Rajasthan High Court - Jaipur
State Of Rajasthan vs Satya Narain And Ors. on 20 October, 1995
Equivalent citations: 1996CRILJ2146
JUDGMENT Rajendra Saxena, J.
1. The State of Rajasthan has preferred D.B. Criminal Appeal No. 314/1981 against judgment dated 28-2-81, whereby the learned Sessions Judge, Alwar, acquitted accused respondents Satya Narain, Tribhuvan alias Kullar, and Nathu for offences under Sections 302 and 460, IPC, but convicted the accused for offence under Section 380, IPC and sentenced each one of them to undergo seven years' RI and a fine of Rs. 300/- in default, to further undergo RI for three months. The accused appellants, who are respondents in the State-appeal, have challenged their conviction and sentence for offence under Section 380, IPC, in their aforesaid appeals.
2. Since these appeals arise out of a common judgment, those are being disposed of together by this judgment.
3. Now factual matrix of the case. Babulal Mahajan (PW15) resided and carried on business including that of money lending by getting the ornaments of debtors pledged with him, in Bas Kripal Nagar (Kishangarh). His son Mam Chand's wife had suffered an attack of paralysis, therefore, Babulal along with Mamchand had taken her to Jaipur for treatment sometime in September, 1979. His mother Smt. Kistoori aged about 60 years & grand-daughter Sunita Bai aged 12 years were staying in the house situated in Bas Kripal Nagar. It is alleged that on the night intervening 17th and 18th September. 1979, some unknown persons committed lurking house trespass in the said house, ransacked gold and silver ornaments and currency notes and also committed murders of Smt. Kistoori and Kumari Sunita by strangulating them. It is the case of prosecution that next day at about 10.30-11 a.m., Kirori and Shankerlal informed PW 11 Gangasharan Sarpanch that the doors of Babulal's house were lying open, that Smt. Kistoori and Kumari Sunita were lying dead and that the articles in the said house were also lying scattered. Thereupon, Gangasharan went to the house of Babulal, where by that time Hajarilal and Madanlal had also assembled there. He noticed that Babulal's house was ransacked, articles therein were lying scattered and Smt. Kistoori and Kumari Sunita were lying dead.
4. Gangasharan (PW 11) reached the police station Kishangarh, which is situated at a distance of 2 kms from the place of occurrence, at about 12.30 p.m. and submitted a written report (Ex. P. 28), whereupon Ramavtar (PW17) ASI, the then incharge of the police station drew the formal FIR (Ex. P.9) and registered a case for the offence under Section 302, IPC. Ram Avtar rushed to the spot, prepared site plan (Ex.P.30), collected blood like fluid, which was scattered on the pucca floor inside the house in a bottle and seized and sealed the same vide memo (Ex.P.31). He also lifted blood smeared soil from the places, where the dead bodies of Smt. Kistoori and Kumari Sunita were lying, as also control sample of earth, vide seizure memos Ex.P.33 & Ex.P.32 respectively. He also seized a blood stained jute rope lying near the cot, whereon the dead body of Kumari Sunita was lying, vide seizure memo Ex.P.34. He prepared inquest reports Exs.P.43 & P.44 of the dead bodies.
5. Dr. G.P. Pathak (PW4) conducted medicolegal autopsy of the dead bodies of Smt. Kistoori and Kumari Sunita and prepared post mortem reports Ex.P. 1 & 2 respectively. The doctor opined that their deaths had occurred due to asphyxia on account of strangulation of their necks.
6. After post mortem examination, the blood stained dhoti and blouse of Smt. Kistoori and blood stained underwear and frock of Kumari Sunita were seized and sealed by Ram Avtar vide memoes Exs.P. 35 & P.36 respectively.
7. It is further the case of the prosecution that on a telephonic message, Babulal (PW 15) alongwith his son Mamchand (PW 14) came from Jaipur to Bas Kripalnagar in the evening of 18-9-1979. The dead bodies were cremated on 19-9-1979. Thereafter Babulal submitted a list of stolen properties Ex.P.45 giving details of various gold and silver ornaments and currency notes and cash amounting to Rs. 6773/-.
8. It is also the case of prosecution that Ram Avtar (PW 17) ASI had found chance prints on some articles lying in Babulal's house. A radiogram message was sent by the Additional SP Kishangarh to the Superintendent of Police Alwar and thereupon Madanlal Bhargava (PW9), Incharge M.O.B. C.I.D. SP Office, Alwar reached the place of occurrence in the morning of 19-9-79. In presence of Ram Avtar ASI (PW 17), he detected chance prints on the inner surface of lid of a dibba, steel glass, steel katori, on the broken mirrors of a box type vanity case (Shringardan) and nickel polished dibba of Zalim lotion. Those chance prints were developed by Madanlal (PW9) and those articles were seized and sealed vide seizure memo Ex.P. 9.
