L.N. Chhangani, J.
1. This case has come before me under Section 429 of the Code of Criminal P.C. as the learned Judges who heard the appeal, differed on the question as to what view should hi taken regarding the crime committed on the basis of the recovery of 'Madlia' belonging to the deceased at the instance of the accused-appellant.
2. For a proper appreciation of the case, the material facts may be stated as follow.
3. On December 23, 1967, Ganpat of village Reengus, made a report Ex. P/1 at the Police Outpost, Reengus, at about 10-30 A.M. stating merely that his sister Mst. Chawli had been missing for the last eight to ten days. It was also stated that a shoe and lotta were lying outside the house where the house was locked from outside. Subsequently Ganpat made another report Ex. P/2 on the same day at about 7 P.M. In that report, Ganpat referred to the earlier report and further stated that after the first report he met Mst. Bhanwari (PW 2) daughter of Mst. Chawli, who had told him that a month before she had arrived from her husband's house to see her mother at Reengus during illness and that during that visit she had seen Sagarmal sitting in the company of her mother. In her presence, Sagarmal had told that somebody had practiced black magic on her. He would, therefore, prepare a thread to get rid of the evil influence of witchcraft Ganpat further stated that on receipt 4 of this information from Mst. Bhanwari he entertained suspicion about the complicity of Sagarmal for the murder of Mst. Chawali. He therefore, made a search and found that Mst. Chawali, after being murdered, had been placed in a ditch & that on account of rains her hands and feet had become visible. On receipt of the second report the police registered a case under Section 308 Indian Penal Code, and commenced investigation. Mst. Chawali's dead body was taken out from the ditch on December 23, 1967. Inquest report Ex. P-3 was prepared. The postmortem examination was conducted by Dr. Mohan Prakash Bhatnagar, Medical Officer, Incharge, Primary Health Centre; Reengus on December 23, 1967 who prepared postmortem report Ex. 3. P/20. According to the Doctor, the cause of death of Mst. Chawali was 'asphyai due to throttling'. The Doctor further expressed the opinion that Mst. Chawali must have been murdered within six to ten days before the postmortem examination. During investigation, accused Sagarmal was arrested on December 25, 1967. In the information given by the accused a gold madalia was recovered from beneath two 'babul' trees, standing in his 'bagechi'. The 'madliya' was identified as the property of the deceased. After investigation the police submitted charge sheet against the accused in the court of Munsiff Magistrate, Neem ka Thana, who committed the accused for trial under Section 302, Indian Penal Cede, to the Court of Additional Sessions Judge, Sikar. The trial court convicted the accused under Section 302, Indian Penal Code. The accused filed an appeal from jail. The appeal was heard by a Bench but the learned Judges, however, differed as to the offence proved against the accused. Mehta J. expressed the c pinion that the accused committed an offence of murder and, therefore, proposed dismissal of the appeal. Kansingh J. was of the view that the accused could be safely convicted for an offence under Section 411, Indian Penal Code.
4. I have gone through the record and heard the Deputy Government Advocate.
5. There is no direct evidence to connect the accused with the crime. The case hinges on circumstantial evidence. Both the learned Judges consider ed three circumstances relied upon by the prosecution:
1) That Sagarmal accused was associated with Mst. Chawali. He used to pay frequenti visit to Mst. Chawali and Chawali also used to pay visit to him.
2) That the accused and the deceased were seem on the 16th of December, 1967 at about 4 P.M. by Mst. Bhaowari PW 2 and that thereafter Mst. Chawali was not seen alive and dead body#as recovered on 23rd of December.
3) The recovery of a gold madlia' belonging to the deceased out the information given by the accused. This implies accused possessions of the madlia which possession remained unexplained.
These three circumstances were considered sufficient by Mehta J. who gave much importance to the recovery of madalia' from the possession of the accused. The learned Judge considered at length the provisions, of Section 27 of the Evidence Act, the nature and extent of presumptions which can be drawn under Section 114 of the Evidence Act and the principles relating to the effect and sufficiency of circumstantial evidence. He considered some Supreme Court cases & noticed contradiction in the views taken by the Supreme Court in Sanwant Khan and Anr. v. State of Rajasthan A.I.R. 1958 S.C. 54 and other cases and observed, 'But all other decisions of the Supreme Court are practically uniform in holding that recent and unexplained possession of the property raises a presumptive evidence against a prisoner, not only on the charge of theft, or larceny but also on the charge of murder where the theft and murder are proved to have been integral part of the, same transaction. Sanwant Khan's case cannot be considered to have modified the decisions of the Supreme Court in Sunderal v. State of M.P. : AIR1954SC28 and Tulsiam v. The State : AIR1954SC1 referred to a recent decision of the Supreme Court in Criminal Appeal No. 121 of 1968 : Punitram v. State M.P. decided on January 7, 1933, & a Bench decision of this Court in Criminal Appeal No. 272 of 1967, Mohanlal v. State of Rajasthan decided on 13.4.1970. He also expressed the opinion that Mr. Chawali having been murdered on 16th December, 1967 and the madalia having been r covered on January 8, 1958, the possession of the accused was recent. Relying upon the observations of the Supreme Court relating to the affect and sufficiency of the circumstantial evidence and applying those principles, the learned Judge observed, 'the reaction produced by the general feel of the case is that it was the accused who, out of greed for the gold ornament of the deceased, committed the murder of Mst. Chawali. Severing of the lower parts of both the feet further shows that the author of the murder must have dastardly chopped off her feet to remove the silver anklets, which Mst. Chawali was wearing and which were not not found on the corpse. The accused further furnished no explanation how he acquired the gold madlia which Mst. Chawali used to wear on her neck. All the facts discussed above are sufficient to establish the guilt of the accused and there is no doubt that he has been rightly, convicted under Section 302, I.P.C.'
