Judgment:
M.M. Qazi, J.
1. The appellant has been convicted of the offences punishable under sections 302 and 397 of the Indian Penal Code by the Additional Sessions Judge, Nagpur for committing the murder of Rukhminibai on 6-3-1984 at village Jaitala, taluka and District Nagpur. The appellant is the distant relative of the deceased and is a resident of village Gumgaon. According to the prosecution, 8 days prior to the date of the incident, the appellant has been to the house of the deceased and had his meals there. Again on the day of the incident i.e. 6-3-1984, it is alleged that he had come between 11-30 a.m. and 12-00 noon to the house of the deceased and committed the murder of the deceased while the other members of the family were out, and removed the silver patlis and bangles from her body. A report came to be lodged by Prabhakar ( P.W. 1) on the same day, which implicates the appellant. On the basis of this report offence was registered by P.S.I. Hande ( P.W. 11). He did the necessary investigation. The appellant was arrested on 7-3-1984 at 10-30 a.m. After completion of the investigation, charge-sheet came to be filed and the appellant came to be tried for offences under sections 302 and 397 of the Indian Penal Code. The learned Additional Sessions Judge, Nagpur, found on the basis of the evidence on record that the prosecution has proved the charge against the appellant and, therefore, convicted him under sections 302 and 397 of the Indian Penal Code. Hence, this appeal.
2. The case essentially rests on circumstantial evidence. The important evidence consists of Prabhakar ( P.W. 1) and Chhaya ( P.W. 5). They are the grand- children of the deceased and were residing with the deceased. They were examined on the point that they saw the appellant in the close vicinity of the scene of the incident at the time of the incident as soon thereafter Rukhminibai was found dead. In addition to the above evidence, there is the memorandum ( Ex 15) recorded by P.S.I. Hande in pursuance of which the silver patlis and bangles were recovered from the shop of Kothiram Hatewar, ( P.W. 7) and Narayan ( P.W. 9). The discovery is proved by Shrihari ( P.W. 6), who has been examined as a panch, and P.S.I. Hande. The prosecution has also relied on the evidence of P.W. 7 Kothiram, from whose shop the patlis and bangles were seized, P.W. 8 Balkrishna, an employee of the shop of Kothiram and P.W. 9 Narayan from whose shop the silver bangles were seized. The identity of the ornaments has been proved by Saraswatibai ( P.W. 3) daughter -in-law of the deceased. In addition to the above evidence, there is a report of the Chemical Analyser, which shows that human blood was found on the white metal bracelets. The defence of the accused is merely one of denial.
3. Mr. Daga, the learned Counsel appearing on behalf of the appellant, contented that the prosecution has not proved beyond all doubts that the appellant is responsible for the murder of Rukhminibai. He has further contended that mere presence of the appellant near the house of the deceased at the time of the incident would not be conclusive piece of evidence about his guilt. According to him, the prosecution has not been able to establish the exact time of the death of the deceased. He has further submitted that it would not be safe to rely on the testimony of Chhaya who is a child witness. Mr. Ahmed appearing on behalf of the State submitted that though there are no eye-witnesses to the incident nonetheless the prosecution has established the chain of circumstances which leads to the irresistable conclusion that the appellant committed the murder of Rukhminibai for ornaments which were on her person.
4. We have given our anxious consideration to the various contentions raised at the Bar and after going through the entire evidence, we feel that there is much substance in the contention of Mr. Ahmed that there is a complete chain of circumstances which leads to the irresistable conclusion that the appellant himself has perpetrated the crime.