9. Later on the investigation was handed over to Gopal Singh (PW8) SHO PS Tijara as the then SHO PS Kishangarh was on 21-9-79, Gopal Singh arrested accused Tribhuvan, Nathu and Satya Narain vide arrest memoes Exs.P. 79 to P.81 On 21-9-1979 accused Satya Narain volunteered information Ex.P.82 and in pursuance thereof, on the same day he got recovered gold and silver ornaments from a room of his residential house concealed underneath fodder (Toora) in presence of motbirs Madanlal (PW 12) and Hajarilal (not produced), which were seized and sealed vide memo Ex.P.39 by Gopal Singh (PW 18). On the same day, accused Satyanarain also got recovered currency notes worth Rs. 3740/- lying wrapped in a gunny bag from his bed room situated upstairs in his house, which were seized and sealed vide seizure memo Ex.P.40. On 22-9-1979 accused Tribhuvan in pursuance of his voluntary information Ex.P.84 got recovered certain gold and silver ornaments and currency notes worth Rs. 1000/- from his residential house, which were lying wrapped in a gunny bag underneath a cot. Those were seized and sealed vide recovery memo Ex.P.42. On 22-9-1979 accused Nathu also volunteered information Ex.P.83 and in pursuance thereof, he got recovered some gold and silver ornaments and currency notes worth Rs. 1000/- from the fodder lying under a thatched roof situated in his 'nohra', which were seized and sealed vide recovery memo Ex.P.41.
10. The recovered gold and silver ornaments were correctly identified by Smt. Kamla (PW6) daughter of Smt. Kistoori (deceased), Harish Narain (PW 13), Mamchand (PW 14) and Babulal (PW 15). It is further the case of prosecution that Manohari Harijan (PW7) and Bihari Chamar (PW8) correctly identified one silver anklet (Kari) (Article 37), while Behari Chamar (PW8) correctly identified a pair of silver anklet (Kari) (Article 38) and pair of silver 'chhelkara' (Article 39) on 10-10-1979 during test parade conducted by Judicial Magistrate Heeralal Kardam (PW5), which they had pledged to Babulal.
11. It is alleged that on 25-9-1979, specimen finger prints of accused Satyanarain, Tribhuvan and Nathu were taken by Ram Avtar ASI (PW17), their fingerprint slips were prepared in presence of Jagdish Malhotra (PW20) Dy. S.P. and that those were sent to the Superintendent of Police, Alwar along with the sealed packet of articles containing chance prints to the Director, Finger Print Bureau, Rajasthan, Jaipur for examination and comparison. Ajit Krishna, Director Finger Print Bureau (PW 16) vide his report Ex.P.46 opined that the chance prints found inside the lid of dibba (Article 40) tallied with specimen prints of right thumb, right middle finger, right ring finger of accused Tribhuvan; that chance prints detected on the steel glass (Article 41) tallied with specimen prints of right thumb and right ring finger of accused Nathu, while chance prints found on the mirror of 'Shringardan' (Article 43) tallied with specimen prints of right middle finger of Satya Narain and one chance print found on 'Zalim lotion' dibba (Article 44) tallied with specimen print of right ring finger of Satyanarain. After completion of the investigation, the police submitted challan against accused persons in the Court of Munsif & Judicial Magistrate, Kishangarh, who in turn committed the case to the Court of Sessions Judge, Alwar.
12. The accused were charged for offences under Sections 302, 460 & 380, IPC. They denied their indictment. To prove its case, the prosecution examined as many as 20 witnesses. The accused persons pleaded ignorance, denied the circumstances appearing against them in the prosecution evidence and asserted that in the early hours of 19-9-1979 they were taken to the police station Kishangarh Bas, where their finger prints were forcibly taken by the police on those articles. They also asserted that they neither volunteered any information nor got recovered any gold and silver ornaments and currency notes and that the places of the alleged recoveries of ornaments and currency notes were not in their exclusive possession because other members of their family also reside therein. They claimed that they have been falsely roped in this case due to animosity. However, they did not adduce any evidence in defence. After trial, the learned Sessions Judge found them guilty for offence under Section 380, IPC. He, however, acquitted them for offence under Section 302, IPC, read with Section 460, IPC. Hence these appeals.
13. We have heard the learned Public Prosecutor and the learned Advocates for the complainant and the accused persons at length and carefully perused the record of the lower Court in extenso.
