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2013 DIGILAW 258 (CHH)

SUNDERLAL v. STATE OF M. P.

2013-08-30

RANGNATH CHANDRAKAR, SUNIL KUMAR SINHA

body2013
JUDGMENT Sunil Kumar Sinha, J. 1. Challenge in this appeal is made to the judgment and order dated 25th of April, 1998 passed by the Additional Sessions Judge, Janjgir in Sessions Trial No. 128/94. By the impugned judgment, the appellant (A-1) has been convicted and sentenced in following manner, with a direction to run the sentences concurrently :- Conviction Sentence u/S 449 IPC R.I. for 10 years and fine of Rs.500/- with default sentence of S.I. for 6 months u/S 302 IPC Life imprisonment and fine of Rs.1,000/- with default sentence of S.I. for 1 year 2. The facts, briefly stated, are as under:- 2.1 Deceased- Manohar Bai was an old lady. In the intervening night of 3rd & 4th September, 1992, she was all alone in her house. In the morning her dead body was found in her house. She had sustained multiple serious injuries. Silver and gold ornaments were removed from her body. Other articles were also stolen. First Information Report (F.I.R. - Ex.-P/2) was lodged by Kotwar-Ramdas Manikpuri (PW-3) on 4.9.1992. The postmortem report (Ex.-P/15) revealed that it was a homicidal death. The assailants could not be traced for a very long time: However on 18.10.1993, the three accused persons (A-1 to A-3) were taken into custody in connection with an other case, in which, they gave discovery statements u/S 27 of the Evidence Act and in the said statements, they also stated about commission of the present offence and hiding the articles (gold and silver ornaments) at a particular place near the village pond. Though the three discovery statements were allegedly made by the accused persons, but only the discovery statement of appellant (A-1), Ex.P/3, was brought on record of the present case. According to the prosecution, on the discovery statement (Ex.-P/3) made by the appellant certain gold and silver ornaments were seized from the place, which he indicated, vide seizure memo Ex.-P/4. All this was done on 18.10.1993, i.e. after 14 months of the incident. The seized articles (gold and silver ornaments) were put for identification by husband and daughter of the deceased who rightly identified them to be that of the deceased. They were identified on 20.10.1993 and an identification memo (Ex.-P/5) was prepared. Rajendra Prasad (PW-5) and Smt. Hemlata (PW7) were the witnesses of the identification. They had also identified the ornaments before the Court. They were identified on 20.10.1993 and an identification memo (Ex.-P/5) was prepared. Rajendra Prasad (PW-5) and Smt. Hemlata (PW7) were the witnesses of the identification. They had also identified the ornaments before the Court. 2.2 Since the discovery statements of the two other accused persons (A-2 and A-3) were not proved on record of the present Session's Case, they were acquitted. However, the appellant (A1) was convicted and sentenced as above. Hence this appeal. 3. Mr. Parag Kotecha, learned counsel for the appellant, has argued that except the discovery statement (Ex.-P/3) and seizure (Ex.-P/4) and identification of the ornaments after 14 months, there is no other circumstance against the appellant, therefore, the appellant cannot be convicted u/S 302, IPC. At the most, he may be convicted u/S 411 IPC. He referred to Section 114 (a) of the Indian Evidence Act. 4. On the other hand, Mr. D.K. Gwalre, learned Govt. Advocate for the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties. 6. In Sanwat Khan and another Vs. State of Rajasthan AIR 1956 SC 54 , on similar issue, it was observed as follows:- "In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof." This judgment was relied in Sheo Nath Vs. The State of Uttar Pradesh, AIR 1970 SC 535 . 7. In State of Rajasthan Vs. Talevar and Another (2011) 11 SCC 666 , the question again came for consideration before the Supreme Court as to whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements? Many earlier decisions were quoted in this regard vide Paras 13 to 17, we quote: "13. In Gulab Chand Vs. Talevar and Another (2011) 11 SCC 666 , the question again came for consideration before the Supreme Court as to whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements? Many earlier decisions were quoted in this regard vide Paras 13 to 17, we quote: "13. In Gulab Chand Vs. State of M.P., (1995) 3 SCC 574 , this Court upheld the conviction for committing dacoity on the basis of recovery of ornaments of the deceased from the possession of the person accused of robbery and murder immediately after the occurrence. In Geejaganda Somaiah Vs. State of Karnataka, (2007) 9 SCC 315 , this Court relied on the judgment in Gulab Chand and observed: (Geejaganda case, SCC p. 328, para 28) "28.... 4. ... 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 Vs. State of Rajasthan that no hard-and-fast rule can be laid down as to what inference should be drawn from certain circumstances. 14. In Tulsiram Kanu Vs. State, AIR 1954 SC 1 , this Court has indicated that the presumption permitted to be drawn under Section 114 Illustration (a) of Evidence Act, 1872 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 a long period has expired in the interval, the presumption cannot be drawn having regard to the circumstances of the case. 15. In Earabhadrappa Vs. State of Karnataka, (1983) 2 SCC 330 , this Court held that the nature of the presumption under Illustration (a) of 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 is recent or otherwise. Each case must be judged on its own facts. State of Karnataka, (1983) 2 SCC 330 , this Court held that the nature of the presumption under Illustration (a) of 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 is recent or otherwise. 