Limbaji
& Ors Vs. State of Maharashtra [2001] Insc 654 (14 December 2001)
R.C.
Lahoti & P. Venkatarama Reddi P.Venkatarama Reddi, J.
I. The
three appellants herein faced trial in the Court of Sessions Judge, Osmanabad,
for the offences punishable under Section 302 read with Section 34 and Section
392 read with Section 34 IPC. They were charged of committing murder of one Baburao
Nana Lagdive (hereinafter referred to as 'Baburao') at his field and robbing
him of golden ear rings and silver 'lingakar' worn by him in the early hours of
30th May, 1984. Both the accused and the deceased were the residents of village
Shekapur.
The
learned Sessions Judge acquitted the accused of the charges under Sections 302
and 392 but found them guilty under Section 411 IPC and sentenced each of them
to rigorous imprisonment for two years. On appeal by the State as well as by
the accused, the High Court of Bombay (Aurangabad Bench) having found the
accused guilty of offences punishable under Section 302 read with Section 34
and Section 392 read with Section 34, set aside the judgment of the Sessions
Judge. The High Court sentenced them to life imprisonment for the offence of
murder and five years rigorous imprisonment for the offence of robbery with the
direction that both the sentences should run concurrently. The appeal of the
State was allowed and the appeal filed by the accused was dismissed.
Questioning
the said judgment, the present appeals are filed. Leave to appeal was granted
by this Court on 11.12.2000.
The
case rests on circumstantial evidence of recovery of ornaments worn by the
deceased, pursuant to the information furnished by the accused to the police.
The High Court pressed into service the presumption under Section 114 (a) of
the Evidence Act in support of its conclusion. It is the correctness of that
view that falls for our consideration in this appeal.
The
prosecution case as revealed by the charge sheet and the record is that the
murdered person Baburao aged about 65 years was having his field close to the
village and he used to tether his cattle in that field and keep fodder heaps
therein. That is why he used to sleep in the field.
Deceased
Baburao, a lingayat by caste used to wear golden ear rings and silver lingakar
on his person. On the night of the crucial day, he went to the field to sleep
there. Early in the morning of 30th May, 1984,
his unmarried daughter named Sharadbai went to the field to collect cow dung.
She found her father lying dead near the heap of fodder. She rushed back to the
house and informed her brother Ramakrishna (PW2) and others. PW2 and his family
members went to the field and found Baburao lying dead with injuries on his
ear, chest etc. and the golden ear rings and silver lingakar missing from his
person. One Guruling (PW3) who was residing in a house close to the field of Baburao
came to the spot at that time. On seeing the dead body, he mentioned to PW2 and
others that he saw accused Nos. 1 to 3 going towards the field of Baburao at
about 3 A.M. when he woke up for drawing water. Keshav, PW1 who was the police patel
of the village then came to this spot and after knowing the facts went to the
police station at Osmanabad and lodged the FIR (Exh. 12) which was recorded by
PW10 (PSI). On the basis of it, a case was registered under Sections 302 and
392 IPC. Thereafter, PSI Swami (PW11) held inquest on the dead body of the
deceased Baburao in the presence of two Panchas. Having found a big stone lying
at the spot of occurrence, he seized the same and it is marked as article No.1.
He sent the dead body of Baburao to Civil Hospital at Osmanabad on the same day. PW8
conducted post-mortem examination between 4.30 and 5.30 P.M. The post-mortem report is Exh. 21. He opined that the
injuries sustained by the deceased were ante-mortem and the deceased Babu Rao
died of bilateral haeomothorax with heart injury, liver injury and hemoperitoneum
with multiple injuries. We shall advert to the details of injuries a little
later. In the meanwhile, the I.O. (PW11) recorded the statements of P.Ws 2, 3
and others. On 1.6.1984, he arrested accused No.1 Limbaji and accused No.2 Bapu.
The investigation was then taken over by Shri Ramesh, Dy. S.P. (PW12), Osmanabad.
On 2.6.1984, PW 12 secured police custody remand of both the accused.
On
7.6.1984 the first accused Limbaji gave information in the presence of Panchas,
namely, Sidling (PW9) and Shivaji (not examined) that he would point out a shop
in which he had sold the golden ear ring. This statement made by A-1 which is
admissible under Section 27 of the Evidence Act is Exh. 24. Thereafter, A-1
took them and PW 12 to the shop of PW5 who, at the instance of A-1, handed over
the golden ear ring marked as Article No.7 and the same was seized under a panchanama
Exh.25.