5. Prabhakar (P.W. 1), in our view, is an important witness. He is the grandson of Rukhminibai. He was living in the same house with his grandmother. He has deposed that the appellant had visited the house of Rukhminibai 8 days prior to the date of the incident and that he had his meals there. According to him, on the date of the incident, he returned from his school at about 11-00 A.M. His grand mother was in the house then. He had his meals and thereafter went out for some time. At that time, his grand mother was sitting in the door of the house. He returned after about 20 to 25 minutes. While returning he noticed the appellant near the well which is at a distance of about 150 to 200 feet from the house of Rukhminibai. Then he entered his house and found that his grand mother was lying on the ground. He gave a call but there was no response. Then he realised that she was dead. He immediately rushed to call his sister Maya who was working at the factory. He returned with Maya within an hour. By that time, his brother was already there in the house. Then he went to call his mother. He has deposed that the silver patlis which were in the hands of his grandmother were removed. He also lodged the First Information Report. His testimony is not at all shaken in the cross-examination. A suggestion was made to him that he did not see the appellant, but that he denied.
6. Another important witness is Chhaya (P.W. 5). She is the grand daughter of Rukhminibai. She is aged about 7 years. She has deposed that on the day of the incident at the relevant time she was playing in the courtyard. There was none in the house except her grand mother. According to her, at that time the appellant came and asked her to go out to play. She accordingly went out to play on the road. After some time she saw the appellant returning near the well. She identified the appellant before the Court. Though she is a young child, but her testimony is not at all shaken in her cross examination. Thus, in our view, the evidence of these two witnesses established beyond all reasonable doubt that the appellant was very much present in the house during the crucial period of 20 to 25 minutes during which the murder of Rukhminibai was committed.
7. Another circumstance which is equally clinching is the evidence of discovery. The appellant was arrested on the next day of the incident and on the same day he made a statement agreeing to show the shop of the jeweller, where he had sold the patlis and further agreed to show the shop of the person who had given him Rs.150/- towards the price of the patlis. The memorandum has been proved by P.S.I. Hands and the panch Shrihari. There is nothing in the cross-examination to doubt the voluntary nature of the memorandum. The prosecution has further proved that the ornaments were recovered in pursuance of this statement made by the appellant. The evidence of Kothiram coupled with the evidence of Balkrishna established beyond all doubt that on 6-3-1984 at about 3.00 p.m. the appellant went to their shop and sold the silver Patlis. A bill to that effect was prepared by Balkrishna i.e. Bill No. 335 (Article 5). The appellant had given out his name as Chirkut. They have also deposed that the police came to their shop next day along with the appellant and asked them to show the Patlis, in pursuance of which they produced the same and they came to be attached. The appellant was identified by them before the Court.
8. Narayan (P.W. 9) also owns a jewellery shop. He has deposed that the appellant, who gave out his name as Chirkut, had been to his shop on 6-3-1984 at about 1.30 p.m. and had brought a pair of silver Patlis and bangles and expressed his desire to sell them. Narayan purchased the same for Rs.345/-. A bill to that effect bearing No. 1178 was prepared. According to this witness, next day the appellant came along with the police and asked him to produce the Patlis and bangles, which were ultimately seized by the police. He has further stated in the cross-examination that since the appellant was brought on the very next day, therefore, he could identify him. In view of this overwhelming evidence we have no reason to doubt the discovery of the ornaments at the instance of the appellant. These ornaments have been duly identified as one belonging to deceased Rukhminibai by Saraswatibai (P.W. 3), who is the daughter-in law of the deceased. She has deposed the Articles 2, 3 and 4, viz silver bangles and patlis before the Court, belonged to her mother-in-law. There is no reason to doubt the evidence of the witness on the point of identity in view of her close relationship with the deceased. Thus, in our view, there are clinching circumstances which go to establish that the appellant committed the murder of Rukhminibai and removed the ornaments from the person.
