State of M.P. vs Murarilal and another

A.P. Sen, J.—This judgment shall also govern the cross appeal, i.e., Criminal Appeal No. 489 of 1971 (Murarilal and another v. The State of Madhya Pradesh) filed by the present respondents against their conviction u/s 411, IPC and the consequent sentence of rigorous imprisonment for two years to each of them. The present appeal by the State is against the acquittal of both these persons for the alleged offences punishable u/s 302 read with section 34 and sections 201 and 394, IPC.

The deceased Mst. Laltibai, mother of P.W. 6 Dwarka Prasad and mother-in-law of P.W. 11 Sudamabai, lived in village Hirdayanagar, district Mandla, with the aforesaid witnesses. The village is at a distance of about nine kilometer from Mandla. Nearabout mid-day on 28-1-1971, the deceased an old woman aged about 65 years whose mobility had been considerably impaired on account of a paralytic attack, left her house and soon thereafter was seen standing near the house of accused Murarilal. That was the last time she was seen alive. Apparently, the deceased was quite affluent and when she left the house that day, she was as usual bedecked with several ornaments. She was also fond of chewing pan and it appears that she had left home at that time to get pan. Admittedly, the accused Murarilal is a Chaurasia and he carried on business of selling pans and the other accused Darbarilal was his servant at the relevant time. The house of accused Murarilal is located at a short distance from the house in which the deceased lived along with her son and his family.

The deceased not having returned till late at night on 28-1-1971 a search was made for her by her sons PW 6 Dwarkaprasad and Badri Prasad along with others, but to no avail. On failing to find his mother in the village or near about PW 6 Dwarkaprasad considered the only remaining possibility that she might have gone to his sister''s place in Jabalpur and so he, along with his elder brother Badriprasad, went to look for her in Jabalpur. However, on failing to find her there also, P.W. 6 Dwarkaprasad, immediately on return from Jabalpur, lodged on 30 1-1971 a report (Ex. P-2) in police station Mandla. In that report it was stated that Mst. Laltibai was missing since soon of 28-1-1971, that on a search being made she could not be found, that having had an attack of paralysis she had become lame so that she was incapable of walking much and going to another village; and that she was wearing ornaments as detailed in Ex. P-2. The ornaments detailed in Ex. P-2 included a gold hash (Art. 1) weighing about 14 tolas ; three gold mohars each weighing one tola (one of which is Art. 8): a silver todar (Art. 9) weighing about one kilogram and a gold nose ring (Art 10). Art, 1 gold hash Art. 8 gold mohar Art. 9 silver todar and Art. 10 gold nose ring in this case have been identified as belonging to the deceased which were worn by her when she last left her house, some time after which she was, admittedly, done to death.

On 5-2-1971, in a well situate in the outskirts of the village, at a distance of about six furlongs from the house of accused Murarilal, a dead body was recovered sewn in a gunny bag which was also filled with some bricks, apparently to keep it under water. The dead body was in a highly decomposed state. It was identified as the dead body of Mst. Laltibai. After recovery of the dead body a half chewn pan (Art. 21) was also recovered from the mouth of the deceased and was seized as per seizure memo Ex P-13.

On recovery of the dead body, police being already in the village to enquire about the missing woman, a dehati nalishi (Ex. P-3) was recorded the same day (i.e. 5-2-1971). The investigation led to the arrest of these two accused and their consequent trial for the aforesaid offences.

The prosecution alleges that on information given by accused Murarilal as per memo Ex. P-18 dated 6-2-1971, the gold hash (Art. 1) was recovered from the shop of P.W. 3 Murarilal Siharey alias Mullu Siharey of Mandla and seized as per seizure memo Ex. P-5 in a multilated condition, a portion from it having been cut off; and a sum of Rs. 1,485 was also found concealed in the embankment of the field of one Shobha in that village, kept in a plastic bag, which represented a part of the sale proceeds of that hasli which it is alleged, was sold by accused Murarilal for a sum of Rs. 2,251 in the said shop. That amount of Rs. 1,485 was seized as per seizure memo Ex. P-19. Similarly, the gold mohar (Art. 8) silver todar (Art, 9) and gold nose ring (Art. 10) were recovered on the information given by the other accused Darbarilal as per memo Ex. P-16 dated 5-2-1971, from the embankment of the field belonging to one Chandanlal alias Channu Chaurasia in the village and were seized as per seizure memo, Ex. P-17.

