STATE OF RAJASTHAN Vs. MOOLA

JUDGEMENT

(1.) This is an appeal by the state against the judgment dated March 29, 1974 passed by the learned Sessions Judge, Pali in Sessions Case No. 29 of 1973, whereby the learned Session Judge acquitted the accused-respondent of the offences under section 302, 394 and 448 I.P.C.

(2.) The prosecution case as unfolded in the first information report (Ex. P/2) verbally lodged on 7.2.73 at 2 p. m. at the police station, Bagri by Mukanchand (P. W. 1) accompanied by Udai Chand Bhandari, Mohanlal Sethi, Kanhaiyalal Surana, is that Harji Daroga came in the market and informed that in front of the house of Laxmichand Mahajan situated in Bohren-Ka-Bas, of village Bagri some ladies are standing and the house is bolted from inside. Four or five persons can go there and see as to what is the matter. Thereupon, they went to the house of Laxmi Chand and found that the main gate of the house was bolted from inside and burning smell of bread was emanating inside. Laxmichands widow Mst. Sunder Bai aged about 70-75 years was living all alone in that house. Her sons Parasmal anc Kewalchand resided at Banglore. Sunder Bai was called 4-5 times, but there was no response. They suspected as to what happened to the old woman. Therefore, they lifted the Chulia of the shutters of the main entrance and entered into the house. They saw Sunderbai lying dead in the kitchen. The flour was found ready for cooking bread and one bread was found burnt. They also found one tied turban and one chadder Solapuri lying in the verandah of the kitchen. They saw the front apartment (Sal) opening in the chowk, opened and observed open boxes and belongings scattered. They also observed that the iron bars of right side apartment bent, they suspected that some thief has murdered Sunderbai and has committed theft and the turban and Chaddar must be of that thief. They found the other apartment also opened, but the apartment on the left side in the Pol was bolted from inside, they tired to open it but it could not be opened as it was bolted from inside. They suspected that the murderer and thief are inside that apartment of the pol. Harji Daroga, Kunia Khatik and other persons had assembled there. Harji came to report the matter after leaving others to keep a watch. On this report, case under Sec. 302, 380 and 449, IPC was registered by Shri Jalamsingh, S.H.O. (P. W. 19). P. W. 19 Jalamsingh immediately visited the spot and the apartment in which the accused was suspected guarded. He inspected the site. At the time of inspection, he found that left side of the room of the pol. was bolted from inside. Thereafter, a Halwani was sent for and bricks near to the frame of the door were got removed. Thereafter an attempt was made to open the door by putting Halwani into the Aagal and thereupon, the door opened. The accused Moola was found in the left side of the room behind the door sitting with the bundle. He was brought out along with the bundle. He prepared Surat Hal Lash (Ex. P/7) site-plan (Ex. P/4) and site-note (Ex. P. 3). The accused was arrested vide Ex. P/5 and personal search was taken. From his possession, the ornaments mentioned in Ex. P/5 were recovered, The turban and Chaddar were seized vide seizure memo Ex. P/6. Autopsy on the dead-body was conducted. Identification proceedings of some of the ornaments recovered, were also got conducted. After completion of the investigation, chargesheet was presented against the accused person in the court of Munsif Magistrate, Sojat, who committed the accused for trial to the court of Sessions. The accused was charged for offences under section 302, 394 and 448, Penal Code to which he pleaded not guilty and claimed to be tried. The prosecution examined P. W. 1 Muken Chand (first informant and Motbir), P. W. 2 Harji, P.W. 3 Kunaram, P.W. 4 Mst. Jadav, P.W. 5 Mst. Soni, P.W, 6 Chhogalal (owner of the ornaments), P.W. 7 Basta, P.W. 8 Thaniya, P.W. 9 Sugna, P.W. 10 Smt. Banu, PW. 11 Smt. Fattubai, P.W. 12 Smt. Khatun, P.W. 14 Cholaram and P.W. 16 Mohammad Hanif, who had fledged their ornaments with Mst. Sunderbai, P.W. 13 Rahimbux, P.W. 15 Maulabux, P.W. 17 Dr. Bhanwarlal Trivedi, P.W. 18 Bhanwarlal, Chairman, Panchayat Samiti, Bada Guda, and P.W. 19 Jalam-Singh, S.H.O. The statement of the accused was recorded, in which he denied prosecution case. No evidence was led in defence. The learned Sessions Judge also visited the spot and prepared the site note. After hearing the learned Public Prosecutor and the learned Amicus Curiae, the learned Sessions Judge recorded an order of acquittal of the accused. The learned Sessions Judge found that there is discrepancy in the time of visiting the spot by the police and lodging of the first information report. But on that ground, he has stated that it would not be proper to reject the prosecution story. He found that Mst. Sunder Bai on account of strangulation and met a homicidal death. While considering the question as to who has done it, the learned Sessions Judge found that when the police reached the spot, the accused was found inside the house of Smt. Sunderbai. But when he considered as to when an how he entered into the house, he observed that the accused must have entered into the house through the main entrance, as there was no way for coming inside the house except the main entrance. There was a net inside the chowk and the door of the stair case was bolted. But he raised a question as to why any one-else other than the accused could not have entered into the house, then he proceeded to consider the question of the time of death of Smt. Sunderbai. He expressed that the post-mortem of the dead-body was conducted on 8.9.73 at 10.30 a.m. and according to the doctor, the deceased died within 24 hours, so it is possible that Smt. Sunderbai might have died at 10.00 a.m. on 7.9.73. If the death has occurred at about 10 a.m. then the learned Sessions Junge observed that the commission of theft may take 5-10 minutes and then why the accused could not came out of the house. P.W. 4 Mst. Jadav had come to fetch the key of thank at about 12 noon. It appears to be against the human conduct that the accused would have remained inside the house after commission of murder and theft only for being apprehended. There is nothing in the prosecution evidence as to whether between 10 and 12, the main entrance of the house of Smt. Sunderbai was open or not. It is also not known as to whether there was any one else inside the house of Sunderbai besides the murderer. There is no evidence on record as to when Smt. Sunder Bai was last seen alive. The presence of fire in the oven and burnt bread is not sufficient to establish as upto what time Smt. Sunderbai was alive. For these reasons the learned Sessions Judge observed that this possibility can not be ruled out that some one might have murdered Sunderbai before the entry of the accused in that house. It was also found that there does not appear to be any motive of the accused and the prosecution has failed to prove as to whether the turban and chaddar belonged to the accused and no evidence was led in this regard. The learned Session Judge also did not find the accused guilty of the offences r under Sec. 304 and 448, IPC. In connection with the offence under Sec. 448, IPC., the learned Sessions Judge observed that if Sunderbai had already died and thereafter, he entered than there was no question of any intimidation, annoyance and insult. The learned Sessions Judge also doubted the recovery of the ornaments from the possession of the accused. Consequently, he gave him the benefit of doubt. This finding was arrived at, considering the discrepancy in the statements of P.W. 1 Mukanchanda P.W. 2 Harji, P.W. 3 Kunaram, P.W. 13 Rahimbux and the investigating officer. Dissatisfied with the judgment of acquittal, the State has preferred this appeal.

(3.) We have heard Mr. L.S. Udawat, learned Public Prosecutor for the State and Mr. R. N. Mathur, learned Amicus Curiae for the accused and perused the record of the case carefully.