Wasim Khan Vs. The State of Uttar
Pradesh  INSC 18 (12 March 1956)
IMAM, SYED JAFFER SINHA, BHUVNESHWAR P.
AIYAR, N. CHANDRASEKHARA
CITATION: 1956 AIR 400 1956 SCR 191
Possession, recent and unexplained of stolen
goodsPresumptive evidence against prisoner not only of robbery but of murder as
The appellant was sentenced to death for the
murder of one and also sentenced to seven years rigorous imprisonment for
having robbed the murdered man of his goods, It was established by the evidence
on the record that the deceased, a shop-keeper of village Jarwal had gone to
Lucknow to purchase goods for his shop. On his return journey he got down from
the train at about 10 p.m. He had with him a box, a balti, a gunni bag and a
jhola and other things. He engaged the appellant's cart to take him and his
goods to his village. Two other persons also got on to the cart.
Neither the deceased, nor the articles which
were with him nor the cart reached Jarwal. In the morning the body of the
deceased was found near a bridge in the vicinity of Jarwal.
During investigation on the fourth day after
the occurrence the appellant gave the key of his kothri to the police and from
the kothri, a dhoti, a box, a balti, a chadar, a gunny bag and a jhola were
recovered which were identified as belonging to the deceased. A big knife was
also recovered from the kothri which the appellant disowned but could not
explain how it was found in his home. The appellant on examination before the
Sessions Judge under s. 342 of the Code of Criminal Procedure stated that the
deceased asked him to take his goods 'in the cart at about 10 p.m. when he got
down at the Railway Station. Two other men were also in the cart who got down
at the Sugar Mill gate near the Railway Station. At Raduayan Bridge three men
enquired if the deceased was in the cart. The deceased responded and got down
from the cart asking the appellant to halt his cart near Jarwal Bazar Bridge
where he waited for the deceased up to 192 4 a.m. but he did not turn up. Not
knowing the house of the deceased he took the dead man's goods to his own house
as his buffaloes were very hungry. He stated further that he had handed over
all the articles of the deceased person to the police which he had locked in
Held, that recent and unexplained possession
of the stolen property while it would be presumptive evidence against a
prisoner on the charge of robbery would similarly be evidence against him on
the charge of murder. All the facts which tell against the appellants
especially his conduct indicating consciousness of guilt, point equally to the
conclusion that he was guilty as well of the murder as of the robbery.
The Emperor v. Sheikh Neamatulla ( 17
C.W.N. 1077), Queen-Empress v. Sami and Another ( I.L.R. 13 Mad.
426), Emperor v. Chintamoni Shahu (A.I.R.
1930 Cal. 379), In re Guli Venkataswami (A.I.R. 1950 Mad. 309), and Bamprashad
Mukundram Rajput v. The Crown (A.I.R. 1949 Nag. 277), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 24 of 1956.
On appeal by special leave from the judgment
and order dated the, 26th September 1955 of the Allahabad High Court (Lucknow
Bench) in Criminal Appeal No. 195 of 1955 and Capital Sentence No. 17 of 1955
arising out of the judgment and order dated the 11th April 1955 of the Court of
the Sessions Judge at Bahraich in Criminal S.T. No. 9 of 1955.
D. R. Prem, for the appellant.
K. B. Asthana and C. P. Lal, for the
1956. March 12. The Judgment of the Court was
delivered by IMAM J.-The appellant 'was sentenced to death for the murder of
one Ram Dularey. He was also sentenced to seven years' rigorous imprisonment
for having robbed the murdered man of his goods. He was tried along with two
other persons, who were' acquitted, by the Sessions Judge of Bahraich. All the
four assessors,, who attended the trial, were of the opinion that the appellant
was guilty. The High Court of Allahabad affirmed the conviction and the
sentence and this appeal is by special leave, 193 Certain facts have been
proved beyond all doubt. Indeed, the most important of them are admitted by the
appellant in his statement under section 342 of the Code of Criminal Procedure
when examined in the Court of Sessions. It has been established by the evidence
in the case that the deceased Ram Dularey, a shop-keeper of Jarwal, had gone to
Lucknow to purchase goods for his shop. On his return journey, he got down from
the train at Jarwal Road Station on the 2nd of July, 1954, at about 9-30 p.m. He
had with him articles consisting of a box, a balti, a gunny bag, jholas and
other things. Shortly thereafter, he engaged the appellant's cart to take him
and his goods to his village.
Two other persons also got on to the cart.
The appellant was driving the cart. Neither the deceased nor the articles,
which were with him, nor the cart ever reached Jarwal. In the morning, Ram
Dularey's body was found near a bridge in close vicinity of Jarwal.
'Information was sent to the police who commenced investigation and their
enquiriesed them to the appellant, who was arrested on the 6th of July, 1954.
