S.S. Byas, J.
1. This is a jail appeal by accused Pratap alias Pratap Singh against the judgment of the learned Sessions Judge, Udaipur dated August 2, 1977 convicting the appellant under Sections 302 and 380, IPC and sentencing him to imprisonment for life under the first count and rigorous imprisonment for seven years with a fine of Rs. 300/-, in default of the payment of fine to further undergo three months' like imprisonment under the second count.
2. Put briefly, the prosecution case is that the deceased victim Smt Ghisi Bai aged about 35 years was living alone in her farm-house situate in her field known as Som Taloa in Mauja Chhotisar district Udaipur. The field was cultivated by PW 1 Limba. In the noon of 6-12-76 when Limba was ploughing the field, he saw Some cattle damaging the standing crop. He cried aloud to ask Mst. Ghisi Bai to come out but found no response. He went to her house and found the door open. He saw Ghisi Bai lying dead in the house with a pool of blood around her. Her feet were severed and the silver Karas, which she used to wear in her feet, were missing. He immediately informed her son Nahar Singh (PW 4), her husband's brother Kesar Singh (PW 3) and other relatives PW 2 Man Singh went to police station, Delwara and verbally lodged report Ex.P 1 there at about 8 00 P.M. on the same day. The police registered a case and proceeded with investigation The Station House Officer Shri Nisar Ahmed (PW 15) arrived at the field on 7-12-76, prepared the inquest report of the victim's dead body and the site plan. The post mortem examination of the victim's dead body was conducted by PW 16 Dr. Navratanmal on the spot at about 4.20 P.M. on 7-12-76. He found the following injuries:
(1) Both legs cut off at 3' above the ankle joint and lying away from the corpse.
(2) Cut wound on the right leg about 1' above the leg about 1 1/2 x 1/2 x muscle deep
(3) Cut wound on the right leg about 1/2' above the cut end of the leg about 1 1/2' x 1/2' skin deep
(4) Right hand compound, fractures of 1st, 2nd and 3rd meta-carple bones (5' x 2' x bone deep) cutting across the bones
(5) Left hand compound fractures of 4th & 5th metacarpal bones cutting across the bones and upto the wrist
(6) Left wrist hanging with the heep of skin small lap of flesh (rest all carpal bones hanging alongwith 1st, 2nd and 3rd metacarnal bones)
(7) Left side of the face cut upto the bones (deep from left no(sic)ctril to upper part of the left ear (wound about 7' x 2' x bone deep)
(8) Cut wound on the scalp vertically placed 1' above the left ear 2' x 1' muscle deep
(9) Cut wound all along the ramus of the left side of mandible (from midl ne to angle) 1 1/2 x 1' x bone deep
(10) Cut wound on the left side of the neck cutting the wind pipe on the left side at approximately trachel cartilage and blood vessels and other structures of the neck on that side about 6' x 4'.
The injuries were ante-mortem and the death was opined to have taken place between 24 to 48 hours before autopsy was performed. The doctor was of the opinion that the cause of death was syncope due to shock caused by haemorrhage and injuries to the blood vessels and trachea. Three persons Dhaniya, Hariya and the accused appellant Pratap Singh were arrested 12-12-76. In consequence of the information furnished by accused Dhanna, one Dhoti, one Chaddar and an axe were recovered on 16-12-76. In consequence of the information furnished by Hariya, one shirt one Dhoti and a pair of shoes were recovered on that very day. In consequence of the information furnished by accused-appellant Pratap Singh on 12-12-76, one sword with sheath and two silver Karas were recovered lying burried in her field situate not far away from the place of occurrence. One Dhoti and a pair of shoes were also recovered on 16-12-77 in consequence of the information furnished by him. The test identification of the silver Karas was conducted on 23-12-76 by the Munsif and Judicial Magistrate Shri M. C. Garg (PW 5). They were correctly identified as that of the deceased-victim by her son, daughter and other witnesses. The seized articles were sent for chemical examination and all of them were found stained with human blood. After when the investigation was over, the police filed a challan against the three accused viz. Dharma, Hariya and .Pratap Singh in the Court of Additional Munsif and Judicial Magistrate, Udaipur, who in his turn committed the case for trial of the Court of Sessions. The learned Sessions Judge framed charges under Sections 302, 302/34, 380 and 404, IPC against them. The accused pleaded not guilty and faced the trial. They claimed absolute innocence and alleged that they were falsely implicated. During trial, the prosecution examined 16 witnesses and filed some document. In defence, the accused-appellant examined four witnesses to show that on the day of the alleged murder of Smt Ghisi Bai, prior and subsequent to it he was at Udaipur. On the conclusion of trial, the learned Sessions Judge found incriminating evidence against accused Dhaniya and Hariya. They were, therefore, acquitted. The learned Sessions Judge found the prosecution case substantially true against the accused appellant. The evidence produced by him in defence was found worthy of no credence and was rejected. Accused-appellant Pratap Singh was consequently convicted and sentenced as mentioned at the very out-set.
