Guman Singh, J.

1. Rakesh Joshi, Radheyshyam, Mahesh Singh and Smt. Babli Devi (appellant herein) were put to trial before the Additional Sessions Judge (Fast Track-2) Jaipur City, Jaipur who vide judgment dated November 6, 2004 convicted and sentenced the appellants as under:

Mahesh Singh:

Under Section 302 IPC,

to suffer imprisonment for life and fine of Rs. 5,000/-, in default to further suffer additional simple imprisonment for one year.

Rakesh Joshi, Radheyshyam and Smt. Babli:

Under Section 302/34 IPC,

to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer additional simple imprisonment for one year.

Rakesh Joshi, Radheyshyam, Mahesh Singh and Smt. Babli:

Under Section 394/34 IPC,

to suffer rigorous imprisonment for ten years and fine of Rs. 2000/-, in default to further suffer additional simple imprisonment for six months.

All the sentences were ordered to, be run concurrently.

2. Briefly stated, a written report was lodged by Pooran Mal informant on February 20, 2002 at 12.30 P.M. at Police Station Vidhan Sabha, Jaipur, wherein it was reported that his wife Jayanti Jain, who was employed as computer operator in Bank of Baroda, Nehru Place, Jaipur, and used to reside at his house situated at Jyoti Nagar as it was near to his place of work while he (informant) himself generally used to stay back at his other house No. 90/125, Patel Marg, Mansarovar for the sake of convenience where he used to do computer job work. However, both of them could meet anytime, any where as per their convenience. Lastly, on (November 17, 2002) Sunday, they were together at their house at Jyoti Nagar upto 10 P.M. when he left for Mansarovar. Informant was informed by his wife that she was to go to Jodhpur with her sister on Monday (November 19, 2002). He then rang up to his wife on Monday at about 5.00 P.M. but there was no response and thus he thought that his wife might had gone to Jodhpur. Thereafter, on 20.2.2002 at 10.00 A.M. his son Deepak who had brought the key of Jyoti Nagar House, rang him up and asked him to reach Jyoti Nagar immediately. Deepak further informed that his mother was dead and the house was found ransacked. Apprehending murder of his wife, the informant lodged this report to the police. On receipt of the report, a case Under Section 302 IPC was registered and the investigation commenced. Panchanama of the dead body was prepared and autopsy on the dead body was got conducted, site map was prepared, accused persons were arrested, recoveries were made and after completing investigation, challan was filed.

3. In due course, the case came up for trial before the learned Additional Sessions Judge (Fast Track No. 2), Jaipur City Jaipur. Charges under Sections 302, 302/23 and 394/d IPC, were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case, examined as many as 34 witnesses. In the explanation under Section 313 Cr.P.C, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge after hearing final submissions, convicted and sentenced the appellant as indicated hereinabove.

4. We have heard learned Counsel for the appellants and the learned Public Prosecutor and with their assistance, scanned the material on record. Learned Counsel for the appellants have argued that there is no direct evidence against the appellants and the nature of evidence adduced by the prosecution pertaining to the recoveries of stolen articles as well as blood stained clothes does not provide for a complete chain of the circumstances which may lead to irresistible conclusion of guilt against appellants.

5. It is true that in a case like the present where there is no direct evidence, the circumstantial evidence can be made the sole basis of conviction if it is of such a character, that every possibility except that of the guilt of the accused for the crime which has been committed has to be ruled out, and the only inference to which that evidence unerringly leads is that, the crime was committed by the accused and no one else. It is further essential that in arriving at the conclusion, the explanation of any circumstance offered by the accused is considered though he may have not succeeded in proving the facts in support of his version. Honble Apex Court had an occasion to consider the nature of circumstances required to be proved in a case of murder and robbery. In Baiju alias Bharosa v. State of Madhya Pradesh (1978) SCC 588, it was observed as under:

14. As has been stated, the prosecution has succeeded in proving beyond any doubt that the commission of the murders and the robbery formed part of one transaction, and the recent and unexplained possession of the stolen property by the appellant justified the presumption that it was he, and no one else, who had committed the murders and the robbery. It will be recalled that the offences were committed on the night intervening January 20 and 21, 1975, and the stolen property was recovered from the house of the appellant or at his instance on January 28, 1975. The appellant was given an opportunity to explain his possession, as well as his conduct in decoying Smt. Lakhpatiya and the other persons who died at his hand, but he was unable to do so. The question whether a presumption should be drawn under illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. We have made a mention of the facts and circumstances bearing on these points and we have no doubt that there was ample jurisdiction for reaching the inevitable conclusion; that it was the appellant and no one else who had committed the four murders and the robbery.

