Aziz Ahmad v. State of U. P. — 1965 DIGILAW 347 (ALL)

JUDGMENT H.C.P. Tripathi, J. - These three criminal appeals are directed against a common judgment of the first temporary Civil and Sessions Judge of Kanpur and they are being disposed of together. 2. Appellants Mohammad Ali and Mohammad Hasan have been convicted under Secs. 302/34 and 394, I. P. C. and each of the has been sentenced to imprisonment for life and to seven years rigorous imprisonment respectively under these counts. The sentences under the two counts have been directed to run concurrently. Appellant Aziz Ahmad has been convicted under Sec. 411, I. P. C. and sentenced to two years rigorous imprisonment and to a fine of Rs. 250/-. In default of payment of fine he has been directed to undergo six months further rigorous imprisonment. 3. The prosecution story lies in a short compass. 4. Ram Autar and Noor Uddin (P. W. 1 and 5) are employed in railway and live in adjoining quarters separated by a wall about 6 ft. high in the railway colony at Kanpur. Smt. Jhabboo deceased aged about 70 years, mother of Ram Autar, also lived with him. Appellant Mohammad Ali who happened to be the sister's son of Noor Uddin and Aziz Ahmad his cousin were also railway employees and lived with Noor Uddin in his quarter. Except the persons named above none else resided during those days either with Ram Autar or with Noor Uddin in their respective quarters. The working hours of Ram Autar were from 8 a.m. to 5 p.m. and in his absence Smt. Jhabboo used to remain alone in his quarters. She was fond of ornaments and habitually used to wear an her person a gold Hasli, gold tiddas, gold nose pin, six gold rights, silver bangles and silver Karas. Ram Autar and his mother were on friendly terms with Noor Uddin and his two relations. Appellant Mohammad Hasan used to ply rickshaw and was a friend of Mohammad Ali and Aziz Ahmad. On 3rd of January 1963, at about 8 a.m. Ram Autar as usual went out to respond to his duty leaving his mother alone at his quarter. On return at about 5 p.m. he found his quarter locked from outside. Appellant Mohammad Hasan used to ply rickshaw and was a friend of Mohammad Ali and Aziz Ahmad. On 3rd of January 1963, at about 8 a.m. Ram Autar as usual went out to respond to his duty leaving his mother alone at his quarter. On return at about 5 p.m. he found his quarter locked from outside. He opened the lock with the duplicate key which he used to keep with himself and to his consternation found his mother lying dead on the ground near the wall which separated his quarter from that of Noor Uddin. One end of the dhotee which the deceased was wearing was tied round her neck and the ornaments which she had been wearing on that day were missing from her person. Ram Autar after re-locking his quarter ran to the Railway Goods Inspector, under whom he was working, and then went to police station Anwarganj where he lodged a written report of the occurrence giving therein the essentials of the prosecution story on the basis of which a case was registered and investigation followed. 5. Sub-Inspector Brij Ballabh Singh (P.W. 25) reached the scene of occurrence at 6-30 p.m. where Ram Autar handed over to him a list of stolen ornaments. He found the dead body of Smt. Jhabboo with a dhotee tied round her neck lying in Ram Autar's quarter near the partition wall. A cot was found lying in the quarter of Noor Uddin on the other side of the partition wall opposite to the dead body. 6. The dead body of Smt. Jhabboo was sent for postmortem examination which was conducted by Dr. D. N. Nigam on 4-1-1963 at 11-15 a.m. who found a number of ante mortem abrasions on it caused by friction. In medical opinion death was due to asphyxia as a result of strangulation. 7. Mohammad Ali was arrested during the same night and he offered to produce his share of the property which he had earlier concealed near the boundary of a bungalow in Rail Bazar and also the keys which he had thrown inside its compound. He led the police party to a bungalow in the Rail Bazar and from near its boundary dug out a gold Pattar with a Ghundi (Ext. 2) and two silver bangles (Ext. 4). He handed them over to the Investigating Officer in the presence of the witnesses. He led the police party to a bungalow in the Rail Bazar and from near its boundary dug out a gold Pattar with a Ghundi (Ext. 2) and two silver bangles (Ext. 4). He handed them over to the Investigating Officer in the presence of the witnesses. From a place inside the compound of the bungalow he dug out and produced three keys (Ext. 7). All these articles were taken in possession and sealed in a bundle by the Investigation Officer in the presence of the witnesses. Mohammad Ali then led the party to another locality in the city half a mile away and shouted at a house from where appellant Mohammad Hasan came out. Mohammad Hasan was also arrested and he offered to produce the property which had come to his share, and which he alleged to have concealed in his room. He took the party to a house, opened its lock with its key which was in possession and from inside produced a gold Pattar with a Ghundi (Ext. 6). This too was taken in possession and placed in a sealed cover. 