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CASE NO.:

Appeal (crl.) 1120-1121 of 2000

PETITIONER:

LIMBAJI AND OTHERS

Vs.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT: 14/12/2001

BENCH:

R.C. Lahoti & P. Venkatarama Reddi

JUDGMENT:

P.Venkatarama Reddi, J.

I. The three appellants herein faced trial in the Court of Sessions

Judge, Osmanabad, for the offences punishable under Section 302 read with

Section 34 and Section 392 read with Section 34 IPC. They were charged of

committing murder of one Baburao Nana Lagdive (hereinafter referred to as

'Baburao') at his field and robbing him of golden ear rings and silver

'lingakar' worn by him in the early hours of 30th May, 1984. Both the

accused and the deceased were the residents of village Shekapur.

The learned Sessions Judge acquitted the accused of the

charges under Sections 302 and 392 but found them guilty under Section

411 IPC and sentenced each of them to rigorous imprisonment for two

years. On appeal by the State as well as by the accused, the High Court of

Bombay (Aurangabad Bench) having found the accused guilty of offences

punishable under Section 302 read with Section 34 and Section 392 read

with Section 34, set aside the judgment of the Sessions Judge. The High

Court sentenced them to life imprisonment for the offence of murder and

five years rigorous imprisonment for the offence of robbery with the

direction that both the sentences should run concurrently. The appeal of the

State was allowed and the appeal filed by the accused was dismissed.

Questioning the said judgment, the present appeals are filed. Leave to

appeal was granted by this Court on 11.12.2000.

The case rests on circumstantial evidence of recovery of ornaments

worn by the deceased, pursuant to the information furnished by the accused

to the police. The High Court pressed into service the presumption under

Section 114 (a) of the Evidence Act in support of its conclusion. It is the

correctness of that view that falls for our consideration in this appeal.

The prosecution case as revealed by the charge sheet and the

record is that the murdered person Baburao aged about 65 years was having

his field close to the village and he used to tether his cattle in that field and

keep fodder heaps therein. That is why he used to sleep in the field.

Deceased Baburao, a lingayat by caste used to wear golden ear rings and

silver lingakar on his person. On the night of the crucial day, he went to the

field to sleep there. Early in the morning of 30th May, 1984, his unmarried

daughter named Sharadbai went to the field to collect cow dung. She found

her father lying dead near the heap of fodder. She rushed back to the house

and informed her brother Ramakrishna (PW2) and others. PW2 and his

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family members went to the field and found Baburao lying dead with

injuries on his ear, chest etc. and the golden ear rings and silver lingakar

missing from his person. One Guruling (PW3) who was residing in a house

close to the field of Baburao came to the spot at that time. On seeing the

dead body, he mentioned to PW2 and others that he saw accused Nos. 1 to 3

going towards the field of Baburao at about 3 A.M. when he woke up for

drawing water. Keshav, PW1 who was the police patel of the village then

came to this spot and after knowing the facts went to the police station at

Osmanabad and lodged the FIR (Exh. 12) which was recorded by PW10

(PSI). On the basis of it, a case was registered under Sections 302 and 392

IPC. Thereafter, PSI Swami (PW11) held inquest on the dead body of the

deceased Baburao in the presence of two Panchas. Having found a big stone

lying at the spot of occurrence, he seized the same and it is marked as article

No.1. He sent the dead body of Baburao to Civil Hospital at Osmanabad on

the same day. PW8 conducted post-mortem examination between 4.30 and

5.30 P.M. The post-mortem report is Exh. 21. He opined that the injuries

sustained by the deceased were ante-mortem and the deceased Babu Rao

died of bilateral haeomothorax with heart injury, liver injury and

hemoperitoneum with multiple injuries. We shall advert to the details of

injuries a little later. In the meanwhile, the I.O. (PW11) recorded the

statements of P.Ws 2, 3 and others. On 1.6.1984, he arrested accused No.1

Limbaji and accused No.2 Bapu. The investigation was then taken over by

Shri Ramesh, Dy. S.P. (PW12), Osmanabad. On 2.6.1984, PW 12 secured

police custody remand of both the accused.

On 7.6.1984 the first accused Limbaji gave information in the

presence of Panchas, namely, Sidling (PW9) and Shivaji (not examined) that

he would point out a shop in which he had sold the golden ear ring. This

statement made by A-1 which is admissible under Section 27 of the

Evidence Act is Exh. 24. Thereafter, A-1 took them and PW 12 to the shop

of PW5 who, at the instance of A-1, handed over the golden ear ring marked

as Article No.7 and the same was seized under a panchanama Exh.25.

Again on 15.6.1984, A-1 furnished information regarding the place at which

silver lingakar was kept. PW12 along with the same panchas went to the

spot which was by the side of Osmanabad-Shekapur road. The lingakar

covered in a piece of cloth concealed beneath the stones under a Babul tree

was shown. The memorandum of the statement of accused is marked as

Exh. 26 and the seizure panchanama relating to 'lingakar' (article No.8) is

Exh. 27. On the same day, accused No.2 gave information that he would

point out two golden ear rings kept buried under a mango tree situated in the

fields of a nearby village. The statement was recorded under Exh. 28 and

PW12 along with the panchas went to the field and found the two golden ear

rings shown by A-2 and seized the same under a panchanama Exh.29. They

are Article No.9. Accused No.3, who was arrested on 11.6.1984, gave

information on 20.6.1984 in the presence of same panchas that he would

point out one golden ear ring kept buried under a mango tree situated in a

field at Shekapur. After recording the statement Exh. 30, he went to the

spot shown by the accused Arun and recovered one golden ear ring kept in a

cloth and the same was attached under a panchanama marked as Exh. 31. It

is Article No.10. The seized articles, 7 to 10 were identified by PW2 as

those belonging to his deceased father. On 24.6.1984, PW12 seized the

shirt of accused No.2 under the panchanama Exh. 16 and sent the same to

the Chemical Examiner as it was found to contain blood. But the report

Exh.36 revealed that no blood was detected on the shirt.

