- (1.) INDERSIRGH respondent has been acquitted of the offence under sec. 302 IPC by the Additional Sessions Judge No. 2, Jodhpur, and the State has filed this appeal. He was charged for having committed the murder of Abdul Salam, who resided at Jodhpur and carried on the business of purchasing and selling goats and sheep. For purchasing sheep and goats, he used to go outside Jodhpur to various villages where sheep and goats abound. It is alleged by the prosecution that on 10th April, 1963, he left Jodhpur with a sum of Rs. 2,000/- and went to several villages in Shergarh Tehsil. When he did not return after 7/8 days, as promised by him, his uncle Abbas (PW. 1) sent Abdul Razzaq (PW. 13) and Mustafa (PW. 2) in search of him to Shergarh and Shetrawa. They brought the information that Abdul Salam alias Sheroo had purchased two goats from Ranidan Singh (PW. 11) at village Asarlai but beyond that his whereabouts could not be traced. Another party consisting of Allahdin (PW. 10), Abdul Razzaq (PW. 13), Mohammed (PW. 15) and Ismail was then sent to village Asarlai.
(2.) ABBAS also submitted a written report at Jodhpur. This report was sent to Police Station, Dechu, where First Information Report was drawn up and an offence under sec. 364 I. P. C. was registered on 15-5-63 and investigation was started by Mehboob Khan (PW. 18) Station House Officer, Dechu Police Station. The four persons, who had been sent in search of Abdul Salam, informed him that Indersingh respondent had killed Abdul Salam Alias Sheroo and that thereafter, he had gone to village Bamanoo, but Indersingh could not be found, on 17-5-63. Mehboob Khan came to know that Indersingh had gone towards Jodhpur. The Deputy Superintendent of Police, Jodhpur, who had also visited Asarlai, came to know that Indersingh was at Jodhpur. He found him out and took him to village Asarlai where he was formally arrested on 18-5-63. On the same day, Indersingh furnished information which was recorded in a memorandum (Ex. P/2 ). The admissible portion of the information is that he had buried a dead |body in the Charbara near a khejri tree after digging a round pit. He also furnished details about the clothes which were on the corpse and also the articles which were buried with the corpse. Thereafter Indersingh took the investigating officer and motbirs Vijay Singh and Ranidansingh to his charbara which was enclosed with a thorn enclosure up to a man's height. It had a door which was closed. Then Indersingh went to a khejri tree and pointed out the place where he had buried the dead body of Abdul Salam alias Sheroo and the other articles mentioned in Ex. P/20. Indersingh then dug up the place to depth of about one cubit. Several articles (Exhibits 4 to 11) the details of which we shall give here after were then recovered. Beneath these articles there were the branches of Ak tree and then a dead body was found. On the dead body was a shirt (Ex. 1), salwar (Ex. 2) and banian (Ex. 3)- The dead body and these various articles were at once recognized by Allahdin and others to be of Abdul Salam deceased. All these articles were seized and the recovery memo. (Ex. P/9) prepared. The investigating officer also prepared the site plan (Ex. P/15), furnishing the details about it in Ex. P/16. Information was sent to Dr. Bhimpuri, Medical Officer-in charge, Government Hospital, Phalodi, who was asked to go to village Asarlai to perform the post mortem examination. He reached Asarlai on 19-5-63 and performed the post mortem examination at 9 00 A. M. The dead body was practically decomposed and at places decomposed flesh was forming a mass and the bones were separate. The injuries in the soft tissues could not be traced out on account of decomposition, but there was a fracture of the mandible on the left side of the symphysis and of the right condylar process. On account of decomposition, the doctor could not give his opinion about the cause of death. The post mortem examination report is Ex. P/26. On further interrogation, Indersingh is alleged to have informed Mehbo-obkhan (PW. 18) that he had given Rs. 200/- to his father Kalyansingh, Rs. 100/- to Kalusingh and Rs. 100/- to Berisalsingh. This information was recorded in Ex. P/23. The investigating officer recovered various amounts from these persons. On further interogation Indersingh gave information contained in Ex. P/13 that he had given Rs. 30/- to Gokaldas and this amount was recovered from Gokaldas by the investigating officer. On 24-5 63, Indersingh gave further information that he had hidden a pair of scissors (Ex. 12) under a heap of grass in the charbara on the left side. The information was recorded in Ex. P/24 and the pair of scissors was recovered from under the heap of grass in the charbara. It is then alleged that Indersingh further furnished information on 25-5 