Order
1. This is an appeal filed under Section 379 Crl PC read with Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The sole appellant was tried for offences punishable under Sections 302, 394 and 404 IPC. The trial court acquitted him holding that the circumstantial evidence is not conclusive. The State preferred an appeal and the High Court reversed the order of acquittal and convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life. He is further convicted under Section 394 IPC and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs 1000, in default, to undergo further imprisonment for six months.
2. The prosecution case is as follows: The appellant is the resident of Village Andura in Balapur Tehsil. The deceased, in this case, an old lady, by name Panchafula, her husband Namdeo and son Punjab are also the residents of the same village. The accused was the watchman guarding the lands of vast area belonging to the villagers. On 26-11-1984 in the morning at 10.00 a.m, it is alleged that the deceased went to her land for collecting the cotton. At that time, she was wearing four pairs of earrings and silver armlets on her person. At about 10.00 a.m her son who returned to his house was asked by the accused as to who was working in the land. He told the accused that his mother alone was working in the land. It is alleged, that thereafter the accused went towards the land. Later on her dead body was found lying near the jawar crop under a tree by her son PW 1. A report was given and the investigation commenced and an inquest was held and the dead body was sent for post-mortem. The medical officer who conducted the post-mortem opined that the death was due to strangulation. The accused was arrested on 28-11-1984 and it is alleged that at his instance the silver kadas and two pairs of earrings were recovered. On the basis of the evidence so collected, a charge-sheet was laid.
3. The prosecution examined seven witnesses. The accused pleaded not guilty. The circumstances relied upon by the prosecution, as set out in paragraph 3 by the High Court are as follows:
(a) As per PW 1, Punjab, the accused was seen near the spot.
(b) As per evidence of PW 6 and injury report Exh. 35, the accused sustained injuries on his face and particularly on cheek; and
(c) discovery of ornaments of deceased, namely, Articles 8 and 13 on memorandum Exh. 24 and seizure memo. Exh. 22.
4. The trial court considered each of the circumstances. So far as the first circumstance is concerned, the trial court examined the evidence of PWs 1 and 2 and held that there were many persons working in the land of Ambadas (PW 6) and there was nothing to show that the accused did go to the land of the deceased. The trial court also pointed out that admittedly the accused has been working as a watchman for the whole village and it was his duty to guard the crops. Since the first circumstance was not conclusive, the trial court was not prepared to accept the prosecution case that the accused was on the spot where the deceased was working. Coming to the second circumstance that some abrasions were found on the person of the accused, the trial court examined the medical certificate given by the Primary Health Centre (Exh. 35). The said exhibit shows that the abrasions were very small and they were on the neck and cheek. However, the incident took place on 26-11-1984 and there is no material to show that duration of abrasions was of two days. However, the accused gave an explanation that while working in the field he received the scratches and because of suspicion this explanation cannot be rejected outright. Then remains the third circumstance, namely, the recovery of Articles 8 and 13. The prosecution examined two panch witnesses, namely, PWs 3 and 4. One of them turned hostile and did not support the prosecution case. The trial court, however, relied upon the evidence of other panch witness and gave the finding that the prosecution had successfully proved the fact that the accused had knowledge about the concealment of the property and that he had produced the same before the police. For these reasons, the trial court acquitted the accused.
5. The High Court, however, accepted the evidence of PW 1 in respect of the first circumstance and also the medical evidence in respect of the abrasions found on the accused and also accepted the evidence in respect of the third circumstance, namely, the recovery of ornaments.
6. The learned counsel for the appellant submits that even if the circumstances are accepted the chain is not complete to bring home the guilt of the accused.
7. It is well settled that in a case of circumstantial evidence, the prosecution has to prove each of the circumstances and circumstances so proved should form a complete chain to bring home the guilt of the accused and they should be in consistent with his innocence and also exclude every other hypothesis, however, remote.
8. Having gone through the evidence of PWs 1 and 2, we find it difficult to accept the prosecution case that the appellant was seen on the spot. The reasons given by the Sessions Judge, in this context, are quite reasonable and sound. So far as the minor abrasions that were found on the accused are concerned, that by itself cannot connect the accused with murder and it is probable that he received scratches or abrasions while working in the field. Then, we are left with the recovery. Both the courts have accepted the fact of recovery and even that by itself cannot connect the accused with the murder and to hold him to be the murderer of the deceased. At the most, he can be convicted under Section 411 IPC for being in possession of the stolen property for which he has no explanation. Under these circumstances, the conviction of the appellant under Section 302 IPC and the sentence of life imprisonment awarded thereunder and his conviction under Section 394 IPC and the sentence awarded thereunder are set aside. Instead, he is convicted under Section 411 IPC and sentenced to undergo two years' RI and to pay a fine of Rs 1000, in default of payment of which to further undergo three months' RI. The appeal is allowed to that extent.