It is also alleged that the accused Murarilal had told P.W. 6 Dwarka Prasad and his elder brother Badri Prasad on the night of 28-1-1971 when they were frantically searching their mother, that they should go home and sleep and that their mother would not return now. This is relied on as one of the circumstances attributing knowledge to the accused Murarilal of Mst. Laltibai being already dead by that time.

There is no direct evidence of the crime in this case. Admittedly, Mst. Laltibai died as a result of violence, as is apparent from the several injuries found on her person which are detailed in the post mortem report (Ex. P-22) and proved by P.W. 15 Dr. D.L. Ayyar. According to the medical opinion, the death was due to aspyxia as a result of strangulation. There is no dispute that the offences of robbery, murder and concealing the evidence of murder have been committed. The only dispute is about the identity of the culprits.

Shri A P. Tare, learned Deputy Government Advocate, appearing for the State, relies on several circumstances to indicate that the present accused alone were the real culprits, responsible not only for the murder of Mst. Laltibai but also for having concealed her dead body and having robbed her of the aforesaid ornaments which were subsequently recovered on the basis of information given by them The circumstances on which reliance is placed are mainly.........that the deceased, when last seen alive on 28-1-1971 at midday, was going towards the house of accused Murarilal and was actually seen standing near his house ; that she was very fond of chewing pan which she always purchased from the accused Murarilal, that a half-chown pan was actually found in the mouth of the dead body of the deceased, indicating that she was done to death soon after she had taken pan : that she had left home at that time to get pan ; that the gold hasli (Art. 1) belonging to the deceased and which she was wearing when last seen alive was sold by accused Murari Lal in the shop of Murarilal Siharey, P.W. 3, at Mandla the same evening : that Mst. Laltibai, having become lame as a result of a paralytic attack, was not very mobile and could not have gone far; that the statement of accused Murarilal on the night of 28-1-1971 to the sons of the deceased that she would not return now indicated that he was then aware of her death ; and that the dead body was found in a gunny bag which indicated that she had been done to death at a place of convenience i.e. a house where arrangements for disposing of the dead body in this manner could be made and not that she had been way laid. It is also suggested that the house in question could only be that where she would have voluntarily gone during that part of the day and since she had left home to get pan which she always purchased from the accused Murarilal, she must have gone only to the house of accused Murarilal where she was killed. Another circumstance, treated as a connecting link, is the concealment of Rs. 1,485/- , suggested to be a part of the sale proceeds of the gold hasli (Art. 1), in the embankment of a field which is an unusual place for keeping money, for which act no explanation has been given. The argument is that these circumstances taken together lead to the only inference that accused Murarilal was one of the persons who had committed the aforesaid crimes.

So far as the other accused Darbarilal is concerned, the additional circumstances suggested are that he was present in the house of Murarilal at that time, being his servant; and that he was in very recent possession of the gold mohar (Art. 8), silver todar (Art. 9) and the gold nose-ring (Art. 10), also proved to have been worn by the deceased when last seen alive and which he had concealed in the manner already indicated ; and the fact of several injuries being found on the person of the deceased as also the manner of disposing of the dead body which indicated that it was the work of more than one person. For these reasons it is contended that the other accused Darbarilal is equally guilty of the aforesaid crimes. The total absence of any explanation by the two accused of their such possession of the ornaments worn by the deceased is also put forth as a relevant circumstance.

The trial court accepted that the alleged discoveries had been made at the instance of the two accused, and came to the conclusion that the accused Murarilal had sold the gold hasli (Art. 1) in the manner alleged and the co-accused Darbarilal had concealed the other three ornaments as stated. However, it was of opinion that the circumstances led only to the conclusion that an offence u/s 411, I.P.C., and none of the alleged offences, was proved against any of the two accused. Accordingly, both of them have been convicted only u/s 411, I.P.C., as already stated.

