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Chand Mal and anr. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 669 of 1967
Judge
Reported in1970WLN658
AppellantChand Mal and anr.
RespondentState of Rajasthan
DispositionAppeal dismissed
Cases ReferredR. v. Cooper
Excerpt:
evidence act - section 27--accused's confessional statement leading discovery of dead body--held it is admissible in evidence against accused but cannot be used to implicate another accused.;section 27, evidence act, is an exception to the prohibition' imposed by section 26. it enables certain statements made by a person in police custody to he proved. the condition necessary to bring the section into operation is the discovery of a fact in consequence of information received from, a person accused of an offence in the custody of a police officer must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved.;the provisions of section 27, evidence act, cannot be held to nullify the substance of section 26 the act. information.....l.s. mehta, j.1. the prosecution story succinctly put is that smt. nazar bai mother of shankerlal, p.w. 11, had become widow more than 42 year ago. she was residing separetely from her son in the town of chittor. on october 24, 1964, 'karan-chowth' festival occurred. on that occasion mst. nazar bai was invited to dinner by her cousin brother ramchandra, p.w. 23 ramchandra s daughter, aged 10 years, approached her that day at about 4.30 p.m. and extended invitation to her. nazar bai save her 2 paise as a taken of her love and told her that she would certainly visit her house at that time the accused chandmal was present there. sometime later nazir bai left her house to go to ramchandra's place. she was followed by ghandmal nazar bai, it appears, was done to death on her host's residence......
Judgment:

L.S. Mehta, J.

1. The prosecution story succinctly put is that Smt. Nazar Bai mother of Shankerlal, P.W. 11, had become widow more than 42 year ago. She was residing separetely from her son in the town of Chittor. On October 24, 1964, 'Karan-Chowth' festival occurred. On that occasion Mst. Nazar Bai was invited to dinner by her cousin brother Ramchandra, P.W. 23 Ramchandra s daughter, aged 10 years, approached Her that day at about 4.30 P.m. and extended invitation to her. Nazar Bai save her 2 paise as a taken of her love and told her that she would certainly visit her house At that time the accused Chandmal was present there. Sometime later Nazir Bai left her house to go to RamChandra's place. She was followed by Ghandmal Nazar Bai, it appears, was done to death on her host's residence. As she was living separately from her son, none bothered for her for about a week. When rumour took currency that Nazar, Bai was missing, her son Shankerlal, P.W. 11, lodged a report (Ex P 1) with the police station Chittor, on Oct. 31, 1964, at 10.30 p.m. stating therein that Nazar Bai was pot traceable. A search was made for her but with no result. Ultimately the Station House Officer. Lal Singh P.W. 32, recorded a formal report (Ex. P. 27), dated December 2, 1964, suspecting that Nazar Bai with the mtention to cause her death, had been abducted in order to deprive her of her ornaments and other movables. The report Ex. P 27 was submitted to the Superintendent of Police, Chittorgarh, who ordered its registration and consequent investigation. In this manner first information report Ex. P.28 was recorded and investigation followed The Station House Officer. Lalsingh P.W. 32 mspected the site and prepared site plan Ex. P. 29 In the house of Nazar Bai he found a box containing Rs. 700/- and gold ornaments weighing 10 tolas. On October, 7, 1965, the accused Chandmal was seen going to the Chittor fort Curiously enbugh he disguised himself in a female dress. He was arrested on suspicion. In the course of his personal search a bag was found in his possession, containing a bunch of keys (Ex. 42 ) He was hauled up under Section 55/109, Cr.P.C. On interrogation, he, while in the police custody, gave information to the Station House Officer Mahindra Singh P.W. 33, that the dead body of Nazar Bai had been concealed underneath the floor of his room and that the key of the look was available in the bunch of the keys (Ex. 42). That information was reduced to writing. It was marked Ex. P. 30, dated October 11, 1966. In pursuance of that information the police recovered a skeleton (Ex. 1) at the instance of the accused Chandmal under memo Ex. P 5 dated October 11, 1966. The skeleton contained ornaments namely, Kada' (Ex 31), ring (Ex. 32), picture (Ex. 33). and 'Churia' (Ex. 34), besides torn 'Ghaghra', 'Odani' and bodice' (Ex. 36). Shankerlal, P.W. 11, identified most of his mother's articles- The skeleton was examined by Dr.Ganpatlal, P.W.27, Medical Officer Incharge, State Hospital, Chittorgarh-. After its examination he arrived no the following conclusions:

1. The bones were of a human being.

2. The bones belonged to one individual.

3. The bones in all probabilities appeared to be those of a female, as the pelvis was available and it was shallow and wider. The pelvic arch was wide and the angles of the fetur were appearing to be almost at the right angle at the neck.

