C.M. Totla, J.@mdashAppellants challenge their conviction and sentence awarded life imprisonment for the offence of Section 302 IPC and ten years R.I. for Section 392 IPC.
2. D.B. Criminal Appeal No. 461/03 is the jail appeal of appellant Balu whereas, D.B. Criminal Appeal No. 462/03 is representative appeal of both and as such are decided by this judgment.
3. Summarizing events leading to prosecution appear to be that on 5.6.02 at about 10 AM killing Smt. Lachhi 70 years of village Bachundla she robbed of silver ''Kadiya'' (weighty rings) from leg and chain from neck she observed, lying in a Nala (rainy drainage-small stream) by her husband PW/10 with many bleeding injuries at head, face and other organs, kachru PW-16 going P.S. informed at 12:30 PM of the incident and SHO PW/17 making entry in rojnamcha proceeded to spot reaching at 12:50 PM where in the ''nala'' was dead body. There PW-10 orally told and lodged information that he left around 6 AM for grazing his goats and when wandering reached there near wife bleeding and dead with ornaments taken away. Alongwith his also were Karun, Puna, Sathu, The information was reduced in writing as Ex. P/3 and SHO making endorsement directing for registration of case began investigation, PW-17 investigating inspected the place of occurrence prepared site memo and there a near body was her shoes and small steel bowl which and blood, sample and also of plain soil collected, inquest that of physical condition of deceased done, postmortem performed and blood stained worn blouse also sealed.
4. Appellant Balu arrested on 28.6.02 and per his disclosure Ex. P/24, two Kadiya and chain respectively being of 400 gm and 100 gm. recovered and seized at his instance from his house preparing memo Ex. P/15. Appellant Radhi arrested on 29.6.02 and per her disclosure Ex. P/26 and at her instance, lying in a little tree near drain recovered a Datrli which seized and sealed preparing memo Ex. P/19 and on the disclosures of appellants and at their instance place of occurrence inspected and verified preparing memos.
5. On request of SHO identification proceedings of recovered Kadiyas and Chain conducted by Sarpanch PW-14 preparing memo Ex. P/6 - ornaments were identified by PW/10 as of her wife the deceased.
6. Per prosecution allegedly in course of investigation also was disclosed that, appellants were found there and also with deceased just before the incident. Forwarding sealed articles intactly to laboratory for examination and after usual investigation, chargesheet submitted.
7. Per FSL report on blood smeared soil and blouse was human blood A-group and stains on recovered Datarli not sufficient for examination.
8. Appellants are charged for the offence of Section 302, 392 IPC of act that with intention of robing Smt. Lachchi of her silver Kadiyas and Chain intentionally caused her death by inflicting injuries of sharp weapon her robed ornament-denied claimed trial.
9. Prosecution examined 13 witnesses.
10. In addition to factum of killing and robing of Smt. Lachhi evidence produced can be summarized like that (i) for last seen-Shambhu PW-5, Dhanna Lal PW-6, Bhuli PW-7 who respectively etc son, grand son and grad daughter of deceased (ii) Regarding presence of Smt. Radhi Lali PW-8- and (iii) Jagdish PW-9 and his wife PW-12 Smt. Bhuli state for appellant Balu having come last night and stayed at their house who going to jungle in morning to relieve himself did not return (iv) recovery of articles and weapon Datarli - PW-17 SHO and motbirs PW-16, PW-5 (v) identificationPW-14 and complainant PW/10, Other related witnesses PW-2, PW-15 and Kachru PW-16 are declared hostile.
11. Dr. Bhardwaj PW-18 conducted postmortem. Other witnesses are motbirs of safe keeping and delivering articles at FSL.
12. Appellant accused Balu stating ignorance of the incident say that he innocent is falsely implicated. Appellant Radhi telling similarly say that her parental house in village Bachundla and matrimonial at Viravali she often comes and go to both the villages. No defence evidence led.
13. Learned Judge inferred (i) causing of death because of injuries caused by sharp weapon (ii) appellant seen there just before death of Smt. lachhi (iii) appellant No. 1 who stayed in house of PW-9 did not come back from jungle where went to relieve himself (iv) silver ornaments recovered at the instance of appellant No. 1 from his possession -- datarli recovered on information of appellant No. 2 (v) recovered ornaments proved to be of deceased. On these and other findings, conviction and sentence as above.
