JUDGMENT 1. - These three appeals two filed separately by accused Phuliya and Jabarmal and one filed by accused Indermal and Phuliya jointly arise out of the Judgement rendered by the learned Additional Sessions, Judge, Jalore dated 26.6.1976 whereby the learned lower court has held the accused-appellants Indermal and Phuliya guilty of the offence under sections 302/34 and 392 IPC and both of them have been sentenced to imprisonment for life and a fine of Rs. 1000/- each and in default, to further undergo rigorous imprisonment for 6 months on the first count and to a rigorous imprisonment for 5 years and a fine of Rs. 1000/- and in default, to further undergo rigorous imprisonment for 6 months on the second count. Their substantive sentences have been ordered to run concurrently. The accused Jabarmal has been convicted under s. 411 IPC and has been sentenced to rigorous imprisonment for 3 years and a fine of Rs. 1000/- and in default, to further undergo rigorous imprisonment for 6 months. However, accused Indermal and Phuliya have been acquitted of the offences under sections 120B, 302/34, 460 and 392 IPC. Accused kapurchand and Hemraj have been acquitted of the charge under s. 201 IPC. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that Mst. Oti widow of Siremal Porwal lived in village Harji Tehsil Ahore District Jalore. She was living separately for the post about SIC years from her son Chunilal, who has become made for the about 1 to 3 years of the occurrence. She was an old lady of 80 years. She was seen hale and hearty on 31.12.1975 and 1.1.1976. However, it is alleged that accused Phuliya, Indermal and Jabarmal hatched a conspiracy on 30th and 31th December, 1975 to kill Mst. Oti and in pursuance of that conspiracy, they committed her murder in the night intervening between 1st and 2nd January, 1976 and removed from her body one golden ring and two golden chains, which she was always found wearing. On the next day i.e. on 2.1.1976, Mst. Pankadi went to her house to supply the milk as usual because she is a milkmaid When she called her name, Mst. Oti did not respond to her call. On the next day i.e. on 2.1.1976, Mst. Pankadi went to her house to supply the milk as usual because she is a milkmaid When she called her name, Mst. Oti did not respond to her call. She then pushed the door and when she went inside the house, she found her sleeping on the Charpoi in the pol of her house. She was covered with a quilt. This raised a suspicion in the mind of Mst. Pankadi. When Mst. Pankadi was returning back, she met PW 1 Mst. Oti wife of Chunilal (daughter-in-law of deceased Mst. Oti). PW 1 Mst. Oti accompanied by Mst. Pankadi came to the house of Mst. Oti wife of Siremal, removed the quilt from her face and found that she is dead, it is alleged that some blood was coming out of her mouth and nostrills. Her tongue was protruding out and she had certain scratches of nail on her neck. Her Gudri and Kanchli were also found blood stained. However, the relatives of Mst. Oti widow of Siremal cremated her body on 2.1.1976 without lodging any report in the Police. The matter did not rest there. The villagers became highly suspicious about the death of Mst. Oti and, therefore, PW 2 Gangaram lodged a written report at PS., Ummedpura on 3.1.1976 informing the Police that Mst. Oti widow of Siremal has died in suspicious circumstances and her body has been cremated a day before 3.1.1976 by her relations and the matter needed enquiry. This written report has been marked Ex. P. 3. 3. The police immediately came in to action and went to the place of the occurrence. The police conducted a preliminary enquiry and came to the conclusion that accused Phuliya, Indermal and Jabarmal have committed this murder in order to take away her ornaments which she was always wearing and two other accused persons i.e. Kapurchand and Hemraj were instrumental in cremating her dead body without informing the police although they knew very well that she has died in suspicious circumstances and so, a case against accused Jabarmal, Indermal and Phuliya was registered under sections 302, 460, 380 and 1203 IPC whereas a case under section 201 IPC was registered against Kapurchand and Hemraj. The site was inspected and the site plan has been marked Ex. P. 16 whereas the site inspection memo has been marked Ex. P. 8. The site was inspected and the site plan has been marked Ex. P. 16 whereas the site inspection memo has been marked Ex. P. 8. The bedding of deceased Oti which was found blood stained was recovered vide memo Ex. P.9. The accused Jabarmal, Indermal