Again
on 15.6.1984, A-1 furnished information regarding the place at which silver lingakar
was kept. PW12 along with the same panchas went to the spot which was by the
side of Osmanabad-Shekapur road. The lingakar covered in a piece of cloth
concealed beneath the stones under a Babul tree was shown. The memorandum of
the statement of accused is marked as Exh. 26 and the seizure panchanama
relating to 'lingakar' (article No.8) is Exh. 27. On the same day, accused No.2
gave information that he would point out two golden ear rings kept buried under
a mango tree situated in the fields of a nearby village. The statement was
recorded under Exh. 28 and PW12 along with the panchas went to the field and
found the two golden ear rings shown by A-2 and seized the same under a panchanama
Exh.29. They are Article No.9. Accused No.3, who was arrested on 11.6.1984,
gave information on 20.6.1984 in the presence of same panchas that he would
point out one golden ear ring kept buried under a mango tree situated in a
field at Shekapur. After recording the statement Exh. 30, he went to the spot
shown by the accused Arun and recovered one golden ear ring kept in a cloth and
the same was attached under a panchanama marked as Exh. 31. It is Article
No.10. The seized articles, 7 to 10 were identified by PW2 as those belonging
to his deceased father. On 24.6.1984, PW12 seized the shirt of accused No.2
under the panchanama Exh. 16 and sent the same to the Chemical Examiner as it
was found to contain blood. But the report Exh.36 revealed that no blood was
detected on the shirt.
II.
There is no direct evidence as regards the involvement of accused in the murder
and robbery of the deceased. As analysed by the Sessions court and the High
Court, the following circumstances were relied upon by the prosecution :- (i)
Accused Nos. 1 to 3 were seen going together towards the field of Baburao in
the night of occurrence;
(ii)
The deceased Baburao was wearing golden ear- rings and silver ring on his
person and the same were found missing. His ear-lobes were found injured which
indicated that in the process of removal of ear-rings such injuries were
caused.
(iii)
The accused No.1 Limbaji pointed out the shop of Vijaykumar PW5 to whom he had
sold one golden ear ring belonging to Baburao and recovery of the same in
consequence of the said information;
(iv) recovery
of silver lingakar in consequence of the information given by the said accused;
(v) recovery
of two golden rings on 15.6.1984 in consequence of the information by accused
No2;
(vi) recovery
of one more ear-ring in consequence of the information given by accused No.3 on
20.6.1984;
(vii) human
blood noticed on the shirt of accused No.2.
In so
far as the last circumstance is concerned, the High Court disbelieved the
seizure and that apart, the Chemical Examiner's report does not reveal that any
blood was found thereon. With regard to the first circumstance, learned
Sessions Judge held that it will not lead the prosecution anywhere, especially
in view of the fact that, as stated by PW3, there was a public lane behind his
house which was used by the villagers.
This
is a reasonably possible view that could be taken. The High Court had given
undue weight to this circumstance and we do not think that the High Court was
justified in its approach We are now left with the evidence of recovery of the
ornaments of the deceased on the basis of the confessional statement of accused
under Section 27 of Evidence Act, leaving apart for the time being the aspect
concerning injuries inflicted on the deceased. The question then is whether
there was discovery of incriminating articles in consequence of information
received from the accused in custody and whether such discovery warrants a
presumption to be drawn under Section 114 and if so, to what extent that
presumption has to be drawn.
III.
As the presumption under Section 114 of Evidence Act looms large in this case,
a brief discussion on the basic postulates and evidentiary implications of
presumption of fact may not be out of place.
A
presumption of fact is a type of circumstantial evidence which in the absence
of direct evidence becomes a valuable tool in the hands of the Court to reach
the truth without unduly diluting the presumption in favour of the innocence of
the accused which is the foundation of our Criminal Law. It is an inference of
fact drawn from another proved fact taking due note of common experience and
common course of events.
upon a
matter of fact, when it is not merely a disguise for some other principle,
means that common experience shows the fact to be so generally true that courts
may notice the truth". Section 114 of the Evidence Act shows the way to
the Court in its endeavour to discern the truth and to arrive at a finding with
reasonable certainty. Under the Indian Evidence Act, the guiding rules for
drawing the presumption are set out broadly in the Section. Section 114
enjoins: "the Court may presume the existance of any fact which it thinks
likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to
facts of the particular case." Having due regard to the germane
considerations set out in the Section, certain presumptions which the Court can
draw are illustratively set out. It is obvious that they are not exhaustive or
comprehensive. The presumption under Section 114 is, of course, rebuttable.
When once the presumption is drawn, the duty of producing evidence to the
contra so as to rebut the presumption is cast on the party who is subjected to
the rigour of that presumption. Before drawing the presumption as to the
existence of a fact on which there is no direct evidence, the facts of the
particular case should remain uppermost in the mind of the Judge. These facts
should be looked into from the angle of common sense, common experience of men
and matters and then a conscious decision has to be arrived at whether to draw
the presumption or not.
