Raju Ram and anr. Vs. State of Rajasthan - Court Judgment

Rajendra Saxena, J.

1. This appeal has been preferred against the judgment dated 17-9-84 passed by the learned Sessions Judge, Balo-tra, whereby the convicted appellants Raju Ram and Vazir Mohd. for the offence Under Section 302, I.P.C. and sentenced each of them to life imprisonment and further convicted them for offence Under Sections 460 and 404, I.P.C. and sentenced each of them to rigorous imprisonment for seven years and three years respectively and further directed that all the substantive sentences shall run concurrently.

2. Briefly the relevant facts are that the I deceased Bastimal aged 75 years and his wife deceased Sua aged 70 years were residing in their house situated in village Patodi. They had only one daughter P.W. 4 Mangi Bai, who was living with her husband in the town of Pachpadra. They had no other issue. It is alleged that on 10th May, 1983, P.W. 7 Mohanlal, who was the nephew of deceased i Bastimal in distant relation and who was running a grocery shop in village Patodi, while going to the fields, noticed that the door of Bastimal's house was closed. Mohanlal, when returned after answering the call of nature again found that door of Bastimal's house was closed. Thereupon, he knocked the door and called Bastimal, but there was no response. The door was bolted from inside. He thereupon peeped through the crevices of I the door. He was shocked to find that the dead bodies of Bastimal and Smt. Sua were lying in pool of blood on their costs. Both legs of Smt. Sua were chopped off and one chopped off leg was lying in between her thighs. He also did not find the silver 'Kadlas' in her legs, which Smt. Sua used to put on. Thereupon Mohanlal went to P.W. 9 Roop Chand and P.W. 1 Champalal and narrated them what he had seen. Thereafter, he proceeded towards Police Station, Mandali, but in the way at village Korna, he came to know that the S.H.O. had come there. ,. Therefore, he submitted a written report Ex. P. 8 to P.W. 21 Yasin Khan, S.H.O., P.S., Mandali on the same day at 1.1 a.m. On interrogation, he informed Yasin Khan that Smt. Sua also used to put on gold madaliyas' around her neck, nose ring and gold tontiyas (tops in her ears), gold 'borla' with chains and gold plated 'bungaries' in her hands. Yasin Khan directed P.W. 18 Bhur Singh Head Constable, who was accompanying him to go to Police Station, Mandali and to get the case registered for the offences Under Sections 302, 449 and 458, I.P.C. Bhur Singh reached the police station on the same day at about 12.30 p.m. scribed formal FIR Ex. P. 28 and after registering the case sent the F.I.R. to Yasin Khan. Yasin Khan reached the place of occurrence at about 1 p.m. He found that the door of Bastimal's house was bolted from inside. He, therefore, asked P. W. 6 Sukh Ram Constable to climb over the roof of that house by means of a ladder, go inside and open the door. Accordingly, Sukh Ram opened that door from inside. Yasin Khan along with motbirs inspected the site and found the dead bodies of Bastimal and Smt. Sua lying on separate cots having extensive injuries on their neck, abdomen and other parts of the bodies. Their clothes were soaked with blood. The blood was also lying scattered beneath their cots. Both legs of Smt. Sua were chopped off and one of the chopped off legs was found placed in between her thighs. Her silver 'Kadlas' and other ornaments were found missing. Inside the 'pol' (gate) and in the courtyard of the house, blood was found lying scattered at various places. On the left side, there was a small room (ordi). The lock of door of that room was lying open, wherein a key in the cotton string was fixed. That cotton string was also blood stained. Inside that 'ordi', the household utensils including canisters etc. were found lying scattered. Yasin Khan found one steel 'katori' and mirror lying in the courtyard (Angan) on which some chance finger prints were visible. Yasin Khan, thereupon seized and sealed the blood stained soils from various places, blood stained piece of cardboard, blood stained cloth bag, which was found in 'pol', blood stained clothes which were found in the 'ordit' in separate packets and wrapped them in a cloth packet. He also seized and sealed the control samples of soil. He further seized and sealed the steel 'katori' and the mirror, which had chance prints, in a wooden packet and sealed those by wrapping a cloth thereon. During inspection of the site, he also noticed one foot print in the Sal' and another foot print in another 'Sal'. He also noticed that on the northern side of Bastimal's house there was a 'khejari' tree standing at a distance of 3 ft. 9 inches from that wall and that there he noticed two foot prints going towards,the house and five foot prints going away from the house. He prepared a inspection note Ex. P. 7 having detailed narration about the various seizures of abovementioned articles. He also prepared the site plan Ex. P. 9. Yasin Khan after examining the dead bodies of Bastimal and Smt. Sua prepared their autopsy reports Ex. P. 10 and Ex. P. 11 respectively. The inspection of the place of the occurrence revealed that some culprits had scaled over the roof of deceased 'from the northern side wall and come down in the house, where they had mercilessly butchered Bastimal and Smt. Sua causing them extensive injuries by sharp edged weapons.

