M.L. Shrimal, J.
1. These three appeals : D.B. Criminal Appeal No. 200 of 1972 Hukma v. State of Rajasthan D.B. Criminal Appeal No. 218 of 1972. Sobha v. State of Rajasthan filed by the appellants from Jail while the D.B. Criminal Appeal No. 349 of 1972 : Hukma and sobha filed through a counsel, arise out of the judgment dated January 20, 1972 of the learned Additional Seasons Judge, Udaipur whereby he convicted the accused appellant Hukma under Section 302 IPC for committing the murder of Logariya and sentenced him to suffer imprisonment for life He was also convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for a period of five years, and to pay a fine of Rs. 100/-; in default of the payment of which to further undergo rigorous Imprisonment for a period of two years Accused appellant Sobba was convicted under Section 411, IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 100/-, in default of payment of which to further undergo rigorous imprisonment for a period of two months.
2. The prosecution story as disclosed at the trial in a nutshell is that on March 3,1971 in the early morning Logariya (since deceased) went in the company of PW 7 Sawa to graze his cattle in the jungle In the evening Logariya did not return with the cattle. Sawa returned to his house. As Logariya did not return to his house an enquiry was made from Sawa as to the where about of Logariya Sawa informed them that in the day time while they were grazing the cattle near the field of Hukma accused, Hukma invited Logariya (since deceased) and took him in his field where the sugarcane crop was standing. Thereafter a large number of parsons want in search of Logariya. The dead body of Logariya was found lying in the field of Hukma. A piece of turban was also found around the neck of Logariya and it was found that he bad died owing to strangulation. When Logariya left his house in the morning for grazing the cattle, he was wearing 'Kaduliyas' (Ex. 6), 'Hansali' (Ex. 5) and gold 'Murkies' (Ex. 4). All these ornaments were found missing from the person of the dead body. The persons who went in search of Logariya came back to the house of Gokal (PW 2) Shri Bherulal Dangi, Advocate from Udaipur was also there. A first information report of this occurrence was lodged at the Police Station, Mavli at 9.30 p.m. on the same day by PW 2 Gokal. In the first information report a suspicion was raised against Hukma a accused. The Station House Officer Mavli after registering the case under Section 302 IPC came on the spot. He inspected the site on March 4, 1971 and prepared inquest memo Ex. P 8 The autopsy on the d ad body of Logariya was conducted on toe same day by PW 16 Dr. Om Prakash Purohit. Accused Hukma was arrested by the Police on March 5, 1971. After his arrest the accused expressed his desire to get the gold 'murkies' Ex. 4 worn by the deceased discovered. The information memo is Ex. P. 17 In consequence of the information given by the accused the gold 'murkies' EX. 4 were got recovered f on the house of the accused where he bad concealed them. The seizure memo is EX. P 9. The accused Sobha was arrested on March 7, 1971. He expressed his desire to get the other articles discovered. The information memo is Ex. P. 18. In consequence of the above information the Articles 'Hansah' EX. 5, pair of silver 'kaduliyas' Ex 6 add silver 'Kandora' EX. 7 were recovered at the instance of accused Sobba from the place where the had concealed them The recovery memo is EX. P. 12. The accused Hukma was produced before the learned Sub-divisional Magistrate, Vallabhnagar from the Judicial look up for recording his confessional statement under Section 164 Cr.P.C. The learned Magistrate gave him some time to consider about the advisability of the making of a confessional statement or not. The learned Magistrate after putting a under of question satisfied himself that the accued was making a voluntary statement and then recorded the statement. On March 16, Magistrate, Mavli who after taking proceedings under Section 207A Cr.P.C. committed both the accused to the Court of Sessions Judge to stand trial their under various offences.
3. The learned Sessions Judge transferred this cage for trial to the Court of Additional Sessions Judge, Udaipur The decked pleaded not guilty to the charge, and the prosecution examined 19 witnesses in support of their case. The statement of the accused persons recorded by the learned Magistrate during committal proceedings were brought oh the record of the Sessions Court. Both the accused denied their complicity in the crime Accused Hukma stated that he bad made confessional statement Ex. P. 15 out of fear of the p lice. He denied to have given any information to the Police leading to the discovery of the pair of 'muikies'. He further stated that a beating was given to him by the Sarpanch and other patens and later on bet was handed over to the; Police. Accused Sobha while denying his complicity in the crime, stated that he bad not g t any article discovered. He further resiled from his statement given before the committing court, and stated that Hukma had not given to aim those articles. The accused persons examined Uda (DW 11) in defence. Uoa stated that the pair of 'murkie' EX. 4 belonged to him and he had produced a document Ex. D. 2 alleged to be relating to the purchase of the pair of 'murkies'. The learned Additional Sessions Judge placing reliance on the confessional statement made by the accused Hukma as well as on the discovery of 'murkies' at his instance and the evidence regarding the deceased belong last seen In the company of the accused, convicted the accused Hukma tinder Section 302 IPC and sentenced him as mentioned above. The other accused Sobha was convicted under Section 411 IPC and was sentenced as mentioned above.