II. There is no direct evidence as regards the involvement of accused in

the murder and robbery of the deceased. As analysed by the Sessions court

and the High Court, the following circumstances were relied upon by the

prosecution :-

(i) Accused Nos. 1 to 3 were seen going together

towards the field of Baburao in the night of

occurrence;

(ii) The deceased Baburao was wearing golden ear-

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rings and silver ring on his person and the same

were found missing. His ear-lobes were found

injured which indicated that in the process of

removal of ear-rings such injuries were caused.

(iii) The accused No.1 Limbaji pointed out the shop of

Vijaykumar PW5 to whom he had sold one golden

ear ring belonging to Baburao and recovery of the

same in consequence of the said information;

(iv) recovery of silver lingakar in consequence of the

information given by the said accused;

(v) recovery of two golden rings on 15.6.1984 in

consequence of the information by accused No2;

(vi) recovery of one more ear-ring in consequence of

the information given by accused No.3 on

20.6.1984;

(vii) human blood noticed on the shirt of accused No.2.

In so far as the last circumstance is concerned, the High Court

disbelieved the seizure and that apart, the Chemical Examiner's report does

not reveal that any blood was found thereon. With regard to the first

circumstance, learned Sessions Judge held that it will not lead the

prosecution anywhere, especially in view of the fact that, as stated by PW3,

there was a public lane behind his house which was used by the villagers.

This is a reasonably possible view that could be taken. The High Court had

given undue weight to this circumstance and we do not think that the High

Court was justified in its approach

We are now left with the evidence of recovery of the ornaments

of the deceased on the basis of the confessional statement of accused under

Section 27 of Evidence Act, leaving apart for the time being the aspect

concerning injuries inflicted on the deceased. The question then is whether

there was discovery of incriminating articles in consequence of information

received from the accused in custody and whether such discovery warrants

a presumption to be drawn under Section 114 and if so, to what extent that

presumption has to be drawn.

III. As the presumption under Section 114 of Evidence Act

looms large in this case, a brief discussion on the basic postulates and

evidentiary implications of presumption of fact may not be out of place.

A presumption of fact is a type of circumstantial evidence which in the

absence of direct evidence becomes a valuable tool in the hands of the

Court to reach the truth without unduly diluting the presumption in

favour of the innocence of the accused which is the foundation of our

Criminal Law. It is an inference of fact drawn from another proved fact

taking due note of common experience and common course of events.

Holmes J. in Greer Vs. US [245 USR 559] remarked " a presumption

upon a matter of fact, when it is not merely a disguise for some other

principle, means that common experience shows the fact to be so

generally true that courts may notice the truth". Section 114 of the

Evidence Act shows the way to the Court in its endeavour to discern the

truth and to arrive at a finding with reasonable certainty. Under the

Indian Evidence Act, the guiding rules for drawing the presumption are

set out broadly in the Section. Section 114 enjoins: "the Court may

presume the existance of any fact which it thinks likely to have

happened, regard being had to the common course of natural events,

human conduct and public and private business, in their relation to facts

of the particular case." Having due regard to the germane considerations

set out in the Section, certain presumptions which the Court can draw are

illustratively set out. It is obvious that they are not exhaustive or

comprehensive. The presumption under Section 114 is, of course,

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rebuttable. When once the presumption is drawn, the duty of producing

evidence to the contra so as to rebut the presumption is cast on the party

who is subjected to the rigour of that presumption. Before drawing the

presumption as to the existence of a fact on which there is no direct

evidence, the facts of the particular case should remain uppermost in the

mind of the Judge. These facts should be looked into from the angle of

common sense, common experience of men and matters and then a

conscious decision has to be arrived at whether to draw the presumption

or not.

Among the illustrations appended to Section 114 of the

Evidence Act, the very first one is what concerns us in the present case:

"The Court may presume - that a man who is in possession of stolen goods

soon after the theft, is either the thief or has received the goods knowing

them to be stolen, unless he can account for his possession."

Taylor in his treatise on The Law of Evidence has this to say on

the nature and scope of the presumption similar to the one contained in

Section 114 (a) :

"The possession of stolen property recently after

the commission of a theft, is prima facie evidence

that the possessor was either the thief, or the

receiver, according to the other circumstances of

the case, and this presumption, when

unexplained, either by direct evidence, or by the

character and habits of the possessor, or

otherwise, is usually regarded by the jury as

conclusive. The question of what amounts to

recent possession varies according to whether the

stolen article is or is not calculated to pass readily

from hand to hand.

This presumption which in all cases is one

of fact rather than of law, is occasionally so

strong as to render unnecessary any direct proof

of what is called the corpus delicti. Thus, to

borrow an apt illustration from Maule J., if a man

were to go into the London Docks quite sober,

and shortly afterwards were found very drunk,

staggering out of one of the cellars, in which

above a million gallons of wine are stored, "I

think," says the learned Judge and most persons

will probably agree with him "that this would

be reasonable evidence that the man had stolen

some of the wine in the cellar, though no proof

were given that any particular vat had been

broached, and that any wine had actually been

missed."

IV. We shall now examine as a first step whether the conditions, or

to put it in other words, factual circumstances contemplated by Illustration

(a) to Section 114 are fulfilled.