Shri Rajendra Singh, Learned Counsel for both the accused has made no attempt to assail the conviction already made u/s 411, I.P.C. In fact, his argument is that the possession of these ornaments by the accused gives rise only to the presumption that they were mere receivers of stolen property so that no offence other than the one u/s 411, I.P.C, is made out against them. On this basis he contends that the present appeal by the State ought to be dismissed. No attempt has been made to dispute that the aforesaid four ornaments, viz., gold hasli (Art. 1), gold mohar (Art. 8), silver todar (Art. 9) and gold nose-ring (Art. 10) did in fact belong to the deceased and that she was wearing the same at the time she was killed. Similarly it has not been disputed that the gold hasli (Art. 1) was recovered and seized by the police from the shop of P.W. 3 Murarilal Siharey at Mandla and the other three ornaments (Articles 8, 9 and 10) were recovered and seized from the place already indicated. Further, the sale of the gold hasli (Art. 1) by accused Murarilal in the shop of P.W. 3 Murarilal Siharey at Mandla has not been challenged. What has been challenged is the date of that sale, the argument being that the sale was not in fact made on the evening of 28-1-1971 as stated by P.W. 2 Raj Kumar Siharey and his father P.W. 3 Murarilal Siharey and corroborated by the entries made in the shop books, but that it was made days later, so that the only inference which can arise is of an offence u/s 411, I.P.C. In short, the argument of Shri Rajendra Singh is that the possession of these ornaments by the accused on 28-1-1971 itself, the day on which Mst. Laltibai was last seen alive, has not been proved. On this basis it is contended that the possession of ornaments not being soon after Laltibai was robbed and murdered but only a few days later, the only reasonable inference is that the two accused were mere receivers of stolen property and were not the robbers or murderers themselves. The other circumstances relied on by the prosecution are mostly not challenged and are said to be innocuous. The several arguments advanced by Shri Rajendra Singh in support of this conclusion are dealt with hereafter.

The first argument of Shri Rajendra Singh is that the memo Ex. P-18 is inadmissible in evidence since it did not occasion the discovery of any fact as required by section 27 of the Evidence Act. His contention is that the accused Murarilal only stated that the hasli (Art. 1) was to be found is the shop of P.W. 3 Murarilal Siharey and he did not indicate the exact place in the shop where it was kept, so that a further act of investigation was necessary in order to get the hasli and that was independent of the information contained in the said memo. He argues that in order to make this statement admissible in evidence by virtue of section 27 of the Evidence Act, it is necessary that the information so given should have itself directly led to the discovery without the further assistance of the owner of the shop. In support of this argument reliance is placed mainly on the decision of the Privy Council in Pulukuri Kotayya v. Emperor AIR 1947 PC 67 and particularly to a passage which reads as follows :--

......In their Lordships'' view it is fallacious to treat the ''fact discovered'' within the section as equivalent to the object produced ; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact......... (para 10 at p. 70, Col. 2).

The main emphasis is, that the actual place in the shop where the hasli was kept was known only to the owner of the shop and not to the accused Murarilal who gave the information and, as such, one of the essential requirements to constitute the ''fact discovered'' within the meaning of section 27 of the Evidence Act is not present. Another fact of the same argument has been placed by contending that the accused Murarilal only informed that he had sold the hasli to the owner of that shop, so that the person to whom it was handed over by the accused was the only thing known as a result of this information, and, thereafter, the further co-operation of the named person was necessary in order to really get the hasli. For these reasons it is contended that no discovery as contemplated by section 27 of the Evidence Act was in fact made as a result of the memo, Ex. P-18.

The aforesaid decision of their Lordships of the Privy Council undoubtedly continues to be the leading case on the point. However, the narrow meaning suggested by Shri Rajendra Singh to the principle laid down therein is unwarranted, as would be evident from a recent decision of the Supreme Court in which the aforesaid Privy Council decision was relied on. In Jaffar Hussain Dastagir Vs. State of Maharashtra, , the portion of the statement, with reference to which this question arose, read a follows:--

I will point out one Gaddi alias Ramsingh of Delhi at Bombay Central Railway Station at III Class Waiting Hall to whom I have given a packet containing diamonds of different sizes more than 200 in number. (P. 1935, Col. 2).

The only question for decision in that case before the Supreme Court was whether the aforesaid statement made by the accused was admissible in evidence by virtue of section 27 of the Evidence Act, the diamonds having been found with the person named. In the facts of that case their Lordships came to the conclusion that the police had already know that the diamonds were with the person named by the accused, with the result that there was no fact discovered by the police as a result of the statement made by the accused. For this reason it was held that there was no discovery within the meaning of section 27 of the Evidence Act. However, it was clearly held that, but for such knowledge of the police, the aforesaid statement of the accused would have been admissible in evidence. This is evident from the following observations made in that case :--

......If the police had not gone to the office of the Bombay Samachar and had not learnt of the complicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the dismonds in the custody of accused No. 3. (Para 11 at p. 1939, Col. 2).

while dealing with this question their Lordships of the Supreme Court laid down the principles on the basis of the aforesaid Privy Council decision as under :--