8. Aziz Ahmad was arrested on 4-1-1963 at 7-30 a.m. from the railway Loco Shed. He offered to produce the property which had fallen to his share and which he alleged to have concealed beneath a Neem tree near the Maheshwari Jute Mills. He led the police party and the witnesses to that place and from the bank of a drain dug out and produced a gold Pattar with a Ghundi (Ext. 3) and two silver bangles (Ext. 5). These articles were taken in possession and placed in sealed covers. 9. Appellant Mohammad Hasan was searched as an under trial prisoner in the district jail at Kanpur on 6-1-1963 and the gold nose pin (Ext. 1) was recovered from his pocket by warder Ram Kishore who immediately produced the same before the Deputy Jailor Sri. M.B. Misra who made an entry of this fact in his report book and kept the pin in his custody. On the following day the nose pin and the under trial prisoner were produced before Sri Langora (P.W. 11) Superintendent of the Jail who recorded the statement of Mohammad Hasan and sent the nose pin along with his statement to the District Magistrate in a sealed envelope. 10. On the following day the nose pin and the under trial prisoner were produced before Sri Langora (P.W. 11) Superintendent of the Jail who recorded the statement of Mohammad Hasan and sent the nose pin along with his statement to the District Magistrate in a sealed envelope. 10. The articles recovered from the possession of these appellants were subsequently identified before a magistrate by Ram Autar and his daughter Smt. Shakuntala as the ornaments of Smt. Jhabboo which she was wearing on that date. 11. After completion of investigation these appellants were sent up for trial. At the trial they pleaded not guilty to the charge and stated that they had been falsely implicated in the case. 12. Appellant Mohammad Ali admitted that he was the sisters son of Noor Uddin and had been living with him for the last about two years and that Ram Autar with his aged mother Smt. Jhabboo was living in the adjoining quarter. He also admitted that Smt. Jhabboo used to wear ornaments and that she often came, sat and talked with him. 13. He admitted that the 3rd of January, 1963 was his rest day and Noor Uddin had left him at his quarters at 11 a.m. when he had gone out on duty. He denied to have gone to Noor Uddin at about 5 p.m. and to have asked for the duplicate keys on the allegation that he left his keys with Smt. Jhabboo who was not there. He admitted that Aziz Ahmad was living in the same quarter but denied any acquaintance with Mohammad Hasan. He categorically denied having made any statement about the ornaments or to have produced them. 14. Aziz Ahmad admitted his relationship with Noor Uddin and also that he had been living with him for about 2 months prior to the date of occurrence. He, however, denied to have made any statement about the ornaments or to have produced them. His case was that on 3-1-1963 he had gone out to attend his duty at 6 a.m., returned from there at about 6 p.m. and was arrest ed from his quarter at about 8-11 p.m. in the night. 15. Mohammad Hasan stated that he was not acquainted with either of the two appellants. He denied to have made any statement regarding the ornaments or to have produced them. 15. Mohammad Hasan stated that he was not acquainted with either of the two appellants. He denied to have made any statement regarding the ornaments or to have produced them. He also denied the recovery of the nose pin from his person by the jail warder. 16. Harish Chandra Varma and Jan Mohammad who are railway employees, and Man Mohan Lal Srivastava, Jailor district jail, Kanpur were examined in defence. 17. There is no eye-witness of the crime and the case against the appellants rests on circumstantial evidence. 18. Ram Autar (P.W. 1) proved his report Ext. Ka 1 and stated that his mother was wearing those ornaments in the morning when he had left her alone at his quarters at about 8 a.m. and on return from duty at 5 p.m. he found her lying dead and the ornaments missing from her person. Some of those ornaments were later on identified by him in court as belonging to his mother. 19. Smt. Shakuntala (P.W. 2) daughter of Ram Autar, stated that the ornaments Exts. 1 to 6 belonged to her grandmother which she was habitually wearing on her person. 