IV (a). There can be no doubt that the ornaments which were located

at the instance of the accused were the personal belongings of the deceased

and they were being worn by the deceased. The evidence of PW2, who is

the son of the deceased-victim bears testimony to this fact and even a

gruelling cross examination could not raise a cloud on the veracity of his

deposition on this aspect. The next step which has to be proved by the

prosecution is the possession of the said ornaments of the deceased soon

after the incident. One of the ear rings weighing 1.200 gms.was sold by

accused No.1 to PW 5 who was running a jewellery shop at Osmanabad for

Rs. 170/-. The evidence of PW 6 a cycle shop owner, whose assistance

was sought by accused No.1 to dispose of the ear ring also corroborates the

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evidence of PW 5 and the Investigating Officer (PW 10). According to PW

5, the sale transaction took place on May 30, 1984 at 1.30 P.M. i.e. on the

very next day after the murder of Baburao. PW5 also deposed that accused

No.1 accompanied by two panchas and police came to his shop five or six

days later and the accused asked him to return the gold ear ring sold to him

and on production of ear ring by PW 5, the police seized the same in the

presence of panchas on 7.6.1984. The fact that he had not given any receipt

and taken the signatures of the accused or that he was not having licence to

sell or purchase the gold ornaments are not factors which go to discredit the

evidence of P.W.5 in whose shop the ear ring was found. The possession of

golden ear ring belonging to the deceased by accused No.1 soon after the

occurrence and the sale thereof immediately to PW 5 is thus established

beyond doubt.

Drawing our attention to the evidence of PW 6, it is contended

by the learned counsel for the appellant that there was no discovery of the

ear ring on the basis of the information furnished by accused No.1, but the

police party had information through PW 6 about the sale of ear ring to PW5

and, therefore, the alleged discovery under Section 27 has no value. The

portion of the deposition of PW 6 relied upon by the appellant's counsel is

as follows:

"It is correct that after about seven days the

police had called me in the police station.

The police had enquired from me as to the

person to whom the gold was sold. I had

told the police the shop in which the golden

ear ring was sold. I had pointed out the shop

to the police. Police had taken Vijay Kumar

(PW 5) and myself to the police station. The

police had got confirmed the sale of the

golden ear rings."

From this statement, it does not follow that there was no discovery within

the meaning of Section 27 of the Evidence Act. As rightly pointed out by the

learned Sessions Judge, the statements were immediately recorded after the

seizure of ear ring from the shop of PW5. The Investigating Officer

evidently cross-checked the information furnished by the accused and PW 5

as regards the role played by PW 6 and that is why he was summoned to the

police station. From the statement of PW 6, it cannot be deduced that the

information furnished by accused No. 1 to the police was only subsequent to

the information furnished by PW 6. Hence, the argument that there was no

information leading to discovery of the material object and the statement of

the accused is inadmissible under Section 27 was rightly repelled by the trial

Court. There is no good reason to take a different view in this regard.

Then we have the evidence of discovery of the other stolen articles

concealed beneath the earth in the fields of others and at a spot on the road

side. These discoveries were made on the basis of the statements made by

accused Nos. 1 and 2 on 15.6.1984 and accused No.3 on 20.6.1984. The

evidence of panch witness (PW9) and the Investigating Officer (PW12)

lends proof to these discoveries. Argument has been addressed by the

learned counsel for the appellant that the panch witness Sidling was always

being called by the police. He figured as panch not only on the first

occasion but also on subsequent two occasions when he was allegedly called

by the I.O. while going past the police station. The said witness is related to

the deceased. It is highly doubtful whether he witnessed the accused

pointing out to the places where the stolen articles lay and the police seizing

the same. His evidence does not therefore merit acceptance, according to

the learned counsel. We are not inclined to disturb the finding of fact

recorded by the trial Court as well as the High Court on the truth of the

discoveries by disbelieving the panch witness merely on account of some

suspicious features.

IV (b). We are left with the evidence of recovery of the ornaments of

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the deceased on the basis of the confessional statement of accused under

Section 27 of Evidence Act, if the discoveries are to be believed which

ought to be. The next two questions are, whether the accused shall be

deemed to be in possession of the articles concealed at various spots and

whether such possession could be said to be recent possession. But for the

decision of this Court in Trimbak Vs. State of M.P. (AIR 1954 SC 39), the

first question need not have engaged our attention at all. That was a case in

which at the instance of the accused the stolen property was recovered at a

field belonging to a third party and the accused gave no explanation about

his knowledge of the place from which the ornaments were taken out. The

High Court while absolving the appellant of the charge of dacoity, convicted

him under Section 411 IPC for receiving the stolen property by applying the

presumption that he himself must have kept the ornaments at that place. On

appeal by the accused, this Court took the view that there was no valid

reason for convicting the appellant under Section 411 IPC. The Court

pointed out that one of the ingredients of Section 411, namely, that the stolen

property was in the possession of the accused, was not satisfied. The Court

observed thus:-

"When the field from which the ornaments were

recovered was an open one, and accessible to all and

sundry, it is difficult to hold positively that the

accused was in possession of these articles. The fact

of recovery by the accused is compatible with the

circumstance of somebody else having placed the

articles there and of the accused somehow acquiring

knowledge about their whereabouts and that being so,

the fact of discovery cannot be regarded as conclusive

proof that the accused was in possession of these

articles."

If this view is accepted, there is the danger of seasoned criminals who

choose to keep the stolen property away from their places of residence or

premises escaping from the clutches of presumption whereas the less

resourceful accused who choose to keep the stolen property within their

house or premises would be subjected to the rigour of presumption. The

purpose and efficacy of the presumption under Section 114 (a) will be

practically lost in such an event. We are, however, relieved of the need to

invite the decision of a larger Bench on this issue in view of the

confessional statement of the accused that they had hidden the articles at

particular places and the accused acting further and leading the

Investigation Officer and the Panchas to the spots where they were

concealed. The Memoranda of panchnama evidencing such statements are

Exhibits 26, 28 and 30. If such statement of the accused in so far as the part

played by him in concealing the articles at the specified spots is admissible

under Section 27 of the Evidence Act, there can be no doubt that the factum

of possession of the articles by the accused stands established. We have the

authority of the three-Judge Bench decision of this Court in K.

