K. BHATNAGAR, J. - (1.) THESE two appeals have been directed against the judgment dated 20th of September, 1983 passed by the learned Sessions Judge, Bhilwara, by which both the appellants were convicted for the offences under Section 302 read with Sections 34, 460 and 380 IPC and sentenced to imprisonment for life and a fine of Rs. 100/-, in default to undergo one month's regorous imprisonment each on the first court seven years' rigorous imprisonment and a fine of Rs. 100/-,in default to undergo one month's rigorous imprisonment each on the second count and seven years' rigorous imprisonment and a fineof Rs. 100/-in default of payment of fine to undergo one month's rigorous imprisonment each on the third count. All the substantive sentences were ordered to run concurrently. As the two appeals arise out of the same judgment, we propose to dispose them of by one common judgment-
(2.) BRIEFLY stated, the facts of the case giving rise to the trial and conviction of the appellants and the present appeals are as under:- On 7. 11. 82 one Mangilal, resident of Pur, lodged a report at City Kotwali, Bhilwara to the effect that one Hari Bhabha widow of Jaggannath Brahaman, has been murdered in her house in the intervening night of 6th of November 1982 and 7th of November 1982. That, the dead body was lying in the 'pol' of the house and both the hands were tied with rope and there were stones on the dead body. As no near relatives were available, the villagers got the report written and Mangilal took it to the police station. Case was registered on the basis of that information and Udai Singh (PW11), incharge of the police station went to the village Pur and inspected the site. He prepared the site memo site plan and the inquest report. The dead body was sent for post-mortem examination. Dr. D. R. Sharma (PW 12) conducted the autopsy over the dead body and prepared the post examinotion report Ex. P. 21. The doctor noted following external injuries on the dead body: 1. Bruise-over neck (soft red bruise) below chin and below angle of mendible, both sides of wind pipe about 6" in length and 3/4" in breadth. 2. Abrasions-with clotted blood. Over left and right hand. 3. Multiple abrasions-over both forearms. 4. Cresentric abrasions-over right side neck 4 in number, two on left side. The cause of death according to the doctor was asphyxia due to throttling. The dead body was entrusted to Mohanlal (PW9), grand son of the deceased in the night on the same day. Peer Mohammed and Barkat were arrested by the Police. Peer Mohammed while under arrest furnished information for recovery of certain ornaments and in pursuance of the information, the police on the next day at 10-30 a. m. recovered 2 golden 'ogniyas', 2 bangles and one iron saw from his house. The recovery memo for the above mentioned articles is Ex. P. 17. Information was also furnished by appellant Barket for getting recovered 2 golden 'ogniyas' and in pursuance of that information, he got recovered 2 golden 'ogniyas' at 1 30 p. m. from a bundle of cloth lying in his house. The recovery memo for the recovery is Ex. P. 18. The articles were got identified by Mohanlal (PW 9 ). The identification proceeding was conducted by Bhopal Singh, Sar-panch (PW 6 ). The blood stained bushirt was also recovered from Barkat which he was wearing at the time of his arrest. The blood stained cloth of the deceased and the blood stained bushirt of Barkat were sent for chemical examination. The report of the Serologist is that blood group on all the cloths sent to him was the same. Upon completion of necessary investigation charge sheet against the two appellants was filed in the Court of Chief Judicial Magistrate, Bhilwara. The learned Magistrate committed the case to the Court of Sessions Judge, Bhilwara. The learned Sessions Judge charge sheeted the appellants for the offences under Section 302 read with Sections 34, 460 and 380 IPC. The appellants denied the charges and claimed to be tried. Prosecution examined 12 witnesses to substantiate its case. Both the appellants in their statements under Section 313 Cr. P. C. denied the allegations levelled against them. They also denied the fact of recovery of any article at their instance. Barkat stated that at the instance of the police he alongwith other constables moved the dead body and thereby his bushirt got stained with blood. No defence witness was examined. The learned Sessions Judge held the prosecution case established against the two appellants and passed the judgment under appeal. As the appellants were not represented, Mr. S. Ojha was appointed Amicus Curiae to plead on their behalf. We heard Mr. S. Ojha learned Amicus Curiae for the appellant and Mrs. Kamlesh Joshi, learned Public Prosecutor. The learned Amicus Curiae strenuously contended that there is no eye witness to substantiate the prosecution case and that the villagers who have been examined, have also not pointed any motive to connect the appellants with the crime. It has been emphasised by Mr. Ojha that the so called recovery has not been supported by any motbir and the prosecution case regarding the recovery solely resting on the solitary statement of investigating officer Udai Singh is not sufficient to base conviction. It has been contended that the explanation regarding the blood on the bushirt is plausible and the learned Judge should have believed it.
