JUDGMENT 1. - This is an appeal by the state against the judgment dated March 29, 1974 passed by the learned Sessions Judge, Pali in Sessions Case No. 29 of 1973, whereby the learned Session Judge acquitted the accused-respondent of the offences under section 302, 394 and 448 I.P.C. 2. The prosecution case as unfolded in the first information report (Ex. P/2) verbally lodged on 7.2.73 at 2 p. m. at the police station, Bagri by Mukanchand (P. W. 1) accompanied by Udai Chand Bhandari, Mohanlal Sethi, Kanhaiyalal Surana, is that Harji Daroga came in the market and informed that in front of the house of Laxmichand Mahajan situated in Bohren-Ka-Bas, of village Bagri some ladies are standing and the house is bolted from inside. Four or five persons can go there and see as to what is the matter. Thereupon, they went to the house of Laxmi Chand and found that the main gate of the house was bolted from inside and burning smell of bread was emanating inside. Laxmichands widow Mst. Sunder Bai aged about 70-75 years was living all alone in that house. Her sons Parasmal anc Kewalchand resided at Banglore. Sunder Bai was called 4-5 times, but there was no response. They suspected as to what happened to the old woman. Therefore, they lifted the Chulia of the shutters of the main entrance and entered into the house. They saw Sunderbai lying dead in the kitchen. The flour was found ready for cooking bread and one bread was found burnt. They also found one tied turban and one chadder Solapuri lying in the verandah of the kitchen. They saw the front apartment (Sal) opening in the chowk, opened and observed open boxes and belongings scattered. They also observed that the iron bars of right side apartment bent, they suspected that some thief has murdered Sunderbai and has committed theft and the turban and Chaddar must be of that thief. They found the other apartment also opened, but the apartment on the left side in the Pol was bolted from inside, they tired to open it but it could not be opened as it was bolted from inside. They suspected that the murderer and thief are inside that apartment of the pol. Harji Daroga, Kunia Khatik and other persons had assembled there. Harji came to report the matter after leaving others to keep a watch. They suspected that the murderer and thief are inside that apartment of the pol. Harji Daroga, Kunia Khatik and other persons had assembled there. Harji came to report the matter after leaving others to keep a watch. On this report, case under Section 302, 380 and 449, IPC was registered by Shri Jalamsingh, S.H.O. (P. W. 19). P. W. 19 Jalamsingh immediately visited the spot and the apartment in which the accused was suspected guarded. He inspected the site. At the time of inspection, he found that left side of the room of the pol. was bolted from inside. Thereafter, a Halwani was sent for and bricks near to the frame of the door were got removed. Thereafter an attempt was made to open the door by putting Halwani into the Aagal and thereupon, the door opened. The accused Moola was found in the left side of the room behind the door sitting with the bundle. He was brought out along with the bundle. He prepared Surat Hal Lash (Ex. P/7) site-plan (Ex. P/4) and site-note (Ex. P. 3). The accused was arrested vide Ex. P/5 and personal search was taken. From his possession, the ornaments mentioned in Ex. P/5 were recovered, The turban and Chaddar were seized vide seizure memo Ex. P/6. Autopsy on the dead-body was conducted. Identification proceedings of some of the ornaments recovered, were also got conducted. After completion of the investigation, chargesheet was presented against the accused person in the court of Munsif Magistrate, Sojat, who committed the accused for trial to the court of Sessions. The accused was charged for offences under section 302, 394 and 448, IPC to which he pleaded not guilty and claimed to be tried. The prosecution examined P. W. 1 Muken Chand (first informant and Motbir), P. W. 2 Harji, P.W. 3 Kunaram, P.W. 4 Mst. Jadav, P.W. 5 Mst. Soni, P.W, 6 Chhogalal (owner of the ornaments), P.W. 7 Basta, P.W. 8 Thaniya, P.W. 9 Sugna, P.W. 10 Smt. Banu, PW. 11 Smt. Fattubai, P.W. 12 Smt. Khatun, P.W. 14 Cholaram and P.W. 16 Mohammad Hanif, who had fledged their ornaments with Mst. Sunderbai, P.W. 13 Rahimbux, P.W. 15 Maulabux, P.W. 17 Dr. Bhanwarlal Trivedi, P.W. 18 Bhanwarlal, Chairman, Panchayat Samiti, Bada Guda, and P.W. 19 Jalam-Singh, S.H.O. The statement of the accused was recorded, in which he denied prosecution case. No evidence was led in defence. Sunderbai, P.W. 13 Rahimbux, P.W. 15 Maulabux, P.W. 17 Dr. Bhanwarlal Trivedi, P.W. 18 Bhanwarlal, Chairman, Panchayat Samiti, Bada Guda, and P.W. 19 Jalam-Singh, S.H.O. The statement of the accused was recorded, in which he denied prosecution case. No evidence was led in defence. The learned Sessions Judge also visited the spot and prepared the site note. After hearing the learned Public Prosecutor and the learned Amicus Curiae, the learned Sessions Judge recorded an order of acquittal of the accused. The learned Sessions Judge found that there is discrepancy in the time of visiting the spot by the police and lodging of the first information report. But on that ground, he has stated that it would not be proper to reject the prosecution story. He found that Mst. Sunder Bai on account of strangulation and met a homicidal death. While considering the question as to who has done it, the learned Sessions Judge found that when the police