Among
the illustrations appended to Section 114 of the Evidence Act, the very first
one is what concerns us in the present case:
"The
Court may presume - that a man who is in possession of stolen goods soon after
the theft, is either the thief or has received the goods knowing them to be
stolen, unless he can account for his possession." Taylor in his treatise
on The Law of Evidence has this to say on the nature and scope of the
presumption similar to the one contained in Section 114 (a) :
"The
possession of stolen property recently after the commission of a theft, is
prima facie evidence that the possessor was either the thief, or the receiver,
according to the other circumstances of the case, and this presumption, when
unexplained, either by direct evidence, or by the character and habits of the
possessor, or otherwise, is usually regarded by the jury as conclusive. The
question of what amounts to recent possession varies according to whether the
stolen article is or is not calculated to pass readily from hand to hand.
This
presumption which in all cases is one of fact rather than of law, is
occasionally so strong as to render unnecessary any direct proof of what is
called the corpus delicti. Thus, to borrow an apt illustration from Maule J.,
if a man were to go into the London Docks quite sober, and shortly afterwards
were found very drunk, staggering out of one of the cellars, in which above a
million gallons of wine are stored, "I think," says the learned Judge
and most persons will probably agree with him "that this would be
reasonable evidence that the man had stolen some of the wine in the cellar,
though no proof were given that any particular vat had been broached, and that
any wine had actually been missed." IV. We shall now examine as a first
step whether the conditions, or to put it in other words, factual circumstances
contemplated by Illustration (a) to Section 114 are fulfilled.
IV
(a). There can be no doubt that the ornaments which were located at the
instance of the accused were the personal belongings of the deceased and they
were being worn by the deceased. The evidence of PW2, who is the son of the deceased-victim
bears testimony to this fact and even a gruelling cross examination could not
raise a cloud on the veracity of his deposition on this aspect. The next step
which has to be proved by the prosecution is the possession of the said
ornaments of the deceased soon after the incident. One of the ear rings weighing
1.200 gms.was sold by accused No.1 to PW 5 who was running a jewellery shop at Osmanabad
for Rs. 170/-. The evidence of PW 6 a cycle shop owner, whose assistance was
sought by accused No.1 to dispose of the ear ring also corroborates the
evidence of PW 5 and the Investigating Officer (PW 10). According to PW 5, the
sale transaction took place on May 30, 1984 at 1.30 P.M. i.e. on the very next
day after the murder of Baburao. PW5 also deposed that accused No.1 accompanied
by two panchas and police came to his shop five or six days later and the
accused asked him to return the gold ear ring sold to him and on production of
ear ring by PW 5, the police seized the same in the presence of panchas on
7.6.1984. The fact that he had not given any receipt and taken the signatures
of the accused or that he was not having licence to sell or purchase the gold
ornaments are not factors which go to discredit the evidence of P.W.5 in whose
shop the ear ring was found. The possession of golden ear ring belonging to the
deceased by accused No.1 soon after the occurrence and the sale thereof
immediately to PW 5 is thus established beyond doubt.
Drawing
our attention to the evidence of PW 6, it is contended by the learned counsel
for the appellant that there was no discovery of the ear ring on the basis of
the information furnished by accused No.1, but the police party had information
through PW 6 about the sale of ear ring to PW5 and, therefore, the alleged
discovery under Section 27 has no value. The portion of the deposition of PW 6
relied upon by the appellant's counsel is as follows:
"It
is correct that after about seven days the police had called me in the police
station.
The
police had enquired from me as to the person to whom the gold was sold. I had
told the police the shop in which the golden ear ring was sold. I had pointed
out the shop to the police. Police had taken Vijay Kumar (PW 5) and myself to
the police station. The police had got confirmed the sale of the golden ear
rings." From this statement, it does not follow that there was no
discovery within the meaning of Section 27 of the Evidence Act. As rightly
pointed out by the learned Sessions Judge, the statements were immediately
recorded after the seizure of ear ring from the shop of PW5. The Investigating Officer
evidently cross-checked the information furnished by the accused and PW 5 as
regards the role played by PW 6 and that is why he was summoned to the police
station. From the statement of PW 6, it cannot be deduced that the information
furnished by accused No. 1 to the police was only subsequent to the information
furnished by PW 6. Hence, the argument that there was no information leading to
discovery of the material object and the statement of the accused is
inadmissible under Section 27 was rightly repelled by the trial Court. There is
no good reason to take a different view in this regard.