20. Noor Uddin (P.W. 5) is the maternal uncle of appellant Mohammad Ali and a cousin of Aziz Ahmad. He says that he was on duty from 7 a.m. to 7 p.m. and had visited his quarter during the period only once for an hour from 10 a.m. to 11 a.m. and that at that time he had left Mohammad Ali at his quarter. He has added that at about 5 p.m. Mohammad Ali had come to ask for the duplicate key on the allegation that the key which the witness had left with him was not available as Mohammad Ali had left the same with the mother of Ram Autar. This witness says that when he went to the Goods Inspector only a few minutes after 5 p.m. he learnt about the murder of Ram Autar's mother. 21. Sub-Inspector Brij Ballabh Singh (P.W. 25), Vidya Ram and Jai Narain (P.Ws. 5 and 6) testified to the discovery of the various ornaments at the instance of the appellants which they had alleged to have kept concealed at different places. 22. 21. Sub-Inspector Brij Ballabh Singh (P.W. 25), Vidya Ram and Jai Narain (P.Ws. 5 and 6) testified to the discovery of the various ornaments at the instance of the appellants which they had alleged to have kept concealed at different places. 22. Jiwat (P.W. 8) stated that he used to sell ready food stuffs at the pavement in front of the quarters of Ram Autar and Noor Uddin and had seen the three accused entering together the quarter of Noor Uddin at about 4 p.m. on that fateful clay. According to the witness a few minutes after the deceased also went into that quarter and that half an hour afterwards the appellants went away after locking Noor Uddin's quarter but the deceased was not seen by him coming out for that quarter. 23. On an assessment of evidence the learned Sessions Judge was of opinion that it could not be held affirmatively that the nose pin Ext. 1 was recovered from the possession of Mohammad Hasan in jail and he was not prepared to place any reliance on the testimony of Jiwat (P.W.-8) that he had seen the deceased and the appellants together on that date. He also held that the plea of alibi set up by Mohammad Ali and the evidence furnished in support thereof by Harish Chandra Varma and Jan Mohammad (D.Ws. 1 and 3) did not inspire reliance and he was not prepared to hold that this appellant was present in the Loco Shed of the Railway on 3-1-1963 at 11-30 a.m. to 5 p.m. As regards the appellant Aziz Ahmad, relying on the evidence of Jan Mohammad (D. W. 2) the learned Judge held that it may be that he was on duty from 7 a.m. to 11 a.m. and again from 12 to 4-30 p.m. on that date and therefore his participation in the actual robbery and murder is doubtful as he could not have reached his quarter by 5 p.m. The learned Sessions Judge, however, held the following circumstances established against the appellants:- 1. That the deceased was murdered in all probability some time between 12 and 5 p.m. on 3-1-1963 and the ornaments that she was wearing on that date were found missing from her person. 2. That appellants Mohammad Ali and Abdul Aziz had an easy access to the deceased. 3. That the deceased was murdered in all probability some time between 12 and 5 p.m. on 3-1-1963 and the ornaments that she was wearing on that date were found missing from her person. 2. That appellants Mohammad Ali and Abdul Aziz had an easy access to the deceased. 3. That the ornaments elf the deceased were discovered at the instance and from the possession of the appellants within 24 hours of her murder. 4. That the appellants falsely denied the discovery of the ornaments of the deceased made at their instance and appellant Mohammad Ali denied to have asked for duplicate key from Noor Uddin or to have informed the Sub-Inspector when he had reached the scene for investigation that a sum of Rs. 180/- was missing from his box. 24. Taking into account the first, the third and the fourth circumstances as enumerated above, the learned trial Judge held that as in the instant case the murder and robbery had been shown to form part of the same transaction, the appellants unexplained possession of the stolen property of the deceased and their false denial of such discoveries connected the two appellants Mohammad Ali and Mohammad Hasan with the murder of the deceased. He, however, distinguished the case of Aziz Ahmad because in his opinion his participation in the actual robbery and murder was doubtful as has been indicated earlier and therefore held that the only reasonable presumption which could be drawn against him from the possession of the stolen property is that he received the same with guilty knowledge and was found dishonestly keeping it in his possession. Accordingly he convicted and sentenced the appellants as has been indicated in the earlier part of this judgment. The findings of fact arrived at by the trial court as also the discovery of the various pieces of ornaments at the instance and from the possession of each of the appellants have not been challenged before us. The testimony of Ram Autar leaves no room for doubt that the old woman was murdered and deprived of her ornaments on the date of occurrence some time between 8 a.m. and 5 p.m. The evidence furnished by Brij Ballabh Singh (P.W. 25) as corroborated by two independent and trustworthy witnesses Vidya Ram and Jai Narain (P. Ws. The testimony of Ram Autar leaves no room for doubt that the old woman was murdered and deprived of her ornaments on the date of occurrence some time between 8 a.m. and 5 p.m. The evidence furnished by Brij Ballabh Singh (P.W. 25) as corroborated by two independent and trustworthy witnesses Vidya Ram and Jai Narain (P. Ws. 6 and 7) establishes beyond doubt that the various pieces of ornaments belonging to the deceased were discovered at the instance of the appellants who alleged to have concealed them at different places. 