6. Kansingh J. expressed his inability to agree with Mehta J that in Sanwat Khan's A.I.R. 1956 S.C. 54 case any contrary opinion to that taken in other Supreme Court cases was expressed, and reviewed in detail the cases in support of his view. The learned Judge thereafter considered the three circumstances relied upon by the prosecution and attached no importances to the first two circumstances. He considered the third circumstance namely, the unexplained possession of the accused of the gold madaliya' belonging to the deceased along with the time factor and concluded, 'In the circumstances I do not consider it safe to draw the inference about the commission of the major offence that Sagar-mal was the murderer of Mst. Chawali through there are strong suspicions against him. It is difficult to hold that the madaliya' was removed from the person of Mst. Chawali when she has done to death.'
7. I have given due consideration to the opinions expressed by the learned differing Judge and the submissions made by the Deputy Government Advocate. Section 114 of the Evidence Act deals with presumptions about facts and the courts have discretion firstly, whether or not to draw presumption secondly, also to the kind of presumptions that should be d awn in a particular case. Illustration (a) provides that the court may presume a man who is in possession of stolen goods soon after the that, that he is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The illustration need not be treated as exhaustive and it is now well settled that the Court may draw presumptions in respect of charges of aggravated offences such as, robbery and murder, although as a matter of caution, recent unexplained possession may be permitted to raise less strongly, a presumption of the possessor's guilty connection with aggravated offence accompanying the theft. As observed in Sanwant Khan's case A.I.R. 1956 S.C. 54, 'no hard and fast rule should be laid down and each case must depend upon its own facts.' Broadly speaking, the Court should consider whether property could not have been transferred from the deceased to the accused except by the former being murdered. I have gone through the various Supreme Court decisions and appreciated the principles in the light of the facts of the cases and I am quite unable to see any contrariety in the view taken in Sanwat Khan's case A.I.R. 1956 S.C. 54 and other cases. For obtaining proper guidance from the precedents, it must be borne in mind that a decision in a particular case is given in the context of the particular facts of that case and that precedents are authorities on their own facts and that a principle deducible from a decision in its further extension should be subject to differences in facts and concepts involved in the new case. A decision taken out of context and grafted upon a set of different facts' might lead to difficulties. As pointed out by Dua J. in Santa Singh Gopal Singh and Ors. v. Rajinder Singh But Singh and Ors precedents are employed as is often said only to discover the principle & principles are employed only to discover justice. To discover the true ratio-decindi is therefore ethical & is creative evaluation as opposed to mechanical application of a precedent. In this view of the precedents differing from Mehta J. I concur with Kansirigh J. that there is no contrariety in the views expressed in Sariwat Khan's case and other cases.
8. Considering the case on merits in the light of the guiding principle I must atonce observe that the prosecution led no evidence to snow that the deceased had on her person madliya' on 16th December, 1967 when she was seen last with the accused. Banawari (PW/1) does not state that the deceased had the madaliya-'at the time when she was seen with the accused. The evidence of Ms' Bhanwari (PW/2) and Ganpat (PW/6) is of a general nature and at best show that she used to put on madaliya'. Their evidence cannot establish that the deceased had madaliya around her neck at the time she was done to death. There is also interval of about 15 days Between the date of the incident and the date of recovery of the gold madaliya' In the various Supreme Court decisions where a presumption of a charge of murder was drawn, the interval between the incident and the recovery was very short and this along with other circumstances, justified an inference that the possession could not have been transferred from the deceased without the deceased being murdered. In these circumstance, I am inclined to agree with Kansingh, J. that conviction of the appellant under Section 302, Indian Penal Code, would riot be safe. I must also point out that in reaching a conclusion against the accused Mehta J Observed, 'Severing of the lower parts of both the feet further shows that the author of the murder must have dastardly chopped of her feet to remove the silver anklets,' and presumably this circumstance appears to have weighed with the learned Judge in arriving at a conclusion against the accused. I find, however, difficult to attach much importance to this circumstance. In the first instance, the silver anklets were not recovered from the accused and there is no evidence that he ever possessed the silver anklets. Secondly, the doctor who conducted the post-mortem examination, was not in a position to state whether the injuries on the feet were post-mortem or post-mortem. It being so, it will be hardly proper to draw any inference against the present accused from this circumstance. Having taken a different view of the important circumstance relating to the discovery of madliya I further find ho difficulty in holding that the other two circumstances cannot warrant a necessary inference of the complicity of the accused for the offence of murder on the well known and well settled principles relating to the effect and sufficiency of circumstantial evidence set out in detail by Mehta J. with which I have no quarrel.
9. In the light of the above discussions, agreeing with Kansigh J. I would allow this appeal in part and alter the appellant's conviction from Section 302 to that under Section 411, India Penal Code, and award him a sentence of three years' rigorous imprisonment.