MEHTA, J - (1.) BY his judgment, dated September 22, 1966 learned Sessions Judge, Bikaner, convicted the accused Banwari under sec. 302, I. P. C. , and sentenced him to imprisonment for life. He was also convicted under sec. 394, Indian Penal Code, and sentenced to rigorous imprisonment for ten years. Both the sentences were directed to run concurrently. BY the same judgment the other accused Aduram was given benefit of doubt and was acquitted of the offences under the aforesaid sections of the Indian Penal Code.
(2.) WE can summarise the prosecution story thus; Mst. Dhinki, sister of Hukmaram, resident of Ranisar, had been married to one Budharam, who died adout an year and a half back. Banwari and Aduram are the collateral relatives of Budharam. Banwari became anxious to take Mst. Dhinki as his 'natayat' wife. Mst. Dhinki agreed to it subject to the permission of her parents. Banwari and Aduram, accompanied by Mst. Dhinki proceeded to Hukmaram's house in village Ranisar. Both Banwari and Aduram remained with Mst. Dhinki for some time in Hukmaram's house. On November 12, 1965, Hukmaram got annoyed, with the two accused Banwari and Aduram as they remained with his sister day in and day out. Hukmaram scolded the two persons and then he went away to his fields. The accused persons also took their meals and left Hukmaram's dwelling place. The two accused proceeded together with one Puraram Jat. who was originally a resident of Bhojarasar, but subsequently began living at 83 R. B. All these three persons started out from Arjunsar Railway Station and proceeded towards the village Bhojrasar. They arrived near about the field of Radha Krishna, P. W. 4, a resident of Jaswantsar. The three persons were witnessed by Lal Singh, P. W. 2, Purkharam, P. W. 3, and Radha Krishna, P. W. 4. Puraram was carrying with him a muzzle loading gun and a bag, containing cartridges, of the other two persons, one was holding a lathi and the other one was empty handed. When Puraram and the accused persons had gone beyond Radha Krishna's field, Lal Singh and Purkharam, who were to fetch water on their camels from Jaswantsar, followed them. After covering some distance they heard an outcry. They accelerated their camel's speed and soon reached the spot of occurrence. They saw Puraram lying injured and breathless. The two accused, Banwari and Aduram, took to their heels towards the south with the deceased's gun and the bag. Lal Singh and Purkharam then rushed up to the village Jaswantsar and informed the Sarpanch Birbal, P. W. 14, of what they had seen. Birbal returned with Lal Singh to the place where Puraram lay deed. Birbal left Purkharam and Lal Singh to guard the corpse of Puraram and he himself proceeded towards the Railway Station, Arjunsar. There Harakchand, Police constable of the Police Station, Mahajan, met him Birbal acquainted him with the event at about 7 p. m. on 12-11-1965. Harakchand P. W. I, accompanied by Birbal, P. W. 14, went to the spot of the occurrenceand saw there a dead body. He came back to the Arjunsar Railway Station and furnished information on telephone to the police Station, Mahajan. Head Constable Tarsam Singh, P. W. 17, received the message and registered a case u/s. 302, I. P. C. Tarshamsingh, Harnathsingh and some other police officials proceeded in a jeep towards Ranisar, where another occurrence causing a gun-shot injury to Hukmaram was alleged to have taken place. Tarsham Singh and Jor Singh stayed at Ranisar and the Deputy Superintendent of Police, and Harnath Singh went towards the village Jaswantsar, where the dead body of Puraram was lying. Moolaram and Fateh Singh went out in search of the accused persons. They arrested the accused Banwari near the Railway Station, Arjunsar, in the morning of November 13, 1965. The accused Banwari was carrying a gun and a bag at that time. The accused Banwari, having been arrested by Moolaram and Fateh Singh, was produced before Tarsham Singh, Incharge, Police Station, Mahajan. The dead body of Puraram was sent to the Associated Group of Hospitals, Bika-ner. Its autopsy was carried out on November 145, 1965, by Dr. G. K. Bhatnagar, Medical Jurist, Bikaner. Following injuries were noticed on the body of the deceased: - 1. An oblique lacerated wound 3"x 1/3"x bone deep on the right parietal postero-lateral. 