......The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled. If an accused charged with a theft of articles or receiving stolen articles, within the meaning of section 411, I.P.C., states to the police, ''I will show you the articles at the place where I have kept them'' and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact, i.e., keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle there is no difference between the above statement and that made by the appellant in this case which in effect is that ''I will show you the person to whom I have given the diamonds exceeding 200 in number''. The only difference between the two statements is that a ''named person'' is substituted for ''the place'' where the article is kept. In neither case are the articles or the diamonds the fact discovered. (para 5 at pp. 1936-37)

(Underlining is by us)

In the aforesaid decision of the Supreme Court it has been clearly pointed out that in substance there is no difference between a ''named person'' and ''the place'' where the article is kept. The result is that if the accused gives information about a person to whom he had given the incriminating article and offers to point out that person, it is the same thing as naming the place where the article is kept and which place he offers to point out. If the article is found with the ''named person'', the statement made by the accused leads to discovery and the same is admissible by virtue of section 27 of the Evidence Act. This position cannot be doubted in view of the said decision of the Supreme Court. Thus, the narrow construction suggested by Shri Rajendra Singh of the Privy Council decision is not justified and such a reading of that decision is contrary to the law laid down by their Lordships of the Supreme Court, as already indicated.

Shri Rajendra Singh tried to distinguish the aforesaid Supreme Court decision by saying that there the diamonds were actually found on the person of the ''named person'', whereas in the case before us the hasli was taken out from some place in the shop. We are unable to accept that such a distinction exists. In the statement which the Supreme Court was considering there was no mention of the place where the diamonds were to be found with ''named person'' and all that was said by the accused was that he would point out the person to whom be had given a packet containing diamonds. There is nothing in the judgment to indicate that the fact of diamonds being actually found on the person of the ''named person'' was even considered relevant for the decision. In fact, the principles enunciated by their Lordships of the Supreme Court are wholly independent of this fact. We are therefore unable to accept the argument that the Supreme Court decision can be applied only in the situation where the incriminating article is actually found on the person of the ''named person''.

Shri Rajendra Singh also relies on two decisions of this Court in State of Madhya Pradesh v. Dhannalal 1967 JLJ 1053: ILR 962 MP 314: 1961 (2) Cri LJ 28 (MP) & AIR 1934 71 (Nagpur) In the former case the accused was tried for poisoning by mixing a certain poison in the sweets. The question there for consideration was whether a statement made by the accused that he had bought the poison from a particular Hakim''s shop was admissible in evidence by virtue of section 27 of the Evidence Act. It was held that the discovery that was directly made as a direct consequence was the existence of the shop of the Hakim; and this was no discovery at all, being in an open street. As such, there was no fact discovered so as to attract section 27. It is difficult to appreciate how this decision has any relevance here. In the Latter case (Maganlal''s case) A stated that he handed on the property to B and B stated that he handed on to C and C to D and D to E, and recovery was made from E. It was held by the learned Judicial Commissioner that the statements of A, B, C and D have no direct bearing on the recovery of the property, although they may have indirectly helped the police in the investigation. For the purpose of this case it is sufficient to say that the decision is clearly distinguishable on facts. In the present case there are no intervening persons, as was the position in that case. Here the hasli was found with the ''named person'' and no others were involved in between. This by itself makes that decision inapplicable. However, if the learned Judicial Commissioner intended to lay down therein, the proposition which Shri Rajendra Singh wants to spell out viz., that where A stated that he had handed over the property to B, as a result of which the property was recovered from B only, yet that statement would not be admissible in evidence, then that is no longer good law in view of the aforesaid decision of their Lordships of the Supreme Court in Jaffer Hussain''s case (supra). We would therefore read the decision in Maganlal''s case (supra) as confined only to the facts therein, which were different from those before us.

Faced with this situation Shri Rajendra Singh contended that the police actually knew that the hasli (Art. 1) was in the shop of P-W 3 Murarilal Siharey on account of which no discovery was made as a result of the statement made by the accused Murarilal as contained in Ex. P 18. In support of this argument reliance is placed mainly on a casual admission obtained from P-W 11 Mst. Sudamabai, daughter-in-law of the deceased, at the beginning of her cross-examination. She has stated that on the very day when the dead body was found it was known in the evening that the aforesaid ornaments (todar, mohar, nose-ring and hasli) had been found. The dead body was found on 5-2-1971 and todar mohar and nose-ring were also found the same day as a result of the information given by the other accused Darbarilal. However, information by accused Murarilal regarding the hasli is alleged to have been given on 6-2-1971, on which date it was also recovered from the shop of P-W 3 Murarilal Siharey as a result of the information so given. The argument is that if the hasli was known to have been found on the evening on 5-2-1971 itself, there could be no discovery on the next day as alleged by the prosecution. We are unable to accept this contention.