3. P.W. 2 Dr. Pradeep Parakh, Medical Officer, Govt. Hospital, Patodi conducted the post-mortem examination on the dead body of Bastimal on the same day. He found the following injuries:-

'(1) An incised wound in left hypochon-dric region five inches away and below from umblicus measuring 21/2' x 1' x cutting the muscle. The peritoneum was torn at the site of abdominal injury and the intestine was also herniated at the site of injury;

(2) incised wound of 1.5' x 1/2' x skin deep on left side of face;

(3) incised wound 3'/2'x1/2'x 1 on left side of neck, 3!/' below left ear cutting muscles and large vessels;

(4) incised wound of 1.5' x '/2' xl' on the left side of neck just above injury No. 3;

(5) incised wound of 1' x l/2' x Y2' on the posterior lateral side of left neck;

(6) incised wound of 1.5' x 1/2' x 1/2' situated four inches above the mid of left clavicle.'

All those injuries were ante-mortem. The doctor prepared the post-mortem examination report Ex. P. 1 and in his opinion, the cause of death of Bastimal was syncope and shock caused by multiple injuries and haemorrahage.

4. Dr. Pradeep Parakh also found, the following injuries on the person of Smt. Sua:

'(1) Both ears were torn from lobules;

(2) Both feet were cut and separated at the site of ankle joints from lower legs by sharp weapon. Margins of skin around cut portion were congested;

(3) Bruise with mark of depression, oval shaped on the medial side of both thighs at the junction of upper 2/3 and lower 1 / 3 of thighs;

(4) There were marks of ligature on neck. The neck was cut from its base horizontally 5' x 2' x 2' from its base on its anterior side just above the manubrium sternii;

(5) The trachea and major blood vessels - common carotid were cut at the site of the injury.

All those injuries were ante-mortem and as per the post-mortem examination report Ext. P. 2, the cause of her death was syncope and shock caused by multiple injuries and haemorrahage.

5. After post-mortem examination, Yasin Khan seized and sealed blood soaked shirt, 'dhoti', 'khes' and pillow found from the cot of deceased Bastimal vide seizure memo Ex. P. 12. He also seized and sealed the blood soaked 'Ghaghara', 'kanchli', odhna', blood stained bangles, gold nose 'kanta', gold tar rings and detached piece of gold chain of the 'Bor' from the dead body of Smt. Sua vide seizure memo Ex. P. 13.

6. On 11-5-83, the Investigating Officer arrested appellants Raju Ram and VazirAdde arrest memos Ex. P. 3 and Ex. P. 4 respectively. At the time of arrest, appellant Vazir was also putting on a blood stained underwear, which was separately seized and sealed. He also had one injury caused by a sharp edged weapon on middle finger of his left hand. P.W. 8 Dr. Ramesh Mathur examined appellant Vazir on 12-5-83 and found an abrasion of 1.5 x 0.3 cm on the tip of middle finger of his left hand vide MLR Ex. P. 16.

7. It is the case of the prosecution that immediately after his arrest on 11-5-83, appellant Vazir made a disclosure statement Ex. P. 32 and in pursuance thereof got recovered one gold 'Bor' along with part of its gold chain Article 5, a pair of gold 'tontiyas' (ear tops) having blood stains Article 6, five gold mada-liyas' which were also blood stained. Article 7 at his instance underneath a 'Babul' tree standing on the field of one Meghji Mahajan near village Patodi in presence of motbirs. Those gold ornaments were seized and sealed by Yasin Khan vide recovery memo Ex. P. 6. he also prepared the site plan of place of recovery Ex. P. 33. P.W. 4 Smt. Mangi Bai correctly identified the aforementioned gold ornaments belonging to her mother Smt. Sua deceased in the test parade conducted by P.W. 15 R.S. Solanki, MJM, Siwana, who prepared the identification parade memo Ex. P. 21. It is further the case of the prosecution that on 18-5-83, appellant Vazir voluntarily made another disclosure statement Ex. P. 34 to Yasin Khan and in pursuance thereof on 21-5-83 in presence of motbirs, he took the Investigating Officer to one of the room of the hotel of co-accused Mohd. Bux situated in village Patodi. The lock of that room was opened by a key, which was given by co-accused Alladdin and from that room, appellant Vazir took out his blood stained 'tehmad', which was already washed and concealed in a bag and gave the same to the Investigating Officer. That blood, stained 'tehmad' was wrapped in an old white cloth. The said 'tehmad' and the cloth were seized and sealed vide recovery memo Ex. P. 18. The Investigating Officer also prepared the site plan Ex. P. 35 of the said place of recovery.

8. It is alleged that appellant Raju Ram immediately after his arrest voluntarily made a disclosure statement Ex. P. 36 on 11-5-83 and in pursuance thereof, he took the Investigating Officer along with motbirs to a shrub of 'beri' tree situated outside the village Patodi near the Forest -Nursery and after digging a pit took out a packet wrapped in a blood stained 'baniyan', which contained a pair of silver 'Kadlas' having blood stains thereon and one knife having a total length of 8 3/4' and length of its blade was 3 '. The blade and handle of the said knife were also blood stained. The aforementioned articles recovered at the instance of appellant Raju Ram were seized and sealed by the Investigating Officer vide recovery memo Ex. P. 5. P.W. 4 Smt. Mangi Bai also correctly identified the said pair of silver 'Kadlas' ( Article 4), as belonging to her mother Smt. Sua, during the test parade conducted by P.W. 15 Shri R. S. Solanki, MJM.

