1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan Vs. Rahim Bux (1) D.B.CRIMINAL APPEAL NO.228/1985 Rahim Bux Vs. State of Rajasthan (2) D.B.CRIMINAL APPEAL NO.261/1983 against the judgment dt.22.7.83 passed by the learned Sessions Judge, Jalore, in Sessions Case No.33/1982. Date of Judgment: July 30, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.S.S.Sharma, Public Prosecutor. Mr.Doongar Singh, for accused Rahim Bux. BY THE COURT : (PER THANVI J.) 1. These are the two appeals, one filed by the State against the judgment of acquittal under sections 302, 392 and 201 IPC of accused respondent Rahim Bux and the other filed by the accused respondent himself against the judgment of his conviction under Sec.411 IPC arising out of the same judgment of the learned 2 Sessions Judge, Jalore dt.22.7.83, therefore, they are being disposed of by this common judgment. 2. Facts leading to these appeals are that one Kachru Khan, PW 1 filed a written report Ex.P.1 before the SHO, Police Station, Jalore in which he stated that his filed is situated at village Dhobiwala, Jalore on the road Bishangarh to Safada, wherein he has constructed a room and a `bada' for cattle. There is also a well in the said field. On the day of lodging the FIR i.e. 26.4.82, when the complainant reached in his field, he noticed one dead body in the well. After half an hour, Mangal Singh also came there. Both of them again confirmed the dead body in the well, which was wrapped in the cloth. Upon this report, the police registered a case and made an inquest under Section 174 CrPC. The police recovered the dead body from the well and seized two glass bangles, two keys tied with the thread on the waist and a tobacco case from the person of the dead body vide Ex.P.5. The post mortem of the dead body was conducted and the case of murder was registered. After completing the investigation, accused Rahim Bux was chargesheeted u/ss.302, 392 and 201 IPC on the basis of recovery. After committal of the case, the 3 learned trial Judge framed the charges against the accused to which he pleaded not guilty and claimed trial. The prosecution examined 25 witnesses and produced 33 documents. The statement of the accused was recorded u/s.313 CrPC. He led no defence. After hearing the arguments, the learned trial Judge acquitted accused respondent Rahim Bux u/ss.302, 392 and 201 IPC but convicted him u/s.411 IPC with three years' R.I. and a fine of Rs.200/- and in default, to further undergo one month's simple imprisonment. The State has preferred the appeal against the order of acquittal of accused u/ss.302, 392 & 201 IPC and accused Rahim Bux has preferred the appeal against his conviction u/s.411 IPC. 3. We have heard learned Public Prosecutor as well as learned counsel for the accused Rahim Bux. So far as the death of deceased Bhikhi, who was mother of Mangu Khan, PW 5, is concerned, it has rightly been held by the learned trial Judge that the death was homicidal in view of the statement of Dr.Rajendra Prasad Purohit,PW 24 and the post mortem report Ex.P.31, wherein thought the doctor has opined that the dead body was decomposed and exact cause of death cannot be given 4 but from the recovery memo of the dead body according to which the dead body was wrapped in a cloth and two legs were cut off, the only inference which can be drawn is that it was a homicidal death. Whether the accused was involved in causing death of deceased Bhikhi or not, the learned trial Judge has elaborately discussed the evidence and has come to the conclusion that on the basis of recovery, it cannot be said that the accused Rahim Bux is guilty of the offence u/ss.302, 392 and 201 IPC. The recovery is of certain silver ornaments which are Ex. Articles 7 to 11, recovered in pursuance to the information furnished by the accused u/s.27 of the Evidence Act vide Ex.P.24 in which he has stated that after killing Bhikhi, he had taken away ornaments and hidden it in the bada of his house underneath the grass of Bajri. Out of these ornaments, Articles `9' and `10' were prepared by Mithalal, PW 14 and they were identified during identificationi parade by Mangu Khan, PW 5 which was conducted by Sh.Mangilal, Judicial Magistrate, Jalore, PW 20.z 4. So far as other evidence is concerned, the learned trial Court has disbelieved the evidence of