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Gopal Singh Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal (Jail) Appeal No. 11 of 1975
Judge
Reported in1984WLN372
AppellantGopal Singh
RespondentState of Rajasthan
DispositionAppeal dismissed
Excerpt:
criminal trial - recovery of keys--not certain that keys belonged to almirah of accused--held, recovery of keys cannot be taken into consideration.;on the basis of the evidence on record it cannot be said with certainly that the keys which were recovered belonged to the almirah of the deceased in the office. in our opinion, therefore, the aforesaid circumstance regarding the recovery of the keys cannot be taken into consideration as an incriminating circumstance.;(b) penal code - sections 302 & 380--circumstantial evidence--murder committed in office premises where deceased slept in night with rs. 10,000/- undisbursed amount--currency notes, chappals & blood stained pant recovered on information given by deceased--injuries caused by iron-angle--bed sheet & pant recovered found.....s.c. agarwal, j.1. gopal singh has filed this appeal against his conviction for the offences under sections 302 and 380, ipc and the sentence imposed on him for the said offences on him by the learned session; judge, aimer by her judgment dated 21st november, 1974, in sessions case no. 18 of 1974.2. in the sessions case aforesaid, the appellant and one bhag chand were prosecuted in connection with the murder of one r. p. pillai. the accused-appellant was tried for the offences under sections 302, 380 and 201, ipc and, bhag chand was tried for offences under sections 302 and 201, ipc. the learned sessions judge acquitted accused bhag chand of all the offences and acquitted the appellant of the offence under section 201, ipc, but convicted him of the offences under section 302 and 380, ipc......
Judgment:

S.C. Agarwal, J.

1. Gopal Singh has filed this appeal against his conviction for the offences under Sections 302 and 380, IPC and the sentence imposed on him for the said offences on him by the learned Session; Judge, Aimer by her judgment dated 21st November, 1974, in Sessions Case No. 18 of 1974.

2. In the Sessions Case aforesaid, the appellant and one Bhag Chand were prosecuted in connection with the murder of one R. P. Pillai. The accused-appellant was tried for the offences under Sections 302, 380 and 201, IPC and, Bhag Chand was tried for offences under Sections 302 and 201, IPC. The learned Sessions Judge acquitted accused Bhag Chand of all the offences and acquitted the appellant of the offence under Section 201, IPC, but convicted him of the offences under Section 302 and 380, IPC. 'The appellant has been sentenced to imprisonment for life under Section 302, IPC and to two year's rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to six month's rigorous imprisonment under Section 302 IPO.

3. The case of the Prosecution, in brief, is that deceased R. P. Pillai was serving as an overseer in the Districi Soil Conservation Office, Ajmer and was incharge of the famine relief work at Beawar. The appellant was employed as a Chain-man in the said office at Ajmer. On the night intervening 15th and 16th October, 1973 he was entrusted with the night duly as Chowkidar and he had slept in the office on the night. The deceased had also been sleeping in the office for the past 15 days prior to the date of the incident, and on the night intervening 15th and 16th October, 1973 he also was sleeping in the office. On 11th October, 1973, a sum of Rs. 10,000/- had been advanced to the decessed for payment to the work-charged labourers at the famine relief work, and out of the said amount the deceased had given Rs 500/- to his brother, K.C. Rajan (P(sic)V 5), and the balance amount was placed by him in the almirah in his room in the office. On the morning of 11th October, 1973, at about 6 a.m., Kumari Sushila (PW 2) noticed a dead body lying in the compound of the house of Dr. Suraj Narain on seeing the dead body telephonically informed the police station, Civil Lines, Ajmer about the dead body lying in the compound of his house. On the basis of the said telephonic information Shri Girdhari Lal Chandela (PW 12) SHO Police Station, Civil Lines, Ajmer recorded the FIR (Ex. P. 17) on October 17, 1973 at 6, 15 a.m. and a case under Section 302. IPC was registered. The investigation of the case was handed over to Inspector Sheru Singh (PW 16), who arrived at the spot and prepared the Panchnama (Ex. P. 37) and site-plan (Ex. P. 38) and also seized the blood stained earth from near the dead body vide memo Ex. P. 33. The dead body was indentified as being that of deceased R. K. Pillai by Raghunath Singh (PW 3) and Sukhdev Prasad (PW 8), and memo of identification of the dead body Ex P. 2, was prepared on 17th October, 1973. The autopsy on the dead body was conducted by Dr. B.P. Gupta (PW 17), Medical Jurist, J. L. Hospital, Ajmer on 17th October, 1973 at 1.15 p.m. and he prepared the post-mortem report Ex. P. 48. On post-mortem examination Dr. Gupta found four lacerated wounds and five to six linear abrasions on the person of the deceased. Lacerated wound were on the right side of fore head near the right nostril, on both lips, on the middle of the forehead and near the left eye brow. On opening the scalp, Dr. Gupta found that there was a pap of bone involving both frontal bone in the area of 3' x 2-1/2' placed longitudinally near almost all the four wounds, brain material was coming out of the gap and there was fracture of anterior carnial fossa on left side. According to the opinion of the Medical Officer, the death was caused by shock and haemorrhage produced by the direct injury to brain.

