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State of Rajasthan Vs. Nanu Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Reference No. 2/1976 and Appeal No. 849 of 1976
Judge
Reported in1977WLN227
AppellantState of Rajasthan
RespondentNanu Ram
Cases ReferredHukma v. State of Rajasthan
Excerpt:
medical jurisprudence - maggots found on dead body--it cannot be said that death was caused 24 hours ago.;the injuries sustained by mst. lichhma (deceased were open wounds and the read body was also lying in an open field. as such flies must have sat on the wounds and might have laid their eggs. it cannot be said that because maggots were found on the dead body, more than 24 hours must have passed between the appearance of the maggots and the time of death of mst. lichhma. ;(b) criminal trial - appreciation of evidence--opinion of medical experts cannot be discredited on basis of passages from books.;it cannot be said that the opinions of these authors were given in regard to the circumstances exactly similar to those which arose in the case on hand.;the evidence of the medical expert and.....m.l. shrimal, j.1. this appeal by nanuram is directed against the judgment dated october 14, 1976 of the learned additional sessions judge, sri ganganagar whereby he convicted the accused-appellant nanuram under section 302, i.p.c. and sentenced him to death.2. tersely speaking, shorn of necessary details, the prosecution case, as disclosed at the trial is that pw. 4 shri chothu ram, his wife mst. lichhma (since deceased) and the accused nanuram with his family used to reside in the same compound. pw. 4 choturam and accused-appellant nanuram used to work as 'seeries' of pw. 1 sultan singh. nearby 40 days prior to the date of the occurrence mst. lichhma (deceased) had given birth to a child on the fateful day the accused-appellant nanuram was working on the fields in which tubewell is.....
Judgment:

M.L. Shrimal, J.

1. This appeal by Nanuram is directed against the judgment dated October 14, 1976 of the learned Additional Sessions Judge, Sri Ganganagar whereby he convicted the accused-appellant Nanuram under Section 302, I.P.C. and sentenced him to death.

2. Tersely speaking, shorn of necessary details, the prosecution case, as disclosed at the trial is that PW. 4 Shri Chothu Ram, his wife Mst. Lichhma (since deceased) and the accused Nanuram with his family used to reside in the same compound. PW. 4 Choturam and accused-appellant Nanuram used to work as 'Seeries' of PW. 1 Sultan Singh. Nearby 40 days prior to the date of the occurrence Mst. Lichhma (deceased) had given birth to a child On the fateful day the accused-appellant Nanuram was working on the fields in which tubewell is situated only PW. 4 Choturam was working at a little distance from those fields. Mst. Lichhma (deceased) used to habitually wear silver 'Hansali' Article 2 & a pair of silver 'Kadi' Article 3, and a gold facsimile of 'Pabuji' in a locket form tied with a black thread. On the date of incident Mst. Lichhma (deceased) in the company of PW. 5 Mst. Pepli and Mst. Charanki went to fetch grass. Nearly at 12 in the noon after cutting grass and tying it in bundles all the three started back for their home. When they reached near the well of P.W. 1 Sultansingh, Mst. Lichhma went to drink water for quenching her thirst and the remaining two girls proceeded towards their home. After that PW. 3 Chetamam saw Mst. Lichhma (deceased) drinking water and then going towards her field. Thereafter Mst. Lichhma was not seen alive. As Mst. Lichhma did not reach her house on the expected time and her newly born baby was weeping so PW. 5 Mst. Pepli came back to the well of PW. 1 Sultan Singh. She could not find he? mother. Accused-appellant Nanuram met her in the way, who took her to her father in the field where he was working. She informed her father that her mother had not reached home and thereafter all the three started to search Mst. Lichhma. Accused-appellant Nanu ram remained in the field known as tube-well-wala field. P.W. 5 Mst. Pepli and her father P.W. 4 Choturam came to their home. Inspite of a hectic search the whereabouts of Mst. Lichhma could not be traced out. In the morning of September 18, 1975 the dead body of Mst. Lichhma was found in the cotton field of Dularam Sultansingh. A first information report of this occurrence was lodged at the Police Station, Hindumal Kot on September 18, 1975 at 12.30 pm. by P.W. 1 Sultansingh. The distance between the Police Station and the place of occurrence is 10 miles. P.W. 15 Ramswarup, Station House Officer, Hindumal Kot after recording the first information report Ex. P. 1 registered the case under Section 302, I.P.C., and went on the scene of occurrence. He prepared a site-inspection memo Ex. P. 10, inquest report Ex. P. 3, and description memo of the dead body Ex. P. 2. A small string lying near the dead body was also seized by him vide Ex. P. 4. Pieces of blood-stained black thread and the clothes of Mst. Lichhma were seized vide Ex. P. 9 and Ex P. 8 respectively. The autopsy on the dead body of Mst. Lichhma deceased) was performed by PW. 16 Dr. Ramlal Goyal, who noticed 9 external incised wounds on her dead body. The post-mortem report is Ex. P. 33. On September 20, 1975 the accused-appellant Nanuram was arrested. The appellant expressed his desire to get the ornaments Ex. 1 to Ex. 3 recovered from the place where he had concealed them. The information was reduced into writing, and has been marked as Ex. P. 21. In pursuance of this information the accused took the Sub-Inspector of Police and the attesting witnesses to the field of Dularam Sultansingh known as tube-well field & took out the silver and gold ornaments from stock of chaff. The seizure memo is Ex. P. 11. The articles recovered were seized and sealed in presence of the Motbirs on the spot. The Panchnama Ex. P. 11 bears the signatures of the Investigating Officer. two attesting witnesses and the thumb-impression of the accused-appellant. On the same day the accused-appellant expressed his desire to get the spade ('Kassi') recovered from a corner of his room where he had placed it after the murder. The information was reduced into writing and has been marked as Ex. P. 22. In consequence of the above information the accused led the police party to his house and got the spade ('kassi') recovered. As the spade ('kassi') had some blood-stains on it, it was seized and sealed in presence of the attesting witnesses PW. 10 Dedaram and PW. 12 Hazari. The seizure memo is Ex. P. 18. Thereafter the accused further expressed his desire to get the blood stained shirt recovered from his house. This information was reduced into writing and has been marked as Ex. P. 23. In consequence of the above information a blood stained shirt was seized and sealed. The seizure memo is Ex. P. 14. The articles recovered from the possession of the accused and from the scene of occurrence were sent to the Director, State Forensic Science Laboratory, Rajasthan, Jaipur, whose report is Ex. P. 24. The articles were also sent to the Serologist, Government of India, Calcutta. The report is Ex. P. 25.

