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2003 DIGILAW 102 (HP)

KAMALJEET v. STATE OF H. P.

2003-05-09

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J. (Oral) - This petition arises out of the judgment of learned Sessions Judge, Solan, dated 30.3.2002, whereby conviction of the petitioner Kamaljeet Singh, hereinafter referred to as "the accused", for an offence punishable under Section 392 of the Indian Penal Code was maintained, in an appeal. 2. Dissatisfied, the accused has approached this court under its revisional jurisdiction. 3. Brief facts of the case are: On 20.11.2000, Raj Kumar (PW-9) was travelling in his car (Maruti Zen) NO. PB-10AK-0530 from Ludhiana to Patta in the District Solan, Himachal Pradesh. He was accompanied by Ratish Kumar Sharma (PW-10), Rupesh Sharma and Dharam Pal along with his mother-in-law. The vehicle at the relevant time was being driven by Raj Kumar. When the vehicle reached Sarsa Khud near Nalagarh at about 8.20 in the late evening, suddenly some person threw a bicycle in the mid of the road. Raj Kumar stopped his car. Some persons with muffied faces appeared. One of them brandished his pistol and asked Raj Kumar to hand over the vehicle to him. The person who was holding the pistol in his hand drove away the car along with his companions. Raj Kumar reached Derowala Police Barrier and lodged a report of Dacoity at that place. 4. On 5.1.2001 an information was received by ASI Gautam Chand (PW-7), from the Branch Manager of State Bank of Patiala at Swahan, that two gangsters brandished revolver at him, looted the bank and after committing robbery fled away in the Car with registration No. HR-51F-6749 towards Naina Devi Ji. One of them, according to the Branch Manager, was wearing a sport shirt with inscription "Sport U.S.A.", ASI Gautam Chand, immediately, swung into action. The vehicle was intercepted by the police party near Nilla Gram. The Police party signaled the vehicle to stop. However, on seeing the police, the accused, which was driving the vehicle, started reversing it. The other person, who was sitting on the front seat of the vehicle, started firing at the police party. There was exchange of firing. Ultimately the accused and his companion abandoned the vehicle and fled away in the jungle. They were chased. The accused was apprehended 1 kilometer away from the road. He was wearing a sport shirt, the same inscription as given by the Branch Manager of the Bank However, the other accused could not be found. There was exchange of firing. Ultimately the accused and his companion abandoned the vehicle and fled away in the jungle. They were chased. The accused was apprehended 1 kilometer away from the road. He was wearing a sport shirt, the same inscription as given by the Branch Manager of the Bank However, the other accused could not be found. From the possession of the accused, one revolver and six live cartridges along with money robbed from the bank were recovered. The vehicle was taken into possession. On inspection of the vehicle, it was found that the car was carrying a fictitious registration number. In fact this vehicle had the registration no. PB-10AK-0530 which belonged to Raj Kumar (PW-9) and was robbed when Raj Kumar was waylaid on 20.11.2000. 5. On appreciation of the evidence, both the learned trial Magistrate and learned Sessions Judge, in appeal, found that accused along with Sukhvinder Kumar, who is still absconding committed bank dacoity on 5.1.2001 and was in possession of the vehicle which was subject to dacoity. Raising presumption, under Section 114(a) of the Evidence Act, the accused was convicted. 6. Mr. Vats learned Counsel for the petitioner confines himself, in his submissions, to say that this car was in joint possession of the accused and Sukhvinder Kumar. Therefore, presumption under Section 114(a) of the Evidence Act cannot be invoked. 7. It is not disputed and is clearly established from the evidence on record that accused was found, in possession of the vehicle, subject of dacoity, along with his companion though with a fake registration number. 8. Under illustration (a) of Section 114 of the Evidence Act, presumption is raised against a person who is found in possession of stolen goods soon after the theft that he is either the thief or has received the goods knowing them to be stolen unless be account for his possession over such stolen property or goods. 9. It is true that burden of proof, in the first instance, rests on the prosecution, but once it is found that the accused was in possession of the stolen property, the onus shifts on to the accused to satisfy the court that how he came into possession of such property or his possession was honest. 10. The contention of Mr. It is true that burden of proof, in the first instance, rests on the prosecution, but once it is found that the accused was in possession of the stolen property, the onus shifts on to the accused to satisfy the court that how he came into possession of such property or his possession was honest. 