14. Mr. R.S. Agrawal, the learned Public Prosecutor and Shri P.C. Jain, the learned counsel for the complainant submit that the learned trial Court has believed the prosecution version that the accused persons were seen near the house of Babulal in the night of 17-9-1979, that the house of Babulal was ransacked, that Smt. Kistoori and Kumari Sunita were murdered and that the cause of their death was strangulation. The chance prints which were found on Articles 40, 41, 43 and 44 tallied with specimen finger prints of the respective accused persons and that the stolen gold and silver ornaments and the currency notes, which were correctly identified by Babulal and other prosecution witnesses were recovered at the instance of the respective accused persons still then, the learned trial Judge has acquitted them for offences under Sections 302 and 460, IPC, ignoring provisions of Section 114, Illustration (a) of the Evidence Act and thus committed a grave illegality. They have contended that the facts of the case Hukam Singh v. State of Rajasthan relied on by the learned trial Judge are clearly distinguishable from the facts of the case at hand. According to them, the accusedrespondents have admittedly not claimed that the recovered gold and silver ornaments and the currency notes belonged to them, and that they have also failed to give any explanation as to how they came in possession of the said stolen property and in such circumstances, by the aid of presumptive evidence, it stands proved beyond reasonable doubt that the accused respondents were the persons, who had committed lurking house trespass on the fateful night, committed murders of Smt. Kistoori and Kumari Sunita and also dishonestly committed theft of the gold and silver ornaments and the currency notes, etc.
15. On the other hand, the learned counsel for the accused persons have vigorously contended that from the prosecution evidence, it is well spelt out that the accused persons were rounded up by the police and detained in the police station Kishangarh Bas on 18-9-1979, that their finger prints were procured by deceitful means and under-duress on certain articles. They have also asserted that in this case, material link of evidence is missing to prove that the sealed packets of chance prints on various articles were kept in safe custody from 19-9-79 till 8-10-1979 all they were received in the Rajasthan Finger Print Bureau. According to them there is not a fringe of evidence to show/establish that the seals on the packet of those articles had remained in tact and were not tampered till it reached the Rajasthan Finger Print Bureau on 10-10-79. In such circumstances, the report (Ex.P.46) of finger prints becomes meaningless and the same does not incriminate the accused persons with the crime. They have pointed out that the accused persons are inhabitants of Bas Kripalnagar and their houses are situated near the house of Babulal and as such, their presence at the 'chabutra' of Jai Narain Master or near the temple street was natural and this fact is not at all an incriminating circumstance against them. They have asserted that the prosecution evidence regarding the alleged recoveries is tainted and highly suspicious which cannot be relied upon and that the learned trial Judge has committed an illegality in convicting the accused-appellants for offence under Section 380, IPC.
16. We have bestowed our thoughtful consideration to the rival submissions made before us. The homicidal deaths of Smt. Kistoori and Kumari Sunita are not in dispute and this fact has been also well proved by Dr. G.P. Pathak (PW4), who conducted the post mortem examination and prepared post mortem reports (Exs.P. 1 and P.2, respectively). The doctor found certain superficial and simple injuries on the persons of Smt. Kistoori and Kumari Sunita in the manner enumerated in their respective post mortem examination reports (Exs.P. 1 & P.2). He has categorically deposed that in his opinion, the cause of the deaths was asphyxia due to strangulation of the neck. However, no ligature marks or finger prints on the neck were detected by the doctor.
17. Now, we propose to briefly scan the prosecution evidence recorded in this case. PW1 Savitri aged 80 years, deposed that she used to go with Smt. Kistoori to the temple daily, that on the day of the incident, at about 1 p.m., she went to the house of Smt. Kistoori but there was no response; thereupon she informed Hari and Mussadi about the same and went to her house. This witness therefore, does not render any help to the prosecution.
18. PW2 Gomti Bai Vaish aged 55 years, stated that she had seen the accused persons, Nathu, Sattu and Kullar (alias Tribhu van) sitting on the'chabutra' of the house of Jainarain Master, that they bid her saying 'Ram-Ram', that when she enquired about their identity, they gave out their names. She stated that she knew all the accused persons previously and that on the next day, she came to know that some body had murdered Kistoori and her grand-daughter, Kumari Sunita. She deposed that she was examined after about 11 days of the incident. She denied the suggestion that she had not disclosed the fact of seeing the accused persons on the night. However, in her police statement recorded on 1-10-79 (Ex.P. 1) at portion A to B, she stated that she had not disclosed about the said fact to any other person and that when the police interrogated her, she had disclosed those facts. She stated that the distance between 'chabutra' of Jainarain and the house of Smt. Kistoori was about 20-30 paces.
19. PW 19 Kishan Singh, the then SHO PS Kishangarh Bas, who recorded police statement of Smt. Gomati Bai (Ex.D.1) has not assigned any reason about the delay in examining her. When Smt. Gomati Bai knew the accused persons previously, and when the accused persons had bid her saying 'Ram-Ram', there was no occasion for her asking about their identity and for the accused persons to blurt out their names to her. In our considered opinion, Smt. Gomati Bai is not a reliable witness.