In Ronny alias Ronald James Alwaris v. State of Maharashtra : 1998CriLJ1638 , the Apex Court observed as under:

In Gulab Chand v. State of Madhya Pradesh : [1995]3SCR27 , the question which fell for consideration of this Court was whether presumption under Illustration (a) of Section 114 of the Evidence Act as to commission of murder and robbery by the accused would be attracted. The appellant was charged under Sections 302, 394 and 396 IPC for having committed the murder of Kapuriyabai on the intervening night of 23rd and 24th April, 1979. The trial Court acquitted them of the said offences but convicted him under Section 380 IPC. The High Court allowed the appeal of the State against the said judgment of the learned Sessions Judge. There the appellant was arrested after four days of the occurrence. On search of his house, the stolen articles were recovered. In the test identification parade of the articles, the ornaments were identified as belonging to the deceased by the witnesses. Relying on the judgment of this Court in Tulsiram v. State AIR 1954 SCI. it was held that the presumption under Illustration (a) of Section 114 of the Evidence Act had to be read along with the important time factor and if ornaments of the deceased were found in possession of a person soon after the murder, the presumption of guilt in respect of murder by the possessor of the stolen goods also might to permitted. But if several months have expired, the presumption could not be permitted to be drawn. As in that case some of the ornaments of the deceased were sold by the appellant within 3-4 days and some others were recovered from his house, such close proximity of the recovery was held to be an important time factor. It was held on the facts of that case, that murder and robbery had been proved to be the integral parts of the same transaction and therefore, the presumption would arise under Illustration (a) of Section 114 of the Evidence Act that not only the appellant committed the rubbery but also the murder of the deceased.

6. Death of Smt. Jayanti Jain was undeniable homicidal in nature. As per the post mortem report (Ex. 13) the following ante mortem injuries were fond on her body:

1. Incised wound 5 x 1 cm x muscle deep with clotted blood, on Rt. sub mandibular region, middle part.

2. Incised wound 3 x 1-1/2 cm x muscle deep with clotted blood, on Rt. clavicular region middle 1/3rd portion.

3. Incised wound 20 x 4 cm x cervical vertebrae deep with clotted blood, placed transversely in front of neck at lower 2/3rd portion, extending upto both lateral sides of neck.

4. Incised wound 3 x 1/2 cm x muscle deep with clotted blood placed transversely at Lt. Sub mandibular region.

5. Incised wound 3-1/2 x 1/2 cm x muscle deep with clotted blood, placed transversely, 1 cm below injury No. 4.

6. Incised wound 6 x 3 cm x muscle deep with clotted blood, placed transversely & slight oblique just below angle of Lt. Side mandible.

7. Incised wound 2 x 1 cm x muscle deep with clotted blood, placed obliquely just above injury No. 6.

8. Incised wound 2-1/2 x 1/2 cm x muscle deep with clotted blood, placed transversely & obliquely 1.5 cm posterior to injury No. 6.

9. Incised wound 3 x 1 cm x muscle deep with clotted blood, placed transversely, on Lt. Side neck, middle l/3rd portion, posterolaterally.

10. Three incised wounds, each of size 3/4 cm x 1/2 cm x skin deep with clotted blood, placed near each other, present just above injury No. 9.

11. Incised wound 4 x 1 cm x muscle deep, placed vertically at medial end of Lt. Clavicle with falling downwards.

12. Multiple abrasions of size 1-1/2 x 1/2 cm to 1/2 x 1/4 cm with dried clotted blood, present on Rt. Cheek, Lt. cheek, Lt. & Rt. sub mandibular regions & front of neck lower l/3rd portion.