Admittedly, P-W 11 Mst. Sudamabai had made that statement only on the basis of the impression she had gathered, and she had no personal knowledge of the same. None of these ornaments were recovered in her presence nor did she witness any of the events which led to their recovery. She has clearly stated this from hearsay, and this impression appears to have been caused on account of the fact that three out of the four ornaments had in fact been found on 5-2-1971 itself, No witness has said so from personal knowledge and this portion of the statement of P-W 11 Sudamabai, being hearsay, is of no probative value. No question was put to any of the police officers examined in this case to indicate that any such prior knowledge was attributed to them. Nothing else has been shown to us from the record which would suggest that the police was aware of the hasli being present in the shop of P-W 3 Murarilal Siharey prior to the information given by accused Murarilal.

In fact this argument was resorted to only in an effort to get over the Supreme Court''s decision in Jaffer Hussain''s case (supra) when the same was pointed out to Shri Rajendra Singh after he had concluded his arguments en this point.

We are clearly of the opinion that from the evidence present on record, no such prior knowledge on the part of the police is borne out. For the aforesaid reasons, in our opinion, the statement of the accused Murarilal contained in the memo Ex. P-18 which led to the discovery, is clearly admissible in evidence by virtue of section 27 of the Evidence Act. It is, therefore, proved that the hasil (Art. 1) was handed over by the accused Murarilal in the shop of P-W 3 Murarilal Siharey, and this fact was discovered as a result of information given by him (Murarilal accused).

It not being disputed that the hasli (Art. 1) was worn by the deceased when last seen alive at midday on 28-1-1971 and also that the same was sold by the accused Murarilal in the shop of P-W 3 Murarilal Siharey, the only question which remains to be decided in this connection is the date on which it was sold by accused Murarilal. Shri Rajendra Singh has strenuously urged that the sale being made by accused Murarilal on the evening of 28-1-1971 is not proved. Apart from the statement of P-W 3 Murarilal Siharey and his son, P-W 2 Rajkumar Siharey, both of whom stated that this sale took place on the evening of 28-1-1971, the prosecution also relies on certain entries contained in the account books of the shop of P-W 3 Murarilal Siharey. Ex. P-6 is an entry of 28-1-1971 to the effect that one gold hasli (sutia), weighing eleven tolas seven annas, was purchased from the accused Murarilal for Rs. 2,264/- and 62 Paise. This entry is contained in a book relating to the cloth business of that shop. It had been admitted by P-W 3 Murarilal Siharey and P-W 2 Rajkumar Siharey that they do not purchase or sell gold and, this transaction apart, they only advance money against pledge of ornaments for which purpose they maintain a different book which is periodically inspected by the police. The reason given by these witnesses for making this entry in the book relating to cloth business is that they had purchased this Article (hasli) to prepare certain ornaments for a marriage in their family. Some other facts were elicited in their cross-examination and on that basis it is contended that both these witnesses are of dubious character on account of which they should not be relied on. It may be that the conduct of these witnesses disclose that their business is not clean. It may also be possible that for this reason alone such an entry may have been made in the book relating to cloth business, since the other book relating to pledge of ornaments was periodically inspected by the police. All this would indicate that their attempt was to keep this transaction secret. However, we are unable to appreciate how these facts can improve the case of the defence. The transaction itself not being disputed as already stated, the facts shown against these witnesses are of no consequence. An entry being made in a book of the shop, there is no reason forthcoming why it should not be made on the date of the transaction but on a different date. The facts relied on, on behalf of the accused only go to show that these witnesses were trying to avoid the police which may mean that they were either aware or had suspected that the hasli (Art. 1) was not sold to them by its real owner. A suggestion was also made that this entire book had been written at one time by P-W 2 Rajkumar. The trend of cross-examination either of P-W 2 Rajkumar or of P-W 3 Murarilal Siharey does not furnish any basis for this suggestion.

Shri Rajendra Singh has also tried to argue that the weight of the hasli (Art. 1) as given out in the prosecution case is 14 tolas, whereas, according to the evidence of P-W 2 Rajkumar Siharey and P-W 3 Murarilal Siharey as also evidenced by their account book, it was only 11 tolas and 7 annas. This variance in the weight, he contends, also makes the matter suspicious. It is difficult to understand this argument and its effect on the case, particularly when the identity of the hasli as belonging to the deceased and worn by her when last seen alive and also its sale by accused Murarilal in the shop of P-W 3 Murarilal Siharey has not even been disputed. In this connection, as already stated, the only thing disputed is the date of the sale and nothing else. This being the position, the weight of the hasli is of no consequence for our purposes.