1963 that he had put one kulhari in his jhoompa. This information was recorded in Ex. P/25. On that very day, Indersingh got recovered Kulhari (Ex. 13) in the presence of motbirs. The recovery memo. (Ex. P/13) was prepared and the kulhari was sealed. Proceedings for identification of the various articles recovered by the investigating officer were taken before Shri G. K. Goswami, Magistrate First Glass, Jodhpur, and they were identified by Abbas and Mustafa witnesses. The memo of identification proceedings is Ex. P/2. The various articles Exhibits 4 to 11 and Ex. Axe Ex. 13 were sent to the Chemical Examiner, Rajasthan, and his report is that all these articles were positive for blood. The Serologist however reported that on account of disintegration, the origin of blood could not be determined. Indersingh was challaned before the Munsiff-Magistrate, First Glass, Jodhpur District, and in his statement before the committing magistrate, the accused denied the entire prosecution case. He was committed for trial and was tried by the Additional Sessions Judge No. 2, Jodhpur. Indersingh pleaded not guilty and denied the entire prosecution case. The learned Additional Sessions Judge held that it was proved that Abdul Salam had gone out for the purpose of purchasing goats and sheep with an amount of Rs. 2,000/- as stated by the prosecution, and that sometime thereafter on 10-1-63 he had reached village Asarlai where he had purchased two goats from Moolsingh (P. W. 3 ). Learned Additional Sessions Judge also came to the conclusion on the facts on record that Abdul Salam died or was killed sometime between 11-4-63 and 15-5-63 and that the dead body was found buried in the charbara of the accused. The learned Additional Sessions Judge also held that the dead body and the articles Exhibits 1 to 11 were recovered on the information furnished by the accused and at his instance. He also held that he had given various amounts of money mentioned above to Kalu Singh, Berisalsingh and Gokulads. He also observed that this much was certain that Abdul Salam did not die a natural death and that if he had died a natural death, dead body could not have been concealed in the manner in which it was buried, and that "the inference was that Abdul Salam was killed whether by greed for money or by accident or otherwise. " The learned Judge then held that these circumstances were not sufficient to hold that it was Indersingh who had killed Abdul Salam. In his opinion, the recovery of the dead body and the various articles created a strong suspicion against the accused, but the chain of the established circumstances was not such as to lead to no other conclusion than that of the guilt of the accused, and that the circumstantial evidence in the case was not wholly incompatible with the innocence of the accused and that it did not lead to the irresistible conclusion that Abdul Salam was murdered by the accused. Taking this view of the case, he acquitted Inder Singh. The State has filed this appeal against the order of acquittal passed by the Additional Sessions Judge. In this appeal, the learned Deputy Government Advocate has argued that the facts and circumstances found proved by the trial court establish beyond any manner of doubt that it was Indersingh respondent who had caused the death of Abdul Salam. Learned Deputy Government Advocate has further argued that the learned trial Judge has wrongly discarded the testimony of Sang Singh (P. W. 14) and Padamsingh (P. W. 16) who had seen Abdul Salam entering the Khera of Kalyan Singh father of Indersingh and heard the cries from the bara of Kalyansingh "inder Singh mar mat, mar mat" which showed that it was Indersingh who was responsible for the murder of Abdul Salam. It is also urged that the learned Additional Sessions Judge has wrongly discarded the evidence of Moolsingh (P. W. 3) and Ranidansingh (P. W. 11) which proved that the deceased was last seen in the company of the accused. In the end, learned Deputy Government Advocate and Shri Mukat Bihari Lal Bhargave appearing for the complainant have argued that in any case Indersingh was guilty of an offence under Sec. (201 IPC. for having concealed the dead body of Abdul Salam after digging a pit knowing that he had been killed by somebody. Learned counsel for the respondent has supported the judgment of the trial court to the extent the findings are in his favour. He has further argued that it was not proved that the dead body said to have been recovered at the instance of the accused was that of Abdul Salam. He has also argued that it was the duty of the prosecution to prove that Abdul Salam died on account of violence and that the prosecution evidence is not sufficient to prove even this fact. It has been further argued that the mere recovery of the dead body at the instance of the