All above mentioned injures were antemortem in nature. In the opinion of Dr. H.L. Bairwa (PW. 3), the cause of death was shock & haemorrhage due to injuries to neck, which were sufficient to cause death in ordinary course of nature.

7. With a view to ascertain whether the murder and robbery were part of one transaction, from the evidence adduced it is revealed that Smt. Jayanti Jain resided in her first floor house No. 24 K 7 at Jyoti Nagar, Jaipur as her Bank where she was employed was situated nearby at Nehru Place. Her husband, Pooran Mal (PW. 1) usually stayed back in their other house No. 90/125, Patel Marg, Mansarovar where he used to do computer job work. While their son Deepak Jain (PW. 4) used to live with his wife Smt. Reena Jain (PW. 7) at house No. 80/98, Mansarovar where he used to run a computer training centre. The deceased and her husband used to meet at any of their residence as per their convenience. On February 17, 2007 at about 10.00 P.M., Pooran Mal (PW. 1) went from his Jyoti Nagar house to Mansarovar, leaving behind his wife, who had informed him that pn the following day she intended to go to Jodhpur. So, when Pooran Mal (PW. 1) rang her up on 18th in the evening, there was no response and he thought that deceased might had left for Jodhpur. Deepak Jain (PW. 4) had a talk to his mother on 17th and he was also informed by the deceased that she intended to go to Jodhpur on the following day. He also rang her up on 18th, 19th and also on 20th but there was no response. So, he got worried and enquired from the Bank where she worked and was told that she was not coming for last two days. So, he obtained duplicate key of the house from Mansarovar and went to Jyoti Nagar. He found the house ransacked and her mother was found lying dead on the floor in a pool of blood. He then rang up his father, cousin Shiyansh and Hitesh and also his wife. Then the matter was reported to the police by his father. From evidence of Deepak (PW. 4) and Pooran Mal (PW. 1), it is further revealed that gold bangles, gold chain, earrings and nose ring worn by the deceased were missing from her body. The ornaments and other articles found missing from the house were separately reported to the police vide report Ex. P. 3. On report being lodged, police rushed to the spot, inspected the site and the deceased was found lying dead in the pool of blood at the floor of the kitchen. From the bath room of the house, blood stained knife and a pair of gloves used in the crime were recovered vide Ex.P. 19. Autopsy on the dead body was conducted on February 20, 2002 at 5.30 P.M. (Ex. P. 13), the death of Jayanti Jain was found to have occurred 24 to 48 hrs prior to the examination of the dead body as per Dr. H.L. Bairwa (PW. 3). This refers to the fact that in all probability the deceased was murdered on February 18, 2002 itself as there has been no response to the telephonic calls made by Pooran Mal (PW. 1) and Deepak Jain (PW. 4) on that day in the evening. Later during the investigation, the stolen property as well as blood stained clothes were recovered in the case. This goes to established that the offence of murder and robbery were committed as a part of one transaction.

8. On delving into the conduct of appellant Smt. Babli Devi, it is revealed that appellants Smt. Babli Devi and Mahesh Singh are husband and wife. They resided in Jhuggi (hutment) in Radha Krishna Nagar, Kachchi Basti located nearby Jyoti Nagar. Smt. Babli Devi worked as domestic held at various houses attending cleaning and washing work. She had also worked with the deceased as well as at the house of Jai Prakash (PW. 6) whose house No. 24 K-1) Jyoti Nagar is adjoining to the house of the deceased though at the ground floor as shown in the photo Ex. P. 34. Jai Prakash (PW. 6) is an Advocate by profession and has deposed that Smt. Babli Devi used to work as domestic help in the year 2001 and then she left work on account of illness of some relative. Then she came back on 14th-15th of February 2002 and asked to take her on work. She also informed that she had been paid Rs. 400/- due to her by the deceased Jayanti Jain and she could start to work for her from the following day. Then she did not come on 18th but came on 19th at about 8.00 A.M. and shouted that he had been to upstairs but nobody opened the door and asked to tell them that she had come on work. Then she again came on 20th in the morning at about 9.00 A.M. went up stairs and immediately came down. However, she did not work on these two days at the house of Jai Prakash (PW. 6). Then on 20th, when Jai Prakash (PW. 6) came from the court in lunch time, he saw police vehicles parked there and came to know of the murder. So, he informed the police about the suspicious conduct of Smt. Babli Devi. It was this clue which ultimately led to the arrest of appellant Smt. Babli Devi and her husband appellant Mahesh Singh which led to consequent recoveries at their behest on arrest. Thus, the evidence on the point provide a sufficient link to establish the presence of appellant Smt. Babli Devi at the place of crime on or about the day of occurrence and her subsequent suspicious conduct on 19th and 20th which ultimately unraveled the later part of the prosecution case.