Chinnaswamy Reddy Vs. State of Andhra Pradesh (AIR 1962 SC 1788) to

hold that the statement relating to concealment is also admissible in

evidence by virtue of Section 27. In that case, the question was formulated

by Wanchoo, J. speaking for the Court, as follows:-

"Let us then turn to the question whether the statement of

the appellant to the effect that 'he had hidden them (the

ornaments)' and 'would point out the place' where they

were, is wholly admissible in evidence under S. 27 or

only that part of it is admissible where he stated that he

would point out the place but not the part where he stated

that he had hidden the ornaments."

After referring to the well known case of Pulukuri Kotayya Vs. King-

Emperor (AIR 1947 PC 67), the question was answered as follows :-

"If we may respectfully say so, this case clearly brings

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out what part of the statement is admissible under S.27.

It is only that part which distinctly relates to the

discovery which is admissible; but if any part of the

statement distinctly relates to the discovery it will be

admissible wholly and the court cannot say that it will

excise one part of the statement because it is of a

confessional nature. Section 27 makes that part of the

statement which is distinctly related to the discovery

admissible as a whole, whether it be in the nature of

confession or not. Now the statement in this case is said

to be that the appellant stated that he would show the

place where he had hidden the ornaments. The Sessions

Judge has held that part of this statement which is to the

effect 'where he had hidden them' is not admissible. It is

clear that if that part of the statement is excised the

remaining statement (namely, that he would show the

place) would be completely meaningless. The whole of

this statement in our opinion relates distinctly to the

discovery of ornaments and is admissible under S.27 of

the Indian Evidence Act. The words 'where he had

hidden them' are not on a par with the words 'with which

I stabbed the deceased' in the example given in the

judgment of the Judicial Committee. These words

(namely, where he had hidden them) have nothing to do

with the past history of the crime and are distinctly

related to the actual discovery that took place by virtue of

that statement. It is however urged that in a case where

the offence consists of possession even the words 'where

he had hidden them' would be inadmissible as they

would amount to an admission by the accused that he

was in possession. There are in our opinion two answers

to this argument. In the first place S.27 itself says that

where the statement distinctly relates to the discovery it

will be admissible whether it amounts to a confession or

not. In the second place, these words by themselves

*though they may show possession of the appellant

would not prove the offence, for after the articles have

been recovered, the prosecution has still to show that the

articles recovered are connected with crime, i.e. in this

case the prosecution will have to show that they are

stolen property. We are therefore of opinion that the

entire statement of the appellant (as well as of the other

accused who stated that he had given the ornament to

Bada Sab and would have it recovered from him) would

be admissible in evidence and the Sessions judge was

wrong in ruling out part of it."

* (emphasis supplied)

In the light of this decision, we must hold that the accused must be deemed

to be in exclusive possession of the articles concealed under the earth

though the spots at which they were concealed may be accessible to public.

It may be mentioned that in Trimbak's case (supra) this Court did not refer

to the confessional statement, if any, made by the accused falling within the

purview of Section 27 and the effect thereof on the aspect of possession.

IV (c). Coming to the next question whether the test of time factor or

'recent possession' has been satisfied, there can be no doubt that the

accused came to possess incriminating articles (ornaments) soon after the

crime. Accused No.1 Limbaji sold one of the articles, namely, the golden

ear rings on the very next day to PW 5. The other articles were found

concealed at the places shown by the accused within a short time after their

arrest. All the discoveries were made within three weeks. The arrest took

place on the very next day after the occurrence in the case of the

accused Nos. 1 and 2. The ornaments which came into

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their possession were concealed by them for obvious reasons before their

arrest. As regards the third accused, he was arrested 10 days after the

occurrence and by that time the stolen articles were found concealed under a

tree. Even in the case of the third accused, the time lag is not so much as to

preclude the presumption being raised under illustration (a) to Section 114.

In Earabhadrappa's case (AIR 1983 SC 446), this Court while reiterating

the principle that no fixed time limit can be laid down to determine whether

possession is recent or otherwise, held that even a period of one year was

not too long having regard to the fact that the accused suddenly disappeared

after the incident and he was absconding for a long time. In the present case,

the 3rd accused Arun gave the information about the stolen article, namely,

golden ear-ring soon after his arrest and this led to the discovery of stolen

property. Having regard to the nature of the articles, it is difficult to

visualise that it would have changed hands within this short time and

ultimately landed itself in the possession of the said accused. The accused,

on his part, did not come forward with any such explanation.

V.(a) In the light of the above discussion, in the instant case

the presumption under Section 114 illustration (a) could be safely

drawn and the circumstance of recovery of the incriminating articles within a

reasonable time after the incident at the places shown by the accused

unerringly points to the involvement of the accused. Be it noted that the

appellants who were in a position to explain as to how they could lay their

hands on the stolen articles or how they had the knowledge of concealment

of the stolen property, did nothing to explain; on the other hand, they denied

knowledge of recoveries which in the light of the evidence adduced by the

prosecution must be considered to be false. By omitting to explain, it must

be inferred that either they intended to suppress the truth or invited the risk

of presumption being drawn. Thus, the presumption as to the commission of

offence envisaged by illustration (a) of Section 114 is the minimum that

could be drawn and that is what the trial court did.

V (b). The question then is, applying illustration (a) to Section 114,

whether the presumption should be that the accused stole the goods or later

on received them knowing them to be stolen. Though the trial court

observed that the accused "might have robbed" the ornaments of the

deceased after he was murdered by someone else, it found them guilty of the

offence under Section 411 IPC only which is apparently self-contradictory.