and Phuliya were arrested on 6.1.76 vide memos Ex. P. 17 to Ex. P. 19 respectively. While in custody, accused Indermal and Phuliya both gave information about the recovery of one golden chain each whereas accused Jabarmal gave information about the recovery of one golden ring. These informations have been marked Ex. P. 20 to 22 respectively. One golden chain each was got recovered by accused Indermal and Phuliya on the basis of their information and at their instance, vide memos Ex. P. 10 and 11 respectively whereas one golden ring was recovered from the possession of accused Jabarmal vide memo Ex. P. 14. The blood stained Kanchali and other clothes of deceased Oti were also recovered vide memo Ex. P. 2. 4. After usual investigation, a case against the accused-persons was challaned in the court of learned Munsif and Judicial Magistrate, Jalore, from where, it was committed for trial to the court of leaned Additional Sessions Judge, Jalore. The learned Additional Sessions Judge charged the accused Jabarmal, Indermal and Phuliya with the offence under sections 120B, 302/34, 460 and 392 IPC whereas accused Kapurchand and Hemraj were charged with the offence under s. 201 IPC. The accused-persons did not plead guilty to the charges and claimed trial whereupon the prosecution examined as many as 16 witnesses in support of its case. The statements of the accused-persons were recorded under s. 313 Cr. PC. They have totally denied the occurrence and have examined two witnesses in their defence. After hearing the parties, the learned lower court decided the case as aforesaid and hence this appeal by the convicted accused-appellants Phuliya, Indermal and Jabarmal. 5. We have heard M/s. M.C. Bhandari and D.K. Purohit, learned counsel for the accused appellants and Mr. S.K. Mathur, learned Public Prosecutor for the State. 6. In this case, the learned lower court has held that actually Jabarmal was not in the village when this robbery with murder was committed. He was at village Senthu on that day which is situated at a distance of about 25 miles from the place of the occurrence. S.K. Mathur, learned Public Prosecutor for the State. 6. In this case, the learned lower court has held that actually Jabarmal was not in the village when this robbery with murder was committed. He was at village Senthu on that day which is situated at a distance of about 25 miles from the place of the occurrence. The accused Jabarmal is a peon in the Government Primary School, Senthu. It has, however, held that accused Phuliya and Indermal have entered into the house of Mst. Oti widow of Siremal, killed her and removed the ornaments from her body. It has not believed the testimony of PW 15 Champalal who has been produced by the prosecution to prove the conspiracy and so, the accused persons have been acquitted of the offence under s. 120-B IPC but it has held that the recovery of ornaments from the accused-persons Phuliya and Indermal coupled with the fact that they were in the village on that day ard the fact that they have not explained the possession of the robbed ornaments in any manner and as such it was held that the commission of robbery and murder form part of the same transaction because these ornaments which were recovered from the possession of these two accused-appellants were worn by Mst. Oti and they could not have been removed from her person without killing her. As these ornaments have been identified by the witnesses as belonging to Mst. Oti, it held accused Phuliya and Indermal guilty of the offences under sections 302/34 and 392 IPC. In view of its finding that Jabarmal was not in the village on the date of the occurrence but he was at Senthu, he has acquitted accused Jabarmal of the offence under s. 302 IPC. but as he has not been able to explain the recovery of the ring from his possession, he has been held guilty of the offence under s. 411 IPC. 7. M/s. M.C. Bhandari and D.K. Purohit, learned counsels appearing for the accused-appellants have submitted that there is not an iota of evidence to connect the accused-persons with the murder of Mst. Oti. They have further submitted that actually, from the facts and circumstances of this case, it is not even proved that the death of Mst. Oti was homicidal. 8. M/s. M.C. Bhandari and D.K. Purohit, learned counsels appearing for the accused-appellants have submitted that there is not an iota of evidence to connect the accused-persons with the murder of Mst. Oti. They have further submitted that actually, from the facts and circumstances of this case, it is not even proved that the death of Mst. Oti was homicidal. 