20. Mool Chand (PW3) deposed that on the night preceding to the incident he was going from his house to his agricultural field and that when he came near the lane which leads to the temple, he had seen accused Satya Narain, Kullar alias Tribhuvan and Nathu coming from jungle side and going towards the house of Babulal at about 9.30-10 p.m. and that on the next day morning at about 10-11 a.m. he came to know about murders of Smt. Kistoori and Kumari Sunita. In his cross-examination, he stated that when the police came to Babulal's house, he neither presented himself before the investigating officer nor informed anybody about the incident and that he was examined after 6-7 days of the arrest of accused persons: His police statement has not been exhibited. However, the learned trial Judge after looking into the case diary found that this witness was interrogated by the Investigating officer on 19-9-1979. This witness, in his cross-examination stated that on that night, 'Kirtan' was going on in the temple and that many people were going to the temple and coming therefrom, and that accused persons had met him near the temple lane. Even if the statement of this witness is taken to be true on its face value, still then the presence of the accused persons near the temple was natural and it is not at all an incriminating circumstance against them.
21. Hiralal Kardam (PW5) the then Judicial Magistrate, Kishangarh Bas deposed that on 10-10-79 he had conducted the test parades of various articles alleged to have been recovered at the instance of the accused persons. He has proved the test identification memoes (Exs. P.3 to P.8). He has admitted that since similar items were not available, therefore, no articles were mixed/mingled with some ornaments enumerated in the memo of test identification during the test parade. The accused persons have not claimed that recovered ornaments, currency notes belonged to them. They have also not disputed that those articles did not belong to Babulal. In such circumstances, this irregularity committed by the Judicial Magistrate during the test parade in respect of some of the recovered ornaments is not fatal to the prosecution. We have peeped into statement of this witness extensively and in our opinion, by and large, the identification parade of the articles alleged to have been recovered at the instance of the accused persons docs not suffer from any material irregularity or illegality.
22. Smt. Kamla (PW6) is the daughter of Smt. Kistoori (deceased). She stated that on the ill-fated day, she was living at her in-laws' house in Jabalpur (Madhya Pradesh), that on 19-9-1979 she received a telegram from her brother Mahadev intimating about the incident and that thereupon she immediately proceeded and reached Bas Kripalnagar on 20-9-79 at about 4 p.m. and at that time, she learnt that her mother and niece had been murdered and that the accused persons had been arrested. In her crossexamination, she reiterated that when she reached her house in Bas Kripal Nagar, her father and brothers had informed her that all the three accused persons had been arrested by the police. It may be mentioned here that as per testimony of PW 18 Gopal Singh SHO, he had arrested accused persons Tribhuvan, Nathu and Satya Narain on 21-9-1979 vide arrest memoes Exs.P.79, P.80 and P.81 respectively. On the other hand, PW 12 Madanlal Mahajan has deposed that the police had called all the three accused persons at the police station in the night of 19-9-1979 and that he had seen them in the lock-up on 20-9-79. As mentioned earlier, all the accused-persons in their plea recorded under Section 313, Cr.P.C. have stoutly asserted that they were called by the police from their respective houses in the early hours of 19-9-79 at the police station, where their finger prints were taken on the broken mirror of Shringardan, box of 'Zalim lotion', lid of 'dibba', steel glass and 'katori' under threat and duress. Therefore, the prosecution evidence in respect of the date of alleged arrest of the accused persons is inconsistent, contradictionary and highly suspicious. It appears that the accused persons were apprehended and kept in police lock up much earlier than they were actually shown arrested vide their respective arrest memoes.
23. Smt. Kamla (PW6) has identified various ornaments marked Articles 1 to 36 during the test parade as also in the Court. She has proved her signatures on the identification parade memoes Exs.P.3 to P.8. She has further stated that three gold rings belonged to her and that on one of those rings her name 'Kamla' had been inscribed. Nothing has been elicited in her cross-examination to discredit her testimony. She is, therefore, a reliable witness.
24. Manohari Harijan (PW7) has deposed that he had pledged a pairofsilveranklets(Karies)(Article 37) with Babulal (PW 15) and that he had correctly identified those before the Magistrate during identification parade. His testimony has remained unshaken. Similarly BehariChamar(PW8) has stated that he had pawned a pair of silver anklets (Karis) (Article 38) and a pair of 'chhelkara' (Article 39) for Rs. 700/- to Babulal (PW 15) and that he had correctly identified the same before the Judicial Magistrate during identification parade. He has also identified his signatures on identification memo (Ex.P.8). Both these witnesses are trustworthy and have been rightly relied upon by the trial Judge.