2. A hematoma covering the whole of right temporal region. A hematoma covering the whole of left temporal region. A hemotoma covering the whole of the occipital region. A contusion 1-1 /4''x 1/4" on the right forearm laterally upper one-third. A contusion 1" x 1/2" on the ulnar border of right forearm middle third. Three contusion 1/2'' x 1/2" on the posterior aspect of right elbow. Multiple abrasions raised l/3"x 1/3" on the lower part of the back. Multiple abrasions on the back of both thighs and legs. A contusion 2-1/2" 1-1/2" on the back of right ear. According to the Doctor, Puraram died of shock and compression of the brain due to extensive fractures of the skull bones and extra-dural and sub-dural haemorrhage, caused by some blunt weapon. Aduram was arrested at 23 M. L. on 18-11-1966, at about 6 p. m. He was put up in the judicial lock-up on November 20, 1965. He was again taken in to the Police custody on November 27, 1965. On November 28, 1965, he supplied information to Virendra Singh, P. W. 12, S. H. O. Police Station, Mahajan, that the deceased's bag, with cartridges, had been put by him in a box in his house at 23 M. L. He then led the Police to his residence. The Police recovered the bag containing cartridges from a box in the accused's house. Banwari and Aduram were put up for identification before the Second Class Magistrate, Bikaner. Lal Singh, P. W. 2, Purkharam, P. W. 3, and Radha Krishana, P. W. 4, identified Banwari to the satisfaction of the second class Magistrate, Shri Gauri Shanker, P. W. 11, on November 19, 1965, vide Ex. P. 7. The accused Aduram was identified by the above named three witnesses on November 25, 1965; vide memo Ex. P. 9. The bag was also identified by Birbal, P. W. 8, brother of the deceased Puraram, r/o 83 R. B. in the presence of the above Magistrate, on December 6, 1965; see memo Ex. P. 11. On conclusion of the investigation, a charge sheet was put up by the Police in the court of Additional Munsiff Magistrate, Bikaner, against the accused Banwari and Aduram under secs 302 and 304, I. P. C. The said Additional Munsiff-Magistrate carried out committal proceedings in accordance with the provisions of sec. 207-A. , Cr. P. C. and committed the accused to the court of Sessions Judge, Bikaner. Both the accused denied to have had any hand in the crime. In support of its case, the prosecution examined 18 witnesses. In his statement, recorded under sec. 342, Cr. P. C, Banwari stated that he had taken Mst. Dhinki from Manjawala to Ranisar. He was arrested at Arjunsar Railway Station. Dhinki's brother has falsely entangled him. Aduram has said that he was arrested at his house. He neither supplied any information to Virendra Singh, regarding availability of the bag with the cartridges at his house, nor did he get the bag recovered from his residence. He denied to have had any knowledge of the circumstances appearing against him. He further said that he has been falsely entangled. The two accused did not produce any evidence in their defence. The Sessions Judge, Bikaner, convicted and sentenced the accused Banwari, as aforesaid. Accused Aduram was given by the trial court benefit of doubt and was acquitted. 3. Aggrieved against the above judgment, Banwari has filed appeal No. 742 of 1966 (Banwari vs. The State of Rajasthan) for setting aside his conviction and sentences. The State Government has taken Criminal Appeal No. 94 of 1967 (State of Rajasthan vs. Aduram) for quashing the order of acquittal, made in favour of the accused Aduram and convicting him for the offence of murder and robbery. 4. Contention of learned counsel for the appellant Banwari is that there is no reliable evidence to suggest that offences under secs 302 and 304, Indian Penal Code, have been brought home to him. The trial court, learned counsel adds, went wrong in placing reliance upon the testimony of Lal Singh, P. W. 2, Purkharam, P. W. 3, and Radha Krishna, P. W. 4, who had not known the deceased Pura. Learned Deputy Government Advocate, while arguing the State appeal against the acquittal of Aduram, urged that the prosecution evidence against the accused Banwari and Aduram is common and there was no justification for the trial court to distinguish the common evidence in respect of the accused Aduram. State counsel also strenuously argued, with his usual vehemence, that the reasoning given by the trial court for discarding the evidence outright in respect of the recovery of Pura's bag on the information and at the instance of the accused Aduram is fallacious. Learned counsel for the accused Aduram, on the other hand, supported in toto the judgment of the trial court. 5. From the prosecution evidence it is apparent that the deceased Puraram was not known to the witnesses, Lal Singh, Purkharam and Radha Krishna at the initial stage. His name does not appear in the first information report Ex. P. 16, lodged by Police Constable Harakchand, P. W. I, through telephone, with the Police Station, Mahajan. 