However, P.W. 6 Dwarka Prasad, son of deceased, who gave out the weight of the hasli as 14 totals, has clearly stated that the weight was stated by him on the basis of his estimation. He has also stated that the hasli had come from the parents of the deceased and had not been prepared in his house, and that he had been seeing the deceased wearing the same for the last several years. Apparently, this hasli was constantly worn by the deceased. It is, therefore, obvious that the weight, 14 tolas, stated in the prosecution case was based on mere estimation of P.W. 6 Dwarka Prasad. It is also likely that with a view to avoid suspicion being directed towards him, P.W. 3 Murarilal Siharey recorded a reduced weight of the hasli in his book of account so that the rate at which he showed the purchase of gold was automatically increased to Rs. 198/- per tola, which was near about the existing market rate at that time, as brought out in the evidence. It is likely that the seller (accused Murarilal) and the buyer (P.W. 3 Murarilal Siharey) both being conscious that the transaction was surreptitious, they agreed to sell and purchase the article at a rare lower than the existing market rate. This being the position, to avoid any suspicion being attracted towards an entry showing purchase of gold at a rate lower than the existing market rate, it is likely that the total price having been fixed, the weight was reduced in the entry by the purchaser to give it the colour of a genuine transaction. Moreover, the hasli as recovered was mutilated and a portion thereof from one end had been out off. The possibility that the portion so cut off was in fact more than 2 tolas, as brought out in the evidence, cannot be excluded; so that, if the portion cut off was more than 2 tolas, which alone had been taken into account for calculating the weight of the recovered hasli at 11 tolas 7 annas then the total weight would automatically increase. It is further significant that one of the witnesses of the entire proceeding relating to the information given by accused Murarilal and the consequent recovery and seizure of the hasli from the shop of P.W. 3 Murarilal Siharey, is P.W 8 Hanuman Prasad, who is not only a cousin of the accused Murarilal but also the village sarpanch.

We have considered this aspect only to indicate the possibilities to explain the variation in the weight of the hasli, on which stress has been laid by Shri Rajendra Singh, even though, as already stated, this matter is not of any consequence in view of the admitted position before us.

It is also contended by Shri Rajendra Singh that there being no food found in the stomach of the deceased during the post mortem examination, she must have been killed more than four or five hours after she left home, having taken her food immediately before that. On this basis, he contends that the version of P.W. 2 Rajkumar Siharey and P.W. 3 Murarilal Siharey that the hasli was sold to them on 28-1-1971 in the evening is proved false. In view of the circumstances present, Shri Rajendra Singh does not dispute that the robbery and the murder were a part of the same transaction and by the same persons, but he urges that the accused being mere receivers of the property, they must have obtained the same only alter the robbery and murder had been committed. Consequently, his argument is that the accused persons could not have obtained these ornaments on the evening of 28-1-1971 itself. His suggestion is that the deceased was waylaid by some persons, other than the accused and those persons robbed and murdered her and then disposed of the dead body in the manner aforesaid and thereafter the ornaments reached the hands of the accused persons.

According to P.W. 11 Mst. Sudamabai, the deceased Mst. Laltibai, after taking bath in the morning that day and having her meals, fed the children and then left the house to get pan since the same was not available at home P.W. 5 Urmila states that when she was returning home after her bath from the river at about 11 or 12 in the day, she met the deceased near the accused Murarilal''s house. According to P.W. 12 Chaturbhuj, he also met the deceased near the house of accused Murarilal at about 11 A.M. that day when he was returning from the river after taking bath. From these statements it is found that the deceased was seen near the house of accused Murarilal at about 11 or 11.30 A.M. and she must have taken her food at least an hour before that, i.e., at about 10.30 A.M. Even accepting Shri Rajendra Singh''s argument that the food taken by her would require four to five hours to digest, the same would have been digested by about 2.30 or or 3.30 P.M. on that day. Thus, there is no in consistency between this position and the statement of P.W. 2 Rajkumar Siharey and P.W. 3 Murarilal Siharay, who stated that the hasli (Art. 1) was sold in their shop by accused Murarilal the same evening. Moreover, we find from the post mortem report (Ex. P-22) that semi-solid food was present in the small intestine even though the stomach was shown to have been empty. This itself indicates that Mst. Laltibai must have been killed the same day, i.e., on 28-1-1971, within a few hours of her leaving home. Further, it not being known as to what was the food actually taken by the deceased that morning, these data cannot furnish any safe guide for determining the time of her death with such precision as Shri Rajendra Singh suggests. An ordinary meal of rice and pulses which is normally taken in that area by the class of people the deceased belonged to is admittedly digested within much shorter time. The post mortem report (Ex. P-22) as proved by P.W. 15 Dr. D.L. Ayyar also shows that the death took place sometime between 7 and 10 days of the post mortem examination which was performed on 6-2-1971. All this evidence read as a whole leads us to the conclusion that Mst. Laltibai died within a few hours of her leaving home on the forenoon of 28-1-1971.