25. Madanlal Bhargava (PW9) was the then Incharge M.O.B. CID, SP office, Alwar. He deposed that on 18-9-79 at about 12.20 p.m. on receipt of a radiogram message from the Additional Superintendent of Police, Kishangarh Bas, he proceeded for Bas Kripalnagar along with constable Radheyshyam and reached there next day at about 7.30 a.m. that he inspected the site along with Ram Avtar ASI (PW17) and found that the house of Babulal was ransacked, where various articles were lying scattered, that out of those articles on the lid of iron 'dibba' (Article 40), steel glass (Article 41), steel Katori (Article 42), pieces of broken mirror (Article 43) of the 'Shringardan' and nickel plated 'dibbi' of 'Zalimlotion' (Article
44), he detected some chance prints and, that, he developed those chance prints by the aid of sprinkling grey powder. He further deposed that Ram Avtar ASI (PW 17) prepared memo (Ex.P.9) in this behalf under his supervision, that he placed all those articles inside the 'shringardan' (vanity case) and wrapped and sealed that packet in the presence of motbirs. He stated that a specimen seal impression was also placed inside that packet. He deposed that he had handed over the said sealed packet to Radheyshyam (constable), and that later on, those articles were sent to the Finger Print Bureau. In his cross-examination, he admitted on that day that he had directly proceeded for Alwar from the place of occurrence and that he did not go to the police station. The prosecution however, has neither cared to examine Radheyshyam (constable) nor adduced any evidence to show as to where and under whose custody, the said packet containing chance prints was kept from 19-9-79 till 8-10-79 when the same is alleged to have been sent by the Superintendent of Police, Alwar to the Finger Print Bureau. The prosecution has also neither examined person concerned to prove SP Alwar's letter No. MOB/79/1276/ D/-8-10-79, which finds mention in the report dated 8-11-79 Ex.P.46 issued by Ajit Krishan (PW 16), Director Finger Print Bureau nor the carrier of that packet, nor any malkhana entry. It is curious to note that in the report (Ex.P.46) there is no mention that a sealed packet containing aforesaid articles was received by the Rajasthan Finger Print Bureau, Jaipur nor there is any detail of the seal impression nor the fact that the seal of the packet tallied with specimen seal impression. Even Ajit Krishan (PW16) in his statement has not uttered a single word on this score.
26. Ram Avtar (PW 17) stated that on 19-9-79 Madanlal Bhargava (PW9) had detected and developed chance prints on Articles 40, 41,42 and 43, that he had prepared memo (Ex.P.9) and seized and sealed those articles. He has not stated that the sealed packet containing those articles was taken away by Madanlal (PW9) or his constable Radheyshyam. He has also not stated that he had brought that sealed packet at the police station and kept the same in the malkhana. The prosecution has also not filed any entry of the malkhana register of the police station nor examined the. incharge of the malkhana nor any person to prove that the said packet remained in his safe custody and that the seals thereof remained in tact and were not tampered with till that packet was received in the office of the Finger Print Bureau. Ram Avtar (PW 17) has refuted the suggestion that he had sent for a new lid of 'dibba' (Article 40) and got finger print impression of Tribhuvan thereon or that he produced a new dibba of 'Zalim Lotion' from the market on 18-9-79 and got his fingerprints thereon the intervening night of 18 and 19-9-79. He has also denied the suggestion that on 18-9-79 he had procured a steel glass and katori and got finger/thumb impressions of Nathu (accused) at the police station. He has also denied the suggestion that he had called three persons (accused) on 18 and 19-9-79 and employing third degree methods got their finger prints on those articles.
27. Thus the prosecution evidence is quite vague, incomplete, inconsistent, contradictory and unreliable and the same lacks credence. The prosecution has, therefore, miserably failed to prove that chance prints were found on Articles 40 to 43. that these were lifted from the place of occurrence, that the Articles 40 to 43 were duly placed in 'shringardan' (Article 45) and packet thereof was duly sealed and that those seals remained in tact and were not tampered with from 19-9-79 till the said packet was received by the Rajasthan Finger Print Bureau on 10-10-79. In such circumstances, material link evidence is conspicuously missing in this case, which is fatal to the prosecution.
28. In State of Rajasthan v. Daulatram (AIR 1980 SC 1314 : 1980 Cri LJ 929), the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained was examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with. The Apex Court held that the inevitable effect of such omission was that the prosecution palpably failed to rule out the possibility of the samples being changed or tampered with during the period in question, a fact which has to be proved affirmatively by the prosecution. Consequently, the accused was acquitted for the offence under Section 9 of the Opium Act.
29. In Mahmood v. State of UP the investigator did not take all necessary precautions which could be taken to eliminate the possibility of fabrication or tampering with seals of the packet containing recovered articles e.g. weapon of offence. He also did not procure signatures of the motbirs on the parcel containing 'gandasa' nor did he entrust his seal to the Sarpanch or any other respectable persons after sealing the said parcel. The Apex Court held that the material link of the evidence was missing and acquitted the accused.
30. In State of Rajasthan v. Balbir Singh (1979 WLN 501), the Investigating Officer did not depose that the sealed packet containing articles recovered at the instance of the accused, remained in safe custody and that the seals thereon were not tampered with while they were in custody of the police at all times till they were handed over for examination to the State Forensic Science Laboratory. It was held that in such circumstances, the discovery of blood stains on the recovered articles could not be relied upon and that such a recovery did not connect the accused with the crime.
31. In Ram Kumar v. State of Rajasthan (1988 Raj Cr Cases (DB) p. 65), it has been rekerated that the burden squarely lies on the prosecution to prove that the recovered articles remained in tact till they reached the State Forensic Science Laboratory and that the seals thereon were not tampered with and that if the prosecution failed to prove the said fact, the same creates serious doubt against the prosecution and the accused is entitled to acquittal.
