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CASE NO.:

Appeal (crl.) 664 of 2000

Appeal (crl.) 682 of 2000

Appeal (crl.) 683 of 2000

PETITIONER:

SANJAY @ KAKA SHRI NAWABUDDIN @ NAWAB VINOD KUMAR

Vs.

RESPONDENT:

THE STATE (N.C.T. OF DELHI)

DATE OF JUDGMENT: 07/02/2001

BENCH:

K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI,J.

In the broad day light and in the capital city of the

country, the appellants and one Mohabat Ali, the four young

desperados entered the premises No.F-8/5, Model Town,

Part-II, Delhi to commit robbery, in consequence of which

Smt.Sheela was stabbed to death. The occurrence which took

place on 20th June, 1990 is not the isolated act so far as

the law and order and life and liberty of the people of the

capital city and other parts of the country are concerned.

By killing the deceased and subjecting Amarjeet Sharma to

the threat of being killed by pointing a revolver at him,

the resistance of the commission of the intended crime was

immobilised. After registration of the First Information

Report and completion of the investigation, charge-sheet was

filed against the accused persons under Sections 302, 394,

397, 398, 342, 120B and 411 IPC besides Sections 25, 27, 54

and 59 of the Arms Act and Section 5 of the Terrorist and

Disruption Activities (Prevention) Amendment Act, 1993

(hereinafter referred to as "TADA (P) Act"). The trial

court found appellant Vinod guilty of offences under Section

392/34, 397 and 302 IPC, besides Section 5 of the TADA(P)

Act. He was sentenced to imprisonment for life and a fine

of Rs.2,000/- for the offence under Section 302 IPC, for

seven years rigorous imprisonment for the offence under

Sections 397, 392/34 and was also sentenced to rigorous

imprisonment for five years and a fine of Rs.2,000/- for the

commission of offences under Section 5 of TADA (P). Accused

Mohabat Ali was convicted for the offences under Sections

392/34 IPC and Section 5 of the TADA(P) Act and was

sentenced to rigorous imprisonment for five years and a fine

of Rs.2,000/- on each count. Appellants Nawabuddin and

Sanjay Moley were sentenced to five years rigorous

imprisonment and a fine of Rs.2,000/-- each for the

commission of offence under Sections 392/34 IPC. Various

sentences were also imposed in case of default of payment of

fine. All the sentences were directed to run concurrently.

Aggrieved by the judgment of the Designated Trial Court, the

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appellants have filed the present appeals contending that no

case is made out against anyone of them and the trial court

committed a mistake of law for basing its findings and

conviction on the evidence which was not only shaky and

unreliable but also inadmissible in evidence under the

relevant provisions of law. The facts, as disclosed in the

First Information Report and the evidence led by the

prosecution, are that on 20th June, 1990 an annonymous call

was received at the Police Control Room with respect to the

commission of murder in Model Town, Part-II area of the city

of Delhi. This information was recorded vide DD No.13-A

whereafter Harbans Singh, Police Inspector of Police Station

Model Town along with his staff rushed to the spot where he

found the dead body of a woman lying in the pool of blood

with multiple injuries, apparently caused by sharp edged

weapon. He also noticed household goods including clothes

scattered all around. Three jewellery boxes, without

jewellery, were found lying in the room. One Amarjeet

Sharma met the Police Inspector and gave a statement to the

effect that he was employed as a domestic servant in that

house for the last five to six days. According to him, at

about 2.00 p.m. when he was preparing food in the kitchen,

he heard the sound of door bell. When Smt.Sheela, his

employer, opened the door, two young boys aged 18-19 and

19-20 years came inside pushing her. One of them inflicted

multiple knife injuries on the person of Smt.Sheela as a

consequence of which she fell down on the floor. The other

intruder put revolver on the neck of the said Amarjeet

Sharma and made him stand in silence in a corner of the

room. The culprits cut telephone wires and searched for

goods lying in the room. They removed the Kangan and

Necklace worn by Smt.Sheela and kept all jewellery, cash and

other goods in two briefcases. In the process of inflicting

the injuries on the person of Smt.Sheela, the clothes of the

culprits got blood stains. One of the culprits was

described as short-statured and the other long-statured

person. The culprits shut Amarjeet Sharma in an Almirah.

After committing the offences, the aforesaid two boys left

the place. He managed to get out of the Almirah with great

difficulty and came down. He raised an alarm, upon which

the people collected. Formal case was registered on the

basis of the statement of the aforesaid domestic servant.