3. We have heard the learned amicus curiae Shri in S. Singhvi and the learned Public Prosecutor. We have also gone through the case file carefully.
4. Before proceeding further we may notice that the prosecution has adduced the following sets of evidence against the accused-appellant:
(1) Recovery of Dhoti and sword in consequence of the information furnished by him whilst under police custody. On examination, human blood was found on both these articles and.
(2) Recovery of the Silver Karas Article 1, in consequence of the information furnished by the accused-appellant lying burried in his field.
5. Learned Sessions Judge found that the theft and murder of the victim constituted integral part of one and the same transaction. Since the accused-appellant was found in possession of the stolen silver ornaments only after 5 or 7 days of the occurrence, a strong presumption arose against him to show his complicity in the commission of the murder. The accused had furnished no explanation for his possession of the stolen Karas. It was therefore, taken that he was a participant in the commission of the murder of Mst. Ghisi Bai.
6. The first contention raised by the learned amicus curiae is that he evidence relating to the information and recovery of silver Karas was discrepant and worthy of no credence. The Karas Were found lying in an open field accessable to all and sundry. Since the field was not in the exclusive possession of the accused appellant, it Cannot be said that the Karas were in his possession.
7. Accused Pratapsingh was arrested on 12-12-76 vide arrest memo Ex. P 17. The Investigating Officer Shri Nisar Ahmed (PW 15) deposed that on 12-12-76 accused Pratapsingh gave him the information which he recorded in Ex. P 23. The information furnished was that he had burried the sword with sheath and the two silver Karas in his field and that he would get them recovered. This information is admissible in evidence under Section 27 of the Evidence Act. This information was recorded at about 4.00 PM. while the accused was arrested at 3.00 P.M. The investigating Officer further stated that after giving the disclosure statement the accused took him and the Motbirs to his field Mahurawala situate in Mauja Chhotisar. There he dug a pit nearly one Balist (7 or 8 inches) deep and took out a sword with its sheath and a pair of silver Karas (Article 1). He seized and sealed these articles separate in packets and prepared seizure memo Ex. P 20. PW 11 Manoharsingh is the Motbir witness of this recovery. He deposed that on 12-12-76, the Investigating Officer called him as a Motbir. The accused-appellant was then in Police custody He took him, the police and the other motbirs to his field Mahurawala. There the accused dug a pit nearly 7 or 8 inches deep and took out a pair of silver Karas (Article 1) and a sword with sheath. The Investigating Officer seized and sealed these articles in separate packets. Seizure memo Ex. P 20 was prepared then and there on which he appended his signatures At to B. The other Motbir Kishan Singh appended his signatures C to D on it. The speciman of the seal with which the packets were sealed was affixed on seizure memo Ex. P 20. Both these witnesses were cross examined at some length but nothing could be dieted from them which may make their testimony unworthy of belief or credence. It is true that field from which the silver Karas were recorded is an open place accessable to all and sundry but that is immaterial in view of the fact that the recovered articles were found lying concealed under the earth. They were not visible to any person till the place of their concealment was dug and they were taken out. No body else other than the accused knew about their existence & their existence burned in the field. In these circumstances, it will be presumed that the accused was in possession of the recovered articles The accused has given no explanation except denying to have given the information and to have made the recovery in consequence of it. He did not lay his any claim on these recovered articles. There is overwhelming evidence that the silver Karas (Art 1) belonged to the deceased-victim Smt. Ghisi Bai She used to wear them constantly and was wearing when she was done to death P. W. 1 Limba was the domestic servant of the victim. He deposed that he used to cultivate her fields and used to live there. Ghisi Bai used to wear silver Karas (Article 1). He correctly indentified them in the test identification conducted by M.J M. Shri Nemichand (PW 5). He a also identified silver Karas during trial. He further deposed that when he S o the house of Ghisi Bai and found her lying dead, he also found the silver Karas (Article 1) missing. PW 3 Kesarsingh is the real brother of he victim s husband. He deposed that silver Kara (Article 1) belonged to Ghisi Bai She used to wear them constantly & he correctly identified these Karas both in the test identification and during trial; PW 4 Naharsingh is the son of the deceased-victim He also deposed that his mother Ghisi Bai used in constantly wear silver Karas (Article 1). He correctly identified these Karas both in the test identification and during trial-PW 6 Smt. Rattan is the daughter of the victim. She also stated that silver Karas (Article 1) belonged to her mother Ghisibai. She used to constantly wear them. She has also correctly identified these Karas both in the test-identification and during trial. PW 5 Nemichand was Munsif Magistrate, Nathdwara. He deposed that on the request of police he conducted the test identification of silver Karas (Article 1) on 23-12-76. He received packet of silver Karas with seals intact. He mixed four pairs of similar silver Karas with the Karas Article 1. The prosecution witnesses Limba, Kesarsingh Naharsingh and Smt. Ratan correctly identified silver Karas Article 1. He prepared the identification memo Ex. 7.