Then
we have the evidence of discovery of the other stolen articles concealed
beneath the earth in the fields of others and at a spot on the road side. These
discoveries were made on the basis of the statements made by accused Nos. 1 and
2 on 15.6.1984 and accused No.3 on 20.6.1984. The evidence of panch witness
(PW9) and the Investigating Officer (PW12) lends proof to these discoveries.
Argument has been addressed by the learned counsel for the appellant that the panch
witness Sidling was always being called by the police. He figured as panch not
only on the first occasion but also on subsequent two occasions when he was
allegedly called by the I.O. while going past the police station. The said
witness is related to the deceased. It is highly doubtful whether he witnessed
the accused pointing out to the places where the stolen articles lay and the
police seizing the same. His evidence does not therefore merit acceptance,
according to the learned counsel. We are not inclined to disturb the finding of
fact recorded by the trial Court as well as the High Court on the truth of the
discoveries by disbelieving the panch witness merely on account of some
suspicious features.
IV
(b). We are left with the evidence of recovery of the ornaments of the deceased
on the basis of the confessional statement of accused under Section 27 of
Evidence Act, if the discoveries are to be believed which ought to be. The next
two questions are, whether the accused shall be deemed to be in possession of
the articles concealed at various spots and whether such possession could be
said to be recent possession. But for the first question need not have engaged
our attention at all. That was a case in which at the instance of the accused
the stolen property was recovered at a field belonging to a third party and the
accused gave no explanation about his knowledge of the place from which the
ornaments were taken out. The High Court while absolving the appellant of the
charge of dacoity, convicted him under Section 411 IPC for receiving the stolen
property by applying the presumption that he himself must have kept the
ornaments at that place. On appeal by the accused, this Court took the view
that there was no valid reason for convicting the appellant under Section 411
IPC. The Court pointed out that one of the ingredients of Section 411, namely,
that the stolen property was in the possession of the accused, was not
satisfied. The Court observed thus:- "When the field from which the
ornaments were recovered was an open one, and accessible to all and sundry, it
is difficult to hold positively that the accused was in possession of these
articles. The fact of recovery by the accused is compatible with the circumstance
of somebody else having placed the articles there and of the accused somehow
acquiring knowledge about their whereabouts and that being so, the fact of
discovery cannot be regarded as conclusive proof that the accused was in
possession of these articles." If this view is accepted, there is the
danger of seasoned criminals who choose to keep the stolen property away from
their places of residence or premises escaping from the clutches of presumption
whereas the less resourceful accused who choose to keep the stolen property
within their house or premises would be subjected to the rigour of presumption.
The purpose and efficacy of the presumption under Section 114 (a) will be
practically lost in such an event. We are, however, relieved of the need to invite
the decision of a larger Bench on this issue in view of the confessional
statement of the accused that they had hidden the articles at particular places
and the accused acting further and leading the Investigation Officer and the Panchas
to the spots where they were concealed. The Memoranda of panchnama evidencing
such statements are Exhibits 26, 28 and 30. If such statement of the accused in
so far as the part played by him in concealing the articles at the specified
spots is admissible under Section 27 of the Evidence Act, there can be no doubt
that the factum of possession of the articles by the accused stands
established. We have the authority of the three-Judge Bench decision of this
Court in K. hold that the statement relating to concealment is also admissible
in evidence by virtue of Section 27. In that case, the question was formulated
by Wanchoo, J. speaking for the Court, as follows:- "Let us then turn to
the question whether the statement of the appellant to the effect that 'he had
hidden them (the ornaments)' and 'would point out the place' where they were,
is wholly admissible in evidence under S. 27 or only that part of it is
admissible where he stated that he would point out the place but not the part
where he stated that he had hidden the ornaments." Emperor (AIR 1947 PC
67), the question was answered as follows :- "If we may respectfully say
so, this case clearly brings out what part of the statement is admissible under
S.27.