4. On October 20, 1973, the Investigating Officer seized the Advance Register, (Ex. P/1) from the office vide seizure memo Ex. P/7. On 21st October, 1973. he inspected the District Soil Conservation Office, Ajmer, and during the course of inspecting he found blood on the one of the stairs of the stair case of the office, and he recovered the same vide, memo Ex. P/9- He also found blood on the water tank of the bath-room on the roof, and the same was recovered vide memo Ex P. 32. Blood was also found on the compound wall of the office and the same was recovered vide memo Ex. P/8. A bedding stained with blood was found in the stairs and the same was seized vide memo Ex. P/34. In the latrine he found coconut coir which was slightly wet, and the same was seized vide memo Ex. P/10. He also seized a bed-sheet in the room of the rest house vide memo Ex- P/35. The appellant was arrested on October 21, 1973 vide memo Ex. P/39. After arrest, the appellant gave information on October 21, 1973 vide memo Ex. P/40 about his having concealed the currency notes in the ventilator of his house and on the basis of the said information currency notes of the value of Rs.8, 870/- were recovered from the ventilator in the house of the appellant in Mali Mohalla on October 21, 1973, vide memo Ex. P/15. On the 22nd October, 1973, the appellant also gave information vide memo Ex. P/41, about his having concealed an iron angle (hold fast), Chappal and keys in the office. On the basis of the said information three keys were recovered from the water closet in the office vide memo Ex. P/6, a pair of Chappals Ex 4 and 5 were recovered from the compound of the office vide memo Ex. P/5 and iron angle (hold fast) Ex. 9 was recovered from the compound of the office vide memo Ex. P/11. On October 23, 1973, the appellant gave information vide memo Ex. P/42 about having burried a bed-sheet, a blue pant and Khaki pant in jute bag near the well in the bungalow of Shri Jhala, and on the basis of the said information a gunny bag was recovered from the house of Shri Jhala and it contained a bed-sheet, two pants and two bricks which were seized vide memo Ex. P/14. On October 25, 1973, the appellant gave information vide memo Ex. P/45 with regard to the pant and bush-shirt and on the basis of the said information a pant which was worn by the appellant and was stained with blood was recovered vide memo Ex. P/13 and bush-shirt was recovered from the house of the appellant vide memo Ex P/18. Accused Bhagchand was arrested on 23rd October, 1973, and on the basis of the information given by him certain articles were recovered. Clothes found on the persons of the deceased, the sample of the earth stained with blood which was seized from the office, the angle iron, the two pants, the bed sheet and the two bricks which were recovered in the gunny bag from the house of Shri Jhala, the pant seized from the poison of the appellant as well as the articles recoverded at the instance of the accused, Bhagchand, were sent for chemical Examiner to the Government of Rajasthan, and the report, Ex. P/46, of the Chemical Examiner was that they were all positive for blood. The said articles were all also sent to the Serologist and the report Ex. P/47 of the 'Serologist was that ail the articles except small pieces of lime plaster and scrapings from two bricks were stained with human blood and with regard to the small pieces of lime plaster, it was stated in the said report that the blood stains on the said articles were disintegrated and their origin could not be determined. After completing the investigation the police submitted a charge-sheet against both the accused persons and they were committed for trial to the Court of Sessions. The learned Sessions Judge framed the charges for the offences referred to above. The accused pleaded not guilty and claimed to be tried.

5. The prosecution, in support of its case, examined 17 witnesses. There is no direct evidence to connect the accused with the crime. The pro-locution has relied upon circumstantial evidence in order to establish the complicity of the appellant with the crime. The prosecution has adduced evidence to show that appellant and the deceased were sleeping in the office on the night intervening 15th and 16th October, 1973, that on 11th October, 1973, a sum of Rs. 10,000/- had been advanced to the deceased and out of the said sum he had paid a sum of Rs. 500/- to his brother Shri K.C. Rajan and the balance amount was kept by him in the almirah in his room in the office; a sum of Rs. 8,870/- was recovered at the instance of the appellant from his house: pants; chappals and keys of the almirah of the deceased were recovered on the basis of information given by the appellant; the pant which was worn by the appellant was satained with human blood; and the angle iron (hold fast) stained with human blood was recovered at the instance of the appellant.

6. The appellant, in his statement recorded under Section 313 Cr. PC denied the prosecution case. He denied that he was entrusted with the duty, of Chowkidar for the night in the office, and that he was sleeping in the office during the night. He denied having given any information relating to the recovery of any article. He also stated that he does not live in the house of Arjun Mali, but lives in Gulab Badi. He also pleaded that he was taken by the police to a house in Chirstian Ganj, & after some time the Inspector of Police took him inside the house and asked him to bring down a bundle of cloth and he brought down the bundle of cloth and opened it and money was found therein and that his signatures were taken on papers by beating him. The appellant has pleaded tint there was enmity between him and the office employees who have come to depose against him because he had taken a house at a distance and had refused to work beyond the office hours. The appellant examined three defence witnesses, viz, Murlidhar Sharma (DW/1), Smt. Ram Pyari (DW/2) and Ram Lal (DN/3) to prove that he was residing in the house of Harji Mistry at Gopal Badi in Ajmer.

