1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan Vs. Ram Singh & others (1) D.B.CRIMINAL APPEAL NO.6/1984 Padma Ram Vs. State of Rajasthan (2) D.B.CRIMINAL APPEAL NO.260/1983 against the judgment dt.19.7.83 passed by the learned Sessions Judge, Jalore, in Sessions Case No.32/1982. Date of Judgment: 16th April, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.K.R.Bishnoi, Public Prosecutor. Mr.Digvijay Singh for Mr.Doongar Singh, for accused persons. BY THE COURT : (PER HON'BLE THANVI J.) 1. These are the two appeals, one filed by the State against acquittal of the accused respondents of the offences, charged and the other by accused Padma Ram against his conviction of the offence u/s.411 IPC, recorded by the learned Sessions Judge, Jalore vide his judgment dt.19.7.83, whereby he acquitted accused 2 Ram Singh, Saleem and Padma Ram of the offences u/ss.302, 392 and 460 IPC but convicted accused Padma Ram of the offence u/s.411 IPC and sentenced him to undergo three years' R.I. alongwith a fine of Rs.1000/- & in default, to further undergo six months' R.I. 2. Since both these appeals are arising out of the same incident & judgment, they are being decided together by this common judgment. 3. The facts leading to these appeals are that one Ramesh Kumar filed a report at the Police Station, Jalore on 1.2.82 that his grand father (maternal) Chunnilal did not return to his house even after attending the function of Jain Boarding House. He enquired about it and called his grand father (maternal) for opening the door. He peeped into the window and noticed that the inside room was open but no voice came. He also noticed the lock of the room, lying on the floor. He also saw the cot covered with `Rajai' and `Kambal', which was badly smelling. He suspected that his grand father (maternal) has been murdered. He also informed his maternal uncle Sumermal. They all went to 3 the Police Station and lodged the F.I.R. The police registered a case for the offences u/ss.302, 392, 460 & 411 IPC. After investigation, the police filed the challan against the accused persons on the basis of recovery of ornaments and one chance print of accused Saleem on the hair oil bottle. All the three accused were charged u/ss.302, 392 and 460 IPC to which they pleaded no guilty. The prosecution examined 22 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence. After hearing the arguments, the learned Sessions Judge convicted and sentenced the accused persons as aforesaid. 4. While assailing the judgment of the learned trial Judge for acquitting accused persons, it has been contended by the learned Public Prosecutor that though there was no direct evidence to connect the accused with the commission of crime but the recovery of ornaments from accused Padma Ram and the chance print of accused Saleem on the recovered hair oil bottle and also the fact of accused being remained absconded for a considerable time, were sufficient grounds to convict them. The recovery of ornaments was made from the suitcase, which was purchased from the 4 market and the key of the same was handed over by accused Ram Singh to the police and on opening the same, it was found that all the ornaments were belonging to the deceased Chunnilal. 5. Per contra, learned counsel for the accused persons has submitted that the incident took place at Jalore and the accused were arrested after two months in the market of Sarupganj, which is in Sirohi District and on the basis of mere recovery of ornaments of deceased Chunnilal and purchase of suitcase vis a vis chance print of accused Saleem on hair oil bottle, cannot be said to be sufficient grounds to convict the accused persons in a heinous crime of murder and dacoity. According to the learned counsel for the accused persons, when the case is based on circumstantial evidence, the prosecution should establish each & every circumstance so as to form a complete chain pointing towards the guilt of the accused. Merely on the basis of hypothetical considerations, the conviction cannot be recorded against the accused. He has, therefore, submitted for affirming the judgment of the learned Sessions Judge with regard to acquittal of the accused persons of the 5 offences u/ss.302, 392 and 460 IPC and also submitted to set aside the judgment of conviction recorded u/s.411 IPC against the accused Padma Ram. 6. We have re-appreciated the evidence brought on record and gone through the judgment of the learned Sessions Judge. While discussing the evidence, the learned Sessions Judge has rightly observed that the report of the F.S.L., Ex.P.37, of course finds favour with the prosecution story that the chance prints on it, were similar to that of accused Saleem on hair oil bottle, `Article 1' but the accused Saleem cannot be implicated on the basis of this similarity because such type of hair oil bottles are available in the market, especially when the half of the bottle was empty. The time gap in recovery of the ornaments of deceased Chunnilal and taking of chance prints, is of such a considerable delay, which creates a doubt as to whether the chance prints were of the accused Saleem. In this case, the bottle was recovered on 1.2.82 and chance prints were taken on 2.6.82 vide Ex.P.6 to Ex.P.11 and finger prints were taken on 23.4.82 vide Ex.P.12 and Ex.P.13 and accused Saleem was arrested on 4.4.82. This long interval, in itself, creates doubt with regard to evidentiary value of 6 chance prints. Therefore, the learned trial Judge has rightly acquitted the accused so far as the chance finger prints of accused Saleem are concerned. 7. As far as accused Ram Singh and Padma Ram are concerned, they were arrested on 23.3.82 i.e. about two months after the incident and recovery has been made vide Ex.P.15 on the same day about suitcase, household articles, clothes and ornaments. The suitcase was said to have been purchased from the shop of Sumermal, PW 16. The prosecution has also come out with a case that the suitcase was purchased by accused Padma Ram from Dudagiri (PW 15) and Ram Singh handed over the key. On the basis of this evidence, the learned trial Court has rightly believed that the accused Ram Singh was having no knowledge as to for what purpose, this suitcase will be used. The only inference which the learned trial Court has drawn about these ornaments and the suitcase is that the accused Padma Ram kept the same at the house of her sister Gazi Bai. The arrest of the accused after considerable time and no link of accused Saleem with the chance print on the hair oil bottle and also the recovery of ornaments of accused Ram Singh, leads to the only conclusion that 7 they cannot be connected with the murder of deceased Chunnilal. Since the articles as held by the learned trial Court were belonging to the deceased and they have been recovered from the possession of accused Padma Ram on the basis of the information furnished by him u/s.27 of the Evidence Act, the trial Court has rightly held the accused Padma Ram guilty under Sec.411 IPC, while acquitting him of the other offences. In view of this, the appeal against acquittal filed by the State deserves to be dismissed. So far as the appeal filed by accused Padma Ram is concerned, there is substance in the contention of the learned counsel for the accused that the accused has already remained in custody during trial and pendency of this appeal for a period of about one and half years, therefore, he should be sentenced to the period already undergone. 8. Consequently, the appeal filed by the State against the acquittal of three accused appellants of the offences u/ss.302, 392 & 460 IPC is dismissed. The appeal filed by accused Padma Ram is partly allowed and while confirming his conviction of the offence u/s.411 IPC recorded by the learned Sessions Judge, Jalore vide his judgment dt.19.7.83, he is sentenced to the period 8 already undergone. However, the sentence of fine is maintained and in default of payment of fine, he will undergo six months' R.I. as awarded by the trial Court. One month's time is granted to accused Padma Ram to deposit the amount of fine. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS