Jia Lal Kilam, J.
1. Satar Shan & Ali Shan were committed to Sessions to stand their trial under Section 302, R. P. C. The charge against them was that they had committed murder of one Ama Bhat. The learned Sessions Judge Srinagar convicted Ali Shan under Section 302, R. P. C. and sentenced him to life imprisonment. Satar Shan was acquitted. All Shan has now come up in first appeal to this Court.
2. The prosecution story is that Ali Shan and Ama Bhat deceased carried on a Joint business along with some others. They went to Batote side to purchase some cattle after having borrowed a sum of Rs. 1500/- for this purpose. A considerable portion of this amount is alleged to have been looted from them by some people. On arrival back in their village; they met together to discuss how best to distribute the loss amongst the partners. For this purpose they even held a Panchayat. Ali Shan refused to bear any loss in the business with the result that his relations with Ama Bhat deceased became very strained.
The prosecution adds that Ama Bhat swore vendetta on Ali Shan which upset him very greatly and in order to escape the consequences Ali Shan and Satar Shan killed Ama Bhat. After four or five days of holding the Panchayat, Abdul Karim P. W. saw a headless body lying in a nearby field. He informed the villagers who repaired to the place and identified the body as that of Ama Bhat. Information was sent to the police. The police Sub-inspector Ramchand arrived on spot and started investigation. His first anxiety, as he tells us, was to recover the head, and he went in search of it. Ali Shan who was working at that time in his field was seen by the Sub-Inspector wearing a shirt and a waist coat which had blood stains upon them.
The Sub-Inspector started interrogating him, seized the shirt and the waist coat and recovered a coat and a chaddar belonging to the deceased at the instance of the accused which were lying buried underneath sand and stones. Head also, it is said, was recovered at the instance of Ali Shan from a place where it lay buried. Some other recoveries such as that of a sword etc., were made. The accused is also said to have made a confession on 20th Jeth 10. The body was sent for post mortem examination and the following injuries were found on the head and body of the deceased:
(1) One incised wound on the left side of the face cutting through the mandible upper jaw as well as the malar bone.
(2) The bones were broken into several pieces and the wound was cutting deep through the thickness of the bone involved. The left ear was also cut through. The posterior cut was slightly lower than the frontal one. The anterior incised wound passed through the thickness of the muscles. Cartellages of the neck leaving the root of the tongue intact cutting through the body of the vertebra behind. The death seemed to have been caused by cutting the neck at the level of the voice box. Duration on 11-6-2010 was about 3 days. It could be caused by a sharp weapon....
3. The doctor was of the opinion that injuries on the head of the deceased could have been caused by the sword that was recovered from the house of the accused.
4. The following prosecution witnesses have been produced in this case : Khala Bhat, Mst. Khatuni, Mst. Janabibi, Abdul Karim, Aziz Sheikh, Abdullah Tantri, Ismail Tantre, (Lambardar), Rasul Shan, Ali Mohd. Mantoo, Mohd. Akram Khan, Shamas Din Chowkidar, Abdul Khaliq, Rahman Bhat. Qadir Ganai, Ahad Sheikh, Sudershan Patwari, Ramchand sub inspector of police and Lassa Beg Head Constable.
5. These witnesses depose to the existence of business relations between the accused and the deceased, the holding of the Panchayat and the recoveries made at the instance of the accused. It may forthwith be stated here that there is no eye-witness in the case and as such the case has to hinge and as a matter of fact hinges upon circumstantial evidence. Circumstantial evidence is as good as direct evidence with this difference that the circumstances proved against an accused must be such as exclude all inferences but that of the guilt of the accused. But if there is a missing link or that a circumstance is susceptible of another explanation favourable to the accused, such a circumstance cannot be treated as evidence against the accused.
6. The accused has denied having murdered the deceased and says that the confession was the result of police torture.
7. It is abundantly proved on record that there was a controversy as regards the apportioning of loss suffered by the accused and the deceased and some others, which took a bitter turn against Ali Shan, whose behaviour in this matter does not seem to have found favour with anybody in the village. The prosecution wants to establish motive by this evidence. But it may be stated here that the evidence of motive alone would not be sufficient to convict an accused. Motive however strong is nothing more than a link in a chain of circumstances establishing the guilt of a person. At the same time, mere non-establishment of motive would not be a sufficient ground to order the acquittal of an accused.
We, therefore, need not examine the statements of the witnesses produced to prove motive in any great detail. It is sufficient to record that the evidence about the holding of a Panchayat and the subsequent bickerings which arose from the refusal of Ali Shan to share the loss is overwhelming. Motive may have been established, yet we find ourselves unable to agree with the finding arrived at by the trial court. The chain of proved circumstances, as we shall presently see, is weak enough to sustain a finding of murder against the accused.