During investigation appellant Sanjay Moley, the nephew of

the deceased was arrested and on his interrogation other

accused apprehended. All the accused made disclosure

statements in consequence of which the .32 bore revolver

with six cartridges, a knife, blood stained clothes, scooter

and the looted property were recovered from their houses and

the places where they had stated to have hidden. After

their conviction and sentences only three of the four

accused have filed the present appeals. Mohabat Ali,

convict has chosen not to challenge the verdict of the

Designated Trial Court. We have heard at length S/Shri R.K.

Jain and Sushil Kumar, Senior Advocates appearing for@@

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appellants Sanjay and Nawabuddin and Shri V.Ramasubramaniam,@@

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Amicus Curaie for appellant Vinod. The learned counsel

appearing for the appellants have vehemently argued that in

the absence of direct evidence in the form of eye-witnesses,

the trial court was not justified in recording the

conviction against the appellants and sentencing them to

various imprisonments. According to them the circumstantial

evidence relied upon by the prosecution was shaky and

inadmissible. Otherwise also the circumstances relied upon

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by the prosecution were not sufficient to connect the

appellants with the commission of the crime for which they

were charged, convicted and sentenced. The circumstances

relied upon by the prosecution and held proved by the trial@@

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court are:@@

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"i) Motive

ii) Medical Evidence

iii) Disclosure statement of accused persons.

iv) Recovery of stolen property from the accused

persons.

v) Recovery of blood stained shirt from accused vinod.

vi) Recovery of weapon of offence from accused Vinod.

vii) Extra judicial confession of accused Sanjay Moley.

viii)Last seen circumstances in respect of accused

Sanjay and Nawabuddin."

The most important circumstances to connect the accused

with the commission of crime are the disclosure statements

made by them and the recovery of weapon of offence, blood

stained clothes and stolen property made in consequence

thereof besides extra judicial confession of accused Sanjay,

the circumstance of his being seen in the company of

Nawabuddin under suspicious circumstances and observance of

his unusual behaviour. The circumstances proving the motive

and the medical evidence connecting the accused with the

commission of crime are dependent upon the proof of the

other circumstances i.e. disclosure statements, recoveries

and the extra judicial confession. The accused were

arrested in consequence to the clue provided by Trilochan

Singh (PW13) and Sheetal Grover (PW5) in response to the

public assistance sought by the police on Public Address

System. Sheetal Grover (PW5) stated that the appellant

Sanjay who was his friend came to his shop in the evening of

20th June, 1990 at about 5-6 p.m. He was in worried mood.

Upon enquiry he told the witness that being in need of money

he along with his three friends went to the house of his

aunt with a view to commit theft. He further told that

while he and one of his friends stood outside the house of

his aunt, the other went inside the house to commit theft.

Those who went inside after coming back out of the house

told Sanjay, appellant that they had committed the murder of

his aunt. After knowing about the death of his aunt, the

aforesaid accused got scared and worried. He came to the

witness for seeking his help. The witness told him that he

should go to the police and make his genuine statement

there. On the same night the witness was called in the

police station where his statement was recorded.

Assailing the testimony of PW5, Shri R.K. Jain, learned

Senior Counsel appearing for Sanjay, appellant, submitted

that the statement of the witness is fabricated,

after-thought and unreliable. According to him, there was

no cause or occasion for Sanjay to go to the witness for

making the aforesaid extra judicial confession as, according

to him, they did not have such relations between them which

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could prompt the aforesaid accused to confide with the

witness. He has further submitted that as the accused

Sanjay was in the police station at the time when statement

of PW5 was recorded and despite statement permitted to go

home, the story of the accused making the extra-judicial

confession stood falsified.

We have critically analysed the statement of the

aforesaid witness and do not find any substance in the

submissions made on behalf of the aforesaid accused. The

witness, PW5 has categorically stated "I developed

friendship with accused Sanjay in the last 1 and half years

of this incident". The common friend of the witness and the

accused was one Dharmender Dhingra. In his statement,

recorded under Section 313 Cr.P.C., the appellant Sanjay has

not specifically denied his friendship with PW5. No

suggestion was made to the aforesaid witness for allegedly

making wrong statement and thereby roping in the said

accused with the commission of the crime. Admittedly, PW5

is a shopkeeper and has no axe to grind with the appellant

Sanjay. Why did he go to the witness to make clean his

breast, is a fact only known to the accused for which he has

not given any explanation. We have no hesitation to believe

the statement of Sheetal Grover (PW5) that the accused

Sanjay had in fact come to him on 20th June, 1990 about 5-6

p.m. and confided with respect to the offence of robbery

and murder committed by him and others on that day. There

is nothing in the deposition of any of the witness that the

police had known about the commission of the offence and

involvement of Sanjay before the statement of Sheetal Grover

(PW5) recorded by the police at about 9.00 p.m.