accused cannot make the respondent liable for an offence under Sec. 201 I. P. C. as it is not proved that Abdul Salam had been killed either by the respondent or by anybody else. Learned counsel for the respondent has also urged that in an appeal against acquittal, this Court should be slow to set aside the order of acquittal, unless there are compelling reasons to do so. The law relating to appeals from an order of acquittal has been laid down authoritatively in a number of cases by their Lordships of the Supreme Court. See M. G. Agarwal & M. K. Kulkarni vs. State of Maharashtra (1), Radha Kishan vs. State of Uttar Pradesh (2) and Durgacharan Naik vs. State of Orissa (3 ). We have kept in View the observations made in these cases while deciding this case. In analysing the evidence in this appeal we have kept in view the findings of the trial court and have not disturbed them if they are in favour of the appellant unless we have found cogent reasons for doing so. There is no serious dispute in this appeal that Abdul Salam left Jodhpur on 10-4-1963 with considerable money in order to make purchases of goats and sheep. The evidence of Ranidansingh (P. W. 11) is that Sheroo Khan beopari was at his bara about 20/25 days before his brother-in-law came to make enquiries about him. He had purchased two goats from his son Moolsingh (PW. 3) and had made a payment of Rs. 17/- which his son gave to him. The witness asked Sheroo-khan whether he had marked the goats and Sherookhan replied that he had done so. Then Indersingh accused, who had also come to his bera, started from the bera after filling a pitcher with water and Sherookhan accompanied Indersingh. Moolsingh (PW. 3) has also corroborated his father, but in cross-examination, he has stated that he did not know the person to whom he had sold the goats, from before either by name or by face. The trial court has held that when the statement of Moolsingh is read with the statement of Ranidansingh and other witnesses, no doubt is left that Sherookhan mentioned by Moolsingh was the same person who had left Jodhpur on 10-4-63 and that he had purchased the goats from Moolsingh. He, however, has doubted whether Abdul Salam went in the company of the accused. The reason given is that Mustafa did not state in the trial court that he was informed by Ranidansingh that Sheroo went with the accused. It appears, on scrutinizing the record, that Mustafa was neither asked by the prosecution nor by the defence whether any such information was conveyed to him either by Mool- singh or by Ranidansingh. Learned Additional Sessions Judge has also pointed out that this fact is not mentioned in the First Information Report, but the F. I. R. was drawn up on a written application presented by Abbas who entertained suspicion against Ranidansingh as stated by him, and it may be that he did not believe that Abdul Salam had left his bera. The learned Additional Sessions Judge has also pointed out that there was no reason why Ranidansingh did not inform Mustafa about Abdul Salam going with the accused. Ranidansingh has not at all been cross-examined on behalf of the accused, and in the absence of the cross-examination, there is no reason to hold that the witness was telling a lie. We are inclined to hold, therefore, that some day, in the morning, after Abdul Salam had reached village Asarlai, he had gone to the bera of Ranidansingh and purchased two goats from Moolsingh and left the bera in the company of Indersingh. We, however, do not treat this circumstance to be of much consequence against the accused as the exact date on which this happened has not been brought on the record and it cannot be said that Abdul Salam died near about that date. What happened to Abdul Salam thereafter is not proved by any direct evidence. The learned Additional Sessions Judge has disbelieved the evidence of Sangsingh and Padamsingh that they had seen Sheroo Alias Abdul Salam entering the Khera of Kalyansingh and had heard the cries of ''mar mat mar mat" from the charbara of the accused. After carefully going through the evidence of these two witnesses, we find no reason to differ from the trial court in its appreciation of the evidence of these two witnesses. Then we come to the most significant circumstance in the case, and it is the recovery of the dead body on the information of, and at the instance of the accused. As already mentioned, the accused was arrested on 18-5-1963 by Meh-boob Khan (PW. 18 ). On interrogation, he gave the information contained in Ex. P/20 the same day. The admissible portion of the information has already been mentioned above. Mehboob Khan (PW. 18) has proved Ex. P/20. He has further proved that Indersingh respondent took him to his charbara which had a thorn enclosure of a man's height, with a door which was not locked. Indersingh