It is
only that part which distinctly relates to the discovery which is admissible;
but if any part of the statement distinctly relates to the discovery it will be
admissible wholly and the court cannot say that it will excise one part of the
statement because it is of a confessional nature. Section 27 makes that part of
the statement which is distinctly related to the discovery admissible as a
whole, whether it be in the nature of confession or not. Now the statement in
this case is said to be that the appellant stated that he would show the place
where he had hidden the ornaments. The Sessions Judge has held that part of
this statement which is to the effect 'where he had hidden them' is not
admissible. It is clear that if that part of the statement is excised the
remaining statement (namely, that he would show the place) would be completely
meaningless. The whole of this statement in our opinion relates distinctly to
the discovery of ornaments and is admissible under S.27 of the Indian Evidence
Act. The words 'where he had hidden them' are not on a par with the words 'with
which I stabbed the deceased' in the example given in the judgment of the
Judicial Committee. These words (namely, where he had hidden them) have nothing
to do with the past history of the crime and are distinctly related to the
actual discovery that took place by virtue of that statement. It is however
urged that in a case where the offence consists of possession even the words
'where he had hidden them' would be inadmissible as they would amount to an
admission by the accused that he was in possession. There are in our opinion
two answers to this argument. In the first place S.27 itself says that where
the statement distinctly relates to the discovery it will be admissible whether
it amounts to a confession or not. In the second place, these words by
themselves *though they may show possession of the appellant would not prove
the offence, for after the articles have been recovered, the prosecution has
still to show that the articles recovered are connected with crime, i.e. in
this case the prosecution will have to show that they are stolen property. We
are therefore of opinion that the entire statement of the appellant (as well as
of the other accused who stated that he had given the ornament to Bada Sab and
would have it recovered from him) would be admissible in evidence and the
Sessions judge was wrong in ruling out part of it." * (emphasis supplied)
In the light of this decision, we must hold that the accused must be deemed to
be in exclusive possession of the articles concealed under the earth though the
spots at which they were concealed may be accessible to public.
It may
be mentioned that in Trimbak's case (supra) this Court did not refer to the
confessional statement, if any, made by the accused falling within the purview
of Section 27 and the effect thereof on the aspect of possession.
IV
(c). Coming to the next question whether the test of time factor or 'recent
possession' has been satisfied, there can be no doubt that the accused came to
possess incriminating articles (ornaments) soon after the crime. Accused No.1 Limbaji
sold one of the articles, namely, the golden ear rings on the very next day to
PW 5. The other articles were found concealed at the places shown by the
accused within a short time after their arrest. All the discoveries were made
within three weeks. The arrest took place on the very next day after the
occurrence in the case of the accused Nos. 1 and 2. The ornaments which came
into their possession were concealed by them for obvious reasons before their
arrest. As regards the third accused, he was arrested 10 days after the
occurrence and by that time the stolen articles were found concealed under a
tree. Even in the case of the third accused, the time lag is not so much as to
preclude the presumption being raised under illustration (a) to Section 114.
In Earabhadrappa's
case (AIR 1983 SC 446), this Court while reiterating the principle that no
fixed time limit can be laid down to determine whether possession is recent or
otherwise, held that even a period of one year was not too long having regard
to the fact that the accused suddenly disappeared after the incident and he was
absconding for a long time. In the present case, the 3rd accused Arun gave the
information about the stolen article, namely, golden ear-ring soon after his
arrest and this led to the discovery of stolen property. Having regard to the
nature of the articles, it is difficult to visualise that it would have changed
hands within this short time and ultimately landed itself in the possession of
the said accused. The accused, on his part, did not come forward with any such
explanation.
V.(a)
In the light of the above discussion, in the instant case the presumption under
Section 114 illustration (a) could be safely drawn and the circumstance of
recovery of the incriminating articles within a reasonable time after the
incident at the places shown by the accused unerringly points to the
involvement of the accused. Be it noted that the appellants who were in a
position to explain as to how they could lay their hands on the stolen articles
or how they had the knowledge of concealment of the stolen property, did
nothing to explain; on the other hand, they denied knowledge of recoveries
which in the light of the evidence adduced by the prosecution must be
considered to be false. By omitting to explain, it must be inferred that either
they intended to suppress the truth or invited the risk of presumption being
drawn. Thus, the presumption as to the commission of offence envisaged by
illustration (a) of Section 114 is the minimum that could be drawn and that is
what the trial court did.
V (b).