7. The learned Sessions Judge held that from the medical evidence of Dr. B. P. Gupta (PW/17), who had conducted postmortem examination of the dead body, and has proved the post-mortem report, Ex. P/48, it is established that the death of the deceased, B.K. Pillai, was homicidal and that it had taken place some time during the night intervening 15th and 16th October, 1983. The learned Sessions judge, has also found that the murder or the deceased was not committed at the place where the dead body was found and that it was committed in the office of the District Sod Conservation Officer, Ajmer, and that subsequently, the dead body was thrown in the compound of Dr. Suraj Narain which is only at a distance of few paces from the said office. The learned Sessions Judge has further held that in the night of October 15, 1973, the appellant and the deceased were sleeping in the said office, and further that on October 11, 1973, a sum of Rs. 10,000/- had been advanced to the deceased, out of which a sum of Rs. 500/- was paid by him to his brother, K.C. Rajan, and the balance amount was kept by him in the almirah in the room in the office, and that currency notes of the value of Rs. 8,870/- were recovered at the instance of the appellant from the house in which the appellant was residing. The learned Sessions Judge also found that the Chappals belonging to the deceased were recovered from near the garage in the compound of the office, and at the instance of the appellant and that iron angle (hold fast) stained with human blood was recovered from amongst the heap of iron angles lying in the office and that according to the evidence of Dr. P.B. Gupta the injuries found on the person of the deceased could be caused by the said iron angle. The learned Sessions Judge further found that three keys were recovered from the water closet in the latrine in the office, but it could not be said whether certainty with the keys so recovered were of the almirah of the deceased in the office. The old. Sessions Judge also found that a bed-sheet, two pants and two bricks were recovered at the instance of the appellant from the jute bag burned in the house of Shri Jhala and that out of the pants, one pant, which was stained with human blood, belong-so the deceased. The learned Sessions Judge also found that the pant which was recovered from the person of the appellant was found stained with human blood and that the explanation given by the appellant for the presence of the blood stains in the office and on his pints viz, that on October 20, 1973. while clearing the water tank he had fallen and had sustained iujuries, could not be accepted. Taking into consideration the circumstance referred to above the learned Sessions Judge held that the prosecution has succeeded in establishing the complicity of the appellant in the crime. According to the learned Sessions Judge it was the greed for having the money which was with the deceased that led the appellant to commit the crime. The learned Sessions Judge did not accept the case set up by the defence that the deceased might have been murdered by L. K. Pandit, since he was on inimical terms with the deceased. The learned Sessions Judge was, therefore, of the view that offence under Sections 302 and 380, IPC were made out against the appellant. In so far as the offence under Section 201, IPC was concerned, the Sessions Judge held that the mere removal of the dead body from the place of murder is not disappearance of any evidence and, therefore, the offence under Section 201, IPC could not be said to have been made out against the appellant. As' regards accused Bhagchand, the learned Sessions Judge found that there was no evidence to connect him with the crime. The learned Sessions Judge therefore, while acquitting Bhagchand of both the charges, convicted the appellant of the offences under Sections 302 and 380, IPC, but acquitted him of the offence under Section 201, IPC. Hence, this appeal.

8. We have heard Shri N.C. Chowdhary, the learned Counsel for the appellant, and Mrs. Kamala Jain, the learned Public Prosecutor for the State.

9. As pointed out earlier, there is no direct evidence to connect the appellant with the crime and the case of the prosecution rests on circumstantial evidence.

10. Before we deal with the various circumstances that have been relied upon by the prosecution to establish the guilt of the appellant, it may be mentioned that in so far as the the murder of the deceased is concerned, it is established from the medical evidence of Dr. S.P. Gupta (PW/17), who conducted the autopsy on the dead body of the deceased and prepared the post-mortem report Ex. P/40, that the death of the deceased was homicidal on account of the injuries caused by blunt weapon on his head. The medical evidence also shows that the death of the deceased had taken place on the night intervening 15th and 16th October, 1973, because according to the evidence of Dr. S.P. Gupta the time of death was 16 to 36 hours prior to his conducting the post-mortem examination, and the post mortem examination was conducted by Dr. Gupta at 10.15 p.m. on 17th October, 1973, which indicates that the murder must have been committed some time on the night intervening 15th and 16th October, 1973.

11. As to the place of murder, the case of the prosecution is that it was committed in the office of the District Soil Conservation Officer, Ajmer. In order to establish the aforesaid case the prosecution has adduced evidence to show that the human blood was found on the stairs, near the water tank on the roof of the office as well as on the compound wall of the office. In this regard, there is evidence with regard to the recovery of blood from the staircase vide recovery memo Ex. P/9, recovery of blood from near the water tank on the roof of the bath room vide memo Ex. P/32, and the recovery of blood from the compound wall in the office vide memo Ex. P/8, and the report of the Chemical Examiner Ex. P/46, and the Serologist, Ex. P/47, which show that the blood which was recovered from the staircase as well as from near the water tank on thereof the bath room was human blood and the blood that was found on the pieces of plaster that were taken from the compound wall had disintegrated and its origin could not be found. In addition, there is the recovery of coconut coir vide recovery memo Ex. P/10, from the latrine in the office which was also found stained with human blood which was indicate that an effort was made to wash the blood with the said coir. The presence of the blood in the office has been sought to be explained by the appellant by suggesting to the witnesses during the course of cross-examination that on October 20, 1973, the appellant, while he was cleaning the water tank on the bath room, bad slipped and had sustained injuries and that on account of the said injuries blood had fallen on the roof of the bath room, as well as on the staircase. The aforesaid suggestion has however, been denied by Tulsi Singh (PW 6) as well as Sukhdev Prasad (PW 8). Shri Chowdhary, the learned Counsel for the appellant, has submitted that the case of the prosecution that the murder was not committed at the place where the dead body was found, but was committed in the office on the night intervening 15th and 16th October, 1973, and that the dead body was kept in the office on 16th October, 1973, and was taken to the place of occurrence subsequently, is belied by the fact that the blood was recovered from the place where the dead body was found lying in the bungalow of Surajnarain. The submission of Shri Chowdhary was that if the murder had been committed on the night intervening 15th and 16th October, 1973 and the dead body was brought to the Bungalow of Dr. Suraj Narain much latter, blod would not have been found at the pi ice where the dead body was lying because blood does not flow from the wounds after death. In our view, the aforesaid contention of Shri Chowdhary cannot be accepted in view of the evidence of Dr. S. P. Gupta PW 17. During the course of cross-examination Dr. Gupta was asked as to whether there was any possibility of the wounds continuing to blood after about 36 hours of the death and Dr. Gupta has replied that it was possible if there was blood in the body. Dr. Gupta was further asked as to whether there would be blood in the body for such a long time and he replied that blood may be there due to decomposition. In view of the aforesaid evidence of Dr. Gupta, we are of the 'opinion that merely because blood was found at the place where the dead body of the deceased was found lying in the bungalow of Dr. Suraj Narain, it cannot be said that the murder of the deceased had not been committed in the office of District Soil Conservation Officer, Ajmer on the night intervening 15th and 16th October 1973, and that on the basis of the evidence adduced by the prosecution it must be held that the murder of the deceased was committed on the night intervening 15th and 16th October, 1973, and the said murder was committed in the office of District Soil Conservation Officer, Ajmer.