3. The test identification of the gold and silver articles Articles 1, 2 and 3 was conducted by PW. 13 Shri S.C. Goyal, Munsiff-Magistrate, Ganganagar. They were identified as belonging to Smt. Lichhma (deceased) by PW. 4 Choturam (husband), Chelaram, brother of the deceased, and Ramratan-goldsmith at whose shop the articles were got prepared by Chelaram.

4. The police after usual investigation submitted a challan against the accused-appellant Nanuram in the Court of Additional Munsiff-Magistrate, Sri Ganganagar, who committed the accused to stand his trial under Sections 302, 376 and 379 I.P.C..

5. At the trial before the learned Additional Sessions Judge, Sri Ganganagar the accused-appellant pleaded not guilty to the charge. In order to bring home the charge, to the accused appellant Nanuram, the prosecution examined 16 witnesses. P.W. 1 Sultansingh is the author of the first information report Ex. P. 1. He along with his brother Dularam is the owner of the field in which the dead body of Mst. Lichhma was found. He is also the owner of the field from which the ornaments gold Murti of Pabuji Ex. 1 silver Hansali' Ex. 2 and a pair of silver Kadi Ex. 3 belonging to Mst. Lichhma (deceased) were recovered at the instance of the accused appellant. PW. 2 Rampratap is an attesting witness of the site plan Ex. P. 10 Description memo of the site Ex. P. 10 A, & other documents were prepared at the site. PW. 3 Chetan Ram was examined to prove the presence of Mst. Lichhma (deceased) on the date of the occurrence near the tube-well of PW. 1 Sultansingh at 12 in the noon P.W. 4 Choturam is the husband of Mst. Lichhma (deceased). P.W. 5 Pepli is the daughter of the deceased Lichhma PW. 6 Hariki hen is the brother of the deceased Lichhma. PW. 7 Omprakash and PW. 8. Tilok were examined to prove that the accused was present near the place of occurrence on the date of the incident at 1.30 p.m. and he emerged out of the field in which the dead body of Mst. Lichhma was found on the next day. PW. 9 Hariram is attesting witness of Ex. P. 11 seizure memo of the ornaments belonging to Mst. Lichhma (deceased) recovered at the instance of the accused. PW. 10 Dedaram is the attesting witness to the seizure memo of the ornaments Ex. 1, 2 and 3 and spade ('kassi') Ex. 4, 'Kachchha' Ex. 6. PW. 11 Chelaram is the attesting witness to the recovery memo of spade('kassi') Ex. 4. PW. 13 Shri S.C. Goyal Munsiff-Magistrate, Sri Ganganagar was examined to prove the test identification of the ornaments belonging to the deceased Lichhma. PW. 14 Shri Ramratan is the gold-smith at whose shop the ornaments Ex. 1, 2 and 3 were got prepared. PW. 15 Ramswaroop is the Investigating Officer of this case. PW. 16 Dr. Ramlal Goyal is the person who performed the autopsy on the dead body of Mst. Lichhma.

6. The accused in his statement recorded under Section 313. Cr. P.C. denied his complicity in the crime. He however stated that on the fateful day he was at a distance of 3 Murabbas' beyond the field which is known as 'Tube-well-wala-field'). He admitted that PW. 7 Omprakash and PW. 8 Tilok met him and questioned him regarding the cry heard by them to which he replied that he was as calling his sister. In reply to question No. 4 he stated that these ornaments were habitually worn by the deceased Lichhma. The accused did not examine any witness in his defence. The learned Additional Sessions Judge before whom the accused-appellant was tried acquitted him of the charge punishable under Section 376, I.P.C.. He, however, accepted the evidence regarding commission of the murder of Mst. Lichhma (deceased) by the accused-appellant and held that the prosecution case against him under Section 302, I.P.C. was proved beyond any shadow of doubt. He convicted and sentenced the appellant as mentioned above.

7. Aggrieved with the above mentioned judgment the accused-appellant has challenged his conviction and sentence by this appeal. The learned Additional Sessions Judge has also made a reference to this Court under Section 366, Cr. P.C. for confirmation of the sentence of death awarded to the accused-appellant. Both are being disposed of by a common judgment.

8. Mr. Bajwa, learned Counsel for the accused-appellant has urged that there are certain outstanding features of this case which according to him are sufficient to throw a doubt on the entire prosecution case. His contention is that Mst. Lichhma (deceased) must have met her death more than 48 hours prior to the performance of the post-mortem examination on her dead body & the entire prosecution case is based on got-up witnesses. She may have been assaulted by an unknown assailant & the appellant has been falsely roped in. PW. 7 Omprakash & PW. 8 Tilok are chance witnesses. They have made improvements in their statements before the court upon their police statements, and it would not be safe to place any reliance on their testimony. The evidence regarding the recovery of the ornaments of the deceased Lichhma Ex. 1, 2 and 3 at the instance of the accused appellant is spurious. It has not been proved that the stains on the spade ('kassi') Ex. 4 and shirt Ex. 9 were of human blood. The field from which the ornaments of the deceased Lichhma are alleged to have been recovered was an open place and accessible to all & sundry and it can not be held positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of some-body else having placed the articles there and of the accused some how acquiring the knowledge about their whereabouts. The case against the accused-appellant Nanuram is not free from a reasonable doubt and the accused must necessarily have the benefit thereof. In the alternative he submitted that in the facts and circumstances of the case the accused-appellant can at the most be held guilty of the offence punishable under Section 411, I.P.C.. The learned Public Prosecutor, appearing on behalf of the State, has supported the judgment of the trial court.

9. It is not disputed that there is no direct evidence connecting the accused-appellant with the crime and we shall have to examine the circumstantial links on which rests the prosecution case to seek whether the prosecution has succeeded in bringing home the guilt to the accused-appellant beyond reasonable doubt. Therefore, we shall examine each link separately in light of the criticism levelled against it by the learned Counsel for the appellant. Thereafter we shall also take into consideration the effect of the totality of the circumstances proved for determining whether the circumstances established on the evidence are sufficient to bring home the guilt to the accused appellant or not. There can be no manner of doubt that Mst. Lichhma (deceased) was a victim of a beastly assault. It cannot be disputed that a large number of injuries were caused to Mst. Lichhma (deceased) in Killa No. 20, Murabba 23 belonging to PW. 1 Sultansingh & Dularam. PW. 16 Dr. Ramlal Goyal who performed the post-mortem examination on the dead body of Mst. Lichhma (deceased) found 7 incised wounds and two cut wounds over the different parts of the body of the deceased. The external injuries noticed by PW. 16 Dr. Ramlal Goyal are as under:

(1) Incised wound (oblique 3' x 2' on first cervical vertebrae.

(2) Incised wound (oblique) 3' x 1/4' x on mid back of neck.