10. The contention of Mr. Vats learned Counsel is that as the possession of the accused was joint with another person (co-accused), therefore, no presumption arises against the accused under Illustration (a) of Section 114 of the Evidence Act. The contention is misplaced and cannot be accepted, it is to be noticed that both accused and other person Sukhvinder Kumar were named as accused. However, other accused could not be proceeded as he had absconded. Accused admittedly was found to be in possession of the car, subject of dacoity and, therefore, onus was on the accused that how he came in possession of this car. 11. Mr. Vats, learned Counsel refers to Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC(822 and contends that so long possession is joint, accused in possession of such property cannot be convicted. In Radha Kishan, appellant used to live with his father in a house. The house of the appellant was searched. A large number of letters, postcards and registered letters were recovered. The appellant was a Postman in a post office. It is in this context, their Lordships observed that as the stolen articles were recovered from an almirah in the house in which accused was living jointly with his father and of which key was furnished by the appellants father, it would not be legitimate to infer that the almirah was in-possession of the accused or even in joint possession with his father. In the present case, accused was found in possession of the car, subject of dacoity, along with other person and both persons have been named as accused, therefore, reference to Radha Kishan of no assistance to the accused. 12. In Gulab Chand v. State of M.P., 1995(3) SCC 574 Gulab Chand, Durga and six other person were charged for murder, robbery and conspiracy under Section 120-B of the Indian Penal Code and were acquitted for the offences punishable under Sections 302, 394 and 397 of the Indian Penal Code. 12. In Gulab Chand v. State of M.P., 1995(3) SCC 574 Gulab Chand, Durga and six other person were charged for murder, robbery and conspiracy under Section 120-B of the Indian Penal Code and were acquitted for the offences punishable under Sections 302, 394 and 397 of the Indian Penal Code. But the trial Court convicted Gulab Chand and Durga for offence punishable under Section 380 of the Indian Penal Code. However, in an appeal carried before the High Court, accused Gulab Chand was convicted under Sections 302, 394 and 397 of the Indian Penal Code. So far conviction of accused Durga under Section 380 of the Indian Penal Code was concerned, the same was set aside and he was convicted under Section 411 of the Indian Penal Code. In the aforesaid case, it was established that appellant Gulab Chand was arrested and when his house was searched with the key supplied by him several articles were found in his room, which belonged to the deceased in whose house the robbery took place. The Apex Court noticed that the accused was not affluent enough to possess the said ornaments. Recovery of stolen articles would lead to reasonable inference of the commission of offence by the accused-appellant. It-was further held that the murder and robbery was proved to have been integral parts of the same transaction and therefore the presumption under Illustration (a) of Section 114 of the Evidence Act was that not only the appellant committed the murder of the deceased but also committed robbery of the ornaments of the deceased. 13. In the present case, accused, it is not disputed before me, was found in possession of the car, which was subject of robbery. It is also not in dispute that the accused has not been able to explain his possession of this car which was subject of robbery. In these circumstances, legitimate presumption of guilt under Illustration (a) of Section 114 of the Evidence Act can be drawn. I am supported, for the view I have taken, by Shri Bhagwan v. State of Rajasthan, AIR 2001 SC 2342. In these circumstances, legitimate presumption of guilt under Illustration (a) of Section 114 of the Evidence Act can be drawn. I am supported, for the view I have taken, by Shri Bhagwan v. State of Rajasthan, AIR 2001 SC 2342. Their Lordships observed:- "The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of- the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts, will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime, and that if the interval of time be considerable, the presumption is weakened ,and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period. This court has drawn similar presumption of murder and robbery in series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation. Earabhadrappa alias Krishnappa v. State of Karnataka, 1983(2) SCC 330: AIR 1983 SC 446: 1983 Cri.L.J. 846 was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at his instance. This Court observed (Para 13) This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. Their Lordships further proceeded to observe:- "In the instant case, the appellant could not give an explanation as to how he came into possession of various gold ornaments and other articles belonging to Shiv Pratap and the members of his family. The appellant also could not give any reasonable explanation how he sustained injuries on his body and how his shirt became blood stained. In the facts and circumstances, it is a fit case where the presumption under Illustration (a) to Section 114 of the Evidence Act could be drawn that the appellant committed the murders and the robbery. The Courts below have rightly held the appellant guilty of the offence charged against him." 14. Both the trial Court and the appellate Court were justified, in the facts and circumstances of the case, to draw presumption under Illustration (a) of Section 114 of the Evidence Act and convict the accused. 15. There is no merit in the present revision petition, which is dismissed.