JUDGMENT 1. - The sole appellant, Hari Ram Gujar, was tried before the Additional Sessions Judge-cum Special Judge, Alwar in Sessions Case No. 151/92, for causing murder with robbery of Smt. Rama Bai belonging to Scheduled Tribe. He was convicted under Sections 302 and 394 read with Section 395 of Indian Penal Code (for short I.P.C.) and also under Section 3(i)(xi) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989. The sentences of imprisonment and fine awarded to the appellant under each court are detailed out in the judgment of the trial Court. Being aggrieved against the aforesaid judgment and his conviction, the appellant has preferred this appeal. 2. The facts of the case are set out extensively in the impugned judgment of the trial Court and they lie within a narrow compass. Put briefly, the prosecution case 'is that in the morning of December 10, 1990, Smt. Rama Bai, wife of Kailash Chand Meena, had gone in the jungle known as 'Jungle-Bhairuwala', to collect green leaves. While she was returning home, accused-appellant met her in the way and wanted to commit sexual assault on her. When she declined to oblige him, he inflicted axe blows on her legs and amputated her both legs at the level of lower ⅓rd shaft of right and left tibia and fabula. When she did not return home, her husband Kailas went for her search and found her lying on the bank of river in an.injured condition with amputated legs. She was un-conscious at that time and immediately taken to Primary Health Centre, Tehla. At about 4.55 p.m. on the same day, a male-nurse (Compounder) of the hospital sent an intimation in writing (Ex.P. 48) to the S.H.O. Police Station, Tehla informing him about non-availability of doctor in the hospital and the fact of bringing Smt. Rama to the Hospital in a seriously injured condition with both legs amputated. After making necessary entry in Rojnamcha Am', a copy of which is placed on record as Ex.P. 49A, the Head Constable-Om Prakash immediately reached to the hospital and recorded 'Parcha Bayan' (Ex.P. 6) of Smt. Rama, at 5.45 p.m., which was treated as the First Information Report (F.I.R.) and Crime No. 104/90 was registered at the Police Station Tehla Under sections 307 and 302 IPC. A formal FIR Ex.P. 7, was also chalked out. A formal FIR Ex.P. 7, was also chalked out. The investigation of the case was made by PW 25-S.H.O., Shambhu Dayal and P.W. 28, Head Constable, Om Prakash. In the Course of investigation, a Tanchiya 'Kulhari' was seized by Head Constable Om Prakash on 10.12.90 vide Ex.P. 4, from Chhote Lal, Younger brother of Rama's husband Kailash. Site plan (Ex.P. 3) of the Place of occurrence was also prepared on 11.12.1990. The appellant, Hari Ram was arrested on 19.12.1990 vide arrest-memo Ex.P. 23 and on the basis of disclosure made by him, a pair of silver 'Kada' and a silver 'Kanakti', (an ornament of neck) were recovered vide recovery-memo Ex.P. 24. Blood smeared and control soil, a pair of Chappals and one tooth were seized from the place of occurrence, vide memo, Ex.P. 26. The injuries of Smt. Rama were examined by the Medical Jurist, General Hospital, Alwar on 11.12.90 as she was shifted and admitted there as an indoor patient. The Doctor examined the injuries on her person, vide injury report, Ex.P. 5. She had sustained 5 injuries by sharp edged weapon which included amputation of lower ⅓rd of left and right legs.At the time of examination, she was conscious, but her general condition was poor. Her right and left legs were X-rayed and X-ray report showed amputation of both legs at the level of lower ⅓rd shaft of left and right tibia and fabula. She was discharged from the hospital on 3.1.91 and during investigation she died on 31.1.91. However, no post-mortem examination of her dead body was conducted. While she was alive, her dying declaration (Ex.P. 29) was recorded 27.12.90 by the Addl. Chief Judicial Magistrate No. 2, Alwar. After completion of usual investigation, a charge-sheet was filed in the court of the concerned Magistrate. As the case was exclusively triable by the Court of Sessions, the appellant was ultimately tried in the Court of Additional Sessions Judge-cum-Special Judge, Alwar who convicted and sentenced him as stated here-in-before. 3. For seeking conviction of the appellant prosecution has led and relied upon the following evidence : (i) 1 vo statements/dying declarations of the deceased Smt. Rama Bai. The first is in the shape of 'Parcha Bayan' made to PW 28, Head-Constable Om Prakash which was treated as FIR. The Second Statement was recorded by PW 26 Shri Prabhu Dayal Gupta, Additional Munsif and Judicial Magistrate .................. The first is in the shape of 'Parcha Bayan' made to PW 28, Head-Constable Om Prakash which was treated as FIR. The Second Statement was recorded by PW 26 Shri Prabhu Dayal Gupta, Additional Munsif and Judicial Magistrate .................. (ii) Oral dying declarations made by the deceased before PW 1 Kailash, PW 3 Chhote Lal, PW 5 Arjun, PW 7 Ram Shai Meena and PW 8 Ramji Lal Meena; (iii) recovery of two silver 'Kadas' (Articles 1 and 2) and a silver 'Kanakti' (Article 3) at the instance and disclosure of the appellant. The pair of 'Karla' was found to be stained with human blood vide Forensic Science Laboratory (FSL) report, Ex.P. 47. These articles were belonging to the deceased and she was wearing them at the time of incident. (iv) Medical evidence and other corroborative evidence, such as, site plan and seizure of 'Kulhari' (Tanchia). 