C.M. Lodha, J.
1. The prisoner Poonam Singh has been convicted by the Sessions Judge, Jodhpur under Section 302 I.P.C. for committing the murder of Smt. Hansa Devi, and has been sentenced to death. He has also been convicted under Section 392 I.P.C., and sentenced to undergo rigorous imprisonment for 10 years. The prisoner has filed appeal from his convictions and sentences through Jail and the learned Sessions Judge has made reference to this Court for confirmation of the sentence of death under Section 374. Criminal P.C.
2. The prosecution case is that the deceased Smt. Hansa Devi was a mid wife in the Residency Dispensary, situated in Jodhpur. She used to live inside the old City. Residency Dispensary is situate on the outskirts of the city of Jodhpur, and, therefore, she took a room on rent in the house of one Rao Raja Bheru Singh, which is situate at a short distance from the dispensary It is said that quite often she used to take rest after working hours in that room and sometimes she even used to stay there at night. It further appears that she was a woman of substance and used to keep a number of ornaments on her person all the twenty four hours. We have it in evidence that she also used to do money lending. On 24-11-1970 at about 12 in the noon the accused Poonam Singh who was also living in Bherusingh's bungalow came to see the deceased Smt. Hansa Devi in the dispensary, and asked her to advance a loan to him in the presence of P.W. 4 Rama, Farrash of the dispensary. Smt. Hansa Devi did not give any reply but after some time she gave Rs 2/- to Rama to bring tea. The accused noticed at that time that Smt. Hansa Devi was carrying a number of currency notes with her. After Smt. Hansa Devi & others sitting with her had taken the tea, Smt. Hansa Devi left the dispensary in the company of the accused Poonam Singh and both of them were seen going towards the golf-course which is situated towards the south of Dispensary. Smt. Hansa Devi was not seen thereafter, but her dead body was found lying under a Babul tree in the golf-course by P.W. 3 Rasila Ram, a cook in the Indian Air Force Department at Jodhpur, who happened to go that side that very evening to answer the call of nature. Rasila Ram informed the Police Corporal Rao of this fact and Rao sent a telephonic message at Police Station, Sardarpura. On recovering the information on telephone Mohammad Hashim, Sub Inspector, Police Station. Sardarpura got it reduced to writing in the daily diary of the Police Station by Shri Gajraj Singh, Head Constable. A copy of this writing has been placed on the record had marked Ex. P. 30. PW 18 Mohammed Hashim went to the place where the dead body was lying, but since darkness had set in, he could not make any investigation at the site and deputed police constable to guard the dead body On his return to the police station he informed PW 22 Devi Lal, Station House Officer, of the crime. Devilal reached the place of occurrence on the next day and found multiple injuries on the dead body. He also found a knife, a big place of stone weighing about 2 kgrms., a broken pair of glasses, a pair of 'Chappals', a gold 'Toti', an eight anna coin, and a handkerchief stained with blood lying near the dead body. All these articles were recovered vide Panchnama Ex. P. 3. At the time the Station House Officer, was carrying on investigation at the site, P W 4 Rama Farrash also happened to come there and he identified the dead body to be of Smt. Hansa Devi. After having got some clue at the site regarding the perpetrator of the crime Devilal proceeded to Rao Raja Bherusingh's Bungalow in search of Poonam Singh accused, but did not find Poonam Singh there However, be searched a small room in that bungalow which was said to be in the joint occupation of the accused Poonam Singh and Jethu (PW 17) and recovered from there a Khakhi pant and a shirt of Khakhi colour lying underneath a box having stains of blood over them, as they were suspected to be of Poonamsingh. The seizure memo of the said clothes is Ex P. 4. Thereafter he returned to the Police Station and registered a case under Section 302 I P.C. He also deputed P.W. 15 Kistoor Ram, Head Constable to apprehend the accused. Having received information to the effect that the accused had fled away to Poona. Kistoor Ram also left for Poona, and found the accused Poonamsingh there sitting in a hotel known as Samadan Guest House Hotel, and