A.R. Navkar, J.
This is an appeal Sled by the accused Kadori against judgment dated 24-1-1972, passed by Shri Ram Murti, Additional Judge to the Sessions Judge, Vidisha, in Sessions Trial No. 47 of 1971.
The accused has been held guilty u/s 302 / 394 of the Indian Penal Code and he has been sentenced to undergo imprisonment for life for offence u/s 302, Indian Penal Code and be has been sentenced to undergo rigorous imprisonment for a period of five years for offence u/s 394, Indian Penal Code. Both the sentences are to run concurrently.
The prosecution story, in short, is that deceased Poonam Chand Goyal was a registered medical Practitioner at village Lateri and he very often used to go on visits to his patients in the neighbouring villages. It is alleged by the prosecution that on such visits to the neighbouring villages, he used to keep the accused in his company, who carried the canvas bag (Article C) containing medicines. From two days prior to the fateful day, the deceased had some Rs. 2,000 on his person and on the fateful day, i.e., 20-9-1971, the deceased accompanied by the accused Kadori, boarded the Maulana bus at Lateri at 8.00 a.m. for the village Roosai, where they got down at 9.00 a.m. From Roosai, the deceased reached the village Badi Rusalli at 5.30 p.m. via Mawakhedi. At Badi Rusalli, the deceased bad a peg to liquor for Rs. 2 at the liquor shop of Inder Singh (P. W. 10) and then the deceased accompanied by the accused proceeded towards Mundra. After having been seen together with the accused Kadori at Badi Rusalli, the deceased Poonam Chand Goyal was never seen alive thereafter by anybody. It is alleged that by greed, the accused pounced upon the deceased and axed him to death during the night intervening 20-9-1971 and 21-9-1971 and robbed him of his watch (Article A) and other ornaments. On the next morning, the dead body of the deceased Poonam Chand Goyal was seen in a field near the village Lalchiya and. the matter was reported to the police. On the recovery of the deceased''s watch (Article 4) from the possession of the accused, coupled with the recovery of the blood-stained axe at the instance of the accused and the fact that the accused and the deceased were last seen together, the accused was prosecuted for the offence of murder and robbery.
The accused has denied the recovery of watch (Article A) from his possession and the recovery of Axe (Article N) at his instance. He has denied the guilt and he says that he has been falsely implicated.
The trial Court recorded the evidence of the prosecution, the defence witness and statement of the accused and gave the verdict, In the judgment, the first point the trial Court decided is whether Poonam Chand Goyal has died a homicidal death. After considering the evidence of Pratap Singh (P. W. 3), Hemraj (P. W. 4) and son of the deceased Gbanshyam (P. W. 1). who identified the dead body of Poonam Chand Goyal; the dead body was also identified by the son-in-law of the deceased Chhabil Chand (P. W. 11) and Dr. R.K. Nema (P.W. 19) who conducted the post-mortem and gave his opinion in his report, the trial Court came to the conclusion as mentioned above. No argument was addressed against this point. Therefore, we are also of opinion that Poonam Chand Goyal died a homicidal death.
The trial Court has said that there is no direct evidence in the case, because there are no eye witnesses of the incident and there is only circumstantial evidence. The circumstantial evidence has been divided under different heads by the trial Court. They are: (a) the deceased and the accused were last seen together; (b) recovery of the deceased''s watch (Article A) from the possession of the accused and (c) recovery of the weapon of offence-blood-stained axe (Article N) at the instance of the accused. The trial Court came to the conclusion that the recovery of watch (Article A) was from the possession of the accused. The recovery of the watch was at the instance of the accused and it held that the deceased and the accused were last seen together before the alleged incident, While deciding the recovery of the watch (Article A), the trial Court decided it into two heads: (i) whether the watch (Article A) belongs to the deceased Poonam Chand Goyal and (ii) whether this watch was recovered from the possession of the accused. Both these points have been answered by the trial Court in this way viz., that the watch (Article A) belonged to deceased Poonam Chand Goyal and that the watch was recovered from the possession of the accused. It also has said that in a case where there is circumstantial evidence, that evidence must be such as to lead to the conclusion, which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his innocence. It also held that Kadori, the accused, murdered Poonam Chand Goyal and robbed him after voluntarily causing him hurt.
The appeal is against this judgment. The learned Counsel for the Appellant Shri J.P. Gupta, took us through whole of the evidence and submitted that circumstantial evidence in this case is not of such nature that it will only indicate that the accused is guilty. There are so many lacunae in the story of prosecution and, therefore, the accused is entitled for an acquittal.