8. We have given our most anxious consideration to the submissions made by the learned counsel appearing for the appellants as well as the learned Public Prosecutor for the State. 9. In this case, the prosecution has examined three witnesses to prove that the death of Mst. Oti widow of siremal was homicidal. They are PW 1 Mst. Oti, PW 3 Mst. Pankudi and PW 6 Mst. Lachhi. PW 1 Mst. Oti has stated that her mother-in-law Mst. Oti was hale and hearty on the previous evening. She was wearing two golden chains and one golden ring. According to her, the idol of 'Bayasa' was attached on the 'Phool' of one of the golden chains and to the other golden chain, one golden ear and teeth cleansing apparatus was attached. According to the prosecution, nobody has seen the commission of the murder of Mst. Oti. The case is entirely based on circumstantial evidence. The first person who entered the house of Mst. Oti widow of Siremal was, PW 3 Mst. Pankudi PW 3 Mst. Pankudi has stated that she called out the name of Mst. Oti from outside but she did not responded, therefore, she pushed the door of the house and then she went inside the Pole and found that Mst. Oti was sleeping on the Charpoi covered with a quit. She again called out her name but she did not respond and this raised her suspicion and she came out of the house of Mst. Oti and stated from her own house but in the way, she met Mst. Oti (PW 1) (the daughter-in-law of deceased Mst. Oti) and informed her that her mother-in-law Mst. Oti has not responded to her calls and so, she should go and find out what has happened to her she does not say that she has accompanied PW 1 Mst. Oti to the house of deceased Mst. Oti. She has also not stated that she dead body of Mst. Oti and found the presence of any blood from her nostrills and mouth. Oti to the house of deceased Mst. Oti. She has also not stated that she dead body of Mst. Oti and found the presence of any blood from her nostrills and mouth. Rather, her statement is that she has not seen dead body and, therefore, she is not in a position to say how Mst. Oti widow of Siremal has died. 10. PW 1 Mst. Oti has stated that on information given by PW 3 Mst. Pankudi, she went to her mother-in-law's house & thereupon, removing the quilt from he face, she found that the blood was oozing out of her mouth and nose and her tongue was protruding out. The blood was also found on the bedding as also n the Kanchli which she was wearing. In her cross-examination, she has stated that she did not see any scratches on the neck of her mother-in-law. Thus, she has denied the suggestion that any scratches were found on her neck. She has stated that she found any thumb marks on her trachea or on the middle part of the neck. By mere scratches on the neck, one does not die. It was asked to her in cross-examination as to whether her mother-in-law Mst. Oti has vomited blood but she has stated that she cannot say whether she has actually vomited. The bedding and Kanchali have been seized by the Police vide memo Ex. P 9 and 23 respectively. It is alleged that they were sent for chemical and sereological examination for detecting the presence of the human blood but no chemical and sereological examination reports have been brought on record and, therefore, it is difficult to conclude that any blood much less the human blood was found either on the bedding or on the Kanchali. It is further difficult to hold whether the oozing out of the blood or protruding out of the tongue was the result of vomiting of the blood or it was the result of strangulation because not a word has been said about strangulation or presence of any marks found on the front portion of the neck. 11. PW 6 Mst. Lachhi is the wife of Siremal's brother's son. She too has stated that she saw Mst. Oti widow of Siremal alive, bale and hearty on the previous evening. When she went to the house of Mst. 11. PW 6 Mst. Lachhi is the wife of Siremal's brother's son. She too has stated that she saw Mst. Oti widow of Siremal alive, bale and hearty on the previous evening. When she went to the house of Mst. Oti, she found that blood was oozing out of her mouth and nose. Her tongue has come out of her mouth Her clothes were blood stained. Her Gudri on which she was sleeping was also found blood stained. We have already mentioned above that no chemical and serological reports have been brought on record. Regarding scratches on the neck, it is not a conclusive evidence of strangulation. The scratches can come even by scratching with one's own nails. So far as oozing