32. In the case on hand neither Madanlal Bhargava (PW9), Incharge MOB CID SP Office, Alwar or Ram Avtar (PW17) ASI nor Gopal Singh (PW18) SHO nor Jagdish Malhotra (PW20) who conducted the investigation in this case, has deposed that the sealed packet containing Articles 40 to 43 remained in his. safe custody and seals thereon remained in tact and were not tampered with till the said sealed packet was received in Finger Print Bureau on 10-10-79. Even Ajit Krishna (PW16), Director Finger Print Bureau has not stated that the scaled packet containing the aforesaid articles was received by him and that the seals thereon were in tact and that those tallied with the specimen seal impression. In view of this, most material link of the evidence is missing in this case, which makes the prosecution case highly suspicious and doubtful and also renders the report (Ex.P.46) ineffective. The prosecution has, therefore, miserably failed to establish that the chance prints of the accused persons were found on Articles 40 to 43 which were lying scattered at the place of the occurrence in the house of Babulal.
33. Tirath Das (PW10) has stated that he had taken photographs (Ex.P. 10 to P.20) of the place of occurrence. Ganga Sharan (PW1I) Sarpanch has proved the report (Ex.P.28) and formal FIR. He has stated that he had not gone inside the house of Babulal before lodging the report (Ex.P.28).
34. Madanlal (PW12) is the Motbir of the site plan (Ex.P.30), seizure memo of blood stained soil (Ex.P.3l) and controlled soil (Ex.P.32), seizure memo of blood stained rope (Ex.P.34), apparels of the deceased Smt. Kistoori & Kumari Sunita(Ex.P.35 & P.36, respectively), memo of chance prints (Ex.P.5), seizure memo of dead bodies (Ex.P.37 & P.38) and their inquest reports (Ex.P.43 & P.44 respectively). He stated that the accused Satya Narain in pursuance to his information, got recovered one bag from the chaff lying in his 'Poli' containing gold and silver ornaments, which were seized and sealed by the police vide recovery memo (Ex.P.39) and that the said accused also got recovered currency notes worth Rs.,3740/- from a gunny bag lying underneath the cot from his bed room which were seized and scaled vide recovery memo (Ex.P.40). He also stated that the accused Salya Narain had taken that house on rent. In cross-examination, he has categorically stated that the said house was in exclusive possession of the accused Satya Narain.
35. Madanlal further deposed that accused Nathu got recovered gold and silver ornaments and currency notes worth Rs. 1000/- from a room inside his house in his presence, which were wrapped in acloth and that those articles were also seized and sealed by the police vide memo Ex.P.4l. He admitted that in the said house, Nathu's wife and his children also reside but at the time of the recovery, his house was bolted from outside and that his wife and children were not present there. This witness further stated' that in his presence, accused Tribhuvan in pursuance to his information got recovered gold and silver ornaments and currency notes worth Rs. 1000/- from his house, which were seized and sealed vide memo Ex.P.42. He further stated that his signatures were procured on recovery memoes (Exs.P. 39 to P.42). This witness has been examined at length but his testimony has remained in tact and unshaken. His statement-finds due corroboration by the testimony of Gopal Singh SHO (PWI8), who has proved the aforementioned recoveries at the instance of respective accused persons. In our considered opinion, the learned trial Judge has correctly discussed, analysed and evaluated the prosecution evidence on this Court, and rightly held that the aforementioned recoveries of gold and silver ornaments and currency notes were made at the instance of the accused persons in pursuance of their respective informations given under Section 27 of the Evidence Act.
36. Harish Naresh (PW13), Mamchand (PW14) and Babulal (PW15) have stated that they had correctly identified gold and silver ornaments before the Magistrate during test identification parade, which were recovered at the instance of accused persons in pursuance to their respective informations. As mentioned earlier, accused persons have not claimed those recovered gold and silver ornaments and currency notes belonged to them. These recoveries were made on 21-9-79 i.e. within three days of the alleged incident. The accused persons have also not given any explanation as to how they came in possession of these recovered articles.
37. There is no direct evidence regarding offence of lurking house trespass and committing murders of Smt. Kastoori and Kumari Sunita and for offences under Sections 454 and 302, IPC, the case hinges entirely on circumstantial evidence. It is trite law that in case of circumstantial evidence, all the incriminating facts and circumstances against the accused should be fully established by clear, cogent and convincing evidence, and the facts so established must be consistent with the gurlt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt.