Before going to the merits of the case, it will be useful to see how the villages are situated. From Lateri, one goes to Roosai. From Roosai, the next village is Mahuakheda From Mahuakheda, one will reach to Badi Rusalli and from Badi Rusalli, there is a road to Mudra. The village Lalchiya, where this incident has taken place, is between Badi Rusalli and Mudra. The map of the spot where the incident took place is Ex. P. 3 in the Paper Book at page 15. It shows that village Mudra is two miles away from the place of incident. Village Badi Rusalli is about three miles away from the place of incident. Village Lalchiya is about a mile from the place of incident.
The first submission made by the learned Counsel for the Appellant before us was that the finding of the trial Court that the accused and deceased were last seen together is not correct. He submitted that the meaning of last seen together is that they should be seen together at the time of occurrence and at the place of occurrence. If this is so, then alone, it can be held that they were last seen together. To substantiate his submission, he referred us to a judgment of the Orrissa High Court in Hadu v. The State AIR (38) 1951 Ori 53 and he also submitted that only because the accused and the deceased are last seen together will not be sufficient to connect the accused with the guilt. There must be other incriminating circumstances. He has specifically relied on paragraph 11 of that judgment. Paragraph 11 says:
I am clear in my mind that the two circumstances, stated above, apart from the attitude or explanation of the accused are not by themselves enough to bring home the guilt to the accused. The mere fact that a person has been last seen with the murderer is not by itself enough, unless it appears that he was in the company of the deceased at or about the time when and at the place where the murder appears to have been actually committed. There is no clear indication in this case where and when the murder was committed....
Before considering his submission, we will see how far the prosecution has been able to prove that the accused and the deceased were together. The statements of Ramjani (P. W. 16) and Abdul Hafiz Khan (P. W. 17) prove that they were cleaner and conductor respectively of the bus belonging to one Maulana, so it was known as Maulana bus. This bus plies between Lateri and Sironj and in-between, it touches Mudra, Murwas and Roosai. These two witnesses were knowing the deceased for a long time. On 20-9-1971, the deceased along with the accused boarded the bus at about 8.00 in the morning at Lateri and on the same day, they got down at Roosai. So, they were together from Lateri to Roosai. The next witness is Dhiraj Singh son of Sanman Singh (P. W. 22). He is a resident of Mahuakheda. He states that Dr. Goyal, along with Kadori, came to Mahuakheda at about 12.00 noon. Dr. Goyal gave an injection to the son of Dhiraj Singh son of Sanman Singh (P. W. 22) the same day and he paid eight annas for it. Kadqri accused who was with the deceased Dr. Goya! had a bag with him and a danda. Then, he says that at about 1.00 p.m., the accused and the deceased went towards village Badi Rusalli that Badi Rusalli is about two miles away from Mabuakbeda. From this evidence, it is clear that the accused and the deceased were together up to Mahuakheda and they went towards village Badi Rusalli. We now come to the evidence of Inder Singh (P. W. 10). He is a resident of Badi Rusalli and he sells liquor. He states that at about 5.30 in the evening, Dr. Goyal, along with the accused came to his shop and Dr. Goya) took with him one canvas bag (Article C) and also a danda. He has stated further that they started towards village Mudra along with Kadori and village Lalchiya is in-between Badi Rusalli and Mudra. From the evidence of this witness, we come to the conclusion that the accused and the deceased were together at village Badi Rusalli and they were going towards Mudra. While they were proceeding towards Mudra, two more witnesses, namely, Saligram (P. W. 20) and Chhutta Basod (P. W. 21) saw them at the outskirts of Badi Rusalli going towards Lalchiya. So, the prosecution has proved definitely that the accused and the deceased were going towards Lalchiya and the time was about sunset. Dr. Goyal''s dead body was seen at about 9.00 in the morning of 21-9-1971 and near his body, the canvas bag (Article C) along with other articles, was found. The accused was arrested on 23-9-1971. The accused never gave any information about the bag (Article C) or whereabouts of the deceased. The presence of the canvas bag (Article C) with the accused right from the beginning till the evening of 20-9-1971 and the presence of that bag near the dead body clearly shows that the accused and the deceased were together up to the time of the incident. Even otherwise, it is not essential that there should be evidence to show that the accused and the deceased were last seen together up to the time of the occurrence or at the place of occurrence to apply the dictum of "last seen together". One more factor which is to be considered here is that the accused was a servant of the deceased and his duty was to carry the bag wherever the deceased used to go. Therefore, the Orissa High Court''s judgment in Hadu v. The State (supra) is on facts quite different from the present case and, therefore, whatever is mentioned in paragraph 11 in that judgment (quoted above) is not applicable to the present case. Relying on the evidence mentioned above, we are of opinion that the accused and the deceased were last seen together on 20-9-1971 and thereafter, the deceased was not seen alive by any other person. The finding given by the trial Court regarding "last seen together" is correct and the criticism levelled by the learned Counsel for the Appellant cannot be accepted.