On an overall consideration of the circumstances established, it is reasonable

to presume that the accused committed the theft of the articles from the

person of the deceased after causing bodily harm to the deceased. The fact

that within a short time after the murder of the deceased, the appellants came

into possession of the ornaments removed from the person of the deceased

and the 1st accused offered one of the stolen articles for sale on that very

day and the further fact that the other articles were found secreted to the

knowledge of appellants coupled with non-accountal of the possession of the

articles and the failure to give even a plausible explanation vis-à-vis the

incriminating circumstances would go to show that they were not merely

the receivers of stolen articles from another source but they themselves

removed them from the person of the deceased. Thus, the presumption to

be drawn under illustration (a) to Section 114 should not be confined to their

involvement in the offence of receiving the stolen property under Section

411 but on the facts of the case, it can safely go beyond that. In this context,

the three-Judge Bench decision of this Court in Sanwath Khan Vs. State of

Rajasthan, is quite apposite. While holding that from the solitary

circumstance of unexplained recovery of the articles belonging to the

deceased from the houses of the accused, the presumption of commission of

offence of murder cannot be raised, the Court nevertheless held that they can

be convicted of theft under Section 380 I.P.C. which was one of the charges

against the accused. Another decision of relevance is Shivappa Vs. State of

Mysore [1970 (1) SCC 487]. That was a case in which bundles of cloth

being carried in carts were looted by twenty persons and the accused were

charged for dacoity. Searches which took place within a few days after the

incident led to the recovery of large quantities of stolen clothes from their

houses. On these facts the Court drew the presumption that the persons with

whom the items of clothes were found were the dacoits themselves and the

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conviction was sustained. Hidayatullah, C.J. speaking for the three Judge

Bench observed that "It is only when accused cannot be connected with the

crime except by reason of possession of the fruits of crime that the

presumption may be drawn." Drawing support from these decisions too, we

are of the view that by invoking the presumption under Section 114 read

with Illustration (a) thereto, the appellants must, as a first step, be held to

have committed theft of ornaments which were removed from the person of

the deceased and that they are not mere receivers of stolen property. Theft is

a component of the offence of robbery and theft becomes robbery, if, in

order to the committing of theft, the offender causes or attempts to cause

death, hurt or wrongful restraint or instils fear thereof. Whether, on the

facts, they shall be convicted for robbery is yet another aspect which we

shall advert to a little later. We are only pointing out presently that if we

stop at applying illustration (a) to Section 114, the accused can be safely

convicted for the offence of theft rather than for the offence under S.411.

What is the position if we look beyond illustration (a) is another aspect.

VI. (a) The above discussion paves the way for consideration of a more

important question whether, having regard to the facts of this case, the

presumption should be extended to the perpetration of the offence of robbery

or murder or both? Presumption envisaged by illustration (a) to Section 114

has been stretched in decided cases to make a similar presumption as the

basis for conviction for graver offences of robbery and murder, if they are

part of the same transaction. Strictly speaking, such presumption does not

come within the sweep of illustration (a), though in some cases illustration

(a) has been referred to while upholding the conviction for robbery and

murder. Extending the presumption beyond the parameters of illustration (a)

could only be under the main part of the Section. The illustration only

provides an analogy in such a case. With this clarification, let us examine

whether there is scope to presume that the appellants committed robbery and

murder sharing the common intention. While on this point, we have come

across divergent approaches by this Court in various cases. In some cases,

the extended presumption was drawn while in some cases the Court

considered it unsafe to draw the presumption merely on the basis of recovery

of incriminating articles from the possession of the accused soon after the

crime. The decisions of this Court in Union Territory of Goa Vs.

Beaventura D'Souza [1993 Supp. (3) SCC 304], Surjit Singh Vs. State of

Punjab [AIR 1994 SC 110] and Sanwath Khan Vs. State of Rajasthan [AIR

1956 SC 54] fall in one line, whereas the decision in Gulab Chand Vs.

State of M.P. [1995 (3) SCC 574) falls on the other side of the line. In

the mid way we find certain decisions wherein the presumption was invoked

as an additional reason to support the conclusion based on circumstantial

evidence. We shall briefly refer to these decisions.

In Union Territory of Goa Vs. B. D'Souza (supra) a two-Judge

Bench of this Court held that discovery of incriminating articles including

gold ornaments of the deceased and the absence of explanation for the

possession of stolen articles does not by itself justify a presumption that the

accused committed murder. Suspicion however strong cannot take the place

of proof. The finding of the Sessions Judge based on the presumption "does

not stand scrutiny in the eye of law". Unless there is something else to show

that the accused alone were in the company of the deceased, the presumption

cannot be drawn. It was held that there were no circumstances connecting

the accused with the murder. The Court however convicted the accused

under Section 411 IPC. In a more recent case, namely, Ronny Vs. State of

Maharashtra [1998 (3) SCC 625], the above decision was referred to and

distinguished and the raison d'etre for not drawing the presumption was said

to be that the injured witness did not implicate the accused and the recovery

was after one month. However, on a perusal of the judgment in D'Souza

case, it is not apparent that the injured witness was in a position to see and

identify the accused at all. As regards the time factor, there was no

categorical observation in D'Souza's case that the lapse of one month's time

would weaken the presumption. Another judgment rendered by the same

Bench was in the case of Surjit Singh Vs. State of Punjab (supra). It was

held therein that recovery of watch belonging to the deceased from a pawn

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broker after 15 days of the date of occurrence on the basis of the information

furnished by the accused was held to be insufficient to connect him with

murder by invoking Section 114 of the Evidence Act. At the most, it was

held that he can be convicted under Section 411 and accordingly he was

convicted and sentenced. Another case which broadly falls within first

category is that of Sanwath Khan (supra). As it is a three-Judge Bench

decision, we may refer to it in some detail.

Two persons who were living in a temple were found lying

dead in the temple premises. They succumbed to axe injuries. The house

was found ransacked and almirahs etc. opened. One of the accused who was

arrested 12 days later produced a gold kanthi which it was lying buried in

his premises. Another accused who was arrested 17 days later produced a

silver plate from his house where it lay buried in the ground. Both these

articles belonged to the deceased. The High Court upheld the conviction by

relying on the solitary circumstance of the recovery of two articles at the

instance of the accused and the absence of explanation about their

possession. On further appeal, the three-Judge Bench of the Supreme Court

set aside the conviction under Section 302 and found the appellants guilty

under Section 380 IPC. Mahajan, J. speaking for the Bench observed as

under :-

"In the absence of any evidence whatsoever of the

circumstances in which the murders or the robbery

took place, it could easily be envisaged that the

accused at some time or other seeing the Mahant

and Ganpatia murdered, removed the articles

produced by them from the temple or received

them from the person or persons who had

committed the murder."