6. However, Puraram's name is mentioned in the inquest report Ex. P. 1, dated November 13, 1965, as also in the seizure memo of certain articles Ex. P. 2 of the same date. The dead body of Puraram was identified by his elder brother Birbal, P. W. 8, before the Medical Officer, vide post-mortem report Ex. P. 5 of November 15, 1965. It is in the evidence of Lal Singh, P. W. 2, that this Puraram, along with the two accused Banwari and Aduram, proceeded from the Arjunsar Railway Station towards Jaswantsar. Banwari was equipped with a lathi. Aduram was empty handed. The third person Puraram had a gun and a bag with him. After leaving Radha Krishna's field the witness heard a weeping wail and when he travelled ahead on his camel and covered some distance, he noticed Pura lying on the way. Pura had no gun or bag with him at that time. The witness denies to have seen the accused beating Pura. The court allowed the public prosecutor to confront the witness with his previous statements, recorded under sec. 164, Cr. P. C, and by the committing court. He stated that he did not depose that the gunman was lying and the other two persons were beating him with lathis and thereafter they made good their escape. In the re-examination the witness, however, admitted that he did say to the police that the gunman was lying on the ground and the two accused ran away towards the south after seeing him and Purkharam. The witness also admits that he identified the two accused before the Magistrate in the Bikaner jail. In the cross-examination the witness has of course stated that he could not say which of the accused was Banwari and which one was Adu. The witness might not be specifically knowing their names. But that does not mean that his statement in the examination-in-chief that he saw the two accused (pointing out towards the accused Banwari and Aduram) is false. The witness correctly identified them before the Second Class Magistrate, Shri Gauri Shanker, P. W. I. , vide Ex. 9 dated November 25, 1965. There is no reason why the statement of perfectly independent witness Guari Shanker, P. W. 11, Second Class Magistrate, Bikaner, should be viewed with an eye of suspicion. The witness Lal Singh along with Purkharam, after seeing the deceased Puraram, lying injured, went to Radha Krishan, P. W. 4, along with Purkharam and told him that the man, carrying the gun, had been killed by the other two persons and that his gun had been taken away Thereafter they took Radha Krishan to the place, where the dead body was lying. The witness, along with Purkharam also approached Sarpanch of the Gram Panchayat Ranisar, Birbal, P. 14 and apprised him of the whole happening. The witness told Birbal that Puraram was going with a gun and a bag and there were two other persons with him. Of these two, one had a lathi and the other had a bag. He further told Birbal that these two persons murdered Puraram, snatched away his gun and took to their heels towards the south. Thereupon Birbal proceeded to the spot where the dead body was lying- This earliest version, made by the witness Lai Singh to Radha Krishna and Birbal with respect to the same fact and at about the time when the fact took place, is admissible in evidence u/s. 157, Evidence Act. 7. There is nothing in S 157, Evidence Act, which requires that before the corroborating witness deposes to the former statement, the witness to be corroborated must say in his testimony that he had made that former statement to the witness who is corroborating him. In order to make the former statement admissible under S. 157, Evidence Act, it is not necessary that the witness to be corroborated must also, besides making the former statement at or about the time the fact took place, say in the trial court that he had made the previous statement: vide Ram-ratan and others Vs. The State of Rajasthan (1 ). 8. From what has been stated above, this must is positive that the witness Lal Singh P. W 2 did see the deceased Puraram, whom he might not be knowing before. He also saw the two accused persons, Banwari and Aduram, proceeding from the Railway Station, Arjunsar, towards Jaswantsar in the company of Puraram. It is further apparent from the testimony of this witness that when Puraram lay injured the two accused ran away from the spot. 9. The statement of Purkharam, P. W. 3, is more formidable and consistent. He has deposed that he saw the accused persons, present in the court, first in the field of Radha Krishna at about 4 p. m. The way upon which the accused and the deceased were travelling together was about 40 'paundas' away from the place, where he was sitting. These persons came from the Arjunsar Railway Station and were proceeding towards Jaswantsar. Ten minutes later the witness and Lal Singh left Radha Krishan's field. Puraram and the accused were going on foot. The witness and Lal Singh were travelling on camels. After treading a little distance the witness heard an outcry and saw that the two accused were beating the gunman, The beaten person was Pura and the persons who were beating were the accused persons present in the court. The witness knew not the names of the accused persons. But he satisfactorily identified them before the Second Class Magistrate, Shri Gauri Shanker, P. W. 11. The persons who were administering beating ran away towards the south. When Pura lay injured on the spot, his