DEVI Vs. THE STATE

JUDGEMENT

(1.) This is a jail appeal filed by Devi against the judgment of the Sessions Judge, Bhilwara, dated 22nd September, 1976, by which he was convicted under Sec. 411, IPC and sentenced to undergo rigorous imprisonment for two years. The prosecution case against the appellant was that he committed murder of Mst. Dakhi in the night between 14th & 15th February, 1976 in her house situated at village Mandalgarh Dolpuria by strangulating her and committed theft of her ornaments, namely, silver 'Hansali' and 'Kadas' which she was wearing on her body at the time when she was murdered. After taking her lift the appellant threw away her dead -body in a tank known as Jaleshwar Talav' with the intention of screening himself from legal punishment. The dead body was seen floating in the tank by Uda tailor on 15th February, 1976 Uda tailor informed Shri Kale Khan, Constable No. 324 of police station, Mandalgarh, about the presence of the dead body in the tank. Upon receiving the above information, Kale Khan accompanied by Foot Constable Fateh Mohammed went to the said tank and caused the dead body to be taken out of it. The dead body was identified by one Khemji to be that of Mst. Dakhi widow of Ghisa Kumhar resident of Mandalgarh A report of this incident was lodged with the police at police station, Mandalgarh, by Shri Kale Khan at 7.30 a.m. on 15th February, 1976. The Station House Officer, Mandalgarh, registered a criminal case under Sec. 302, IPC on the basis of the report and made the usual investigation. In the course of investigation the appellant was arrested on 16th February, 1976 After his arrest the appellant, while being under police custody, informed the Station House Officer that he had concealed one silver 'Hansali' and one pair of silver 'Karis' near the wall of his house in a pit dug by him The Station House Officer recorded the above information in a memo Ex P 10 and recovered the said two ornaments of silver from the place mentioned in the memo of information at the instance of the appellant & in pursuance of his information. The dead body was sent for post mortem examination. Dr. B.M. Das conducted autopsy over the dead -body and opined that Mst. Dakhi died of asphyxia on account of strangulation and compression of the chest. The Station House Officer collected other necessary evidence in the case and, eventually, submitted a charge -sheet against the appellant under Sec. 302, 379 and 201 IPC in the court of the Munsiff cum -Judicial Magistrate, Mandalgarh, District Bhilwara The learned Judicial Magistrate, upon finding a prima -facie exclusively triable by the court of Sessions, committed the appellant to the court of the Sessions Judge, Bhilwara, for trial under the aforesaid sections. The Sessions Judge tried the appellant and found him guilty of an offence under 411, IPC only. He, therefore, acquitted the appellant of the offences under Ss. 302, 379 and 201, IPC and convicted and sentenced him for dishonestly receiving stolen ornaments belonging to Mst. Dakhi deceased knowing or having reason to believe the same to be stolen articles. Aggrieved by his conviction the appellant has preferred this appeal from jail.

(2.) The appeal was admitted by this Court on 18th October, 1976 and notice of the date of hearing of the appeal was given to the appellant through the Superintendent, Central Jail, Udaipur. The appellant appeared before me in person. As the appellant's financial position was weak, this Court appointed Mr. B. Advani, Advocate, as Amicus Curiae, under the Legal Aid Programme, to represent him. I perused the record and heard Mr. B. Advani for the appellant and Mr. K.C. Bhandari, Public Prosecutor, for the State. It was contended on behalf of the appellant that there was no reliable evidence on the record to establish an offence under Sec. 411, IPC. According to Mr. B. Advani, learned counsel for the appellant, the prosecution, could not adduce satisfactory evidence to prove that the appellant was in possession of stolen ornaments. Mr. K.C. Bhandari, Public Prosecutor, on the other hand, urged that the prosecution has established beyond reasonable doubt that the ornaments in question were stolen properties belonging to Mst. Dakhi deceased. It support of his above contention, he invited my attention to the statement of Chittar, PW 2 who stated in his deposition that the pair of the silver 'Karis' and the 'Hansali' Arts 1 and 2 respectively were of Mst. Dakhi which she was wearing on her person at the time when she had left his house for Mandalgarh. Mr. K.C. Bhandari further relied upon the statement of Shri Chagan Lal Station House Officer, Mandalgarh, and Bhura Lal Motbir in whose presence the two silver ornaments were dug out by the appellant from underneath stone -chips near the wail of house. I have considered the rival contentions. At the outset I may observe that in order to prove an offence under S. 411, IPC the prosecution is required to establish: -

(3.) The appellant's plea at the trial was that the two silver ornaments recovered from his 'Nohara' belonged to his wife and that the ornaments which Dakhi used to wear on her body were given to the Police by the Doctor at the time of performing post -mortem examination. He further pleaded that the police gave him a beating and forcibly took these ornaments from him. The above plea set -up by the appellant is not substantiated by any evidence. From a bare perusal of the post -mortem examination report Ex. P. 5, it appears that one silver 'Bor', seven pieces of bangles one copper 'Kara' & two 'Ognias' were found on the body of Dakhi at the time of her post -mortem examination, besides clothes, such as 'Kurti', 'Kanchali' and 'Ghaghra'. These were the ornaments which were handed over to the police by the Doctor, as is evident from his statement at the trial. Hence, the plea of the appellant that the silver 'Hansali' and the pair of silver 'Karis' were found on the dead body of Dakhi and were handed over by the Doctor to the police does not appear to be true Likewise, there is no material on the record to show that the appellant was beaten by Chagan Lal, SHO or any other police officer and forced to part with any silver 'Karis' and any other ornament. Not a single question about beating the appellant or about forcibly taking two silver ornaments from him had been put to Chagan Lal, SHO in his cross -examination. Hence, the plea set up by the appellant appears to be an afterthought and it is not entitled to any weight in the presence of reliable evidence of Chagan Lal SHO and Bhura Lal Motbir. Therefore, the fact that the appellant was found in possession of stolen silver ornaments, i.e. 'Hansali' and a pair of 'Karis' soon -after the murder of Mst. Dakhi is strong enough to raise a presumption that the appellant was either a thief or receiver of stolen property, especially when he was not able to give a satisfactory account for his possession. Consequently, I do not find any substantial ground for interference with the findings of the trial court as to the guilt of the appellant under S. 411. IPC.