8. All these witnesses were cross-examined on behalf of the accused-appellant but again nothing could be extracted from them which may make their testimony unworthy of belief or credence. The learned Judge of the trial Court accepted this recovery and on a careful scrunity of the relevant evidence, we find no good or convincing reasons to take a different view. It, therefore, stands established that the accused appellant was arrested at about 3.00 P.M. on 12-12-76, After his arrest he gave the disclosure statement recorded in Ex. P 23 at about 4.00 P.M. to the Investigation Officer Shri Nisar Ahmed (PM 15). In pursuance to this disclosure statement, the accused took the Investigating Officer and the Motbirs to his field Mahurawala. There he dug out a place and took out the silver. Karas (Article 1) lying burried underneath. These silver Karas were seized and sealed. They were correctly identified by as many as four witnesses as belonging to the deceased-victim. The accused was, thus, in possession of silver Karas Article 1.
9. It was next argued that the accused should not have been convicted under Section 302, IPC only on the basis of this recovery of silver Karas. It was argued that there was no other connecting evidence to link the accused with the commission of the murder of Ghisibai. Unless there is some more material, it would not be proper to convict the accused for the main offence only on the basis of this recovery. Reliance in support of the contention was placed on Hukam Singh v. The State of Rajasthan AIR 1977 SC 106 and Nagappa Dondiba Kalal v. The State of Karnataka : 1980CriLJ1270 .
10. In reply, the learned Public Prosecutor submitted that as the accused was found in possession silver Karas (Article 1) within a few days of the occurrence, a presumption arises against him that Ghisi Bai was put to death by him Reliance was placed on Section 114 of the Evidence Act and Kammo v. The State of Rajasthan (1983 Cr. LJ 694) and Earabhadruppa v. The State of Karnataka (1981 SC 416). We have taken the rival submissions into consideration.
11. Now, under illustration (a) of Section 114 of the Evidence Act, the preemption can be extended to a more aggravated offence, such as murder act. Where the possession of the stolen property could not have been transferred from the deceased to the accused except by murder. What presumption should be drawn depends on the facts and circumstances arising in a given case. No hard and fast rules can be formulated as to what type of presumption should be raised. The presumption of guilt from recent possession of property which had been removed from the person of the deceased at the time of murder is one of the facts and the court has a discretion to draw it or not. However, the courts are reluctant to draw from the mere fact of the production by the accused of the property of the deceased an inference that the accused committed the murder and have required the letting in of evidence to cannot the accused with the crime. If there is no other linking evidence except the recovery of the property of the deceased at the instance of the accused, generally no such presumption for graver offence is drawn. It would be proper to notice the authorities cited by the learned Public Prosecutor. In the case of Kammo (supra) the accused took the deceased victim with him. The victim was a woman. Her dead body was found in his field. The ornaments of the deceased victim were recovered in consequence of the information furnished by the accused. It was in these circumstances that a presumption was raised against the accused under Section 114 of the Evidence Act that he bad committed the murder of the deceased-victim. Here in the instant case, there is no other linking evidence as that was in Kammo's case. So also, in the of Earabhahadruppa (supra) the accused was a domestic servant of the victim. He slept in the same house where the victim was sleeping. Next day when the victim was found murdered the accused was missing. He remained missing nearly for one year. In these circumstances, it was held that production of the ornaments of the deceased by the accused raided a presumption against him that he had committed the murder of the victim. Here again this linking evidence is completely missing.
12. The learned Public Prosecutor could not bring any authority to our notice in which the accused has been connected with the murder only on the basis of the recovery of the property of the deceased-victim in consequence of the information given by him.
