Punnath alias Purannath vs State of Rajasthan

Bhagwati Prasad, J.—The present appeal has been filed by the appellant against his conviction and sentence recorded by the learned Sessions Judge, Jaisalmer Under Sections 302, 304 read with Section 397 IPC. He has been awarded sentence as under:

Under Section 302 IPC: Life imprisonment with a fine of Rs. 2000/-. In default of payment of fine to further undergo two months S.I.

Under Section 394 read with Section 397 IPC: Life imprisonment with a fine of Rs 2000/-. In default of payment of fine to further undergo two months S.I.

The investigation started on the first information report lodged by Lakh Singh on 16.4.1996. According to the FIR his wife Mst. Magh Kanwar left home at 8:00 a.m. on 15.4.1996. She went to collect the fire wood from the fields. She did not return by late night. At about 10:00 p.m. on 15.4.1996 Sanwal Singh and another Lakh Singh came to his field and informed him that his wife could not be traced. The next early morning, complainant went in search of his wife. He found Chatur Singh, Babu Singh and Anop Singh on his way, who were also searching his wife. They all went to the field of Chandan Singh where they found ''Indani'' and gunny bag near the cow dung cakes. Then they followed the foot prints and reached the place where the body of wife of Lakh Singh was lying covered under the cow dung cakes etc. When they uncovered the body, they found that there was an injury on the back of the head of deceased and her ankle was also amputated and ornaments viz "Boria", "ear ring", "Kada", "Madaliya" etc. which she was wearing were missing. No one was named in the F.I.R. The case was registered on the basis of this first information report and during the course of investigation the accused was arrested and at the time of his arrest a slip regarding sale of ornaments to gold smith Khushal Chand was recovered from his person.

On the basis of information given by the accused u/s 27 of the Indian Evidence Act, ornaments were recovered and blood stained bush shirt of the accused was also seized. After completion of the necessary investigation, charge sheet was presented against the accused and the case was committed to the court of District and Sessions Judge, Jaisalmer. The trial court after conducting the trial, convicted and sentenced the accused appellant as aforesaid.

We have heard the learned Counsel for the appellant and have also perused the record.

Learned Counsel for the appellant urged that there is no direct evidence available on the record. The prosecution is based on the circumstantial evidence. The circumstances relied upon in the case by the trial court for holding the accused guilty of the charges are; recovery of ornaments from the gold smith, recovery of ornaments from the house of accused; recovery of weapon of offence i.e. axe; recovery of blood stained bush shirt of the accused appellant, foot moulds and the circumstance of accused having been last seen with the deceased. He has contended that the trial court has wrongly assumed that there is evidence available on record to the effect that the accused was last seen with the deceased. The only witness of this circumstance is PW 2, Ratan Singh. He has stated that while he was in his fields, he saw Magh Manwar, the deceased, going to the fields at a distance of about 150 Poundas. He has stated that while he was going to leave his cows on the south of the village, he saw Mst. Magh Kanwar going at a distance of 150 Poundas. After leaving his cows at a distance of about 1-1/2 kms. he returned towards the village and he saw that the accused was going with an axe to the side towards which Mst. Magh Kanwar, the deceased had gone. In his cross-examination, he has admitted that there was a distance of about 1/2 kms. between the deceased and the accused and that the place where the deceased had gone to collect the fire wood, persons of his village could go and come for collecting the fire wood and they were also doing so. Learned Counsel for the appellant has vehemently contended that this cannot be a circumstance which can be described to be a circumstance which could connect the accused appellant with the crime. The deceased and accused were not going together at any point of time. Even as per the testimony of this witness, he has only stated that the accused was going in the direction in which the deceased had gone. The prosecution has not excluded the possibility of any other person having gone there or met the deceased there. The deceased had gone prior in time to the accused in the same direction, but it cannot be said that they were last seen together. Looking to the distance of 1/2 km. in between the deceased and the accused appellant, it cannot be said that they were last seen together.

Learned Public Prosecutor has also not been able to point out anything on record to establish clinchingly that the deceased and the accused appellant were seen together. Once they are not seen together then merely by seeing the accused going in that direction in which the deceased had gone about half an hour earlier cannot be termed to be a circumstances which can connect the accused appellant with the death of deceased.

We are therefore, in agreement with the learned Counsel for the appellant that this is neither a circumstance of the accused having been last seen in the company of the deceased nor it clinchingly connects him with the commission of offence.

