Judgment:
B.R. Arora, J.
1. This appeal is directed against the judgment dated 31-3-84, passed by the Sessions Judge, Balotra, by which the learned Sessions Judge convicted the appellant for the offences under Sections 302, 394 and 201 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 302, IPC; six year's rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 394 IPC and four year's rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 201 IPC.
2. On 21 -1 -82, the nephew of PW1 Rau Ram saw the hand of one dead person emerging from a pit. On receiving this information, PW1 Rau Ram, along with his nephew Phoosa Ram, went to the place where his nephew had seen the hand of a dead person and saw the same. He thereafter sent Phoosa Ram to inform the police and he himself stayed there to keep a watch over the dead body. The police reached there, took-out the dead body from the pit and started investigation under Section 174 Cr. PC and the doctor was called on the spot. On post-mortem it was found that the deadbody was of a young man and a Dhoti was tied on his loin. The deadbody was tied in a cloth. After the post-mortem examination, the cremation of the dead body was performed. One Dama S/o Shri Amba (PW4) R/o Loona had left his village some days before the occurrence. PW4 Amba, father of dama on receiving the information that some deadbody has been recovered, reached at the place where the deadbody was found but he could not identify the deadbody. The police, thereafter, proceeded with the investigation and it was revealed that the deadbody recovered was that of Dama, who had left his village on a camel. The camel was sold by Dama to PW18 Uda Ram and in exchange thereof he took twenty-one she-goats and some sheep and Rs. 500/- in cash. Deceased Dama, along with the catties, was last seen by PW5 Dau Ram, PW6 Bhaira, PW7 Adu Ram and PW8 Mst. Khetu in the company of the accused-appellant. Thereafter, as per the prosecution case, the accused-appellant committed the murder of Dama and concealed his deadbody after teging it in the cloth under the earth, where from it was recovered by the police on the information given by PW 1 Rau Ram. The police, after necessary investigation, presented the challan against the accused and the accused-appellant was committed to the Court of the learned Sessions Judge, Balotra, to stand his trial. The appellant was, thereafter, tried by the learned Sessions Judge, Balotra, for the offences under Sections 302, 394 and 201 IPC. The prosecution, in support of its case, examined thirty-three witnesses and the learned Sessions Judge, after trial, convicted and sentenced the accused-appellant as stated above. It is against this judgment dated 31 -3-84, passed by the learned Sessions Judge, Balotra, convicting and sentencing the accused-appellant that the appellant has preferred this appeal.
3-4. It is contended by the learned Counsel for the appellant that the learned Sessions Judge has convicted and sentenced the accused-appellant on the basis of the three circumstances, namely, (i) the last seen of the accused in the company of the deceased by PW5 Dau Ram PW6 Bhaira Ram, PW7 Adu Ram and PW8 Mst. Khetu, but the evidence of these witnesses does not conclusively prove that the accused was seen with the deceased immediately before this occurrence. The second circumstance, which has been relied-upon by the learned Sessions Judge is the recovery of the catties and the various articles belonging to the deceased on the information and at the instance of the accused, which, also, do not stand proved from the evidence produced by the prosecution and there is not even an iota of evidence to connect the accused-appellant with the crimes and he has been wrongly convicted by the learned Sessions Judge. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below.