We cannot accept the contention of Shri Jain to hold

that the accused was present in the police station when the

statement of PW5 was recorded and that the investigating

officer had permitted the said accused to go home despite

the statement of the witness. PW5 has categorically stated

that he closed his shop at about 7.30/8.00 p.m. on 20th

June, 1990 and reached his house in half an hour's time. He

further stated that "on 20th June, 1990 the police people

came to my house at 8-9 p.m. to call me to the police

station". SI Virender Singh PW24 has stated that Sanjay,

appellant was interrogated in the police station on 20th

June, 1990 at about 8 p.m. and let off after interrogation.

He was directed to come again in the morning at 10.00 a.m.

on the next day. By reading both the statements together it

transpires that after his interrogation Sanjay appellant was

permitted to go home on 20th June, 1990 at 8.00 p.m.

Statement of Sheetal Grover (PW5) was recorded after 9.00

p.m. in the police station, obviously when the said accused

had left for his home. Picking up the words "accused Sanjay

was present in the police station at that time" from the

statement of PW5, the learned counsel has tried to make a

mountain out of the mole. The aforesaid sentence appears in

the context when the police came at the residence of the

witness and "on enquiry, had told us that my presence was

required in the police station about a statement in regard

to Sanjay, accused. Accused Sanjay was present in the

police station at that time". There is no confusion in our

mind that at the time the police party left the police

station for contacting PW5 at about 7.30 and 8.00 p.m.,

Sanjay, appellant was present in the police station. He was

directed to go home as by that time there was nothing

against him as per the statement of SI Virender Singh

(PW24).

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The testimony of PW5 in this regard does not suffer from

any contradiction to absolve the appellant Sanjay of his

criminal liability with respect to the commission of the

crime for which he has been convicted and sentenced. As to

why the said accused was not arrested on the same night, the

defence has not sought any explanation from the IO. One of

the reasons for not arresting accused Sanjay immediately

after recording the statement of PW5 may be that the

investigating officer knew that the said accused had to

appear in the police station on the next morning at 10.00

a.m. for which specific directions had been given to him.

Be that as it may, this alleged omission of not arresting

the accused during the night time cannot be made a basis for

discrediting the testimony of PW5.

We are satisfied that Sheetal Grover (PW5) is an

independent witness and his testimony inspires confidence

which has been relied upon by the trial court. We see no

reason to disbelieve the statement of Sheetal Grover (PW5)

in so far as it relates to the making of the extra-judicial

confession by appellant Sanjay before him. The defence has

utterly failed to bring on record any circumstance which

could be made a basis for discrediting the testimony of the

aforesaid witness. However, the effect of the statement of

the accused before the witness would be tested in the light

of other circumstances and the whole conspectus of the

prosecution case.

There is no dispute that after the statement of Sheetal

Grover (PW5) and interrogation of Sanjay appellant, the

other accused involved in the crime were apprehended and

arrested. During the course of interrogation the accused

persons made statements which led to the recovery of the

weapon of offence, stolen property and other incriminating

material. It is also admitted that Smt.Sheela met with a

homicidal death on account of about 24 injuries inflicted on

her person with a sharp edged weapon like the knife, the

weapon of offence seized in the present case.

The most important circumstance for the prosecution in

the case is the disclosure statements of the accused persons

and recoveries of the stolen property, blood stained shirt

and weapon of offence consequent upon such statements. The

admissibility of the statements made by the accused persons

to the police is challenged on twin grounds, i.e., (i)

factually no such statement was made, and (ii) the statement

made was inadmissible in evidence.

Section 25 mandates that no confession made to a police

officer shall be proved as against a person accused of an

offence. Similarly Section 26 provides that confession by

the accused person while in custody of police cannot be

proved against him. However, to the aforesaid rule of

Sections 25 to 26 of the Evidence Act, there is an exception

carved out by Section 27 providing that when any fact is

deposed to as discovered in consequence of information

received from a person accused of any offence, in the

custody of a police officer, so much of such information,

whether it amounts to a confession or not, as relates

distinctly to the fact thereby discovered, may be proved.