reached the spot, the accused was found inside the house of Smt. Sunderbai. But when he considered as to when an how he entered into the house, he observed that the accused must have entered into the house through the main entrance, as there was no way for coming inside the house except the main entrance. There was a net inside the chowk and the door of the stair case was bolted. But he raised a question as to why any one-else other than the accused could not have entered into the house, then he proceeded to consider the question of the time of death of Smt. Sunderbai. He expressed that the post-mortem of the dead-body was conducted on 8.9.73 at 10.30 a.m. and according to the doctor, the deceased died within 24 hours, so it is possible that Smt. Sunderbai might have died at 10.00 a.m. on 7.9.73. If the death has occurred at about 10 a.m. then the learned Sessions Junge observed that the commission of theft may take 5-10 minutes and then why the accused could not came out of the house. P.W. 4 Mst. Jadav had come to fetch the key of thank at about 12 noon. It appears to be against the human conduct that the accused would have remained inside the house after commission of murder and theft only for being apprehended. P.W. 4 Mst. Jadav had come to fetch the key of thank at about 12 noon. It appears to be against the human conduct that the accused would have remained inside the house after commission of murder and theft only for being apprehended. There is nothing in the prosecution evidence as to whether between 10 and 12, the main entrance of the house of Smt. Sunderbai was open or not. It is also not known as to whether there was any one else inside the house of Sunderbai besides the murderer. There is no evidence on record as to when Smt. Sunder Bai was last seen alive. The presence of fire in the oven and burnt bread is not sufficient to establish as upto what time Smt. Sunderbai was alive. For these reasons the learned Sessions Judge observed that this possibility can not be ruled out that some one might have murdered Sunderbai before the entry of the accused in that house. It was also found that there does not appear to be any motive of the accused and the prosecution has failed to prove as to whether the turban and chaddar belonged to the accused and no evidence was led in this regard. The learned Session Judge also did not find the accused guilty of the offences r under Section 304 and 448, IPC. In connection with the offence under Section 448, IPC., the learned Sessions Judge observed that if Sunderbai had already died and thereafter, he entered than there was no question of any intimidation, annoyance and insult. The learned Sessions Judge also doubted the recovery of the ornaments from the possession of the accused. Consequently, he gave him the benefit of doubt. This finding was arrived at, considering the discrepancy in the statements of P.W. 1 Mukanchanda P.W. 2 Harji, P.W. 3 Kunaram, P.W. 13 Rahimbux and the investigating officer. Dissatisfied with the judgment of acquittal, the State has preferred this appeal. 3. We have heard Mr. L.S. Udawat, learned Public Prosecutor for the State and Mr. R. N. Mathur, learned Amicus Curiae for the accused and perused the record of the case carefully. 4. After hearing the arguments, to us it appears that the learned Sessions Judge did not examine the case in its correct perspective. 3. We have heard Mr. L.S. Udawat, learned Public Prosecutor for the State and Mr. R. N. Mathur, learned Amicus Curiae for the accused and perused the record of the case carefully. 4. After hearing the arguments, to us it appears that the learned Sessions Judge did not examine the case in its correct perspective. The appraisal of the evidence appears to have been made in a most artificial, unreal, technical and sceptical manner whereas the evidence ought to have been appreciated in a realistic manner. The findings appeared to have been arrived at on unfounded surmises the conjectures ignoring the basic principle that the accused can only claim a benefit of ; reasonable doubt and can not claim any benefit otherwise. In the present case, the . accused was found inside the baited room in the house, which was also bolted from inside along with a bundle containing the other packet all containing ornaments. along with the slips or documents of pledges or hypothecation of the ornaments The learned Sessions Judge has taken a very strange approach in this case and it , can be said that the judgment is a one. But the learned Sessions Judge proceeded to consider the whole case on the basis that the death must have taken at 10 a. m. on 7.9.73 and for fetching the key Mst. Jadav had come at about 12. The murderer or thief would not remain at house for 2 hrs. and must have left before 12 and this possibility can not be ruled out that the accused entered into the house just before 12 when everything was already over. Such a consideration of the prosecution case can by no stretch of imagination be taken as correct and proper. It may be stated that Mst. Jadav (P.W. 3) has given the time of coming to the house of Sunderbai for fetching the key of the thank at about 12 or 12.30. She is not definite. She has given the time on the basis of her own estimate. P.W. 5 Mst. Seni has stated the time as about 12. When these ladies came, they found the door of the house bolted from inside and they called Sunder Bai, but there was no response. Then, Harji was passing at that time, Harji called Sunder Bai but there was no