arrested him on 28-11-1970. On his personal search a sum of Rs. 310.80 paisa and two wrist watches, one on his hand and the other in his pocket were recovered Kistoor Ram took possession of these articles (vide recovery memo Ex. P. 29). It was further noticed at the time of arresting the accused that he had injuries on the thumb and the middle finger of his left hand. The accused was brought to Jodhpur & produced before Devilal, station House Officer on 30-11-70. While in Police custody, the accused gave information to Devilal that he had sold away three gold bangles & one gold chain to one Goldsmith P.W. 9 Chhotmal residing in Sardarpura and that he was ready and willing to get same recovered This information was reduced to writing and is marked Ex. P. 35.The Station House Officer then recovered the three gold bangles from Chhotmal but could not recover the gold chain as the same had been melted by Chhotmal, who, however, produced a piece of gold bar which he had prepared out of it. The three gold bangles are Articles Ex. 16 and the piece of gold bar is Article Ex. 29. The recovery memo is Ex. P. 6
3. Thereafter on 1-12-1970 the accused informed the Station House Officer Devilal that he had handed over four gold bangles and one 'toti' to one Smt. Geeta Devi at Poona, and that he was prepared to get them recovered. The Station House Officer reduced the above information to writing and the same is marked Ex, P. 36. He then deputed Assistant Sub Inspector Shri Narayan Singh (PW19) to recover the aforesaid articles. Narayan Singh went to Poona and recovered four gold bangles (Patla type) from Geeta Devi and her husband PW 2 Anant Ram. The recovery memo of these articles is Ex. P. 1. The four gold bangles are collectively marked Article Ex. 1 and the gold 'Toti' as Article Ex. 2. Besides these articles Narayan Singh also recovered a bag from the house of Anant Ram as the bag was stated to belong to the accused. The bag contained several articles therein out of which mention may be made of a gold chain, two ear-tops of gold, a gold ring, two silver 'chharas' a woollen pant, a plastic purse, a railway ticket Ex. Poona to Jodhpur, a diary, and a receipt of purchase of ornaments from Balchand Nihalchand. The Assistant sub-Inspector Narayan Singh then reached the shop of Nihalchand at Poona and obtained a copy of the counter foil of the receipt of ornaments stated to have been sold by Nihalchand to Anantram and Geeta Devi at the instance of Poonam Singh. All the articles recovered by Narayan Singh were produced by him before Devi Lal, Station House Officer, in a sealed condition and were sent for chemical analysis in due course. The reports of the Chemical Examiner and the Serologist are Ex. P. 37 and Ex. P 38 respectively. Mean while Narayansingh, Sub Inspector of Police, Sardarpura who had proceeded on leave joined duty and the investigation was handed over to him by Devilal. PW 19 Narayan Singh, Sub Inspector produced the four gold bangles, a gold 'toti', and a west-end wrist watch in a sealed condition before Shri K.K. Grover, (PW 21) Magistrate (under training), Jodhpur, who held identification parade wherein Shivlal son of the deceased correctly identified the said articles to be of his mother Smt. Hansa Devi. Thus after collecting the aforesaid evidence, the Police prosecuted the accused in the Court of Additional Munsiff-Magistrate No. 2, Jodhpur City. The learned Magistrate after holding enquiry committed the accused to the Court of Sessions Judge, Jodhpur to stand trial for the offences Under Section 302 & 394 IPC.
4. In the course of trial the prosecution examined 22 witnesses. The accused denied having committed any offence but did not produce any evidence in defence.
5. There is undoubtedly no direct evidence of the crime. The decision of the case therefore must depend exclusively on the circumstantial evidence We need point hardly out that in order to base conviction on circumstantial evidence the same must be conclusive and must point unmistakably to the guilt of the accused and should not be explicable on any other hypothesis except that the accused is guilty of the offence of which he has been charged. We would, therefore, now deal with the various circumstances proved on the record and re lied upon by the learned Sessions Judge in support of the conclusion that the charges of murder & robbery are established against the accused beyond reasonable doubt.