38. In Chandran v. State of Kerala (1991 (Supp) (1) SCC 39), the Apex Court has reiterated that where there is no direct evidence and the inference of guilt has to be drawn from circumstantial evidence only, the circumstances should be of definite tendency pointing towards guilt of the accused and in their totality must unerringly lead to the conclusion that the offence was committed by the accused and none else. It has further been observed that where the accused persons were awarded extreme penalty of law. the Court has to scrutinise circumstantial piece of evidence in a very cautious and meticulous manner and to see, whether such an evidence should be accepted and acted upon to mulct the accused with the dastardly crime. The fact that the murders, which were cruel and revolting had been perpetrated in a very shocking nature should not be allowed in any way to influence the mind of the Court while examining the alleged involvement of the accused. In that case, the evidence of the Finger Print Expert, though was free from any infirmity but in view of suspicious manner in which finger print/chance prints had been obtained, it was held that the conviction for offence's under Sections 449,458,459,392,397, 302 and 307, IPC could not be maintained and the accused were acquitted.
39. In Hukum Singh v. State hutment of the informant was ransacked, shutters of the door of the room were unhinged and other house articles were lying scattered. The informant's mother, his two brothers and grand mother were found lying murdered in the hutment. He immediately informed about the incident to the Panch who, in turn, went to the Sarpaneh. who proceeded to the police station and lodged the report. During the course of the investigation, it was found that the death of four persons had taken place as a result of gun shot injuries. The police found one mirror and 'dibbi', on which certain finger prints were noticed, which on examination by the Finger Print Expert established that the finger prints on the mirror were those of the accused persons. The accused persons were produced before the SI K) and at the time of the arrest, a shirt worn by the appellant was found blood stained and as such the same was seized by the police and sent lor chemical analysis and serologist examination. As pc,r F.S.L. report, that shirt was stained with human hluod. During investigation, the appellant voluntarily made a dis-" closure and at his instance, a gun and a bag containing pellets and gun powder were recovered under a heap of sheaves of grass lying in his field. A cotton 'Kesla' i.e. a bag containing articles was also recovered and the same was found blood stained. The articles in that 'Kesla' included ornaments, which were all subsequently identified by the informant Sujan Singh to be belonging to him. After trial, the learned Sessions Judge convicted the appellant for offence of theft under Section 380 IPC but, acquitted him for offence of murder under Section 302, IPC. The co-accused Gangia was acquitted of both the offences. On appeal by the State, this Court confirmed the acquittal of Gangia. on both the counts but also convicted the appellant under Section 302, IPC. The appellant preferred theitppeal with special leave before the Supreme Court. The Apex Court held that recoveries of 'Kesla' with blood stains and shirt having blood stains were not sufficient to connect the appellant with the murder and something more than possession of the articles belonging to the informant Sujan Singh would be required to connect the appellant with the murders because it was quite possible that the appellant might have had nothing to do with the murders and that he might have stolen ornaments and other articles belonging to the informant after the murders were committed by some others; that it was possible that 'Kesla' might have stained with blood either by victims splashing on the 'Kesla', which might be lying outside in the small hutment or by the reason of the 'Kesla' coming into contact with blood of the victims while being filed with the ornaments or being taken out of hutment in a hurry. The Apex Court, therefore, observed that the presence of blood stains on the 'Kesla' was not a circumstance, which was incompatible of innocence of the appellant in so far as offence of quadruple murders was concerned. Similarly. 'Kesla' was stained with the human blood while being carried from the scene of crime to the place, where it was hidden the shirt worn by the appellant might also have received some blood . stains by contract with the,;Kesla' and the possibility could not be ruled out that they might have been caused by reons of contract with the 'Kesla', and therefore, tku the said circumstance war. quite consistent with the innocence of the appellant. The last , circumstance regarding presence of the Finger Prints of the appellant on the mirror, it was held that Sujan Singh admitted that the appellant was on visiting terms with his family and it was. therefore, possible that during one of his visits, the appellant might have touched the mirror and left his finger prints on it. It was further observed that it was also not altogether unlikely that even when the appellant was in the hutment of Sujan Singh for the purpose of commiting theft of ornaments, and other articles after the quadruple murders were committed by some other, he might have touched mirror and in the process, left his finger prints upon it. The Apex Court, therefore, held that the presence of finger prints on the mirror was not such circumstance as would necessarily lead to the inference that the appellant must have committed murders of those four persons of Sujan Singh's family.
40. In the instant case, the presence of the accused persons on the 'chabutra' of Jainarain Master and near the street leading to the temple, does not in any way connect them with the crime rather their presence there was natural. No body had seen the accused persons either going inside the house of Babulal or coming out there from. The investigating officer did not notice any foot prints of the accused persons near or outside the house of Babulal. The most material link of evidence regarding chance prints found on the recovered articles Articles 40 to 43 and the possibility of tampering of the seals of that packet cannot be ruled out. In such circumstances, the prosecution has not been able to prove beyond reasonable doubt that the chance prints were detected on Articles 40 to 43 by the investigating officer on 18-9-79, that those were lifted by PW9 M.L. Bhargava on 19-9-79 and sealed and that those articles were kept in safe custody, that seals on the packet containing those articles remained in tact and were not tampered with till those were received by the Finger Print Bureau. On other hand, this possibility also cannot be ruled out that the fingerprints on Articles 40 to 43 were taken by the investigating officer from the accused persons in the night intervening 18th and 19th September, 1979, when they were called at the police station under duress and their formal arrest was shown on 21-9-1979. In such circumstances, no presumption can be drawn under Section 114, Illustration (a) of Evidence Act on the basis of the recovery of various gold and silver ornaments at the instance of the accused persons, which were correctly identified by Babulal and other prosecution witnesses, that the accused-appellants had committed lurking house trespass and murders of Smt. Kistoori and Kumari Sunita.