9. It is the case of the prosecution that sealed packets of 'katori' (Article 8) and mirror (Article 9) which were recovered from the house of the deceased and which contained the chance prints, were sent along with specimen thumb impressions of appellant Raju Ram, Vazir and co-accused Alladdin, which were taken in the presence of P.W. 20 Gurudayal Arya S.D.M. to the Director, Finger Prints Bureau, Rajasthan, Jaipur. After necessary examination and comparison, all the chance prints marked C-l, C-2 and C-3 and the specimen thumb impressions, the Director, Finger Print Bureau vide his report Ex. P. 48 opined that the chance prints marked C was similar and identical with the left thumb print marked S of appellant Raju Ram; that the chance print C-l was also similar and identicial with the specimen left I index finger print marked S-l of Raju Ram and that the chance print marked C-2 was similar and identical with the specimen left in the finger print marked S-2 of Raju Ram and that the chance print marked C-3 was unfit for comparison. Thus, it was reported that the chance prints on the mirror and the steel 'katori' bore the finger print impressions of appellant Raju Ram.

10. Seventeen sealed packets containing blood smeared soil and pieces of clothes, control soil, 'dhoti', 'Kameej' of deceased Bastimal, blood stained 'Ghaghara', 'Kan-chali', 'Odhna' of deceased Smt. Sua, blood, stained 'Kachha' (underwear) taken from the person of appellant Vazir, blood stained 'baniyan' and knife got recovered at the instance of appellant Raju Ram and blood stained pieces of cloth and 'tehmad' got recovered at the instance of appellant Vazir and another blood stained 'tehmad' got recovered at the instance of co-accused Alladdin and the blood sample taken from the body of appellant Vazir were also sent to the State Forensic Science Laboratory, Raj., 'Jaipur. After examination, the Director, State Forensic Science Laboratory vide its report Ex. P. 49 reported that the four packets of blood smeared soil seized from the place of the occurrence, dhoti and shirt of deceased Bastimal, 'Ghaghara', 'Kanchali' and 'Odhna' of deceased Smt. Sua, underwear of appellant Vazir, 'tehmad', 'baniyan' and knife recovered at the instance of appellant Raju Ram and another 'tehmad' recovered at the instance of co-accused Alladdin and two' vials containing blood of Vazir, were stained with human blood. However, no blood could be detected on the piece of cloth, which was found along with 'tehmad' of appellant Vazir. He further reported that 'tehmad' recovered at the instance of Vazir and blood in the vials were stained with 'B' Group blood. However, the blood group of the stains on aforementioned other exhibits could not be determined because of interfering substance and disintegration.

11. After completion of investigation, the police submitted a challan against the present appellants and co-accused Alladdin and Mohd. Bux in the Court of learned MJM, Balotra, who committed the case to the learned Sessions Judge, Balotra. The appellants were charged with the offences punishable Under Sections 120B-B r/w 302, 302, 302/34, 460 and 404, I.P.C., while co-accused Alladdin was charged with the offences Under Sections 120B r/w 302, 302, 302/34 and 460, I.P.C. and co-accused Mohd. Bux was charged with the offence Under Section 120B r/w 302, I.P.C. only. All the accused persons pleaded not guilty and claimed trial. The prosecution examined as . many as twenty one witnesses and relied on documents Ex. P. 1 to Ex. P. 49. Appellants in their plea recorded Under Section 313, Cr. P.C. denied the circumstances appearing against them in the prosecution evidence. However, they admitted their arrest. They denied their alleged disclosure statements as also the alleged recoveries at their instance. Appellant Raju Ram asserted that he had never been to village Patodi and that he was arrested in Balotra while he was coming from the factory. He further asserted that the police got his thumb and finger prints on the steel 'katori' and mirror after giving him a severe beating. Appellant Vazir also asserted that the police had beaten him and, as such, he got injury on his finger. However, the appellants did not examine any witness in defence. After trial, the learned Sessions Judge acquitted co-accused Mohd. Bux and Alladdin holding that there was no evidence against the former and that the latter deserved the benefit of reasonable doubt. However, the learned Sessions Judge by his impugned judgment found appellants guilty of the offences Under Sections 302, 460 and 404, I.P.C. and sentenced them as aforesaid. Hence this appeal.

12. We have heard Mr. M. L. Garg, the learned counsel appearing for appellants and Mr. Bohra, the learned Public Prosecutor appearing for the State at length and carefully perused the record of the lower Court in extenso.

