PALSHIKAR, J. - (1.) BEING aggrieved by the judgment and order of conviction passed by the learned Additional Sessions Judge, Sirohi in Sessions Case No. 1/80, the appellants have preferred this appeal on the several grounds mentioned in the memo of appeal.
(2.) WITH the assistance of the learned counsel for the appellants and the lear-ned Public Prosecutor, we have reappreciated the evidence on record and have scrutinised the documents on the appreciation of which, the learned Judge had recorded the conviction and had sentenced the accused as follows: Shankaria: guilty under Sec. 302/34 and sentenced to suffer imprisonment for life, seven years RI and has convicted; Bheria & Kesia; guilty under Sec. 411 of the Indian Penal Code and sentenced to suffer imprisonment for a period of three years. It will be seen that there is no appeal against the acquittal of the appellants Bheria and Kesia for the murder and robbery. The case of the prosecution stated briefly is that in the night of 24/25. 05. 1979 when deceased Darja and PW 13 Hira were sleeping near their house, they were assaulted with an intention to commit robbery by the accused persons and in the assault. Darja was murdered. The first information report regarding the incident was lodged and after investigation, the police examined as many as 17 witnesses to prove its case. The learned Judge on appreciation of this evidence, came to the conclusion of guilt as aforesaid and has convicted the accused persons as mentioned above. It will be seen that accused Shankaria is convicted under Sec. 302 read with Sec. 34 of the Indian Penal Code whereas the accused Bheria and Kesia have been convicted under Sec. 411 of the Indian Penal Code only. It is this judgment which is assailed on several grounds before us. With the assistance of the learned counsel, we have re-appreciated the evidence on record and re -scrutinised the documentary evidence. Pw 13 Hira who was robbed during the course of assault has stated that in the day of incident, he heard the shouts about theft and went to see what happened and he found two persons who were standing near Darja. He gives good description the manner in which the assault took place but is unable to identify the persons. He then states that both of them ran away. This witness states; Esjs gkdk djus ij /kuuk mb dj vk;ka** Dhanna PW1 has stated to a similar effect but he speaks of three persons running away from the scene of offence and they were wearing white clothes. The only thing he is to say in relation to identification of the persons. The witness states as under;
(3.) MUESA ls ,d vkneh dh vkokt esjk eqfyte gkftj vnkyr dh vkokt dh rjg Fkha** Beyond that, this witness PW 1 also does not identify the accused persons. The conviction has been based by the learned Judge basically on the fact of recovery. A sword was recovered from accused Kesia, it was recovered form his conscious possession and it has been identified in court by witness. What has been proved by the prosecution is therefore the fact that a sword was recovered from the possession of Kesia and it was identified to be sword belonging to one of the witnesses and it is further proved that a broken portion of the scabbard of this sword was recovered from near the dead body. However, in the absence of identification of the accused Kesia, the learned Judge has found it necessary to acquit the accused Kesia of the offence of robbery and homicidal death as the recovery itself is insufficient to result of conviction. There must be cogent evidence to connect this recovery, the presence of the accused at the scene of offence and then alone such inference can be drawn. Conviction is recorded by the learned Sessions Judge against Kesia and Bheria under Sec. 411 of the Indian Penal Code, they are thus convicted for being receivers of stolen property only. , The learned Judge has on appreciation of the evidence on record, disbelieved the prosecution evidence in relation to their presence at the scene of offence as also their partition in the assault and result in death of Darja. The learned Judge has also disbelieved the eye-witness account and the other evidence on record for coming to the conclusion that these two persons were not involved in the assault. Then in light of these circumstances and findings, it was argued by the learned counsel Shri Kumbhat that conviction of accused Shankaria under Sec. 302 read with Sec. 34 of the Indian Penal Code is unsustainable in law, the two other persons whom the witnesses state to be present along with Shankaria have been acquitted of the offence under Section 302, even their presence is not believed by the learned Judge. There is no allegation nor is there evidence other than three persons named accused, some persons were involved in the commission of the offence. In the absence of any proof of parsons other than the named accused being present at the scene of offence, it is impermi-ssible in law to convict the accused Shankaria with the aid of Section 34. There is much force in the submissions of the learned counsel. Recovery of the sword with which commission alleged was recovered from Kesia. There was no recovery from accused Shankaria. There is no eye-witness account of any person that Shankaria was seen assaulting the deceased. The recovery cannot be connected to Shankaria in any manner and when there is no proof regarding presence of other than at the scene of offence, conviction of Shankaria under Section 302 read with Section 34 becomes illegal. Even as regards the recovery of the ornaments and identification of the ornaments is concerned, the evidence is very doubtful. The person who was exami-ned as the person who manufactured the ornaments and who claims to identify the same is very doubtful. The witness has stated that he had made a very good number of such ornaments almost of identical nature and in such circumstances, a doubt can arise in the mind of a reasonable man as to whether the ornaments recovered from the possession of the accused persons were those which were removed from the body of the deceased and the injured in the process of assault. By acquitting other than the accused persons of assault and convicting them under Sec. 411 only, the learned Judge has disbelieved the prosecution evidence regarding presence of the accused Kesia and accused Bheria at the scene of offence. We are therefore, unable to uphold the order of conviction. In so far as Shankaria is concerned, as far as the conviction of accused Kesia and Bheria under Sec. 411 is concerned, there are no explanation regarding the possession of property identified as one belonging to the deceased. It is possible therefore, that the ornaments were taken from the deceased and were given to the accused by someone else. There is therefore, no reason to question the correctness of the conviction of these persons under Sec. 411 of the Indian Penal Code. ;