Dalpat Khan, PW 17, who has stated that he saw accused Rahim Bux 5 and Bhikhi at the `Dargah' of Gaiban Shah. The reason for disbelieving the evidence of Dalpat Khan, PW 17 is that when he heard about the death of Smt. Bhikhi, he did not inform at the village of Bhikhi that he saw Bhikhi with accused Rahim Bux. Another witness of last seen is Imam Khan, PW 15, who has simply said that he saw Smt.Bhikhi and accused Rahim Bux at the `Dargah' of Gaiban Shah but he has not stated as to whether they were together. Next evidence against the accused is about recovery of stone, recovered from the well of Kachru Khan, PW 1 in the presence of Magna Ram, PW 9 on the basis of information Ex.P.26 but there is no report of chemical examination about the stone as to whether it was used for killing Smt.Bhikhi. 5. Next recovery is of weapon called `Bugda', which is used for cutting meat on the basis of information furnished u/s.27 of the Evidence Act by the accused but there was no corroborative evidence to this effect except that of the investigating officer and further, the blood was also not found on the recovered article. Likewise, the blood on the soil and bed was also not found in the report Ex.P.33. That apart, this bed was of Chimna, PW 16 as alleged by the prosecution but this 6 witness has denied the same. When the recovery of stone and `Bugda' used for cutting meat are disbelieved alongwith the evidence of last seen, then simply on the basis of recovery of ornaments as discussed above, it is unsafe to base the conviction u/s.302, 392 & 201 IPC. 6. In a murder case, when the prosecution case lacs on direct evidence and is purely based on circumstantial evidence of recovery, then it is very unsafe to convict the accused u/s.302 IPC. The recovery is ofcourse one of the factors on the basis of which one can be held guilty of murder but that recovery must be coupled with the other circumstantial evidence like the evidence of last seen, extra judicial confession, similarity of blood ground on the articles recovered, previous enmity or any other such strong motive whereupon the court can safely draw the inference about the formation of complete chain of circumstantial evidence which leads to the only conclusion that it is the accused, who is guilty of offence of murder. Learned trial Court has rightly held that all these factors are lacking in the present case, except the fact of recovery of ornaments from the accused, which were belonging to the deceased Smt.Bhikhi and proved by the prosecution. 7 This recovery is sufficient so far as conviction of the accused u/s.411 IPC is concerned. On the basis of this recovery, the learned trial Court has rightly acquitted the accused Rahim Bux of the offences u/ss.302, 392 and 201 IPC and convicted him u/s.411 IPC. We are, therefore, unable to interfere in the findings arrived at by the learned trial Judge. 7. So far as the offence u/s.411 IPC is concerned, the learned trial Court has sentenced the accused with three years' R.I. alongwith a fine of Rs.200/-. Learned counsel for the accused respondent submits that during trial, the accused has already remained in custody for about 16 months and the incident is 26 years old and now, he has attained the age of 60 years, therefore, he should be sentenced to the period already undergone. 8. Looking to the age and the lapse of long period after the incident, we deem it proper that ends of justice would be met, if the accused is sentenced to the period already undergone i.e. more than 15 months by enhancing the amount of fine. 8 9. Accordingly, the State Appeal against acquittal of accused Rahim Bux for the offences u/ss.302, 392 and 201 IPC vide judgment of the learned Sessions Judge, Jalore dt.22.7.83, is dismissed and the appeal filed by accused Rahim Bux is partly allowed. While maintaining his conviction u/s.411 IPC, he is sentenced to the period already undergone, instead of 3 years' R.I. by enhancing the amount of fine of Rs.200/- to Rs.2000/- and in default, to further undergo three months' S.I. Accused Rahim Bux is on bail. He shall deposit the amount of fine of Rs.2000/- within a period of 30 days from today, else he will serve out the sentence awarded in default of payment of fine by issuing warrant by the learned trial Court. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS