Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1460 OF 2011

RAJ KUMAR @ RAJU ...APPELLANT

VERSUS

STATE (NCT OF DELHI) ...RESPONDENT

J U D G M E N T

RANJAN GOGOI, J.

1. The accused appellant had been

convicted by the learned trial Court for

the offence punishable under Section 302

read with Section 34 IPC and has been

sentenced to undergo rigorous imprisonment

for life and a fine of Rs.2,000/-, in

default, to suffer rigorous imprisonment

for a period of two months more. He has

also been convicted under Section 411 IPC

and sentenced to undergo rigorous

imprisonment for one year. Both the

Page 2 2

sentences were directed to run

concurrently. In appeal, while the

conviction under Section 302 IPC has been

maintained along with sentence imposed,

the conviction under Section 411 IPC has

been set aside. Instead, the accused

appellant has been convicted for

commission of offence punishable under

Section 392 IPC and sentenced to undergo

rigorous imprisonment for one year for

commission of the said offence. Aggrieved,

this appeal has been filed.

2. We have heard the learned counsels

for the parties.

3. The entire case of the prosecution

is based on circumstantial evidence.

P.W.5 – Ombir Singh, the husband of the

deceased in his deposition has stated that

he resides with his wife, three children,

his sister Raj Bala (P.W.9) and niece

Sarvesh (P.W.21). Accused Raj Nirmal

Gautam @ Raju (since deceased) was a

Page 3 3

tenant in one of the two rooms in their

house. On 11

th

September, 1991 at around

9.00 p.m. accused Raj Nirmal Gautam along

with the present appellant Raj Kumar and

one more person named Dharmender alias

Babloo came to his house and together they

played a game of cards. After some time

he went to his room and slept. Raj

Nirmal, Raj Kumar (appellant herein) and

Dharmender stayed in the room for the

night and left early next morning at about

6.30 a.m. While leaving, accused Raj

Nirmal told P.W. 5 that he was going to

his village and may not return for the

night. At around 7.30 a.m., his sister

Raj Bala (P.W.9) who used to reside with

him, his niece Sarvesh and the children

left for school. He also left for his

workplace at around 7.35 a.m. According

to P.W. 5, at about 2.30 p.m. he received

a telephone call in his office informing

him that his wife had met with an

Page 4 4

accident. He, therefore, reached home by

3.30 p.m. and found the dead body of his

wife. The almirah was found unlocked and

all the goods therein lying scattered. A

number of jewellery items including gold

ornaments were found missing.

4. The accused Raj Nirmal Gautam and

Raj Kumar (appellant herein) were

apprehended on 16

th

September, 1991 when

they were alighting from a bus. On their

personal search, various jewellery items

were recovered from them which were duly

seized by seizure memos Ex.PW-14/C and

Ex.PW-14/D. The jewellery items so

recovered from the possession of the

accused were identified by P.W.5 (Ombir

Singh) to be belonging to his wife. The

accused had no reasonable explanation to

offer for their possession of the

jewellery items. They however claimed that

they were not guilty.

Page 5 5

5. P.W. 21 – Sarvesh deposed that at

around 10.15 a.m. she had come back to the

house for lunch and at that time she found

the accused persons present in the house

and were playing cards. Her aunt gave her

lunch and after that she again left for

school. When she returned at 1.00 p.m. she

saw her aunt Suman lying in the kitchen.

P.W. 21 was, however, disbelieved by the

learned trial Court as she was found to

have falsely implicated accused Jagpal who

has been acquitted by the learned trial

court.

6. P.W.9 – Raj Bala, sister of P.W.5,

in her evidence had deposed that in the

night of 11.09.1991 the accused persons

were in the room and they had left early

in the morning of the next day. She has

further deposed that she is a teacher in

the school and had accompanied P.W.21 and

the two children of P.W.5 to school in the

morning at about 7.30 a.m. She has also

Page 6 6

deposed that at about 12.00–12.30 p.m. she

had sent the two children of P.W.5 back

home with an Aaya and on being informed by

the Aaya that her sister-in-law (deceased)

was not available in the house, she came

home to find her sister-in-law lying dead

in the kitchen.

7. P.W.12 – Dhani Ram had deposed

that he had seen the accused persons

moving around in the neighbourhood looking

perplexed. An attempt was made to

discredit the said witness in view of his

further deposition that he had seen the

accused in police custody on 13

th

September, 1991 whereas, according to the

prosecution, accused were arrested on 16

th

September, 1991 when they were alighting

from a bus. The said contention was

negatived by the High Court on the ground

that the aforesaid discrepancy is on

account of wrong recapitulation and

confusion over the specific dates.

Page 7 7

8. P.W. 15 – Raj Kumar, a TSR driver,

also deposed that he had occasion to take

the three persons including appellant Raj

Kumar in his TSR at about 11.00 a.m. on

12

th

September, 1991 and in the course of

their conversation he had overheard them

discussing as to whether they should have

killed “her” or not. P.W. was disbelieved

by the High Court on the ground that the

conversation attributed by him to the

accused is opposed to normal human

behavior and conduct.

9. This is the sum total of the

evidence on record. From the above, it

transpires that there are two material

circumstances which have been proved by

the prosecution. Firstly, that in the

night prior to the incident i.e. on 11

th

September, 1991 the accused were present

in the house; and secondly that on 16

th

September, 1991 from the possession of the

accused persons recovery of gold ornaments

Page 8 8

was made which belonged to the deceased.

Such possession has not been explained by

the accused. Even if the court is to

accept the evidence of P.W.12 that in the

morning of the day of the incident the

witness had seen the accused in the

neighbourhood in a perplexed state,

notwithstanding the contradictions and

inconsistencies in the said evidence as

already noticed, at the highest, another

circumstance could be added to the above

two, namely, that the accused persons were

seen in the neighbourhood in the morning

of the incident. The question that

confronts the court is whether on the

basis of the aforesaid circumstances the

case of the prosecution can be taken to

have been proved beyond all reasonable

doubts.

10. Learned counsel for the appellant

would contend that the aforesaid

circumstances do not conclusively point to

Page 9 9

the involvement of the accused appellant

in the crime. The chain leading to the

sole conclusion that it is the accused

persons and nobody else who had committed

the crime is not established by the three

circumstances set forth above, even if all

of such circumstances are assumed to be

proved against the accused. Reliance has

also been placed on the decision of this

Court in the case of Sanwat Khan and Anr .

vs. State of Rajasthan

1

, wherein this Court

had taken the view that recovery of

ornaments of the deceased from the accused

or production of the same by the accused

in the course of investigation, howsoever

suspicious, cannot be conclusive of the

question of the accused having committed

the offence. As per Illustration (a) to

Section 114 of the Evidence Act, 1872

though recovery of the ornaments can lead

to presumption that the accused had

committed robbery or received stolen

1

AIR 1956 SC 54

Page 10 10

property, unless there are circumstances

to show that the theft/robbery and the

murder took place in the same transaction,

the accused would not be liable for the

offence under Section 302 IPC.

11. The facts in Sanwant Khan (supra)

bear a striking resemblance to the facts

that confront us in the present appeal. If

the evidence of P.W.12 is to be discarded

on the ground that such evidence is vague,

(there is no mention of the date on which

P.W.12 had seen the accused person in the

neighbourhood and also as the said

testimony runs counter to the prosecution

case about arrest of the accused on

16.09.1991) the last seen theory built up

on the evidence of P.W.5 and P.W.7 leaves

a significant margin of time during which

the crime could have been committed by

somebody other than the accused. The said

fact must go to the benefit of the

accused. In this regard, it may be

Page 11 11

recollected that P.W.5 and P.W.7 have

deposed that they had last seen the

accused person in the early morning of the

date of the occurrence i.e. 12.09.1991 and

that they were going away to some other

place. Even if the evidence of P.W.12 is

to be accepted, all it can be said is that

the evidence of the said witness read with

the evidence of P.W.5 and P.W.7 disclose

that the accused persons were seen in the

vicinity of the neighbourhood of the crime

little before the same was committed. By

itself, the said circumstance cannot lead

to any conclusion consistent with the

guilt of the accused.

12. The above circumstance, if coupled

with the recovery of the ornaments of the

deceased from the possession of the

accused, at best, create a highly

suspicious situation; but beyond a strong

suspicion nothing else would follow in the

absence of any other circumstance(s) which

Page 12 12

could suggest the involvement of the

accused in the offence/offences alleged.

Even with the aid of the presumption under

Section 114 of the Evidence Act, the

charge of murder cannot be brought home

unless there is some evidence to show that

the robbery and the murder occurred at the

same time i.e. in the course of the same

transaction. No such evidence is

forthcoming.

13. In view of what has been found

above, we do not see as to how the charge

against the accused/appellant under

Section 302 IPC can be held to be proved.

The learned trial court as well as the

High Court, therefore, seems to be erred

in holding the accused guilty for the said

offence. However, on the basis of the

presumption permissible under Illustration

(a) of Section 114 of the Evidence Act, it

has to be held that the conviction of the

accused appellant under Section 392 IPC is

Page 13 13

well founded. Consequently, we hold that

the prosecution has failed to bring home

the charge under Section 302 IPC against

the accused and he is acquitted of the

said offence. The conviction under Section

392 IPC is upheld. As the accused

appellant, who is presently in custody,

had already served the sentence awarded to

him under Section 392 IPC, we direct that

he be set at liberty forthwith.

14. The appeal, consequently, is

partly allowed in terms of the above.

....................,J.

(RANJAN GOGOI)

....................,J.

(ASHOK BHUSHAN)

NEW DELHI

JANUARY 20, 2017