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Judgment
V. RAJAGOPALA REDDY, J
The respondent was charged under Sections 302 and 394 IPC. He was not found guilty for the said offences, but was found guilty for the offence u/s 411 IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for one year. This appeal is filed by the State against the acquittal of the respondent for the offence under Sections 302 and 394 IPC.
The facts in brief, are : Two months before the incident on account of disputes between the accused and the deceased, the accused was fined Rs.300/- in the Panchayat. On 21-1-1995, in the morning hours when the deceased was in the outskirts of the village, in the fields in plantain tope of one J. Krishna, the accused cut her with a knife on her neck with an intention to kill her and robbed her ornaments from her body. He cut away her two ear lobes, right nostril and removed her gold ornaments. The deceased died instantaneously. The accused had been absconding and he was arrested on 25-1-1995. In pursuance of his confession the properties robbed from the deceased were recovered at the instance of the respondent at a'' nearby cattle shed.
The prosecution seeks to let in evidence as regards the motive for the accused to commit murder of the deceased. It seeks to rely upon the evidence of PWs.1 and 2. PW1 only deposed regarding theft committed by the accused earlier to die date of offence and the imposition of fine of Rs.300/- in the Panchayat held, PW2 corroborates the said evidence of PWI. Considering the evidence of PWs.1 and 2, the learned Sessions Judge held that there was no material to prove the motive for the accused to commit the murder.
Learned Public Prosecutor did not bring to our notice any other evidence to hold that the accused has got a very strong motive to kill the deceased. In the circumstances, we up-hold the finding of the learned Sessions Judge on this aspect.
The other evidence that is available on record is that of PWs.3 to 17. PW3 is the husband of the deceased. He has deposed that when he found that his wife did not return even when he waited till 12 noon on the date of incident, he sent PW8 and another in search of her. At about 2 p.m. they brought the dead body of the deceased to the cattle shed and he found injuries on the left side of the neck of the deceased and injuries on the right side of nose and both ears, disclosing that the gold ornaments from the nose and ears have been removed. The nose of the deceased was also found cut. PW8 told him that the body was found in the Banana garden belonging to one J. Krishna. MO2 is the cotton saree with blood stains and MO3 is white cotton cloth piece. MOs.4 to 7 are the gold jewels of the deceased. MO8 is the ''Mattelu''. MO10 is copper ring. MO11 is cotton thread containing two keys. MO12 is broken bangle pieces. MO13 is iron boriga belonging to the deceased. PW4 stated that when he was coming in tractor, the accused asked him to give lift and at that time he was having ''Yatha Kathi''. The accused got down near the Thannavaram Kotha Road. PW5 stated that he saw, when he was in the fields, the accused. Coming into village and at that time he was having Yatha Kathi. PW6 only stated that at about 12 noon he saw the accused coming to thrashing floor. PW7 also stated that at about 12 noon when he was ploughing his land at his thrashing floor, he found the accused coming from Thannavaram road and at that time he was having ''Cheti Kathi''. PWS is the person who is related to the husband of the deceased and whom PW3 sent in search of the deceased. He stated that PW3 sent him in search of his wife and he saw the dead body in the plantain garden of one J. Krishna. He and another observed the injuries on the left of the neck of the deceased and also on the two ears and nose and stated that he carried the dead body to the thrashing floor. Thereafter, at about 3 p.m., he went to PW9, the VAO, and narrated what he has seen, which was reduced into writing. The report is Ex.p1. PW9 deposed corroborating PW8, that after receipt of Ex.P 1 from PW8, he sent the Talayari, PW10 to the thrashing floor of PW8 and found the dead body of the deceased there. On observation they found cut injury on the left side of the neck of the deceased and also injuries on both the ears and on the nose. He prepared a report on the spot, Ex.P2, Thereafter, he sent Exs.Pl and P2 to the police station, through PWIO, PW10 corroborated PW9, and stated that on 21-1-1995 at about 4.30 p.m., having received Exs.Pl and P2 from PW9, he has handed them over to the police station at about 5.30p.m. PW17, SI of Police, Jami P.S., stated that at about 6 p.m. on 21-1-1995, when he was in the police station, PW10 brought Exs.Pl and P2 and on the basis of Ex.P1 and P2 he itgistercd a case in Cr.No. 10/95 under Sections 302 and 379 IPC and issued express FIR. PW15, the Inspector of Police, S. Kola, stated that he took up the investigation from PW17. He secured witnesses and held inquest on the dead body under Ex.P4. During the inquest he examined PWs8 and 3 and others. During the inquest it was opined by the Panchayatdars that the deceased was killed by an unknown offender with a sharp edged knife and robbed her gold ornaments. He seized blood stained earth, sample earth MOs.15 and 16, bangle: pieces MO12 and other MOs. On 25-1-1995, on information, he has taken mediators PW 11 and others and rushed to the thrashing floor of one Yerra Sanyasi at 6.20 a.m. On seeing the policeparty and mediators, the accused started running and escaped and hid himself. He was over powered and arrested and on questioning he disclosed his identity. The accused has taken them to a cattle shed and he dug out a pit and handed over the gold ornaments viz., MOs.4 to 6. They were seized in the presence of mediators. Again in pursuance of the confession made by the accused they were taken to the cattle shed of Yerra Sanyasi. At that place, MO14, Yetha Kathi was removed from the basket hanging to .the roof of the cattle shed. It was seized under Ex.P9. They have also seized the clothes of the deceased, which she was wearing at the time of occurrence under Ex.P24, which are MOs. 21 and 22. The accused was sent to judicial remand. MOs. 1 to 13 were identified by PW3, husband of the deceased. He stated that MOs. 4, 5 and 6, the gold ornaments, belong to the deceased and he identified the same in the identification parade conducted by PW9 and others. PW12, the Medical Officer who conducted the post-mortem examination, noted the injuries as follows :
"(1) One incised wound slightly curved on the left side of the neck. 6" x 1 1/2" x 5" deep. Edges are clean cut. The spinal column is also cut through its width. The spinal cord is seen through the wound.