4. Shri R.S. Chauhan, appearing as Amicus Curiae for the appellant, streneously contended that the prosecution has not led satisfactory evidence to prove that the death of Smt. Rama Bai was as a result of the injuries sustained by her at the time of incident. According to Shri Chauhan, in absence of cogent and reliable evidence that the death of Smt. Rama Bai was as a direct result of the injuries sustained by her, her statement/dying declarations made to various persons are not admissible in evidence.There is no dispute so far the legal position is concerned. Section 32(1) of the Evidence Act makes statement of a person, who has died, relevant only when that statement relates to the cause of his/her death or as to any of the circumstances of transaction which resulted in his/her death, in cases in which cause of that person's death comes into question. If it is not proved that the declarant had died as a result of the injuries sustained by her in the incident, her statement cannot be said to be the statement as to the cause of her death or any of the circumstances of the transaction which resulted in her death. This legal aspect is obvious and the learned Public Prosecutor also is not in a position to dispute it. (See Ratan Govind v. State of Bihar, AIR 1959 SC 18 (1), Moti Singh & Anr. v. State of U.P. 5. This legal aspect is obvious and the learned Public Prosecutor also is not in a position to dispute it. (See Ratan Govind v. State of Bihar, AIR 1959 SC 18 (1), Moti Singh & Anr. v. State of U.P. 5. However, there is dispute in the instant case whether Smt. Rama Bai died as a result of the injuries sustained by her in the incident. In other words, whether the injuries sustained by her are responsible for causing her death ?Before we discuss the evidence on this point, it shall be useful to give some relevant dates. The incident took place on 10.12.90 and Smt. Rama Bai was admitted in the hospital at Alwar on the same day. Her injuries were examined by the doctor on 11.12.90 vide injury report Ex.P. 5. She was discharged from the hospital on 3.1.91 and died on 31.1.91. These dates are not disputed before us. Dr. Mahendra Kumar who examined the injuries of Smt. Rama Bai on 11.12.90 has stated that out of the five injuries sustained by Smt. Rama Bai, injuries No. 1, 2 and 3 were simple in nature and injuries No. 4 and 5 were her non-vital part. It is true that injuries No. 4 and 5 are amputations of both legs at the level of lower ⅓rd shaft of tibia and fabula and this fact is also proved by PW 23-Dr. S.K. Singhal, Sr. Radiologist. But the fact that Smt. Rama Bai had sustained amputations of both the legs, which were described as grievous in nature, is not by itself sufficient for holding that her death, which took place about 50 days after the incident, must have been on account of those injuries. Sort. Rama Bai was discharged from the hospital on 3.1.91 and there is no further evidence on record to show the circumstances which developed later on resulting in her death. No post-mortem examination of her dead body was made. To prove the charge of her murder it is imperative to prove that she had died on account of the injuries sustained by her in the incident. We find, after perusing entire materials on record, that there is no evidence to support the finding of the trial Court to hold that Smt. Rama Bai had died due to the injuries received by her in the incident. We find, after perusing entire materials on record, that there is no evidence to support the finding of the trial Court to hold that Smt. Rama Bai had died due to the injuries received by her in the incident. The effect of this fording is that her statement in the shape of dying declarations cannot be admissible in evidence. When it is not proved that Smt. Rama Bai had died as a result of the injuries received by her in the incident, her statement cannot be said to relate to the cause of her death or any of the circumstances of the transaction which resulted in her death. Consequently, the so called evidence in the shape of dying declarations referred to above cannot be taken into consideration to prove the guilt of the appellant. 