4. Thorax was intact and was short.

5. Neither there were any teeth with the bones nor were there sockets of the denture in the mandible or in the upper jaw The ramus of the mandible on either side was more obtuse.

6. These bones belonged to some female of an elderly age.

7. Possible height of the individual to which these bones belonged should be about 4'-6'.

8. From the examination of the bones alone no opinion regarding the cause of death of the deceased could be formed.

9. No opinion regarding the time of the death of the deceased to whom the bones belonged could be formed.

10. Skull was intact. It was mailer except that few small bones of hand, metacarsal and metatersal were missing. The bones were of the complete skeleton.

The Station House Officer MahendraSingh conducted the search of Chandmal's house and recovered therefrom 63 articles as mentiored in the search memo Ex. P. 22 dated October 7, 1966. These articles were duly sealed. Certain articles were also recovered at the instance of Chadmal from the possession of others. The other accused Ranglal was arrested or October 13, 1966- Certain reccovries were made on his information and at his instance. 29 articles were sent to Mr. G.S. Dwivedi, P.W. 25, Additional District Magistrate, Chittor, for the purree of conductirg identification proceedings. Shankerlal. P.W. 11 identifies all the articles (except one silver 'Eangari' (Ex. 14), as belonging to his decearsed mother Nazar Bai. Similarly Shankerlal's son Satyanarain, P.W. 10, also identified all the articles excepting 'Anvla' Ex. 1. Likewise Smt. Kanta P. W. 14, daughter of Shankerlal identified all the items except one silver 'Bangari' Article 14, which she had pledged with Nazar Bai for Rs. 30/-. A giftdeed Ex. P. 23, dated July 20, 1961, executed by Ranglal Maheshwan in favour of Chandmal Chhippa, transferrins certain immovable property, was also recovered in the house search of Chandmal. After the investigation was concluded, the police put up a challan against the accused Chhandmal and Ranglal in the Court of the Civil Judge-cum-Magistrate, First Class, Chittorgarh. The Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207-A, Cr. P.C., and committed both the accused Chandmal and Randal to the Court of the Sessions Judge, Pratabgarh (Camp Chittorgarh, to face trial under Sections 302, 201/34, 457, and 380, I.P.C. On May, 16, 1967, the trial court read over and explained the charges under the afore said Sections of the IPC to the accused person, to which they pleaded not guilty and claimed trial. The prosecution examined as many as 34 witnesses in support of its case. The accused Chandmal in his statement, recorded under Section 342. P.C., denied having committed any offence. Itradani' Ex. 20 and gift-deed Ex. F. 23 were claimed by him. Similarly he admitted the recovery of of the Keys Ex. 42 which was in his possession. He further admitted that he had given one gold 'Boria', a pair of 'Kada', a piece of 'Nevri' and a piece of 'Anvla' to Bhagchand, P.W. 19. and said that they belonged to his mother Mst. Devee. The gold in gots Exs. 36 and 37 recovered from the possession of P.W. 22 Jagannath. were also claimed by him The accused further deposed that the room from which the dead body was recovered was in the possession of Chogalal, brother of the accused Ranglal. The accused Ranglal in his statement also denied his complicity in the crime. He claimed the ear-rings, 7 tops and the pair of 'Balis' (collectively marked Ex. 28). produced by Jagdish Chandra, P.W. 16, before the police under memo Ex. 11, as his property. He further stated that the 'Churi' (Ex. 29) belonged to his mother and that 'Lota' (Ex. 13), silver glass (Ex. 16) and 'Itradani' ( Ex.'20) belonged to him and that he had given them to the accused, Chand Mal. In their enidence The accused examined 2 witnesses. Station House Officer Lal Singh, D.W. 1, and Mst. Devi mother of Chandmal, D.W. 2, D.W. 1. Lal Singh has said that Exs. D. 1. P 2, D. 3 and, D. 4 ( police statements of Madan Bai, Satyanarian, Ratan Bai and ( Ramchander ) were recorded by him correctly. D.W. 2 Mst. Devee has and that whatever articles were recovered in the. house search conducted on October 7, 1966, belonged to her and not to Chandmal. She further stated that Ranglal treats Chandmal's wife as his sister and on the occasion of 'Raksha Bandhan' he had presented to her silver glass (Ex. 16). The trial court, by its judgment, dated November 16, 1967, acquitted the accused Ranglal of the offences under Sections 303 and 201, I.P.C. It however, convicted him under Section 411, I.P.C., and sentenced him to one year's rigorous imprisonment. The accused Chand Mal was found guilty under Section 302. I.P.C. ard sentenced to undergo imprisonment for life. He was further convicted under Section 201, I.P.C., but no separate sentence was passed on that count. Chandmal, was also convicted under Section 411, Indian Penal Code, and sentenced to one year's rigorous imprisonment. Skeleon Fx. 1 was ordered to be given to Shankarlal, for performing religious rites. Ex. 2 to 34 were directed to be delivered to Shankerlal. The gold ingots (Exs. 26 and 37) were ordered to be returned to jagannath. The gold 'Churi' Ex. 33 and the 'Balis were ordered to be returned to Rawatnal. P.W.6. The ingot (Ex. 40) was returned to Ganeshalal, P.W. 7. The lock (Ex.41) arid the keys (Ex.42) and the clothes (Ex.35) were diracted to be destroyed.