13. Mr. M. L. Garg has vigorously contended that in this case, there is no direct evidence and that the entire prosecution case hinges on circumstantial evidence. According to him, the prosecution evidence is vague, fabricated and suspicious and that the material chains in the circumstantial evidence are missing. According to him, the learned trial Judge has not kept himself alive to the well crystallised principle of law regarding circumstantial evidence and committed a serious error in convicting the appellants. He has submitted that as regards appellant Raju Ram, the recovery of steel 'katori' and the mirror from the house of deceased is totally false, concocted and fabricated inasmuch as no seizure memo of those articles was prepared by the Investigating Officer. Even in the site plan Ex. P. 9, the place where those articles were found lying has not been shown. He has submitted that as per inspection memo Ex. P. 7, the steel 'katori' and the mirror were found lying in the courtyard (Angan) while PW Roop Chand and Mohanlal have stated that those articles were found lying in the 'Ordi' (small room). Thus, the prosecution evidence in this regard is inconsistent and self-contradictory. He has asserted that there is no convincing evidence that the packets of various articles seized/recovered by the I.O. were duly sealed and that those seals remained intact till those packets were handed over in the office of the Director, Finger Print Bureau and the State Forensic Science Laboratory. According to him, the delay in sending those articles to the Director, Finger Print Bureau and /or the F.S.L. has not been satisfactorily explained. The Finger Print Bureau has also not been produced by the prosecution and, as such, the report in the absence of his statement, cannot be read in evidence. He has argued that the alleged recovery of knife and silver 'Kadlas' at the instance of appellant Raju Ram, does not inspire confidence. According to him, the steel 'Katori' and the mirror were seized on 10-5-83, but those articles were deposited in the Malkhana of the Police Station as late as on 15-5-83. Even the entries of the Malkhana Register have not been proved. Those articles remained with the Investigating Officer till those were deposited in the Malkhana of the police station. In such circumstances, this possibility cannot be ruled out that the Investigating Officer got the thumbed finger print impressions of appellant Raju Ram on the said 'katori' and mirror after his arrest. For this, he has placed reliance on Hukum Singh v. State of Rajasthan, 1977 SCC (Cri) 250 : (1977 Cri LJ 639) and Mahmood v. State of U.P., : 1976CriLJ10 . Mr. Garg has submitted that the knife alleged to have been recovered at the instance of appellant Raju Ram was neither shown to the doctor nor the latter has given his opinion as to whether the injuries sustained by Smt. Sua and Bastimal could be caused by that knife. As regards the circumstantial evidence against appellant Vazir, Mr Garg has sub-mitted that the alleged recoveries of Kachha (underwear) and 'tehmad' and the gold ornaments belonging to the deceased Smt. Sua do not connect him with the guilt of murder. Firstly, there is not a fringe of evidence to prove that appellant Vazir was seen putting on that 'tehmad'. Secondly, the alleged recovery of gold ornaments from the possession of appellant Vazir is also suspicious. According to him, even if for arguments sake, the alleged recoveries of the ornaments at the instance of appellants are held to be proved, still then no presumption can be drawn that appellants Raju Ram and Vazir had committed the murders of Bastimal and Smt. Sua and that at the worst, the offence brought home against them cannot travel beyond S. 404, I.P.C.

14. On the other hand, Mr. D. R. Bohra, learned P.P. has strenuously contended that the steel 'katori' and the mirror were found lying in the house of the deceased by the I.O. as well as the motbirs immediately after the occurrence; that though the I.O. has not prepared seizure memos of samples or blood stained soil and control samples which were taken from different places, blood stained string of the key, blood stained clothes, steel 'katori', the mirror and other articles which were seized from the house of the deceased 'separately, still then the I.O. has made a detailed note about seizures of various articles in the memo of inspection Ex. P. 7, wherein it has been specifically mentioned that all those articles including the steel 'katori' and the mirror were seized and sealed. Thus all the necessary facts regarding seizure of various articles find specific mentioned in Ex. P. 7 and, therefore, in such circumstances, it was not at all necessary for the I.O. to have prepared separate seizure memo for each article. According to him, there is no inconsistency in the prosecution evidence about the place where the said steel 'katori' and mirror were found lying. All the seized articles were duly sealed in presence of motbirs and kept in the safe custody in the Malkhana of the police station till those were sent and received by the State F.S.L. and the Finger Prints Bureau. Mr. Bohra has asserted that to prove this fact, the prosecution has examined all the material witnesses. He has argued that the gold and silver ornaments of Smt. Sua were got recovered at the instance of appellants Raju Ram and Vazir on 11-5-83 immediately after the occurrence and they have not given any explanation as to how they came in possession nor given any reason as to how they had the knowledge about those ornaments, nor claimed that those ornaments belonged to them. On the other hand, P.W. 4 Smt. Mangi Bai, daughter of deceased Smt. Sua Devi has correctly identified all those ornaments belonging to her mother. Therefore, the learned trial Judge has rightly drawn a presumption Under Section 114 of Evidence Act that the appellants were the persons, who had committed the murders of Smt. Sua Devi and Bastimal. Mr. Bohra has also reiterated the reasonings given by the learned trial Judge and supported the impugned judgment.

15. We have given our most anxious and thoughtful consideration to the rival contentions.

16. It is not in dispute that in this case, there is no direct evidence and that the entire case rests on the foundation of circumstantial evidence. The principles regarding the appreciation of circumstantial evidence have been well crystallised. In a case based wholly on circumstantial evidence, the Court before recording the conviction must be firmly satisfied that the circumstances from which the interference of guilt is to be drawn, have been fully established by clear, cogent and unassailable evidence beyond all reasonable doubt; that the circumstances are of clinching and determinative tendency unerringly pointing towards the guilt of the accused and that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis except that of the guilt sought to be proved against the accused. In other words, all the incriminating facts and circumstances so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. The circumstantial evidence should unmistakably point to one and one conclusion only that the accused person and none other has perpetrated the alleged crime. We are fortified with the law laid down by the Apex Court in Mahmood v. State of U.P. : 1976CriLJ10 .

17. Now keeping in view the aforementioned well defined principles, we proceed to scan, analyse and evaluate the evidence adduced by the prosecution against appellant Raju Ram and Vazir. As mentioned earlier, co-accused Mohd. Bux and Alladdin have already been acquitted by the learned Sessions Judge.

