1987 Supreme(Raj) 535
RAJASTHAN HIGH COURT
Shyam Sunder Byas, Ashok Kumar Mathur, JJ.
Hariya And Anr. - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Jail Appeal No. 882 of 1976.
Decided On : 03-03-1987
Advocates:
For the Appellant:Doongar Singh, Advocate.
For the Respondent: S.K. Mathur, PP.
In cases of circumstantial evidence, the presumption under Section 114 Illustration (a) of the Evidence Act can be drawn to infer either a higher offense or a minor offense, depending on the evidence on record. However, the court must carefully consider the evidence and circumstances of each case to determine whether the presumption is justified.
Headnote:
CRIMINAL APPEAL - MURDER - CIRCUMSTANTIAL EVIDENCE - RECOVERY OF STOLEN PROPERTY - PRESUMPTION UNDER SECTION 114 ILLUSTRATION (A) OF THE EVIDENCE ACT - CONVICTION FOR THEFT INSTEAD OF MURDER.
Fact of the Case:
The accused was convicted of murder, robbery, and concealing evidence in connection with the death of Rajiya, whose body was found buried under stones in a valley. The prosecution's case relied on circumstantial evidence, including the recovery of Rajiya's gold earrings and goats at the instance of the accused.
Finding of the Court:
The court found that the chain of circumstances was sufficient to establish that the accused was in possession of Rajiya's stolen property, but it was not safe to draw the presumption of murder based solely on these recoveries. The court held that the accused should be convicted of theft under Section 411 of the Indian Penal Code instead of murder.
Issues: 1. Whether the circumstantial evidence was sufficient to establish the accused's guilt of murder. 2. Whether the presumption under Section 114 Illustration (a) of the Evidence Act could be drawn to infer murder from the recovery of stolen property.
Ratio Decidendi: 1. The court held that the circumstantial evidence, including the recovery of Rajiya's gold earrings and goats at the instance of the accused, was sufficient to establish that the accused was in possession of Rajiya's stolen property. 2. The court held that it was not safe to draw the presumption of murder based solely on the recoveries of stolen property, as there was no direct evidence linking the accused to the murder. The court noted that the accused had denied the allegations and provided an explanation for the possession of the stolen property, which the court found to be unsatisfactory.
Final Decision: The court allowed the appeal in part, acquitting the accused of murder, robbery, and concealing evidence, and convicting him of theft under Section 411 of the Indian Penal Code. The court sentenced the accused to three years of rigorous imprisonment.
JUDGMENT
1. - This appeal is directed against the judgment of the learned Additional Sessions Judge, Jalore dated 30-8-1976 whereby he has convicted the accused appellants under Sections 302, 392 and 201 read with Section 34 Indian Penal Code and sentenced under Section 302/34 Indian Penal Code to life imprisonment with a fine of Rs. 3000/- and in default of payment of fine to further undergo rigorous imprisonment for 6 months; under Section 392/34 Indian Penal Code to five years rigorous imprisonment with a fine of Rs. 2000/-and in default of payment of fine to further undergo imprisonment for 3 months and under Section 201/34 Indian Penal Code to 3 years rigorous imprisonment with a fine of Rs. 2000/- and in default of payment of fine to further undergo rigorous imprisonment for 3 months. All the substantive sentences shall run concurrently.
2. The facts giving rise to this case are that on 17-2-1976 at 8 P.M. Lachharam son of Samela by caste Rebari resident of village Todami informed Shri Mehboobkhan Sub Inspector of Police, Station Nosaran that one Rajiya s/o Ram with his elder brother went to graze the herd consisting of 220 goats as usual on 16-2-1976 morning in the border of the village. He did not return back in the evening and only 60 goats returned to the house. Thereupon he along with his brother Dhanna had a talk with Kessa and Binja and started in search of him Kesa informed them at about 2-3 hours before the sun set that Rajiya was grazing his herd between Kundainadi to Kotabhakhar Kesa, Rawta and Dhanna went towards Kota Bhakar and he went to village. Rama went in search of Rajiya but he could not be found, Binja was sent to Bakali village but Rajiya was not found there. But in the morning of 17-2-1976 Rawta Maina came to the village and informed that Kesa had seen the dead body of Rajiya burried under the stones in valley of Kota Bhakar so they should accompany him Thereupon he along with Kesa, Deva Chouwdhary, Maganaji Choudhwary and Thakur Madho Singh proceeded towards the valley. Before proceeding towards the valley, they informed the police also. They reached the valley and there they found that a heap of stones under the thorns from its holes a naked dead body was visible. Kesa and Dhanna were sitting there. Some more persons collected there and the dead body was taken out. Accused Hariya and Khangariya were suspected to be the killer of deceased Rajiya. The ear-rings of deceased Rajiya were also missing. This First Information Report was filed at the police station & the police registered a case under Section 302 and 379 Indian Penal Code. The investigation was taken up by Shri Mehboobkhan the Investigating Officer He reached at the scene of occurrence, prepared the necessary site plan, dead body was taken into custody and sent for post mortem. During the course of investigation accused Hariya and Khangariya were arrested. Both the accused persons were interrogated by the police Accused Hariya while in custody of the police gave information regarding gold ear-rings of Rajiya and about the sale of 20 goats at Jodhpur to Mohd. Shaft for a sum of Rs. 1,000/-. The gold ear-rings and Rs. 1,000/- were recovered at the instance of accused Hariya in consequence of the information furnished by him from the place of concealment. On 20-2-1976 the goats were recovered from Abdul Rashid at Jodhpur at the instance of Hemi and Mohd. Shafi. Hariya accused also gave information which led to the recovery of 7 goats which he sold to Sakoor Kasai. Accused Khangariya was also arrested and while in custody he gave information about pair of Juti and clothes of Rajiya which were concealed by him after burning them. The Investigating Officer recovered the pair of jutti and burnt clothes at the instance of accused Khangariya, The gold ear-rings, pair of Jutti and goats were put for identification before the Tehsildar, Ahore and where these articles were correctly identified. After close of the investigation, both the accused person
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