2. Aggrieved by the above verdict, Chandmal has appealed to this Court (D.B. Criminal Appeal a No. 669 of 1967). Ranglal has also preferred an appeal against the judgment of the trial Court. This appeal has been registered as SB. C.A.No 658/67 Both the appeals can conveniently be disposed of by judgment.

3. The contention of learned counsel for the accused Chandmal is that he has been wrongly c6nvicted under Sections 302, 301 and 411, I.P.C. According to the learned Counsel the prosecution has not been able to establish the fact that Nazar Bai has been murdered and that the skeleton Ex. 1 is of no other person than that of Nazar Bai. The ornaments recovered from Chandmal's possession have not been proved to be those of Nazar Bai. Learned Counsel further urged that 2 skeletons were sent to Dr. Ganpatlal and, therefore, it is doubtful which skelelon belorged to Nazar Bai. Again, this various ornaments could not be identified after a period of two years. Learned Counsel also urged that the information memo Ex. P. 30 has been extracted by threat and as such it was not admissible in evidence. The ornaments recovered from the possession of the 2 accused are of common pattern and have been wrongly identified by the witnesses.

4. Chandmal was arrested in this case on October 10, 1966.When he was under police custody he furniahed information to the Station House officer, Mahendra Singh, P.W.33, that buth he and Ranglal entered into conspiracy and strangulated Mst Nazar Bai. Her dead body was berried underneath the 'ora' below a big stone slab and that he was prepared to show the same to the police This information was reduced to writing and is marked Ex. P. 30. It has been proved by P.W.33 Mahendra singh.

5. Section 27, Evidence Act, is an exception to the prohibition imposed by Section 26. It enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accoused of an offence in the custody of a police officer must be deposed to and thereupon so much of the information as relates distinctly to the fact there by discovered may be proved. The section seems to be based on the view that if a fact is discovered in pursuance of the information furnished, some guarantee is afforded thereby that the information wastrue. But it must be borne in mind that the confessional part of the statement relating to the murder of the victim is not admissible in evidence as it would hit the two preceding sections ralating to confessions made to the police. The provisions of Section 27, Evidence Act can not be held to nulify the substance of Section 26 of the Act. Information supplied by a person in police custody that he would produce a skeleton concealed under neath the floor of his room leads to the discovery of the fact that a skeleton was concealed in the house of the informant to his knowledge, and if the skeleton is discovered, the fact discovered is relevant). However, the statement, 'We two conspired and strangulated Nazar Bai' is inadmissible since it does not relate to the discovery of the skeleton in the house of the informent. In support of this proposition reliance is placed on Kottaya v. Emperor AIR 1947 PC 67' and Perahadi v. W.P. State : 1957CriLJ328 . We see no good reason for disbelieving the Police Officer Mahendra Singh. P.W. 33, regarding the statement made by the appellant. An examination of the Sub-Inspector's evidence does not disclose any circumstance which would justify us in holding that he was not speaking the truth. In that circumstance we cannot associate ourselves with the argument of the learned counsel for the appellants that the information contained in Ex. P. 30 regarding the recovery of the dead body was extracted by threat. It is true that the appellant Chandmal's statement cannot be used to implicate the other accused Ranglal, but his confessional statement before the police that the dead body had been concealed underneath the floor of his room is admissible in evidence and it indicates his guilty knowledge.

6. In pursuance of the above confessional statement Ex. P. 30, the skeleton was recovered at the instance of the accused Chandmal after removing a big stone slab paved on the floor of his room. The pit where the dead body was found was 2' X1'X1' Cubic Feet.

7. The skeleton was sent to Dr. Ganpatlal P. W. 27, Medical Officer, Incharge District Hospital, Chittorgarh The Doctor examined it and reached the conclusion that in all probability the bones appeared to the those of female. As the pelvis was available and it was shallow and wider, the Doctor opined that the bones belonged to some female of an elderly age. Taylor in Principles and Practice of Medical Jurisprudence; Twelfth Edition. Page 122, Vol. 1, writes:

The greatest difference is observed in the pelvis....The pubic angle is narrower in the male; ...The great sciotic notch is much narrower in the male than in the female.