We are therefore of opinion that it has been further proved that the hash (Art. 1) was sold by the accused Murarilal in the shop of P.W. 3 Murarilal Siharey on the evening of 28-1-1971, as alleged by the prosecution.

The recovery of currency notes totalling a sum of Rs. 1,485 at the instance of accused Murarilal and their seizure as per memo Ex. P. 19 has also not been disputed. What has been contended is that this amount does not in any manner incriminate the accused Murarilal inasmuch as there is nothing to identify these currency notes as those given as the price of the hasli (Art. 1). The proof of this further fact is not necessary because it only has the effect of proving the sale, which, as already stated, is not disputed. However, the fact that the accused Murarilal had concealed a sum of Rs. 1,485 in the embankment of a field belonging to another person is significant to show that the accused was keen to conceal the fact that he was in possession of this much of money at that time. By itself the circumstance may not be very material, but coupled with the other circumstances of the case, it may assume importance. No further importance is, therefore, attached to this fact.

In view of the manner in which the dead body was disposed of, it is obvious that the deceased was not way laid as suggested by Shri Rajendra Singh but was in fact killed within a house where it was conveniently possible to keep the dead body in a gunny bag, fill it with bricks, sew it and then hide it there till it could be conveniently taken to and dropped in the well from where it was ultimately recovered. This also suggests that this work could not have been done by only one person, and more than one person must have been responsible for the robbery and her murder. It is also obvious, and for this reason not disputed by Shri Rajendra Singh as already stated, that the robbery and murder were committed by the same persons.

So far as the discoveries made as a result of the information furnished by accused Darbarilal are concerned, they have not been disputed before us. As in the case of accused Murarilal, so also in the case of accused Darbarilal, no explanation has been given for the possession of these articles. It is not the case of Darbarilal that he was given the three ornaments, namely, gold mohar (Art. 8), silver todar (Art. 9) and gold nose ring (Art. 10), by either accused Murarilal or any other person.

It has been argued before us that the deceased could have gone to any other panwala and not necessarily to the accused Murarilal to get pan. In this connection it is pertinent that P.W. 11 Mst. Sudamabai had expressly stated in para 1 of her statement that the deceased always purchased pan from accused Murarilal only, and yet there was no cross examination on this point. It must, therefore, be held proved that the deceased always used to purchase pan from accused Murarilal Chaurasia only.

The only other circumstance brought out in the prosecution evidence which has been disputed before us is the alleged statement made by accused Murarilal on the night of 28-1-1971 to P.W. 6 Dwarka Prasad and his elder brother Badri Prasad that the deceased would not now return, indicating thereby, that he was aware of her death. We accept the argument of Shri Rajendra Singh in this connection, since we find that the material present on the record is not sufficient to accept this allegation as fully proved, even though it has been deposed to by some of the witnesses. We would therefore not take into consideration this alleged circumstance against the accused Murarilal.

As a result of the discussion aforesaid we are of opinion that the following facts and circumstances are fully proved, namely :--

(1) The deceased Laltibai was an old woman, aged about 65 years, who had become lame as a result of a paralytic attack on account of which she was unable to walk a long distance ;

(2) On 28-1-1971, at about 11 or 11.30 A. M., the deceased, having left her house sometime before that, was seen standing near the house of accused Murarilal Chaurasia and that was the last time she was seen alive ;

(3) When the deceased left home, she was wearing ornaments, namely gold hasli (Art. 1) gold mohar (Art. 2) silver todar (Art. 9) and gold nose-ring (Art. 10), which she was also wearing when last seen alive ;

(4) The deceased was fond of chewing pan which she always bought from accused Murarilal Chaurasia, whose house is quite close to that of the deceased ;

(5) The deceased had left home to get pan, having taken her meals some time earlier and no pan being available at home;

(6) Accused Darbarilal was a servant of accused Murarilal at that time and was present in the latter''s house ;