Section 27 is a proviso to Sections 25 and 26. Such

statements are generally termed as disclosure statements

leading to the discovery of facts which are presumably in

the exclusive knowledge of the maker. Section 27 appears to

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be based on the view that if a fact is actually discovered

in consequence of information given, some guarantee is

afforded thereby that the information was true and

accordingly it can be safely allowed to be given in

evidence.

As the Section is alleged to be frequently misused by

the police, the courts are required to be vigilant about its

application. The court must ensure the credibility of

evidence by police because this provision is vulnerable to

abuse. It does not, however, mean that any statement made

in terms of the aforesaid section should be seen with

suspicion and it cannot be discarded only on the ground that

it was made to a police officer during investigation. The

court has to be cautious that no effort is made by the

prosecution to make out a statement of accused with a simple

case of recovery as a case of discovery of fact in order to

attract the provisions of Section 27.

The position of law in relation to Section 27 of the Act

was elaborately made clear by Sir John Beaumont in Pulukuri

Kottaya and others v. Emperor [AIR 1947 PC 67] wherein it

was held: "Section 27, which is not artistically worded,

provides an exception to the prohibition imposed by the

preceding section, and enables certain statements made by a

person in police custody to be proved. The condition

necessary to bring the section into operation is that

discovery of a fact in consequence of information received

from a person accused of any offence in the custody of a

Police Officer must be deposed to, and thereupon so much of

the information as relates distinctly to the fact thereby

discovered may be proved. The section seems to be based on

the view that if a fact is actually discovered in

consequence of information given, some guarantee is afforded

thereby that the information was true, and accordingly can

be safely allowed to be given in evidence; but clearly the

extent of the information admissible must depend on the

exact nature of the fact discovered to which such

information is required to relate. Normally the section is

brought into operation when a person in police custody

produces from some place of concealment some object, such as

a dead body, a weapon, or ornaments, said to be connected

with the crime of which the informant is accused. Mr.Megaw,

for the Crown has argued that in such a case the 'fact

discovered' is the physical object produced, and that any

information which relates distinctly to that object can be

proved. Upon this view information given by a person that

the body produced is that of a person murdered by him, that

the weapon produced is the one used by him in the commission

of a murder, or that the ornaments produced were stolen in a

dacoity would all be admissible. If this be the effect of

section 27, little substance would remain in the ban imposed

by the two preceding sections on confessions made to the

police, or by persons in police custody. That ban was

presumably inspired by the fear of the Legislature that a

person under police influence might be induced to confess by

the exercise of undue pressure. But if all that is required

to lift the ban be the inclusion in the confession of

information relating to an object subsequently produced, it

seems reasonable to suppose that the persuasive powers of

the police will prove equal to the occasion, and that in

practice the ban will lose its effect. On normal principles

of construction their Lordships think that the proviso to

S.26, added by S.27, should not be held to nullify the

substance of the section. In their Lordships' view it is

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fallacious to treat the 'fact discovered' within the section

as equivalent to the object produced; the fact discovered

embraces the place from which the object is produced and the

knowledge of the accused as to this, and the information

given must relate distinctly to this fact. Information as

to past user, or the past history, of the object produced is

not related to its discovery in the setting in which it is

discovered. Information supplied by a person in custody

that "I will produce a knife concealed in the roof of my

house" does not lead to the discovery of a knife; knives

were discovered many years ago. It leads to the discovery

of the fact that a knife is concealed in the house of the

informant to his knowledge, and if the knife is proved to

have been used in the commission of the offence, the fact

discovered is very relevant. But if to the statement the

words be added 'with which I stabbed A' these words are

admissible since they do not relate to the discovery of the

knife in the house of the informant."

