Judgment:
G.K. Sharma, J.
1. This appeal has been preferred by the appellants against the judgment dated 7-8-1984 passed by Addl. Sessions Judge, No. 1, Ajmer where by both the appellants have been found guilty 'of the offence under Section 302 and 302/34 IPC. They have been sentenced to life imprisonment and a fine of Rs. 2,000/-, in default of payment of fine, to undergo 4 months' imprisonment. Both the apellants were also found guilty under Section 380 IPC and each has been sentenced to 5 years' rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine, to further 4 months' S.I. All the sentences were ordered to run concurrently.
2. We would like to mention here that the learned Additional Sessions Judge could not distinguish between the offence under Section 302 and 302 read with 34 IPC. It is very unfortunate that the learned Sessions Judge found the appellants guilty of the offence under Section 302 and under Section 302 read with 34 IPC. If there is no direct evidence and both the appellants had common intention, in that case they can be found guilty of the offence under Section 302 read with 34 IPC. In the present case the learned Addl. Sessions Judge found both the appllants guilty of the offence under Section 302 simplicitor and also under Section 302 read with 34 IPC This is very sad affair that the Addl- Session Judge could not understand the difference between these two offences. He could not make up his mind whether the appellants had committed offence under Section 302 simplicitor or whether they have committed offence under Section 302 read with 34, IPC.
3. Shrimati Maina daughter of Gyarsi lodged a written report Ex. P 5 at P.S., Kishangarh on 30-12-1983. In this report it has been alleged that on 29-12-1983 at 5 p.m. when she was at village Diggi she was informed that some body had murdered her mother and after murdering her had taken away the goods. On hearing this she came to Kishangarh and on enquiry from the Mohalla people she was informed that they had cremated her mother. She reached the house and found that after murdering her mother, the ornaments like gold and silver were taken away from the house. She has given a details of the ornaments alleged to have been taken. This report was submitted by Mst. Maina on 30-12-1983 at 4 p.m. On this report a case under Section 302/ 201 IPC and 380 IPC was registered. A regular FIR was prepared and investigation started. The SHO inspected the site and prepared the site-map. He recovered blood stained clothes of deceased. He arrested the accused Kailash on 12-1-1984 vide memo Ex. P 4. Kailash gave information under Section 27, Evidence Act for the recovery of certain articles. On the information and at the instance of accused Kailash, the SHO recovered certain articles. On the information of accused Kailash, the SHO arrested the accused Alladin. Alladin also gave information for the recovery of certain articles and on his information and at his instance certain articles were recovered form the field of Kailash. After completing usual investigation the Police submitted challan in this case.
4. The Sessions Judge, Ajmer framed charge against both the accused-persons under Section 302 IPC or in the alternative under Section 302 read with 34 IPC He also framed charge under Section 380 and 380/34 IPC or in the alternative under Section 411 IPC. The accused persons did not plead guilty and claimed trial.
5. The prosecution has examined 27 witnesses. The accused persons have denied all the allegations made against them by the witnesses. The contention of accused Kailash was that he was called by Ganeshlal from his house He was detained at Police Station before Maina lodged this report. He was tortured in the Police and forcibly he was asked to sign on the information memo under Section 27 Evidence Act. Accused Alladin has contended that he has been falsely implicated in this case and he has refused to have given any information to the Police for the recovery of articles and also denied the recovery at his instance.
