C.M. Lodha, J.
1. Two ghastly murders of father and son, namely Siremal and Bandmal took place in their shop situated in village Undri, District Barmer, on the night intervening 21st and 22nd June, 1968. The culprit or culprits, as the case may be, after committing the said murders, put the shop on fire and decamped with the valuables lying therein. The crime was detected early in the morning when the shop was found enveloped in flames and attracted the notice of the villagers who went to the spot and tried to extinguish it. A first information report was lodged by one Mahinga on 22nd June, 1968 at about 8. a.m. at Police Station Gura Malani situated at a distance of about 16 miles from the place of occurrence, namely village Undri. In the course of investigation, the Police arrested the two accused Manga and Gulaba on 23rd October, 1969 in village Kasumba in the State of Gujarat. On interrogating the accused, Manga gave information on 26th October, 1969 recorded as Ex. P-23 which led to the recovery of Rs. 640/- cash and a gold ring Ex. M-2 from one Raoji who is said to have employed Manga and with whom Manga had deposited the cash and the ring.
The recovery memo in respect of the cash and the ring is Ex. P-22. After both the accused had been brought to Rajasthan on 30th October, 1969. Manga gave another information to the police exhibited as Ex. P-24 in consequence of which 16 articles of gold and silver were recovered from under a Jal tree near Jogiyon-ki-Chhatri in village Ratanpura. The recovery memo is Ex. P-17 and it is the case of the prosecution that the articles were lying hidden from the view of the passersby, as they lay buried in the sand. On the same day, the accused Manga gave another piece of information Ex. P-25 regarding the axe alleged to have been used in committing the offence. But this information is of no consequence as no recovery was made in pursuance of it. Again on the same day, that is, 30th October, 1969, the other accused Gulaba gave information marked Ex. P-26 in consequence of which 12 articles were recovered at his instance at a distance of about 10 paces from where the articles vide recovery memo Ex. P-27 had been recovered at the instance of Manga. These 12 articles were also ornaments of gold and silver alleged to be in possession of the deceased before their death. All the articles recovered at the instance of these two accused except cash were put up for identification. Thereafter, both the accused were prosecuted.
2. During the course of trial, the prosecution relied on an extra-judicial confession alleged to have been made by the accused and four other circumstances to connect them with the crime of the two murders. In the first instance, the prosecution tried to prove that both the accused had adequate motive to take the lives of Siremal and Bandmal-. The prosecution has also endeavoured to show that soon after the perpetration of the crime, both the accused absconded and were traced only when they were arrested in the State of Gujarat in village Kasumba. Yet another circumstance relied upon by the prosecution is that on the day of occurrence, the accused were in the village in the vicinity of the place of occurrence and they had put an employee of the deceased out of way in order to seek, an opportunity to commit the crime. The last and the most important circumstance relied upon by the prosecution is the recovery of the articles mentioned above.
3. The learned Sessions Judge, Balotra, who tried the case came to the conclusion that the recovery of the articles at the instance of Manga vide recovery memo Ex. P-22 and Ex. P-17 as also the recovery of the articles at the instance of Gulaba vide Ex. P-18 have been proved to the hilt. The recoverey of the cash and the ring at the instance of Manga vide recovery memo Ex. P-ll was, however, not believed. The learned Sessions Judge has further found that the articles proved to have been recovered at the instance of the two accused are proved to belong to the deceased and were at any rate in their possession before the alleged murder. However, in his view this recovery was not sufficient to raise a presumption that the accused had committed the murders while committing robbery. The other circumstances relied upon by the prosecution were, however, held to be not proved.
In this view of the matter, he acquitted the accused for the offence under Section 302/34, Indian Penal Code and convicted them under Section 411, Indian Penal Code and sentenced them to two years' rigorous imprisonment each and a fine of Rs, 300/-; in default of payment of fine to undergo further three months' rigorous imprisonment each. The accused were also acquitted of other charges under Sections 436, 457 and 380, Indian Penal Code. Aggrieved by their convictions and senlences, the accused have filed appeal to this Court which has been registered as S. B. Criminal Appeal No. 570/ 72. The State has also filed appeal from their acquittal under other offences of which they have been charged.
4. We have heard Mr. Rajnarain, learned Additional Advocate-General on behalf of the State and Mr. Bajwa, amicus curiae for the accused and have also gone through the relevant record.