12. We may now take up the various circumstances that have been relied upon by the prosecution to establish the guilt of the appellant. The first circumstance is that the appellant as well as the deceased were sleeping in the office of the District Soil Conservation Officer, Ajmer on the night intervening 15 & 16th October, 1973. In order to prove that the appellant was assigned night duty as Chowkidar at the office and was sleeping in the office on the night intervening October 15th and 16th, 1973, the prosecution has examined Raghunath (PW 3), Narain (PW 4) Tulsi Singh (PW 6) and Sukhdev Prasad (PW 8). Raghunath (PW 3) was posted as District Soil Conservation Officer, Ajmer at the relevant time. He has deposed that there is no separate post of Chowkidar in his office and one of Class IV employees was being assigned the duty of Chowkidar and that the appellant, who was holding the post of chainman was also assigned the duty of chowkidar in the office. During the course of cross examination Raghunath Singh has stated that Class IV employees were assigned night duty for a week or 10 days on rotation basis and the employee who was assigned night duty was not being assigned duty in day. He has also stated that Roshan Khan, one of the Class IV employees, had died on October 1, and there were three Class IV employees namely Jabbar Singh, Narain and the appellant and that Jabar Singh had gone on leave five six days before the incident. He has also stated that since after the death of Roshan Khan till the death of the deceased, the appellant had been assigned night duty, and after this incident relating to the death of the deceased, the appellant as well as Narain were assigned night duty as well as day duty. Narain (PW 4) was a class IV employee in the District Soil Conservation Office, Ajmer in October 1973, and he has stated that on 15th October, 1973, he was assigned the day duty and the appellant was assigned night duty, and that these duties were being assigned to them for the past 10-12 days. Tulsi Singh (PW 6) was working as cashier in the District Soil Conservation Office, Ajmer at the relevant time and he has deposed that the appellant was employed in the office and that on the date of death of the deceased he was working as Chowkidar. Tulsi Singh has also stated that on the night inter veiling 15th and 16th October and the night intervening 19th and 17th October the appellant was the night Chowkidar in the office. Sukhdev Prasad (PW 8) was employed as agricultural assistant in the District Soil Conservation Officer, Ajmer at the relevant time and he has deposed that on the night intervening 15th and 16th October, 1973, the appellant was working as Chowkidar in the night in the office. Nothing has been brought out during the course of the cross examination of these witnesses which may throw doubt on their testimony.

13. The appellant has examined his mother Smt. Ram Pyari (DW 2) and Ram Lal (DW 3), to prove that the appellant was not assigned any night duty and was sleeping in his house at night. Smt. Ram Pyari is obviously an interested witness being the mother of the appellant. Ramlal (DW 3) has stated that he resides in front of the house of the appellant in Gulab Badi and that he used to see the appellant going to his office in the morning at 10 a. m. and returning from the office at 5.30 p.m. Ram Lal is a railway employee who must also be attending to his duties. It is difficult to believe that he would be present at his house daily at 10 a.m. to watch the appellant leaving his house in the morning and returning in the evening. In our opinion, reliance cannot be placed on the testimony of the aforesaid witnesses examined by the appellant. We are of the view that on the basis of the testimony of Raghunath (PW 3), Narain (PW 4), Tulsi Singh (PW 6) and Sukhdev Prasad (PW 8), who are independent witnesses it must be held on the night intervening October 15th and 16th, 1973, the appellant was discharging night duty as Chowkidar in the office of the District Soil Conservation Officer, Ajmer and was sleeping in the said office.

14. In order to prove that the deceased was sleeping in the office of the District Soil Conservation Officer, Ajmer on the night intervening 15th and 16th October, 1973, the prosecution has examined Raghunath Singh PW/3, K.C. Rajan PW/5, Tulsi Singh PW/16 and Sukhdev Prasad PW/8, Raghunath Singh PW/3, has deposed that for the past 15-20 days prior to 11th October, 1973, the deceased used to sleep in the office daily and on the 15th October, 1973, he had seen the deceased in the office in the evening and that he must have slept in the office because in those days he was staying in Ajmer and was finalising the accounts of Beawar. During the course of cross-examination, Raghunath Singh has stated that the deceased was staying as a tenant in the house of L.K. Pandit and that some dispute had arisen between the deceased and L.K. Pandit and on account of the said dispute the deceased was staying in the office K.C. Rajan PW/5 is the brother of the deceased. He has stated that on the night intervening 15th & 16th October, 1973, the deceased had slept in the office and that he had been sleeping in the office since 1st October, 1973. Tulsi Ram PW/6 has also stated that on the night intervening 15th and 16th October, 1973, the deceased was sleeping in the office. Sukhdev Prasad PW/8 has also stated that the deceased was sleeping in the office for the past 7-8 days before the night intervening 15th and 16th October 1973, because in those days he was preparing his accounts. From the evidence of the witnesses it is established that the deceased had been sleeping in the night the office for the past few days before the night intervening 15th and 16th October, 1973, and that on the intervening 15th and 16th October, 1973, he was sleeping in the office.

15. Apart from the aforesaid evidence, which shows that the appellant and the deceased were sleeping in the office on the intervening 15th & 16th October, 1973, there is the evidence of Raghunath Singh PW/3, Narain PW/4, Tulsi Singh PW/6, and Sukhdev Prasad PW/8, who have all deposed that they had seen the appellant and the deceased at the office on the evening of 15th October, 1973. On the basis of this evidence it must also be held that the appellant was assigned the night duty and was sleeping in the office on the night intervening 15th and 16th October, 1973, and the deceased had been sleeping in the office for the past few days before the night intervening 15th and 16th October, 1973 and that he was also sleeping in the office on the night intervening 15th and 16th October, 1973 and that in the evening of 15th October, 1973, the appellant and the deceased were last seen in the office and that the appellant was also there.