(3) Incised wound transverse 4' x 2'x on the back of neck.

(4) Incised wound oblique 1' x 1/4' x1/2' supra scapular region right side.

(5) Incised wound oblique 2' xl' x bone deep on the right shoulder anteriorly.

(6) Incised wound 6' xl 'x bone deep on the dorsum of right hand.

(7) Incised wound (vertical) 3'x1/4'x bone deep on the dorsum of left hand and ring finger.

(8) Gut left leg at upper two third and lower one third separated from body.

(9) Cut right leg at 2/3rd upper and 1/3rd lower separated from the body.

In the opinion of the doctor all the above mentioned injuries except injuries Nos. 8 and 9 were ante-mortem. On opening the dead body, the doctor found fracture of 1st, 3rd and 4th vertebrae in multiple pieces. He also noticed that the spinal cord was cut and congested, at the site of fractured vertebrae. The death of Mst. Lichhma (since deceased) according to PW. 16 Dr. Ramlal Goyal was due to acute spinal shock and bleeding due to multiple incised wounds at neck region and fracture of cervical vertebrae. A perusal of the post-mortem report Ex. P. 33 shows that according to PW. 16 Dr. Ramlal Goyal Mst. Lichhma (deceased) must have met her death on September 17, 1975.

10. It is also not in dispute that from the statements of PW. 15 Ramswaroop, Investigating Officer, PW. 2 Ram Pratap, Ex. P. 10 - site-plan and Ex. P 10 A description memo of the site and other evidence on record it stands amply proved that the mutilated body of Mst. Lichhma (since deceased) was found in Killa No. 20 of Murabba No. 23 in which a 'keekar' tree was standing and the cotton plants of P.W. 1 Sultansingh and Dularam were growing. It is also not in dispute that the tube-well of PW. 1 Sultansingh and Dularam is situated in Killa No. 15 of Murabba No. 22. Both these killas are adjacent to each other. Killa No. 15 is known as tube-well of PW. 1 Sultan Singh.

11. Mr. Bajwa, learned Counsel for the appellant, disputed the time and date of deceased Mst. Lichhma's death seriously. He urged that a series of changes, one following the other, take place in the dead body with the passing of time:

(i) The dead body loses its glossiness.

(ii) Rigor mortis.

(iii) Post-mortem staining;

(iv) Putrefaction: Daring the course of putrefaction progressive changes take place in the dead body;

(a) colour of the skin changes;

(b) blisters are formed;

(c) fluid of the stomach forty-mucus and even blood stained fluids are forced out of the month; and

(d) When the body starts decomposing and emitting stinking smell, the blue bottle flies sit & lay eggs in the cavities, and the eggs ultimately are matured as maggots.

12. Placing reliance on the chart given at pages 16 and 17 in the book of Forensic Medicine by Keith Simpson, Sixth Edition and conclusion arrived at by Machenzie from his observations on dead bodies in Calcutta given in the tabular form at page 129 of Modi's Medical Jurisprudence and Toxicology, Nineteenth Edition, the learned Counsel for the appellant urged that the rigor mortis could pass away between 24 to 36 hours of the death and putrefaction could commence only after 2 days of the death. He also quoted following passage appearing at page 114 from the Medical Jurisprudence and Toxicology, Eleventh Edition by Glaster, which reads as under:

In the majority of cases rigor will have commenced to pass off in about thirty six hours but, in cold whether, and for other reasons, a much longer interval may elapse.

He further urged that putrefaction takes place after the rigor mortise disappears and maggots begin to form generally in 24 hours and are fully formed in 36 hours after the rigor mortis has disappeared. In support of this contention he read page 34 of Rajinder S. Grewal. The learned Counsel for the appellant urged that when the above mentioned tests are applied to the facts of the case on hand, that is, the external condition of the dead body of Mst. Lichhma mentioned in the postmortem report Ex. P. 33, which reads as under:

I-EXTERNAL APPEARANCE

1. Condition of subject-stout, emaciated, decomposed etc:

Dead body of a middle age lady, Decomposition setting in maggots are there in the wounds Right eye lost from body. Left eye closed. Fourth coming out of mouth. PM staining on back parts. Rigor mortis absent.

It can be safely said that Mst. Lichhma (deceased) must have met her death atleast more than 48 hours prior to performance of the autopsy on her dead body by PW. 16 Dr. Ramlal Goyal, and thus by a fair estimate of the time Mst. Lichhma's death must have occurred on September 16, 1975 and not on September 17, 1975 as alleged by the prosecution.

13. The learned Government Advocate, appearing on behalf of the State urged that the time of on-set and lasting of rigor mortis depends upon a number of circumstances and it varies from case to case and similarly it is not the rule that putrefaction follows with the disappearance of the rigor mortis. The month of September is supposed to be the hottest part of season in Sri Ganganagar. None of the books cited before this Court were shown to PW. 16 Dr. Ramlal Goyal in the trial court. The appearance of the maggots in the wounds cannot conclusively fix the time of death, and there is nothing on the record to hold that Mst. Lichhma did not die on September 17, 1975.

14. We find considerable merit in the arguments advanced by the learned Counsel for the State. No hard and fast rule can be laid down as to how many hours after the death rigor mortis should start and when putrefaction should commence. It depends on a number of circumstances such as:

(a) atmosphere-putrefaction commences at a temperature at about 50 F., and is most favoured between 70 F., and 110 F., The greater amount of air, greater will be the germs which will action the body and hasten Putrefaction. (Medical Jurisprudence and Toxicology by Rajinder S. Grewal, page 35).

(b) moisture;

(c) if the muscles have been over worked before death the onset is faster than when there has been no fatiguing;

(d) nature of the wounds.

Dr. Modi in his text book of Medical Jurisprudence and Toxicology 19th Edition, at page 124, has observed as under:

Cases have occurred in which rigor mortis developed and disappeared within an hour and half after death.

15. Dr. Taylor in Taylor's Principles and Practice of Medical Jurisprudence, Vol I, at page 190, while dealing with the subject of disappearance and appearance of rigor mortis has quoted the following example which can be read with advantage:

A man died in one of the Parsian hospitals in 1849 in whose body cadaveric rigidity appeared three minutes after he had ceased to breathe, and while the heart was still beating twenty times in a minute, while the man was still alive, if life is considered to persist so long as the heart beats. These beats did not cease till three minutes and a half after cadaveric rigidity had shown itself everywhere. A quarter of an hour afterwards there was no trace of cadaveric rigidity, and in less than hour after death signs of putrefaction had appeared in the limbs. This man died of exhaustion, after prolonged typhoid fever.

