S. S. BYAS, J. - (1.) BY his judgment dated April 3, 1984 the learned Additional Sessions Judge, Sirohi acquitted accused Babu of the offences punishable under sections 302 and 404, I. P. C. The State, by leave, has comp-up in appeal and challenges the acquittal.
(2.) THE prosecution case is short an,d simple. On August 28, 1982, Bhuda Ram Rebari, a young boy of 15 years, took his live-stock for grazing in the jungle in the Mauja Derna. He was wearing gold Murkiyan (Article 2), silver Mathlies (Article 3) and silver Bedi (Article 4) when he left the house. PW 2 Dalla. aged about 20 years and PW 3 Ratna, aged about 14 years, also residents of Derna, took their cattle for grazing in the same jungle. In the noon, one unknown person (later on identified as the accused Babu) came to PW 2 Dalla and asked him to give Roti (loef) to him. PW; 2 Dalla did not oblige him. That man then went to Bhuda Rata, who was nearly 50 paces away from PW 2 Dalla. PW 2 Dalla took his cattle behind the hill. After sometime, PW 3 Ratna, who was in the same jungle, saw Bhuda Ram lying dead on the bank of a pond situate nearby. THEre was a wound on the neck of Bhuda Ram and blood was cozing out from it. Ratna went running to PW 2 Dalla and apprised him of the Bhuda Ram's dead body lying on the bank of the pond. Dalla went alongwith Ratna where the dead body of Bhuda Ram was lying. Dalla remained standing near the dead body and sent Ratna to the village to inform the villagers. Ratna went to the village and informed PW 5 Dewaram about the Bhuda Ram's dead body lying on the bank of the Pond PW. 5 Dewa Ram and some other persons came to the spot. PW 2 Dalla told them what had taken place on that day. Dewa, Ram went la Police Station, Abu Road and verbally lodged report EX. P. 13 at about 3. 00 p. m. on the same day. THE police registered a case under section 302 and 397, I. P. C. THE investigation ensued. PW 9 Bhanwar Singh, Assistant Sub-Inspector of Police,, arrived on the spot on the same day and inspected the site. He prepared the inquest report of the victim's dead body. THE autopsy on the victim's dead body, was conducted at about 5. 00 p. m. on the same day by PW 12 Dr. Bansal the then Medical Officer Incharge, Primary Health Centre, Abu Road. THE,doctor noticed the following injuries on the victim's dead body:-, External :- (1) 3" X 3/4" x 2-1/2 on left side of neck lateroposteriorly, cutting to skin muscles, Vains, nerves, spina cord, 3rd cervical spine and artery, oblique in direction, ante mortem in nature. Internal - (1) Vertebrae in 3rd cervical vertebra was fractured. Spinal cord at this level was cut. (2) Neck cut on the left side jugular vein and vertebral artery. THE doctor was of the opinion that the death has taken place due to shock and haemorrhage caused by survical spinal injuries. THE post-mortem report prepared by him is EX. P. 23. THE accused was arrested on August 30, 1982 and in consequence of the disclosure statements made by him, the gold and silver ornaments, which the deceased was waring at the time of his murder and an axe were recovered. THE blood-stained clothes of the victim were also seized and sealed. In the test-identification conducted during investigation, the recovered ornaments were correctly identified by the victim's father Bheema (PW 4 ). THE accused was correctly identified by Dalla (PW 2) as the man who had come to him on the day of incident. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif & Judicial Magistrate, Abo Road, who, in his turn, committed the case for trial to the Court of Sessions. THE learned Additional Sessions Judge framed charges under sections 302 and 404, I. P. C. against the accused, to which he pleaded not guilty and faced the trial. He denied to have given any information, to the police leading to the discoveries of the ornaments and the axe. In support of its case, the prosecution examined 14 witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of the trial, the learned Sessions Judge found no incriminating evidence to connect the accused with the murder of Bhuda Ram. He disbelieved the identification evidence and also the evidence relating to the discoveries of the axe and the ornaments. THE accused was consequently acquitted of the offences he was charged with. Aggrieved against the verdict of acquittal, the State has taken this appeal. We have heard the learned Public Prosecutor and the learned Amicus Curiae. We have also gone through the case file carefully. Before dealing with the contentions raised by the learned Public Prosecutor, it would be useful to briefly read the prosecution evidence led in to prove the charges against the accused. There is no direct evidence and the evidence adduced is entirely circumstantial. The circumstantial evidence consists of two sets, viz; (1) the accused came in the