9. On considering the recovery of incriminating articles from appellants Smt. Babli Devi and Mahesh Singh, it is revealed that they were arrested on February 23, 2002 at 3.25 P.M. and 4.45 P.M. vide arrest memo Ex. P. 56 and Ex. P. 57, respectively. Soon after their arrest, both the appellants gave information vide Ex. P. 98 and Ex. P. 99 that they can lead to the recovery of stolen articles and blood stained clothes worn at the time of crime from their hut at Radha Krishan Nagar, Kachchi Basti. Accordingly, appellant Mahesh Singh led the recovery of one table-lamp, one tape recorder, one press, four Chhadar, one silver coin with the name of Jayanti Jain (deceased) written on it, four coins of Italian currency etc. kept in a bundle in a pit after removing soil vide Ex. P. 23 in the presence of Motbirs Brijraj Singh (PW. 15) and Jai Prakash (PW. 6). Likewise, appellant Mahesh Singh also effected the recovery of his one pant and shirt stained with blood from his hut lying on a string in the hut vide Ex. P. 25 in the presence of Motbirs. The clothes of the appellants were found to be stained with hum an blood of group AB which tallied with blood group found on the blood stained clothes recovered from the body of the deceased marked D as per the FSL report Ex. P. 105.

10. Likewise, appellant Smt. Babli Devi also effected recovery vide memo Ex. P. 27 from the hut in the presence of Motbirs Brijraj Singh (PW. 15) and Jai Prakash (PW. 6). She brought out an iron container of red colour with a lid buried in a pit. The small box contained one necklace made of artificial jewels, a gold like nose top with white Naglna, one pair of ear tops, one coin with name of deceased Jayanti Jain written on it and Rs. 7000/- cash, seven sarees etc. Likewise, she also produced one blood stained sari and blouse found hanging on a nail which were recovered vide Ex. P. 28 in the presence of the Motbirs. The sari so recovered was found to be stained with AB group of human blood which tallied with the blood group of the deceased as per FSL report Ex. P. 105.

11. The next connecting link as against appellant Mahesh Singh and Smt. Babli Devi pertains to their information recorded vide memo Ex. P. 100 and Ex. P. 101 at 12.30 P.M. and 12.45 P.M., respectively, by which they informed that the ornaments pertaining to the incident were sold by them to a goldsmith in Kishan Pole Bazar, Jaipur and they can lead the recovery of the same. Accordingly, both of them were taken to Kishan Pole Bazar where they led to shop No. 180 of Padam Prakash Khandaka, Jewelers and there in the presence of Motbirs Sanjay Jain (PW. 18) and Shriyansh (PW. 5) Padam Prakash (PW. 25) Produced four gold bangles and a gold chain weighing 83 gram purchased from them for Rs. 27,965/- vide receipt No. 128 as per Bill-book article 55 and bearing the signatures of appellant Mahesh. The gold ornaments were recovered vide memo Ex. P. 22 while the Bill- book was recovered vide Ex. P. 23. Padam Prakash Khandaka (PW. 25) has further proved the fact that the two appellants had come at his shop on February 18, 2002 to sell the aforesaid ornaments and a sum of Rs. 27,965/- was paid to them. This indicates that there has been no gap between the incident of murder and robbery and the sale of the ornaments and as such the incident of murder and robbery was part of one transaction.