5. We have considered the submissions made by the learned Counsel for the parties.
6. The nature of the evidence, produced by the prosecution, consists of the evidence of PW 1 Rau Ram and PW2 Phoosa Ram, who saw the hand of a concealed deadbody and reported the matter to the police and the police came and recovered the concealed deadbody from the earth. The second set of the evidence, which has been produced by the prosecution consists of the statements of PW5 Dau Ram, PW6 Bhaira Ram, PW7 Adu Ram and PW8 Smt. Khetu, who had last seen the deceased in the company of the accused-appellant. The another type of evidence of that of PW9 Mst. Nathunand PW 10 Thana, who had seen the accused wearing the clothes of the deceased immediately after the occurrence. The third set of the evidence is the statement of PW 18 Uda Ram, who purchased the cattle of the deceased and in exchange thereof sold twenty-one she-goats and, also, paid him Rs. 50/-. The fourth type of evidence that has been produced by the prosecution is the evidence of PW 11 Adu, PW 12 Kheta, PW 13 Talab and PW 17 Akbar to show the sale of the she goats belonging to the deceased by the accused-appellant to these persons. PW4 Amba is the father of deceased Dama who has been produced by the prosecution to show that deceased Dama left the house on a camel and had gone to see his brother who was grazing the catties at some distance. This witness has, also, identified the camel, the saddle and the various articles belonging to the deceased and recovered from the accused-appellants on his information and at his instance, PW14 Nawla Ram, PW15 Bala Ram, PW16 Hukma Ram, PW 19 Khinya Ram, PW20 Kishna, PW21 Kunbha, PW 23 Gokla Ram, PW24 Bhagirath, PW25 Khangar Singh and PW26 Pema Ram are the Motbir witnesses relating to site plan, the arrest of the accused and the recoveries of various articles. PW22 Panna Lal has stated that near his Dhani one bag was found lying and he informed the police regarding the presence of the bag and the police recovered the same which contained the clothes of the deceased. PW 27 Nathu Singh ASI, PW28 Laxman Singh SHO., PW29 Bhanwar Singh LC, PW31 Mazboot Singh HC, and PW32 Chuna Ram are the police personnels. Initially the information was received by PW27 Nathu Singh regarding appearance of the hand of a concealed deadbody, who registered the FIR. PW28 Laxman Singh was the Station House Officer, Police Station, Baytu, who conducted the investigation and handed-over the same to PW32 Chuna Ram, CI., CID, (CB). Jaipur, on 28-1-82. who arrested the accused on 31 -1 -82, completed the investigation and presented the challan. PW3I Mazboot Singh was the Head Constable who was the In charge of the Malkhana of Police Station, Baytu, in whose custody the articles remained wherefrom they were taken by PW23 Gokla Ram and he deposited the same in the State Forensic Science Laboratory, Jaipur. PW30 Dr. Ramesh Chandra Somani was the In charge, Primary Health Centre, Baytu, who conducted the post-mortem on the dead body of Dama. PW33 Shri Kailash Chandra Sharma was the Munsif and Judicial Magistrate, Banner, who conducted the identification of the she-goats and the lamb from Uda and that of the Jarsi from Nathu and Doongra, the camel and the saddle and other articles belonging to the deceased from Amba Ram. Shri Kailash Chandra Sharma, also, conducted the identification parade of the accused-appellant.
7. The first circumstance, which has been relied-upon by the learned Sessions Judge is that the deadbody, which was found concealed in the earth, was that of deceased Dama. Though the deadbody was found in a decomposed position and nobody could identify the deadbody to be that of Dama and even PW 4 Amba -- the lather of deceased Dama -- could not identify the deadbody ' to be that of his son Dama either by personally seeing the deadbody or from the Dhoti which was found on the deadbody, but looking to the approximate age of the dead-body, determined by the doctor, and the bag containing the clothes of the deceased, which was found (though at some distance) it can safely be said that the corpus delicti was that of deceased Dama. The learned trial Court was, therefore, justified in holding that the deadbody recovered was that of deceased Dama as nobody was found missing from the village or nearby villages during those days.