18. The learned Sessions Judge has mainly relied on the following circumstantial evidence against appellant Raj Ram:-

(i) From the place of occurrence, one steel 'katori' (Article 8) and mirror (Article 9) were seized by P.W. 21 Yasin Khan, I.O., which had chance finger prints thereon. Those articles were seized and sealed by the I.O. and sent along with the specimen thumb impression and finger prints of appellant Raju Ram to the Director, Finger Print Bureau who vide his report Ex. P. 48 reported that the chance prints marked C, C-l and C-2 developed on mirror and steel 'katori' were similar and identical with the specimen left thumb print marked 'S', specimen left index finger print marked 'S-l', and specimen left middle finger print marked 'S-2' of appellant Raju Ram;

(ii) That on the next day of the alleged occurrence, appellant Raju Ram voluntarily made a disclosure statement Ex. P. 36 and in pursuance thereof got recovered a pair of blood stained silver 'Kadlas' (Article 4), blood stained knife, which was wrapped in a blood stained 'baniyaan' vide recovery memo Ex. P. 5;

(iii) That P.W. 4 Smt. Mangi Bai correctly identified the silver 'Kadlas' (Article 4) belonging to her mother Smt. Sua, deceased, during the identification parade conducted by P.W. 15 R.S. Solanki, MJM as per test parade memo Ex. P. 21;

(iv) That the appellant Raju Ram did not explain as to how he knew about the place from where 'Kadla' (Article 4) was recovered or he came in possession thereof nor he claimed those 'Kadlas' belonging to him.

19. Thus, taking a presumption under Illustration (a) of S. 114 of the Evidence Act, the learned Sessions Judge has convicted the appellant Raju Ram for the offences Under Sections 302, 460 and 404, I.P.C.

20. P.W. 21 Yasin Khan has stated that on 10-5-83, he was posted as S.H.O., P.S., Mandli; that on that day, he had gone to village Korna, where P.W. 7 Mohanlal submitted a written report Ex. P. 8 before him and that he made his endorsement thereon and asked P.W. 18 Bhur Singh, Head Constable to proceed to the P.S., Mandli for registration of the case. He has stated that thereafter he reached village Patodi at about 1 p.m.; that the doors of the house of deceased Bastimal were bolted from inside and that he, therefore, asked constable Sukha Ram (P.W. 6) to climb over the roof of that house and open the door from inside. Thereupon, constable Sukha Ram went inside the house of Bastimal and opened the door from inside. He has deposed that when he entered inside the house of deceased Bastimal, Anopa Ram of Modus Operandi Bureau (M.O.B.) and motbirs Roop Chand and Mohanlal had accompanied him. He has stated that when he entered inside the house of the deceased, he found the dead bodies of deceased Bastimal and Smt. Sua lying on two cots; that the dead bodies had multiple injuries and their clothes were soaked in blood and that he found a steel 'katori' and mirror on which chance finger prints were visible. He, therefore, seized and sealed those articles in a packet. It may be mentioned here that Yasin Khan P.W. 21 has not prepared a separate seizure memo about the alleged seizure of steel 'katori' and mirror. He has also not shown the place in 'the site plan Ex. P. 9, where the said steel 'katori' and mirror were found lying. The site plan Ex. P. 9 does not bear the signature of Anopa Ram, while in memo of inspection, signatures of Anopa Ram, L.C. 144 M.O.B. Branch S.P. Office, Barmer Camp Patodi find mention. The signatures of motbirs P.W. 7 Mohanlal and P.W. 9 Roop Chand are in different inks. The inspection note Ex. P. 7 is also signed by one Meghraj, but his signatures on site plan Ex. P. 7 are conspicuously missing like the signatures of Anopa Ram. If Anopa Ram, who was admittedly called from S.P. Office, Barmer, was actually present on 10-5-83 at 1 p.m. at the time P.W. 21 Yasin Khan inspected the place of occurrence and prepared the site plan then in ordinary course of nature, site plan Ex. P. 9 should have also been signed by him. A suggestion was put to P.W. 21 Yasin Khan by the defence that infact Anopa Ram was called on the advice of a retired Dy. S.P. on 12-5-83 i.e. after the arrest of appellant Raju Ram on 11-5-83, to which he replied in negative. When he was asked as to who had called Anopa Ram, Yasin Khan pleaded his ignorance. Thereafter, he modified his statement and told that he had instructed P.W. 18 Bhur Singh, Head Constable to send a wireless message from the Police Station, Mandli. Curiously, P.W. 18 Bhur Singh has not stated anything on this count and thus Yasin Khan's statement stands uncorroborated'. Yasin Khan has also admitted that there is no note in the case diary to the effect that a wireless message be sent to the S.P., Barmer for sending some person from the M.O.B. The prosecution has deliberately not produced Anopa Ram in evidence. He was a most material witness, who is alleged to have developed those chance prints found on the steel 'katori' and mirror. His non-production in evidence, therefore, raises a strong presumption against the prosecution that had he been examined, he would not have corroborated the testimony of Yasin Khan that the said steel 'katori' and mirror were found lying in courtyard of the house of deceased on 11 -5-83. Moreover, village Patodi is at a distance of about 100 kms. from Barmer. P.W. 8 Mohanlal had submitted the written report Ex. P. 8 to Yasin Khan at 11 a.m. at village Korna and the case was registered at Police Station, Mandli on the same day at 12.30 p.m. vide FIR Case No. 28. Therefore, it was not possible for Anopa Ram to have reached village Patodi at about 1 p.m. on 10-5-83 when P.W. 21 Yasin Khan had inspected the house of the deceased. The absence of signatures of Anopa Ram on site plan Ex. P. 9 also indicate that when this document was prepared on 10-5-83, he was not present at that time and that memo of inspection Ex. P. 7 giving details of seizures of various articles including the steel 'katori' and mirror was prepared later on. The memo of the dead bodies 'Fard Surat Hal Lash' Ex. P. 10 and Ex. P. 11, which were prepared by the I.O. immediately after he inspected the site, also do not bear the signature of Anopa Ram. No separate seizure memo of that steel 'katori' and mirror was prepared. Moreover, the prosecution evidence in respect of the place where from the steel 'katori' (Article 8) and mirror (Article 9) were recovered, is also inconsistent and contradictory. In the memo of inspection Ex. P. 7, it has been mentioned that those articles were found lying in the courtyard (Angan) of the house. P.W. 21 Yasin Khan has not specifically stated as to from which place those articles were seized. On the other hand, P.W. 7 Mohanlal has categorically stated that steel 'katori' (Article 8) and mirror (Article 9) were not lying in the courtyard (Angan) but were inside the room and that Yasin Khan had entered that room and that he and other motbirs were standing outside. P.W. 9 Roop Chand has deposed that the said 'katori' and mirror were lying on the floor of a room, Thus the prosecution evidence on this count is inconsistent and unreliable. There is another factor to be taken into consideration. As per statement of Yasin Khan, the said 'katori' and mirror were seized and sealed on 10-5-83, but admittedly those articles were deposited in the Malkhana of Police Station as late as on 15-5-83. P.W. 18 Bhur Singh has stated that Yasin Khan had deposited nineteen sealed packets on 15-5-83 in the Malkhana of the police station. Thus from 10-5-83 till 15-5-83, the packets of the said 'katori' and mirror remained in the possession of Yasin Khan, who has specifically admitted that the seal with which he had sealed those packets, remained in his custody. This abnormal delay in depositing the sealed packets in the Malkhana of Police Station has also not been explained at all by the prosecution. The entries of the Malkhana register have also not been got proved. Thus the alleged recovery of steel 'katori' (Article 8) and 'mirror (Article 9), having chance prints, on 10-5-83 in the house of the deceased Appears to us cooked up, concocted, fabricated and suspicious.