It will be profitable to remember that nearly 40 days back Mst. Lichhma (deceased) had given birth to a child. She sustained 9 injuries with a sharp edged weapon. Her left and right legs were cut into pieces. The injuries must have led to profuse bleeding. The place where the dead body was lying was an open field and the occurrence took place in the month of September. As such on the proved facts and circumstances of the case there is nothing unusual if putrefaction set-in soon on the dead body of Mst. Lichhma (deceased). Putrefaction can commence before rigor mortis has completely passed off. Following passage appearing at page 127 of Modi's Medical Jurisprudence and Toxicology, may be read with advantage:

External Phenomena - It is said that putrefaction follows the disappearance of rigor mortis, but this is not always the case; since, in Northern India, especially during the months from April to October, it commences before rigor mortis has completely passed off from the lower extremities. This fact was observed by Modi in a large number of dead bodies in Agra and Lucknow. India being a big country, the climate conditions vary so much in different parts that it is impossible to give the exact time when the putrefactive processes develop in a dead body.

16. The above noted injuries on the dead body of Mst. Lichhma and the description memo of the dead body shows that the injuries sustained by Mst. Lichha (deceased) were open wounds and the dead body was also lying in an open field. As such flies must have sat on the wounds and might have laid their eggs It cannot be said that because maggots were found on the dead body more than 24 hours must have passed between the appearance of the maggots and the time of death of Mst. Lichhma. Reference may be made to page 129 of Modi's Medical Jurisprudence and Toxicology:

Flies, such as common house-flies and blow flies, are attracted to the body, and lay their eggs, especially in the open wounds and natural orifices. The eggs hatch into maggots or larvae in from eight to twenty-four hours during hot weather. The maggots crawl into the interior of the body and help in destroying the soft tissues. Sometimes maggots appear even before death, if a person has ulcers on him.

Thus there is a vast divergence of opinion between various writers on this subject, and it cannot be said that the opinions of these authors were given in regard to the circumstances exactly similar to those which arose in the case on hand. The appellant had an opportunity to cross-examine PW. 16 Dr. Ramlal Goyal. The date of death of Mst. Lachhma according to the postmortem report Ex. P. 33 was September 17, 1975. From the statements of the prosecution witnesses, P.W. 5 Mst. Pepli, PW. 7 Omprakash, PW. 8 Tilok and PW. 3 Chetanram the time of death of Mst. Lichhma has been fixed between 12 noon to 3 p.m. on September 17. 1975. The evidence of the medical expert and the above named witnesses cannot be discredited only on the basis of various passages from the books of Medical Jurisprudence relied upon by the learned Counsel for the appellant. In Sunder lal v. The State of Madhya Pardesh : AIR1954SC28 their Lordships of the Supreme Court disapproved, Judges drawing conclusions adverse to the accused by relying upon such passages in the absence of their being put to the medical witness. This case was followed in Bhagwan Das and Anr. v. State of Rajasthan : [1957]1SCR854 .

17. The second contention raised by the learned Counsel for the accused appellant is that the dimensions of injuries Nos. 1 and 3 are different than that of injuries Nos. 2, 4 and 7 as well as 5 and 6 and as such more than one weapon must have been used and more than one person must have participated in the assault on Mst. Lichhma (deceased). We find no merit in this contention of the learned Counsel for the appellant. The appellant has failed to cross-examine PW. 16 Dr. Ramlal Goyal on this point. Injuries No. 6 and 7 must have been received by the deceased while making an attempt to save her life at the time when the accused-appellant inflicted injuries on the neck & other parts of her body. All these injuries could be caused by the spade ('kassi') Ex. 4, produced in the case.

18. We may now deal with the evidence about the deceased Lichhma having been seen at or about the place of occurrence on the date of occurrence. The evidence in this respect consists of the statement of PW. 5 Mst. Pepli, PW. 4 Choturam, and PW. 3 Chetanram. According to PW. 5 Mst. Pepli of the fateful day after cutting the grass and tying the bundles she in the company of her mother Mst. Lichhma (deceased) and Mst. Charanki started for their home. When they reached near the well of PW. 1 Sultan Singh's field her mother Mst. Lichhma (deceased) told them that she will go and drink water to quench her thirst, and they should proceed. As her mother did not reach home, and her younger brother was weeping she came back after some time to starch her. Her statement stands corroborated by the statement of her father PW. 4 Choturam, who has stated that Mst. Pepli told him that while returning back her mother Mst. Lichhma went on the tube-well for drinking water & Mst. Pepli went to her house and thereafter her mother Mst. Lichhma did not reach her house. The statement of PW. 4 Choturam on this point can be used for corroboration of the statement of P.W. 5 Mst. Pepli Under Section 157 of the Evidence Act. P.W. 3 Chetanram stated that after tailing with him & drinking water Mst. Lichhma (deceased) went towards her field. Reference may be made to Ramratan and Ors. v. State of Rajasthan : [1962]3SCR590 . There is no reason to disbelieve their statements. Thus it stands proved that on the date of the occurrence after 12 noon Mst. Lichhma (deceased) had gone near the scene of occurrence.