jungle of Derna where the deceased Bhuda Ram was grazing his live-stock. The accused first went to PW 2 Dalla and then to the deceased. The witness examined to prove this fact is PW 2 Dalla and (2) the recoveries of the gold and silver ornaments Articles 2, 3 and 4, and the axe in consequence of the disclosure statement made by the accused while under police custody. The learned Sessions Judge disbelieved the testimony of PW2 Dalla. As regards the recovery of the ornaments, the learned Sessions Judge held that they were recovered in consequence of the disclosure statement made by the accused while he was in police custody. He, however, took the view that this recovery was not sufficient to connect the accused with the murder of the deceased-victim. He also refused to convict the accused under section 404, I. P. C. on the ground that there was nothing on the record to show that the accused knew the ornaments to be in possession of the deceased person at the time of his death. In assailing the acquittal, it was vehemently contended by the learned Public Prosecutor that the approach of the Court below was erroneous and unsustainable. It was argued that the testimony of PW 2 Dalla has been wrongly rejected by the learned Sessions Judge. He had correctly identified the accused as the person who went to him in the noon of the day of the incident and then from him to the deceased Bhuda Ram. It was argued that he had correctly identified the accused in the test identification conducted by the Judicial Magistrate Mr. C. N. Mathur (PW 13 ). All precautions were taken by the Magistrate while conducting the test identification, ft was, on the other hand, contended by the learned Amicus curiae that the accused had a prominent scar on his right cheek. This scar has been mentioned in his arrest memo EX. P. 6 and was also noticed by the trial Judge. The Magistrate, who conducted the test identification, took no precautions to conceal this scar. PW 2 Dalla could, therefore, easily identify the accused as he was the only person in the test identification parade having scar mark on his right cheek. It was further submitted that the accused was lodged in judicial custody on September 3, 1982 and the identification was conducted on September 14, 1982 No reasons have been adduced to explain this delay. We have taken the respective submissions into consideration. As stated earlier, PW 2 Dalla is the only witness relating to the identification of the accused He deposed that in the noon of the day of the incident, while he was with his cattle in the jungle, one man came to him and asked for food. He refused to oblige him. That man then went to Bhuda Ram. He (PW 2 Dalla) went behind the hill side thereafter. That man was the accused. The man was not previously known to him and he had seen him only once on that day when he came to him Naturally, therefore, the question of identification of the accused assumes vital importance as he was not previously known to PW 2 Dalla The accused was arrested on August 30, 1982 vide arrest memo EX. P. 6 In EX. P. 6, it has been clearly mentioned that the accused has a prominent mark of scar on his right cheek near the chin. The identification memo is Ex. P. 24. In it, column number 3 is about the suspect's (who is going to be identified or in respect of whom test identification is conducted) having any prominent mark effecting the identity. The learned Magistrate, who conducted the test identification recorded that no visible mark was there on the accused body. He was certainly not right in recording that there was no visible mark on the face of the accused. The accused has a prominent scar mark on his face. Admittedly, no precautions were taken to conceal this prominent scar mark on the accused's face. The learned Magistrate Mr. Mathur (PW 13), during his statement, was shown the aforesaid scar mark on the face of the accused and his attention was drawn whether any precautions were taken to conceal it. Finding no way to escape, the learned Magistrate said that the scar mark on the cheek of the accused was not apparently visible and was not to affect the identification in any way. We are unable to accept this statement of the learned Magistrate. If the scar mark was not prominent or visible, it would have certainly been not mentioned in the arrest memo Ex. P. 6 by the investigating officer. Since there was a prominent scar mark on the face of the accused, the identifying person could easily identify him without any difficulty as no persons having the similar scar mark were mixed with him and the Magistrate had not taken and other step to conceal the scar mark on the accused's face. We, therefore, agree with the learned Sessions Judge that the test identification was not carried out faithfully. The test identification inspires no confidence.
