RAJASTHAN HIGH COURT (DB)
M.R. Calla and Rajendra Saxena, JJ
Raju Ram & Anr. - Appellants
versus
State of Rajasthan - Respondent
D.B. Cr. Appeal No. 346-1984
Decided on 25.4.1994
Counsel for the parties:
For the Appellants - M.L. Garg.
For the Respondent - D.R. Bohra, P.P.

Headnote:Indian Penal Code, 1860. Sections 302, 404 and 460 - Conviction under. Appeal Deceased aged 75 years and his wife of70 years - Their dead bodies were found lying in pool of blood on their cots - Both legs of deceased were chopped off - No direct evidence - Only circumstantial evidence. Material links in the chain of circumstantial evidence are missing to conclusively fasten the guilt of murders against the appellants. Recovery of gold ornaments out of possession of appellants well proved. No evidence to establish that the murder of deceased persons and the theft of ornaments formed part of same transaction - No presumption that since the appellants had got recovered ornaments, they were the persons only, who had committed the murders. Their conviction U/S 302 not sustainable - Conviction u/ss 460 and 404 I.P.C. maintained.

       Held: The Principles regarding the appreciation of circumstantial evidence have been well crystalised. In a case based wholly on circumstantial evidence, the Court before recording the conviction must be firmly satisfied that the circumstances from which the inference of guilt is to be drawn, have been fully established by clear, cogent and unassailable evidence beyond all reasonable doubt; that the circumstances are of clinching and determinative tendency unerringly pointing towards the guilt of the accused and that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis except that of the guilt sought to be proved against the accused. In other words, all the incriminating facts and circumstances so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. The circumstantial evidence should unmistakably point to one and one conclusion only that the accused persons and none other has perpetrated the alleged crime. (Para 16)

       Further held: It is true that recent and unexplained possession of stolen articles can be taken to be presumptive evidence of the charge of murder as well under illustration (a) of Sec. 114, Evidence Act, but in the case in hand, the prosecution has miserably failed to prove beyond any reasonable doubt that the commission of the murders of deceased persons and the theft of gold and silver ornaments had formed part of one transaction. From the circumstantial evidence adduced in this case, it cannot be conclusively held that the appellants were the only persons, who had committed murders of Bastimal and Smt. Sua. This possibility also cannot be ruled out that Bastimal and Smt. Sua were murdered by somebody else and that the appellants had simply stolen the ornaments of Smt. Sua. There is not an in a of evidence to establish that the murder of deceased persons and the theft of ornaments formed part of same transaction. Therefore, keeping in view the observations made by the Apex Court in Hukum Singh's case (supra), the circumstantial evidence adduced in this case does not unmistakably point out to one and one conclusion only that the appellants and none other had perpetrated the murder of Bastimal and Smt. Sua. Hence, in our considered opinion, no presumption could be drawn against the appellants that since they had got recovered various ornaments of Smt Sua, they were the persons only, who had committed the gruesome and ghastly murders of Bastimal and Smt. Sua. In this case, material links in the chain of circumstantial evidence are missing to conclusively fasten the guilt of murders against the appellants. Hence to our minds the learned Sessions Judge has committed an error of fact as well as of the law in recording the conviction of the appellants for the offence u/s. 302 I.P.C. However, there is sufficient evidence to bring home the offences u/ss. 460 and 404 I.P.C. against the appellants and the reasons given by the learned trial Judge on that count are sufficient and valid, with which we concur. (Para 26)

       Result: Appeal partly allowed. Conviction u/s 302 I.P.C. set aside.