9. Mr. Daga contended that mere presence of the appellant near the vicinity of the scene of incident cannot lead to the presumption that he has committed the murder of Rukhminibai, even if the discovery of ornaments is believed. Mr. Ahmed, on the other hand, contended that in view of the peculiar facts and circumstances of the case it would be legitimate to draw an inference that the appellant is himself responsible for the murder of the deceased as well as for removal of her ornaments. He has relied on the decisions reported in : [1978]2SCR594 Bajju v. State of Madhya Pradesh), and : 1978CriLJ1107 Mohan Lal v. Ajit Singh. The decisions relied upon by Mr. Ahmed are relevant and in our view fully substantiate his contention. The relevant observations are in page 14 of the decision in : [1978]2SCR594 (supra), which reads as under:
'14. As has been stated, the prosecution has succeeded in proving beyond any doubt that the commission of the murders and the robbery formed part of one transaction, and the recent and unexplained possession of the stolen property by the appellant justified the presumption that it was he, and no one else, who had committed the murders and the robbery. It will be recalled that the offences were committed on the night intervening January 20 and 21, 1975, and the stolen property was recovered from the house of the appellant or at his instance on January 28, 1975. The appellant was given an opportunity to explain his possession, as well as his conduct in decoying Smt. Lakhpatiya and the other persons who died at his hand, but he was unable to do so. The question whether a presumption should be drawn under illustration (a) of section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner its acquisition by the owner, the nature of the evidence about its identification , the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. We have made a mention of the facts and circumstances bearing on these points and we have no doubt that there was ample justification for reaching the inevitable conclusion that it was the appellant and no one else who had committed the four murders and the robbery. In the face of the over whelming evidence on which reliance has been placed by the High Court, it is futile to argue that the murders could not have been committed by a single person. As has been stated, there is satisfactory evidence on the record to show that the dead bodies of Ramdayal and Smt. Fulkunwar were found at two different places near the 'nala' so that it cannot be said that they were murdered together. As regards, Smt. Bhagwanti and 'Rambakas, the evidence on the record shows that they were murdered while they were asleep in the house and there is no reason why a single persons could not have committed their murders also.'
10. The facts of the present case are far more telling than the facts of the aforesaid case. The evidence of Prabhakar (P.W. 1) and Chhaya (P.W. 5) has fully established that the appellant was seen between 11.30 A.M. and 12.00 noon on the day of the incident in the vicinity of the house of Rukhminibai as well as in her house. It has also been established that it was almost at the same time that Rukhminibai was found to have been killed and on the next day itself her ornaments were discovered by the appellant. Even some of the ornaments were stained with human blood. Having regard to these facts, in our view, it would be absolutely legitimate to draw a presumption under section 114(a) of the Evidence Act that the appellant has himself committed the murder of Rukhminibai and thereafter removed the ornaments particularly when there is no explanation at all as to how he was found in possession of the blood stained ornaments of the deceased almost immediately after the incident. From the evidence of P.W. 7 Kothiram, P.W. 8 Balkrishna and P.W. 9 Narayan it is clear that the ornaments were sold by the appellant to them on the date of the incident itself, which would obviously mean that the appellant was found in possession of the ornaments immediately after the incident.
11. There is yet another decision reported in : 1974CriLJ617 Naseem Ahmed v. Delhi Administration, which has been relied upon by Mr. Ahmed. Para 14 of the said decision reads as under:
'14. These two circumstances are by themselves sufficient to determine the guilt of the appellant. The appellant and the deceased occupied a room in the Hindustan Hotel, they were seen entering the room together at midnight between the 17th and the 18th and the appellant locked the room on the 18th morning and left the hotel. From that room was discovered the dead body of Ramkumar on the 20th.'
Having regard to the above facts, we are satisfied that the conviction of the appellant of the offence under section 302 of the Indian Penal Code is perfectly justified. However his conviction and sentence for offence under section 397 of the Indian Penal Code cannot be sustained. Mr. Ahmed appearing on behalf of the State has fairly conceded this position.
12. In result, the appeal is partly allowed. The conviction and sentence of the appellant under section 302 of the Indian Penal Code is maintained. However, his conviction and sentence under section 397 of the Indian Penal Code is quashed and set aside.