6. The first circumstance proved by the prosecution is that on the day of occurrence at about 12 noon the accused visited the dispensary and after a short stay with the deceased was found going in the company of the deceased towards the Golf-course. On this point we have the evidence of P W D. 4 Rama Farrash, who has stated that Poonam Singh accused requested Smt. Hansa Devi in his presence to advance a loan to him & that Mst. Hansa Devi gave him Rs. 2/- for bringing tea from a tea-stall nearby. At that time she took out a bundle of notes from her blouse. He has also stated that at that time Smt. Hansa devi was putting on a number of gold ornaments, namely, a gold chain on her neck, four bangles of gold on each of her hands, gold 'toties' in both of ears, and also a wrist watch Ex. 2, Churies of gold Ex. 16 and wrist watch Ex. 17 as articles which were on the person of the deceased at the time when she was seen leaving the dispensary towards golf-course. He further states that thereafter Smt. Hansa Devi did not return to the dispensary in the evening and he reported her absence to the Medical Officer, who told him that she might have fallen ill. He has also stated that on 25-11-1970 a police constable called him to the golf course where the dead body of Smt. Hansa Devi was lying beneath a 'Babul' tree and there were no ornaments on the dead body and so also the wrist watch was missing. It is further clear from the statement of PW 5 Devilal son of the deceased Smt. Hansa Devi that Smt Hansa Devi left her house at 6.30 a. m. on 24 11-1970 and had taken about Rs. 1400/- to Rs. 1500/- with her to lend out to the accused Poonam Singh and Shila Kumari grand-daughter of Rao Raja Bheru Singh. He has further stated that at that time she was putting on the aforesaid ornaments and the watch. He has also stated that in the evening of 24-11-1970 his mother did not return to their house and he waited for her even at the night & then thought that she might have stayed at night in the room rented by her in Rao Raja Bherusingh's bungalow. The witness goes on to state that on the next day at 7 or 7.30 a. m. when he went to the dispensary he was informed that his mother had not come back in the evening on 24-11-1970 He was also informed soon after that a dead body of a female was laying in the golf-course, and when he went to the spot he found that the dead body was of his mother. Thus it is clearly established on the record that the deceased and the accused were has been together while going from the dispensary towards the golf-course where last seen body of the deceased was found in the evening We have no reason to doubt the correctness of the testimony of PW 4 Rama & PW 5 Shivlal in this connection.
7. The next circumstance established on the record is that the accused sold one gold chain and three gold 'churies' belonging to Smt. Hansa Devi deceased to PW 9 Chhotmal, a gold-smith residing in Sardarpura on the same day i.e. 24-11 1970 As already stated that accused was arrested on 28 11-70 and he gave information to the Station House Officer, Devilal on 30-11 1970 (marked Ex. 35) in consequence of which the three gold bangles Ex. 16 and a piece of gold bullion Ex. 29 were recovered from Chhotmal at the instance of the accused, Chhotmal hat stated that he had melted the gold chain and prepared a piece of gold bar cut of it. The identity of gold bangles is established by the evidence of PW 4 Rama and PW 5 Shiv Lal. Chhotmal has further stated that the accused represented him at the time of selling the gold bangles and the gold chain that the said ornaments belonged to Rani Sahiba, who had sent him to dispose of these ornaments and thereupon Chhotmal gave Rs. 1500/- to the accused and told him that the account would be settled the next day in the presence of Rani Sahiba. It is true that Chhotmal did not make any entry in his account books but the explanation given by Chhotmal in his connection is that the price was to be finally settled by Rani Sahiba. On the basis of the statements of Rama and Shiv Lal we are convinced that these ornaments belonged to Smt. Hansa Devi and were worn by her at the time she left the Dispensary. We have also no reason to doubt the testimony of Chhotmal. The accused had denied this recovery altogether. At this stage we may also refer to the statement of PW 13 Shila Kumari who has stated in unequivocal terms that she had never sent any ornaments with the accused for disposal. Her evidence therefore clearly goes to show that the accused made a false representation to Chhotmal that the ornaments belonged to Shila Kumari who had sent them with him for disposal. Thus the prosecution has succeeded in establishing that on the day of occurrence the accused came into possession of the ornaments with the deceased was wearing when she was last seen that he disposed them of by making a false representation to the goldsmith Chhotmal.
8. We may now advert to another recovery of four gold bangles and one gold 'toti' with chain from PW 2 Anant Ram at Poona. The information Ex. P. 36 dated 1-12-1970 given by the accused in this connection while he was in the police custody has been proved by Shri Devi Lal, Station House Officer We have further the statements of PW 1 Shivlal Singh and PW 14 Sada Shiv, Motbirs, besides the statements of PW 2 Anant Ram and PW 19 Narainsingh, A.S.L., Sardarpura to prove this recovery. We are in complete agreement with the learned Judge that both the identity as well as the recovery of these ornaments has been proved beyond all manner of reasonable doubt.