gun and the bag were missing and the persons running way were taking away the same. The witness then went to jaswantsar and acquainted Birbal P. W. 14 with the matter. Radha Krishna also came over there. It may be true that the witness did not know Pura from beforehand, but that does not damage Purkharam's testimony in any manner, as the injured was identified by his own brother, Birbal, P. W. 8. The witness saw the beating from a distance of about 15 or 20 'paundas'. In the cross-examination the witness was confronted with his police statement Ex. D. 1, wherein there is no mention that the lathi blow was administered within his sight. He was also required to face his statement, recorded by the committing court (Ex. D. 2), in which there is no mention that he actually saw the two accused landing blows to the deceased and his reply was that he might not have deposed so due to foregetfulness. Prima facie a statement does not take in an omission. A statement cannot include that which is not stated. But very often to make a statement sensible or self-consistent, it becomes necessary to imply words which are not actually found in the deposition. Though some thing is not expressly stated, it is at times necessarily implied from what is directly or expressly stated. In other words, omissions unless by necessary implication to be deemed to be a part of the statement, cannot be used to contradict the statement made in the witness box. The view that they must be with regard to important features of the incident which are expected to be included in the statement made before is not tenable. A statement that can be deemed to be part of that statement expressly recorded can be used for contradiction not because it is deemed to form part of the recorded statement, vide Tahsildar Singh and another vs. State of U. P. (2 ). Here the prior statement of the witness is that when he had reached the place of the occurrence, he saw the two persons running away towards the south after having committed the crime and that the gun-man was found murdered on the spot. From this statement a recital is necessarily implied that the witness did not actually see the accused, administering beating to the deceased. Even if that portion of the statement of the witness Purkharam that he actually saw the two accused persons, giving beating to the injured, is excluded, the fact remains that he did witness the two accused accompanied by Puraram, going together and when he reached the spot of the incident, on hearing a cry, the two accused after seeing him, ran away. The statement of Purkharam gets corroboration from the evidence of Radha Krishna, P. W. 4, and Birbal, P. W. 2. Further the names of Lal Singh and Purkharam appear in the first information report filed at the police station, Mahajan, soonafter the occurrence. Radha Krishna has stated that he did see the three persons, proceeding from a distance of about 5 or 7 'paundas' away from his fields. These three persons were going from the Arjunsar Railway Station towards Jaswantsar. Nothing is brought out in his cross-examination, which may damage his testimony in any manner. Birbal, P. W. 14 has said that both Lal Singh and Purkharam told him that when Pura was going with a gun and a bag, the other two persons murdered him and after taking his gun ran away towards the south. Radha Krishna has also, like Lal Singh and Purkharam, identified the two accused persons in the Bikaner Jail before the Second Glass Magistrate, P. W. 11 Shri Gauri Shanker. 10. On the facts proved beyond question, it is abundantly apparent that the last time the deceased was seen alive in the company of the accused Banwari and Aduram when they started from Arjunsar Railway Station for Jaswantsar. The evidence next establishes that the dead body of Puraram was found at the place of the occurrence. The accused have not explained as to why they made good their escape from the spot of the happening. Banwari was arrested by the police official Fathe Singh, P. M. 10, along with a gun in the presence of Motbir, Moolaram, P. W. 6, under memo Ex. P. 17, dated November 13,1965. He was produced before Tarsham Singh, P. M. 17, Incharge Police Station, Mahajan, with the gun Ex. 2. Tarsham Singh took the gun in his possession and sealed it. The gun was identified by Birbal, P. W. 8, brother of the deceased. Birbal, P. W. 8, has said that the gun Ex. 2 is of his brother Puraram, who lived with him jointly. The witness has further stated that the deceased Puraram started from his house two days prior to the occurrence, and when he left his residence, he took with him the gun Ex. 2. He had also Rs. 90/-, with him. Puraram got that gun entered at the Police Station, Raisinghnagar. Its entry was made in the Police register at sec. No 154, on June 1, 1955, vide Ex. P. 14. This entry has been proved by Prita Singh, P. W. 13, Head Mohrir, Police