Glaister in his monumental work on Medical Jurisprudence and Toxicology. 11th Edition, page 73, writes:

Apart from certain measurements of the long bones, the pelvis, skull, starnum and sacrum must be reckoned as the chief means of differentiating sex in a skeleton

From these authorities it is clear that the sexual characters of the pelvis are of the highest importance in the sexing of skeleton remains. Since the female pelvis is constructed for the function of child bearing, it presents very distinctive features which contrast in contrast the pelvis of the male. The Doctor has definitely stated that the pelvis, which he had been, could not be of a male person It has thus been established by the prosecution that the skeleton was of a female.

8. Now the question is whether the skeleton was that of Nazer Bai. Dr. Ganpatlal, P. W. 27, has said that the skeleton was of a short' statured elderly woman. Nazar Bai's daughter-in-law Ratan Bai, P. W. 13, says that her mother-in-law, Mst. Nazar Bai, was a short statured lady. Shankerlal, P.W. 11, has indentified the ornaments, namely, 'Kada Jodi' (Ex. 30), Picture (Ex 33), 'Kada' (Ex. 31), 'Churis' (Ex. 34) and ring (Ex. 32) as also clothes (Ex. 35) which were found on the body of the deceased. He has said:

Ghaghra. Odni and Kanchli marked Ex. 35 are similar to those which are ordinarily worn by my mother.

Satyanarain, P.W. 10, grand-son of the deceased, has said that the ornaments Ex. 30. 31, 32, 33, and 34 belonged to his grand mother Nazar-Bai. P.W. 13 Ratan Bai has testified that these ornaments belonged to her mother-in law She further says that she saw her mother-in-law always wearing these ornaments. She has also identified the 'orni' ( Ex 35 ) which she was wearing. Kanta Bai, P.W. 14, daughter of Shankerlal, states that the 'Orni' (Ex. 35) is the same which Nazar Bai was wearing. She was also putting on kada Jori (Ex 30) churis (Ex 34), picture (Ex, 33) and ring (Ex. 32). The assocration of the dead body with the above mentioned articles leads to the inference, in the circumstances of the case, that the skeleton recovered on the information and at the instance of the accused Chandmal was that of Nazar Bai, to whom all the above articles belonged. We may refer in this connection to Gul Nassan v. Emperor 1910) 11 Cr. L. J. 604 Vol. 2. In that case the Punjab Chief Court took the view that the satisfactory proof that clothes found on the body of a murdered person belonged to him and were worn by him immediately before his disappearance, was sufficient to find that the corpse was of that person, although the skeleton was too decomposed to be identified otherwise. Phipson opines in his book on Evidence, 10th Edition, pages 136-137:

Thus, circumstantial evidence is no longer excluded by direct; and even in criminal cases the corpse delicti may genarally be established by either species.

In this view of the matter, we can safely hold that the skeleton was that of Nazar Bai and of none else.

9. Learned counsel for the appellants submits that according to the statement of the Station House Officer, Mahendra Singh P.W. 33, accused Chandmal has got recovered a bony skeleton on 10-10-1966, but on medical examination that skeleton was found to be of a male human being and not that of a female. This recovery is, therefore, shrouded in mystery as to which skeleton was actually sent to the Doctor. The Station House Officer, Mahendra Singh has clearly said that the information contained in Ex. P. 30 regarding skeletor, was given by Chandmal on October 11, 1966 at 10 in the night. That skeleton (Ex 1) Was taken to the police Kotwali. The ornaments were removed from the dead body on October 12, 1966, at 7 in the morning. The Station House Officer further deposes that the body recovered on the information and at the instance of the accused from the pit under neath the floor of his room was identified by Shankarlal on the spot, with reference to the ornaments present on it. Consequently, that skeleton was taken in police custody and was sent to the Medical Officer for examination. No question was put to the Station House Officer that the skeleton recovered on October 11, 1966, was not that of a female. The Doctor says that the skeleton was that of a woman. Woman skeletons are manufactured by God in His wisdom. They cannot be procured at the sweet will of persons. Thus, we have no doubt in our minds that the police did succeed in procuring the requisite skeleton of Nazar Bai.

10. Learned Counsel for the accused Chandmal has submitted that there is no medical evidence worth the name on the record that Nazar Bai met with homicidal death and that it would be hazardous in the extreme to conclude that Nazar Bai died as a result of violence. He relied upon the observations of their Lordships of the Supreme court Court in K. K. Jadav v. State of Gujrat AIR 1956 SC 821 4, wherein it is Said:

The mere fact that the dead body was pointed out by the prisoner or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder.

