STATE OF RAJASTHAN Vs. PRABHU

JUDGEMENT

(1.) MST. Ghisi, a resident of village Pipalwara, Tehsil Boli, District Sawai Madhopur, was the widow of Laxmi Narain. Her husband died more than 30 years ago. MST. Ghisi had no issue. On Laxmi Narain's death Ram Sahai had been adopted by her. He too died after sometime. Later on, Shiv Dayal P. W. 1 had been adopted by her about 20 years back. Ghisi engaged herself in money lending business. She also earned a part of her livelihood by spinning. For some time she had lived jointly with her son Shiv Dayal. Thereafter her relations with her adopted son's wife got strained. She, therefore, started living separately. MST. Ghisi used to put on gold earrings (auganias), Arts. 12 and 22, in her ears and gold 'tant' around her neck. She also possessed silver ornaments like 'bajji' 'aanvales' 'bangris', Malhatis', 'karas', 'kanthis', 'pholris' etc. The latter ornaments she used to wear on marital or festival occasions. She put in safety the silver ornaments in a pit near her 'kotha'. 200 old silver coins she kept concealed in a pit near the threshold or entrance of her house. It is alleged by the prosecution that the accused Prabhu Nath used to approach MST. Ghisi to beg flour' Prior to 'dipawali' before her death MST. Ghisi had been taken ill. She had been sent to Isharda Hospital for treatment. She returned therefrom to her home after some days and underwent sorcerers treatment at the hands of the accused Prabhu. She had owned some agricultural land, which she had allotted to Sukhdeo for cultivation and grazing cattle. During the night of March 19 and 20, 1965, she was murdered in her house. Next day morning her adopted son Shiv Dayal, P. W. 1, went to her house. He found the front door of her house closed and bolted. After opening the door, he entered the house and therein he saw his mother lying dead. Her neck was found fastened with a string. Her ears' lobes and tragi were found ruptured and the eatings removed The gold 'tant' around her neck was also missing. The two pits in her house were seen to have been dug out and their contents removed. First information report of the occurrence was lodged by Shiv Dayal with the police station, Boli, on March 20, 1966, at 3 p. m. On receipt of the report the police registered a case and went into action. In the course of investigation Prabhu was arrested on March 25, 1966 and so was Sukhdeo on March 25, 1966 Prabhu gave in format on to the police after his apprehension that he had hidden certain ornaments of MST. Ghisi in his 'guwar'. This information was reduced to writing and is marked Ex. P. 11. Thereafter the accused got 9 items of ornaments recovered under memo Ex. P. 6 dated March 25 1966. The accused Sukhdeo also supplied information to the police on March 25, 1966, that he had concealed certain ornaments of MST. Ghisi in his house. It was recorded by the Station House Officer, Bahadur Singh, in memo Ex. P. 12. Later on, the accused Sukhdeo led the police to his house and got recovered 8 items of ornaments, The recovery memo is Ex. P. 5 dated March 25, 1966. All these ornaments were sealed by the police on the spots. They were subsequently identified before Shri P. M. Dutta, Tehsildar-cum-Second Magistrate, Bali; by Shiv Dayal, P. W. 1, Shri Narayan, P. W. 2, and Gange Sahay, P. W. 7. 'auganias' were also identified by goldsmith Bajranglal, P. W. 8 and 'anvalas' by Goldsmith Gordhan, P. W. 9 Ida Fakir had pledged the silver 'karas' (Arts. 16 and 17) of his wife with MST. Ghisi and he identified them before the Magistrate. The identification memo in respect of the property recovered at the instance of Prabhu is marked Ex. P. 15 and the one in regard to the property recovered at the instance of Sukhdeo is Ex. P. 16. Both these documents are dated April 13, 1966. Autopsy of the dead body of MST. Ghisi (aged about 60 years) was conducted by P. W. 12 Dr. Balvir Singh, Medical Officer, Govt. Hospital, Isharda, on March 21, 1966. The corpse was identified by Shri Narayan. The Doctor found both her ears' lobes ruptured. He also noticed her both ears' tragi torn apart. There was ligature mark around her neck. Below the thyroid, cartilage under lined issued was congested and ecchymosed. On internal examination the Doctor found larynx, traches congested with frothy blood. Her right lung was congested. Similar was the condition of her left lung. There was fracture of hyoid bone, Her face and lips were also found congested, and the eyes-protruding and so was tungus. Tissues under ligature mark and the brain membranes were congested. Her death, the Doctor opined, must have taken place within 24 to 51 hours before the time of the post-mortem examination and the cause of death was asphyxia due to strangulation. All the injuries were ante mortem. The injury of the neck could have been caused by a string. After necessary investigation, the police put up a challan in the court of the Munsiff Magistrate, Sawai Madhopur. The learned Magistrate conducted preliminary inquiry and committed the two accused Prabhu and Sukhdeo to the court of the Additional Sessions Judge No. 2, Gangapur City to face trial under secs. 302 and 380, I. P. C. On November 30, 1966, charges under said sections of the Indian Penal Code were read over and explained to the accused, to which they pleaded not guilty and claimed trial. In support of its case the prosecution examined 19 witnesses. In his statement recorded under sec. 342, Cr. P. C. the accused Prabhu displayed total ignorance of the prosecution case. He made it clear that he had never been to Ghisi's house, nor was he aware of the recovery of the ornaments on his information and at his instance. To the same effect was the statement made by the co-accused Sukhdeo. The accused did not produce any evidence in their defence. By his judgment, dated June 30, 1967, the learned Additional Sessions Judge No. 2, Gangapur City, acquitted Prabhu and Sukhdeo of the offence under sec. 302 I. P. C. He, however, convicted them under sec 380, I. P. C. and sentenced each of them to five years' rigorous imprisonment and to pay a fine of Rs 101 in default of payment of which to undergo further rigorous imprisonment for one year.

(2.) AGGRIEVED by the above judgment, the State has filed an appeal (D. B. Cr. Appeal No. 630 of 1967 ). Both Prabhu and Sukhdeo have also taken an appeal (D. B. Cr. Appeal No. 448 of 1967) against their conviction under sec. 380 I. P. C.

(3.) ILLUSTRATION (a) to sec. 114, Evidence Act, reads as follows - "that a man who is in possession of stolen goods soon after the theft is either the thief or received the goods knowing them to be stolen unless he can account for his possession. "