opened the door and entered the bara. Then he went to a khejri tree and pointed out the place where he had buried the dead body. Then Inder Singh dug the place with a phaora (spade) about one cubit deep and the various articles, as mentioned above, were recovered. From beneath these articles, a dead body was recovered which was putting on a white baniyan, a white salvar and a shirt. Mehboob Khan prepared seizure memos. Ex. P/8 and Ex. P/9, Ex. P/8 of the various articles and Ex. P/9 of the dead body. Allahdin (Pw. 10) who was the uncle of Abdul Salam, was present at that time, and he identified the dead body to be of Abdul Salam. Mohammed (PW. 15), who resided at Jodhpur and new Abdul Salam alias Sheroo, also identified the dead body of Abdul Salam, Raidhan-khan (PW. 9) who had been knowing Abdul Salam alias Sheroo for the last 10 years, recognized the dead body to be of Abdul Salam alias sheroo by seeing his features. Bijeysingh (PW. 5) of village Asarlai proved the recovery of the articless from the dead body and also the recovery memos. Abdul Razzaq (PW. 13) who was an uncle of Abdul Salam and who was present at the time of the recovery of various articles from the dead body, also identified the dead body to be of Abdul Salam alias Sheroo. Abbas (PW. 1), Mustafa (PW. 2) Allahdin (PW. 10) Abdul Razzaq (PW. 13) and Mohammed (PW. 15) identified the various recovered articles to be Abdul Salam alias Sheroo. Abbas (PW. 1) and Mustafa (PW. 2) have also stated that these articles were taken by Abdul Salam alias Sheroo when he left Jodhpur. The learned Additional Sessions Judge has observed that there was nothing to disbelieve the statements of these witnesses. , and it was fully proved that the dead body and the articles mentioned above were of Abdul Salam and that the recovery of the dead body and the articles on the information of the accused contained in Ex. P/20 had been proved. Learned counsel for the respondent has, however, argued that it was not possible for the prosecution witnesses to have identified the dead body as it is mentioned in the recovery memo. (Ex. P/9) that the dead body had decomposed and putrefied and some of the bones were attached to the flesh and the others had no flesh. He has also pointed out that Dr. Bhimpuri (PW. 19) who conducted the post mortem examination on 19-5-1963 has stated that the body had practically decomposed and that at places the decomposed flesh was forming a mass and the bones were separate. He was not asked whether the body could be identified in spite of the decomposition. In the post-mortem examination report (Ex. P/26), the external appearance of the dead body has been noted as showing that all the soft parts were decomposed. We may accept the criticism of the learned counsel for the respondent that the body was in an un-identifiable condition on account of decomposition of the various parts of the body.
(3.) WE may here point out that those in charge of investigation should have sent the bones for further examination to an expert who could say whether these bones belonged to a male or female and could further give opinion also on the age of the person whose bones they were, and it is to be regretted that this was not done, but from the other circumstances which were proved in this case, we are left in no manner of doubt that the dead body recovered was of Abdul Salam. The dead body was wearing shirt (Ex. 1), Banian (Ex. 3) and salvar (Ex. 2 ). All these articles have been identified to be of Abdul Salam by the prosecution witnesses. In the same pit from which the dead body was recovered, were found bag (ex. 4), cup (Ex. 5), bag for water (Ex. 6), bag for spices (Ex. 7), cap (Ex. 8), pair of shoes (Ex. 9), book (Ex. 10) and kuppi of ghee (Ex. 11), which were all proved to be of Abdul Salam alias Sheroo which he had taken with him when he had started from Jodhpur. The association of the dead body with these articles, leading to the inference in the circumstances of the case, that the dead body was of the person to whom these articles belonged. We may refer in this connection to Guo Hassan vs. Emperor (4 ). The Punjab Chief Court took the view that the satisfactory proof that clothes found on the body of a murdered person belong to him and were worn by him immediately before disappearance is sufficient to find that the corpse is that of the person although too decomposed to be identified otherwise. We, therefore, hold in the circumstances of this case that the dead body was of Abdul Salam alias Sheroo and none else. The prosecution case further is that the pair of scissor (Ex. 12) was recovered on 24th May, 1963 on the information given by the accused as recorded in Ex. P/24. The learned Additional Sessions Judge has stated that it could not be believed that when the accused had given out such an important