19. Now we may refer to the other circumstances that the accused was seen emerging out of the field in which the dead body of Mst. Lichhma (deceased) was found on the next day. The evidence in this respect consists of PW. 7 Omprakash and PW. 8 Tilok. PW. 7 Omprakash stated that on the fateful day he was coming with his cattle in the company of PW. 12 Hazari and PW. 8 Tilak towards the village nearly at 1 or 1.30 p.m. When they reached near the field known as 'Tube-well' of PW. 1 Sultansingh and Dularam, they heard a shriek 'Ore Ore'. At that stage Nanuram accused emerged cut of the reeds from the side of the cotton held of Dularam, situated adjacent to the tube-well. The witness goes on to state that they questioned Nanuram accused as to what made him to cry on which Nanuram accused retorted that they had no business to ask and in the same breath he stated that it was on account of his suffering a thorn prick. Thereafter the witness came to his village In the evening it was heard that Mst. Lichhma (deceased) was missing and on the next day they came to know that Mst. Lichhma (deceased) had been done to death in the cotton field adjacent to the field of PW. 1 Sultan Singh known as tube-well. PW. 8 Tilok state 1 that the witness in the company of PW. 7 Omprakash, PW. 9 Hariram and Tarachand was going towards the village at 1.30 p.m. When they reached near the tube-well of PW. 1 Sultansingh they heard shriek 'Ho Ho'. That shriek was coming from a direction near the tube-well. At that stage Nanuram accused appellant emerged out of the reeds from the field where the 'keekar' tree was standing. On their questioning as to what made him to cry, Nanuram accused retorted that they had no business to ask and in the same breath he stated that it was on account of his suffering a thorn prick. The learned Counsel for the accused-appellant has drawn our attention to the portions of the statements of these witnesses wherein they admitted 'that from the 'patri' of the canal the tube-well and the cotton field of Dularam were not visible.' On the basis of the above admission made in cross-examination by the witness it was urged that the witnesses could not have seen as to from which field the accused-appellant came out. They could have at the most seen him coming out of the reeds, and the witnesses played on their imagination in stating that the accused emerged out of the cotton field of Dularam where the 'keekar' tree was standing or which was adjacent to the field known as tube well. He further urged that these witnesses are chance witnesses, and they have been introduced later on to fit in the prosecution case. It was also urged that these witnesses in their statements before the Police did not state the exact word of the cry heard by them. They simply stated that they heard the cry of Nanuram and the improvement in their statements before the trial court has been purposely made in order to give an impression that the witnesses heard the cry of the deceased. We are unable to agree with the learned Counsel for the accused-appellant that these two witnesses can be termed to be chance witnesses. They are cattle grazers and there is nothing unusual in their grazing the cattle near the canal. We find nothing strange in their not going to graze the cattle in the same direction on the next day because be that time it was made known to them that the dead body of Smt. Lichhma (deceased) was lying on the cotton field of Dularam adjacent to the field known as Tube-well. The minor contradictions appearing in the statements of these two witnesses or the absence of the exact words regarding the cry heard by them cannot be held to be a sufficient ground to discard their testimony. On the basis of trifling contradictions the evidence of a witness cannot be rejected. It is difficult to believe that these two witnesses who have no axe to grind against the accused-appellant and who are not relatives of the deceased Lichhma and whose presence at the well is admitted by the accused in his statement recorded under Section 313, Cr. P.C. would go out of their way to depose certain facts, and the events against the accused-appellant which may lead to his conviction in a capital charge, unless they had heard the cry and seen the accused emerging out of the cotton field of PW. 1 Sultan Singh and Dularam where the 'keekar' tree was standing. The trial court had an opportunity to watch the witnesses in the witness-box. The learned Judge has placed reliance on their statements and we feel that there is no reason to hold otherwise. From the statements of PW. 7 Omprakash and PW. 8 Tilok it stands proved beyond reasonable doubt that the accused was seen by them coming out of the reeds from the side of the cotton field of PW. 1 Sultan Singh & Dularam in which the 'keekar' tree was standing & which is situated near the field known as Tube-well and at the relevant time they heard the cry coming from the side adjacent to the tube-well.

20. Then we have the evidence of the recovery of blood stained shirt of the accused. From the statement of PW. 15 Ramswroop and Ex. P. 23 it appears that the accused appellant after his arrest expressed his desire to get the blood stained terylene shirt Ex. 5 recovered from his house. This information was reduced into writing and has been marked as Ex. P. 23. In consequence of this information a blood-stained shirt was recovered from the house of accused hanging on a peg in his room. The recovery memo is Ex. P. 14. This recovery has been proved by the statements of PW. 15 Ramswroop and PW. 12 Hazari. The Director, State Forensic Science Laboratory, Rajasthan, Jaipur found it to be stained with blood but the quantity of blood on it was considered too small to be forwarded to the Serologist for serological examination. The accused-appellant in his statement under Section 313, Cr. P.C. stated that he did not give any information to the Police, but a shirt and a 'kachcha' were seized by the Police from his person. The recovery of blood stained shirt from the possession of the accused-appellant though not proved to be stained with human blood is a circumstance which goes a long way in lending a support to the other evidence against the appellant. No doubt this circumstance considered in isolation and divorced from the context may in itself be not sufficient to convict the accused appellant but is an important circumstance in the chain of circumstances relied upon by the prosecution.

21. Then we have gut the evidence of the recovery of blood stained spade ('kassi' Ex. 4 made at the instance of the accused-appellant from his home. The evidence in this respect consists of the testimony of PW. 15 Ram Swaroop, Investigating Officer of the case, who has stated that the accused after his arrest expressed his desire to get a blood-stained spade ('kassi ) recovered from the place of its concealment. The information memo is Ex. P. 22. On September 20, 1975 Nanuram accused-appellant gave information under Section 27 of the Indian Evidence Act to PW. 15 Ramswaroop which when translated broadly is to the effect that 'spade with which I have committed the murder of Lichhma has been placed on the left side corner of the 'kotha' of my house which I shall get recovered while going with you.' The Police party in the company of PW. 12 Hazari along with Nanuram accused-appellant and other Motbirs proceeded towards the house of the accused-appellant. The accused led the party to his House and took out the spade (kassi) from the corner of the 'kotha' of his house. As the kassi' had stains of blood over it, it was seized and sealed. The recovery memo is Ex. P. 18. The seizure of the blood-stained 'kassi' at the instance of the accused-appellant has been proved by the statement of PW. 15 Ramswaroop and PW. 12 Hazari. The learned Counsel for the accused-appellant has urged that the 'kassi' bears the name of Dularam and as it was not sent to the Serologist and there is nothing to hold that it was stained with human blood it is of no avail to the prosecution. The accused in his statement under Section 313 Cr. P.C. denied to have got it discovered. For raising a presumption of guilt against the accused-appellant the ownership of the weapon of offence cannot be said to be of much importance. The matter of consequence is possession and its use by the accused. The accused has failed to give any explanation for his possession of the blood-stained 'kassi' Ex. 4, a weapon, which if used against the deceased could have caused the injuries found on her person Nevertheless the blood stains found over it have not been established to be of human blood yet its recovery construes a strong circumstance against the accused appellant. In this view of the matter we stand fortified by various decisions of their Lordships of the Supreme Court of India and of this Court; In Shankar Bhika v. The State of Maharashtra : 1972CriLJ744 the present Chief Justice Hon'ble Beg J., as he then was while dealing with the circumstantial evidence in that case held the recovery of a blood stained axe at the instance of the accused as relevant piece of evidence though the blood found on it was disintegrated and it could not be determined whether it was human blood. His Lordship further observed as under:

Fifthly, the blade of the axe which was actually dug out by the appellant was of such a nature that according to the medical evidence, the blow; with sharp edged weapon on the neck of the deceased Kandabai which caused her death could have been given by it.

22. In Ram Prakash v. State, of Punjab : 1959CriLJ90 the recovery of blood stained dagger from the possession of the accused of that case was considered as corroborative piece of evidence though owing to the long delay in sending the blood stained dagger to the Chemical Examiner its origin could not be determined.

23. In Wasimkhan v. The State of UP : 1956CriLJ790 the recovery of blood-stained knife from the possession of the accused was considered as an important circumstance against the accused of that case though the blood stains found on the knife in that case were minute and were not established to be of human blood.