4. Aggrieved with the aforesaid judgment the convicted accused-appellants have challenged their conviction and sentences by these appeals.
5. The learned Counsel appearing on behalf of the accused has (sic) the conviction of the accused and has vehemently urged that the prosecution evidence is not reliable The learned Additional Advocate General appearing on behalf of the State has supported the judgment of the trial court.
6 It has not been rightly assailed before as that Logariya died owing to throttling. PW 16 Dr. Omprakash who performed the autopsy an the dead body of Logariya found the following injuries:
1. Abrasion 1/2 x 1/4' above left eye.
2. Abrasion 1' x 1/4' x 1/8' below left eye.
3. On left side of cheek there were multiple small abrasions.
4. Abrasion 1/4' x 1/4' on right side of cheek.
5. Multiple abrasions on neck of small sizes.
The doctor further opined that the cause of death WBJ asphyxia due to strangulation. The abrasions on the neck were blood stained and ante-mortem in nature. He further stated that the abrasions on the face could be caused by nail or as a result of fall. The death by throttling was spontaneous. The injuries caused as a result of strangulation and the other injuries were simultaneous, and the injuries were antemortem.
7. Firstly, it has been urged on behalf of the acetified that the confessional statement Ex. P 15 made by the accused Hukma is neither true nor voluntary, but the learned Counsel has failed to support this Assertion. The accused was produced from the judicial lock-up. Preliminary questions were asked by the learned Magistrate to ascertain whether the accused was making a free and voluntary statement and the same was not preceded by any threat or inducement to the accused and thereafter the learned Magistrate further granted 3 hours and 15 minutes time to the accused to think over whether he should make any statement or not, We have read the questions put to the accused and the answers made by him. A perusal of the confessional statement shows that the accused was keen to make a clean breast of himself. He admitted in unequivocal words that he caught hold of the neck of the boy and throttled to as a result of which he died, and thereafter he removed the ornaments from the dead body. He further stated that he handed over the ornaments to his brother, and also stated, that he bad no intention to commit the murder. This confessional statement has been proved by PW 15 Gyan Swarup, Sub divisional Magistrate, Vallabhnagar. Nothing has been made out in cross-examination of ibis witness on the basis of which it can be said that the accused did not make a voluntary statement before him. No doubt the accused retracted his confession at the trial and stated that he made EX. 15 at the persuasion and on account of the fear of the Station House Officer. The mere bald assertion by the prisoner that he was threatened, tutored or that inducement was offered to him can not be accepted as true without more. There is no material whatsoever to bold that the accused was threatened or beaten or induced. The investigating officer PW 17 Mangilal was not cross examined on his point Such a suggestion was neither made to the investigating officer PW 17 Mangilal nor to PW 15 Gyan Swaroop. Sub-divisional Magistrate, who recorded the statement of the accused under Section 164 Cr.P.C. The story of tutoring is on the face incredible. There is nothing on the record even to raise the slightest suspicion that the confession EX. P. 15 was made as a result of inducement or threat. A retracted confession can form the legal basis of conviction if the court is satisfied that it is true and has been voluntarily made. It is no doubt true that as general rub or practice it is unsafe to rely on confession much less on a retracted confession unless the court is satisfied that retracted confession true and voluntarily made and has been corroborated in material particulars, but it is neither an inflexible rule of Jaw nor practice, nor prudence that is no circumstances the conviction can be made on the basis of a retraced confession with corroboration for a court may in a particular case, be convinced, on the truth of a confession and be prepared to act upon it without corroboration. In the case on hand, to us the confession appears to be free from taint and EX. P. 15 is a voluntary and true confession. Apart from confession there is other circumstantial evidence against the accused which is explicable to no other hypothesis except the guilt of the accused. The circumstances unmistakably point to the conclusion that the accused appellant Hukma was guilty of causing the death of Logariya. Firstly, the accused was last seen in the company of the deceased by PW 7 Sawa and thereafter she deceased Logariva was not seen by any person. PW 7 Sawa stated that be in the company of Logariya had gone to graze their cattle near the tank. Near the tank there is the field of accused Hukma. Accused Hukma invited Logariya nad asked him to come near him. Logariya told Sawa that as Hukma wanted him he would go to him and return soon. At the relevant time, accused Hukma was sitting beneath a 'Bombool' tyree. Sawa saw Logariya going towards Hukma and thereafter he did not return. Sawa has been corroborated on this point by PW 2 Gokal, PW 4 Kajor, and PW 9 Gamera. All of them have stated that Sawa when asked narrated to them the above mentioned story. This fact also finds mention in the first information report. We have perused the statement of this witness Inspite of lengthy cross-examination nothing could be brought out on the basis of which the veracity of the statement of this witness can be challenged. There is no reason why Sawa should make a false allegation against Hukora. Thus it stands amply proved that the deceased Logariya was last seen in the company of accused Hukma and thereafter his where abouts were not known.