16. The other circumstance that has been relied upon by the prosecution is with regard to advance of Rs. 10,000/- to the deceased on 11th October, 1973, and recovery of currency notes of the value of Rs. 8,870/- at the instance of the appellant from his house on the basis of the information given by the appellant. In order to prove the payment of Rs. 10,000/- as advanced to the deceased on 11th October, 1973, the prosecution has examined Raghunath Singh PW/3, K.C. Rajan PW/5, Tulsi Singh PW/6 and has also proved the entry in the hand of the deceased with regard to the aforesaid payment as contained in the Advance Register Ex. P/1. Raghunath Singh PW/3 has deposed that on 11th October, 1973 the cashier had paid Rs. 10,000/- to the deceased for payment to the work-charged staff in the famine work, and that at the time of receiving the aforesaid amount, the deceased had made an entry in the advance register Ex. P/1. He has identified the signatures of the deceased in the advance register Ex. P/1. Raghunath Singh has also stated that the payment could not be made to the labourers because Shri Barkatullah Khan, the then Chief Minister of Rajasthan, died on 11th October, 1973, and holiday was declared for four days. Tulsi Singh PW/6 is cashier in the District Soil Conservation Office, Ajmer and has deposed that he had paid Rs. 10,00 /- to the deceased on 11th October 1973, as advance for payment to the workcharged staff and entry about the receipt of the said amount had been made by the deceased in the advance register Ex. P/1. He has also proved the signatures of the deceased in the register Ex.P/1. Tulsi Singh has also stated that out of the aforesaid amount of Rs. 10,000/- the deceased had paid a sum of Rs. 500/- to his brother, and that when he was going to his room and after locking the safe, he had seen the deceased opening the almirah. K.C. Rajan PW/5, who is the brother of the deceased, has also stated that on 11th October, 1973, the deceased had given him a sum of Rs. 500/- out of the advance which he had taken from the office and that he had taken a sum of Rs 10,000/- as advance on 11th October, 1973 and that the balance amount was kept by the deceased in the almirah.

17. Shri Chowdhary has challenged the testimony of the aforesaid witnesses with regard the payment of Rs 10,000 as advance to the deceased on 11th October, 1973 and has the genuineness of the entry in the Advance Register Ex. P. /1 relating to the payment of the said amount of Rs. 10,000/- as advance to the deceased on 11th October. 1973. In this regard, the first contention urged by Shri Chowdhary was that even though the Investigating Officer Bheru Singh has admitted that on 17th October, 1973, he had learnt about the aforesaid advance being made to the deceased, the advance register was not seized by him on the same day, and it was seized after three days i.e. on 20th October, 1973. The submission of Shri Chowdhary that this delay in seizing the advance register throws doubt on the genuineness of the entry in the advance register and has submitted that the said entry was prepared subsequently. In this connection, Shri Chowdhary has also submitted that there are certain over-writings in respect of dates as well as serial Nos. in the various entries in the advance register Ex. P. 1 and for that reason also reliance should not be placed on the entry in the advance register Ex. P/1, and that if the entry in the advance register is found to be unworthy of credence, then reliance cannot be placed on the testimony of Raghunath Singh PW3, PW 5 and K.C. Rajau PW 5. We have given our careful consideration to the aforesaid submission of Shri Chowdhary, and we have also carefully persued the various entries in the advance register Ex. P. 1. As regards the seizure of the advance register on 17th October, 1973 and it being seized on 20th October, 1973, the explanation that has been offered by the investigating Officer, Shri Bherusingh, is that during this period he was recording the statements of witnesses and conducting the investigation. In our view, the delay of three days in seizing the advance register Ex. P 1 by the Investigating Officer is not of material significance if the entry relating to the payment of Rs. 10,000/- to the deceased in the said register is found to be genuine. On a perusal of the register, we find that the entire entry at Sr. No 147 relating to the payment of Rs. 10,000/- to the deceased on 11th October, 1973, is in the hand of the same person, and there is no over-writing in respect of said entry. The aforsaid entry has been proved to be in the hand writing of the deceased by Raghunath Singh PW 3 and Tulsi Singh PW 6 who have also deposed that the earlier entry at Sr. No. 129 is also in the hand-writing of the deceased. We have compared the two entries at Col. 129 and 147, and we find that they are made in the same hand. As regards the over-writing in the other entries in the advance register it may be pointed out that in entry 146 there is over-writing in the entry with regard to the date filth October, 1973 and the figure '0' has been overwriting on the figure '1' in the figures relating to the month. There also appears to be some over-writing in the Sr. No. relating to entries 148, 149 and 150. The aforesaid over-writings relating to the month in entry 146 and in the Sr. Nos. in the entries 148, 149 and 150 do not mean that entry 147 with regard to the payment of Rs. 10,000/- to the deceased on 11th October, 1973, was made subsequently because, as pointed out earlier, there is no over-writing in entry 147. As regards the over-writing in the figures relating to the month in entry 146, it may be mentioned that entries 141, 142, 143, 144 and 145 above the said entry and entries 147, 148, 149, 150, 151 and 152 below it relate to the month of October and there is no over-writing relating to the month in these entries. This shows that due to a mistake the figure '1' was written in place of '0', which was corrected. As regards entries at 141, 149 and 150 in respect of which there is over-writing in the Sr. No. it may be mentioned that the said entries were made on 15th October, aid 16th October, 1973, and there is no over-writing anywhere in the signature portion of the said entries, which also bears the date 15th and 16th October, 1973 showing that all the entries had been made before 17th October, 1973. If the entries subsequent to the entry at Sr. No. 147 had been made before 17th October, 1973, it cannot be said that the entry at Sr. No. 147 was made subsequent to 17th October, 1973. Shri Chowdhary has also pointed out that at many places in the advance register, Ex. P/1, space has been left between the entries and, that it is quite possible that there might have been space between entries 146 and 148 and entry at Sr. No. 147 was inserted in that space subsequently. It is true that in the advance register there is an empty space between certain entries. But we find that most of the empty spaces have been left for the reason that the earlier entry has covered pars of the space meant for the next entry and it was not possible to make an entry on the next line. We, however, find that entry at Sr. No. 146 which precedes the entry in question at Sr. No. 147 does not cross the line in which if was made and, therefore there was no reason to leave any empty space between the said entry at Sr. No. 146 and the entry at Sr. No. 148. We have carefully scrutinised the various entries in the advance register and we are satisfied that there is no reason to doubt the genuineness of the entry contained in Sr. No. 147 showing payment of Rs. 10,000/- to the deceased on October 11, 1973. It may also be observed that the veracity of the foresaid entry with regard to payment of Rs. 10,000/- on 11th October, 1973 has also been established from the entry Ex. P. 1 in the cash book for 11th October, 1973. The said entry in the cash book has been brought in evidence during the course of cross-examination of Tulsi Singh PW 6. In our opinion, therefore, the prosecution has succeeded in establishing that a sum of Rs. 10,000/- was paid as advance to the deceased on 11th October, 1973 and out of the said amount the deceased had paid Rs. 500/- to his brother K.C. Rajan PW/5, and that on account of the death of Barkatullah Khan former Chief Minister of Rajasthan, holiday was declared for four days and that it was not possible to make the payment to the labourers, and the money was kept by the deceased in the almirah in his room in the office.