The question then is, applying illustration (a) to Section 114, whether the
presumption should be that the accused stole the goods or later on received
them knowing them to be stolen. Though the trial court observed that the
accused "might have robbed" the ornaments of the deceased after he
was murdered by someone else, it found them guilty of the offence under Section
411 IPC only which is apparently self-contradictory.
On an
overall consideration of the circumstances established, it is reasonable to
presume that the accused committed the theft of the articles from the person of
the deceased after causing bodily harm to the deceased. The fact that within a
short time after the murder of the deceased, the appellants came into
possession of the ornaments removed from the person of the deceased and the 1st
accused offered one of the stolen articles for sale on that very day and the
further fact that the other articles were found secreted to the knowledge of
appellants coupled with non-accountal of the possession of the articles and the
failure to give even a plausible explanation vis-à-vis the incriminating
circumstances would go to show that they were not merely the receivers of
stolen articles from another source but they themselves removed them from the
person of the deceased. Thus, the presumption to be drawn under illustration
(a) to Section 114 should not be confined to their involvement in the offence
of receiving the stolen property under Section 411 but on the facts of the
case, it can safely go beyond that. In this context, Rajasthan, is quite
apposite. While holding that from the solitary circumstance of unexplained
recovery of the articles belonging to the deceased from the houses of the
accused, the presumption of commission of offence of murder cannot be raised,
the Court nevertheless held that they can be convicted of theft under Section
380 I.P.C. which was one of the charges Mysore [1970 (1) SCC 487]. That was a
case in which bundles of cloth being carried in carts were looted by twenty
persons and the accused were charged for dacoity. Searches which took place
within a few days after the incident led to the recovery of large quantities of
stolen clothes from their houses. On these facts the Court drew the presumption
that the persons with whom the items of clothes were found were the dacoits
themselves and the conviction was sustained. Hidayatullah, C.J. speaking for
the three Judge Bench observed that "It is only when accused cannot be
connected with the crime except by reason of possession of the fruits of crime
that the presumption may be drawn." Drawing support from these decisions
too, we are of the view that by invoking the presumption under Section 114 read
with Illustration (a) thereto, the appellants must, as a first step, be held to
have committed theft of ornaments which were removed from the person of the
deceased and that they are not mere receivers of stolen property. Theft is a
component of the offence of robbery and theft becomes robbery, if, in order to
the committing of theft, the offender causes or attempts to cause death, hurt
or wrongful restraint or instils fear thereof. Whether, on the facts, they
shall be convicted for robbery is yet another aspect which we shall advert to a
little later. We are only pointing out presently that if we stop at applying
illustration (a) to Section 114, the accused can be safely convicted for the
offence of theft rather than for the offence under S.411.
What
is the position if we look beyond illustration (a) is another aspect.
VI.
(a) The above discussion paves the way for consideration of a more important
question whether, having regard to the facts of this case, the presumption
should be extended to the perpetration of the offence of robbery or murder or
both? Presumption envisaged by illustration (a) to Section 114 has been
stretched in decided cases to make a similar presumption as the basis for
conviction for graver offences of robbery and murder, if they are part of the
same transaction. Strictly speaking, such presumption does not come within the
sweep of illustration (a), though in some cases illustration (a) has been
referred to while upholding the conviction for robbery and murder. Extending
the presumption beyond the parameters of illustration (a) could only be under
the main part of the Section. The illustration only provides an analogy in such
a case. With this clarification, let us examine whether there is scope to
presume that the appellants committed robbery and murder sharing the common
intention. While on this point, we have come across divergent approaches by
this Court in various cases. In some cases, the extended presumption was drawn
while in some cases the Court considered it unsafe to draw the presumption
merely on the basis of recovery of incriminating articles from the possession
of the accused soon after the State of M.P. [1995 (3) SCC 574) falls on the
other side of the line. In the mid way we find certain decisions wherein the
presumption was invoked as an additional reason to support the conclusion based
on circumstantial evidence. We shall briefly refer to these decisions.
Bench
of this Court held that discovery of incriminating articles including gold
ornaments of the deceased and the absence of explanation for the possession of
stolen articles does not by itself justify a presumption that the accused
committed murder. Suspicion however strong cannot take the place of proof. The
finding of the Sessions Judge based on the presumption "does not stand scrutiny
in the eye of law". Unless there is something else to show that the
accused alone were in the company of the deceased, the presumption cannot be
drawn. It was held that there were no circumstances connecting the accused with
the murder. The Court however convicted the accused Maharashtra [1998 (3) SCC
625], the above decision was referred to and distinguished and the raison d'etre
for not drawing the presumption was said to be that the injured witness did not
implicate the accused and the recovery was after one month. However, on a
perusal of the judgment in D'Souza case, it is not apparent that the injured
witness was in a position to see and identify the accused at all. As regards
the time factor, there was no categorical observation in D'Souza's case that
the lapse of one month's time would weaken the presumption. Another judgment
rendered by the same held therein that recovery of watch belonging to the
deceased from a pawn broker after 15 days of the date of occurrence on the
basis of the information furnished by the accused was held to be insufficient
to connect him with murder by invoking Section 114 of the Evidence Act. At the
most, it was held that he can be convicted under Section 411 and accordingly he
was convicted and sentenced. Another case which broadly falls within first
category is that of Sanwath Khan (supra). As it is a three-Judge Bench
decision, we may refer to it in some detail.