8. The next circumstance, which has been relied-upon by the learned Sessions Judge is the evidence of last seen of the deceased in the company of the accused-appellant. The prosecution has produced four witnesses to show that the deceased was last seen with the accused-appellant. PW 5 Dau Ram has stated that ten-twelve days earlier to the recovery of the deadbody,
Dama came to the house of Ladu Ram, the brother of this witness and at that time Dama told him that he had some she-goats with him and for them he demanded some fodder. At that lime one more person was with Dama who was Jat by caste. The other person, who was with Dama, was seen by Thana Ram. In the cross-examination he has admitted that he had not seen the man who came with Dama. The evidence of this witness clearly shows that this witness has not seen the deceased in the company of the accused. PW 6 Bhaira Ram has. stated that about a year before, two persons earne to his house with some she-goats. He enquired their names from those two persons and on enquiry they disclosed their identity as Dama Meghwal and Mala R/o Kesu. Dama, also, in-formed him that he had sold the camel to Uda. Both these persons took their meals on that night with him. He identified the accused in the Court as well as during the identification parade. This witness, in his statement Ex.D.2 recorded under Section 161 Cr.P.C, did not disclose the name of Mala Ram and when he was confronted with his police statement, he admitted that he did not disclose the name of Mala Ram and, also, admitted that on the last date he had seen the accused in the Court. He has also, admitted that when the two persons came to his house, it was a dark night and, therefore, he could not identify those persons. The evidence of this witness, also, does not show that the deceased and the accused-appellant went together to his house as this witness himself has admitted that as it was a dark night he could not recognize these persons. This witness has, also, not stated in his earlier statement recorded during the investigation that he disclosed the name of the accused in his statement recorded under Section 161, Cr. P.C. The accused was seen by this witness on an earlier occasion and, therefore, the identification of the accused by this witness during the course of trial will not be of any assistance to the prosecution. The evidence of this witness regarding the last seen of the accused in the company of the deceased, also, does not inspire confidence. The third witness, who alleges to have seen the deceased in the Company of the accused is PW 7 Adu Ram. He has stated that about twelve months before he had gone to his house on leave. When he was returning to Baytu, at about one kilometer away from Baytu, on Phalsund road, at about 8.(K)/8.30 a.m., two persons met him. On enquiry they told that one of them was Tambi of village Loona and the other was Jat by caste and resident of village Sindri. According to him, one of those two persons, to whom he met in the way, was the accused-appellant. From the evidence of this witness, it cannot be said that the other person with the accused was the deceased. Moreover, before identification of the accused in the Court, the accused was seen by this witness on the earlier dates, also. From the evidence of this witness, it cannot be said that this witness had seen the accused in the company of the deceased. The last witness, produced by the prosecution to show that the deceased was last seen in the company of the accused-appellant, is PW 8 Smt. Khetu. PW 8 Smt. Khetu has stated that about twelve months before, two persons came to her house. One of those two persons was wearing white Bush shirt and was, also, wearing a black jacket over the bush shirt and a cloth was, also, tied on his head. The other person, was wearing yellow Potiya. One person disclosed his identity as Bhambhi R/ o Loona and the other person disclosed his identity as a Jat R/o Kesulav. She has, also, stated that she cooked food for them. She identified the accused in the Court. In the cross-examination, she has admitted that she had seen the accused on the earlier date out-side the Court premises. This witness, for the first time, was examined after a month of the incident. She has admitted that she does not know wherefrom these persons came but she cooked the meals for them. She is unable to disclose the identity of the accused and, also, showed her inability to say whether those two persons were having the beard or mustaches. The accused was shown to this witness earlier. This witness has not been relied upon by the learned lower Court and we are, also, of the opinion that the evidence of this witness too does not inspire confidence and has been rightly disbelieved by the learned Sessions Judge. We are, therefore of the opinion that the prosecution has failed to prove this circumstance against the accused-appellant. From the evidence of these witnesses it cannot be said that the accused was last seen in the company of the deceased.
9. The next circumstance, which has been believed by the learned trial Court is the pointing of the place by the accused-appellant where he allegedly concealed the deadbody and threw the bag containing the clothes of the deceased. The deadbody as well as the packet containing the clothes of the deceased, were recovered by the police much before the arrest of the accused and, therefore, the recoveies of the same cannot be said to be made on the information and at the instance of the accused-appellant. These cannot be said to be the discoveries made at the instance of the accused because the deadbody and the bag had already been recovered by the police before the arrest of the accused was made. These circumstances, therefore, cannot be read against the accused-appellant. The learned Sessions Judge was, therefore, not justified in taking these circumstances against the accused-appellant.
10. The third circumstance, which has been relied upon by the learned lower Court is the sale of camel by deceased Dama to PW 18 Uda Ram and the purchase of twenty-one she-goats from Uda Ram in exchange of the camel. PW 18 Uda Ram has stated that in exchange of the camel he gave twenty-one she-goats and sheep to deceased Dama. Admittedly, the camel of the deceased alongwith the saddle, was recovered from PW 18 Uda Ram. Thus, he is, also, one of the suspects and if he, in order to save his own skin, has made-out a story that he sold twenty-one she-goats and sheep in exchange of the camel then merely on the basis of the statement of this witness, the accused-appellant cannot be convicted. According to this witness, the deal was struck-out in the presence of his brother Pema and Pubji Jodha a Rajput and Gajja Jat (both residents of Phalsund). None of these persons have been produced by the prosecution to prove this part of the prosecution story. In the absence of the evidence of these witnesses it cannot be said that actually a deal was struck-out between deceased Dama and this witness. Moreover, this circumstance does not connect the accused with the crime. This evidence, therefore, cannot be read against the accused-appellant. The learned Sessions Judge was, therefore, not justified in relying upon this circumstance against the accused-appellant.