In State of Uttar Pradesh v. Deoman Upadhyaya [AIR 1960

SC 1125] this Court held that Sections 25 and 26 were

manifestly intended to hit an evil, viz., to guard against

the danger of receiving in evidence testimony from tainted

sources about statements made by persons accused of

offences. These sections form part of a statute which

codifies the law relating to the relevancy of evidence and

proof of facts in judicial proceedings. The State is as

much concerned with punishing offenders who may be proved

guilty of committing of offences as it is concerned with

protecting persons who may be compelled to give confessional

statements. Section 27 renders information admissible on

the ground that the discovery of a fact pursuant to a

statement made by a person in custody is a guarantee of

truth of the statement made by him and the legislature has

chosen to make on that ground an exception to the rule

prohibiting proof of such statement. The principle of

admitting evidence of statements made by a person giving

information leading to the discovery of facts which may be

used in evidence against him is manifestly reasonable. In

that case the High Court had acquitted the accused on the

ground that his statement which led to the recovery of

gandasa, the weapon of offence, was inadmissible. The

accused Deoman had made a statement to hand over the gandasa

which he stated to have thrown into a tank and got it

recovered. The trial court convicted the accused for the

offence of murder. The Full Bench of the High Court held

that Section 27 of the Evidence Act which allegedly created

an unjustifiable discrimination between persons in custody

and persons out of custody offending Article 14 of the

Constitution, was unenforceable. After the opinion of the

Full Bench a Division Bench of the Court excluded from

consideration the statement made by the accused in the

presence of the police officer and held that the story of

the accused having borrowed a gandasa on the day of

occurrence was unreliable. The accused was acquitted but at

the instance of the State of U.P., the High Court granted a

certificate to file the appeal in this Court. This Court

did not agree with the position of law settled by the High

Court and decided to proceed to review the evidence in the

light of that statement in so far as it distinctly related

to the fact thereby discovery being admissible. Dealing

with the conclusions arrived at by the High Court and on the

facts of the case, this Court observed:

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"The High Court was of the view that the mere fetching

of the gandasa from its hiding place did not establish that

Deoman himself had put it in the tank, and an inference

could legitimately be raised that somebody else had placed

it in the tank, or that Deoman had seen someone placing that

gandasa in the tank or that someone had told him about the

gandasa lying in the tank. But for reasons already set out

the information given by Deoman is provable in so far as it

distinctly relates to the fact thereby discovered; and his

statement that he had thrown the gandasa in the tank is

information which distinctly relates to the discovery of the

gandasa. Discovery from its place of hiding, at the

instance of Deoman of the gandasa stained with human blood

in the light of the admission by him that he had thrown it

in the tank in which it was found therefore acquires

significance, and destroys the theories suggested by the

High Court."

In Mohmed Inayatullah v. The State of Maharashtra [AIR

1976 SC 483] it was held that expression 'fact discovered'@@

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includes not only the physical object produced but also@@

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place from which it is produced and the knowledge of the

accused as to that. Interpreting the words of Section "so

much of the information" as relates distinctly to the fact

thereby discovered, the Court held that the word

"distinctly" means "directly", "indubitably", "strictly",

"unmistakably". The word has been advisedly used to limit

and define the scope of proveable information. The phrase

"distinctly" relates "to the fact thereby discovered". The

phrase refers to that part of information supplied by the

accused which is the direct cause of discovery of a fact.

The rest of the information has to be excluded.

In Earabhadrappa alias Krishnappa v. State of Karnataka

[1983(2) SCR 552] it was held that for the applicability of@@

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section 27 of the Evidence Act two conditions are@@

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pre-requisite, viz., (i) information must be such as has

caused discovery of the fact, and (ii) the information must

'relate distinctly' to the fact discovered. Under Section

27 only so much of the information as distinctly relates to

the fact really thereby discovered, is admissible. While

deciding the applicability of Section 27 of the Evidence

Act, the Court has also to keep in mind the nature of

presumption under Illustration (a) to (s) of Section 114 of

the Evidence Act. The Court can, therefore, presume the

existence of a 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

relations to the facts of the particular case. In that case

one of the circumstance relied upon by the prosecution

against the accused was that on being arrested after a year

of the incident, the accused made a statement before the

police leading to the recovery of some of the gold ornaments

of the deceased and her six silk sarees, from different

places which were identified by the witness as belonging to

the deceased. In that context the court observed:

"There is no controversy that the statement made by the

appellant Ex.P-35 is admissible under S.27 of the Evidence

Act. Under S.27 only so much of the information as

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distinctly relates to the facts really thereby discovered is

admissible. The word 'fact means some concrete or material

fact to which the information directly relates."

In a latest judgment this Court in State of Maharashtra

v. Damu, S/o Gopinath Shinde & Ors. [2000 (6) SCC 269] has

held that the Section 27 was based on the doctrine of

confirmation by subsequent events and giving the section

actual and expanding meanings, held: "The basic idea

embedded in Section 27 of the Evidence Act is the doctrine

of confirmation by subsequent events. The doctrine is

founded on the principle that if any fact is discovered in a

search made on the strength of any information obtained from

a prisoner, such a discovery is guarantee that the

information supplied by the prisoner is true. The

information might be confessional or non- inculpatory in

nature, but it results in discovery of a fact it becomes a

reliable information. Hence the legislature permitted such

information to be used as evidence by restricting the

admissible portion to the minimum. It is now well settled

that recovery of an object is not discovery of a fact as

envisaged in section. The decision of the Privy Council in

Pulukuri Kottaya v. Emperor [AIR 1947 PC 67] is the most

quoted authority for supporting the interpretation that the

'fact discovered' envisaged in the section embraces the

place from which the object was produced, the knowledge of

the accused as to it, but the information given must relate

distinctly to that effect."