The Court, after having referred to the possibility of someone

else murdering the deceased observed thus :

"Be that as it may, in the absence of any direct or

circumstantial evidence whatsoever, from the

solitary circumstance of the unexplained recovery

of the two articles from the houses of the two

appellants the only inference that can be raised in

view of illustration (a) to S.114 of the Evidence

Act is that they are either receivers of stolen

property or were the persons who committed the

theft, but it does not necessarily indicate that the

theft and the murders took place at one and the

same time.

The accused produced these articles about a

fortnight after the theft and the maximum that can

be said against them is that they received these

goods knowing them to be stolen or that they

themselves stole them; but in the absence of any

other evidence, it is not possible to hold that they

are guilty of murder as well."

Having referred to the decisions of various High Courts, the

Court concluded as follows :-

"In our judgment no hard and fast rule can be laid

down as to what inference should be drawn from a

certain circumstance. Where, however, the only

evidence against an accused person is the recovery

of stolen property and although the circumstances

may indicate that the theft and the murder must

have been committed at the same time, it is not

safe to draw the inference that the person in

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possession of the stolen property was the murderer.

Suspicion cannot take the place of proof."

Now, it is time we refer to Gulab Chand Vs. State of M.P.

[1995 (3) SCC 574] case, where presumption under Section 114 of the

Evidence Act was carried to the utmost extent. In that case the accused were

charged under Sections 120-B, 302, 394 and 397 for having committed the

murder and robbery. The appellants were convicted under Section 380. On

appeal by the State, the High Court reversed the order of acquittal and

convicted the appellant Gulab Chand under Sections 302, 394 and 397. The

conviction of the other accused was modified to one under Section 411. In

that case, within a few days after the incident, on the search of the

appellant's house, various articles were found including ornaments

belonging to the deceased. Some of the ornaments were also recovered from

a shop on the basis of the information given by the accused. The Court

started the discussion with the preface: "it is true that simply on the

recovery of stolen articles, no inference can be drawn that a person in

possession of the stolen articles is guilty of the offence of murder and

robbery. But, culpability for the aforesaid offences will depend on the facts

and circumstances of the case and the nature of evidence adduced." After

referring to the test of time factor for drawing the presumption under

S. 114 (a) as laid down in Tulsiram Kanu Vs. State (AIR 1954 SC 1), the

Court observed, if the ornaments of the deceased were found in possession

of a person soon after the murder, a presumption of guilt can follow. But if

several months have expired, the presumption may not be permitted to be

drawn. Having regard to the close proximity of the time of recovery and

lack of credible explanation for the possession thereof and on account of

dealing with the ornaments immediately after the crime, it was held that a

reasonable inference of commission of offence could be drawn against the

accused. In conclusion, the learned Judges observed:

In the facts of this case, it appears to us that

murder and robbery have been proved to have been

integral parts of the same transaction and therefore

the presumption arising under Illustration (a) of

Section 114 Evidence Act is that not only the

appellant committed the murder of the deceased

but also committed robbery of her ornaments."

The above decision was cited with approval in the case of Mukund vs.

State of M.P. (1997 (10) SCC 130). The Court, having negatived the

contention of the appellant's counsel that mere recovery of stolen articles

from the house pointed out by the accused could only lead to the

presumption that the offence was committed under Section 411 but not the

offences under Sections 302 and 394, observed thus :-

"If in a given case as the present one the

prosecution can successfully prove that the

offences of robbery and murder were committed in

one and the same transaction and soon thereafter

the stolen properties were recovered, a court may

legitimately draw a presumption not only of the

fact that the person in whose possession the stolen

articles were found committed the robbery but also

that he committed the murder. In drawing the

above conclusion we have drawn sustenance from

the judgment of this Court in Gulab Chand Vs.

State of M.P.".

At the same time, the Court was cautious enough to say that the

other incriminating circumstances detailed earlier reinforced the ultimate

conclusion. Various others incriminating circumstances were referred to in

the judgment.

Gulab Chand's case was also referred to in Ronney Vs. State

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of Maharahstra [1998 (3) SCC 625] and Sanjay Vs. State (NCT of Delhi)

[2001 (3) SCC 193]. But it is to be noted that in all the three cases decided

subsequent to Gulab Chand's case, there were additional circumstances

which shed light on the involvement of the accused. So also in the case of

Earabhadrappa Vs. State of Karnataka [AIR 1983 SC 446], presumption

was raised that the accused who pointed out the places at which the

ornaments and sarees of the victim were kept committed robbery and

murder. Here again, quite a number of additional circumstances were

noticed, apart from the recovery of stolen articles. Thus, as far as the factual

matrix goes, only Gulab Chand's case stands apart. The recovery of the

articles of victim soon after the crime at the instance of the accused and

incredible explanation given by the accused for possession

of the articles were held to be sufficient to raise the

presumption of having committed robbery and murder, if they were

otherwise part of the same transaction.

Before parting with the discussion on judicial precedents, we

may advert to a recent decision in State of Maharashtra Vs. Suresh [2000

(1) SCC 484]. The Bench consisting of K.T. Thomas and R.P. Sethi, JJ.,

observed that a false answer offered by the accused to explain away the

incriminating circumstances which are supposed to be within his knowledge

'provides a missing link for completing the chain'.