9. We may now refer to another important recovery of Poona and that is of the bar Ex. 8, which was found on the search of Anantram's house by Narayan Singh, A.S.I. The recovery memo is Ex. P. 2 and the recovery is proved by the statements of PW 19 Narayan Singh and two Motbirs PW 1 Shiv Lal and PW 14 Sada Shiv. This bag as already stated above contained a number of articles the noteable among which are a gold chain, two ear tops of gold, a gold ring, 2 chharas of silver, a woollen blanket, half woollen pant, a plastic purse, a railway ticket of Poona to Jodhpur, a receipt of gold ornaments and a diary. It is proved by the evidence of Shiv Lal that the gold chain and gold ear tops belonged to his mother. It is further proved by the evidence of Anant Ram that these articles had been brought to Poona in the bag by the accused. It further appears that the accused went with Anant Ram and Geeta Devi to the shop of Sirehmal (PW 10) at Poona where he does 'sarafa' business in gold and silver in the name and style M/s Balchand Nihal chand. He has identified the accused Poonamsingh and stated that on 26-11-1970 at about 6 or 7 p. m. Poonam Singh accompanied by a man and a woman came to his shop and purchased a gold chain and a gold ring from him for which he was paid Rs. 266/- by the accused and in lieu of which he had passed the receipt, the counter-foil of which is Ex. P 22. He has also identified the gold chain Ex. 9, and the gold ring, Ex. 11. He further stated that the accused Poonam Singh visited his shop again on 27-11-1970 and gave him Rs. 100/- in advance for preparing gold ear-tops for which he passed a receipt to Poonam Singh and the counter foil of the same is Ex. P 23. The witness states that he gave the ear tops to Geeta Devi on 4-12-1970 Thus from the evidence of Anant Ram, Shiv Lal Singh and Sirehmal it has been fully established, as held by the learned Sessions Judge, that Poonam Singh was present in Poona on 26-11-1970 that is on the third day of the alleged murder and that he gave four gold bangles and one gold 'Toti' with gold chain to Anant Ram and also made some purchases of gold ornaments at Poona. It may be pointed out here that the articles alleged to be belonging to and put on by Smt. Hansa Devi at the time when she was last seen were also identified by Shiv Lal and Rama during the identification parade held by Shri K.K. Grover, Magistrate. It is important to note that the accused has not claimed these ornaments. Not only that, he has even denied the factum of recovery of these articles in consequences of the information supplied by him. But we are firmly of the opinion that the recoveries are genuine & have been in consequence of the information supplied by the accused & also at his instance
10. The next important recovery of the bloodstained clothes alleged to be of the accused from Jethia's Kothari on 25-11-1970 by the Station House Officer Devilal. These were pant Ex. 18 and Shirt Ex. 19. That these clothes belonged to the accused and were worn by him is proved by the testimony of PW 17 Jethu, and PW 4 Rama. The two Motbirs PW 6 Ahmed Khan and PW 7 Shanker Lal have proved this recovery. The recovery memo is Ex. P. 4 and the Chemical Analyst's report Ex. P. 37 and the Serologist's report Ex. P. 38 further go to show that the pant as well as the shirt were stained with human blood This is another strong circumstance against the accused.
11. We may here refer to another recovery made on the personal search of the accused at Poona in the Hotel at the time when he was arrested by Kistoor Ram and that is of the watch Ex. 17 from the pocket of his shirt. This recovery is proved by the statements of Sada Shiv and Kastoor Ram (vide recovery memo cum arrest memo Ex. P. 29). This watch was identified by PW Shivlal in the identification parade, as well as in the Court & it is stated that Smt. Hansadevi had this watch on her wrist when she went to the dispensary on that fateful day.
12. The last but not the least, is the circumstance that when the accused was arrested at Poona he was found to have injuries on his middle finger and the thumb of the left hand. Kistoor Ram was given clear evidence to that effect. The evidence of Kistoor Ram is further corroborated by PW 2 Anant Ram and PW 12 Dr. Shri Kishan Pathak. On being asked by Anant Ram about the injuries, the accused replied that he had sustained them while closing the door of railway compartment. The Doctor has opined that these injuries could be caused if a person inflicted blows with a stone to his victim who was resisting the on slaught. However, the accused had denied the existence of the injuries on his hand altogether, but we see no substance in this denial
13. The circumstances narrated above are explicable on the hypothesis alone and it is this that the accused wanted to rob the deceased of her ornaments and money which she was carrying on her person and motivated by that greed he took advantage of the situation when he was going alone in her company. In order to achieve that nephritic object he put an end to the life of Smt. Hansa Devi and made good his escape after pocketing all the ornaments and the money which Smt. Hansa Devi had with her. It appears to us that the murder and the theft were a part of one and the same transaction. In the circumstances of the present case it would not be unjust or improper to infer from the recent and unaccounted possession of the stolen property by the accused and the recovery of his blood stained clothes together with the fact that he had injuries on hand, that he was both a thief as well as a murderer. If any authority is needed on the point reference may be made to K.K. Jadav v. State of Gujarat : 1966CriLJ605 , Wasim Khan v. State of Uttar Pradesh : 1956CriLJ790 , and The State v. Mohan Lal 1LR 7 Raj. 944. The law appears to us to be so well settled that we do not consider it necessary to analyse these authorities. We have, therefore, no difficulty in agreeing with the learned Sessions Judge that the prosecution has established the case against the accused under Section 302 as well as under Section 392 I.P.C. beyond reasonable doubt and he has been rightly convicted under these sections.