24. Now we will deal with the recovery of Ex. 1 gold 'murti' of Pabuji, Ex. 2 Silver Hansali and Ex 3 a pair of silver 'kadi'. P.W. 15 Ram Swaroop stated that on September 20, 1975 the accused-appellant Nanuram after his arrest gave information under Section 20 of the Evidence Act to him that he wanted to get recovered the pair of silver 'kadi', a silver 'Hansali' and a gold 'murti' of Pabuji concealed by him in the field known as Sultansingh's tube-well in a coop of chaff near the reeds surrounding the chaff. The information was reduced into writing and has been marked Ex. P. 21. In consequence of this information the above mentioned ornaments were recovered at the instance of the accused-appellant in the presence of Motbirs. The seizure memo is Ex. P. 11. The evidence in respect of the recovery of these ornaments consists of the testimony of PW. 15 Ramswaroop, PW. 9 Hariram and PW. 10 Dedaram. The learned Counsel, appearing on behalf of the accused-appellant has challenged the recovery of these articles. He has urged that the evidence of all the three witnesses is contradictory to each other. The learned Counsel has pointed out the relevant portion of the statement of PW. 9 Hariram. wherein the witness stated that nearly at 11 A.M. the Police came to them. At that time the accused appellant Nanuram was under arrest. The Thanedar told the witness and others accompanying him for the recovery of ornaments. The accused-appellant Nanuram led the police to the place where there was a coop of chaff and from that coop of chaff the accused-appellant Nanuram brought out the ornaments Ex. 1 to 3. The learned Counsel urged that the above statement suggests that the accused had already informed the police as to the whereabouts of the ornaments, whereas P.W. 15 Ram Swaroop has stated in cross-examination that he arrested the accused-appellant Nanuram on September 20. 1975 at 1 A.M.. on the scene of occurrence. Thus the statements of both these witnesses: PW. 9 Hariram and PW. 15 Ramswaroop are contradictory to each other regarding the time and place of the arrest of the accused and giving of the information prior to the discovery of the ornaments. He further stated that according to PW. 9 Hariram there were only 4 or 5 coops in the field from where the ornaments were recovered and only 2 coops were surrounded by reeds whereas according to the seizure memo Ex. P. 12 there were 7 coops of chaff and according to PW. 10 Dedaram there were only 2 coops in the field from which the ornaments were recovered. On the basis of the above counsel urged that no reliance can be placed on the evidence regarding the recovery of the ornaments at the instance of the accused. These contradictions are suggestive of two possibilities: (i) that the recovery is fake and (ii) that none of the witnesses went to the place from which the recovery of the ornaments was made and they were made to sign the 'Panchnama' and gave the statements in the court at the behest of the Police. We do not feel persuaded to agree with the learned Counsel for the accused-appellant Slight variations and discrepancies in details are bound to appear in the testimony of a truthful witness. While seaming the evidence of various witnesses the court is required to inform itself that the variances on the fringes, discrepancies in details and contradictions in narrations cannot militate against the veracity of the core of the testimony provided there is an impress of truth and confirmity to probabilities of the case. Time is hardly of any importance to a villager in his life and even the urban folk make mistake about the time when a witness has no particular reason to remember it. Thus the discrepancy of time regarding the apprehension of the accused is of no consequence in this case. It has came in the evidence of PW. 15 Ramswaroop that prior to the formal arrest of the accused appellant Nanuram the accused was interrogated by the police and as such there is nothing unusual if the Investigating Officer asked PW. 9 Hariram to accompany him as he was going for recovery of the ornaments at the instance of the accused. Thus it stands proved that the ornaments Ex. 1, 2 and 3 were recovered from the field known as Sultansingh's tube-well, where they were concealed by the accused in the coop of chaff surrounded by reeds and the accused brought them out from the place of their concealment. The place from which these articles were recovered cannot be termed to be open and accessible to all and sundry. There is nothing on the record to show that the ornaments were visible and were lying in open. On the contrary the prosecution evidence goes to prove that the accused brought them out from the coop of chaff where they were lying concealed.

25. Another argument raised by the learned Counsel for the accused appellant was that the recovery witnesses are silent as to the story of concealing. All that the accused appellant, according to the witnesses had said, was that he will get the ornaments recovered. The process was not a detailed one. The information memo regarding the ornaments is Ex. P. 21 which clearly indicates that the ornaments were canceled and the accused-appellant stated that he had concealed them in the coop of chaff under the reeds and was ready to get them recovered. In the case on hand the following words appearing in Ex. P. 21:

V~;wc osy ds ikl rqM+h ds cus gqos dwi es ljxuks ds uhps j[k fn;s gS tks eS reke xguk lkFk es py dj cjken djk nwaxk A

are admissible in evidence. On the question of admissibility of the statement of the accused-appellant quoted above in Hindi the trial court thought it to be admissible and we think that it has rightly done so Having regard to the decision of the Privy Council in Kottaya v. Emperor AIR 1947 PC 67 Sir John Beamount while delivering the judgment set out the entire statement made by accused No. 6 of that case to the police and held that the whole of that statement except the passage 'I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come' is inadmissible. In other words 'I hid (a spear) and my stick in the roof of Venkatanarasu in the village. I will show if you come' was admissible. Reference may be made to K. Chinna Reddi Swamy v. State of Andhra Pradesh : [1963]3SCR412 .

26. We have no reason for disbelieving the statement of P.W. 15 Ramswaroop, Investigating Officer regarding the statement Ex. P. 21 made by the accused-appellant before him. Inspite of searching cross examination nothing has appeared in the statement of this witness which would justify us in holding that he was not speaking the truth. The contention of the learned Counsel for the appellant, that according to the prosecution the murder of Mst. Lichhma was committed in a veil of secrecy and the person who committed such murder after taking precaution of secrecy was not normally likely to become garrulous after the commission of the offence and acquire a sudden impulse to blurt what he was at pains to conceal and got discovered articles alleged to have been connected with the crime one after the other, is devoid of any merit. The mere fact that the accused took three days in mailing up his mind to give information to the police cannot possibly afford a valid reason for rejecting the information, in consequence of which ornaments of the deceased and other articles connected with the crime have been discovered. It has appeared in the prosecution evidence that prior to the arrest of the accused-appellant he was interrogated by the police and thereafter he was formally arrested on September 20, 1975. By that time the accused must have come to the conclusion that the game was over and he might have given information to the police officer while in custody for divorced motives it may be due to the cry of his conscious to satisfy which he might have wanted to make a clean breast, or it might be the remorse the pangs of which he could no longer endure or it may be due to frustration or to mitigate the gravity of the offence in his own wisdom. The law has trusted a police officer to record the information given to him under Section 27 of the Evidence Act by an accused in custody because the truth of the information ultimately finds guarantee from the discovery of the fact.

