Judgement

MAHAJAN, J. : The appellants, Sanwat Khan and Kaloo Khan, were convicted by the Sessions Judge of Nagpur for an offence under S. 302, I.P.C. for the murder of one Mahant Ganeshdas and his servant Ganpatia and were sentenced to death. They appealed to the High Court of Judicature for Rajasthan at Jodhpur and their case also came up for confirmation of the sentence under S. 374, Cr. P. C., before that Court.

The High Court confirmed the conviction but commuted the sentence of death into one of imprisonment for life. To this extent the appeal of both the accused persons was allowed. This is an appeal by special leave against the above decision of the High Court.

2. Shortly stated, the facts of the case are that Mahant Ganeshdas who was a wealthy person used to live in the temple of Shri Gopalji situated on a hillock near Panchota about a mile and a half from the village. Ganpatia Daroga used to live with him at the temple. On the morning of 1-1-1948 it was discovered that both of them were lying dead in the temple. Death took place on account of the injuries caused to them by means of an axe.

The house had also been ransacked and boxes and almirahs opened. The matter was reported to the police by Thakur Daulat Singh, a notable of that village. At the time the report was made it was not known how the Mahant and Ganpatia had met their end and who was responsible for the robbery and murder.

3. As a result of the investigation by the police the appellant Kaloo Khan was arrested on 13-1-1948 and on the same day he produced a gold kanthi (Ex. P-13/A) from his bara where it was lying buried in the ground. Sanwat Khan, appellant, was arrested on 18-1-1948 and on the 19th he produced a silver plate (tashak) bearing a certain inscription from his house where it lay buried in the ground.

They were committed to the court of session with the result above mentioned. The accused denied the charge and attributed their prosecution to enmity with Thakur Daulatsing, the jagirdar of the village.

4. There is no direct evidence whatsoever proving the participation of the two appellants in the murder of the Mahant and Ganpatia. The learned Sessions Judge in convicting the appellants placed reliance on the evidence of one Madari, P. W. 7, and the recovery of the kanthi and tashak at their instance. He also took into consideration the fact that the accused were seen near the place of occurrence on the day previous to the murder and that soon after they left the village. Reliance was also placed on certain evidence connecting the accused with the axe, Ex. P-5/A.

The High Court, however, held that the evidence of Madari, P. W. 7, was not trustworthy and that it was not proved that the axe belonged to Kaloo Khan. It further held that it was not correct to say that the accused had left the village after the occurrence because they had gone away to settle in a different place about a couple of months before this incident. The other circumstances relied upon by the Sessions Judge were held to be of no consequence.

Having rejected practically the whole of the circumstantial evidence on which the learned Sessions Judge had placed reliance, the High Court upheld the conviction of the appellants by relying on the solitary circumstances of the recovery of the two articles above mentioned at the instance of the accused. It was said that in the absence of any explanation about the possession of the articles belonging to the Mahant by the accused, the inevitable inference was that they were persons who had some hand in the destardly act.

5. Mr. Umrigar for the appellants contended that the evidence of the recovery of the articles belonging to the deceased at the instance of the accused at the most could lead to a presumption that they were the thieves or had received the articles knowing them to be stolen property, but it was inconclusive on the question of their having committed the murders. In our judgment, this contention has force.

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