14. Now coming to the question of sentence, the sentence of 10 years' rigorous imprisonment under Section 392 I.P.C. presents no difficulty and we uphold the same.
15. As regards the sentence of death awarded under Section 302 I.P.C., Mr. Manchharam Purohit, Amicus Curiae has urged that the murder is not a premeditated one and it was due to a sudden impulse that taking advantage of the situation out of sheer greed of acquiring a considerable wealth by no effort the accused who is almost a pauper, fell prey to the baser nature in him and committed the crime and therefore lesser sentence of life imprisonment would meet the ends of justice. On the other hand, Mr. Mohanani learned Counsel for the State has urged that there are no extenuating circumstances in the case and the learned Sessions Judge has rightly and properly exercised the discretion in awarding the extreme penalty of law to the accused.
16. The question as to the propriety of imposing the capital sentence after coming into force of the amended Section 367(5) Cr. P.C. was considered by a Full Bench of the Bombay High Court in The State v. Vali Mohammed (FB) : AIR1969Bom294 . After referring to a number of cases on the point, the learned Judges returned the following answer:
After the amendment of Sub-section (5) of Section 367, Cr. P.C. by Act 26 of 1955 by omitting old Sub-section (5), it is not correct to held that normal penalty for an offence under Section 302 of the Penal Code is a sentence of death or that the lesser penalty of imprisonment of life cannot be awarded in the absence of extenuating circumstances, where reduce the gravity of the offence. The matter is, after the amendment, left to the discretion of the court. The court must however, take into account all the circumstances and state its reasons for whichever of the two sentences at imposes in its discretion.
We respectfully agree to the above observations,
17. In the present case the learned Sessions Judge has given the following reasons for awarding the capital sentence:
1. Ordinarily death sentence is imposed upon the murderer unless the Court trying him considers it proper to award the lesser punishment.
2. The accused deliberately committed the murder of Smt. Hansa Devi out of greed of property.
3. It was a premeditated cold blooded and brutal murder of an unarmed helpless woman.
18. We may at once point out that the proposition laid down by the learned Sessions Judge that ordinarily death sentence is imposed in a murder case is not correct after amendment of Section 367(5) Cr. P. C With regard to third reason, we do not agree with the learned Sessions Judge that the murder was a premeditated one though it was brutal. It is correct that the accused committed the murder our of greed for property. But we cannot say that it was a premeditated one. The knife which was recovered on the spot is an ordinary table knife. It appears to us that when the accused came to the dispensary to see Smt. Hansa Devi he had no intention to murder her but when he left the dispensary in the exclusive company of Smt. Hansa Devi & found a suitable opportunity for committing the heinous act with a view to rob the ornaments, and the money which Smt. Hansa Devi was carrying on her person, he suddenly succumbed to the temptation and murdered her. In these circumstances we are of opinion that the ends of justice would be met by awarding the lesser penalty Under Section 302 I.P.C.
19. Accordingly we reject the reference and substitute the sentence of rigorous imprisonment for life for the sentence of death. To this extent the appeal filed by the accused is also partially allowed. The conviction and sentence under Section 392 I.P.C. are maintained. The conviction under Section 302 I.P.C. is also maintained but the sentence of death is reduced to one of rigorous imprisonment for life.
20. Mr. Girdhari Lal Vyas, learned Counsel for the complainant Shiv Lal son of Smt. Hansa Devi submits that the learned Sessions Judge should have directed the restoration of the two gold ear tops Ex. 10, a gold ring Ex. 11.2 Chharas of silver Ex. 2, and a gold chain Ex. 9 to the heirs of the deceased Smt. Hansa Devi and these articles should not have been confiscated to the State as they are proved to have been purchased by the sale proceeds of the ornaments and the cash which the accused had removed from the body of the deceased Smt. Hansa Devi. This submission appears to be proper and neither the learned Counsel for the State nor the counsel for the accused has resisted this prayer Consequently, we hereby direct that the aforesaid ornaments shall also be returned to the heirs of the deceased.