21. In Mahmood's case (1976 Cri LJ 10) (SC) (supra), the deceased lived all alone in his house. He used to lend money to one Ramswaroop, a distant relation and a dispute arose between them about the loan amount and their relations became strained. According to prosecution case, the said Ramswaroop , in collaboration with the appellant murdered the deceased in the night. The I.O. while inspecting the scene of occurrence found a blood stained 'gandasa' lying near the dead body. He also noticed finger prints on its wooden handle. The 'gandasa' was put in a box and sealed with the seal of the I.O. Lateron, the appellant was arrested and his specimen thumb impressions were taken and those were sent for examination and comparison to the CID Scientific Laboratory. The Thumb Impression Expert opined that the finger prints found on the handle of the Gandasa tallied with the impression of the specimen finger impression of the appellant. The case rested on circumstantial evidence. The trial Court disbelieved the evidence regarding 'last seen' but found that the presence of the finger prints of the appellant on the handle of the; Gandasa was a circumstance which by itself was sufficient to show that the murder had been committed by him and accordingly convicted him. The High Court affirmed the findings of the learned trial Judge and dismissed appellant's appeal. Thus, conviction rested on the solitary circumstance that the finger prints of the appellant were found on the handle of the Gandasa, which was found lying near the dead body at the scene of occurrence. The Apex Court held that the solitary piece of circumstantial evidence on which the prosecution had staked its case was too shaky, Auspicious and fragile to furnish a sound foundation for conviction. It was held that the Investigator did not take all the necessary precautions, which could be taken to eliminate the possibility of fabrication of this evidence or to dispel suspicion as to its genuineness. Admittedly, the I.O. sealed the box with his seal, which thereafter remained with him throughout. He did not take the signatures of witnesses on the parcel containing the Gandasa. He did not after sealing the parcel, entrust his seal to Sarpanch or any other respectable person of the village. According to the prosecution the finger prints found on the Gandasa could possibly be blood prints and that the blade of the Gandasa was all smeared with human blood but that Gandasa was not sent to the Chemical Examiner or the Serologist. No explanation of the same was forthcoming. It was, therefore, held by the Apex Court that there was a possibility of the Investigating Officer having an access to the parcel con- taining the Gandasa and such a possibility had not been positively excluded by the ; prosecution. It was further held that even if it was assumed that the handle of the Gandasa bore the finger prints of the appellant then also, it would not inexorably and unmistakably lead to the conclusion that the appellant and none else was the murderer of the deceased, unless it was firmly proved further that the fatal injury to the deceased was caused by that weapon. It was further held that the definite proof of this link was lacking. Thus, the Apex Court acceptea the appeal and acquitted the appellant.

