called Mst. Dakhu but there was no response. On this, he informed Mst. Shanti step-mother of Amolak, adopted son of Mst. Dakhu that the gate of Dakhu's house is open but she has not given any response to his call. Mst. Shanti also cried out her name but there was no response from inside the house. Both of them, therefore, became suspicious. They peeped into the house and found all the doors of Dakhus apartments open and the belongings of the house scattered. They then brought it to the notice of Shri Parasmal, who is a neighbour of Mst. Dakhu. Parasmal too peeped into the house and he also found the same situation. He then went and informed the father-in-law of Amolakchand, i.e. Raj Mal son of Shri Surajmal. Rajmal immediately accompanied Parasmal and they both came to the house of Mst. Dakhu. Its main gate was open. On entering her house, they found the or a and the other rooms of the house unlocked and open. When they went further, they found that Mst. Dakhu was lying dead on the right-hand side of the Sal. Both her hands were tied with a rope and her legs were tied with her own Odhana and her mouth was also gagged with her Odhana. They, therefore, concluded that somebody has ransacked Mst. Dakhus house and has killed her. Therefore, Rajmal lodged a written report marked Ex. P 1 at Police Station, Auwa. A case under S. 302 I.P.C. was registered. The police inspected the site and prepared the site inspection memo Ex. P. 2 and the site inspection plan Ex. P.3. Panchnama of the dead-body was conducted, which has been marked Ex. P. 4. The blood stained cloths found on the body of Mst. Dakhu, were taken in possession by police and the seizure memo has been marked Ex. P. 5. The autopsy on the dead body of Mst. Dakhu was conducted, which has been marked Ex. P. 20. After the autopsy, the dead body was handed over to Shri Rajmal. The memo, handing over the dead body of Mst. Dakhu, has been marked Ex. P. 6. The police recorded statement of certain witnesses and came to the conclusion that Prithvi Singh of Desalsar who is son-in-law of Mst. Pani, Mst. Jadav wife of Prithvisingh and daughter of Mst. Pani and Budhiya belonging to Auwa were involved in the crime. They, therefore, arrested Budhiya, Jadav and Pani on 10th November, 1971. Prithvisingh was, however, found moving in suspicious circumstances in the market of the village Gangashahar District Bikaner. This attracted attention of one Govindram constable, who informed about Shri Prithvisingh to the Head Constable. Thereafter, accused Prithvisingh was arrested and on his search, number of golden and silver ornaments were recovered from the bag carried by him as also from his person. A rapat to this effect was recorded in the Rojnamcha of the Thana marked as Ex. P. 72. The ornaments recovered from the possession of accused Prithvisingh were taken into possession by the Police vide seizure memo Ex. P. 73 and the arrest memo of the accused Prithvisingh has been marked Ex. P. 197. The arrest memos of Budhiya, Mst. Pani and Mst. Jadav have been marked Ex. P. 154 to Ex. P. 156 respectively. All these accused persons gave information about the recovery of the ornaments from their possession. These informations memos have been marked as Exs. P. 157 to Ex. P. 159. Ex. P. 157 relates to the information given by Budhiya. Ex. P. 158 relates to the information given by Mst. Pani and Ex. P. 159 relates to the information given by Mst. Jadav. On the information of accused Budhiya, certain gold and silver ornaments weighing about 5 Kg. and 95 gms. were recovered from his Padva from below the stone Ghatti. The recovery memo has been marked as Ex. P. 7 and the site inspection memo of the recovery has been marked Ex. P. 8. On the information of Mst Pani, 5 kg. and 735 gms. silver and gold ornaments were recovered from her own Padwa from below the earthern Kothi. Her recovery memo has been marked Ex. P. 9. The site inspection plan has been marked Ex. P. 10. On the information of Mst. Jadav, 6 kg and 180 gms silver and gold ornaments were recovered from the house of Mst. Pani, mother from below an earthern pot. The recovery memo and site inspection memo have been marked Ex. P. 11 and Ex. P. 12 respectively. All these ornaments recovered from these accused persons were sealed by the Police. These ornaments recovered from accused persons Budhiya, Mst. Pani and Mst. Jadav carried the pledge-chits attached to them. Those Chhitties were removed from those ornaments and in their place, certain other numbered chits were affixed to them for the facility of identification meaning thereby that it may be ascertained with ease as to whom those ornaments belonged. The chits which were removed from the ornaments recovered at the instance of Budhiya have been marked Ex. P. 55, Ex. P. 56, Ex. P. 64 to Ex. P. 68, Ex. P. 160 and Ex. P. 167. The chits which were put in their place have been marked Ex. P. 168 and Ex. P. 172. The chits which were removed from the ornaments recovered at the instance of Mst. Pani have been marked Ex. P. 52 to P. 54, Ex. 58, Ex. P. 63 and Ex. P. 183 to Ex. P. 189. The chits which were removed from the ornaments recovered at the instance of Mst. Jadav have been marked Ex. P. 46 to Ex. P. 51, Ex. P. 57, Ex. P. 63 and Ex. P. 190 to Ex P. 195. Accused Budhiya gave information about the recovery of one rope from the house of Bhoorsingh. That information has been marked Ex. P. 196, on the basis of which a long rope was recovered at his instance which has been exhibited as Article 63. It was seized vide seizure memo Ex. P. 17. Accused Prithvisingh removed all chits from the ornaments at Auwa. He gave information about the recovery of those chits and the said information has been recorded in the information memo Ex. P. 198. On the basis of this information, the chithis Ex. P. 19 to Ex. P. 36 were recovered at his instance from below the Khejri-tree near the railway station, Auwa. Its seizure memo has been marked as Ex. P. 37. During the process of investigation, Birdhichand who is father of Amolak, adopted son of Smt. Dakhu presented two applications to the Police, which have been marked Ex. P. 75 and P. 76.
(3.) All the ornaments were got identified. The identification was conducted by Shri D.P. Sood, a Second Class Magistrate. The identification memos have been marked Exs. P. 13 to Ex.P.16, Ex. P.18, P.41, P.59 to P.62, P.70, P.77 and P.79.;