State of Rajasthan Vs.Talevar
J U D G M E N T
Dr. B.S. CHAUHAN, J.
appeal has been preferred by the State of Rajasthan against the judgment and
order dated 27.10.2004 passed by the High Court of Judicature for Rajasthan,
Jaipur Bench, in Criminal Appeal No. 1579 of 2002 acquitting the respondents,
setting aside their conviction and the sentence passed by Additional District
and Sessions Judge, (Fast Track), Laxmangarh, Alwar, dated 2.11.2002 in
Sessions Case No. 4 of 2002 (14/2000) for the offences punishable under Sections
395, 396 and 397 of the Indian Penal Code, 1860 (hereinafter called the IPC).
facts and circumstances giving rise to this case are as under:
A. Santosh Jagwayan (PW.13)
lodged an FIR on 17.12.1996 at 8.30 A.M., that in the intervening night between
16th and 17th December, 1996 on hearing the noise, he sent his Chowkidar Gopal Nepali
(deceased) to the roof of his house. Gopal Nepali went upstairs and opened the
gate of the roof and found that 8 to 10 accused persons were trying to enter
into the house by breaking upon the door of the roof. They immediately fired
shot at Gopal Nepali (deceased) and entered into the house. The accused persons
locked Shashi Devi (PW.12) wife of complainant, Preeti (PW.14) and Sandhya
(PW.15), his daughters, in the bathroom and started looting the moveable properties.
In the meanwhile, his neighbours raised their voice. Thus, the accused
immediately fired a shot at Mrs. Anita Yadav, as a result of which, she died on
the spot. Kripa Dayal Yadav (PW.2), husband of Anita Yadav (deceased) caught hold
of one of the accused but he was beaten with the butt of the gun by the other
accused persons and they got the accused released from his clutches. The accused
decamped with cash, jewellery and silver wares etc.
B. On the basis of the said
complaint, an FIR No. 240 of 1996 (Ex.P-30) was registered under Sections 395,
396, 397 and 398 IPC and investigation ensued. The dead bodies of Gopal Nepali
and Anita Yadav were recovered and sent for post-mortem examination. Kuniya - accused/respondent
was arrested on 24.12.1996. He made a disclosure statement (Ex.P-76) on
29.12.1996 on the basis of which a silver glass and one thousand rupees were recovered
vide recovery memo (Ex.P-53). Further, on his disclosure statement, a scooter bearing
No. RJ-05-0678 was recovered vide recovery memo (Ex.P-52) on 2.1.1997.
C. Another accused Talevar
- respondent, was arrested on 19.1.1997 and on his disclosure statement made on
26.1.1997, two thousand rupees, a silver key ring and a key of Ambassador car
was recovered vide seizure memo (Ex.P-45).
D. Some more recoveries were
made from the other accused persons. After completing the investigation chargesheet
was filed against 9 accused persons including the two respondents. As all of them
pleaded not guilty, they were put to trial for the offences punishable under
Sections 395, 396 and 398 IPC.
E. In the Sessions trial
prosecution examined 34 witnesses in support of its case. The ornaments and
stolen articles were identified by Shashi Devi (PW.12) and Santosh Jagwayan (PW.13).
The trial court vide judgment and order dated 2.11.2002 convicted 8 accused including
the two respondents. One accused named Ram Krishan, died during the trial. All
of them stood convicted under the provisions of Sections 395, 396 and 397 IPC. All
the accused were awarded punishment to undergo life imprisonment and a fine of
Rs. 1,000/- and in default of payment of fine, to further undergo six months
rigorous imprisonment under Section 396 IPC. All of them were convicted for the
offence punishable under Section 397 IPC and a sentence to undergo rigorous
imprisonment for seven years and a fine of Rs.500/- and in default of payment of
fine, to further undergo three months rigorous imprisonment. They were further convicted
under Section 395 IPC, awarded life imprisonment and fine of Rs. 1,000/- and in
default of payment of fine, to further undergo six months rigorous imprisonment.
Accused namely, Ghurelal, Chunchu @ Bhagwan Singh, Kallu, Rajpal and Samay
Singh were further convicted under Sections 3/25 and 3/27 of the Arms Act and
sentence was awarded to undergo three years rigorous imprisonment and a fine of
Rs. 500/- each of them, in default of payment of fine, to further undergo three
months rigorous imprisonment.
F. Being aggrieved by
the said decision, all the accused including the two respondents preferred Criminal
Appeal No. 1579 of 2002, which has been decided by the High Court vide judgment
and order dated 27.10.2004 acquitting the two respondents/accused though maintaining
the conviction and sentence in respect of other accused. Hence, this appeal by
the State against their acquittal.