6. It is pertinent to note that Mst. Maina informant is the daughter of Gyarsi. Accused Kailash is son-in-law of informant Maina. Maina was informed about the death of her mother Gyarsi on 29-12-1983. According to the record of this case Gyarsi Devi died between 24-12-1983 and 27-12-1983. Bansi Lal PW 9 used to reside with Mst. Gyarsi Devi. Gyarsi Devi was the wife of brother of Bansi Lal and both were residing in the same house. There is no eye-witness to this incident. Gyarsi Devi died and the villagers who had seen her dead body did not feel any suspicion in her death. Before cremation the persons of the Mohalla had seen the dead body and no body doubted about the death of Mst. Gyarsi Devi. Had they any doubt or suspicion that she had been murdered, they would have reported the matter immediately to the Police. Bansi Lal who was residing with Mst. Gyarsi Devi too did not report at the Police because he had no suspicion about her death. Bansi Lal was present when the cremation of Gyarsi Devi took place on 27-12-1983. He performed the cremation-ceremony. So it is clear that when Gyarsi Devi was cremated, there was no suspicion about her death No body suspected that she has been murdered In the evidence the prosecution tried to establish that she has been murdered by the appellants with the help of knife or by blade. This theory of prosecution that Gyarsi Devi has been murdered and she had injury on her body at the time of her cremation is a false proposition which has been developed in the evidence. Had it been a fact that Gyarsi Devi had any injury on the neck or on any part of the body, the injury would have been noticed by Bansi Lal PW 9 and other Mohalla people at the time of her cremation. Before taking to the cremation ground, Gyarsi Devi was made to bath by the ladies. They did not notice any injury on the body of Gyarsi Devi, otherwise they would have brought this to the notice of the Mohalla people and Bansi Lal PW 9 So we are convinced that when Gyarsi Devi died and when she was cremated she had no injury either on the neck or on any part of her body. The prosecution has developed in the statement of the witness that she had injury on the body, her clothes were smeared with blood which were later on recovered by the Police. If clothes were smeared with blood at the time of her cremation, we do not think that the Mohalla people would have kept silent.
7. Bansi Lal PW 9 has stated that he was residing with Gyarsi. He has stated that he does not know accused Kailash but in the next breath he has stated that he is son-in-law of Maina who used to visit the house of Gyarsi. Three days before the death of Gyarsi Devi Kailash along with one person came to the house of Gyarsi in the night at 11 p m. He was also present in the house and was sleeping on a cot. He opened the door when Kailash came. In the morning Kailash and that man left the house without being noticed by the other persons. The left open the door of the house. He could not say when they left the house but at 6a.m. when he gotup he did not find Kailash and his companion. He went inside the Kota and did not find Gyarsi there. The box of Gyarsi was lying open and clothes and papers were lying scattered on the ground. Regarding the floor of the Kota he has stated that he has no knowledge about this. He has stated that Mst. Gyarsi had silver and gold ornaments. On the second day he did not find Gyarsi in the house and he went with his tonga after locking the house. On the third day he found Gyarsi Devi lying dead on the cot and having some injury on the face. Blood was coming from below the eye. He did not know when Gyarsi came on the third day. He has stated that after locking the house and giving the key to one person Kabra he went away with his tonga. When he returned he took key from Kabra and when he went inside he found Gyarsi lying dead. He does not know how Gyarsi died. This statement is most unreliable statement. Bansi Lal was residing with Gyarsi Devi. He has stated that one person also came with Kailash at the house of Gyarsi. He does not know that man. It means that he does not identify the accused Alladin. He does not say after seeing Alladin in Court that he was the person who came with Kailash at the house of Gyarsi. So it is clear that Alladin has been falsely implicated in this case.
8. According to the statement of Bansi Lal, Kailash and that man left the house of Gyarsi in the morning. When he got up he did not find Gyarsi and found that her trunk was opened and clothes and papers were lying scattered on the ground. This is a circumstance which must have created doubt in the mind of Bansi Lal. Inspite of this fact he did not lodge any report at the Police Station. Gyarsi was not found on that day and even on the next day but he did not report at the Police Station about missing of Gyarsi. On the third day Gyarsi did not come and he locked the house, gave the key to one Kabra and went with his tonga when he returned he took key from Kabra and on entering into room he found Gyarsi lying dead on the cot. It is very strange how Gyarsi entered into the room when the house was locked and key was with Kabra. This Kabra, i.e., Ganesh Lal PW 3 has been examined in the Court. He has stated that in the neighbour of his shop Gyarsi used to live. Her 'Dever' Bansi on 27-12.1983 informed him that Gyarsi had died. He did not go to the house of Gyarsi but a lady residing near his shop went to the house and she informed that Gyarsi had died. This is the incident of about 2.30 p.m. and in the evening at 5 p.m. she was cremated. He attended the cremation ceremony. This Ganesh Lal has not corroborated the statement of Bansi Lal PW 9. He has not stated that fact which has been narrated by Bansi Lal PW 9 about giving key of the house So it seems that Bansi Lal is a liar. He was residing with deceased Gyarsi and for three days he was silent about the fact of missing of Gyarsi. The statement given by Bansi Lal indicates that he has not come with clean hands before the Court and had tried to hide something. He did not narrate the correct story and actually he tried to implicate Kailash. Thus the statement of Bansi Lal PW 9 is most unreliable statement and we have no hesitation to say that it is a false statement given in intentionally to implicate Kailash.