12 These ornaments recovered vide Ex. P. 22 have been identified by Pooran Mal (PW. 1) husband of the deceased in the Court as well as in the test identification parade conducted by the Chief Judicial Magistrate, Ravinder Kumar Maheshwari (PW. 34), vide identification memo Ex. P. 8. Likewise, the other articles recovered on the basis of appellant Mahesh Singh and Smt. Babli were also identified by Pooran Mal (PW. 1) in the court as well as in the test identification conducted vide memo Ex. P. 5 and Ex. P. 10. Thus, the recoveries effected from the appellants provides for a strong linking evidence to connect the appellants with the crime.

13. As per the explanation furnished by appellant Smt. Babli Devi in her statement Under Section 313 Cr.P.C, she has claimed herself to be innocent. She has further explained that she had illicit relations with the husband of the deceased. This has been a cause of quarrel between them. One day, the husband of the deceased came to her house, his clothes were stained with blood. He asked her to accompany him and told her that he had killed his wife. Then, he brought household articles to her house and left there. Then three-four days thereafter, she was arrested by the police. This explanation offered by the appellant forms part of her defence but no such defence has been introduced in the cross examination of Pooran Mal (PW. 1) or any other witness. No such suggestion was even made to Diwakar Tiwari (PW. 32), the Investigating Officer. He has been simply asked whether he had a suspicion that the husband of the deceased was involved in the murder of his wife to which he replied in negative thus, we find that in the facts and circumstances of the case, the explanation offered by the appellant is after thought, improbable and offers no assistance to the appellants. It rather indicates as if the fact of recovery of incriminating articles from their house is not disputed. Though the appellants Smt. Babli Devi and Mahesh Singh being husband wife, any reasonable explanation could have helped them but there is no such explanation as Mahesh Singh has offered no explanation and has simply denied the fact of recovery.

14. On having analysed the evidence adduced, in light of the decisions of the Apex Court in Baijus case (supra) as well as in Ronnys case (supra), we find the following circumstances stand established as against appellant Smt. Babli Devi and Mahesh Singh:

(1) The death of the deceased Smt. Jayanti Jain was homicidal in nature.

(2) The murder and robbery were the part of one transaction and robbery has been the motive behind the murder.

(3) The presence of Smt. Babli Devi, who worked as domestic help, was established at the place of the crime on or about the day of occurrence. Her subsequent conduct on 19th and 20th of February, 202 was found to be suspicious.

(4) Smt. Babli Devi and her husband Mahesh Singh were arrested on February 23, 2002 and on the same day they led the recovery of incriminating articles from their residential hut situated in the nearly vicinity of the site of the crime.

(5) Recovery of clothes used for wearing by Smt. Babli Devi and Mahesh Singh was effected from their hut on February 23, 2002, which were found stained with the blood group of the deceased Jayanti Jain.

(6) The two appellants proved to have sold four gold bangles and one gold chain belonged to the deceased to the shop of a goldsmith at Kishan Pole Bazar, Jaipur on February 18, 2002 itself and the same were recovered at their instance on March 1, 2002.

(7) No probable explanation has been offered by the two appellants to explain such a close proximity of the recovery of incriminating articles. Thus, the murder and robbery had been integral parts of the same transaction and this would give rise to the presumption under Illustration (a) of Section 114 of the Evidence Act that not only the appellants committed the robbery but also the murder of the deceased.

15. As regards appellant Radhey Shyam, it has been argued that he was falsely implicated as the but from where the recovery allegedly effected at Radha Krishna Nagar, Kachchi, Basti, was in fact already sold by him to appellant Mahesh vide sale agreement Ex. P. 66 on 19.2.2002 as per the prosecution case. It has been further argued that it has not been proved that appellant Radheyshyam shared the booty or the sale proceeds thereof with the main accused Smt. Babli Devi and her husband Mahesh Singh so as to establish that he had participated with them in the crime.