22. In the instant case, the alleged recovery of steel 'katori' and mirror appears to be fabricated and suspicious. The wrapper containing steel 'katori' (Article 8) and mirror (Article 9) was neither produced in the Court nor it was established that it bore the signa-tures of the motbirs. As mentioned earlier, the delay in depositing the said packet in the Malkhana of Police Station as late as on 15-5-83 has also not been explained at all by the' prosecution. The knife alleged to have been recovered at the instance of Raju Ram vide recovery memo dt/- 11-5-83 Ex. P. 5 was not shown to PW 2 Dr. Pradeep Parakh, who had conducted the post mortem examination on the dead bodies of Bastimal and Smt. Sua Devi nor any suggestion was put to him as to whether the injuries sustained by Bastimal and Smt. Sua Devi, whose both legs were Chopped off, could be caused by such a knife. As per FSL report Ex. P. 49, the knife was found to be stained with human blood but its blood group could not be detected due to disintegration. The blood groups of blood soaked clothes of deceased persons also could not be determined by the Serologist. Therefore, the prosecution evidence on this count is vague, incomplete and insufficient to conclusively prove that the injuries sustained by deceased persons were caused by the knife recovered at the instance of appellant Raju Ram. '

23. In Hukum Singh's case (1977 Cri LJ 639) (SC) (supra), the appellant and other persons were tried for the offences of murder, | house trespass and robbery. It was a case of quadruple murder as a result of gun shot injuries. The I.O. had found one mirror and a j'Dibbi' on which certain finger prints were noticed, lying at the place of the occurrence. Those finger prints Were subsequently got examined by a Finger Print expert and the evidence established that the finger prints on the mirror were those of the appellant. Appellant and one Gangia were arrested and at the time of arrest, a shirt worn by the appellant I was taken in possession by the I. O. as she 1 suspected that there were blood stains on it. The shirt was sent to Chemical Analyser and Serologist and it was found that the shirt was stained with human blood. The appellant while in custody made a disclosure statement , and in pursuance there of got a gun and a bag containing pellets and gun powder recovered under a heap of chaff of grass lying in his field and from a heap of chaff lying on thrashing floor of his field, a cotton 'kesla' was recovered; in that 'kesla', various ornaments i were found, which were all subsequently identified by the complainant belonging to him. Co-accused Gangia also got effected certain recoveries in pursuance to his information. The learned Sessions Judge, Jodhpur on consideration of the evidence adduced by the prosecution held the appellant guilty of the offence of theft and convicted him Under Section 380 IPC, but acquitted him of the offence of committing murder of as many as four persons. Co-accused Gangia was acquitted of both the offences. The State filed an appeal before this Court, which was accepted and the appellant was convicted for the offence Under Section 302 IPC. Allowing the appeal by Special Leave filed by the appellant, their lordships of the Supreme Court held that there could be no doubt that the appellant was found in possession of the stolen property soon after the incident and that circumstances clearly justified his conviction Under Section 380 IPC, but held that so far as the evidentiary weight for connecting the appellant with the gruesome and ghastly murders, which took place in the hutment was concerned, it was incomplete and not conclusive. It was observed that something more was required to connect the appellant with the murders than mere posses-jsion of ornaments and other articles belonging to the complainant because it was quite possible that the appellant might have had nothing to do with the murders and that he might have merely stolen the ornaments and other articles belonging to the complainant after the murders were committed by some others. It was further held by the Apex Court that the presence of stains of human blood on the 'kesla' containing the ornaments and other articles might have received stains of human blood either by reason of blood of the victims splashing on the 'kesla', which might be lying outside in the small hutment or by reason of the 'kesla' coming into contact with the blood of the victims while being filled with the ornaments and other articles or being taken out of the hutment in a hurry. Their lordships, therefore, held that the presence of blood stains on the 'kesla' was not a circumstance which was incompatible with the innocence of the appellant in so far as the offence of quadruple murders was concerned. The next circumstance which was relied on by the prosecution was the presence of stains of human blood on the shirt worn by the appellant at the time of his arrest. The Apex Court observed that that was also not such a circumstance, which could point out clearly and unmistakably to one and only one conclusion namely that the appellant had committed those murders of those four persons or anyone or more of them, because if the 'kesla' was stained with human blood, then it was quite possible that while the 'kesla' was being carried from the scene of the crime to the place where it was hidden, the shirt worn by the appellant might also have received some blood stains by contact with the 'kesla' and that that circumstance was quite consistent with the innocence of the appellant. The last circumstance on which the prosecution placed reliance was the presence of finger prints of the appellant on the mirror (Article 1). Their Lordships held that that circumstance could not be regarded as necessarily implicating the appellant in the commission of the murders, because firstly the appellant was on visiting terms with the family of the complainant and, therefore, it was possible that during one of his visits, the appellant might have touched that mirror and left his finger prints thereon. Secondly, it was also not altogether unlikely that even when the appellant was in the hutment of the complainant for the purpose of committing theft of ornaments and other articles belonging to the complainant after the murders had been committed by some other persons, he might have touched that mirror and in that process. left his finger prints thereon. Their Lordships held that the presence of finger prints on the mirror was not such a circumstance as would necessarily lead to the inference that the appellant must have committed the murder of those four members of complainant's family. The Apex Court, therefore, set aside the conviction of the appellant and acquitted him of the offence Under Section 302 IPC. However, his conviction Under Section 380 IPC was maintained.