Station, Raisinghnagar. As has been stated above, the deceased was carrying gun and a bag. His goods had disappeared and the gun was found with the accused Banwari. The real question is whether the evidence in the case establishes that the accused Banwari murdered and robbed Puraram. In this connection, it is necessary to consider how far recent possession of a property of the deceased, in the circumstances, clearly indicating that he had been murdered and robbed, would suggest that not only the possessor of the property was a thief or a receiver of the stolen article, but that he was also guilty of a more aggravated crime, which had connection with the theft. In Queen Empress vs. Sami and another (3) it was observed that when the murder and robbery constituted parts of the same transaction, the recent and unexplained possession of the stolen property, which would be presumptive evidence against the prisoners on the charge of robbery, was similarly evidence against them on the charge of murder. There is another Division Bench decision of the Nagpur High Court, reported in Ramprashsd Makundram Rajput vs. The Crown (4 ). In that case Mst. Rewa had certain ornaments on her person, when she had left her house and when she had been last seen alive. The accused was the person with whom she had been last seen alive, although it was at a spot a considerable distance away from the place where she had been killed. All the ornaments which were missing from her person were traced out to be in the possession of the accused and were with him soon after the date of the occurrence. It was held that the accused was the person who committed the murder of Mst. Rewa and removed the ornaments from her body. Sir Lawrence Jenkins in a case reported in Emperor vs. Sheikh Neamatulla (5), held that the possession was a fact from which the court might presume not merely theft or receipt of stolen property, but the more aggravated offence connected with theft Likewise, Pearson and Jack, JJ. in Emperor vs. Chintamoni Shahu (6) observed that the possession of stolen goods after the loss thereof is indicative not merely of the offence of larceny or of receiving it with guilty knowledge but of any other more aggravated crime which been connected with the theft, and that his particular fact of presumption forms also a material element of evidence in the case of murder. In Wasim Khan vs. The State of Uttar Pradesh (7), his Lordship Imam, J. speaking for the court, agreed with the above proposition and laid down that recent possession of the property belonging to the murdered man would suggest that not only the trespasser was a thief or a receive* of stolen property, but that it also indicates that he was guilty of more aggravated crime, when no explanation for the possession of the articles is forthcoming. In Balbir Singh vs. State of Punjab (2), it is given that the statement of the accused that he had buried the tarings is admissible in evidence under sec. 27. Evidence Act and it can be held that the recovery is a circumstance which connects the accused with the crime of murder. Again in Kambi Karsan Jadav vs. State of Gujrat (9), it was pointed out that discovery of silver buttons belonging to the deceased with human blood stains at the instance of the prisoner is a circumstance which may raise the presumption of the participation of the prisoner in the murder. The trial court relied upon the recovery of the gun from possession of the accused Banwari and linked this element with the chain of circumstantial evidence, connecting the accused with the crime and there is no reason why a contrary view should be taken in the matter.
(3.) THE trial court, however, held that the recovery of the bag from the possession of the accused Aduram is a faked one and it is on this ground that he was given benefit of doubt. Against this finding the State Government has taken an appeal. It has been urged by learned Dy. Govt. Advocate that reasons on the basis of which the recovery of the bag has been discarded by the trial court are not sound. We have now to see how far the trial court was right in rejecting the evidence of the recovery of the bag on the information and at the instance of the accused Aduram. It is true that Aduram was arrested on November 18,1965, at his residence at 23 M. L. He was remanded to the judicial custody on November 20,1965. THEreafter he was again taken under police custody on November 27, 1965. THE information regarding availability of the bag was supplied by Aduram to Virendra Singh. P. W. 12 Station House Officer, Mahajan, on November 28,1955. It was reduced to writing by P. W. 12 and is marked Ex. P. 12 and then the recovery was made Ex. P. 13. THE accused was already in the judicial lock-up upto November 26, 1965 and there is nothing wrong if he was taken back in the police custody for the purpose of recovery, on November 27, 1965. THE