11. The next circumstance, which has been relied-upon by the learned trial Court is the sale of she-goats by the accused to PW 11 Adu Ram for a consideration of Rs. 120/- and 19 she-goats to PW 13 Talab. PW 11 Adu Ram has stated that the accused, alongwith the flock, met him out-side the village and he offered to purchase the she-goats and a deal was struck-out for Rs. 120/-. He paid Rs. 20/- to him and came to the village, borrowed Rs. 70/- from Talab and paid the same to the accused as the remaining balance. Talab, also, purchased the remaining cattle for a consideration of Rs. 845/- and after purchase of the she-goats he sold all the she-goats alongwith other she-goats in Delhi. PW 17 Akbar - the father of PW 13 Talab - and PW 11 Adu Ram have, also, stated that they were not knowing the accused before-hand and, therefore, they wanted to get a receipt and for that purpose they were going to the Sarpanch but in the way Kheta met them and he: stated that he personally knows the accused arid there is no necessity of taking any receipt. Though there is nothing on record to show that these were the same catties which were with the deceased at the time of his death or they were sold by PW 18 Uda to deceased Dama and even Uda has not identified the she-goats which were sold by the accused to PW 11 Adu Ram. In the absence of the evidence of PW 18 Uda that he sold these she-goats to deceased Dama, who sold the same to PW 11 Adu, it cannot be said that those were the same she-goats which were with deceased Dama when he was murdered. This circumstance, therefore, also, does not connect the accused-appellant with the crime.
12. The next evidence, produced by the prosecution, is that after the incident the accused was seen wearing the clothes of the deceased. To prove this (act, the prosecution has produced PW, 9 Mst. Nathu and PW 10 Thana. This circum-stance has not been believed by the trial Court. After going through the statements of these two witnesses, we are, also, of the opinion that the evidence of these two witnesses does not inspire confidence and nobody can remember the clothes which were being worn by a stranger after such a delay when they had seen the accused for the first time. We are, therefore, of the opinion that the learned trial Court was right in disbelieving the statement of PW 9 Mst. Nathu and PW 10 Thana. This circumstance, therefore cannot be read against the accused-appellant.
13. The next circumstance, which has been relied-upon by the learned trial Court is the recovery of the utensils belonging to the deceased which were recovered on the information and at the instance of the accused-appellant and the clothes of the deceased, namely, Jarshi, Tewta and Patura. The recoveries of these articles were not made from the exclusive possession of the accused and moreover these were not the articles of any considerable value and it is not expected that the appellant would preserve and keep these worthless incriminating articles in his house after the murder of the deceased. The evidence produced by the prosecution in this regard does not establish beyond reasonable manner of doubt that these articles were recovered on the information and at the instance of the accused. As these articles were not recovered on the information and at the instance of the accused, the recoveries of these articles, therefore, does not connect the accused with the crime. Even if this evidence of recoveries is believed even then this sole circumstance does not make-out a case against the accused-appellant. The learned lower Court was, therefore, not justified in placing reliance over this evidence against the accused-appellant.
14. There is no other evidence against the accused-appellant except the evidence and circumstances stated above and the prosecution has failed to prove the case against the accused appellant beyond a reasonable manner of doubt. The learned Sessions Judge was, therefore, not justified in convicting and sentencing the accused- appellant on the basis of the evidence which does not inspire confidence. The prosecution has failed to prove the case against the accused-appellant for the offences under Sections 302, 201 and 394, IPC and the accused-appellant, therefore, deserves to be acquitted.
15. In the result, the appeal, filed by accused-appellant Mala is allowed. The judgment dated 31-3-84, passed by the learned Sessions Judge, Balotra, convicting and sentencing the accused-appellant, is set-aside and the accused-appellant is acquitted of all the charges leveled against him. He is in jail. He may be released forthwith if not required in any other case.