Two
persons who were living in a temple were found lying dead in the temple
premises. They succumbed to axe injuries. The house was found ransacked and almirahs
etc. opened. One of the accused who was arrested 12 days later produced a gold kanthi
which it was lying buried in his premises. Another accused who was arrested 17
days later produced a silver plate from his house where it lay buried in the
ground. Both these articles belonged to the deceased. The High Court upheld the
conviction by relying on the solitary circumstance of the recovery of two
articles at the instance of the accused and the absence of explanation about
their possession. On further appeal, the three-Judge Bench of the Supreme Court
set aside the conviction under Section 302 and found the appellants guilty
under Section 380 IPC. Mahajan, J. speaking for the Bench observed as under :-
"In the absence of any evidence whatsoever of the circumstances in which
the murders or the robbery took place, it could easily be envisaged that the
accused at some time or other seeing the Mahant and Ganpatia murdered, removed
the articles produced by them from the temple or received them from the person
or persons who had committed the murder." The Court, after having referred
to the possibility of someone else murdering the deceased observed thus :
"Be
that as it may, in the absence of any direct or circumstantial evidence
whatsoever, from the solitary circumstance of the unexplained recovery of the
two articles from the houses of the two appellants the only inference that can
be raised in view of illustration (a) to S.114 of the Evidence Act is that they
are either receivers of stolen property or were the persons who committed the
theft, but it does not necessarily indicate that the theft and the murders took
place at one and the same time.
The
accused produced these articles about a fortnight after the theft and the
maximum that can be said against them is that they received these goods knowing
them to be stolen or that they themselves stole them; but in the absence of any
other evidence, it is not possible to hold that they are guilty of murder as
well." Having referred to the decisions of various High Courts, the Court
concluded 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." [1995 (3) SCC 574] case, where
presumption under Section 114 of the Evidence Act was carried to the utmost
extent. In that case the accused were charged under Sections 120-B, 302, 394
and 397 for having committed the murder and robbery. The appellants were
convicted under Section 380. On appeal by the State, the High Court reversed
the order of acquittal and convicted the appellant Gulab Chand under Sections
302, 394 and 397. The conviction of the other accused was modified to one under
Section 411. In that case, within a few days after the incident, on the search
of the appellant's house, various articles were found including ornaments
belonging to the deceased. Some of the ornaments were also recovered from a
shop on the basis of the information given by the accused. The Court started
the discussion with the preface: "it is true 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." After
referring to the test of time factor for drawing the presumption under Court
observed, if the ornaments of the deceased were found in possession of a person
soon after the murder, a presumption of guilt can follow. But if several months
have expired, the presumption may not be permitted to be drawn. Having regard
to the close proximity of the time of recovery and lack of credible explanation
for the possession thereof and on account of dealing with the ornaments
immediately after the crime, it was held that a reasonable inference of
commission of offence could be drawn against the accused. In conclusion, the
learned Judges observed:
In the
facts of this case, it appears to us that murder and robbery have been proved
to have been integral parts of the same transaction and therefore the
presumption arising under Illustration (a) of Section 114 Evidence Act is that
not only the appellant committed the murder of the deceased but also committed
robbery of her ornaments." The above decision was cited with approval in
the case of Mukund vs. State of M.P.
(1997 (10) SCC 130). The Court, having negatived the contention of the
appellant's counsel that mere recovery of stolen articles from the house
pointed out by the accused could only lead to the presumption that the offence
was committed under Section 411 but not the offences under Sections 302 and
394, observed thus :- "If in a given case as the present one the
prosecution can successfully prove that the offences of robbery and murder were
committed in one and the same transaction and soon thereafter the stolen
properties were recovered, a court may legitimately draw a presumption not only
of the fact that the person in whose possession the stolen articles were found
committed the robbery but also that he committed the murder. In drawing the
above conclusion we have drawn sustenance from State of M.P.".
At the
same time, the Court was cautious enough to say that the other incriminating
circumstances detailed earlier reinforced the ultimate conclusion. Various
others incriminating circumstances were referred to in the judgment.
[2001
(3) SCC 193]. But it is to be noted that in all the three cases decided
subsequent to Gulab Chand's case, there were additional circumstances which
shed light on the involvement of the accused. So also in the case of was raised
that the accused who pointed out the places at which the ornaments and sarees
of the victim were kept committed robbery and murder. Here again, quite a
number of additional circumstances were noticed, apart from the recovery of
stolen articles. Thus, as far as the factual matrix goes, only Gulab Chand's
case stands apart. The recovery of the articles of victim soon after the crime
at the instance of the accused and incredible explanation given by the accused
for possession of the articles were held to be sufficient to raise the
presumption of having committed robbery and murder, if they were otherwise part
of the same transaction.
Before
parting with the discussion on judicial precedents, we (1) SCC 484]. The Bench
consisting of K.T. Thomas and R.P. Sethi, JJ., observed that a false answer
offered by the accused to explain away the incriminating circumstances which
are supposed to be within his knowledge 'provides a missing link for completing
the chain'.