14. Learned Counsel for the appellant contended that evidence regarding last seen is perfunctory, very vague which do not lead to any definite inference and in any case, if any of the appellant was around there that do not lead to any inference-recovery not proved and evidence for it and on other points contrary to each other. Datarli is an article commonly kept by agriculturists which had no blood like stains. Argued that recovery is not proved and even if taking so, they do not lead to commission of offence only by any or both the appellants. Argued that evidence cumulatively seen is very contradictory and inconsistent and articles said to be worn by deceased per her husband as narrated in FIR respectively were weighing 500 gm and 100 gms whereas, recovered are Kadiya of 400 gm and chain weighing 50 gm.
15. Learned Public Prosecutor argues that evidence of son, grand son and grand daughter is definite that both appellants seen there with deceased just before killing and further one of the appellants stayed last night with PW-9 and PW-12. Argued that ornaments robed are recovered from the appellants house and possession.
16. We have carefully examined the evidence produced, judgment assailed and also the memo of appeals.
17. Proved is death of Smt. Lachhi because of many injuries of sharp weapon mainly on head, maxilla, face around neck and ears and looking to the injuries, inference is that injuries inflicted were sufficient to cause death.
18. Per testimony of Sarpanch Tej Singh and husband of deceased Nathu also stands proved is that recovered ornaments i.e. Kadiya and Chain were of Smt. Lachhi. The question is whether or not identification parade proper to be conducted before Sarpanch apart.
19. Kalu PW/2, Puna PW-3, Shambhu PW-5, Nagi PW-19 categorically accept that father of appellant Smt. Radhi Shri Lalu is resident of this village who also have some agriculture land there.
20. PW-2 states that marriage of Radhi celebrated at village Bachundla and her in-laws at Veravali and she often comes to village Bachundla. Similarly say PW-5, PW-6 and PW-6.
21. According to son of deceased Shambhoo PW-5 in evening, after police proceedings, Dhanna and daughter Dhuli told him that in morning when mother (deceased) cleaning house Smt. Radhi coming there talked to her then following Radhi, mother (the deceased) also want towards Khal (stream). PW-5 also say that present was other person towards stream-mother did not return after that father of witness told of she having killed. Per PW/5 earlier never came Radhi at their well. According to Dhanna Lal PW-6 12 years at around 9:30 AM she and sister PW-7 both were playing and Smt. Lachhi cleaning house came Radhi with a Datarli in her hand and eating dates talked to Smt. Lachhi and went towards Khal and following her also went deceased. PW-6 say that also there was a person wearing pant shirt and all three (i.e. deceased, Radhi and that pant shirt wearing person) went towards stream and also that Radhi came with that person and she not came there anytime earlier. But man, Radhi and Lachi came across each other, they talked normal.
22. Bhuli 7 years says that when she and brother Dhanna were playing and mother at home came Radhi eating dates with a Datarli and who talked to mother and then both went towards stream where also visible was a person wearing pant shirt. Radhi talked to that person and these three went towards stream. After two hours grand father coming weeping told of mother being killed. PW-7 says that man was wearing black pant white shirt and she do not know that person.
23. Smt. Lali PW-8 depose that she there was collecting leaves of Khakra (tree plant leaves of which are used for making plates bowls etc.) and from there passed Radhi with a head load of bundle of Khakra. Here may be noted that per PW-7 also there around are many such trees and number of villagers often come to collect leaves.
24. As is observed Smt. Radhi is resident is of this village and her father Lalu have house and also land not far away from land of deceased do show that simply because of present of Radhi by itself can hardly lead to any inference in relation to incident against her.
25. Regarding datarli here suffice to mention that the same is usually kept by villagers for agricultural operations including collection of leaves and bushes like things. Datarli alleged to have been recovered did not have any abnormal signs.
26. Jagdish PW/9 state that at about 7-8 last evening of the incident Pyar chand and appellant Balu came to his house and Pyar chand told him that his (PW-9) is the guest so PW-9 asked appellant Balu about from where he came and he replied that he having come with Pyar chand from Achundla and for no particular reason. Per PW-9 Balu declined to take meals and in night stayed at his house. He slept with Balu out in the compound and morning taking a tin Balu went for relieving himself towards stream who did not return.
