DHARMA Vs. STATE

JUDGEMENT

(1.) THESE are two connected appeals arising out of the judgment of the Additional Sessions Judge, Sirohi, dated the 16th April, 1963, by which the accused Dharma has been convicted under Sections 201 and 411 I. P. C. and sentenced to four years' and one year's rigorous imprisonment respectively. Another accused Hansia has been convicted under Section 411 I. P. C. and sentenced to three years' rigorous imprisonment. Both these accused were acquitted of the charge under Section 302 I. P. C. and the third accused Mst. Khasi was acquitted altogether. Appeal No. 349 of 1963 has been filed by Dharma from jail against his conviction and sentence. Appeal No. 575 of 1963 has been filed by the State, and the prayer is that all the three accused should have been convicted under Section 302 I. P. C. We propose to dispose of both these appeals by a single judgment.

(2.) ALL the three accused were charged with the murder of one Mst. Hanja under Section 302 I. P. C. and also under Section 411 I. P. C. for having received certain stolen property which was in the deceased's possession. Mst. Hanja, mother of Amrit Lal P. W. 13 and daughter of Uma Shanker P. W. 16 was a widow. She lived in the house of her father Uma Shanker in village Bamnera. Uma Shanker himself resided in village Pipla near Nagpur at the relevant time. Mst. Hanja became a widow some eighteen years ago before she was murdered. Both mother and son used to live in their ancestral house for about fourteen years but they started living in the house of Uma Shanker some five years ago. No one else used to live in that house. Four rooms in this house were in the possession of Mst. Hanja, and the fifth was retained by Uma Shanker in his own possession and locked by him. Certain ornaments and cash of Uma Shanker were kept in this room, so also the ornaments inherited by Amrit Lal from his father. All these ornaments lay buried in a pit in an Ala or cupboard in one of the walls of the room. On the night between the 8th and 9th May, 1962, Amrit Lal slept in his ancestral house while Mst. Hanja slept in the other house, that is, the one belonging to her father Uma Shanker. The two houses are situated at a distance of about one furlong from each other. On the morning of the 9th May, 1962, when Amrit Lal went to his Nana's house, he found that his mother was not there. He waited for her for some time and then searched for her but without any avail. He then seems to have informed his mother's sister's husband Durga Shanker P. W. to come and see what had happened. Another relation of Amrit Lal namely Chunnilal P. W. who had gone to his Susral at village Utman, was sent for. Chunnilal arrived on the morning of the 10th May. The woman could not be traced for all this time. It was found that the lock of the room which contained the ornaments had been broken open and it was lying on the floor, the 'patiara' (cupboard) had also been interfered with and several tins which contained the gold and silver ornaments were lying on the ground scattered and empty. It is alleged that the Gram Panchayat authorities were informed of this incident in the morning of the 10th May, 1962. The Sarpanch prepared the report Ex. P-21 in which it was stated that gold and silver ornaments and clothes and cash worth about nine thousand rupees had been stolen from Uma Shanker's house and that Mst. Hanja Bai widow of Uma Shanker and mother of Amrit Lal had also disappeared since the 9th May. Some details of the property stolen were also furnished; but it was mentioned that full particulars of the entire property could only be furnished on the arrival of Uma Shanker. The case for the prosecution is that the Panchayat authorities had forwarded the papers prepared by them to the Sub Inspector of Police Sumerpur; but the latter did not do anything for about two or three days. P. Ws. Amrit Lal and Durga Shanker and some other persons then approached the Sub Inspector, but the latter told them that they should make a search for Mst. Hanja and that the police were also doing the same. The Sub Inspector's version, however, is that the first report of this incident had been made to him only on the 17th May, 1962, by Amrit Lal. This is Ex. P-18. P. W. Uma Shanker father of the deceased seems to have arrived at Bamnera on Baisakh Sudi 15 corresponding to the 19th May, 1962; and the list of the stolen articles which were lying concealed in the Patiyara as given by him is Ex. P-19.

(3.) THE Sub Inspector reached the spot on the 17th May and started the investigation. The accused Dharma and Hansia were arrested on the night of the 17th. Mst. Khasi was arrested on the 19th May, 1962. After these accused had been arrested, the dead body of Mst. Hanja and certain ornaments were recovered at the instance of Dharma accused and as a result of certain information furnished by him. The dead body was recovered from a well tied in a bundle with the Ghaghra and the Orna of the deceased. The relevant exhibits are Exs. P-6, P-7, P-11 and P-12. Of these, Ex. P-6 is the list of five gold ornaments, some of which were in pairs, and which were recovered from the possession of the accused Mst. Khasi to whom they had been handed over by the accused Dharma. Ex. P-7 is the list of certain silver ornaments recovered from the possession of Teja brother of the accused Dharma. Ex. P-11 relates to the recovery of a pair of Murkies from one Heera who had stated that the same had been given to him by Dharma. Ex. P-12 relates to the recovery of a quantity of melted silver from the possession of Lalchand, which remained after a silver Kandora had been melted by him at the instance of Dharma and a silver Bedi had been prepared from a part of it. The recoveries made at the instance of the accused Hansia from his own house are contained in Ex. P-5 and Ex. P-13. An identification proceeding with respect to all these ornaments was held before the Tehsildar Magistrate at Bali on the 18th June 1962, vide Ex. P-17. At this proceeding, Uma Shanker correctly identified ornaments Ex. 12 a pair of gold Karas, Ex. 13 a gold Fansi, Ex. 15 a gold Soonk, Ex. 16 a gold Madaliya, Ex. 20 a pair of gold ear-rings, Ex. 22 a gold Mooth, studded with imitation stones, Ex. 23 a gold Bajar tiki also studded with a green and red imitation stone, Ex. 24 gold Modaliyas five, Exs. 26 to 33--a number of silver ornaments for wearing on legs, Ex. 35 a pair of silver Pazeb, Ex. 36, a pair of silver ear-drops, and Ex. 37, a pair of silver Totis or ear studs.