(3.) THE learned Public Prosecutor submitted that the circumstance of the two accused being arrested on the 7th of November, 1982 itself shows that there must be some reason for the police to believe that they were the culprits. According to the learned Public Prosecutor the recovery of the ornaments belonging to the deceased from the possession of the appellants at their instance is a strong circumstance against them and the learned trial Judge has rightly given weight to this circumstance. It has been argued by the learned Public Prosecutor that the fact of the group of the blood on the bushirt being the same as on the cloths of the deceased establishes that Barkat was the person who must have committed the murder of the deceased. At the very outset, it may be observed that there is no eye witness and the prosecution case solely rests on the circumstance of the recovery of the ornaments and blood stains on the bushirt of Barkat appellant. There is no evidence on record to suggest any enmity between the deceased and the appellants. Udai Singh Investigating Officer, has stated that he had been informed by some 'mukhbir' that villagers were suspecting the deceased Hari Bhabha to be a watch and he was also informed that the wives of Peer Mohammed and Barkat have died and that it might be that they suspected Hari Bhabha to be the cause of the death of their wives and in order to wreck vengeance might have committed the murder. Mohanlal (PW9), who happens to be the grand son (daughter's son) of the deceased, has categorically stated that Barkat was residing in the same house in which the deceased was residing and that he used to bring articles for the deceased from the market. It was this Barkat who according to the witness had gone to call him for his village after his grand mother's death. Sunder (PW 2) has also stated about the relations between Barkat and the deceased being cordial. This clearly indicates that the relations between the deceased Hari Bhabha and appellant Barkat were good. There is no evidence of any sort to point out any ill will between Peer Mohammed and the deceased and the argument advanced from the other side that Barkat and Peer Mohammed being friends, they might have connived to commit this murder, is devoid of any force. So far as the recovery of the blood stained bushirt from the person of appellant Barkat is concerned, suffice it to say that he has explained the fact and to our mind, the explanation is plausible. As we have observed above, it Was he who had informed Mohanlal about his grand mother's death by going to his village and it was he who was looking after the work of the deceased and, therefore, there was nothing unnatural in his touching the dead body. We are now left with the recovery of ornaments said to have been made at the instance of the two appellants in pursuance of the informations furnished by them. The 'motbirs' to the recovery memos were Peer Khan and Ladu Lal. For the reasons best known to the prosecution, both these witnesses have not been examined to support the recovery memos. The only witness for the recovery is Udai Singh (P. W. 11 ). According to the learned Public Prosecutor Bherulal (PW 8) has supported Ex. P. 17 and it bears his signatures. This argument does not help the prosecution. Bheru Lal is a goldsmith and has been called to weigh the ornaments. According to the witness he reached the house of Peer Mohammed at about 2. 30 p. m. Recovery from Peer Mohammed according to the memo was at 11. 30 a. m. and, therefore, there could not be any question of recovery being in the presence of Bheru Lal. Apart from it, Bheru Lal has nowhere stated about any recovery in his presence. What the witness has stated is that after weighing the ornaments at Peer Mohammed's house, he was taken to Barkat's house and there he weighed two golden 'ogniyas'. He has stated that the recovery memo of those 'ogniyas' was prepared in his presence and it bears his signature. It is important to note that Ex. P. 17 which according to the witness was recovery memo of the 'ogniyas' recovered from Barkat is of Peer Mohammed and not of Barkat. It is also important to note that the recovery said to have taken place before Bheru Lal being sent for, cannot be believed to have been made in his presence. In such circumstance, the prosecution case solely resting on the statement of Udai Singh cannot be said to be duly established so far as recovery is concerned. The learned Public Prosecutor contended that police had, no enmity with the accused and, therefore, the non-examination of the motbirs should not be taken seriously. The very purpose of keeping motbirs to the memos is to corroborate the testimony of police witnesses. This is a safeguard for the accused against unfair attitude of the investigating agency if any to get success in the investigation. In this view of the matter, in the absence of any of the motbir to the recovery memos, we do not find it safe to attach any weight to the recovery of any article from the possession of the accused at their instance. Apart from it, the recovery was not from a place in exclusive possession of the accused persons. The statement of Udai Singh also shows that in the house of Barkat his mother was residing and the bangles were lying on the slab, so far as the recovery from Barkat is concerned. The learned Amicus Curiae has also drawn our attention to the irregularities in the identification proceedings. As we have not found the proceedings against the appellants sufficient to connect them with the recovery of the ornaments and the ornaments having not been claimed by any of the appellants we do not consider it necessary to deal with the infirmities of the identification parade. ;