25. As regards the circumstance that appellants Mohammad Ali and Abdul Aziz had an easy access to the deceased the learned trial Judge was of opinion and rightly so, that it was not of much significance in view of the fact that the deceased was an old lady and any one could have access to her whenever she was alone in her quarter. 26. Mr. C. S. Saran, Learned counsel for the appellants. Mohammad Ali and Mohammad Hasan has strenuously contended that the circumstance that stolen property was recovered from the possession of these two appellants shortly after the murder of the deceased alone was not sufficient for drawing an inference that they were necessarily the murderers. Learned counsel has urged that in all these cases where the possession of the stolen goods recently after the commission of the crime has been taken as evidence against the accused on a charge of murder certain other incriminating circumstances were also present to connect him with that charge and there is no case in which on the solitary basis of the recovery of the stolen property an accused has been held guilty of an offence under Sec. 302 of the Indian Penal Code. In support of his contention the learn ed counsel placed reliance on a Division Bench decision of this Court in the case of State v. Shankar Prasad, A.I.R. 1952 Alld. page 776, and also on a decision of the Supreme Court in the case of Sanwat Khan v. State of Rajasthan, A.I.R. 1956 SC at page 54. We find force in this contention. 27. page 776, and also on a decision of the Supreme Court in the case of Sanwat Khan v. State of Rajasthan, A.I.R. 1956 SC at page 54. We find force in this contention. 27. The decision in Sanwat Khan's case, A.I.R. 1956 SC at page 54 was cited before the learned trial Judge but he distinguished it on facts and held that the principles of law laid down by the Supreme Court in the case of Wasim Khan v. State of Uttar Pradesh, A.I.R. 1956 SC page 400, was applicable to the facts of the present case. He has also observed that the Supreme Court itself in the case of Ram Bharose v. State of Uttar Pradesh, 1956 Cr. L.J. page 1735, had distinguished the case of Sanwat Khan, A.I.R. 1956 SC at page 54, on the point that the recoveries from the possession of the accused in that case were made not shortly after the commission of the murder. 28. Ram Bharose's case, 1956 Cr. L.J. page 1735, is not reported in 1956 Criminal Law Journal and the reference given by the learned trial Judge is obviously wrong. In Ram Bharose's case, 1956 Cr. L.J. page 1735 which is reported in A. I. R. 1954, Supreme Court, at page 704 while referring to their decision in Sanwat Khan's case, A.I.R. 1956 SC at page 54, their lordships were pleased to observe:- "It will be noticed that the question whether the unexplained possession of the articles by the accused would be evidence of participation in murder was held to be one of fact running on all the circumstances of the case." and then after discussing the facts of Ram Bharose's case, 1956 Cr. L.J. page 1735 held that the presence of the blood stain on the Jewels which were discovered at the instance of the appellant taken along with the circumstances that the appellant was found getting down the roof of the house in the early hours and with the recovery of the blood stained gandasa from him were sufficient to connect him with the offence of the murder. It is therefore obvious that in Ram Bharose's case, 1956 Cr. It is therefore obvious that in Ram Bharose's case, 1956 Cr. L.J. page 1735 in addition to the recovery of the stolen articles from the possession of the accused, certain other incriminating, circumstances were also present namely recovery of a blood stained gandasa as, also the presence of blood on some of the recovered properties. 29. It is no doubt true that in Sanwat Khan's case, the stolen property was recovered from the possession of the accused 13 or 18 days after the murder while in the instant case the discoveries were made within 24 hours of the commission of the crime. That, however, in our opinion is no reason for not applying the principle of law laid down in that case. In Sanwat Khan's case, A.I.R. 1956 SC at page 54, their lordships were pleased to notice the decision of this Court in the case of State v. Shankar Prasad, A.I.R. 1952 Alld. page 776, and to approve the dictum laid therein. Chief Justice Mahajan while delivering the judgment has observed: "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 possession of the stolen property was the murderer. Suspicion cannot take the place of proof." 