8. The other circumstance of considerable importance is that a pair of 'murkies' EX. 4 which belonged to the deceased Logariya was got recovered by the accused Hukma, at his instance. PW 7 Sawa stated that prior to the commission of the effence Logariya was wearing a pair of gold 'murkies' in his ears. These gold 'murkies' EX. 4 were identified by Udailal Soni (PW 14) who bad prepared them as well as by Kajor (PW 4) and Bhera (PW 6). They were identified at the test identification before the Tehsildar Magistrate Shri Shakunchand (PW 18) Toe identification memo is EX. P 14. The gold 'murkies' EX. 4 were also identified by all these witnesses in the court during the trial. The learned Addinonal Sessions Judge for good and sufficient reasons held the statement of DW 1 Uda regarding the ownership of these 'murkies' as unreliable. It has been proved beyond any manner of doubt that Ex. 4 pair of gold 'murkies' were worn by the deceased Logariya prior to his murder. The accused Hukma in his statement recorded under Section 342 Cr.P.C. stated that it belonged to him whereas his father DW 1 Uda stated that the pair of 'murkies' EX. 4 was being worn by him, and belonged to him, but the Station Hue Officer compelled him to deliver it to him Thus there is apparent contradiction in their statements In face of cogent and reliable evidence of PW 14 Udailal, PW 4 Kajor, PW 6 Bhera the explanation given by the accused carries not the slightest conviction with us. The murder was committed on 3-3-1871 Accused Hukma was arrested on March 5, 1971 and EX. 4 pair of 'murkies' was recovered from the place of concealment at the instance of the accused on March 7, 1971 In the circumstances of the case the recovery of pair of 'murkies' EX. 4 from the possession of the accused Hukma leads to the inference that the person who removed the 'murkies' from the person of Logariya (deceased) was the person who committed the murder.
9. In the case on hand the murder and robbery have been shown to form part of one transaction. The recent possession of the accused on the property belonging to the deceased Logariya coupled with explanation qiven by the accused as being found false is presumptive of the evidence leading to the conclusion that he was guilty of murder as well as robbery.
10. In Emperor v. Chintamoni Shahu AIR 130 Cal. 379 their Lordships observed as under:.the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of other more aggravated crime whch has been connected with (sic) this particular fact of presumption commonly forms also a material element of evidence in cases of murder, which special application of it has oftern been emphatically recognized. The presumption would be particularly applicable where, as in the present case, there is satisfactory proof that the necklace was habitually worn by the deceased and that she was actually seen to be wearing it on the evening before the murder.
A similar view was expressed in In re Guli Venkataswami : AIR1950Mad309 Both these cases have been approved by their Lordships of the Supreme Court in Wasim Khan (sic) State U.P. : 1956CriLJ790 .
11. The recovery of the dead body of Logariya from the field of Hukma accused is another piece of evidence which connects the accused with the crime. The circumstantial evidence on the basis of which the trial court recorded conviction of the accused cannot be said to be improper. On account of the preponderance of the evidence it can be said that the guilt bas been brought home to the accused Hukma and there is no reason to set aside the conviction of accused Hukma under Section 302 IPC. It has been proved from the evidence of Udailal (PW 12), Kajor (PW 4). and Bhera (PW 6) that Ex. 4 pair of 'murkies' belonged to the deceased. It has further been proved by the statement of PW 7 Sawa and PW 6 Bhera that on the date of murder the deceased Lagariya was wearing these pair of 'murkies' in his ears. The accused Hukma in his statement under Section 164 Cr.P.C. Ex. P5 has admitted that be removed the 'murkien' from the ears of the deceased Logariya after throttling and as such his conviction under Section 392 IPC cannot be assailed. In the facts and circumstances of the case it cannot be said that the sentence awarded to the accused Hukma is excessive.
12. We find no force in the appeal of Hukma and it is dismissed.
13. Now remains the case of the other accused Sobha. The only evidence against this accused is that he got Kaduliyas (Ex. 6), 'Hansali' (Ex. 5) aid 'Kandora' (Ex. 7) recovered at his instance from the place of concealment, where he had placed them prior to the recovery. As already discussed above, these articles belonged to the deceased and they were removed by Hukma accused from the person of the deceased Logariya. Accused Sobha in his statement recorded before the committing court bad stated that these articles were given to him by his brother Hukma The accused denied the possession and recovery of the articles at his instance in his statement recorded under Section 342 Cr.P.C. by the learned Additional Sessions Judge, Udaipur. There is no cogent explanation as to bow the accused came in possession of these articles. He was found in possession of the articles belonging to the deceased soon after the commission of the offence and he has failed to give any satisfactory account of his possession. He can be safely held guilty of the offence punishable under Section 411 IPC. The accused has remained in custody after conviction for a period of neatly 4 months and during the investigation also he remained under detention for a period of nearly 4 months. Taking a conspectus of the circumstances of the case, the ends of justice will be met if the sentence of the accused is reduced to one already undergone by him.
14. The appeal of accused Sobha is partly accepted, as indicated above Sobha accused-appellant is on bail, and he need not surrender to his bail bonds. His bail bonds are cancelled.