(2) Left ear lobe is cut and a part of the ear lobe is not with the body. The edges are clean cut. Wound is 2" x 1/2" in size.
(3) Left ear lobe is cut near the ornamental hole and the edges are clean cut.
(4) Right ear lobe is cut near ornamental hole. Margins of wound clear cut.
(5) The pinna of the left ear was cut. Edges are clean cut and the portion of the ear lobe is not with the body.
(6) Right nostril near the ornamental hole is cut Margins are sharp."
He opined that the Injury No.1 could have been caused by a sharp and slightly curved heavy knife and others could be caused by sharp edged weapons. The deceased would appear to have died due to haemorrhage and injury to spinal cord. Ex.P11 is the P.M. certificate. Injury No. 1 could be caused by a weapon like MO14.
It is contended by learned Public Prosecutor that the learned Sessions Judge, having convicted the respondent for the offence u/s 411 IPC, ought to have convicted him on the same evidence for the offences under Sections 302 and 394 IPC.
A reading of the evidence on record makes its clear that MOs.4 to 6 are the gold ornaments of the deceased and she has been wearing them just before murder. They were seized at the instance of the respondent on 25-1-1995 in the presence of mediators under Exs.P6 to P9. In view of the reliable evidence found on record for the recovery of the ornaments at the instance of the respondent, the respondent was convicted by the Court below for the offence u/s 411 IPC. The presumption that can be drawn u/s 414 of the Evidence Act is that the property which is proved to be the property of the deceased, the accused is a receiver of the stolen property knowing the same to be stolen. Learned Public Prosecutor argues that on the same evidence, the respondent ought to have been convicted for the offence u/s 302 IPC. It should be noted that MOs.4 to 6 have been seized from the thrashing floor and cattle shed, which were open and having access to many people. The said fields were not shown to have been under the exclusive control of the respondent. It was also not the case of the prosecution that the respondent had been absconding from the date of incident. In Nagappa Dondiba Kalal Vs. State of Karnataka, , it was held that in the absence of any evidence to connect the appellant therein with the murder of the deceased or even any assault the accused may have committed on the deceased or having robbed her of her ornaments, the utmost presumption should be that the ornaments must have been stolen property received by the appellant knowing that they were stolen property. It was for the prosecution to prove its case affirmatively as regards the murder of the deceased. The Court below has rightly declined to follow the ratio of the case in Qutab Chand v. State of MP (1995) SCC (Cri.) 522. In the said case the evidence disclosed that the accused was disposing of the property immediately on the next day of murder. The evidence also revealed that the properties of the deceased stolen were kept in the room of the accused in his exclusive custody under lock and key and it was recovered by opening the key supplied by the accused and opening the room at the instance of the accused. It was also the evidence that the room was in the residential house under the exclusive portion of the accused- In the instant case, the properties were recovered in an open field, which was not in the exclusive custody of the accused. Hence, the said decision is not applicable to the facts of the case.
There was practically no evidence on record, in the instant case, to connect the respondent with the death of the deceased. The entire evidence only go to show that the respondent was found going into the village with Yetha Kathi between 9 to 12 O'' clock. Agriculturists usually carry such a knife for their agricultural operations. Hence no presumption can be drawn from the said fact that the accused was responsible for the murder of the deceased. On the other hand, a person who has committed murder, would not go about moving in the village exhibiting the weapon of murder. Thus, in the absence of any evidence to connect the respondent with the murder of the deceased, the Court below was right in convicting the respondent for the offence u/s 411 IPC and acquitting him for the offences under Sections 302 and 394 IPC. No evidence is brought to our notice to connect the respondent with the murder of the deceased. No infirmities are found in the order of the Court below, warranting interference with its judgment.
In the circumstances, the criminal appeal is dismissed.