30. In our opinion this principle applies to the facts of the present case also where the only circumstance which has been relied upon by the trial court for holding these two appellants responsible for the murder of the deceased is the discovery of the stolen property at their instance from their possession and their subsequent denial in court about the fact. The fact that they denied the discovery is not of any significance inasmuch as that circumstance will have to be taken into account even for holding them guilty of lesser offence under Sec. 411 or 380 of the Indian Penal Code. 31. It may be noticed here that in Shankar Prasad's case, A.I.R. 1952 Alld. The fact that they denied the discovery is not of any significance inasmuch as that circumstance will have to be taken into account even for holding them guilty of lesser offence under Sec. 411 or 380 of the Indian Penal Code. 31. It may be noticed here that in Shankar Prasad's case, A.I.R. 1952 Alld. page 776, also the recovery of the stolen property was made within 24 hours of the discovery of the murder, and the circumstances of the case indicated that the theft and the murder were committed at the same time, even then the learned Judges were pleased to hold that the recovery of the stolen articles alone was not sufficient to draw an inference that the person found in its possession was necessarily the murderer and their decision was approved by the Supreme Court in the aforementioned case. 32. The case of Wasim Khan (supra) which has been relied upon by the learned Sessions Judge is wholly distinguishable on facts. In that case it was established that the deceased had engaged the appellants cart on the night of occurrence for taking him and his goods to the village. The appellant was driving the cart and on his own showing he and the deceased were left alone in the cart. Thereafter neither the deceased nor the articles which were with him in the cart reached the destination. Subsequently on the appellants instance a number of articles belonging to the deceased were recovered from the possession of the appellant from his Kothri. A big knife with blood stains was also recovered from his possession. On these facts it was held that as the appellant was found in possession of the deceased's goods three days afterwards and as it had been established beyond doubt that the deceased travelled with his goods on the appellants cart and thereafter was not seen alive it was reasonable to draw an inference from the appellant's possession of the stolen goods that he was also responsible for the murder of the deceased. In the instant case, however, the only evidence which shows that the deceased was last seen with the appellants is of Jiwat (P.W. 8) which has been rejected by the trial Judge and we have no reason to differ with his assessment of that evidence. 33. In the instant case, however, the only evidence which shows that the deceased was last seen with the appellants is of Jiwat (P.W. 8) which has been rejected by the trial Judge and we have no reason to differ with his assessment of that evidence. 33. Accordingly, we are of opinion that in the circumstances of the case the only inference that can be drawn from the facts that these appellants were found in possession of the stolen goods soon after the commission of the crime and that they denied such possession is that they had received the same knowing them to be a stolen goods and thereby, committed an offence punishable under Sec. 411, I. P. C. 34. Learned counsel for the appellant Aziz Ahmad did not challenge his conviction on facts but argued that the sentence awarded to him errs on the side of severity. We are unable to agree with his contention and see no reason in the circumstances of the case to interfere with the discretion exercised by the learned Sessions Judge. 35. In the result the appeals of Mohammad Hasan and Mohammad Ali are allowed in part. Their conviction and sentences under Sec. 302/34 and 394, I. P. C. are set aside and instead they are convicted for an offence punishable under Sec. 411, I. P. C. and each of them is sentenced to two years rigorous imprisonment and a fine of Rs. 250/-. In default of payment of fine they will undergo six months further rigorous imprisonment each. The conviction and sentence of Aziz Ahmad under Sec. 411, I. P. C. are affirmed and his appeal is dismissed. Aziz Ahmad is on bail. His bail bonds are cancelled. He must surrender forthwith to serve out the sentence.