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TMI Blog1975 (11) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... al leave. 3-4. The prosecution story, as it emerges from the record, was as follows: Mst. Nazar Bai, an old widow was residing alone and separately from her son, Shankar Lal, P.W. 11 in the town of Chittor. On Karwa Chauth day, the 24th October, 1964, at about 4.30 p. m. her cousin, Ram Chandra, P.W. 23, who was also residing in Chittor sent his daughter, aged about 10 years, to the house of Mst. Nazar Bai, to extend an invitation that she should on that auspicious night dine at his house. Accordingly, Ramchandra's daughter went to Mst. Nazar Bai and communicated the message, Mst. Nazar-bai gave two paisas as a token of affection to the girl saying that she would be pleased to dine at her house. Chandmal appellant who was present there, as usual, to do knitting work, remarked that 2 paisas were valueless. Thereupon, Nazar Bai gave some Makhana (sweets) to the girl. This happened in the presence of Smt. Naini Bai, P.W. 9, and Smt. Madan Bai, P.W. 2, who often used to do knitting and embroidery work at the house of Nazar Bai. Sometime thereafter, at 5 or 6 P.M. Mst. Nazar Bai locked her house and went away. Appellant Chandmal followed her. Nazar Bai had not been seen alive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand (PW 18) to the house which originally belonged to Ranglal. The Sub-Inspector gave a bunch of keys to Chandmal and asked him to unlock central door. Chandmal unlocked the door. The entire party entered the house. The appellant led into the northern room, the entrance door of which was lying shut and chained from outside. At the instance of Chandmal the cases lying there were got removed. From the ground thus cleared, Chandmal lifted a patti (slab) underneath which was a pit. A skeleton which had on its torn pieces of Chagra, Kanchi and Odhni and some silver ornaments, was found in that pit. The skeleton was taken out. Shankarlal PW who was with the Police, identified the ornaments, pair of Karas Ex. 30, Kara Ex. 32. Ring Ex. 33 and Churi, Ex. 34, and the clothes as belonging to his mother. The skeleton was carried in a stretcher to the Police Station, where in respect of this, discovery memo, Ex. P/5, was prepared. On the following day, in the Police Station, the ornaments and clothes were removed from the skeleton in the presence of P.W. 22 and others and taken into possession. The seizure memo, Ex. P-18, was prepared in this connection. The skeleton was later on sent to the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken cumulatively, should form a chain so complete that there is no scape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt. 16. Let us see whether these conditions were fulfilled in this case. The circumstance that when Smt. Nazarbai was last seen departing from her house, she was being followed by Chandmal appellant, had not been clearly established. 17. In the F.I.R. lodged by Smt. Nazarbai's son. Shankar Lal, about seven days after her disappearance and after making inquiries among others, from Madanbai (PW 2) w/o Mohan Singh, there is no mention of Chandmal at all. Madan bai was examined as PW 2. She was living as a tenant in an apartment of the house of Nazarbai. In Court she, no doubt, Stated that Chandmal was present when Ramchandra's daughter came and extended the invitation to Mst. Nazar bai for dinner. But she did not state that Chandmal was seen following Nazarbai when she. After locking her house, was proceeding towards Ramchandra's house Her statement in court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been discovered. By itself, therefore, this circumstance was not of a definite tendency and had little evidentiary value. 21. This takes us to the second circumstance viz., discovery of the ornaments belonging to Smt Nazar Bai. The prosecution case was that from a search of Chandmal's house, certain articles and ornaments (Ex. 2 7. 10, 12, 13, 14, 15, 17, 26 and 27) were recovered by S. I. Mahendra Singh PW 33 on 7-10-1966. in the presence of Kishandas, PW 28, and others On 8-10-1966, the churi , Ex. 29. was discovered from a search of the other house, belonging to Ranglal. On the information supplied by Chandmal appellant, it was discovered that some ornaments were sold by him to Bhagchand, PW 19, and some to one Madanlal. The prosecution examined this Bhagchand to prove the sale of these ornaments to him by the appellant. 22. The prosecution case is that these ornaments and other articles recovered either from house search or from third persons at the nstance of the appellant, belonged to Smt. Nazar Bai. The defence is that these articles belonged to Chandmal and not to Nazar Bai. The prosecution witness Ratnabai, the daughter-in-law of the 'deceased' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stolen property given in Section 410, Penal Code. Only such property possession where of has been transferred by theft, or extortion or criminal misappropriation or other offences allied to them as mentioned in Section 410, falls within the definition of stolen property . In the instant case, it had been established that the possession of these ornaments and valuables in question had been transferred by theft etc. from Smt. Nazar Bai. 26. Even so, these recoveries are alleged to have taken place more than two years after the disappearance of Nazarbai. This was another formidable obstacle in the way of drawing any presumption that Chandmal was either the thief or a dishonest receiver of stolen property. 27. Having seen that the prosecution had failed to substantiate the second circumstance we now pass on to circumstance (iii), relating to the discovery of the skeleton. 28. The first question to be considered in this connection was whether the prosecution had established beyond doubt that this skeleton was of Smt. Nazarbai. In other words was the death of Smt. Nazar bai indubitably established? 29. To substantiate this point, the prosecution relied on the identificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The keys for these four or five days were admittedly with the investigating officer and were supplied by him to the appellant for unlocking the door of the house on 11-10-1966. 33. Thirdly, in the F.I.R. as already mentioned, Shankarlal did not say that her mother was wearing any ornaments at the time of her disappearance. She was an elderly widow. Hindu widows generally do not wear ornaments. 34. Fourthly, the skeleton or the ornaments allegedly found on it were not sealed into a parcel or parcels on 11-10-66. In the memo Ex. P-5, which is said to have been prepared on 11-10-66, in the Police Station at 4 P. M. there is no mention of any such sealing. According to Abdullah, PW 16, at the time of the discovery, only a rough note was prepared , and Ex. P. 5 was not prepared on that day. The Witness was called to the thana on 12-10-66. He went there and saw the skeleton together with the clothes and ornaments lying there in the verandah of the police station. It was then at about 4 P. M. that the witness signed the memo Ex. P5 in the Thana. It is curious that another memorandum (Ex. P. 18) was prepared on 12-10-66 in the Police Station. This memorandum is captioned: Sheet p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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