Whether the approach of the Court and ratio of the decision in

Gulab Chand's case is in consonance with the three-Judge bench decision in

Sanwath Khan's case (supra) is, at least a debatable issue. When this

decision was brought to the notice of their Lordships who decided Gulab

Chand's case, it was merely observed that "the said decision is not

applicable in the facts and circumstances of the present case". There was no

further elaboration. In this state of law, the safer course would be to give

due weight to the dicta laid down and the ultimate conclusion reached by the

larger Bench in Sanwath Khan's case. We cannot go against that decision in

so far as it applies to the present case.

VI (b). Now, let us revert back to the question formulated by us at the

outset and examine whether in the light of the facts and circumstances of the

present case, the presumption under Section 114 should be so extended as

to hold the appellant liable for graver offences of robbery and murder.

Before proceeding further, it is relevant to refer to the medical

evidence. PW 8, who was the medical officer in the Civil Hospital,

Osmanabad, conducted post-mortem over the dead body. He found four

external injuries : (1) Contused lacerated wound on posterior aspect of

the left ear measuring 3 cm.; (2) Contused lacerated wound on the right ear

lobule and measuring 2 x 1 x 2 cm.; (3) Abrasion on the chest wall,

anterior side in the third intercostal space on right side of the size of 3 x 3

cm.; and (4) Contusion on the right pectoral region measuring 3 x 2 cm.

He stated that all the injuries were antemortem. On internal examination, he

found bilateral haemothorax and laceration of the right lung base of the size

of 6 x 7 cm. He also found that there was a vertical tear on 4th right and left

ventricles of the heart and a contused lacerated wound on right lobe of the

liver of the size of 5 x 3 x 2 cm. PW 8 deposed that the cause of the death

was bilateral haemothorax with heart injury, liver injury and

haemoperitonium. According to him, external injuries 1 and 2 could have

been caused if the earrings were forcibly snatched. External injuries 3 and 4

could have been caused by hard and blunt object like a stone. He clarified

that internal injuries could be caused by article No.1 (stone weighing 10

k.g.). if it is forcibly hit on the chest. Further he deposed that the external

injuries and internal injuries were sufficient in the ordinary course of nature

to cause death. He denied the suggestion that the deceased could not have

been hit with a stone. In the light of the medical evidence, there are three

points which are to be prominently kept in view. Firstly, there was a

lacerated wound on the posterior aspect of the left ear and another such

wound on the right ear lobule which according to the doctor could have been

caused in the process of forcibly snatching the ear-rings worn by the victim.

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Secondly, the internal injuries which were the immediate cause of death

would have been caused by a hard and blunt object. According to the

prosecution the deceased was hit by a heavy stone found at the spot and

seized under a panchanama. Thirdly, the injuries in question were

antemortem. In this state of evidence, it is clear beyond reasonable doubt

that the person or persons who removed the ornaments worn by the deceased

themselves inflicted the wounds in the process of removing them. There

was evidently a hush-hush operation to run away with the booty without

allowing much time to pass. The fact that the ornaments on the person of

the deceased came into the hands of the accused soon after the crime and

they failed to give any explanation for the circumstances appearing against

them justifies the presumption, as already discussed, that they themselves

removed these articles from the person of the deceased. Causing injuries to

the deceased in the process of removal of ear-rings is, in our view,

inextricably inter-linked with the commission of theft which is an ingredient

of robbery. It would be far-fetched to think, as the trial Judge has expressed

that someone else might have caused injuries and the appellant would have

stolen the articles thereafter. The fact that the booty was distributed between

the three accused and that they had secreted the robbed articles would

clearly reveal that the three accused shared the common intention to commit

robbery. Hence, we are of the view that by having resort to the presumption

under Section 114, an inference can be safely drawn that the appellants

committed robbery in furtherance of common intention. No other

reasonable hypothesis consistent with the innocence of the accused is

possible.

VI.(c) Whether the presumption could be further stretched to find

the appellants guilty of gravest offence of murder is what remains to be

considered. It is in this arena, we find divergent views of this Court, as

already noticed. In Sanwath Khan's case, the three-Judge Bench of this

Court did not consider it proper to extend the presumption beyond theft (of

which the accused were charged) in the absence of any other incriminating

circumstances excepting possession of the articles belonging to the deceased

soon after the crime. However, we need not dilate further on this aspect as

we are of the view that in the peculiar circumstances of the case, it would be

unsafe to hold the accused guilty of murder, assuming that murder and

robbery had taken place as a part of the same transaction. The reason is this.

Going by the prosecution case, the deceased Baburao was hit by a heavy

stone lying on the spot. The medical evidence also confirmed that the fatal

injuries would have been inflicted by a heavy stone like article No.1. It is

not the case of the prosecution that the appellants carried any weapon with

them or that the injuries were inflicted with that weapon. There is every

possibility that one of the accused picked up the stone at that moment and

decided to hit the deceased in order to silence or immobilise the victim. If

the idea was to murder him and take away the ornaments from his person,

there was really no need to forcibly snatching the ear-rings before putting an

end to the victim. It seems to us that there was no pre-mediated plan to kill

the deceased. True, common intention could spring up any moment and all

the three accused might have decided to kill him instantaneously, for

whatever reason it be. While that possibility cannot be ruled out, the

possibility of one of the accused suddenly getting the idea of killing the

deceased and in furtherance thereof picking up the stone lying at the spot

and hitting the deceased cannot also be ruled out. Thus two possibilities

confront us. When there is reasonable scope for two possibilities and the

Court is not in a position to know the actual details of the occurrence it is not

safe to extend the presumption under Section 114 so as to find the appellants

guilty of the offence of murder with the aid of S.34 IPC. While drawing the

presumption under Section 114 on the basis of recent possession of

belongings of the victim with the accused, the Court must adopt a cautious

approach and have an assurance from all angles that the accused not merely

committed theft or robbery but also killed the victim.

VII In the result, we set aside the conviction of the accused under

Section 302 IPC. We find the accused guilty of the offence punishable

under Section 394 read with Section 34 IPC and accordingly convict the

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accused under Section 394 and sentence them to undergo rigorous

imprisonment for a period of five years and to pay a fine of Rs.500/- each

and in default to undergo further imprisonment for a period of three months.