The appellant gave the key of his kothri to the police with which it was
opened. From the kothri numerous articles were recovered, including a big knife
20 with blood-stains, a dhoti Ex. 3, a box
Ex. 9, a balti Ex. I,, a chadar Ex. 2, a gunny bag Ex. 13 and a jhola Ex.
24. It is not necessary to give the details
of the other articles recovered. The knife was sent to the Chemical Examiner
along with the dhoti. Although minute blood-stains were detected on the knife,
they were not sufficient to enable a comparison in a blood group test. No blood
was discovered on the dhoti. The dhoti Ex. 3, the box Ex. 9, the balti Ex. 1,
the chadar Ex. 2, the gunny bag Ex. 13 and the jhola Ex. 24 have been
identified as belonging to the deceased Ram Dularey.
When examined under section 342 of the Code
of Criminal Procedure by the Sessions Judge, the appellant stated that the
deceased Ram Dularey bad asked him to take his goods in his cart and it was
agreed that Rs. 2 would be paid as the fare. The appellant 194 took the
deceased on his cart with his goods including the box Ex. 9. Two other men were
also in the cart who got down at the Sugar Mill gate at the Railway Station. At
the Raduayan Bridge three men enquired if Ram Dularey was in the cart. Ram
Dularey responded and got down from the cart asking the appellant to halt his
cart at Jarwal Bazar Bridge, where he waited for the deceased until 4 a.m., but
the deceased did not turn up. As the appellant did not know the house of the
deceased in Jarwal Bazar, he took the dead man's goods in his cart to his own
house as his buffaloes were very hungry. To the question as to whether any
article of the deceased was recovered from his house by the police, the
appellant stated that he handed over to the police all the property of the
deceased which be had looked in the kothri. He asserted that he had told the
people in his village as well as the Mukhia that he would hand over the
property to its owner when he came to take it. Concerning the knife, he
disowned its ownership and could not say how it came to be found in his house.
So far as the dhoti Ex. 3 is concerned, the appellant claimed it as his.
On behalf of the appellant, it was urged that
the evidence in the case was insufficient to establish any of the charges
framed against him. In the alternative, it was suggested, that as the
co-accused of the appellant had been acquitted the latter could not be
convicted of the offence of murder by the application of the provisions of
section 34 of the Indian Penal Code in the absence of proof that any act of his
caused the death of Ram Dularey. It was also submitted that no question was put
by the Sessions Judge to the appellant when he was examined under section 342
of the Code of Criminal Procedure concerning the act of murder or robbery.
We have examined the statement of the
appellant recorded under section 342 of the Code of Criminal Procedure by the
Sessions Judge. At the very commencement of the record of that statement, the
Sessions Judge readout the appellant's statement under section 342 of the Code
of Criminal Procedure before 195 the Committing Magistrate and enquired
'Whether it was correct., to which the 'appellant replied in the affirmative.
The statement of the appellant before the Magistrate is admissible under
section 287 of the Code of Criminal Procedure. The Magistrate pointedly asked
the appellant as to whether he along with the other accused murdered Ram
Dularey and had taken his property to which the appellant replied in the
negative. It was not necessary for the Sessions Judge to specifically repeat
the same when the appellant admitted his statement before the Committing
Magistrate as correct when read out to him. Apart from this, when the statement
of the appellant to the Sessions Judge is read as a whole, it clearly shows
that the appellant knew what the accusation against him was and he offered an
explanation for the disappearance of Ram Dularey from his cart and for his
possession of the deceased's goods. There is no justification for supposing
that there had been any prejudice caused to the appellant on account of
improper or insufficient recording of his statement by the Sessions Judge under
section 342 of the Code of Criminal Procedure.
On the facts proved beyond question it is
clear that the last time the deceased was seen alive was in the company of the
appellant and two other persons when the cart started for Jarwal and his goods
were' on that cart. There is, however, no evidence as to what happened in the
course of the journey. Concerning that we have only the statement of the
accused. The evidence next establishes that after the cart started, next
morning, the 3rd of July, the dead body of Ram Dularey was found not far from Jarwal.
His goods had disappeared and some of them at any rate were found in the
possession of the appellant on the 6th of July.
The real question is whether the evidence in
the case establishes that the appellant murdered and robbed Ram Dularey. The
evidence is circumstantial. Before we deal with that evidence, it is necessary
to consider how far recent possession of property of a deceased, in
circumstances clearly indicating that he 196 had been murdered and robbed,
would suggest that not only the possessor of the property was a thief or a
receiver of stolen property, but that it also indicated that he was guilty of
-a more aggravated crime which had connection with the theft. In the case of
The Emperor v. Sheikh Neamatulla(1) Sir Lawrence Jenkins had the occasion to
examine this question. After referring to section 114 of the Evidence Act, be
quoted the following passage from Wills on Circumstantial Evidence:
"the possession of stolen goods recently
after the loss of them, may be indicative not merely of the offence of larceny,
or of receiving with guilty knowledge, but of any other more aggravated crime
which has been connected with theft. This particular fact of presumption
commonly forms also a material element of evidence in cases of murder;
which special application of it has often
been emphatically recognized".