6. Having held so, the next important question that calls for our consideration is whether the remaining evidence is sufficient to prove any offence against the appellant ? In this connection, the contention of Shri Chouhan is that after excluding the evidence in the shape of so-called dying declarations, there remains no evidence worth credence to establish the crime of murder and robbery against the appellant for recording his conviction under Sections 302 and 394 read with Section 397. Assailing the evidence of recovery of ornaments, Mr. Chauhan contended that it was made from an open place and not from the possession of the appellant. Then, it was urged that from the recovery of ornaments alone, no inference of murder or robbery can be drawn against the appellant. On the other hand, learned Public Prosecutor vehemently contended that on the basis of disclosure made by the appellant, a pair of silver 'Kada' (Articles 1 and 2) and a silver Kasikati (Article 3) were recovered and it is established by cogent and reliable evidence that the ornaments were belonging to Smt. Rama Bai and she was wearing them at the time of incident. Learned Public Prosecutor also drew our attention that on silver 'Kadas' human blood has been detected by Serologist and according to him this evidence was sufficient to connect the appellant with the crime of murder and robbery. 7. We carefully considered the above contentions in the light of evidence adduced in this case through which we have been taken by the learned counsel. 7. We carefully considered the above contentions in the light of evidence adduced in this case through which we have been taken by the learned counsel. It has been established in the instant case that the appellant, Hari Ram was taken into custody on Dec. 12, vide arrest-memo (Ex.P. 23). While in custody, he made disclosure on 23rd December vide memo Ex.P. 24, of the place where he had concealed the pair of silver 'Kadas' and 'Kanakti'. In pursuance to the said disclosure, the Police recovered one pair of silver 'Kadas' (Articles 1 and 2) and a silver Kanakti (Art. 3) vide memo Ex.P. 2, in presence of the witnesses Ram Kishan, Prasadi Lal and Chhote Lal Meena. The recovery has been proved beyond doubt from the testimony of the I.O.-Shambhu Dayal (PW 25) anu Ram Kishan (PW 11). It is relevant to state here that practically no cross-examination has been made by the defence counsel to challenge the recovery and seizure of the silver ornaments. On 4.1.91, a test identification was held in which recovered ornaments, namely, silver 'Kadas' and silver 'Kanakti' were duly identified by the husband of the deceased PW 1-Kailash Meena as belonging to the deceased Smt. Rama Bai. The memo of identification is Ex.P. 46 on record, which has been proved by PW 13 Ram Kishan Meena. Then, from the report of Forensic Science Laboratory, (F.S.L.), Ex.P. 27, which is admissible under section 293 Cr.P.C., it is also proved that the pair of 'Kada' were stained with human blood. 8. Thus, the following facts and circumstances are proved beyond any manner of doubt in the case : (i) Smt. Rama Bai wife of Kailash Meena had gone in the jungle 'Bhairuwala' to collect green leaves on 10.12.90. (ii) When she did not return home, her husband Kailash (PW 1) went in her search and found her lying at the bank of river with amputated legs. (iii) Her legs were amputated by the miscreant to remove her silver 'Kadas' which she was wearing at that time. Thus, the robbery and the injuries caused to Smt. Rama was an integral part of the same incident. (iv) The appellant was arrested on 19.12.90 vide arrest memo Ex.P. 23. On 23.12.90, he made disclosure vide Ex.P. 24 of the place where he had concealed silver 'Kadas' and silver 'Kanakti'. Thus, the robbery and the injuries caused to Smt. Rama was an integral part of the same incident. (iv) The appellant was arrested on 19.12.90 vide arrest memo Ex.P. 23. On 23.12.90, he made disclosure vide Ex.P. 24 of the place where he had concealed silver 'Kadas' and silver 'Kanakti'. (v) On the same day i.e. 23.12.90, two silver 'Kadas' (Articles 1 and 2) and a silver Kanakti (Article 3) were got recovered by the appellant from the place disclosed by him. The articles were belonging to the deceased Smt. Rama Bai and she was wearing them at the time of the incident. (vi) The articles were identified in test identification as well as in Court by PW 1-Kailash, Husband of the deceased as belonging to Smt. Rama Bai. The silver 'Kadas' were found stained with blood. The other evidence i.e. the statements/dying declarations made by the deceased and the evidence identifying the accused by Smt. Rama Bai deceased in test parade are excluded from consideration as being not admissible in evidence. The dying declarations are in admissible in evidence as prosecution has failed to establish that the death of Smt. Rama Bai was due to the injuries sustained by her in the incident and the evidence of test identification parade during investigation, in which Smt. Rama Bai had identified the appellant to be the miscreant, is not a substantive piece of evidence. Smt. Rama Bai had died before her statement could be recorded in the trial Court. 