18. With regard to the recovery of currency notes of the value of Rs. 8,870/- on the basis of the information given by the appellant from his residence, the prosecution has examined Dr. Gupta PW/9 and Laxmi Chand PW/10, the attesting witnesses of the recovery memo Ex. P/15, as well as the Investigating Officer, Bheru Singh who has also proved the memo of information Ex. P/14 with regard to the aforesaid recovery. From the evidence of the aforesaid witnesses it is established that the appellant had brought out a bundle from the ventilator in his house in Christian Ganj, Ajmer and the bundle was found to contain currency notes of the value of Rs. 8,870/-. Shri Chowdhary has challenged the aforesaid recovery on the ground that the appellant was not residing in the house from where the recovery is said to have been made and that the appellant was residing in Gulab Badi along with his mother and other family members. In this regard Shri Chowdhary has invited our attention to the evidence of Murlidhar Sharma DW/1, Smt. Ram Pyari DW/2 and Ram Lal DW/3, who have been examined by the appellant in his defence. As against this there is the testimony of Laxmi Chand PW/10 and Deen Dayal PW/14 who have deposed that the appellant was residing in the room from which the currency notes were recovered and that accused Bhag Chand was living in a separate room. Laxmi Chand PW/10 resides in Christian Ganj area at a distance of one furlong from the house from where the currency notes were recovered and has stated that he knew from before that the appellant was residing in the said house. Deen Dayal PW/14 has stated that he has been staying in the house at Mali Wada, Christian Ganj, since 2th October, 1973, and that earlier also he had been staying for 2 years in the same house, and that the appellant is residing in the same house, and that the appellant and accused Bhag Chand are staying in separate rooms in that house. During the course of cross-examination he stated that the appellant was residing with his wife and children.

19. As regards defence evidence produced by the appellant to show that he was not residing at Mali Mohalla but was residing at Gulab Badi, it may be observed that D (sic)/1 Murlidhar Sharma has proved the record relating to the appellant kept in the office of the District Soil Conservation Officer, Ajmer and on the basis of the said record he had stated that the residential address given by the appellant was house of Harji Mistry, House No. 362, Naya Ghar. Gulab Badi, Ajmer. During the course of cross-examination, the said witness has stated that since May 1973 whenever the appellant had to be called beyond the office hours, he had to be called from Arjun Lal's house, Mali Mohalla, Christian Ganj, Ajmer. The aforesaid witness, thus, supports the case of the prosecution that since May 1973. the appellant had been residing at the house of Arjunlal in Mali Mohlla, Christian Ganj. The other two witnesses examined by the appellant are his mother Ram Payari DW/2 & Ramlal DW/3 who have deposed that the appellant along with his wife and children has been staying all along at Gulab Badi. We have already referred to the evidence of these witnesses and have held that reliance cannot be placed on their testimoney. In our opinion, reliance can be placed on the testimoney of Laxmi Chand PW/10 and Deen Dayal PW/14 and on fanciful testimony of the said witnesses, it must be hald that the appellant was residing in the house of Arjun Lal at Mali Mohalla, Christain Ganj, Ajmer and the recovery of the currency notes of the value of Rs. 8,870/- was made from the house of the appellant.

20. Another circumstance on which reliance has been placed by the prosecution is the recovery of the pant Ex. 12 belonging to the deceased, stained with human-blood at the instance of the appellant. In this regard, the Prosecution has examined, the Investigating Officer who has proved the memo of information Ex. P/42, recorded by him, on the besis of the information given by the appellent on October 23, 1973, wherein the appellant mentioned that he had kept burried one Chaddar, one blue pant and one Khaki pant in a gunny bag near the wall of the buaglow of Sari Jhala Sahib. The prosecution has also examined Sukhdev Prasad PW/8 and Deen Dayal PW/14 who are attesting witnesses of the seizure memo Ex. P/14 with regard to the recovery of the articles from the bungalow of Sari Jhala on October 23, 1973, K.C. Rajan PW/5 has identified the pant Ex. 12 as that of the deceased and the report Ex. P/46 of the Chemical Examiner shows that the said pant was stained with blood, and the report Ex. P/47, of the Serologist shows that it was stained with human blood. In this regard, it may also be observed that Panchnama Ex. P/37 shows that the clothes found on the dead body were only a bash-shirt, Banyan and under-wear, and there was no pint on the dead body, which indicates that the pant had been removed from the dead body before it was brought to the place where it was found lying. On the basis of the aforesaid evidence, it is established that the pant Ex. 12 belonging to the deceased was found stained with human blood and was recovered at the instance of the appellant.

