The Honorable Mr. Justice Bapna
Motia & Ors.
In this case, an appeal is filed against the acquittals namely, Motia, Gepla, and Achalia by the State concerning offences under Section 302 and 318 of the Indian Penal Code. Motia and Gepla have been served so the appeal is being heard against them, however, Achalia has not been found yet so the appeal against him will remain pending.
- Harka, his wife Mst. Chakhu and their daughter Jammu were found dead on the morning of 08 December 1948. They were the residents of a village named Bakra.
- Siremal P.W.8 is a neighbor of the decease Harka and lived at a distance of forty paces. On the morning of 08 December 1948, he heard the cries of Harka’s mother Mst. Rambha who is blind and she was told by a child that Harka is lying dead and hence raised an alarm.
- Siremal together with Kistoor Chand went to Harka’s house and found the dead bodies of the three and therefore informed the police at Jalore.
- The Sub-Inspector Hukam Singh then immediately left for Bakra and there while investigating he found the cash box empty, and the ‘ora’ broken into, and it also seemed that ornaments were taken away from Kothalias. However, there was no further clue in the case until 15 December 1948.
- On 15 December 1948, Motia accused was arrested at Jaswantapura at the hotel of one Sama. On 15 December Motia accused went to the Sama and gave him a box and asked him to keep it safe. On becoming suspicious about the small box as it was too heavy considering its size, the Sama asked the Motia accused that what was in the box to which he replied that there was money in it as he was going to Nimaj to buy a mare.
- At that time, one jail Hawaldar and two constables were present at the hotel and Sama related the incident to them and placed the box in front of them.
- From thereon, the Jail Hawaldar brought the Head Constable Ghafoor Khan and they took Motia to the police station of Jaswantapura along with them.
- The box was then opened and it consisted of cash and ornaments of gold and silver.
- Motia was then taken into custody on suspicion and later upon enquiry, it was found that the ornaments belonged to Harka of Bakra Village.
- Consequently, they were forwarded to the Superintendent of Police at Jalore and when the further investigation proceeded, Gepla and Achalia were also arrested for being connected to the crime that took place at Harka's House. All three of them were prosecuted under Section 302 and 380 of the Indian Penal Code.
- The Session Judge after considering all the evidence concluded that no case under section 302 of I.P.C had been proved against any of the accused and acquitted them and Gepla and Achalia were also acquitted under section 380 of I.P.C.
- This appeal is against the acquittals under section 302 and 380 of I.P.C
- The Prosecution against the Motia submitted that the Motia had the ornaments within few days of the murder and these ornaments were found stained in the blood which included the sheath and dagger which were also found in the box and also his coat which was recovered from his house.
- With these circumstances, the prosecution wants to draw the inference that Motia was the one who murdered the Harka and his wife and their daughter and then robbed them on the night of 7-8 December 1948.
Counsel of the Accused
• The learned Counsel of Motia raised several objections against the evidence produced against Motia.
• The two very important defects that were pointed out by the learned counsel of Motia were that:-
1) He submits that there is no evidence that after the ornaments were taken out of the possession of Motia, they were not tampered with. There is no evidence present that can prove that the ornaments were sealed so that no one could sprinkle blood on the ornaments. He further submits that we are not saying that this has happened in the present case but it is a possible option that cannot be refuted because there is no evidence that proves that the ornaments were not tampered with while they were sent to the chemical examiner or during the whole ordeal. The Ornaments should have been sealed and the evidence should be produced before the Magistrate to show that the seal was not tampered with but this is not present in the current case which creates a lacuna in the prosecutions’ contention.
2) The second very important defect mentioned by the learned counsel of Motia was that there is no evidence that shows that the ornaments which were sent to the chemical examiner are the same ornaments that were taken from the Motia. We are not saying that this happened in the present case but there is a possibility of the same which cannot be ruled out.
• Besides these defects, there is no solid evidence against the Motia and it was already said that Hema’s statement is unreliable, other than this the only evidence that remains is the recovery of certain articles belonging to Harka and his wife from Motia after the seven days of the murder.
After carefully considering every factor, and evidence, and circumstances, the Court concluded that we see no reason to find fault or interfere with the order of acquittal passed by the Sessions judge even in the case of Motia. Therefore, the appeal is hereby dismissed.
- The question in the present is that whether the evidence against Motia is enough to convict him for murder?
- The Court while discussing the evidence of witnesses said that if we consider the entire evidence concerning Gepla, there is hardly any evidence that connects him to the crime committed after the statement of Hema is ruled out of consideration. All that remains is the recovery of a 'safa' and a 'ganji' from his possession, which are said to be blood-stained, and the recovery of an axe from his house, which is also said to be blood-stained. These recoveries took place eleven days after the murder and the Court agrees with the Session judge that it is not possible to connect these recoveries with the murder in the concerned matter and therefore he is entitled to acquittal.
- The Court while deliberating on Motia’s case said that mere possession of articles belonging to the murdered person, even if they are supposedly blood-stained would not in the eyes of the Court be sufficient to prove a case of Murder against Motia accused, beyond all reasonable doubt.
- The Court said that the prosecution has also even failed to show in the present case that the ornaments which were recovered from the Motia were within the possession of Harka and his wife up to 07 December 1948 and were stolen only on that night.
- The Court also observed that there is no evidence to prove that, Harka's wife was even wearing one of these ornaments on the 7th of December 1948. It might be a probability that the ornaments were stolen at the same time as the murder was committed. But in a case depending upon circumstantial evidence, all possibility of the innocence of the accused should be excluded, and in the case, before us, it has not been shown that these ornaments could not have been missing from the house of Harka before the 7th December 1948. In the absence of proof of this fact, it cannot be said for certain that the person who is in possession of these ornaments must be the murderer.
- Lastly, the Honorable Court said that taking, therefore, the entire evidence against Motia into account and remembering that it is circumstantial, and ruling out the statement of Hema, we find it impossible to come to the unhesitating conclusion that Motia must have taken part in the murder and that this is the only way in which he could come into possession of the ornaments which were recovered from him. There may be a suspicion that Motia took part in this murder but suspicion cannot take the place of proof, particularly when the entire case depends upon circumstantial evidence.