response from the house. P.W. 5 Mst. Seni has stated the time as about 12. When these ladies came, they found the door of the house bolted from inside and they called Sunder Bai, but there was no response. Then, Harji was passing at that time, Harji called Sunder Bai but there was no response from the house. Thereupon, he went to the market and called Mukanchand and others. It may be mentioned that the smell of burning bread was coming from inside. The report was lodged at 2 p.m. and it took half an hour to the S.H.O. to reach to spot after registration of the case. Sometime was taken in recording the first information report. On the basis of the statement, P.W. 17 Dr. Bhanwarlal Trivedi, it can not be taken that Sunderbai had expired at 10 a.m. What he has deposed, is that the death must have occurred within 24 hours. In view of this statement, it is possible that the death must have occurred just before 12. No doubt, there is a indiscrepancy in the evidence regarding the time of arriving of the at the spot. According to P.W. 2 Harji, the police had arrived at 12.30, which does not appear to be correct, if viewed in the light of the evidence of Jalamsingh S.H.O., on the basis of the statement of Harji and the evidence relating the time of arrival of the police at the spot, it would not be proper to record, the finding that Mst. Sunderbai must have died at about 10. The statement of P.W. 2 Harji regarding the time, is also on the basis of his estimation. The burning smell of the bread is very important and decisive factor. This factor shows that after preparation, the bread must have been put for baking and thereafter, the occurrence had taken place. Mst. Sunder Bai must have died only a little time before the arrival of Mst. Jatav. The burning smell of the bread is very important and decisive factor. This factor shows that after preparation, the bread must have been put for baking and thereafter, the occurrence had taken place. Mst. Sunder Bai must have died only a little time before the arrival of Mst. Jatav. The time lag between 10 and 12 as considered by the learned Sessions Judge does not appear to be correct and finding based thereon appears to be a figment of imagination, surmises and conjectures on the part of the learned Sessions Judge, on the contrary, we are of the opinion that the accused must have entered into the house either from the main entrance or from the door of the stair case, which might be open and thereafter, having bolted it, he came down throttled Sunderbai and done her to death and in that , she received bruises and abrasions on neck and as she fell in the kitchen, she received burn injuries. Thereafter, the accused ransacked the house, collected the ornaments and at that stage, the ladies appeared outside the house, so the accused concealed himself in the left side room of the pol and bolted the same inside with a view that if anybody enters from the main entrance after removing the chulia, he may be able to run out from the pol room. But as the people had already collected and they were guarding the room it was not possible for the accused to have came out from the room and run away. If the murderer and thief would have been different, the bundle of ornaments would not have been found with the accused. 5. The learned Sessions Judge, with regard to the possession of the ornaments, considered the evidence on record giving undue, unwarranted and uncalled for importance to the discrepancies and inconsistencies. The accused was found that a bundle containing the ornaments can not be doubted. P. W. 3 Kunaram categorically stated that he and Gani entered into the pol room and observed him sitting in a concealed manner and one bundle was lying on his legs. P.W. 3 Harji has stated that people peeped into the room and saw the accused sitting. The accused then came, thereafter, he was apprehended by the police. P. W. 3 Kunaram categorically stated that he and Gani entered into the pol room and observed him sitting in a concealed manner and one bundle was lying on his legs. P.W. 3 Harji has stated that people peeped into the room and saw the accused sitting. The accused then came, thereafter, he was apprehended by the police. In the cross examination, he stated that when the accused came out, there was a bundle in his hand, which was seized by the police. P.W. 1 Mukanchand stated that the police called the accused, thereupon, the accused came out at the entrance of the room and at that time, he had nothing in his hand. But in the examination-in-chief P.W. 1 Mukanchand stated that Kunaram entered the room and informed the S.H.O. that someone is sitting concealed inside the room and Kunaram had also informed at that time there is a bundle with the accused, that bundle was taken out by the police. P.W. 13 Rahimbux has stated that the accused Moolaram was sitting in the room he was having a bundle with him, which he brought out side in the pol. He has also stated that the accused lifted the bundle after he stood on opening the door. It is true that there are discrepancies in the statements of the witnesses, on the point as to whether the accused brought the bundle or not. But inside the room the accused was found with the bundle. According to P.W. 3 Kunaram, who first entered the room the bundle was found on his legs. There is no reason to disbelieve the statement of P.W. 3 Kunaram. On the basis of his testimony alone, it can be found that the bundle was found in possession of the accused. As to whether