21. Another circumstance that has been relied upon by the prosetution is recovery of the Chappals Ex. 4 and 5, belonging to the deceased at the instance of the appellant. In this regard, the prosecution has produced the memo Ex. P/41 prepared by the Investigation Officer, Bherusingh PW/16 on the basis of the information given by the appellant on 22nd October, 1973 about his having concealed a pair of Chappals belonging to the deceased. The said Chappals were recovered from the compound of the District Soil Conservation office vide seizure memo Ex. P/5, which has been proved by Tulsi Singh PW/6 and Sukhdev Prasad PW/8 who are attesting witnesses of the said seizure memo. The said Chappals have been identified as those belonging to the deceased by K.C. Rajan PW/5, the brother of the deceased. Shri Chowdhary has submitted that there is discrepancy between the evidence of the attesting witnesses with regard to the recovery of the said Chappals. In this regard, he has invited our attention to the seizure memo Ex. P/5, wherein it is stated that the Chappals had been concealed in the grass near the wall of the compound of the office, while Tuisl Singh PW/6 has stated that the appellant had taken out the Chappals from out of the heap of refuse lying near the boundary of the compound of the office. The other attesting witness Sukhdev Prasad had stated that the said Chappals were taken out after removing tie earth. In our opinion, the aforesaid discrepancy pointed out by Shri. Chowdhary between the testimony of Tulsi Singh P/W 6and Sukhdev Prasad P/W 8 about the appellant's having taken out the Chappals from under the heap of refuse, or by his taking out Chappals after removing the earth is very insignificant, and does not throw doubt on the factum of recovery of the Chappals from near the boundary wall of the compound of the office. It can, therefore, he held that the Chappals belonging to the deceased were recovered on the basis of the information given by the appellant.

22. The next circumstance on which the prosecution has placed reliance is with regard to the recovery of iron angle (hold fast) Ex. 2 stained with human blood at the instance of the appellant. In this regard, the prosecution has proved the memo Ex, P/41 prepared by the Investigating Officer, Bhiru Singh on the basis of the information given by the appellant on 22nd October, 1973 about his having concealed the iron angle amongst the iron pieces lying in the compound of the District Soil Conservation Office and the recovery of toe said iron angle on the basis of the said information vide seizure memo Ex. P/11, which has been proved by Tulsi Singh P/W 6 and Sukh Dev Prasad P/W 8, the two attesting witnesses of the said seizure memo. The prosecution has also relied on the report of the Chemical Examiner Ex. P/46 and of the Serologist Ex. P/47 to show that the said iron angle was stained with human-blood. The prosecution has also relied upon the evidence of Dr. S.P. Gupta. PW/17 who has deposed that the injuries found on the person of the deceased could have been inflicted by the iron angle Ex.9.

23. Shri Chowdhary has submitted that no reliance can be placed on the aforesaid evidence about the recovery of iron angle was lying in open in the compound of the office of the District Soil Conservation Officer and the recovery of the said iron angle cannot be said to have been made on the basis of the information given by the appellant. It is true that the iron angle was recovered from the open space in the compound of the office of the District Soil Conservation Officer, Ajmer. But from the evidence of Tulsi Singh PW/6 and Sukhdev Prasad PW/8, it appears that the said iron angle was found lying in the heap of iron angles lying in the compound of the office of the District Soil Conservation Officer, Ajmer. In view of the fact that the iron angle Ex. 9 was lying mixed up with similar iron angles and it could be separated from the other iron angles only on the basis of the information that was given by the appellant. The recovery of the iron angle Ex. 9 from the compound of the office of the District Soil Conservation Officer, Ajmer must be held to have been made on the basis of the information given by the appellant and the said recovery can be used as an incriminating circumstance against the appellant.

24. The prosecution has also relied upon the circumstance that on the basis of the information given by the appellant three keys were recovered from the water closet in the office of the District Soil Conservation Officer, Ajmer and that out of the three keys two keys were of the almirah of the deceased in the office in which the deceased had kept the balance amount of Rs. 9, 500/-. In order to prove the aforesaid recoveries the prosecution has proved the memo Ex. P/41 prepared by the Investigating Officer PW 16, Bheru Singh on the basis of the information given by the appellant on 22nd October, 1973, about his having concealed the three keys in the water closet in the latrine of the office and the recovery of the said keys vide seizure memo Ex. P/6, which has been proved by Tulsi Singh PW/6, and Sukhdev Prasad PW/8, the attesting witnesses of the said seizure memo. Two of three keys were identified as those of the almirah of the deceased by K. C. Rajan, the brother of the deceased. Shri Chowdhary has submitted that the aforesaid evidence about the recovery of the keys at the instance of the appellant could not be accepted in as much as there is contradiction, in the prosecution evidence with regard to recovery of the said keys. In this regard, Shri Chowdhary has pointed out that Tulsi Singh PW/6 and Sukhdev Prasad PW/8 have deposed that the keys were taken out by the appellant from out of the latrine whereas Narain PW/4 has stated that the said keys had been brought out from the commode by a Harijan It may, however, be observed that Narain PW4 is not an attesting witness of the seizure memo and Tulsi Singh as well as Sukhdev Prasad during the course of crossexmination, have denied that the keys were taken out by a Hirijan, and have stated that it was the appellant who had taken out the keys from the Commode of the latrine-Another contention that was raised by Shri Chowdhary was that the keys have not been proved to be those belonging to the almirah in the office of the deceased in as much as the almirah could not be opened by the said keys. In this connection, Shri Chowdhary has invited our attention to the findings recorded by the learned Sessions Judge wherein the aforesaid circumstance of the recovery of the keys has not been relied on as an incriminating circumstance for the reason that it could not be said with certainty that the keys which were recovered were of the same almirah of the office of the deceased. The aforesaid contention of Shri Chowdhary merits acceptance in as much as on the basis of the evidence on record it cannot be said with certainty that the keys which were recovered belonged to the almirah of the deceased in the office In our opinion, therefore, the aforesaid circumstance regarding the recovery of the keys cannot be taken into consideration as an incriminating circumstances.