The other submission which the learned Counsel for the Appellant made before us is that the information memo (Ex. P/8) is not admissible in evidence. This information memo (Ex. P/8) is dated 23-9-1971 and the time mentioned is 8.00 a.m. The accused is arrested at 8.30 a.m. (Ex. P/11). Therefore, he submits that the accused was not in custody and as such, the information memo (Ex. P/8) is prior to the arrest and, therefore, it will not come u/s 27 of the Evidence Act and as such, it is not admissible in evidence. To this, Shri S.N. Tandon, Deputy Government Advocate, referred us to Supreme Court decision in
The expression, ''''accused person" in Section 24 and the expression "a person accused of any offence in Section 25" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. The expression, "accused of any offence" in Section 27, as in Section 25, is also descriptive of the person concerned against whom evidence relating to information alleged to be given by biro is made provable by Section 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.
He also referred to this Court''s judgment in
The word custody in Section 27, Evidence Act, does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction.
When a person is called to the police-station and is interrogated as an accused in connection with the investigation of a crime he must be deemed to be in the custody of the police while he is so interrogated and no formal arrest is necessary.
Here, it has come in evidence that the accused was in the Police Station before 8.00 a.m. Therefore, we hold that the information memo (Ex. P/8) is admissible in evidence, because it satisfied all the conditions u/s 27 of the Evidence Act.
The next objection of the learned Counsel for the Appellant was that in order to connect the watch (Article A) with the accused, it must be proved definitely that the deceased was wearing the watch (Article A) the evidence of his son Ghanshyam (P. W. 1) and his son-in-law Chhabilchand (P. W. 11) is important. Ghanshyam (P. W. 1), in his statement, has stated that he had been seeing the watch on the wrist of his father since he was a child and that the watch was manufactured by Henry Sandoz. His son-in-law Chhabilchand (P. W. 11) also says that the watch which his father-in-law had was of Henry Sandoz make and he used to put it on every day. He had visited him on 19-9-1971 at Lateri. With this evidence, we can safely say that the deceased was wearing the watch (Article A) when he left Lateri on 20-9-1971. Watch recovered (Article A) has three peculiarities. It bears the intials ''P.C.G.'', Which is the short form of Poonam Chand Goyal. The make of it is Henry Sandoz and the number which inscribed in the watch is BEG 866 and this watch has been identified to be that of his father by the son Ghanshyam (P. W. 1) and that of his father-in-law by the son-in-law Chhabilchand (P. W. 11). Therefore, we hold that the deceased was wearing this watch at the time when he was murdered.
The next objection was that it is not proved by the prosecution that the accused had this watch with him. We think that this objection is not also well founded. The watch was recovered at the instance of the accused on 23-9-1971 which is about 48 hours after the murder. We have dealt with the information memo (Ex. P/8). The recovery was made before two witnesses and they are Salim Beg (P. W. 5) and Abu Sahid (P. W. 6). Abu Sahid (P. W. 6) states that Kadori, in his presence, said to the Investigating Officer that he has kept the watch in one earthen pot and he has pept this earthen pot in his house and he will recover it. Then, he along with the accused and Investigating Officer went to the house of Kadori and he brought out the earthern pot (Article M) and from that earthern pot, he took out that wrist watch (Article A) and gave it to the Investigating Officer. Then Master Saleem was called for who is P. W. 5. He opened that watch, noted the number of the watch. Then, again it was kept in that earthen pot and it was sealed and signature of Saleem Beg (P. W. 5) were taken. To the same effect is the statement of Saleem Beg (P. W. 5). The criticism levelled against them is that they are not telling the truth. Second is that it is not proved that the house was in the exclusive possession of the accused. After reading the evidence of both these witnesses, we are not prepared to hold that they are not speaking the truth. In evidence, it has come that this house is in occupation of the accused and no one else stays over there. Therefore, the criticism levelled against the evidence is not acceptable to us and we find that the accused gave the information of the watch to the Investigating Officer on the basis of the information given by the accused, the watch was recovered from the house of the accused and that the house was in exclusive possession of the accused. Therefore, the second point also that the accused had the watch with him and it was recovered at his instance we hold it to be proved.