27. Wife of PW-9 Bhuli PW/12 also say that came to their house Balu and Pyar chand together and when asked Balu told of having come from Bachundla for no particular reason and declining to take meals remained there in night and in morning went to relieve towards village Bachundla, do not return. Here it may be noted that per PW/9 and 12 both appellant Balu came with Pyar chand who told of having come from Bachundla Pyar chand is not among prosecution witnesses.
28. Kalu PW-2 specifically say that between Khedi and Bachundla is distance of half kilometer, so safely can be said that Bachundla is not far distant from Bachundla Kheli where incident occurred. In any case, if Balu came without reason and for the first time from a near place and alongwith Pyar chand, then version of Pyar chand could have been very significant, Dhanna PW/6 say his house is at village Bachundla and also of sister Bhuli PW-7 is in village Bachundla. These factors raise serious questions and doubts about Balu being unknown or coming for the first time.
29. Witness PW/4 states that Balu never came to him and never talked about Nata of his sister Bhuli. Having declared hostile, son denies of having said so in course of investigation, as is mentioned in Ex. P.2, that 4-5 days earlier of 7.6.02 Balu came to him and expressed his desire of nata and this witness proposed for his younger sister asked for necessity of silver ornaments. Thus, this witness in no way help prosecution.
30. In view of all above, in the opinion of the Court, presence of appellant Radhi there around leads to no conclusion against her and presence of appellant Balu is also highly doubtful.
31. Moreover, per main witnesses, regarding last seen, PW/6 that just ahead of Radhi and his mother was a person wearing pant shirt and all three went towards the stream. Definite per PW/6 are that in addition to deceased were a man and a woman. PW-6 has not identified appellant Balu and rather identification is not sought. Similarly, Bhuli D/o Shambhu categorically says that person present there who went with mother and Radhi was wearing white shirt and black pant. Per PW-7 only these three were. PW-7 has also not identified that person. This man and woman were there and as appellant is not identified as that person and possibility of some other person raises doubt about presence of appellant and it can hardly be said that proven is the appellant''s presence there.
32. For the above reasons, recovery of silver ornaments at the instance and or from the presence of appellant Balu after about 15 days of the incident cannot lead to reasonable definite conclusion that he killed or was definitely involved in killing of Lachhi.
33. SHO PW/9 states that appellant Balu arrested vide memo Ex. P/14 who discloses of keeping Kadiyas and chain at his home which he recovered as Ex.P/24 and then the same were recovered from his house of which memo prepared is Ex.P/15. As is described in Ex.P/15 both the articles were in a mud kothi used for keeping grain. Witness of this recovery Kachru PW-16 do not support out but neither rejects and accepts his signatures on memo and SHO having told him of recovery. Other witness Shambhu PW-5 do not speak about it. As signatures of these witnesses are on Ex. P/15, there is no reason not to believe this recovery. Balu arrested on 28.6.02. Thus, recovery is after 24 days.
34. If recent is possession, then link with killing can also been inferred. Whether or not possession is recent is question of fact and consequential inference may also be affected by other facts and circumstances. The effect and importance of lapse and of the intervening period between the incident and recovery may varingly depend on relevant other facts and circumstances and including nature of article. In this particular case, as it appears and as is also prosecution case that a man with a woman was seen just before the incident with the deceased, was only one man and one woman and that one man is not proved or/and identified to be appellant Balu, therefore, in the opinion of the Court, it is not reasonably safe to connect the appellant with killing. The possession of silver rings on the face of above established facts, cannot lead to safe inference that appellant Balu took part in murder or was in any way involved. There is no other corroborating evidence to add to recovery and as above are the other facts.
35. For the reasons above, appellants Smt. Radhi and also Balu is acquitted of the offences charged of Section 302 and 392 IPC but appellant Balu is to be convicted for the offence of Section 411 IPC i.e. dishonestly receiving stolen property.
36. Looking to the facts and circumstances, appellant Balu is convicted for offence u/s 411 IPC to three year rigorous imprisonment with fine of Rs. 500/- in default to undergo three months R.I.
37. Accordingly, appeals are decided and partly allowed, the conviction and sentence of appellants (i) Balu S/o Nanu Ram (ii) Smt. Radhi W/o Shyrnu for offences under Sees. 302 and 392 IPC are set aside and appellant Balu is convicted for the offence of Section 411 IPC and sentenced to three years RI and Rs. 500/-, in default of payment of fine to undergo three months RI. Appellant Radhi be released forthwith if not required in any other case. Appellant Balu be also released if not required in any other case and if served the sentenced as above awarded.