argument of the trial court that when the accused Banwari had carried away the gun, he should not have normally allowed Aduram to take away the cartridges is fallacious. It is not an improbability that if a portion of stolen property is taken away by one person, the rest should not be taken away by the other. It is not necessary that all the articles robbed should form part of the share of only one man. THE other reasoning given by the trial court in regard to rejecting the recovery of the bag is that Banwari did not give any relevant information to the Investigating Officer. This reasoning is also beyond comprehension. THE bag was in the possession of the accused Aduram and when Aduram gave information to the police and in pursuance of that information the recovery was effected, the information can be used in evidence against him. Learned Sessions Judge again went wrong in relying upon the statement of Shahi Ram, P. W. 8, which had been recorded in another Criminal case No. 7/1966. If Shahi Ram's statement was considered to be right and the recovery of the bag was made simultaneously with the arrest of the accused, it was hardly necessary for the police to have undergone the risk of collecting information from the accused Aduram under sec. 27, Evidence Act, under memo Ex. F. 12, and to have recovered the bag under memo Ex. P. 13. THE bag was identified by Birbal, P. W. 8, brother of the deceased Pura, in the presence of P. W. 11 Shri Gauri Shanker, Magistrate Second Class, Bikaner. Birbal has stated that the bag which was with Pura is Ex. 3 and Pura had taken it with him, along with the gun, when he left his house. THE bag was mixed with other bags and he identified it. Shri Gauri Shanker P. W. 11 has deposed that the bag, received by him for the purpose of identification, was in a sealed condition and it was identified by Birbal correctly under memo Ex. 1. 11. THE recovery of the bag on the information and at the instance accused Aduram stands on the same footing on which the recovery of the gun from Banwari stands. THE two recoveries are not substantially distinguishable from each. THE trial court has distinguished the case of the recovery of the bag from that of the gun on the basis of conjectures, surmises and prediction based on guess-work. THEre is no explanation furnished by the accused Aduram for his possession of the bag, belonging to the deceased Pura. His mere denial that the bag does not belong to him is not helpful to him. At any rate, he does not claim that this bag constitutes his property. We have considered the circumstantial evidence in this case, and, are of the opinion that it is consistent only with the guilt of the accused Aduram and that it is inconsistent with any other rational explanation. The only reasonable conclusion, from the circumstances proved in this case, is that the accused Adu also committed the murder and robbed the victim of his property together with Banwari. Appellant Banwari was convicted of the offences of murder and robbery by the Sessions Judge. The charge framed against the accused Aduram was also for murder and robbery. We are satisfied that the evidence led by the prosecution establishes the offences of murder and robbery against the appellant Banwari as also against the respondent Aduram and is not merely the minor offence of robbery or theft. It may be inter alia mentioned that accused appellant Banwari and the respondent Aduram were attacking the same man at the same time with the common intention. Each was present and aiding the other and, therefore, each is guilty and the prosecution has not to prove that the accused were acting in pursuance of a pre-arranged plan: vide Mohan vs. Regina (10 ). Principle embodied in S. 34, Penal Code is participation in some action with the intention of committing a crime and once such participation is established, S. 34 is at once attracted: vide Jagir Singh vs. State of Punjab (11 ). Having regard to the nature of the case and the principles deducible from the cases cited, we are satisfied that the accused Banwari has been rightly convicted of the offences of murder and robbery. We are also satisfied that the accused Aduram has been wrongly acquitted of the offences of murder and robbery. In the result, we dismiss the appeal submitted by the accused Banwari and maintain his conviction under secs. 302 and 394, subject to the provisions of S. 34, I. P. C. , and his sentence. We accept the appeal of the State Government against the accused Aduram and convict him of the offences under Ss. 302 and 395/34, I. P. C. and sentence him to imprisonment for life on the former count and to a period of ten years' rigorous imprisonment under the latter count. Both the sentences shall run concurrently. District Magistrate, Bikaner, is directed to arrange for the arrest of the accused Aduram and send him to jail to undergo the above sentences. . ;