5. Mr. Bajwa has urged in support of the appeal filed by the accused that the recoveries alleged to have been made at the instance of the two accused are not proved. He has submitted that the evidence of the witnesses to the recovery is tainted and not reliable. The information given by the accused leading to the recoveries has been proved by P. W. 28 Nathuram, Deputy Superintendent of Police, so also the recoveries. In addition to his statement, we have also got the statements of P. W. 16 Jawant-raj and P, W. 17 Rawatmal in respect of the recovery made vide recovery lists Ex. P-17 and Ex. P-18. The articles recovered vide the aforesaid two lists have been identified by P. W. 5 Misrimal son of the deceased Siremal. P. W. 12 Dalla and P. W. 13 Dospa have further given evidence that they had pledged some of the recovered ornaments of gold and silver with the deceased Siremal and Bandmal who used to carry on money lending business. We see no reason to discard this evidence, more specially, when the accused have not claimed any of these articles to be theirs
Learned amicus curiae has, however, urged that the recoveries were made from an open place accessible to all and sundry and, therefore, the possibility that the accused must have come to know of these hidden articles and may not have themselves concealed them, cannot be ruled out. It is sufficient to point out that the articles recovered vide Ex. P-17 and Ex. P-18 were not visible to all and sundry as they were buried and were unearthed by the two accused who led the police to the spot and after digging the earth, brought them out. In view of what we have stated above, we are of opinion that the case against the accused under Section 411, Indian Penal Code has been fully made out and the convictions recorded against them under Section 411, Indian Penal Code and the sentences passed thereunder are fully justified and do not call for any interference. The appeal filed by the accused, therefore, deserves to be dismissed.
6. Then we come to the appeal filed by the State. Admittedly, there is no direct evidence against the accused and the case depends solely on the circumstantial evidence. The evidence regarding extra-judicial confession must not detain us long as it is very weak and the learned Additional Advocate-Genera also has not relied upon it. In our view, the learned Sessions Judge was right in refusing to rely on this evidence. What the learned Additional Advocate-General has argued is that the recovery of the stolen articles coupled with the other circumstances to which reference has been made above, raises a strong presumption that the accused were the murderers.
7. As regards the presumption to be drawn from possession of stolen goods in such a case, reference may usefully be made to three decisions of their Lordships of the Supreme Court: Sanwat Khan v. State of Raiaslhan : AIR1956SC54 , Wasim Khan v. State of Uttar Pradesh : 1956CriLJ790 , Sheo Nath v. State of Uttar Pradesh : 1970CriLJ601 .
8. In : AIR1956SC54 , their Lordships observed:
In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.
9. Again in Wasim Khan v. State of Uttar Pradesh. : 1956CriLJ790 the Supreme Court held that 'recent and unexplained possession of the stolen property, while it would be presumptive evidence against a person on the charge of robbery would similarly be evidence against him in the charge of murder.' On the facts of that case, their Lordships were pleased to hold that the appellant was rightly convicted of the offence of murder and robbery. It is, however, necessary to point out that apart from the possession of stolen property, there were other circumstances indicating that the apnellant was guilty of murder and robbery. The circumstances were that the appellant in that case had travelled with the deceased on his bullock-cart alone and the deceased never reached his home and was found murdered. The appellant was found in possession of the goods of the deceased three days after and the appellant made no effort to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock-cart.
10. In : 1970CriLJ601 , the question that arose for consideration was whether the appellant should be convicted under Section 396, IPC or Section 411, IPC or Section 412, IPC The dacoity was committed by a number of persons and after having committed the dacoity, the dacoits escaped with clothes, ornaments and cash from the shop. Three days thereafter the house of the appellant was searched and three lengths of cloth we're recovered which were subsequently identified by the complainant. Relying on the discovery of the cloth and its identification, the High Court convicted the accused under Section 396, Indian Penal Code. In these circumstances, their Lordships observed that three presumptions are possible from the recovery of the stolen goods from the appellant three days after the occurrence.
1. that the appellant took part in the dacoity;
2. that he received stolen goods knowing that the goods were stolen in the commission of the dacoity;
3. that the appellant received these goods knowing them to have been stolen. However, on the facts of the case, their Lordships observed that the only legitimate presumption to be drawn is that the appellant, knew that the goods were stolen and, therefore, the appellant was convicted under Section 411, Indian Penal Code.
11. The discussion on the subject will not be complete unless we refer to the following observations made by a Bench of this Court in the case Bhurgiri v. State, ILR (1954) 4 Raj 476. Wanchoo, C. J., after holding that the recovery of ornaments from Bhurgiri had been established, observed as follows:
The next question is whether on this evidence Bhurgiri can be convicted for dacoity. The recovery took place five days after the dacoity. It is not impossible that during that period the property might have passed from the dacoits to a receiver. Under these circumstances, we are of opinion that it would not be safe to convict Bhurgiri of dacoity on the evidence of this recovery alone. It would be more proper to convict him as a guilty receiver.
12. Now, in the present case, it may be noticed that the murders took place on the night intervening 21st. and 22nd June, 1968, The recoveries in question were made after more than an year on 30th October, 1969 after a very long delay. From the said recoveries alone it is therefore not possible to infer that the accused were the perpetrators of the murders and the articles recovered at their instance were removed by them in the course of commission of the murders. We have, therefore, to see whether there are other good and convincing circumstances to fasten the guilt of the murders on these accused. The fact that the accused were seen on the day of occurrence in the village is, in our opinion, of no importance as the accused were admittedly residents of that village and their presence in the village was therefore most natural. Considerable emphasis has been laid by the learned Additional Advocate-General on the evidence regarding motive.