In this case after the arrest of Sanjay appellant, the

extra- judicial confession made by him to PW5 and recording

the statement of PW5 the investigating officer apprehended

the other accused persons. In his interrogation Vinod

appellant made a confessional statement, a major portion of

which is inadmissible in evidence being hit by Sections 24

to 26 of the Evidence Act. However, the relevant portion

which was used for recovery of the stolen property is as

under:

"I got gold jewellery and watches which are lying at my

house at Shakarpur. I can point out the same and get them

recovered. Both shirts are lying at my house, one pant at

the residence of my friend at Madipur, and I am wearing the

pant which I washed (after commission of the offence). I

can get recovered the Dagger and Katta from my house at

Shakarpur and also above mentioned things."

In his disclosure statement accused Mohabat Ali had

stated: "I got gold jewellery watches, cameras and clothes

which are lying at my home. The revolver and kirpan used in

the commission of the offence are also lying in my house. I

can recovered the (looted) property and the weapon of

offence from my house at Mangolpuri. I can also get

arrested Ramkishan, the seller of the revolver."

The relevant portion of statement of accused Nawabuddin

is as under:

"I took jewellery and watches of my and Sanjay's share

to my residence. Sanjay dropped me on scooter. I can get

recovered the (looted) property from my residence."

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Raising objections to the words "after commission of the

offence" appearing in the disclosure statement of Vinod and

"looted property" in the statement of Nawabuddin, the

learned counsel for the appellants submitted that the whole

of the statement was hit by Sections 24 to 26 of the

Evidence Act and Section 162 of the Code of Criminal

Procedure. We are not inclined to accept such a general

statement. Even if the objectionable words (bracketed

above) are deleted, the appellants cannot be conferred with

any benefit which would entitle them to acquittal. It is

not disputed that consequent upon the disclosure statements

made, the articles mentioned therein were actually recovered

at their instance from the place where such articles had

been hidden by them. The mere use of the words "looted

property" in relation to the articles seized which were

found to have been taken away after the commission of the

crime of murder and robbery would not change the nature of

the statement. The words do not implicate the accused with

the commission of the crime but refer only to the nature of

the property hidden by them which were ultimately recovered

consequent upon their disclosure statements. Hypertechnical

approach, as projected by the defence counsel, would defeat

the ends of justice and have disastrous effect. The

property recovered consequent upon the making of the

disclosure statements has been proved to be the property of

the deceased, stolen after the commission of the offence of

robbery and murder.

Besides Section 27, the courts can draw presumptions

under Section 114, Illustrations (a) and Section 106 of the

Evidence Act. In Gulab Chand v. State of M.P. [1995 (3)

SCC 574] where ornaments of the deceased were recovered from

the possession of the accused immediately after the

occurrence, this Court held:

"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. It has been

indicated by this Court in Sanwat Khan v. State of

Rajasthan [AIR 1956 SC 54] that no hard and fast rule can be

laid down as to what inference should be drawn from certain

circumstances. It has also been indicated that where only

evidence against the accused is recovery of stolen

properties, then although the circumstances may indicate

that the theft and murder might have been committed at the

same time, it is not safe to draw an inference that the

person in possession of the stolen property had committed

the murder. A note of caution has been given by this Court

by indicating that suspicion should not take the place of

proof. It appears that the High Court in passing the

impugned judgment has taken note of the said decision of

this Court. But as rightly indicated by the High Court, the

said decision is not applicable in the facts and

circumstances of the present case. The High Court has

placed reliance on the other decision of this Court rendered

in Tulsiram Kanu v. State [AIR 1954 SC 1]. In the said

decision, this court has indicated that the presumption

permitted to be drawn under Section 114, Illustration (a) of

the Evidence Act has to be drawn under the 'important time

factor'. If the ornaments in possession of the deceased are

found in possession of a person soon after the murder, a

presumption of guilt may be permitted. But if several

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months had expired in the interval, the presumption cannot

be permitted to be drawn having regard to the circumstances

of the case. In the instant case, it has been established

that immediately on the next day of the murder, the accused

Gulab Chand had sold some of the ornaments belonging to the

deceased and within 3-4 days , the recovery of the said

stolen articles was made from his house at the instance of

the accused. Such close proximity of the recovery, which

has been indicated by this Court as an 'important time

factor', should not be lost sight of in deciding the present

case. It may be indicated here that in a latter decision of

this Court in Earabhadrappa v. State of Karnataka [1983 (2)