In the case of Queen-Empress v. Sami and
Another(2) at page 432, the learned Judges of the High Court observed,
"Under these circumstances, and in the absence of any explanation, the
presumption arises that anyone who took part in the robbery also took part in
the murder. In cases in which murder and robbery have been shown to form parts
of one transaction, it has been held that recent and unexplained possession of
the stolen property while it would be presumptive evidence against a prisoner
on the charge of robbery would similarly be evidence against him on the charge
of murder. All the facts which tell against the appellant, especially his
conduct indicating a consciousness of guilt, point equally to the conclusion
that he was guilty as well of the murder as of the
robbery....................... In the case of Emperor v. Chintamoni Shahu(3),
the opinion was expressed that "the possession of stolen goods recently
after the loss of them may be indicative not merely of the offence of larceny
or of receiving with guilty knowledge but of any other more aggravated Crime
which has been (1) 17 C.W.N. 1077. (2)  I.L.R. 13 Mad. 426.
(a) A.I.R. 1930 Cal. 379. 197 connected with
the theft; this particular fact of presumption forms also a material element of
evidence in the case of murder". A similar view seems to have been taken
in the case of In re Guli Venkataswamy(1) as well as in the case of Ramprashad
Makundram Rajput v. The Crown(2).
In the present case it is established beyond
doubt that the deceased travelled with his goods with the appellant on his
bullock cart. He should have reached his destination Jarwal in the course of
the night. He never got there.
Obviously, he was murdered on his way home.
On the appellant's own statement, he and the deceased were alone in the cart
after the other two persons had got off the cart at the Sugar Mill gate.
Thereafter the deceased was never seen alive by any one. He was found murdered.
The appellant was found in possession of the deceased's goods three days
afterwards. The appellant made no effort to trace the whereabouts of the
deceased or lodge information of his disappearance from the bullock cart. The
appellant has told the court that some people called the deceased while the
cart was on its journey and the deceased told him to wait for him at a certain
place. He waited until 4 a.m. but the deceased never turned up. This should
have aroused his suspicions and he should have informed the police or someone
in authority about it. He says he informed the Mukhia and all the people about
it. Neither the Mukhia nor anyone has been examined by the appellant to support
Reliance was placed on the statement of
Iftikhar Ahmad P.W. 7) who spoke of a rumour in the village that the appellant
had brought the property of a man on his cart who had gone away and that this
rumour had been spread by the appellant.
It is clear, however, that the witness was
not speaking of this from his personal knowledge and his statement is not legal
evidence. On the other hand, if really the appellant had spread such a rumour
there is no adequate explanation for his failure to inform the authorities. He
(1) A.I.R. 1950 Mad. 309. (2) A.I.R. 1949 Nag. 277.
26 198 knew he was in possession of a large
number of articles belonging to the man who had hired his cart but had
disappeared in very strange circumstances. In addition, there is no explanation
for his possession of a big bloodstained knife, a weapon which if used against
the deceased, could have caused the injuries found on him. It is true that the
blood stains were minute and have not been established to be of human blood.
The appellant, however, denied that the knife belonged to him, and has not
explained as to how it came to be in his possession. It is impossible to
believe his story that he waited until 4 a.m. for the deceased to return. The
cart had started from Jarwal Road Station at about 10 p.m. It could not have been more than a couple of hours later that the deceased left the cart. To
wait from that time until 4 a.m. at a place not far from Jarwal itself appears
to be a fantastic story. It is true that none of the clothes of the appellant
were found to be bloodstained, as they should have been, if he bad participated
in the murder, having regard to the nature of the injuries on the deceased.
These clothes were not seized until the 6th July, some three days later, and
the appellant could have removed all traces of blood stains from his clothing
in that time.
The appellant was convicted of the offences
of murder and robbery by the Sessions Judge by the application of section 34 of
the Indian Penal Code. The charge framed, however, was one of murder and
robbery and there was no mention of these offences having been committed in the
furtherance of a common intention. The High Court, however, found that the
appellant along with two others committed these offences and they shared in the
goods robbed. On this finding, even if the co-accused of the appellant were
acquitted, the appellant could be convicted by the application of the
provisions of section 34 of the Indian Penal Code. The charge framed against
the appellant was for murder and robbery and the only question to be decided
was whether the evidence was sufficient to support such a charge or did it
merely establish offences less grave in nature. We think it 199 was and are
satisfied that it establishes the offences of murder and robbery against the
appellant and not merely the minor offence of robbery or theft. It is
impossible to accept the submission that the evidence does not establish any
offence having been committed by the appellant.
Having regard to what is established in the
case and the principles deducible from the cases cited, we are satisfied that
the appellant has been rightly convicted of the offences of murder and robbery.
The appeal is accordingly dismissed.