out of the blood from mouth and nose is concerned, PW 6 Mst. Lachhi was also cross-examined and it was asked to her in cross-examination that whether this oozing out of the blood was the result of any vomitting to which she has replied that she does not know. She has further admitted in her cross-examination that she has not disclosed it to any-body else that she found some scratches on the neck of deceased Oti and she saw her tongue protruding out of the mouth. When she has not disclosed this fact to anybody, how can it be believed that whatever she has stated before the Court is correct. Morever, it does not stand to reason as to why they allowed the cremation of the dead body of Mst. Oti if they suspected any foul play. It is clear from the prosecution evidence that none of the family members or relations were involved in the commission of murder of Mst. Oti, which was an act of the persons who wanted to deprive Mst. Oti of her ornaments. If such signs were found op the person of Mst. Oti, what prevented the relations of Mst. Oti not to bring these facts to the notice of the Police by a written or oral report and why did they sallow the cremation of her dead body if they suspected any commission of an offence. This is indicative of the fact that no foul play was suspected so far as the death of Mst. Oti is concerned. If one has no guilty intention, one can never screen the offence of murder just for no thing. This is indicative of the fact that no foul play was suspected so far as the death of Mst. Oti is concerned. If one has no guilty intention, one can never screen the offence of murder just for no thing. We, therefore, find great force in the submissions of M/s Bhandari and Purohit that the prosecution has failed to prove that the death of Mst. Oti was homicidal. We feel that the clinching evidence on the issue is missing. On account of the cremation of the dead body, the postmortem examination could not be conducted. No other person then these three witnesses has seen the dead body of Mst. Oti was homicidal. Once it is held that the snatching of the ornaments and the death of the deceased are not part of the same transaction then the accused-person cannot be held guilty of the offence under s. 392 IPC also. It is quite probable that after the death of Mst. Oti, somebody might have removed these armaments. The information about the recovery of these ornaments was given on 7.1.1976 and the gold chains were recovered on 8.1.1976 i.e. 6 days after the occurrence. PW 16 Narpatsingh, Investigating Officer has stated that he arrested the accused-persons on 6.1.76. He has proved the arrest memos of accused Jabarmal, Indermal and Phuliya marked Ex. P 17 to Ex. P 19 respectively. He has further stated that accused Indermal while in custody gave information to him on 7.1.76 that he is ready to get one golden chain recovered and that informations has been recorded in Ex. P 20. In pursuance of that information, the accused Indermal took him to the place pointed by him in the information memo i.e. he took him to his Nohra and there, near the bath room, he dug a hole in the earth to the extent of 1 cubit and took out one cloth packing containing golden chain and delivered it to the SHO in the presence of the Motbir. The golden chain was seized and sealed at the spot vide memo Ex. P 10. This testimony of PW 16 Narpat Singh is fully corroborated by PW 9 Sankalchand, who has stated that Indermal took them to his house. The golden chain was seized and sealed at the spot vide memo Ex. P 10. This testimony of PW 16 Narpat Singh is fully corroborated by PW 9 Sankalchand, who has stated that Indermal took them to his house. He dug a hole near his bath room and took out with cloths packing, containing the golden chain, which in weighty was tound 31/2 tolas and then that Chain was seized and sealed in his presence vide memo Ex. P 10, which bears his signatures at place A to B. Ex. P 10 bears the signatures of Narpat Singh (PW 16) and accused Indermal at place C to D and E to F respectively. 12. PW 16 Narpatsingh has further stated that on 7.1.76, accused Phuliya also gave him information about the recovery of one golden chain and that information was recorded by him in Ex. P 21. In pursuance of that information, accused Phuliya took him to his house on 8.1.76 and there, inside his house, after digging the earth, he took out a packing of red cloth containing one golden chain weighing about 31/2 tolas and 2 rattis. That Chain was seized and sealed at the spot vide memo Ex. P 11 which bears his signatures at place C to D and that of the accused at place E to F. This statement of PW 16 Narpat Singh is fully corroborated by PW 8 Sankalchand. He too has proved this recovery and has also proved that Ex. P 11 bears his signatures at place A to B. A thorough cross-examination has been done with both these witnesses but so far as the recovery part of it concerned, their testimony remains unassailed. 