41. In Majana v. State of Rajasthan (1979 Cr LR (Raj) 585) (DB), the accused was found in possession of 'murkies' and a 'zeroi' (a tool for twisting thread), which belonged to the deceased. It was held that the circumstances and the fact of recovery of stolen property of the deceased, soon after his death from the possession of the accused person could not necessarily lead to the conclusion that he was perpetrator of the murder of the deceased Teja because the possibility cannot be ruled out that the accused appellant might have gone to the 'dhani' of the deceased in the night and when he found that the latter was murdered, he took away the 'zer6i' and gold 'murkies' and in such circumstances only inference which could be drawn was that the appellant had committed theft as he had not given any reasonable explanation for the possession of those' articles. This Court accordingly acquitted the appellant for offences under Sections 460 and 302, IPC, and convicted him for the offence under Section 380, IPC only.
42. The learned Public Prosecutor has cited the decision in Sanwant Khan v. State of Rajasthan wherein interpreting provisions of Section 114, Illustration (a) of the Evidence Act, it has been held that no hard and fast rule can be laid down as to what inference can be drawn from certain circumstances, where the only evidence against the accused persons is recovery of the stolen property and all those circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer because the suspicion cannot take the place of proof. Therefore, this authority instead of helping the prosecution, rather helps the defence.
43. It may be mentioned here that besides possession of the property belonging to the deceased, there must be some other evidence to connect the accused with the murder which is lacking in this case. In our considered opinion, the learned trial Judge has not committed any illegality of fact of law in acquitting the accused persons for offences under Sections 460, and 302, IPC and in convicting them for offence under Section 380, IPC.
44. The learned Public Prosecutor has relied upon the decision in Dharam v. State of UP (1973 UJ (SC) p. 656), wherein legal position with respect to the power and the duty of the High Court while dealing with the State appeal against the judgment and order of the acquittal has been epitomised and it has been held that the jurisdiction of the High Court in dealing with appeal from the judgment of the acquittal is wide enough to empower the High Court to assess and apprise the evidence for itself and come to its own conclusion on the question of guilt or innocence of the accused persons, and that the statute places no limitation on this power, there being no distinction between an appeal from acquittal and on appeal from a conviction. It has been pointed out that if the Court on examining with care the evidence and the reasons for acquittal feels satisfied that the guilt of the accused is established beyond reasonable doubt, then it may be considered as much its duty to convict as it would be its duty to acquit if it entertains reasonable doubt about the guilt of the accused. The Apex Court has put the word of caution that the High Court has of course, to bear in mind when sifting and appraising the evidence, the initial presumption in favour of the innocence of the accused and the fact that he was acquitted by the trial Court and that the presumption of innocence has to be considered to be further strengthened to some extent by virtue of the order of acquittal and that then according to the obligation generally imposed on Courts of appeal, the High Court should dislodge the reasons on which the trial Court recorded the order of the acquittal. We respectfully agree with this dictum of law and we have scrupulously followed it while examining, scanning and appraising the evidence recorded in this case as also the reasons recorded by the trial Court for acquitting the accused persons for offence under Sections 460 and 302, IPC. In our considered opinion, the prosecution has miserably failed to successfully bring home offences under Sections 460 and 302, IPC, against any of the accused persons, beyond reasonable doubt. Therefore, the State appeal against acquittal for the said offences cannot succeed.
45. The appeals filed by the accused-appellants against their conviction for offence under Section 380, IPC, is also meritless because various recoveries of gold and silver ornaments and the currency notes, which belonged to Babulal, at the instance of the accused appellants stand well proved. Secondly, the accused appellants have neither claimed those recovered articles nor given any explanation as to how they had come in possession of those articles. Therefore, the learned trial Judge has rightly taken the presumption against the accused appellants for offence of committing theft keeping in view provisions of Section 114, Illustration (a) of the Evidence Act.
46. No other point was pressed before us.
47. The upshot of the above discussion is that D.B. Criminal Appeal No. 314/81, (State v. Satya Narain) as also Criminal Appeal No. 174/81 Satya Narain v. State and No. 141/81 Tribhuvan v. State are hereby dismissed. The accused appellants, whose sentences were suspended by this Court, should immediately surrender before the trial Court within a fortnight to undergo their remaining sentences failing which the trial Judge shall issue non-bailable warrants to ensure their arrest and commit them to the jail.