13. We will next address ourselves to the authorities relied upon by the learned amicus curiae. In Hukamsingh's case (supra) four murders were committed in night between 19th and 20th October, 1967. Accused Hukam Singh was arrested on 22-10-87. The ornaments of the deceased persons were recovered in consequence of the information furnished by the accused on 22-10-67. The accused was convicted for the offence of murder solely on the basis of this recovery of ornaments in pursuance to his disclosure statement by our High Court. The accused went in appeal. Their Lordships of the Supreme Court set-aside the conviction of the accused under Section 302 IPC and refused to maintain his conviction solely on the basis of the recovery' We are lured to borrow the following passage from the judgment of their Lordships:
So far as the 'Kesla' containing ornaments and other articles belonging to Surjan Singh is concerned, it is no doubt true that it was recovered at the instance of the appellant and therefore there can be no doubt that the appellant was found in possession of stolen property soon after the incident and this circumstance clearly justified the conviction of the appellant for the offence of theft punishable under Section 380. But the question is how far it could have any evidentiary weight for connecting the appellant with the gruesome and ghastly murders which took place in the hutment? Obviously, something more would be required to connect the appellant with the murders than mere possession of ornaments and other articles belonging to Surjansingh, because it is quite possible that the appellant may have had nothing to do with the murders and he might have merely stolen the ornaments and other articles belonging to Surjansingh after the murders were committed by some others. The prosecution, however, relied on the presence of stains of human blood on the 'Kesla' containing the ornaments and other articles. But the presence of bloodstains on the 'Kesla' cannot carry the matter any further because if the theft was committed by the appellant after the crime of four murders had been committed by some others, it is possible that the 'Kesla' might receive stains of human blood either by reason of the blood of the victim splashing on the 'Kesla', which might be lying out side in the small hutment or by reason of the 'Kesla' coming into contact with the blood of the victims while being filled With ornaments and other articles or being taken out of the hutment in a hurry. The presence of blood stains on the 'Kesla' is not circumstance which is incompatible with the innocence of the appellant in so far as the offence of quadruple murders is concerned
The accused was convicted under Section 380.
14 In the case of Nagappa Dondiba Kalal (supra), the only evidence against the accused was the recovery of ornaments of the deceased at his instance and in consequence of his disclosure statement, he was convicted, by the trial court and his conviction was maintained in appeal by the High Court. The matter reached the Supreme Court and their Lordship set-aside the conviction. It was observed by their Lordship:
Taking however, the evidence as it stands, there is nothing to connect the appellant with the murder of the deceased or even with any assault the accused may have committed on the deceased or having a robbed her of her ornaments At the most, as the ornaments have been proved to be stolen property received by the appellant, knowing that they were stolen property, the accused can, thus, be convicted on the basis of presumption under Section 114 of the Evidence Act and under Section 411 of the Penal Code as a receiver of the stolen property knowing the same to be stolen.
15. In the instant case in hand, there is no evidence except the recovery of the silver Karas in pursuance to the disclosure statement of the accused-appellant, to connect him was the murder of Ghisi Bai. Had there been any other linking evidence, we would have readily drawn a presumption of the graver offence of murder against the accused under Section 114 of the Evidence Act. But as stated above, any other sort of linking or connecting evidence is completely missing. It would, therefore, be not free from risk in raising the presumption of graver offence of murder against the accused.
16. The silver Karas (Article 1) were in the house of the deceased-victim. She might have been wearing them at the time of her murder. The accused was found in possession of the silver Karas just after seven days of the occurrence. A presumption can, therefore be legitimately raised against him that he had committed the theft of the silver Karas (Article 1) from the victim's house. He can, therefore, be safely convicted under Section 380 IPC. It may be mentioned that the accused was, also, convicted under this section by the trial Court. The conviction of the accused under Section 302, IPC is solely on the basis of the recovery of the silver Karas (Article 1) in pursuance to his disclosure statement made under Section 27 of the Evidence Act, cannot be maintained.
17. The learned Session Judge was of the view and in our opinion rightly so that recovery of Dhoti, shoes and sword at the instance of the accused-appellant furnishes no incriminating evidence against him. Since the recovery of these articles does not connect the accused with the commission of the murder, we need not detain ourselves on it.
18. In the result, we partly allow the appeal of accused Pratapa alias Pratapsingh. His conviction and sentence under Section 302, IPC are set-aside and he is acquitted thereof. However, his conviction and sentence under Section 380, IPC are maintained.