We now come to the recovery of axe (Article N). The axe (Article N) was recovered on 29-9-1971. For the recovery of the axe, the learned Counsel for the Appellant submitted before us that on 23-9-71 the accused gave information regarding ''pharsa''. No ''pharsa'' was found on 23-9-1971 and on 29-9-1971 the information regarding the axe (Article N) was given and oil the basis of that information from the portion which was not searched on 23-9-1971, the axe (Article N) was found. Therefore, there is a delay and secondly, this recovery cannot be considered to be a genuine recovery. On 29-9-1971, the information given was:
KARTHI MAINE LALJI KE BAGICHE ME PHEK AYA HUN JO CHAL KAR BATA DLTA HUN.
That is in Ex. P/8. On 29-9-1971 (Ex. P/9), the accused has said:
WOH KULHADI MAINE US1 RAT KO HI LALAJi KI KHET KI BAGAD MEN CHHUPA AYA THA JO CHAL KAR BATA SAKTA HUN.
The recovery was before Dhiraj Singh son of Shankar Singh (P. W. 9) and Sheshanarain (P. W. 7). They have proved the information memo (Ex. P/8). They have said that the axe (Article N) was recovered from the field of Lalaji. Dhiraj Singh son of Shankar Singh (P. W. 9) said in his statement that accused Kadori along with Thanedar Saheb took us to the Held of Lalaji and the accused searched for the ''pharsa'' but he could not find it. Then after 6 or 7 days, again the accused went with the Investigating Officer and witnesses to Lalaji''s field and the axe (Article N) was recovered by the accused in their presence but the place from which the accused recovered the axe was different from the place which he searched for the recovery of ''pharsa'' formerly''. It seems to us that at first, the accused wanted to mislead the Investigating Officer by showing altogether a different place for a different weapon; but on 29-9-1971, he gave the correct information regarding the correct weapon and on the information, the axe was recovered. It will be worth noting that the axe was hidden in the bushes. These bushes are very thick and they are called as ''Besbaram''. This name, the bushes got because they grow anywhere and their growth is wild. So, we do not think that the recovery of the axe by the accused on 29-9-1971 is not genuine. The axe (Article N) was sent to Chemical Analyser and then to the Serologist. The opinion of the Serologist after examining it is Ex. P/21 and he has opined that the Kulhadi is stained with human blood. So, the recovery of axe (Article N) also is at the instance of the accused and the axe is stained with human blood. We hold that this is proved by the prosecution.
The next criticism is that the axe was not seen by anyone and the danda cannot be identified, because there cannot be any special identification marks on any danda. This is the criticism levelled by the learned Counsel for the accused as far as axe and the danda are concerned. It is true that nobody has seen the accused with the axe, but the danda which he carried is identified by the witnesses and it was very easy for the accused to carry the axe concealed. Therefore, from the evidence, that the axe is stained with human blood and that it was recovered by the accused, we hold that this is the weapon used by the accused for committing the crime.
The next criticism is that the articles were sent to the Serologist after an inordinate delay and if there is an inordinate delay it is possible for the prosecution to do mischief. For that, the learned Counsel for the accused, referred us to the Supreme Court decision in
that above suspicious features threw doubt on the bona fides of the investigation. The suspicious delays that had occurred as regards important steps in the course of the investigation rendered it unsafe to hold that the case of the prosecution had been established beyond reasonable doubt.
But, the above case does not hinge on inordinate delay. It mainly hinges on the conflict between the testimony of eye witnesses and medical evidence In the present case, in cross-examination of the Investigating Officer, there is no suggestion that the seals were tampered with and that the packet in which the axe was sealed was without proper seals. The report of the Serologist and that of the Chemical Analyser clearly show that the parcel consisted of wooden box sealed with impression of official seal and the seal was found intact. So, mere delay in sending the articles will be of no help to the accused. It is also worthy to note that all the articles which were seized in connection with this crime were sent together to the Chemical Analyser and also the Serologist. This also indicates that even though there was some delay, we cannot hold that there was any foul play by the prosecution.
Then the learned Counsel for the Appellant has referred us to Rajasthan High Court''s judgment in The State v. Motia AIR 1955 Raj. 82. The relevant observations of this judgment read thus:
10. Besides these two formal defects, we have still to see whether the evidence that remains against Motia is sufficient for his conviction. We have already said that Hema''s statement is unreliable and we rule it out of consideration. All that remains is that certain articles belonging to Harka and his wife were recovered from the possession of Motia seven days after the murder. The question is whether this is sufficient evidence to prove that Motia must have committed the murder. It may be remarked that Motia lives in the same village and the presence in the village on that night is not of particular significance. The matter would have been different if he had belonged to some other village. The mere possession of articles belonging to the murdered person, even supposing that they were blood stained, would not, in our opinion, be sufficient to prove a case of murder against Motia accused beyond all reasonable doubt. The prosecution has even failed to show in this case that these particular ornaments which were recovered from the possession of Motia, were with Harka and his wife up to the 7th of December, and were stolen only that night. There is no evidence to show that Harka''s wife was wearing even one of these ornaments on the 7th of December. It may be that the probability is that the ornaments were stolen at the same time as the murder was committed. But in a case depending upon circumstantial evidence, all possibility of the innocence of the accused should be excluded, and in the case before us it has not been shown that these ornaments could not have been missing from the house of Harka before the 7th December. In the absence of proof of this fact, it cannot be said for certainty that the person in possession of these ornaments must be the murderer.