13. PW 16 Narpatsingh has further stated that on 7.1.76 accused Jabarmal has also given him information about the recovery of one golden ring, which was delivered to him by accused Phuliya. In pursuance of that information, the accused Jabarmal took the SHO with him to village Santhu where he was serving as a peon in Government Primary School and there, he took out the key of his box from below his clothes and books, he took out a golden ring tied in a small Kothli (cloth pocket) and gave it to the SHO, which was seized by him vide memo Ex. P 14, which bears his signatures at place E to F and that of the accused at place G to N. The statement of this witness regarding recovery of one Golden ring by accused Jabarmal has been fully corroborated by PW 14 Hafta. Of course, PW 10 Mohanlal another Motbir has been produced to prove this recovery but he has stated that the key of the box was searched by the SHO himself and it was he who opened the box and from that box, he took out the golden ring. He has been declared hostile and has been cross-examined. So far as PW 14 Hafta is concerned, he has categorically supported the testimony of PW 16 Narpatsingh regarding the recovery of golden ring. Thus, so far as these three recoveries are concerned, they have been amply proved by the prosecution by producing reliable and credible evidence. 14. All these three articles were put up for identification to PW 1 Mst. Oti, PW 4 Ramchandra son of Chunilal (deceased Oti's grand son) and both of them have identified these three articles correctly. PW 13 R.S. Solanki has stated that he conducted the identification parade of these three articles. He mixed with them 5 other golden chains and two other golden rings. He has stated that both these witnesses have correctly identified all these three articles. He has proved the identification memo Ex. P 4, which bears his signatures at place A to B. Not a single question has been asked to this witness on behalf of the accused persons which clearly shows that identification part of the testimony of the witnesses has not been challenged on behalf of the accused-person. We, therefore, agree with the conclusion of the learned lower court that one golden Chain each was got recovered by accused Phuliya and Indermal on their information and at their instance and one golden ring was got recovered from his possession by accused Jabarmal after giving information about it. All these three article belonged to Mst. Oti. This fact has been fully proved by PW1 Mst. Oti and PW 4 Ramchander. 15. Now, it has to be seen what offence if any can be held as proved against the accused-persons on the basis of this evidence. We have already held that the prosecution has failed to prove that the death of Mst. Oti. This fact has been fully proved by PW1 Mst. Oti and PW 4 Ramchander. 15. Now, it has to be seen what offence if any can be held as proved against the accused-persons on the basis of this evidence. We have already held that the prosecution has failed to prove that the death of Mst. Oti widow of Siremal was homicide and, therefore, we disagree with the conclusions of the learned lower court that snatching of the ornaments and the homicide death of Mst. Oti formed part of the same transactions. The mere recovery of the ornaments which the witnesses have seen Mst. Oti wearing before her death by itself is not a conclusive circumstances to prove that the persons who were found in possession of these articles must have committed murder of Mst. Oti widow of Siremal. The mere recovery of these ornaments without any other connecting link in the chain is only indicative of the fact that the possessors of these articles are either thieves of receivers of such stolen articles. If the accused-persons ever found in possession of the stolen articles soon after her death, it might have been presumed that they were thieves otherwise only the alternative presumption can be taken that they were receivers of the stolen property. 