BANWARI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY his judgment, dated September 22, 1966 learned Sessions Judge, Bikaner, convicted the accused Banwari under sec. 302, I. P. C. , and sentenced him to imprisonment for life. He was also convicted under sec. 394, Indian Penal Code, and sentenced to rigorous imprisonment for ten years. Both the sentences were directed to run concurrently. BY the same judgment the other accused Aduram was given benefit of doubt and was acquitted of the offences under the aforesaid sections of the Indian Penal Code.

(2.) WE can summarise the prosecution story thus; Mst. Dhinki, sister of Hukmaram, resident of Ranisar, had been married to one Budharam, who died adout an year and a half back. Banwari and Aduram are the collateral relatives of Budharam. Banwari became anxious to take Mst. Dhinki as his 'natayat' wife. Mst. Dhinki agreed to it subject to the permission of her parents. Banwari and Aduram, accompanied by Mst. Dhinki proceeded to Hukmaram's house in village Ranisar. Both Banwari and Aduram remained with Mst. Dhinki for some time in Hukmaram's house. On November 12, 1965, Hukmaram got annoyed, with the two accused Banwari and Aduram as they remained with his sister day in and day out. Hukmaram scolded the two persons and then he went away to his fields. The accused persons also took their meals and left Hukmaram's dwelling place. The two accused proceeded together with one Puraram Jat. who was originally a resident of Bhojarasar, but subsequently began living at 83 R. B. All these three persons started out from Arjunsar Railway Station and proceeded towards the village Bhojrasar. They arrived near about the field of Radha Krishna, P. W. 4, a resident of Jaswantsar. The three persons were witnessed by Lal Singh, P. W. 2, Purkharam, P. W. 3, and Radha Krishna, P. W. 4. Puraram was carrying with him a muzzle loading gun and a bag, containing cartridges, of the other two persons, one was holding a lathi and the other one was empty handed. When Puraram and the accused persons had gone beyond Radha Krishna's field, Lal Singh and Purkharam, who were to fetch water on their camels from Jaswantsar, followed them. After covering some distance they heard an outcry. They accelerated their camel's speed and soon reached the spot of occurrence. They saw Puraram lying injured and breathless. The two accused, Banwari and Aduram, took to their heels towards the south with the deceased's gun and the bag. Lal Singh and Purkharam then rushed up to the village Jaswantsar and informed the Sarpanch Birbal, P. W. 14, of what they had seen. Birbal returned with Lal Singh to the place where Puraram lay deed. Birbal left Purkharam and Lal Singh to guard the corpse of Puraram and he himself proceeded towards the Railway Station, Arjunsar. There Harakchand, Police constable of the Police Station, Mahajan, met him Birbal acquainted him with the event at about 7 p. m. on 12-11-1965. Harakchand P. W. I, accompanied by Birbal, P. W. 14, went to the spot of the occurrenceand saw there a dead body. He came back to the Arjunsar Railway Station and furnished information on telephone to the police Station, Mahajan. Head Constable Tarsam Singh, P. W. 17, received the message and registered a case u/s. 302, I. P. C. Tarshamsingh, Harnathsingh and some other police officials proceeded in a jeep towards Ranisar, where another occurrence causing a gun-shot injury to Hukmaram was alleged to have taken place. Tarsham Singh and Jor Singh stayed at Ranisar and the Deputy Superintendent of Police, and Harnath Singh went towards the village Jaswantsar, where the dead body of Puraram was lying. Moolaram and Fateh Singh went out in search of the accused persons. They arrested the accused Banwari near the Railway Station, Arjunsar, in the morning of November 13, 1965. The accused Banwari was carrying a gun and a bag at that time. The accused Banwari, having been arrested by Moolaram and Fateh Singh, was produced before Tarsham Singh, Incharge, Police Station, Mahajan. The dead body of Puraram was sent to the Associated Group of Hospitals, Bika-ner. Its autopsy was carried out on November 145, 1965, by Dr. G. K. Bhatnagar, Medical Jurist, Bikaner. Following injuries were noticed on the body of the deceased: - 1. An oblique lacerated wound 3"x 1/3"x bone deep on the right parietal postero-lateral. 2. A hematoma covering the whole of right temporal region.

(3.) THE trial court, however, held that the recovery of the bag from the possession of the accused Aduram is a faked one and it is on this ground that he was given benefit of doubt. Against this finding the State Government has taken an appeal. It has been urged by learned Dy. Govt. Advocate that reasons on the basis of which the recovery of the bag has been discarded by the trial court are not sound. We have now to see how far the trial court was right in rejecting the evidence of the recovery of the bag on the information and at the instance of the accused Aduram. It is true that Aduram was arrested on November 18,1965, at his residence at 23 M. L. He was remanded to the judicial custody on November 20,1965. THEreafter he was again taken under police custody on November 27, 1965. THE information regarding availability of the bag was supplied by Aduram to Virendra Singh. P. W. 12 Station House Officer, Mahajan, on November 28,1955. It was reduced to writing by P. W. 12 and is marked Ex. P. 12 and then the recovery was made Ex. P. 13. THE accused was already in the judicial lock-up upto November 26, 1965 and there is nothing wrong if he was taken back in the police custody for the purpose of recovery, on November 27, 1965. THE argument of the trial court that when the accused Banwari had carried away the gun, he should not have normally allowed Aduram to take away the cartridges is fallacious. It is not an improbability that if a portion of stolen property is taken away by one person, the rest should not be taken away by the other. It is not necessary that all the articles robbed should form part of the share of only one man. THE other reasoning given by the trial court in regard to rejecting the recovery of the bag is that Banwari did not give any relevant information to the Investigating Officer. This reasoning is also beyond comprehension. THE bag was in the possession of the accused Aduram and when Aduram gave information to the police and in pursuance of that information the recovery was effected, the information can be used in evidence against him. Learned Sessions Judge again went wrong in relying upon the statement of Shahi Ram, P. W. 8, which had been recorded in another Criminal case No. 7/1966. If Shahi Ram's statement was considered to be right and the recovery of the bag was made simultaneously with the arrest of the accused, it was hardly necessary for the police to have undergone the risk of collecting information from the accused Aduram under sec. 27, Evidence Act, under memo Ex. F. 12, and to have recovered the bag under memo Ex. P. 13. THE bag was identified by Birbal, P. W. 8, brother of the deceased Pura, in the presence of P. W. 11 Shri Gauri Shanker, Magistrate Second Class, Bikaner. Birbal has stated that the bag which was with Pura is Ex. 3 and Pura had taken it with him, along with the gun, when he left his house. THE bag was mixed with other bags and he identified it. Shri Gauri Shanker P. W. 11 has deposed that the bag, received by him for the purpose of identification, was in a sealed condition and it was identified by Birbal correctly under memo Ex. 1. 11. THE recovery of the bag on the information and at the instance accused Aduram stands on the same footing on which the recovery of the gun from Banwari stands. THE two recoveries are not substantially distinguishable from each. THE trial court has distinguished the case of the recovery of the bag from that of the gun on the basis of conjectures, surmises and prediction based on guess-work. THEre is no explanation furnished by the accused Aduram for his possession of the bag, belonging to the deceased Pura. His mere denial that the bag does not belong to him is not helpful to him. At any rate, he does not claim that this bag constitutes his property.