27. P.W. 11 Chelaram stated that in the test identification proceedings held before PW. 13 Shri S.C. Goyal, Munsiff-Magistrate, First Class, Sri Ganganagar he identified the ornaments: a pair of silver 'kadi', a silver 'Hansali' and a gold 'murti' of Pabuji as belonging to his sister, Mst. Lichhma (deceased). He further stated that these very ornaments were given by him to his sister at the time of her marriage. P.W. 14 Ramratan stated that the ornaments-gold 'murti' of Pabuji Ex. 1, silver 'Hansali' Ex. 2 and a pair of silver 'kadi' Ex. 3 were identified by him in the test identification before the Munsiff-Magistrate, Sri. Ganganagar. The identification memo is Ex. P. 19 which bears his signatures. He further stated that above mentioned ornaments were got prepared at his shop by P.W. 11 Chelaram at his shop for being given to Chelaram's sister. PW. 4 Choturam, husband of Mst. Lichima (deceased) identified gold 'murti' of Pabuji Ex. 1, silver 'Hansali' Ex. 2, and a pair of silver 'kadi' Ex. 3 in the trial court as belonging to his wife. He further stated that these ornaments were habitually worn by his wife and the same articles were identified by him before the learned Munsiff Magistrate in test identification. The witness further goes on to state that the above ornaments which his wife used to habitually wear were not found on her dead body. PW. 5 Mst. Pepli, daughter of the deceased, stated that on the fateful day when she had gone with her mother Mst. Lichhma (deceased) for cutting grass, at that time her mother was wearing silver 'Hansali' in her neck, a pair of 'kadi' in her legs and a gold murti' of Pabuji in her neck. A perusal of the first information report shows that in the first information report it has been clearly mentioned that a dead body of Mst. Lichhma (deceased) was lying in the cotton field, the legs were found cut, some-body had committed her murder, the gold 'murti' of Pabuji tied in a black thread which she was wearing in her neck and the pair of silver 'kadi and the 'Hansali' were not found and were missing from the dead body and somebody had committed her murder for committing a theft of ornaments, and had removed the ornaments from her person. The learned Counsel for the accused appellant has faintly assailed the evidence of identification. His contention is that the ornaments alleged to have been recovered at the instance of the accused-appellant were not properly sealed and the proportion of the articles mixed for identification was not proper. It has also been urged that though the articles were recovered on September 20, 1975 but the test identification was held on October 16, 1975 and the delay in identification of the articles has not been explained and the possibility of the articles being seen by the witnesses identifying the ornaments cannot be ruled out. We do not find any merit in the contention of the learned council for the appellant. The evidence of identification of an article at the trial is the substantive evidence and the identification of the same articles by the same witness, at the time of test identification, is only a corroborative piece of evidence. There is no earthly reason why PW. 4 Chothuram, PW. 11 Chelaram & PW. 14 Ramratan should make false statements regarding identification of the ornaments. The accused has not claimed these ornaments as to be his own On the contrary, he in his statement under Section 313, Cr. P.C. in reply to question No. 4 stated that Mst. Lichhma (deceased) habitually used to wear these ornaments.

28. Thus from the statements of the above named witnesses it stands proved that the ornaments - Ex. 1, 2 and 3 were habitually worn by the deceased. It further stands proved from the statement of PW. 5 Mst. Pepli that these ornaments were worn by the deceased on the date of the incident. It further stands proved that the ornaments disappeared from the person of the deceased and were recovered at the instance of the accused from the crop of chaff where he had concealed them. It has also come in the evidence of P.W. 4 Choturam that on the date of the occurrence, the accused-appellant was working in the field known as Sultansingh's tube-well. The recovery was made within a short time that is 4th day of the murder. The question thus arises as to how far the recent possession of the ornaments of the deceased in the proved circumstances of the case indicates that the possessor of the ornament was guilty of the more aggravated crime that is murder. From the statement of P.W. 16 Dr. Ramlal Goyal and the perusal of the post-mortem report Ex. P. 33 and the photographs of the dead body Ex. P. 26 to 32 it stands proved that the legs of Mst. Lichhma (deceased) were cut and separated from the body. This fact when considered in conjunction with the fact that the pair of silver 'kadi' which the deceased used to wear were not found near the dead body or on her body goes to prove that in the case on hand the murder and robbery form a part of the same transaction. It is well settled that in a case where murder and robbery form integral part of a transaction recent and unexplained possession of the stolen property as in the case on hand would be presumptive evidence on charge of theft or robber) with murder.

29. The real question, therefore, is whether the evidence in the case on hand establishes that the appellant murdered Mst. Lichhma (deceased) and robbed her of the ornaments?. In the case of Queen Empress v. Sami ILR 13 Mad. 426 at p 432 (B) the learned Judges of the High Court observed:

Under these circumstances, and in the absence of any explanation the presumption arises that any one who took part in the robbery also took pan in the murder. In the cases in which murder and robbery have been shown to form parts of one transaction, it has been held that recent and unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him on the charge of murder. All the facts which tell against the appellant especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as of the robbery.

In Emperor v. Chintamony (10) it was observed.

the possession of stolen goods recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more aggravated crime which has been connected with the theft; this particular fact of presumption forms also a material element of evidence in the case of murder.

30. Both these cases were approved by their Lordships of the Supreme Court in Wasim Khan v. The State of Uttar Pradesh : 1956CriLJ790 .

31. In Wills on Circumstantial Evidence, 7th Edn. p. 104, it is given:

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

Likewise in Taylor on Evidence Vol. I, 12th Edn. p. 135 it is given:

The presumption under discussion is not confined to cases of theft but applies to all crimes, even the most penal...A like inference has been raised in the case of murder accompanied by robbery.

32. In Tulsiram v. State : AIR1954SC1 His Lordship Kania C.J., speaking for the Court laid down:

The presumption permitted to be drawn under Section 114, Illustration (a) Evidence Act, has to be read along with the important time factor If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilty may be permitted.

33. The learned Counsel for the accused-appellant in the alternative urged that the appellant can at the most be convicted under Section 411, I.P.C. and in support of this contention he has placed reliance on State v. Shankar Prasad AIR 1952 All 1776, Jani Shah v. State AIR 1958 A.P. 273, Sanwant Khan and Anr. v. State of Rajasthan : AIR1956SC54 , Sheonath v. State of U.P. : [1970]2SCR643 and Mohd. Inayatullah v. State of Maharashtra : 1976CriLJ481 .

34. The case of Inayatullah v. State of Maharashtra : 1976CriLJ481 is of no avail to the defence because the accused of that case was prosecuted under Section 379 and not under Section 302 I.P.C.. In that case the point argued before the Court was that the drums recovered were not lying concealed or that the compound where they were lying was not under the lock and key of the accused. The place from where the drums were recovered being a 'Mussafirkhana' was from its very nature accessible to all and sundry, whereas in the case on hand, the ornaments belonging to the deceased were recovered from the field where the accused used to work. They were found concealed in stakes of chaff surrounded by reeds and the same were brought out by the accused-appellant from the place of concealment. The spade ('kassi') Ex. 4 was recovered from the house of the accused-appellant which was under his exclusive possession. Similarly the shirt was also recovered from his house, according to the prosecution, and according to the accused from his own person. The case reported in Sanwat Khan and Anr. v. State of Rajasthan : AIR1956SC54 is also distinguishable on facts because in that case there was evidence to the effect that these persons were also interested in murdering the deceased. That statement of law was made in the peculiar circumstances of that case. The case on hand is not based only on recovery of articles belonging to the deceased, but there is other evidence on record, already discussed above.

35. The case of Sheonath v. State of UP : [1970]2SCR643 relied upon by the learned Counsel for the accused-appellant cannot be of much avail to the defence In that case the articles which were recovered from the possession of the accused of that case were a piece of 'charkhana doriya' and a piece of muslin cloth. The appellant of that case was a cloth merchant and he could have acquired those goods as a receiver. Their Lordships further observed that it was also not known that in the village in which the appellant lived it was known that a dacoity had taken place and the goods had been stolen in the dacoity. On the facts of that case their Lordships held that the only legitimate presumption which could be drawn was that the appellant knew that the goods were stolen, but he did not know that they were stolen in a dacoity.

36. The case Jani Shah v. State AIR 1958 A.P. 273 is also of no avail to the appellant because it in no way advances the case of the accused-appellant. Their Lordships of the Andhra Pradesh while dealing with the circumstances appearing in that case no doubt observed as under:

It is true that no hard and fast rule can be laid down as to what inference could be drawn from a particular circumstance but broadly speaking the single circumstance relating to the possession of these articles cannot impel a Court to draw the inference that the culprit was guilty under Section 302, Penal Code. As often pointed out circumstantial evidence must be consistent only with the guilt of the accused person and inexplicable on any other rational hypothesis. Thus it is not safe to invoke Section 114(a) of the Evidence Act for finding the accused guilty under Section 302, Penal Code, on that circumstance alone.

In the same case it was also observed that if the circumstance of possession of articles belonging to the deceased is coupled with some evidence relating to the movement of the accused and the deceased resulting in the inference of the culprit being found with the deceased just before the murder that might warrant conviction under Section 302, Penal Code. The other two cases relied upon by the learned Counsel for the appellant, viz. State v. Prasad AIR 1952 All 1776 and Bhikha Gover v. Emperor AIR 1943 Bom 458 are also distinguishable on facts.

37. We would like to point out, even if we have to repeat ourselves, that the accused-appellant Nanurarn precisely knew the place from where Ex. 1, 2 and 3 were recovered the accused got discovered these gold and silver ornaments which undoubtedly belonged to Mst. Lichhma (deceased). It has also been proved by unimpeachable evidence that Mst. Lichhma (deceased) was seen wearing these ornaments just prior to her murder. These ornaments were found missing on the dead body of Mst. Lichhma and the same were recovered at the instance of the accused from the place of their concealment. These facts, in our opinion, are sufficient in law and fact to lead us to the conclusion that the accused was not only guilty of theft or having received the stolen property but of murder as well. A Division Bench of this Court in Hukma v. State of Rajasthan 1976 RLW 150 where the accused was arrested on March 5, 1971 and the pail of 'murkies, was recovered from the concealment at the instance of the accused on March 7, 1971 took the view that the recovery of the pair of 'murkies, Ex. 4 from the possession of 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. In the proved facts of this case the recovery of the articles Ex. 1, 2 and 3 at the instance of the accused-appellant is not compatible hypothesis but the guilt of the accused-appellant.

38. In regard to the question of the effect and sufficiency of circumstantial evidence for the purpose of conviction, it is now settled law that before conviction based solely on such evidence can be sustained, it must be such as to be conclusive of the guilt of the accused and must be incapable of explanation on any hypothesis consistent with the innocence of the accused. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however, extravagant and fanciful it might be. Before an accused can contend that a particular hypothesis pointing to his innocence has remained unexplained by the facts proved against him, the Court must be satisfied that the suggested hypothesis is reasonable and not far-fetched. Farther, it is not necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point voluntarily to hide guilt. It may be that a particular fact relied upon by the prosecution may not be deceive in itself, and yet if that fact, along with other facts which have been proved, tends to strengthen the conclusion of his guilt, it is relevant & has to be considered. In other words, when deciding the question of sufficiency, what the Court has to consider is the total cumulative effect of all the proved facts such of which reinforces the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that any one or more of those facts by it self is not decisive.

39. The circumstances established on the evidence in the case on hand, give rise to only one inference and one consistent with the guilt of the accused-appellant. Individual circumstances considered in isolation and divorced from the context of over all picture emerging from a consideration of the diversed circumstances and their conjoint effect may by themselves appear innocuous. Each of the circumstances proved in this case when considered individually can be explained by citing a variety of acceptable answers but such circumstances cannot be considered in water-tight compartments. The totality of the circumstances proved in the case are sufficient to hold that the accused-appellant Nanuram was not only a thief or a receiver of stolen property but he was also the murderer. In the circumstances it is not possible to hold that the learned Additional Sessions Judge committed an error in convicting the accused-appellant Nanuram of the offence punishable under Sections 302. I.P.C.

40. Now remains the question of sentence It was not a preplanned or premeditated murder. The accused was sentenced to be hanged till he is dead by the order of the trial court dated October 14, 1976. Since then the agonising consciousness and feeling of being under the sentence of death must have constantly haunted the appellant. Now, under Section 354, of the New Code of Criminal Procedure, 1973 which came into force from 1st April, 1974, the Court while awarding the sentence of death is required to state the special reasons for imposing the sentence of death. The effect of the new Code is the imprisonment for life should normally be recorded unless the Court convicting the accused for reasons which are required to be recorded considers it proper to impose more severe penalty. We have no hesitation in confirming the conviction, but so far as the sentence of death, awarded to the accused-appellant Nanuram is concerned, we do not think that there are aggravating circumstances to justify the extreme penalty of death. On the facts and circumstances of this case we feel that interest of justice requires that the sentence of death should be reduced to that of life imprisonment and we so order.

41. The reference as well as the appeal stand rejected except for the modification in the sentence. The conviction of the appellant under Section 302, I.P.C. is maintained, but the sentence of death passed on him is altered to one of life imprisonment.


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