9. The statement of Maina PW 12 the informant of the report Ex.P 5 is also of no help. When she came to her mother's house, she was told that Gyarsi had expired. She has stated that she was informed by Kailash accused. She did not know as to who had murdered her mother Gyarsi. So Maina has no knowledge about this incident and her statement is of no help to the prosecution. Even from reading the cross-examination of Maina PW 12, we are of this opinion that she is an unreliable witness and in order to get the ornaments recovered by the Police she had given a false statement.
10. In this case there is no direct evidence as we have discussed above. The entire case depends on the circumstantial evidence. The circumstantial evidence is regarding recovery of weapon and recovery of ornaments on the information and at the instance of the accused appellants.
11. Ismail PW 1 is the motabir regarding recovery of article 1 (screwdriver), article 2 (sandasi), article 3 (blade). He has stated that he does not know Alladdi accused. From the house of Kalish the Police recovered one dantli; one 'screw driver; one knife and from the house of Alladdin accued. The Police recovered one blade and one screw-driver and a Sandashi. The Police prepared memos at the Police Station. In cross-examination he has stated that Kailash got recovered these articles from the house of his mother-in-law. Alladdin also got the recovery of the articles from the house of mother-in-law of Kailash. It means that all these articles were recovered from the house of Mst. Maina PW 12. In the cross-examination he has also stated that the articles were recovered from outside the house of Maina. The blade, 'Patchcush' and Sandashi were lying on the stone. All these articles were picked up by the Police people and the recovery memos were prepared at Police Station. Another recovery witness is Rasheed Ahmed PW 4 who stated that the memos PW 2 and PW 3 bears his signature and Kailash got recovered the articles; screw-driver, knife and Dantli from the house of Gyarsi and Alladdin got recovered from the house of Gyarsi; blade, screw-driver and Sandashi. The memos were got written at the house of Gyarsi. The articles 1, 2 and 3 present in Court are the same which were recovered at the instance of accused Kailash Thus there is difference between the statement of Ismail PW 1 and Rasheed PW 4 about the place of recovery of these articles. All these articles were recovered not from the house of Kailash or Alladin but they were recovered either according to Ismail from the house of Maina PW 12 and according to Rasheed PW 4 from the house of deceased Gyarsi. Thus this recovery creates suspicion. We are unable to agree with the prosecution that the accused persons gave information for the recovery of these articles and at their instance these articles were recovered.
12. The ornaments were recovered from the field of Kailash. The recovery witnesses are Bhopal Singh PW 15 and Bhanwar Singh PW 16. On the information of accused Kailash the ornaments were recovered from the field and similarly on the information and at the instance of accused Alladdin the ornaments were recovered from the field of Kailash. We fail to understand why Alladdin will keep these ornaments in the field of Kailash. If the ornaments were in his share he would have kept them either at his house or at other place, but he would not kept those ornaments at the field of Kailash. Then the recovery was from an open place which was accessible to all. The place from where these ornaments were recovered was not in exclusive possession of Kailash or Alladdin only but it was an open field where everybody could reach, therefore, the recovery from an open place which is accessible to all has no value. It is on the record that one watch was recovered from the house of Alladdin. This is also unbelievable that Alladdin will keep watch at his house while keep the other ornaments at the field of Kailash. When he could keep the ornaments in the field of Kailash, he could also keep the watch along with those ornaments in the same field. There is no reason that he will keep the watch at his house, so the recovery of watch from the house is a concocted and manipulated recovery.