Learned Counsel for the appellant urged that when the accused was arrested, the investigating officer recovered the slip from his person in which it was clearly written that he had given certain ornaments to gold smith Khushal Chand on 16.4.1996. The factum of Khushal Chand having been given oranments was known to the police from that slip and after the slip having been found in the possession of the appellant, giving of information by the accused appellant u/s 27 of the Indian Evidence Act and recovery pursuant there to are rendered insignificant for the purpose of connecting the accused appellant with the commission of crime. On the contrary, it indicates that investigating officer has tried to fabricate this evidence in order to fasten liability on the accused. He has urged that such a recovery cannot be relied upon to connect the accused appellant with the offence.

Learned Public Prosecutor has not been able to refute the criticism levelled by the learned Counsel for the accused. He could not show any precedent that such evidence would be admissible against the accused. There is substance in the argument of learned Counsel for the appellant. It is a well settled principle of law that any fact which has already come to the knowledge of the investigating officer prior to recording statement u/s 27 of the Indian Evidence Act cannot subsequently be made subject matter of information u/s 27 of the Indian Evidence Act and recovery made pursuant thereto totally looses its significance and it cannot be used as a circumstance against the accused appellant. Thus, in the instant case, this circumstance of purported recovery of ornaments at the instance of accused appellant pursuant to the information recorded u/s 27 of the Indian Evidence Act from Shri Khushal Chand Soni cannot be pressed into service against the accused appellant.

The next circumstance which has been relief upon by the prosecution against the accused appellant is recovery of ornaments from the house of accused vide Ex. P/16 recovery memo. Learned Counsel for the appellant has argued that there was no house as such and it was in the shape of "Jhunpa" and outside the "Jhunpa" there was an open courtyard from where the recovery of ornaments is alleged to be made. Such a recovery cannot be said to be a recovery from the exclusive possession of the accused appellant. The place from where the recovery has been effected is accessible to all and sundry. He has further contended that identification of ornaments cannot be said to be satisfactory because sufficient numbers of similar ornaments have not been mixed with the recovered ornaments. Therefore, such identification looses its significance.

Learned Public Prosecutor has submitted that the accused belongs to "Jogi" community who lives in temporary huts.

We have gone through the information memo and the recovery memo. The recovery is said to be effected from the courtyard which cannot be said to be in the exclusive possession of the accused. Besides this, ornaments must have been stained with blood of the deceased in the ordinary course of events. But, prosecution has neither got these ornaments examined from the serologist nor has lead any evidence to show that these were stained with human blood. That being the position, recovery so made from the courtyard cannot be used against the accused appellant.

This takes us to the recovery of axe and blood stained bush shirt of the accused. These are said to be stained with human blood. Learned Counsel has urged that these articles have not been proved to be stained with the blood of the deceased. Merely staining of bush shirt and axe with the human blood does not clinchingly connect the accused with these articles and unless and until it is positively and beyond reasonable doubt established that these articles contain blood of the deceased, it cannot connect the accused with the commission of offence. There is nothing to show that axe in question was used for causing injury or the bush shirt in question was being worn by the accused at the time of commission of crime. That being the position, this ground also cannot be pressed into service against the appellant.

The only circumstances available on record against the accused is circumstantial evidence of foot print marks of the accused appellant said to have been found near the place of occurrence. The Hon''ble Supreme Court has categorically held that the science of identification of foot print marks is at a rudimentary stage and this circumstance alone without any other connecting circumstances cannot be made sole basis of finding the accused guilty of the alleged offence. There being no other reliable circumstantial evidence available on record to corroborate the prosecution story, the conviction of the accused appellant only on the basis of foot moulds and foot print marks cannot be sustained.

In view of the foregoing discussion, we find the chain of circumstances, which the prosecution has tried to prove against the accused is not complete so as to rule out every hypothesis consistent with the innocence of the accused appellant and to lead to only and irresistible conclusion that the accused appellant and nobody else has committed the alleged offence.

All the circumstances have thinned away with the judicial scrutiny made above. It is not possible to uphold the conviction of the accused appellant for the offences Under Sections 302 and 394 read with 397 IPC. The accused appellant is entitled to acquittal of all these charges.

In the result, prosecution fails. The conviction and sentence awarded against the accused appellant cannot be maintained. His appeal is allowed. He is behind the bars. He is ordered to be released forthwith, if not required in any other case.