16. Mr. M.C. Bhandari, learned counsel for the accused-person has submitted that so far as accused Jabarmal is concerned, the learned lower court has categorically recorded a finding that he was not present in the village when the alleged murder and robbery has taken place. It has further categorically disbelieved the evidence of PW 15 Champalal regarding conspiracy to commit murder of Mst. Oti in which it was alleged that Jabarmal was one of the conspirators. It is clear from the information of accused Jabarmal that he received this ring from accused Phuliya. Thus, he has given the source of his possession. A man can be held guilty of the offence under s. 411 IPC only when the prosecution can prove that he has received this property knowing it to be stolen. There is not an iota of evidence to prove this fact that accused Jabarmal received this ring from accused Phuliya knowing it to be stolen. A man can be held guilty of the offence under s. 411 IPC only when the prosecution can prove that he has received this property knowing it to be stolen. There is not an iota of evidence to prove this fact that accused Jabarmal received this ring from accused Phuliya knowing it to be stolen. When the source of possession has been disclosed by the accused during the investigation itself then it was necessary for the prosecution to have brought some evidence on record to prove that accused Jabarmal has received this property knowing it to be stolen specially when the learned lower court has categorically held that he was not in the village when the murder was committed or the ornaments were stolen. We find great force in the argument of Mr. M C. Bhandari. Accused Jabarmal disclosed in his statement that he received this ring from accused Phuliya. Once the course was disclosed, it was the duty of the prosecution to have proved that he received it from accused Phuliya knowing it to be stolen. Not an iota of evidence has been brought on record to prove that fact. We are, therefore, persuaded to hold that the learned lower court was not justified in holding accused Jabarmal guilty of the offences under s. 411 IPC. 17. So far as accused Phuliya and Indermal are concerned, they have been found in possession of the stolen property which belonged to Mst. Oti widow of Siremal. They have not explained their possession. As the possession was not very recent i.e. the recoveries have been made 6-7 days after the occurrence, it can safely be presumed as per s. 114 a of the Evidence Act that they are receivers of the stolen property. In this view of the matter, we set aside their conviction under sections 302 and 392 IPC and instead we are inclined to hold that they are guilty of the offences under s. 411 IPC. Accused Indermal has remained in custody from 6.1.76 to 21.7.76 whereas accused Phuliya has remained in custody from 6.1.76 to 14.8.76. The occurrence dated back to 1.1.76. 10 years have already elapsed. Looking to these facts and circumstances of the case, we feel inclined to hold that it will meet the ends of justice if accused Indermal and Phuliya are sentenced the period of their custody alongwith a fine of Rs. The occurrence dated back to 1.1.76. 10 years have already elapsed. Looking to these facts and circumstances of the case, we feel inclined to hold that it will meet the ends of justice if accused Indermal and Phuliya are sentenced the period of their custody alongwith a fine of Rs. 1,000/- and in default of the payment of this amount of fine, to further undergo rigorous imprisonment for 6 months. So far as accused Jabarmal is concerned, he deserves acquittal by giving him the benefit of doubt. 18. In the result, we accept the appeal of accused Jabarmal, set aside the conviction and sentence recorded against him by the learned Additional Sessions Judge, Jalore 2nd acquit him of the offence under s. 411 IPC by giving him the benefit of doubt. So far as the appeals of accused Phuliya and Indermal are concerned, they are partly accepted and the judgment of the learned lower court holding the accused-appellants Indermal and Phuliya guilty of the offence under Sections 302/34 and 392 IPC is set aside. However, the accused-appellants Indermal and Phuliya are held guilty of the offence under s. 411 IPC and they are sentenced to the period of their custody alongwith a fine of Rs. 1000/- and in default, to further undergo rigorous imprisonment for 6 months. 19. Learned counsel for the appellants prays for six weeks time to deposit the amount of fine. Time prayed for is allowed. If the amount of fine is not deposited within the aforesaid time, the learned Sessions Judge, Jalore is directed to effect arrest of the accused appellants Inder Mal and Phuliya to serve out the sentence imposed against them in default of the payment of fine.Appeal partly accepted. *******