24. In the case in hand, the recovery of steel 'katori' (Article 8) and mirror (Article 9) having chance prints appears to us clearly concocted, fabricated and doubtful. Secondly, there is not an iota of evidence that appellants were seen in village Patodi on 10-5-83. The I. O. had found as many as seven foot prints outside the house of the deceased persons on its northern side. Those foot prints were preserved but for the reasons best known to the prosecution, those foot prints were not sent to the Footprint Expert for examination and comparison. Even the specimen foot prints of the appellants were not taken. A perusal of the post mortem examination reports of Bastimal and Smt. Sua Ex. P. 1 and Ex. P. 2 respectively which have been proved by PW 2, Dr. Pradeep Parakh reveals that the deceased persons were inflicted multiple injuries on their neck, abdomen and other parts of the body and that even both the legs of Smt. Sua Devi were chopped off. Appellants along with co-accused Mohd. Bux and Alladdin were challaned but Mohd. Bux and Alladdin were acquitted of the offences Under Sections 302, 460 and 404 IPC. Hence in our considered opinion, the evidence against appellant Raju Ram is not of clinching and conclusive nature unerringly point out that it was Raju Ram alone and none else, who committed the ghastly & gruesome murders of Bastimal and Smt. Sua.

25. The evidence against accused appellant Vazir is that he was arrested on 11-5-83 vide arrest memo Ex. P. 3 and that at that time, he was putting on a blood stained 'Kachha' (Article 11) which on chemical examination was found to be stained with human blood. He had an abrasion 1.5 x .3 cm on the tip of his middle finger of left hand, which was a superficial injury as per statement of PW 8 Dr. Ramesh Mathur. The blood soaked clothes of deceased Bastimal and Smt. Sua were sent to the State Forensic Laboratory but their blood group could not be ascertained. Similarly as per F.S.L. report Ex. P. 49 though the 'kachha' (Article 1) was stained with human blood, its blood group could not be detected. Therefore, the seizure of article 1, Kachha, from the person of appellant Vazir does not conclusively connect him with the offence of committing murder of . the deceased persons. Another circumstantial evidence against the appellant Vazir is that he made a disclosure statement Ex. P. 32 on 11-5-83 to PW 21 Yasin Khan and in pursuance thereof, he got recovered one gold 'Bor' with a broken chain (Article 5), pair of gold 'tonti-yas' (Article 6) and five gold 'madaliyas' (Article 7) underneath a 'Babul' tree standing in the open field of one Dhanji Mahajan r/o Patodi. The recovery of gold ornaments has been well proved by the testimony of motbir PW 5 Onkar and PW 21 Yasin Khan I.O. PW 4 Smt. Mangi Bai has correctly identified those articles before PW 15 R. S. Solanki MJM during the test parade, which he had conducted On 6-7-83. She has deposed that those articles belonged to her mother Smt. Sua. The third set of circumstantial evidence against the appellant Vazir is that in pursuance to his information Ex. P. 34, he got recovered one blood stained 'tehmad', vide recovery memo dated 21-5-83 Ex. P. 18, which was partly washed, from a room of the hotel of co-accused Alladdin and that the key of that room was given by co-accused Alladdin. There is not a fringe of evidence to establish that the said 'tehmad belonged to appellant Vazir or that any witness had seen him wearing that 'tehmad'. As per F.S.L. report, the blood group of the stains on that 'tehmad' also could not be ascertained. Therefore, the recovery of the 'tehmad' at the instance of appellant Vazir is meaningless.

26. It is true that recent and unexplained possession of stolen articles can be taken to be presumptive evidence of the charge of murder as well under illustration (a) of Section 114, Evidence Act, but in the case in hand, the prosecution has miserably failed to prove beyond any reasonable doubt that the commission of the murders of deceased persons and the theft of gold and silver ornaments had formed part of one transaction. From the circumstantial evidence adduced in this case, it cannot be conclusively held that the appellants were the only persons, who had committed murders of Bastimal and Smt. Sua. This possibility also cannot be ruled out that Bastimal and Smt. Sua were murdered by somebody else and that the appellants had simply stolen the ornaments of Smt. Sua. There is not an iota of evidence to establish that the murder of deceased persons and the theft of ornaments formed part of same transaction. Therefore, keeping in view the observations made by the Apex Court in Hukum Singh's case (1977 Cri LJ 639) (supra), the circumstantial evidence adduced in this case does not unmistakably point out to one and one conclusion only that the appellants arid none other had perpetrated the murder of Bastimal and Smt. Sua. Hence, in our considered opinion, no presumption could be drawn against the appellants that since they had got recovered various ornaments of Smt. Sua, they were the persons, only, who had committed the gruesome and ghastly murders of Bastimal and Smt Sua. In this case, material links in the chain of circumstantial evidence are missing to conclusively fasten the guilt of murders against the appellants. Hence to our mind, the learned Sessions Judge has committed an error of fact as well as of law in recording the conviction of the appellants for the offence u/S.302 IPC. However, there is sufficient evidence to bring home the offences Under Sections 460 and 404 IPC against the appellants and the reasons given by the learned trial Judge on that count are sufficient and valid, with which we concur.

27. In the premise of the above discussion, we partly allow this appeal and while maintaining the conviction and sentence for the offences Under Sections 460 and 404 IPC against appellants Raju Ram and Vazir, their conviction and sentence Under Section 302 IPC are set aside. The appellants are acquitted of the offence Under Section 302 IPC. The appellants are in jail since 11-5-83. Thus, they have already served out their sentences passed for the offence Under Sections 460 and 404 IPC. Therefore, they be released forthwith, if not required in any other case.