25. The other circumstances which has been relied upon by the prosecution is the recovery of the bed-sheet stained with human blood on the basis of information given by the appellant. In order to prove the above circumstance, the prosecution has proved the memo Ex. P/42 prepared by the Investigating Officer Bheru Singh on the basis of the information given by the appellant on 23rd October, 1973, about his having concealed a gunny bag containing bed-sheet and two pants in the compound of the house of Shri Jhala and the recovery of the said articles on the basis of the said information vide seizure memo Ex. P/14 which has been proved by Sukhdev Prasad (PW 8) and Deen Dayal (PW 14). The bed-sheet Ex. 14 which was recovered from the said gunny bag has been identified as that of the rest house of the District Soil Conservation Office, by Sukhdev Prasad (PW 8), and the report Ex. P/46 of the Chemical Examiner and the report Ex. P/47 of the Serologist, show that the said bed-sheet was stained with huma blood. Shri Chowdhary has not been able to show why the aforesaid evidence should not be accepted. It must, therefore, be held that the bed-sheet Ex. 14 stained with human blood belonging to the rest house of the office of the District Soil Conservation Office, Ajmer was recovered at the instance of the appellant.

26. The last circumstance relied upon by the prosecution is the recovery of the pants tained with human blood from the person of the appellant on the basis of the information given by him, In order to prove aforesaid recovery, the prosecution has proved the memo Ex. P/45 regarding the information given by the appellant on 25th October, 1973. The pant was stained with human blood and the recovery of the said pant vide seizure memo Ex. P/13 has been proved by Sukhdev Prasad PW/8, the attesting witnesses of the said seizure memo. Mr. Chowdhary has submitted that no reliance can be placed on the aforesaid circumstances because the appellant was arrested on 21st October, 1973, and the said pant was recovered four days after his arrest on 25th October 1973, and that if the said pant was stained with human-blood there was no reason why it was not recovered on 21st October, 1973. It is true that the appellant was arrested on 21st October, 1973, and the Pant Ex. 19 was recovered after four days on 25th October, 1973. There is nothing on the record to show that when the appellant was arrested he was wearing the same pant Ex. 19, on the date of his arrest on 21st October, 1973. Further more, even if it be assumed that the appellant was wearing the said pant on the date of his arrest it is quite possible that the Investigating Officer may not have noticed the stains of blood on the said pant and he came to know about the stains of blood on the said pant when the appellant told him about it on 25th October, 1973 because the said pant had been washed as mentioned in the memo Ex. P/45. In these circumstances, it can be said that it was only on the basis of the information Ex. P/45 given by the appellant that the pant was stained with blood that the Investigating Officer noticed the stains of blood on the pant Ex. 19 on 25th October, 1973 and therefore, he seized it. In our opinion, therefore, the recovery of the pant Ex. 19 on the basis of the information given by the appellant cannot be discarded and it must he neld that the pant Ex. 19, which was recovered from the person of the appellant on 25th October, 1973, was stained with human blood. The explanation that has been offered by the appellant for the presence of the blood on pant Ex. 19 is that while cleaning the water tank on 20th October, 1973, he had fallen and sustained injuries from which blood had come out, has already been considered by us in the context of the presence of the blood on the roof of the bath room of the office of the District Soil Conservation Officer, Ajmer, as we have found it unacceptable.

27. Having considered the evidence produced by the prosecution, we find that the prosecution has succeeded is establishing that the deceased was murdered on the night intervening October 15th and 16th, 1973, and the said murder has been committed in the office of the District Soil Conservation Officer, Ajmer. The prosecution has also been able to establish that the appellant and the deceased were sleeping in the said office on the night intervening October 15 and 16, 1973; a sum of Rs. 10,000/- was advanced to the deceased on 11th October, 1973, out of which he had paid Rs. 500/- to his brother K.C. Rajan and the balance amount was kept by him in his almirah in the office and that the said amount could not be paid to the labourers till 15th October, 1973, as holidays for four days had been declared on account of the death of Shri Barkatullah Khan, the Chief Minister of Rajasthan; currency notes of the value of Rs. 8,870/- were recovered from the house of the appellant on the basis of the information given by him; chappals Ex. 4 and 5 and the blood-stained pant Ex. 12 of the deceased were recovered on the basis of the information given by the appellant; iron angle (hold fast) Ex. 9 stained with human-blood was recovered on the basis of the information given by the appellant and the medical evidence shows that the injuries found on the person of the deceased could have been caused by the said iron angle; bed-sheet Ex. 14 stained with human blood was belonging to the rest house of the District Soil Conservation Officer, Ajmer, was recovered on the basis of the information given by the appellant; and the pant Ex. 19 recovered from the person of the appellant was stained with human-blood. In our opinion, the circumstances referred to above lead to the irresistible conclusion that it was the appellant who is responsible for committing the murder of the deceased. In our opinion, therefore, the appellant has been rightly held guilty of the offence of murder punishable under Section 302, IPC. We are further of the opinion that the appellant has been rightly held guilty of the offence punishable under Section 380, IPC in as much as the currency notes of the value of Rs. 8,870/- which were recovered from the possession of the appellant formed part of the money which had beenl advanced to the deceased and had been kept by him in his almirah in the office.

28. In the result, the appeal fails, and the conviction of the appellant for the offences under Sections 302 and 380, IPC and the sentences imposed on him by the learned Sessions Judge, Ajmer for the said offences are upheld. The appellant is on bail. He should surrender immediately. The learned Sessions Judge, Ajmer shall take steps for the arrest of the appellant.


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