In that case, the main lacuna was that it was not proved that the ornaments recovered were with Harka and his wife up to 7th December and were stolen only on that night. Here, as we have said above, the watch (Article A) was recovered within 48 hours. Therefore, the dictum laid down in the above case will not be applicable to the present case.
Then, the learned Counsel for the Appellant referred us to a judgment in Bhagan v. State of Pepsu AIR 1955 Pep 33. After reading this case we can only say that it is not applicable to the present case at all. It only says that the gandasa recovered from the place which is accessible to all, cannot lead to any definite conclusion in connecting the accused with the crime. We have no quarrel with this proposition, but we can only say that this case is not applicable to this case at all.
The next case cited before us by the learned Counsel for the Appellant is the Supreme Court judgment in
Then the learned Counsel for the Appellant referred us to Supreme Court judgment
The learned Counsel for the Appellant then referred us to the Supreme Court decision in
So, the main question before us will be that whether the prosecution has proved by chain of evidence that the accused is guilty of murder or not.
The learned Deputy Government Advocate Shri S.N. Tandon has referred us to a judgment of this Court in
Non explanation of the accused regarding the disappearance of the deceased can be considered to be an incriminating circumstance against the accused. Here, the silence of the accused is very eloquent of his crime. The accused has not explained the possession of the watch (Article A). We may refer here to this Court''s judgment in Shyamji v. State 1956 JLJ 94. It was a case depending upon circumstantial evidence. It lays down:
Some of the circumstances against the Appellant are that the ''Dupatta'' that he had with him at the time he left the house of Kalangu in the Company of his wife was found under the head of the deceased when Mst. Jai, Shyamrao, and Hiralal saw the deceased in the hut after the Appellant had run away. Daya Kotwar, and the Appellants father-in-law Ishya also saw the ''Dupatta''. This ''Dupatta'' would be an incriminating article connecting with the commission of the offence and it would be for the Appellant to explain as to how this ''Dupatta'' happened to be placed under the head of the deceased.
In this case, the accused has not explained the disappearance of his master and possession of his master''s watch (Article A) with him. This is an incriminating circumstance against him.
In Sarveshwar Prasad v. State of M.P. (supra), it was held in paragraph 38 of the judgment:
Thus the law is well settled that where murder and robbery are proved to have been integral parts of a certain transaction, the presumption that can be drawn from the possession of the property may consistent with all the facts proved in the case be that the person to whom such possession was traced not only committed the theft thereof but also committed the murder which forms part of the same transaction as theft. Of course, before any such presumption can be drawn, the primary thing to be proved is that the accused had no satisfactory explanation to offer for possession of the property.
This case is clearly applicable to the present case.
Now, we will give the chain which links the accused with the offence. The first chain is that he was a servant of the deceased and he used to accompany him wherever he went. On the fateful day, the accused and the deceased were together and the accused carried the canvas bag (Article C) and also the danda. They went from village to village and right from the morning to the evening, they were together. Therefore, we can presume that they were seen last together.
The next chain is that at the scene of murder, the bag which the accused was carrying namely Article C, was found. This goes to prove the second link that the accused was present with the deceased at the place of occurrence of the crime.
The third link will be the recovery of the watch (Article A) belonging to the deceased from the accused within twenty-four hours from his house.
The next link is the recovery of the axe (Article N), the instrument of offence by the accused, and the last and the most important link will be non-explanation of the accused regarding the watch (Article A) and disappearance of his master. There is no reason why the accused could not have said anything regarding his master, i.e., Dr. Goyal when he returned alone to the village without his master.
If these things are taken together an irresistible conclusion is that the accused has killed the deceased with an intention to rob him and actually he robbed him after committing the crime. There cannot be any other suggestion. Therefore, we hold that the accused was rightly convicted under Sections 302 and 394, Indian Penal Code and we see no reason to interfere with the sentences awarded to the accused.
The appeal fails and is dismissed.