SCC 330], this Court has held that the nature of the

presumption and Illustration (a) under Section 114 of the

Evidence Act must depend upon the nature of evidence

adduced. No fixed time-limit can be laid down to determine

whether possession in the recent or otherwise and each case

must be judged on its own facts. The question as to what

amounts to recent possession sufficient to justify the

presumption of guilt varies according as the stolen article

is or is not calculated to pass readily from hand to hand.

If the stolen articles were such as were not likely to pass

readily from hand to hand, the period of one year that

elapsed cannot be said to be too long particularly when the

appellant had been absconding during that period. In our

view, it has been rightly held by the High Court that the

accused was not affluent enough to possess the said

ornaments and from the nature of the evidence adduced in

this case and from the recovery of the said articles from

his possession and his dealing with the ornaments of the

deceased immediately after the murder and robbery a

reasonable inference of the commission of the said offence

can be drawn against the appellant. Excepting an assertion

that the ornaments belonged to the family of the accused

which claim has been rightly discarded, no plausible

explanation for lawful possession of the said ornaments

immediately after the murder has been given by the accused.

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

llustration (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."

In the instant case also, the disclosure statements were

made by the accused persons on the next day of the@@

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commission of the offence and the property of the deceased@@

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was recovered at their instance from the places where they

had kept such properties, on the same day. To the same

effect are the judgments in Mukund Alias Kundu Mishra &

Anr.v. State of M.P. [1997 (10) SCC 130] and Ronny Alias

Ronald James Alwaris & Ors. v. State of Maharashtra [1998

(3) SCC 625]. In the latter case the Court held:

"Apropos the recovery of articles belonging to the Ohol

family from the possession of the appellants soon after the

robbery and the murder of the deceased (Mr.Mohan Ohol,

Mrs.Ruhi Ohol and Mr.Rohan Ohol) which possession has

remained unexplained by the appellants, the presumption

under Illustration (a) of Section 114 of the Evidence Act

will be attracted. It needs no discussion to conclude that

the murder and the robbery of the articles were found to be

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part of the same transaction. The irresistible conclusion

would, therefore, be that the appellants and no one else had

committed the three murders and the robbery."

The disclosure statements by the accused persons stand

established by the testimony of Satish Khanna (PW22) and the

investigating officer. The trial court was, therefore,

justified in relying upon the circumstances of the

disclosure statements of the accused persons and consequent

recovery of stolen property, blood stained shirt of Vinod

appellant besides weapon of offence. We find no substance

in the submission of the learned defence counsel that as no

independent witnesses were associated with the recoveries, a

doubt is created in the prosecution version. Satish Khanna

(PW22) is the natural witness being brother of the deceased

to be present during the investigation when the accused are

stated to have made the statements within the meaning of

Section 27 of the Evidence Act. Otherwise also there is no

reason to disbelieve the testimony of the IO Harbans Singh

(PW25).

A faint attempt was made by the counsel for the

appellants to persuade us to hold that the recoveries were

doubtful because according to them prosecution had failed to

ascertain the details of the stolen property and get it

identified only after the recovery. Mrs.Renu Moley, PW17

who is the daughter of the deceased has deposed in the Court

that she was called in the police station on 21st June, 1990

and enquired about the articles missing from her house.