13. It is also in the evidence that the articles on the information of both the accused persons were recovered from outside the house of Gyarsi. All the articles were recovered from the same place. When Kailash gave information for the recovery of the article and at his instance the articles were recovered from outside the house of Gyarsi, the Police would have recovered all the articles which were recovered on the information of Kailash as well as Alladdin. The articles on the information of Alladdin were also recovered from that very place which is outside the house of Gyarsi. So there was no question of giving further information by Alladdin for the recovery of articles because when the articles were recovered at the instance of Kailash, the articles which Alladdin desired to get recovered would have been recovered at that time, so it cannot be believed that Alladdin gave the information for the recovery of the articles and they were recovered from the same place from where the articles were recovered at the instance of Kailash. So the recovery of all these articles is doubtful recovery and no reliance can be placed on such recovery.
14. Regarding ornaments it is on the record that Dhanbudh Raj and Ratan Lal are the goldsmiths who had prepared these ornaments. They were the best witnesses cited by the prosecution to prove that the recovered ornaments were prepared by them for Gyarsi or for Maina PW 12. According to Maina PW 12, her ornaments as well as ornaments of her daughter who is wife of accused Kailash, were kept with Gyarsi. So the ornaments alleged to have been stolen away relate to Maina PW12 as well as daughter of Maina. The goldsmiths who prepared those ornaments could identify them and could have stated that they were prepared either on the request of Gyarsi, or Mst. Maina PW 12. But the prosecution has not examined these two goldsmiths. They were material witnesses and should have been examined. Their non-examination gives adverse inference against the prosecution.
15. There is evidence of identification of the ornaments by Mst. Maina PW 12. The identification parade was conducted for these ornaments by PW 26 Shri Satya Narain Dave, Munsif Magistrate, Kishangarh. We have read the statement of Shri Satyanarain PW 26 and also perused Ex. Ps. 9, 10 and 11. We are of this opinion that this identification parade was not conducted according to the rules. It was duty of the Munsif Magistrate to mix quite reasonable number of similar articles with the articles to be identified at the time of parade, but we find from the statement of PW 26 Satya Narain and also from the memos Ex. Ps. 9, 10 and 11 that no article was mixed with the articles at items numbers 2, 4, 10, 11 and 13 in Ex. P 9, with items Nos. 1, 2, 3, 6, 8, 9 and 10 as mentioned in Ex.P 10. So without mixing some articles the identification parade has no value. The articles were identified by Maina and Dhanbudh Singh and Ratan Lal. The witnesses Dhanbudh Singh and Ratan Lal who identified these articles were not examined. So from all angles, we are of this opinion that this identification parade has no value and we do not believe that the ornaments were identified by Mst. Maina.
16. In view of our above discussion, we find that the learned Sessions Judge has failed to appreciate the statement of the witnesses. He failed to appreciate even the law regarding identification of articles. The allegation arrived at by the learned Sessions Judge is incorrect conclusion which is not based on the record. We do not agree with the finding of the learned Addl., Sessions Judge. As we have mentioned above that the learned Addl. Sessions Judge could not make his mind whether an offence under Section 302 has been committed by the accused persons or whether the offence under Section 302/34 IPC has been committed by them. A Sessions Judge who could not distinguish between these two offences is a sad state of affair. We are unable to maintain the conviction of the accused persons.
17. As a result, the appela is accepted. The appellant Kailash Chandra and Alladdin are not found guilty of the offence under Section 302 or under Section 302 read with 34 IPC and under Section 380 IPC. Both are acquitted from these offences. Both the accused are in jail. They shall be released forthwith, if not needed in any other case. The ornaments seized in this case by the Police are confiscated to the State. The other articles 'Dantli', 'Sandashi', 'knife' and 'blade' be destroyed.