CHANDAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals arise out of the conviction of these two appellants along with one another under Section 302 read with Section 34 and sentenced to imprisonment for life and fine of Rs. 100/- each in Sessions Case No. 39/75 by Sessions Judge, Jhunjhnu dated 29th January 1977. Along with these two appellants Chandan and Om Prakash one Babulal son of Onkar Mal was also convicted but we have no appeal before us on behalf of Babulal.

(2.) The prosecution case was that Smt. Dhaka widow of Shri Hanuman Prasad and mother of Shri Gyarsi Lal was living all alone in her house (Haveli) at Ward No. 1, Khetadi. In the morning of 23rd August, 1975 a person engaged for grazing the goats in jungle went to Smt. Dhaka's house for taking her goats for grazing and called Smt. Dhaka but he did not get any response. P.W. 2 Smt. Banarsi who was living in the vicinity came on the spot and along with the Goatman went inside the Haveli. They found goods scattered here and there and even when they loudly called Smt. Dhaka they did not hear any reply. P.W. 1 Matadeen who was feeding pigeons nearby was informed by Smt. Banarsi that Smt. Dhaka normally used to getup early but it appears that she had not woken up by that time and therefore expressed surprise. On this Matadeen went inside the house, reached the upper floor and found all the rooms opened and plenty of goods of Smt. Dhaka lying scattered. There he saw Smt. Dhaka lying on a cot and found that she was wounded and bleeding at number of places. Shri Matadeen, then went to the Police Station, Khetadi and submitted his report Ex. P. 1 The Station House Officer Surindra Singh reached the spot, prepared a memo and carried out the investigation. On 3rd September, 1975 one Mamchand was arrested as an accused. Another accused Babulal was arrested on 5th September and the acquitted accused Laxmikant was arrested on 7th September and the two appellants in this appeal Om Prakash and Chandan were arrested on 11th September, 1975. Mamchand later was granted pardon and has been examined as an approver in this case. On trial the learned Sessions Judge convicted all the accused persons and on appeal the High Court acquitted the accused Laxmikant but maintained the conviction against the three and aggrieved by the judgment of the High Court the present appeal on special leave has been filed before us by the two appellants mentioned above.

(3.) It is not in dispute that there is no direct evidence in this case. The only evidence ,is the evidence of the approver Mam Chand and other evidence regarding recovery of articles. Learned counsel for the appellant contended that certain articles were recovered at the instance of Om Prakash and were put up for test identification and according to the evidence of the test identification these articles that were put up for identification, four witnesses were supposed to identify. Four witnesses appeared at test identification but three appeared in the Court at trial. Out of these four witnesses, the first witness did not identify any article. The two witnesses Rameshwar and Phool Chand, P.Ws. 13 and 14 did identify some articles. Their evidence after consideration has been rejected by the trial court and the other witness who identified the articles was Gharsi Lal who happens to be the son of deceased, for the reasons best known has not been examined at the trial at all and it was therefore contended by the learned counsel that so far as the recovery and identification of articles are concerned no article recovered has been identified to be that of the deceased and therefore this evidence of recovery in absence of identification is not at all relevant for the prosecution. He therefore contended that as it is settled law that accomplice's evidence if it inspires confidence could be used to convict the accused person only if there is independent corroboration which could connect the accused with the crime and it was contended that this evidence of recovery and identification was supposed to be the evidence connecting the accused with the crime and corroborating the testimony of the approver, but the learned Judges of the High Court did not consider this aspect of the matter that the two witnesses who had identified some articles their testimony has been discarded by the trial court and the High Court has not come to the conclusion that the trial court was not right in rejecting their testimony but superficially held that the evidence of identification is sufficient to corroborate the testimony of the approver. It was also contended that even the reading of the testimony of the approver shows that he has tried to keep himself away and the manner in which he has described the whole incident and the way in which he was taken into confidence by the other accused persons made his testimony unnatural and therefore could not be accepted. Learned counsel also placed reliance on certain decisions of this Court where the rule of prudence about the testimony of the accomplice has been repeatedly stated.