8. Before proceeding further, we might make some observations with regard to the police investigation. The investigating officer appears to be a very stupid person whose inefficient investigation is mainly responsible for our taking a different view from the one taken by the trial Court. The prosecution alleges that the accused was wearing at the time of his arrest a shirt and a waist coat which had blood stains on them. This was a very strong incriminating piece of evidence against the accused. But the investigating Officer simply bungled. He should have, the moment he had recovered the alleged blood-stained shirt and waist coat from the accused, sealed them in the presence of witnesses and sent them on to the Chemical Examiner for analysis. But for a number of days he allowed the shirt and the waist coat to remain with himself. In a Pull Bench case reported as - 'Jaswant Singh v. State', 1 J & K LR 37 (A), it has been held that:
In a case where the prosecution relies upon recovery of blood-stains from the house of the accused as a piece of circumstantial evidence, it was very necessary for the police to take possession of the articles having such stains in the presence of witnesses and at once seal them so that the possibility of their being placed on those articles later on by the police or somebody connected with the prosecution may be excluded.
But the investigating Officer having failed to take the necessary precautions, we have no other alternative but to exclude from consideration the evidence regarding the blood stains.
9. Then remains the recovery of the clothes belonging to the deceased. That by itself would not be sufficient to connect the accused with the actual murder, though it might disclose a different offence which we shall soon discuss. As regards the recovery of the sword, it was produced from his own house by Satar Shan who has been acquitted. This recovery is obviously not going to fasten any responsibility on the accused. Then remains the recovery of the head. The evidence in this behalf is quite independent and reliable and we are fully satisfied that the head and the clothes of the deceased were recovered as a result of information given by accused Ali Shan.
10. Now that it is established that the coat and chaddar and the head of the deceased were recovered at the instance of Ali Shan, we shall have to see as to whether this circumstance alone will be sufficient to connect the accused with the actual murder. To our mind merely this circumstance is not sufficient to bring home the offence under Section 302, R. P. C. to the accused. Reference here may be made to the so-called voluntary confessional statement of the accused. This confession has been retracted by the accused before the committing Magistrate and besides this it does not appear that the Magistrate has taken all precautions which are necessary to be taken before a confession is recorded.
In his confession the accused has given a statement a portion of which contradicts the other. He does not deny his business relations with the deceased which later on became strained for reasons given above. But in the same breath he claims a sort of friendship with Ama Bhat when he is alleged to have said that on the fateful night they planned a theft in the house of a Gojar and actually did go there, though they returned back unsuccessfully in this adventure. On their return, according to confession, the accused was given a cigarette by Ama Bhat which he smoked and which created some sort of tipsiness in him and in that state of mind he killed the deceased with a sword. The unnatural behaviour of the two people as disclosed by the confession needs no comment.
11. We are not, therefore, impressed with this confessional statement. The question now remains is as to whether on the recovery of the head and clothes of the deceased, a conviction under Section 302 can be maintained. It has been held in a number of rulings that this evidence alone is not sufficient to bring home the offence of murder to an accused person. But the fact remains that the accused knew where the head was. Rather it was a matter within the special knowledge of the accused. It was for him to have explained as to how he came to know of the burial of the head at a particular place. This the accused has not done. It has been held in - 'Mangal Singh v. King Emperor' AIR 1937 PC 179 (B) that:
In a murder case where there is circumstantial evidence against the accused, the legal criterion applicable to such a case is whether the evidence led would satisfy the jury beyond reasonable doubt about the guilt of the accused. It is then for the jury, or for the Judge, if there be no jury, to say whether applying that criterion to the facts proved, the verdict should or should not be one of guilty.
Applying this test to the facts of the present case, all that is proved in our eyes is that the accused knew that the head and the clothes were lying buried at a particular place. We think that under the present circumstances the accused is guilty of an offence under Section 201, R. P. C. 'In re Koricha Venkataswami', 177 Ind Cas 909 (Mad) (C), it has been held that 'the recovery of the body pointed out by the accused would be very strong evidence of an offence under Section 201, I, P. C. (R. P. C.).
12. It was argued before us that the accused having been charged of the principal offence, cannot be convicted of an offence under Section 201, R. P. C. But this argument was considered in - 'Rup Narain Kurmi v. Emperor' AIR 1931 Pat 172 (D), in which it has been held that:
A person cannot escape conviction under Section 201 merely because he has been charged also with the principal offence or because there are some grounds for suspicion that he might be the principal culprit. It is also not necessary that in order to justify a conviction under 8. 201 it must be found that the principal offender is some known person, because there do arise cases where the principal offender may be unknown or untraced.
13. We are, therefore, of the opinion that while the accused cannot be convicted under Section 302, R. P. C., on the evidence before us, he cannot escape conviction under Section 201, R. P. C. We, therefore, acquit the accused under Section 302, R. P. C. and convict him under Section 201, Ranbir P. O. and sentence him to undergo rigorous imprisonment for five years.
14. The appeal is accepted to the above extent.