(7) On the evening of 28-1-1971, accused Murarilal sold the hasli (Art. 1) which the deceased was seen wearing earlier the same day when she was last seen alive, in the shop of P.W. 3 Murarilal Siharey at Mandla, a distance of about 9 kilometers from the village ;

(8) A sum of Rs. 1,485 was concealed by accused Murarilal in the embankment of a field belonging to another person near about that time ;

(9) Accused Darbarilal was in possession of the gold mohar (Art, 8), the silver todar (Art. 9) and the gold nose ring (Art. 10), worn by the deceased when last seen alive and had concealed them in the embankment of a field from which place they were recovered on 5-2-1971;

(10) The dead body of Laltibai was found in a well on the outskirts of the village, sewn in a gunny bag which was also filled with some bricks so as to keep it under water ;

(11) The deceased Laltibai was killed within a few hours of her leaving home on 28-1-1971 itself, which must have been during the day time ;

(12) A half chewn pan was found in the mouth of the deceased, indicating that she had taken pan very soon before she was killed ;

(13) Since the killing was done during day time and inside a house in the village, that house must have been one inside which she voluntarily went and took pan; and

(14) No explanation has been offered by either of the two accused for their possession of the aforesaid ornaments, belonging to the deceased and worn by her when last seen alive, and also for their immediate disposal or concealment as already indicated.

The question now is whether the only presumption arising from these circumstances is that the two accused were mere receivers of stolen property, as argued by Shri Rajendra Singh, or whether they are liable for the offences alleged against them by the prosecution.

Obviously, which presumption arises in a particular case is ultimately a question of fact depending on the facts and circumstances found. However, the principles to be applied in drawing the presumption have been laid down by their Lordships of the Supreme Court in Shivappa and Others Vs. The State of Mysore, , as follows:--

........If there is other evidence to connect an accused with the crime itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime the presumption may be drawn. In what circumstances the one presumption or the other may be drawn, it is not necessary to state categorically in this case. It all depends upon the circumstances under which the discovery of the fruits of crime are made with a particular accused It has been stated on more than one occasion that if the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. The reason is obvious Disposal of the fruits of crime requires the finding of a person ready to receive them and the shortness of time, the nature of property which is disposed of, that is to say, its quantity and character, determine whether the person who had the goods in his possession received them from another or was himself the thief or the dacoit. In some cases there may be other elements which may point to the way as to how the presumption may be drawn. They need not be stated here as they differ from case to case...............................................................It is impossible to think that within the short time available these goods could have been easily disposed of to receivers of stolen property or could be placed in the custody of friends till such time as the original offenders could take them away. The time gap in some cases is as short as two days and in some others it is not more than five days................... (Para 5 at pp. 197-98).

Thus, it is obvious that where the only circumstance proved against the accused is the possession of stolen property and the time gap is sufficient to suggest the possibility of the property having been disposed of to receivers, then the only presumption would be that the accused are mere receivers of stolen property. However, if in addition to the finding of stolen property there is other evidence, howsoever small, to connect an accused with the crime itself, then there is no question of presumption alone, since this evidence strengthens the other evidence already against him.

We have already enumerated the several circumstances which appear against the two accused persons and the case against them does not depend merely on their being found in possession of the stolen property soon after the robbery and murder. Applying the aforesaid principles, we have no doubt that the two accused persons are not mere receivers of stolen property but were in fact the robbers themselves as also the murderers and they alone had concealed the dead body in the manner already stated so as to cause disappearance of the evidence of the offence. In cur opinion, both the accused persons, Murarilal and Darbarilal, are guilty of the offence of murder u/s 302 read with section 34 of the Indian Penal Code and of robbery u/s 392 of the Code instead of section 394 as originally charged and also of the offence of causing disappearance of the evidence regarding commission of the offence of murder u/s 201 of the Code. As for the sentence, in our opinion, rigorous imprisonment for life to each of them for the offence u/s 302 read with section 34, I.P.C., would be sufficient to meet the ends of justice. In addition, we sentence each of them to rigorous imprisonment for seven years and fine of Rs. 1,000, in default, further rigorous imprisonment for one year for the offence under each of the sections 392 & 201. I.P.C. The sentences for all the three offences in respect of both the accused are, however, ordered to run concurrently. Their conviction and sentence u/s 411, I.P.C., are set aside.

As regards disposal of property, we agree with the direction given by the trial Court in that behalf and order that the same be disposed of accordingly.

Consequently, both the appeals--Criminal Appeal No. 668 of 1971 filed by the State and Criminal Appeal No. 489 of 1971 filed by the accused Murarilal and Darbarilal are allowed with the result stated above.