After checking she found missing 8 gold bangles, 6 other

gold bangles, 6 pairs of ear- rings of gold, 6 pairs of

tops, three pairs of ear-jhumkas, one Mangalsutra, one

ginni, two golden rings, two idols of Lord Ganesha and

Goddess Lakshmi made of silver, the plates of silver on

which Air India was engraved, one lady set of silver, 8

wrist watches, 4 cameras, 1 electric shaver, 5 sarees, 20

suit-pieces, 6 gents suit-pieces, stitched shirt, two big

bags of leather and one small bag. She has again stated

that after the recovery of the property from the accused

persons she identified the articles and found them to be

belonging to her mother, which were stolen on the day of her

murder. We do not agree with the counsel for the appellants

that the recovery of the articles had preceded the making of

the disclosure statements. Learned counsel appearing for

the appellants Sanjay and Nawabuddin then submitted that

even if the disclosure statements and the recoveries are

admitted, their clients can at the most be convicted for the

commission of offence under Section 411 IPC. We do not

agree with this submission as well in view of the fact that

the murder and robbery in the instant case were part of the

same transaction and the accused from whom the recoveries

were made, consequent upon their disclosure statements, did

not offer any explanation regarding their possession of the

stolen properties. Drawing a presumption under Section 114

of the Evidence Act it can safely be held that the aforesaid

two accused persons were atleast guilty of the offence of

robbery punishable under Section 392 IPC on the assumption

that they were not armed with any deadly weapon and not

aware of Vinod appellant being armed with dagger. The trial

Court was, therefore, justified in holding that "the

circumstances enumerated above together complete the chain

of circumstances to prove the guilt of the accused persons

in so far as the offence of robbery is concerned. Infact

the disclosure statements of the accused persons and huge

recoveries from them at their instance by itself is a

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sufficient circumstance on the very next day of the incident

which clearly goes to show that the accused persons had

joined hands to commit the offence of robbery". The Court

also rightly held that, "Recent and unexplained possession

of stolen properties will be taken to be presumptive

evidence of the charge of murder as well. (See Baijur vs.

State of Madhya Pradesh AIR 1978 SC Page 522). Also see

Eara Bhadrappa's case (supra). In the case of Gulab Chand

vs. State of Madhya Pradesh 1975 SCC page 574 quoted its

earlier decision in Tulsi Ram's case with approval that the

presumption permitted to be drawn under illustration 114(a)

of the Evidence Act has to be read alongwith 'important time

factor'. If the ornaments in possession of the deceased are

found in possession of the person soon after the murder, a

presumption of killing may be permitted. In the said case

before the Supreme Court ornaments belonging to the deceased

had been sold by accused Gulab Chand of that case and within

3-4 days the recovery of the stolen articles was made from

his house at the instance of the accused. The court held

that such close proximity of the recovery which has been

indicated by the court as 'important time factor' should not

be lost sight of". On the basis of the evidence led in the

case and keeping in view the whole conspectus of the case

the trial court rightly concluded that accused Vinod in the

process of committing robbery used deadly weapon, namely,

dagger and killing Smt.Sheela while the other three accused

persons have participated in the commission of crime of

robbery and actually removed huge articles including

jewellery from the house of the deceased.

Shri Ramsubramaniam, Advocate, appearing as Amicus

Curaie for accused Vinod submitted that as the prosecution

has failed to prove the origin of blood found on the pant

and shirt of vinod appellant, he could not be held guilty of

the offence of murder. Repelling such contention this Court

in State of Rajasthan v. Teja Ram & Ors. [JT 1992 (2) SC

279] held:

"Failure of the Serologist to detect the origin of the

blood due to disintegration of the serum in the meanwhile

does not mean that the blood stuck on the axe would not have

been human blood at all. Sometimes it happens, either

because the stain is too insufficient or due to

haematological changes and plasmatic coagulation that a

serologist might fail to detect the origin of the blood.

Will it then mean that the blood would be of some other

origin? Such guesswork that blood on the other axe would

have been animal blood in unrealistic and far-fetched in the

broad spectrum of this case. The effort of the criminal

court should not be to prowl for imaginative doubts. Unless

the doubt is of a reasonable dimension which a judicially

conscientious mind entertains with some objectivity, no

benefit can be claimed by the accused."

Following Teja Ram's case this Court again in Gura Singh

v. State of Rajasthan [JT 2000 (Suppl.3) SC 528] held:@@

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"We do not find any substance in the submissions of the

learned counsel for the appellant that in the absence of the

report regarding the origin of the blood, the trial court

could not have convicted the accused. The Serologist and

Chemical Examiner has found it that the Chadar (sheet)

seized in consequence of the disclosure statement made by

the appellant was stained with human blood. As with the

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lapse of time the classification of the blood could not be

determined, no bonus is conferred upon the accused to claim

any benefit on the strength of such a belated and stale

argument. The trial court as well as the High Court were,

therefore, justified in holding this circumstance as proved

beyond doubt against the appellant."

By producing positive evidence, the prosecution

established that appellant Vinod was in possession of a fire@@

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arm and cartridges in a Notified Area of Delhi vide@@

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notification No.F.25(3) 87-HP dated 20.10.1987 and thus

guilty of the offence punishable under Section 5 of the TADA

(P) Act besides the offence of murder punishable under

Section 302 IPC. We do not find any merit in these appeals

which are accordingly dismissed.@@

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