The appeals are thus partly allowed.

J

(R.C. Lahoti)

J

(P.Venkatarama Reddi)

December 14, 2001.

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EXTRACT FROM DIRECT TAX LAWS COMMITTEE

It should be recognised that the law, however, exhaustively and

elaborately it may be rationalised, cannot take care of all possible situations

and circumstances which may arise in a developing and complex economy

such as ours. The nation is engaged in a process of planned economic

growth consistent with social justice, and it has wide and varied components

like the public sector, joint sector and the private sector, as also industry,

trade, commerce and agriculture, apart from the urban and rural aspects. All

these complexities are inherent in a developing economy such as ours and,

therefore, tax laws cannot be reduced to a plane of total or absolute

simplicity. But best efforts towards simplification still have to be made.

Brennan J, writing in the Federal Law Review, indorsed the Kitto view:

"The judicial function is essentially syllogistic. The applicable

principles 'the law as it is' provide the major premise; 'the facts as

they are' provide the minor premise; the judgment follows inexorably

by applying 'the law as determined to the facts as determined'."

These quotations reflect a view that today seems quaintly anachronistic.

Indeed, it must be said that it has probably never been the case that the role

of an appellate judge was merely mechanistic, although there is perhaps a

question of degree.

Mason CJ spelt out his position publicly and clearly. Speaking to the

Sydney Institute his Honour said:

"Just as the judge is becoming more of a manager of the litigation, so

the judge is also likely to become more of a constructive interpreter of

legislation. That will happen as the so-called 'plain English' reforms

in legislative drafting find their way into the statute book. The

movement away from detailed regulation, which reached its apogee in

the Income Tax Assessment Act and the Corporati8ons Law to the

broader statements of principle characterstic of United State

legislation and, to a lesser extent, of United Kingdom legislation, will

leave the courts with more to do. The judges will be called upon to

spell out the interstices of the legislative provisions. In doing so, they

must resolve questions of interpretation by reference to the policies

and purposes which are reflected in the legislation.

What I have just said may not be welcome news to those who

believe that the courts do no more than apply precedents and look up

dictionaries to ascertain what the words used in a statute mean. No

doubt to those who believe in fairy tales that is a comforting belief.

But it is a belief that is contradicted by the long history of the

common law. That history is one of judicial law-making which shows

no signs of unaccountably coming to an end. However, a distinction

must be made between appellate judges and primary or trial judges

who, generally speaking, are confined to applying principles of law to

the facts as they are found."

The Indian Constitution has the place of pride in the

world. The history of world after the Indian independence has

fully revealed the wisdom of Indian Constitution and has

proved its efficacy in creating a new world order based on

Liberty, Equality and Fraternity the ideals which inspired the

French revolution. We have seen the experience of many

countries which attained freedom after the Second World War.

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The Constitutions of many of those countries with nice phrases

and high ideals meant to ensure a democratic system of

governance have faded away, while many others are struggling

to survive. But our Constitution has withstood the test of time.

The democratic institutions and practices have grown and

nourished under the aegis of our Constitution. Every Indian can

confidently say that the Constitution cannot fail us despite

turbulent times and the ongoing challenges. It is said by

George S. Bidault, very aptly:

"The good or bad fortune of a nation depends on

three factors; its Constitution, the way the

Constitution is made to work and the respect it

inspires"

We, the people of India, as the preamble to the

Constitution states, have given to ourselves the

Constitution and have solemnly resolved to constitute

India into a Sovereign, Socialist, Secular, Democratic

Republic and to secure Justice, Liberty, Equality and

Fraternity. The expression 'Socialist' and 'Secular' were

added to the preamble the 42nd Amendment Act in the

year 1976. Even without those phrases, the socialist and

secular character of the Constitution is implicit in several

provisions in their original form with the amendments

which were made till then. It is the fountain source of all

laws and the framework of Legislative, Executive and

Judicial power. Constitution is the 'Supreme Law' and

all laws and the executive and judicial action should

conform to the constitutional provisions. Our

Constitution is a very lengthy document, perhaps the

lengthiest taking care of each and every details which the

free India, needed to have.

The Drafting Committee scrutinized the

democratic Constitutions of various countries such as

USA, Australia, Canada etc. Such of those provisions

which are best suited to our polity and society have been

borrowed and several provisions have been adopted in

modified form to suit the Indian conditions, the psyche of

the people and the paramount needs of the nation. The

Constitution marked the culmination of our glorious epic

struggle for freedom reflecting the lofty ideals and ideals

and values that inspired that historic crusade; and it

enshrines the cherished goals and objectives that We, the

People of India have set for ourselves.

Our Constitution is not a mere declaratory

document, it sets out a process of shaping human values,

relations and material conditions of life. The

Constitution of India was framed not merely for the

democratic governance of the country but more

significantly to promote nation-building process, unlike

in the case of many democracies where the Constitution

provided merely for the institutions and process of

governance. In the words of Bhagwati, J. speaking for

the Supreme Court, in Bachan Singh Vs. State of Punjab

"Constituion is not a mere pedantic legal text, but it

embodies certain values, cherished principles, spiritual

norms, and recognizes and upholds the dignity of man. It

accepts the individual as a focal point of development

and regards his material, moral, spiritual development, as

a chief concern of governance."

In the light of experience gained during half-a-

century, attempts are being made to fine-tune the

Constitution to the process of social transformation it has

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ignited and to be more responsive to the needs of the day.

A Committee to review the working of the Constitution

has now been setup. It is often being debated whether

the Constitution, amended 80 times so far is inadequate,

or the persons who operated the Constitution have failed

us.

The bedrock of the Indian Constitution rests on

independent judiciary with powers of Judicial Review.

The Supreme Court and High Courts are the creatures

of the Constitution and hence they are known

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