9. The next question which arises for consideration is as to what offence or offences is/are made out against the appellant from the proved circumstances ?In the instant case, the recovery of the stolen articles i.e. silver 'Kadas', (Arts. 1 and 2) and silver Kanakti' (Art. 3) at the instance of the appellant is proved beyond any manner of doubt, as stated earlier. It is also established that those articles were belonging to the deceased Smt. Rama Bai and she was wearing them at the time of the incident. It is also established that the robbery of the silver ornaments is an integral part of the injuries sustained by the deceased. In other words, legs of Smt. Rama Bai were amputated by the miscreant in order to remove silver ornaments. It is also established that the robbery of the silver ornaments is an integral part of the injuries sustained by the deceased. In other words, legs of Smt. Rama Bai were amputated by the miscreant in order to remove silver ornaments. It is important to note that recovery of the ornaments was made more or less immediately after the incident and soon after the arrest of the appellant. The questions is whether in the facts and circumstances of the case, it is justified to draw a presumption of the guilt of robbery and causing injuries to the deceased Smt. Rama Bai from recovery of the ornaments under section 114 Illustration (a) of the Evidence Act ? 10. In Tulsi Ram Kanu v. The State AIR 1954 SC 1 (1), it was laid down as under : "The presumption permitted to be drawn under Section 114, Illu. (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. This criticism applied equal to the reasoning of the High Court for its conclusion." The ratio of this decision is that if the ornaments belonging to the deceased are found in possession of a person soon after the incident a presumption of guilt against that person is permissible. 11. In Earabhadrappa alias Krishnappa v. State of Karnataka, (1983) 2 SCC 330 (2) it was again reiterated as under : "The nature of presumption under Illustration (a) to Section 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as to the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property." 12. In Gulab Chand v. State of M.P., 1995 Cr. L.R. (SC) 409 (3), the presumption of murder and robbery was drawn against the accused from the recent recovery of articles belonging to the deceased, observing that the murder and robbery were integral part of the same transaction. 13. Applying the above principle as laid down by the Apex Court of the country, if we examine the facts of the present case, there remains no doubt that the robbery of ornaments and the injuries to the deceased were integral part of the same transaction and silver 'Kadas' were taken away by the miscreant after amputation of the legs of the deceased. The incident had taken place on 10.12.90 and the appellant was arrested on 19.12.90. He made disclosure on 23.12.90 and on the same day, in pursuance to the said disclosure, ornaments were recovered from a hidden place. Thus, it can safely be said that the recovery of ornaments was recent and there was no time or any circumstance to infer that these ornaments might have passed to the appellant by some one else. The recovery of the articles was soon after the arrest of the appellant. The appellant cannot be held guilty for the murder of Smt. Rama Bai for want of evidence that her death was due to the injuries sustained by her in the incident. In view of this, the appellant can be convicted under Section 326 IPC for causing her grievous injuries and also for committing robbery under Section 394 read with Section 397 IPC. The appellant has been sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs. 200/- under Section 394 read with section 397 IPC. In the facts and circumstances, this sentence cannot be said to be harsh. Under Section 326 IPC, we are inclined to sentence him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-. In default of payment of fine, to under-go further rigorous imprisonment for one year. In the facts and circumstances, this sentence cannot be said to be harsh. Under Section 326 IPC, we are inclined to sentence him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-. In default of payment of fine, to under-go further rigorous imprisonment for one year. The conviction and sentence of the appellant under section 3(1) (xi) of SC/ST (Prevention of Atrocities) Act deserves to be set aside. 14. The net result of the above discussions is that the conviction and sentence of the appellant for the offence under section 302 IPC and Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act, 1989 are set aside. He is convicted under section 326 IPC and sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 10,000/-. In default of payment of fine to undergo further rigorous imprisonment for one year. His conviction and sentence under section 394 read with Section 397 IPC as awarded by the trial Court is maintained. The substantive sentences will run concurrently. If the amount of fine is recovered, the whole of it shall be paid to Kailash Meena, the husband of the deceased.The appeal stands disposed of as indicated above.Appeal Accepted in Part. *******