(3.) THERE is yet another circumstance speaking against the prosecution. The accused was lodged in judicial lock-up on September 3, 1982 and the test identification was conducted on September 14, 1982 i. e. nearly after ten days. No reasons have been subscribed for this late identification. Since the test identification parade plays a significant role in assessing the guilt of the accused, it should be held soon after the arrest of the suspect. If the delay is there, there should be a sound and convincing reasons to explain it. The delayed identification is always looked with suspicion. The late identification provides material to the accused to contend that the delay was intentional so as to show him to the witnesses. The result is that the testimony of PW 2 Dalla and his identifying the accused inspire no confidence. These sets of evidence were rightly discarded by the learned Magistrate. The next contention of the learned Public Prosecutor is that when the recovery of the gold and silver ornaments was made in consequence of the disclosure statements made by the accused and this discovery has been held as proved by the learned Sessions Judge, the accused can be connected with the commission of the murder of the deceased-victim. It was argued that the offence was committed on August 28, 1982 and the recovery of the gold and silver ornaments was made on August 30, 1982. The time between the commission of the offence and the recovery of the ornaments is very short. Since the accused has furnished no explanation for his possession of the stolen ornaments, which the deceased was wearing at the time of the incident, a presumption under section 114 of the Evidence Act should be raised that it was the accused who had put the victim to death. We have given our anxious consideration to the submission and we are unable to accept it. It is true that the gold and silver ornaments Articles 2,3 and 4 were recovered in consequence of the information furnished by the accused while in police custody. It is further true that the accused had buried them deep in the ground and no body else other than him could have knowledge of their being placed at the place from where they were recovered. It was, therefore, the accused who was in possession of these gold and silver ornaments. But the pertinent question is whether this recovery of the ornaments is a circumstance sufficient in itself to connect the accused with the murder of the deceased-victim. Of course, a presumption can be raised under section 114 of the Evidence Act even in respect of graver offences than that of receiving the stolen property but the Courts are generally chary and reluctant in raising a presumption for the graver offences unless there is something else on record to connect the accused with the murder. In Hukam Singh v. State of Rajasthan (1) gold ornaments of huge valuation were recovered at the instance and in consequence of the information furnished by the accused and the ornaments belonged to the deceased-victims. The recovery took place only one day after the commission of the four murders. The accused was convicted on the basis of this recovery. Their Lordships refused to maintain the conviction of the accused u/s 302, I. P. C. solely on the ground of the recovery of the stolen property though it was soon after the incident. It was observed that something more would be required to connect the accused with the murders than mere possession of the ornaments and other articles belonging to the deceased-victims because it is quite possible that the accused may have had nothing to do with the murders and he might have merely stolen the ornaments belonging to the deceased after the murders were committed by some others. The same view was reiterated in N. D. Kalal v. State of Karnataka (2 ). It was observed by their Lordships that :- "taking, however, the evidence as it stands, there is nothing to connect the appellant with the murder of deceased or even with any assault the accused may have committed on the deceased or having a robbed her of her ornaments. At the most, as the ornaments have been proved to be stolen property received by the appellant, knowing that they were stolen property, the accused can, thus, be convicted on the basis of presumption under section 114 of the Evidence Act and under section 411 of the Penal Code as a receiver of the stolen property knowing the same to be stolen. " ;