11. We may point out that in the case under examination there is not only the recovery of the dead body at the instance of the accused Chandmal, but there is also his confessional statement in pursuance thereof the recovery has been effected. This part of the confessional statement is admissible in evidence. There is a world, of difference in which only recovery of an exisit has been made and a case in which the recovery has been effected on the infomation of the accused The mere circumstance that the dead body was pointed out by the accused may not be deemed sufficient to hold the accused guilty ofany offence. But here we have got a case in which the accused buried the dead body underneath the floor of his own room and his confessional statement is available on the record.

12. The fact that the deceased was killed may be proved by circumstantial evidence, as any other fact. In support of this proposition reliance in placed on Mary Ann Nash 6 Criminal Appeal Reports 225. The appellant Mary Ann Nash was convicted before Lord Justice Coleridge of the murder of illegitimate child and sentenced to death. It was submitted in appeal that there was no sufficient evidence to go to the jury in respect of the identity of the body of any inlawful killing The appeal was dismissad with the following observation:

In view of the facts that the child left home well and was afterwards found dead, that the appellant was last seen with it, and made untrue statements about it, that is not a case which could have been withdrawn from the jury:

Another case on the point is of Praderik Albert Robertson 9 Criminal Appeal Reports 189. The facts in that case were that on the 24th June the appellant's wife was removed to the infirmary and for the next few days he tried to get the children taken care of, approaching in vain the relieving officer and Salvation Army. On 23th June he was alone with the children in the house, they were never seen alive again, He stated that they had been taken by the Salevation Army, but their dead bodies were found buried beneath the floor on the 25th July, being then in such a condition that it was impossiable for medical witnesses to say that they did not die, a natural death. It was argued that there facts did not amount to evidence on which a Jury could convict. The contention was over-ruled with the following observation:

The only possible suggestion is a series of coincidences; the jury are reasonable men, and we have to exercise our common sense and must take into account what inferences reasonable men would draw from the evidence.

Another case is Regina Versus Onufrejczyk 1955 (1)QB 388 in which there was no trace of the victim's body or the direct evidence of the death or of the way in which he had died. But the conviction of the accussed for the murder of his partner, who had disappeared, was maintained. It was observed by Lord Goddead, C J;--

There was evidence on which the jury could infer that he(Sykut) did meet his death, and that he was dead, and if he was dead, the circumstances of the case point to the fact that his death was not a natural one.

In Wigmore on Evidence, 7th Volume, third edition, at page 417, the law has been propounded thus:

The attempt has often been made to establish a rule that, for proving 'the corpus delicti'--the fact of death, on a charge of homicide, or of abstraction of goods, on a charge of larceny there must be direct or testimoncial evidence, i,e a witness who has seen the lifeless body of the person, or the vacant place where the goods were.

At page 423 the author adds:

In the United States, it has been generally conceded that no such rule exists; i.e; circumstantial evidence of a proper degree of strength is sufficient to prove the death of the person, loss of the goods, or other injury forming the' corpus delicti; and testimony by eye witnesses of the dead one, or at least of the person's dead body, or of the vacant place where the goods were is not required;

In Ramchandra v. U. P. State : 1957CriLJ559 their Lordships of the Supreme Court observed;

There may be reliable evidence direct or circumstantial, of the commission of the murder, though the corpus delicti are not traceable.

In this connection we may also advert to the decision of their Lordships of the Supreme Court reported in Ansnt Lagu v. State of Bombay 0043/1959 : 1960CriLJ682 Thus, it is clear that death by violence can be proved by circumstantial evidence.

13. There is nothing on the record to suggest that Mst. Nazar Bai committed suicide. It is in the prosecution evidence that she left her home for going to her relation Ramchandra's house for dinner, The accussd Chandmal followed her. If Nazer Bai had met with natural death at the house of Chandmal the natural thing for him to do was to bring her death to the notice of the town people and then to arrange for her funeral if he had any element of humanity. But instesd of doing so, he buried her underneath the floor of his room.

14. It was urged by the learned counsel for the appellant Chandmal that he might have buried the dead body on account of fright or foolishness lest he might be involved in the crime. Such cases occur, when a person entertains a sort of feeling; that a false accusation is most likely to be brought against him. For example, if a man dies at the house of an enemy the latter may act in fright in disposing of the dead body or, again, an unchaste lady may dispose of the dead body of her husband to prevent any suspicion falling on her. But here we have got a positive case in which there, could be no fear in the mind of the accused Chandmal. There was no likelihood of any false, implication for causing the death of Nazar Bai. Had she died by accident, it cannot be said that the dead body had been buried in the manner out of fright or for any such other reason.