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 could not be said to be too long particularly when the appellant had been absconding during that period. 16. Following such a reasoning, in Sanjay Vs. State (NCT of Delhi), (2001) 3 SCC 190 (SCC p. 205, para 29) this Court upheld the conviction by the trial court since "disclosure statements were made by the accused persons on the next day of the commission of the offence and the property of the deceased was recovered at their instance from the places where they had kept such properties, on the same day". (emphasis supplied) The Court found that the trial court was justified in holding that the disclosure statement of the accused persons and huge recoveries from them at their instance on the very next day of the incident by itself was a sufficient circumstance which clearly went to show that the accused persons had joined hands to commit the offence of robbery. Therefore, recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. 17. In Ronny Vs. State of Maharashtra, (1998) 3 SCC 625 this Court held that apropos the recovery of articles belonging to the family of the deceased from the possession of the appellants soon after the robbery and the murder of the deceased remained unexplained by the accused, and so the presumption under Illustration (a) of Section 114 of the Evidence Act would be attracted: (Ronny case, see p. 646, para 30) "30.... It needs no discussion to conclude that the murder and the robbery of the articles were found to be part of the same transaction. It needs no discussion to conclude that the murder and the robbery of the articles were found to be 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." (See also Baijlt Vs. State of M.P., (1978) 1 SCC 588 and Mukund Vs. State of M.P., (1997) 10 SCC 130 )." 8. In Para-18 of Talevar (supra), the law was summarized to the effect that where the 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. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand and the suspicion should not take the place of proof In the said case the recovery on the basis of disclosure statements of either of the accused persons was not in close proximity of the time from the date of incident and the articles recovered could have been passed from one person to another without any difficulty. The Supreme Court held that in such a fact situation, no presumption can be drawn against the accused persons u/S 114 Illustration (a) of the Evidence Act. No inference can be drawn on the basis of recoveries made on their disclosure statements to connect them with the commission of the crime. We note that in the said case the incident took place in the intervening night of 16th-17th of December, 1996 and the discoveries were made on 29th of December, 1996 and 2nd of January, 1997. 9. In the instant case, the incident took place in the intervening night of 3rd-4th of September, 1992 and the discovery statement of the appellant was recorded on 18.10.1993 i.e. almost after 14 months of the incident. Thus, the discovery and seizure were not in close proximity of time from the date of the incident. The articles seized on the discovery made by the appellant were small gold & silver ornaments like kardhan, peyr-patti, rings, bichhiya (all silver articles) and chain, ear-rings and nose-pin (gold articles). These articles were easily transferable from hand to hand. Thus, the discovery and seizure were not in close proximity of time from the date of the incident. The articles seized on the discovery made by the appellant were small gold & silver ornaments like kardhan, peyr-patti, rings, bichhiya (all silver articles) and chain, ear-rings and nose-pin (gold articles). These articles were easily transferable from hand to hand. We are of the view that in the above facts and circumstances of the case, no presumption can be drawn against the appellant u/S 114 Illustration (a) of the Evidence Act that he was the author of the offence of murder of the deceased as the above circumstance of discovery and seizure was capable of being explained and that alone cannot be a circumstance of conclusive nature and tendency for an offence of murder which took place 14 months ago. 10. Section 411 of IPC is titled as 'Dishonestly receiving stolen property'. It provides that Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. We are of the view that in the facts and circumstances of the case, a presumption u/S 114 (a) would apply for an offence u/S 411 and it can easily be presumed that the appellant was guilty for receiving stolen properties when the said properties were kept in hidden condition by him. It can easily be held that the appellant was having knowledge that the said properties were stolen properties otherwise he would not have hidden them in a small pit near the pond. Almost similar view was taken by the Supreme Court in Sheo Nath (supra). 11. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to the appellant u/Ss 449 & 302 IPC are set-aside. Instead thereof, he is convicted u/S 411 IPC. The appellant has remained in jail for more than 2 years. We feel that in the instant case the same is sufficient punishment for an offence u/S 411 IPC. We, therefore, sentence him to the period already undergone. Principles in relation to Presumption u/S 114 Illustration (a) of the Indian Evidence Act, 1872 - Discussed. /kkjk 114 byLVªs’ku ¼,½ Hkkjrh; lk{; vf/kfu;e] 1872 ls lacaf/kr fl)kar & foosfprA Appeal Partly Allowed.