information as that relating to the place where the dead body and other articles were found on 18-5-63, he would have withheld the information regarding the pair of scissors un-til 24-5-68. Learned additional Sessions Judge has, however, held that the pair of scissors was recovered from the place mentioned in the recovery memo, as proved by the statement of Vijaysingh (PW. 5) and Paneysingh (PW. 6), that is, from beneath the heap of the grass in that charbara. There is further the evidence of the prosecution witnesses, with regard to the recovery of kulhari (Ex. 13) from the 'jhoompa' of the accused at the instance of the accused. The trial court did not believe that these articles were so recovered on the information supplied by the accused and at his instance. We accept these findings. Here we may mention that the pair of scissors (Ex. 12) is proved to be of Abdul Salam by the prosecution witnesses and Kulhari (Ex. 13) to be of the father of the accused. The trial court has also believed the evidence of the prosecution witnesses that Rs. 200/- were recovered from Kalyansingh, the father of the accused, Rs. 100/-from Kalusingh, Rs. 100/- from Berisalsingh and Rs. 30/- from Gokaldas. Kalusingh (PW. 4) has stated that three or four months before the panchayat took place when the relations of the deceased came to make enquiries about the deceased, he had lent Rs. 100/- to the accused and the accused had returned that money sometime before Akha Teej, but he could not say how many days before Akha Teej. The witness is thus not definite as to when Rs. 100/- were paid by the accused to him. Berisalsingh (P. W. 8) has stated that some 12 months before, in the month of Chait, the accused borrowed Rs. 100/- from him which he had returned on the next day of the Akha Teej. It may be mentioned that Akha Teej in that year fell on 26th April, 1963. This witness has not been cross-examined and we may take it that the accused paid Rs. 100/- to Berisalsingh, who was his creditor on 27-4-1963 Gokuldas (PW. 12) has stated that the accused used to purchase various articles from his shop and he paid Rs. 30/- on Bisakh Badi 3 or 4 in his account. The copy of the account on record shows that there is some interpolation in it and perhaps Sudi has been made Badi. We may thus ignore the statement of Gokuldas. The explanation of the accused is that he had paid his own money to these persons. From the evidence, we hold that the following circumstances have been fully established. 1. That Abdul Salam left Jodhpur on 10-4-63 with Rs. 2,000/- and Arts. to 12, promising to come back home, but he never returned from there. 2. That Abdulsalam went to village Asarlai sometime after 10/4/63 and there he purchased two goats from Mool Singh son of Ranidansingh and was seen on that day by Ranidansingh in the company of the accused; 3. That from the charbara of the accused, the dead body of Abdul Salam in the condition mentioned earlier, with clothes on it, and various articles Exhibits 4 to 11 belonging to him lying on it, was recovered in consequence of the information (Ex. P/20) supplied by the accused Indersingh and in that information he had stated that he had buried the dead body and the various articles in a pit in the charbara near the khejri tree; 4. That on post-mortem examination it was found that there was a fracture of the mandible on the left side of symphysis and of right condylar process, 5. That a pair of scissors Ex. 12 was recovered from the grass heap in the charbara of the accused on 24-5-1963. 6. That the axe (Ex. 13) which belonged to the father of the accused was recovered from the dhani of the accused and his father and that axe was found to be blood stained; 7. That the various Articles Ex. 1 to 11 and Ex. 13 were found to be stained with blood; 8. That Indersingh had paid Rs. 100/- to Beisalsingh to whom he owed that amount on 27th April 1963. 9. No part of the amount of Rs. 2,000/- which the deceased had taken with him from Jodhpur was found buried in the pit from which the dead body was recovered; 10. That the accused denied all these facts, except circumstance No. 6, in his statement when examined under sec. 342 Cr. P. C. of these circumstances, the most important circumstance is circumstance 3 which we shall consider first of all. Concealment of a dead body has always been treated as a circumstance of a highly inculpatory nature against the accused: "an inference of guilt may be drawn from the defendant loss or destruction of records or concealment of letters or concealment or destruction of tangible objects which could be used as evidence against him. An inference of guilt may be drawn from the concealment or destruction of the corpse of the deceased. " (Para's. 142 & 143 on Pages 266 & 267 of Wharto's Criminal Evidence, Vol. I, 12th Edn. (Anderson's book ). ;