15. Though Dr. Ganpatlal, P. W. 27, who examined, the skeleton, has stated that he is unable to form any opinion regarding the cause of the death of the deceased, yet there are circumstances which conclusively show that Mst. Nazer Bai died of violence committed on her person by someone.

16. A question now arises whether it was the accused who did the act of killing her. Here again, there is no direct evidence. But there is sufficient circumstantial evidence, which connects the accused Chandmal with the crime. The most important circumstance is that Nazar Bai left her home on 'kawa chowth' falling on 24. 10. 1964, to join the dinner at the house of Ramchandra p. W. 23. Madan Bai, a close neighbour of Mst. Nazar Bai, says:

I used to live as a tenant in the. house of deceased Nazarbai. Accused Chandmal used to come there. About 2 of 2 1/2 years back on the day of Karva Chowth Ram Chandra's daughter had come and, had invited Nazar Bai for dinner At that time Chand mal was present there. The same evening at about 5 or 6 Nazar Bai left her house for the house of Ram Chandra.

Learned counsel for the appellants assailed the statement, of this witness on the ground that in the police statement, marked Ex. D. 1, at portion A to B, she had said that Chandmal was absent. We have gone through the relevant portion of Ex, D. 1. The portion reads:

Two Naya paise were taken out of a small tin and were given to RamChandra's daughter and thereafter she left the place. At that time Chandu was not present.

From this statement it cannot be inferred that Chandmal was not present at the time when Mst. Nazar Bai left her home. The witness has clearly deposed in the police statement at a later stage that when Chandu came Nazar Bai had already locked her house.

17. The other important witness to prove this fact is Nani Bai, P.W. 9 she says:

On that day I and Nazar Bai continued knitting cloths from 9 or 10 a. m. upto about 5 P.m. the accused Chandmal present in court also remained with us during that time. Madanbai and Rukmanbai were also doing the same work with us. That day Ram Chandra' daughter, aged about 10 years, came to us at about 4. 30 P. M. and invited Nazarbai for dinner at RamChandra's house that night; Nazar Bai gave 2 paise to that girl and asked her to go away and that she would be following soon. Thereupon Chandmal remarked that 2 paise was valueless these days. Thereafter Nazarbai gave some Makhana, to that girl. A little later Nazarbai went away from there. The accused Chandmal also followed her. While going away Nazarbai locked her room, i. e; Madi.

Nani Bai's statement has not been damaged in any manner in the cross-examination.

18. From the above evidence it is established, beyond any shadow of doubt, that Nazar Bai and Chandmal were last seen together on the date of the occurrence and thereafter the was not seen by anyone. This is a very important circumstantial link, connecting the accused with the crime.

19. Apart from the fact that the skeleton of the deceased Nazar Bai along with its ornaments and clothes was recovered on the information and at instance of the accused Ghandmal, there is another very important circumstantial evidence which implicates the accused in the crime. Ornaments like 'Anvia Jodi', Ramnavani' gold 'Nath', Rakhri', 'Bingariv two pairs of gold 'Naths' pair of tops etc. were recovered from the house of the accused, Chandmal. That apart, P.W 24 Balkishan produced rings (Ex.5) and (EX.6) having, been received by him from Chandmal. All these articles have been identified by P.W.10 Satyanarayan, P. W. 11 Shankerlal, and P.W. 14 ' Kanta Bai, before the Additional District Magistrate, Chittorgarth, Shri C.S. Dwrvedi Smt. Kanta and Shankerlal, however, did not identify one, silver Bangari (Ex. 14) and Satya Narayan failed to do so in respect of the 'Anvin' (Ex. 1). 'Churis' (Ex. 14) have however, been identified by sakina, P W.26 'Anvin' was identified by witnesses other than Satyanarain. Learned counsel for the accused contends that all these ornaments ware claimed by Mst. Devoo, mother or the accused Chandmal We have gone through her statement, It is much too vague. She simply says that the entire property was in her owneership and possession In the cross- eximintion she says that she does not know from which go dismith Chandmal got the 'Bor' ( Ex. 11 ) prepared. She does not know even its weight' nor does she remember the weight of any of the ornaments. She has got no account with respect to these ornaments, nor has she got any list in which these ornaments might have been entered. The trial court, which recorded the statement of Mst. Devoo, discarded her testimony outright and we believe rightly so.