there was any bundle in the hand of the accused when he came out from the room, the discrepancy, which has should be viewed, in a manner in which it has been viewed by the learned Sessions Judge. The statements of the witnesses have been recorded after sufficiently long time and such like discrepancies may occur occur in the testimony of honest witnesses. The statements of the witnesses have been recorded after sufficiently long time and such like discrepancies may occur occur in the testimony of honest witnesses. Even if it is found that the accused was not having the bundle in his hand when he came out, still, inour opinion, there is sufficient, satisfactory and convincing evidence on record to hold that the bundle was in possession of the accused and the contents of the bundle were examined at the time of the arrest of the accused and were recorded in the arrest and personal search memo Ex. P/5 which has been proved by the S.H.O. Jalamsingh. From the perusal of Ex. P/5, it would appear that some of the ornaments were seized from the personal search. There was another box inside the bundle, which contained the ornaments, which were pledged with the lady and there were other ornaments found in the bundle. Twenty three items of ornaments and other articles were found in the personal search. In the box inside the bundle, the pledged 10 articles along with some of their slips of hypothecation were found and besides the ten articles, 11 to 36 items were further found in the bundle. Thus, from the evidence of P.W. 1 Mukanchand, P.W. 2 Harji, P.W. 3 Kanuram, P.W. 13 Rahimbux and P.W. 19 Jalamsingh, SHO, a definite finding can be arrived at that the bundle containing the ornaments was recovered from the possession of the accused. 6. It is not in dispute that some of the ornaments were pledged with the deceased in respect of which, there are the statements of P. W. 6 Chhogala, P. W. 7 Bastaram, P. W. 8 Thaniya, P. W. 9 Sugna, P. W. 10 Banu, P. W. 12 Smt. Khatun, P.W. 14 Cholaram and P.W. 16 Mohd. Hanif. Identification of the ornaments was conducted by P.W. 18 Bhanwarlal, he has proved the identification memos. The other ornaments can be taken to be the ornaments of the deceased Sunderbai, although there is no evidence on record in respect thereof. The case of the accused is of simple denial. Hanif. Identification of the ornaments was conducted by P.W. 18 Bhanwarlal, he has proved the identification memos. The other ornaments can be taken to be the ornaments of the deceased Sunderbai, although there is no evidence on record in respect thereof. The case of the accused is of simple denial. When the accused has been found in possession of the ornaments belonging to those who have pledged the same and of the other ornaments then it can safely be found that the accused came into possession of the ornaments as a result of ransacking the house soon after the murder of the deceased. A presumption would necessarily arise in the circumstances of this particular case that the accused caused the murder of the deceased by throttling and thereafter he ransacked the house and collected the ornaments, found in the bundle. In our opinion, if the case is considered in the totality of the circumstances i e. conspectus of the case, if taken into consideration, the conclusion, in our opinion, would be and inescapable that it was the accused who murdered the deceased Sunderbai with the object of robbing of her valuables and soon thereafter the accused was caught red-handed from the room which was bolted from the inside. Mr. R. N. Mathur, learned Amicus Curiae for the accused submitted that the accused could have escaped after unbolting the door of the stair-case. That could be so but to us, it appears that it did not occur to him and acted in a different manner, and he tried to conceal himself in the pol room with a particular intention, which to us, it appears that it could not fructify. Mr. Mathur, also submitted that no investigation was done with respect to turban and chaddar. The prosecution has not established to whom they belonged. It was most material aspect of the case, in as much as, it could be the linking evidence but in respect of the linking evidence or the clue evidence, the investigation was not fair and proper. It is true that no investigation was done on this material aspect of the case but on the basis thereof, the case against the accused in our opinion, can not doubted and whatever evidence has been produced, the offences are amply brought home to the accused . It is true that no investigation was done on this material aspect of the case but on the basis thereof, the case against the accused in our opinion, can not doubted and whatever evidence has been produced, the offences are amply brought home to the accused . The entry of the accused with an intention to commit robbery and in that process, even to cause the murder, is fully established, so we hold the accused guilty of the offences under sections 302, 394 and 448, IPC. 7. Accordingly this appeal is allowed, the judgment of the acquittal is set aside and the accused-respondent is convicted for the offence under section 302, IPC and is sentenced to imprisonment for life. He is also convicted of the offence under Section 394 IPC and is sentenced to five years rigorous imprisonment. He is also convicted for the offence under Section 448, IPC and is sentenced to one years rigorous imprisonment. The substantive sentences shall run concurrently.Acquittal set aside. *******