16. On analysing the evidence adduced by the prosecution in the light of the submissions advanced, it is revealed that though on arrest of the appellant on February 27, 2002, the police effected the recovery of stolen articles as well as blood stained clothes at his instance vide Ex. P. 30 and Ex. P. 31 on dated 1.3.2002 from his hut at Radha Krishna Nagar Kachchi Basti, but that is not sufficient to associate the appellant with accused Smt. Babli Devi and Mahesh Singh to establish that he in fact shared the booty and also the sale proceeds of the stolen ornaments sold by them allegedly on the date of occurrence itself which were recovered at their instance vide Ex. P. 22. In this regard, we also find substance in the argument that if the hut was already sold by appellant Radheyshyam to appellant Mahesh Singh vide sale agreement Ex. P. 66 on February 19, 2002 and an amount of Rs. 6000/- was deposited on February 20, 2002 in Radheyshyams bank account vide pay-in-slip Ex. P. 21 as per the evidence led by the prosecution itself, then there remained no basis to attribute the recovery of incriminating articles from his possession. In such a situation, it is just probable that these articles may have been kept their by appellant Mahesh Singh and Smt. Babli Devi on the hut being purchased on February 19, 2002 itself. It is further reinforced from the fact that appellant Mahesh Singh had acquired the financial capacity to execute the deal of purchasing hut after having obtained the amount of the sale proceeds of the stolen ornaments referred to herein above. Therefore, we find no cogent and convincing evidence to connect appellant Radhey Shyam with the crime.

17. as regards appellant Rakesh Joshi, it is revealed that appellant Rakesh Joshi was arrested on February 27, 2002 vide arrest memo Ex. P. 63. At the time of arrest, pant and shirt worn by him were seized vide Ex. P. 65 as the same were found stained with blood which tallied with the blood group of deceased Jayanti Jain on FSL examination. The other evidence against him is that on the following day of arrest i.e. on February 28, 2002, a remote (instrument meant for operating T.V.) of Oscar make was recovered from his house at his instance which was found to be stolen in the incident of robbery and murder of deceased Jayanti Jain.

18. In this regard, we find substance in the contention of the learned Counsel that it was just improbable that the appellant who was a jeweler by profession, lived in the walled city of Jaipur, had any reason to gang-up with appellant Mahesh Singh and Smt. Babli Devi so as to involve himself in the crime for in- significant article like a silver coin and a remote instrument used for operating T.V. Likewise, recovery of blood stained clothes on his person at the time of his arrest almost eight days after the occurrence does not make it probable that he had participated in the crime simply because the blood group tallied with the victim of the crime, though no blood group of his injury on head mentioned in his arrest memo was ascertained. Thus, in the totality of the facts and circumstances of the case, there is no sufficient evidence on record to establish that he had ganged- up with co-accused Mahesh Singh and Smt. Babli Devi to execute the crime and that he had shared the booty with them. Therefore, alike co-accused Radheyshyam, we find no cogent and convincing evidence to connect appellant Rakesh Joshi with the crime.

19. In the ultimate analysis, from the facts established, we find that circumstantial evidence in the instant case does not fall short of required standard of proof qua appellant Mahesh Singh and Smt. Babli Devi. The circumstances so established are consistent only with the guilt of these appellants and inconsistent with their innocence. All these circumstances exclude with certainty the possibility of guilt of person other than these appellants. While the prosecution has failed to bring house the guilt as against appellant Radhey Shyam and Rakesh Joshi.

20. For these reasons, we dispose of the instant appeals in the following terms:

(i) We find no merit in the appeal of Mahesh Singh and Smt. Babli Devi w/o Mahesh Singh and the same accordingly stands dismissed. Their conviction and sentence Under Section 302, 302/34 and 392/34 IPC, are maintained.

(ii) We however allow the appeals of Radhey Shyam and Rakesh Joshi and acquit them of the charges Under Section 302/34 and 394/34 IPC. Appellants Radhey Shyam and Rakesh Joshi who are in jail, shall be set at liberty forthwith, if they are not required to be detained in any other case.

(iii) The impugned judgment of learned trial Court stands modified as indicated above.