20. Learned counsel for the appellant further argued that the ornaments recovered from the house alleged to be in the possession of Ghandmal were in fact in possession of Mst. Devoo and, therefore, Chandmal had nothing to do with them. Learned counsel posed a question for consideration as to whether the appellant could be considered to have been in conscious possession of the ornaments recovered from the house. It is in considering this question that the plans of the appellant that he was living separately and that he was not present at the time of the recovery and that the property was in possession of his mother have been considered by the trial court and findings have been recorded, against him. We have carefully looked into the whole evidence on the record. The presence of such a large number of articles which have been duly identified by the prosecution witnesses, could not have been possible without each' of them taking the other into confidence. This finding has been accepted by the trial court and we are satisfied that there is no legal error or infirmity committed by the court below in arriving at the conclusion that the ornaments were recovered from the conscious possession of the accused. Therefore, this contention will have to be rejected.

21. Learned counsel for this appellant has urged, with all vehemence at his command, that the articles alleged to have been identified by the prosecution witnesses are of common pattern and are of ordinary kind which can be found with any body in a town and the witnessess did not point out any specific features or marks of identification over them and, therefore no value can be attached to their testimony. In this connection it may be pointed out that even small and nice' points of difference distinguishing one thing from others of the same kind may, merely by the frequent sight of them and without any special attention to them, make in impression on the mind. In such cases the impression is the general appearance of the thing. This sort of impression is common; a workman has it of his tools, and most people have it of their dress, jewellery and other things which are frequently seen, handled and used. Observations teach that such identification may be safely relied upon, even though the witness is not able to formulate any cogent or intelligent reason for the identification. Thus, women can identify their own ornaments without marks of identification. See Public Prosecutor v. India China Lingish. : [1964]52ITR474(Mad) . In this connection we attach great importance to the identification of the ornaments by Kanta Bai, grand-daughter of the deceased. She could have identified the ornaments without marks of identification as she must have seen them off and on. Therefore, this argument is of no substance.

22. Under Section 114, Evidence Act, 1872, the court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private bussiness in their relation to the facts of the particular case. It has authoritatively laid down that presumption under illustration (a) to Section 114, Evidence Act, can be extended to a more aggravated offence. The inference of complicity from possession of article connected with a crime applies also to other criminal charges: vide page 388 Phipson on Evidence, 10th Edition. The following passage occuring at pages 104-105 in Wills on Circumstantial Evidence, 17th Edition, is instructive:

The possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge, but of any other more aggrevated crime which has been connected with theft. This particular fact or presumption commonly forms also a material element of evidence in cases of murder, which special application of it has often been emphatically recognised.

In the case of Emperor v. Neematulla 1913 (16) Cr. L. C. 556, Sir Lawrence Jenkins, observed:

That the possession was a fact from which the Court might presume not merely theft or receipt of stolen property but the more aggrevated offence connected with theft.

This question was also considered by their Lordships of the Supreme Court in K. K. Jadav v. State of Gujarat (Supra) and it was observed:

The discovery of the 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.

No doubt a contrary view was taken by their Lordships of the Supreme Court in Sanwat Khan v. State of Rajasthan : AIR1956SC54 . But ail 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. The decision in Sanwat Khan's case lends support to the contention that only ore circumstance, namely, from the possession of the jewels soon after the murder, a presumption of murder cannot be drawn. That statement of law was made in the particular circumstances of that case. There was evidence on the record that the father and the two appellants also planned to murder the deceased and P. W. 7 was also approached by some one else for the purpose of murdering him. There was evidence, therefore, in that case that there were other persons interested in murdering the deseased and a plan to that effect bad been made. That case is, therefore, distinguishable from the facts and the circumstances of the present Case. Sanwat Khan's case cannot be considered to have modified the decision of the Supreme Court in Sunderlal v. State of M. P. : AIR1954SC28 and Tulsiram v. The State : AIR1954SC1 . In a recent judgment of the Supreme Court in Criminal Appeal No. 122 of 1968, Punitram v. State of M, P., decided on January 7, 1969, the deceased Khoji Bai was an old woman of village Nagari. On December 29. 1966, her house Was found Jocked and she was not found traceable. Wife of the accused told P. W. 7 Bihari Ram that her husband had brought 4 bags of paddy. The Sub-Inspector interrogated the accused, the ornaments and the bags of paddy were recovered on the basis of the information given by the accused. The High Court was of the view that all the facts and circumstances Were sufficient to sustain the conviction of the accused. The matter went Up in appeal to the Supreme Court. His Lordships Grover, J., speaking for the Court, observed that the ornaments of the deceased must have excited the greed of the accused, who is said to be a very poor person. The manner in which the ornaments had been concealed in the house of the appellant clearly shows that he was anxious to conceal them at a place where they could not be seen by anyone. The bags of paddy were also found in the inner room. All these facts were sufficient to establish the guilt of murder.