It has come in the evidence of P. W. 5 . Misrimal that both the accused were debtors of the deceased and that Gulaba lives contiguous to the shop in question where the murders took place and further that Gulaba and Manga had ample opportunity to see that the deceased were possessed of valuables and cash. No documentary evidence has been produced by the prosecution in support of the fact that the accused were the debtors of the deceased and this fact by itself cannot tilt the scales against the accused inasmuch as there were so many other debtors of the deceased who used to da money lending business. Another cause pointed out by the prosecution for the accused to have committed these murders is that a few days before the occurrence, the accused had molested the wife of one Khinwra and on complaint having been made by Bhoorji's wife to both the deceased, they went to the house of Khinwra and gave a severe beating to the accused who threatened the deceased with dire consequences. In the first place, neither Bhoorji's wife nor Khinwra's wife has been produced in evidence and then the main witness who has deposed to this fact, namely P. W. 22 Panna has very conveniently omitted to state this fact in his statement before the police.
Again the account given by P. W. 22 Panna of the beating alleged to have been given by the deceased to the accused appears to be so unnatural that no reliance can be placed on his evidence in this respect. Unfortunately for the prosecution, even the evidence on this point is not consistent. There are material contradictions between the statements P. W. 22 Panna and P. W. 25 Jala who have come forward to support the prosecution case in this respect. We are not satisfied that any such occurrence had taken place four or five days before the murders in question. In short, our view is that the evidence regarding motive relied upon by the prosecution is not very convincing, and at any rate, unless there is a strong link connecting the accused with the crime in question, mere vague evidence of motive can serve no useful purpose.
13. Let us then address ourselves to the evidence of P.W. 22 Panna on another point on which considerable reliance has been placed by the learned Additional Advocate-General. P. W. 22 Panna has stated that he was employed at the shop of the deceased and that on the night of occurrence, both the accused came to the shop and informed him that his mother had an acute stomach-ache. Getting this information, Panna immediately went to his 'dhani' and was surprised to find that his mother was perfectly hale and hearty and that wrong information had been supplied to him by the two accused. He states that early next morning as usual he went to the shop and to his utter dismay he found the shop on fire. It is, however, significant that even though several villagers had collected in the village to extinguish the fire and naturally therefore Panna must have also come there, yet surprisingly enough, fie does not seem to have revealed this important circumstance to the villagers collected at the spot, lest this information must have also found place in the first information report.
Then again, Panna's mother had not been produced to corroborate his statement. In these circumstances, it cannot be said that this circumstance is fully proved. It is true that the defence has nowhere brought out in cross-examination any enmity between him and the accused, but the question of proving enmity or interestedness so as to make the witness unreliable can arise only when his evidence in the first instance is found to be good. We are not convinced with the evidence given by Panna that the accused had given false information to him regarding his mother's illness so as to make him leave the shop earlier. Assuming for the sake of argument that what Panna has stated in this respect is true, even then, in our opinion, this evidence does not furnish a link reasonably connecting the accused with the crime and cannot raise any presumption against the accused that they must have committed the crime.
14. Learned Additional Advocate-General has also referred to us the statement of P.W. 33 Hukma who is alleged to have seen the two accused passing by his well in village Tatrol and on their having asked for water, he gave them water. It is further stated by Hukma that he noticed some stains of blood on their clothes. This witness was examined by the Police on 31st July, 1968, that is, after more than a month of the occurrence. Further, no effort was made by the investigation to get the accused identified by this witness in the course of investigation. The witness admits that the accused are perfect strangers to him and that he had seen them only in the trial Court, after he had seen them on his well when he gave them water. In our opinion, no value can be attached to the evidence of Hukma and it cannot be said even with least certainty that this witness had seen the accused on his well.
15. Lastly, reliance has been placed |by the prosecution on that fact of abscond-jance of the accused. In the first place, we jmay observe that mere abscondance is by jitself not sufficient to raise a presumption icf guilt against the accused. In the present case, however, even the evidence led by the prosecution about the accused absconding after the crime is much too meagre. No doubt, the application filed by the police for getting a warrant of attachment of property issued against the accused had been placed on the record. So also it has been stated by P.W. 35 Kishandas that the accused were absconding. It is, however, remarkable that not a single witness has stated that search was made of the accused at their houses or at the houses of their relations or in other villages near about tho village Undri where the occurrence took place. In our opinion, the evidence led by the prosecution on the question of abscondance is not satisfactory.
16. The net result of the foregoing discussion is that from the recovery of the stolen articles proved to belong and to bo in possession of the deceased, a suspicion does arise that the accused may have been the perpetrators of the murders of the deceased. There are, however, no other convincing circumstances to connect them with the murders and the act of putting the shop on fire. We are, therefore, unable in the circumstances of the case to draw a presumption that the accused are the murderers. It is indeed unfortunate that two ghastly and atrocious murders go unpunished. But more heinous the crime, the greater the circumspection on the part of the court to see that the accused are not punished merely on suspicion on account of gravity of the offence. We therefore give the accused benefit of doubt and uphold the order of their acquittal under Sections 302/436/457/380, I.P.C.
17. In the result, both the appeals are dismissed.
18. Learned Additional Advocate-General prays for grant of leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution. We, however, do not consider the case to be a fit one for grant of leave. The prayer is disallowed.