Manish Singhvi, learned Additional Advocate General for the State of Rajasthan,
has submitted that recovery of some of the looted property had been made on the
basis of the disclosure statements made by the said respondents. The law provides
for a presumption that they had participated in the crime and, therefore, the High
Court has wrongly acquitted the said accused and thus, the appeal deserves to
the contrary, Shri Altaf Hussain, learned counsel appearing for the said two accused,
has vehemently opposed the appeal contending that mere recovery of looted property
on the disclosure statement of the accused, is not enough to bring home the
charges of offence of loot or dacoity, when the recovery is made after expiry
of a considerable period from the date of incident and particularly when the nature
of the looted property is such which can change hands 5easily. Thus, no
inference can be drawn against the respondents. The order of acquittal made by
the High Court has been passed on proper appreciation of facts and application of
law. The appeal lacks merit and is liable to be dismissed.
have considered the rival submissions made by the learned counsel for the
parties and perused the record.
facts remained so far as the two respondents/accused are concerned, that no test
identification parade was held at all. Further none of the eye witnesses,
particularly, Shashi Devi (PW.12), Santosh Jagwayan (PW.13), Kripa Dayal Yadav (PW.2),
Preeti (PW.14) and Sandhya (PW.15), identified either of the said respondents in
the court. Therefore, there is no evidence so far as their identification is
the sole question remains to be decided whether adverse inference could be
drawn against the accused merely on the basis of recoveries made on their
Gulab Chand v. State of M.P., AIR 1995 SC 1598, this Court upheld the conviction
for committing dacoity on the basis of recovery of ornaments of the deceased from
the possession of the 6person accused of robbery and murder immediately after the
Geejaganda Somaiah v. State of Karnataka, AIR 2007 SC 1355, this Court relied
on the judgment in Gulab Chand (supra) and observed 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.
Tulsiram Kanu v. State, AIR 1954 SC 1, this Court has indicated that the presumption
permitted to be drawn under Section 114, Illustration (a) of the 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.
Earabhadrappa v. State of Karnataka AIR 1983 SC 446, 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
such a reasoning, in Sanjay @ Kaka etc. etc. v. The State (NCT of Delhi), AIR 2001
SC 979, 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. The Court
found that the trial Court was justified in holding that the disclosure
statements of the accused persons and huge recoveries from them at their
instance by itself was a sufficient circumstance on the very next day of the incident
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
Ronny Alias Ronald James Alwaris & Ors. v. State of Maharashtra, AIR 1998
SC 1251, 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 : "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: Baijur v. State
of Madhya Pradesh, AIR 1978 SC 522; and Mukund alias Kundu Mishra & Anr. v.
State of Madhya Pradesh, AIR 1997 SC 2622).
the law on this issue can be summarized to the effect 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. It also depends on the nature of the
property so recovered, whether it was likely to pass readily from hand to hand.
Suspicion should not take the place of proof.
the instant case, accused Kuniya was arrested on 24.12.1996 and a silver glass
and one thousand rupees were alleged to have been recovered on his disclosure statement
on 29.12.1996. Again on disclosure statement dated 2.1.1997, a scooter alleged to
have been used in the dacoity, was recovered. Similarly, another accused Talevar
was arrested on 19.1.1997 and on his disclosure statement on 26.1.1997, two thousand
rupees, a silver key ring and a key of Ambassador car alleged to have been used
in the crime were recovered. Thus, it is evident that recovery on the disclosure
statements of either of the respondents/accused persons was not in close
proximity of time from the date of incident. More so, recovery is either of
cash, small things or vehicles which can be passed from 10one person to another
without any difficulty. In such a fact situation, we reach the inescapable conclusion
that no presumption can be drawn against the said two respondents/accused under
Section 114 Illustration (a) of the Evidence Act. No adverse inference can be drawn
on the basis of recoveries made on their disclosure statements to connect them
with the commission of the crime.
instant appeal has been prepared by the State against the judgment and order of
acquittal of the respondents by the High Court. The law on the issue is settled
to the effect that only in exceptional cases where there are compelling circumstances
and the judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the trial Court's acquittal
bolsters the presumption of his innocence. Interference in a routine manner where
the other view is possible should be avoided, unless there are good reasons for
interference. (See : Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC
280; V.S. Achuthanandan v. R. Balakrishna Pillai & Ors., (2011) 3 SCC 317;
and Rukia Begum & Ors. v. State of Karnataka, (2011) 4 SCC 779).
view of the above, we do not find any reason to interfere with the well reasoned
judgment and order of the High Court acquitting the said respondents. The appeal
lacks merit and is accordingly dismissed.
(Dr. B.S. CHAUHAN)