23. It is true that presumption permitted to be drawn under illustration (a) to Section 114, Evidence Act has to be read along with the time factor, but in what circumstances articles should be considered to have been recently stollen cannot be described in any precise way. Illustration (a) is merely illustrative of the manner in which inferences can be drawn for the common course of events, human conduct and the like, No maximum period is suggested beyond which no inference of guilt can be drawn. In the present cage the prosecution has proved beyond reasonable doubt that the accused Chandmal and Mst. Nazarbai were last seen together, that accused Chandmal had councealed the dead body of Mst. Nazarbai beneath the floor of his own house and that a large number of ornaments belonging to the deceased are recovered either on the information or at the instance of the accused. All these facts are sufficient to establish his guilt.

24. In regard to the question of the effect and the sufficiency of the circumstantial evidence for the purpose of conviction, We may observe that it is now well settled that before a conviction can be based solely on such evidence, it must be such as to be conclusive of the guilt of the accused and must be incapable of explanation on any hypothesis consistent with the innocence of the accused. That, however, does not mean that for the success of the prosecution case, resting on circumstantial evidence alone, the prosecution must meet every hypothesis, It is not necessary that every one of the proved facts must in itself be decisive of the complicity of the accused. It may be that a particular fact relied upon by the procecution may not be decisive in itself, yet that fact, along with other facts, which have been proved, may tend to strengthen the conclusion of the guilt. In other words, what the court has to judge is the total cumulative effect of all the proved facts each one of which reinforces the conclusion of guilt and if the combined effect of these is taken to be conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of those facts by itself is not decisive: vide State of Andhra Pradesh v. I. D. S. P. Rao : 1970CriLJ733 . Here we may also refer to an instructive passage appearing in R. v. Cooper (1969) 1 A. E. L. R. 32:

That means in cases of this kind the Court must in the end ask itself a suspective question, whether we are content to let the matter stand as it is or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.

Applying the above principle and having regard to all the facts and the circumstances of the case, our reaction produced by the general feel of the case is that it was the accused Chandmal, who, out of greed for ornaments of the deceased, committed the murder of Mst. Nazar Bai All the facts discussed above are sufficient to establish his guilt and we have no doubt that he has been rightly convicted.

25. We now switch over to the appeal filed on behalf of the other accused Ranglal, who has been convicted for an offence under Section 411, I.P.C., and sentenced to one year's rigorous imprisonment A large number of ornaments, e. g , 'Jhela Jodi' (Ex. 18), valvet (Ex. 19), 'Timnia' (Ex. 22), 'Churia' (Ex. 23) 'Long' (Ex. 28) etc. have been recovered either from his possession or from the possession of others, to whom he had transferred them by way of pledge or otherwise. P. W, 1 Shrilal has said that 'Jhela Jodi' (Ex. 18), made of gold, was pledged with him by Ranglal for Rs. 1200/-. Fateh Mohammed, P. W. 3, has testisfied that a case (Ex. 19) was recovered at the house of Ranglal in the course of its search. Ghisulal, P. W. 8, deposes that Ranglal sold 9 gold 'Churis' (Ex. 23) to him for Rs. 308/-. He further says that one 'Timnia' and one 'Langer' were pledged with him for Rs. 800/-. He has identified 'Timnia' (Ex. 32) before the court. Jagdish Chandra, P. W. 16, told the court that the Ranglal pledged with him 2 gold 'Balis' and 4 'Longs' (Ex.48 Kishan Das, P. W. 28, states that Ranglal's house was searched by the police in his presence. 'Itradani' (Ex. 20) and silver glass (Ex. 16) were recovered in the course of the search under memo Ex. P. 24 Similarly 'Churi' (Ex. 24) was also recovered in the search. All these ornaments were duly sealed. They have been identified by Satya Narain, P.W. 10, Shanker Lal, P.W.11, and Ratna, P. W. 14, in the course of the identification proceedings, conducted by Shri G. S. Dwivedi, P. W. 25, Additional District Magistrate, Chittorgarh, under memo Ex P. 45. No satitfactory explanation is forthcomming on behalf of the accused as to how he acquired possession over all these properties. The large number of witnesses examined by the prosecution, some of them are respectable bussinessmen, can not be considered to be false. In the circumstances of the case, as narrated above, presumption under illustration (a) to Section 114, Evidence Act, 1872, arises against the accused Ranglal and he has been rightly convicted under Section 411, I.P.C. The sentence of one year's rigorous imprisonment tilts towards leniency.

26. In the result, both these appeals, one filed by the accused Chand Mai and the other by the accused Ranglal, having no force, stand dismissed. Ranglal is on bail. The District Magistrate, Chittor, is directed to take necessary steps for the arrest of the accused and send him to jail to undergo the sentence awarded to him by the trial court.


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