Whether
the approach of the Court and ratio of the decision in Gulab Chand's case is in
consonance with the three-Judge bench decision in Sanwath Khan's case (supra)
is, at least a debatable issue. When this decision was brought to the notice of
their Lordships who decided Gulab Chand's case, it was merely observed that
"the said decision is not applicable in the facts and circumstances of the
present case". There was no further elaboration. In this state of law, the
safer course would be to give due weight to the dicta laid down and the
ultimate conclusion reached by the larger Bench in Sanwath Khan's case. We
cannot go against that decision in so far as it applies to the present case.
VI
(b). Now, let us revert back to the question formulated by us at the outset and
examine whether in the light of the facts and circumstances of the present case,
the presumption under Section 114 should be so extended as to hold the
appellant liable for graver offences of robbery and murder.
Before
proceeding further, it is relevant to refer to the medical evidence. PW 8, who
was the medical officer in the Civil Hospital, Osmanabad, conducted post-mortem
over the dead body. He found four external injuries :
(1)
Contused lacerated wound on posterior aspect of the left ear measuring 3 cm.;
(2)
Contused lacerated wound on the right ear lobule and measuring 2 x 1 x 2 cm.;
(3)
Abrasion on the chest wall, anterior side in the third intercostal space on
right side of the size of 3 x 3 cm.; and
(4)
Contusion on the right pectoral region measuring 3 x 2 cm.
He
stated that all the injuries were antemortem. On internal examination, he found
bilateral haemothorax and laceration of the right lung base of the size of 6 x
7 cm. He also found that there was a vertical tear on 4th right and left
ventricles of the heart and a contused lacerated wound on right lobe of the
liver of the size of 5 x 3 x 2 cm. PW 8 deposed that the cause of the death was
bilateral haemothorax with heart injury, liver injury and haemoperitonium.
According to him, external injuries 1 and 2 could have been caused if the
earrings were forcibly snatched. External injuries 3 and 4 could have been
caused by hard and blunt object like a stone. He clarified that internal
injuries could be caused by article No.1 (stone weighing 10 k.g.). if it is
forcibly hit on the chest. Further he deposed that the external injuries and
internal injuries were sufficient in the ordinary course of nature to cause
death. He denied the suggestion that the deceased could not have been hit with
a stone. In the light of the medical evidence, there are three points which are
to be prominently kept in view. Firstly, there was a lacerated wound on the
posterior aspect of the left ear and another such wound on the right ear lobule
which according to the doctor could have been caused in the process of forcibly
snatching the ear-rings worn by the victim.
Secondly,
the internal injuries which were the immediate cause of death would have been
caused by a hard and blunt object. According to the prosecution the deceased
was hit by a heavy stone found at the spot and seized under a panchanama. Thirdly,
the injuries in question were antemortem. In this state of evidence, it is
clear beyond reasonable doubt that the person or persons who removed the
ornaments worn by the deceased themselves inflicted the wounds in the process
of removing them. There was evidently a hush-hush operation to run away with
the booty without allowing much time to pass. The fact that the ornaments on
the person of the deceased came into the hands of the accused soon after the
crime and they failed to give any explanation for the circumstances appearing
against them justifies the presumption, as already discussed, that they
themselves removed these articles from the person of the deceased. Causing
injuries to the deceased in the process of removal of ear-rings is, in our view,
inextricably inter-linked with the commission of theft which is an ingredient
of robbery. It would be far-fetched to think, as the trial Judge has expressed
that someone else might have caused injuries and the appellant would have
stolen the articles thereafter. The fact that the booty was distributed between
the three accused and that they had secreted the robbed articles would clearly
reveal that the three accused shared the common intention to commit robbery.
Hence, we are of the view that by having resort to the presumption under
Section 114, an inference can be safely drawn that the appellants committed
robbery in furtherance of common intention. No other reasonable hypothesis
consistent with the innocence of the accused is possible.
VI.(c)
Whether the presumption could be further stretched to find the appellants
guilty of gravest offence of murder is what remains to be considered. It is in
this arena, we find divergent views of this Court, as already noticed. In Sanwath
Khan's case, the three-Judge Bench of this Court did not consider it proper to
extend the presumption beyond theft (of which the accused were charged) in the
absence of any other incriminating circumstances excepting possession of the
articles belonging to the deceased soon after the crime. However, we need not
dilate further on this aspect as we are of the view that in the peculiar
circumstances of the case, it would be unsafe to hold the accused guilty of
murder, assuming that murder and robbery had taken place as a part of the same transaction.
The reason is this.
Going
by the prosecution case, the deceased Baburao was hit by a heavy stone lying on
the spot. The medical evidence also confirmed that the fatal injuries would
have been inflicted by a heavy stone like article No.1. It is not the case of
the prosecution that the appellants carried any weapon with them or that the
injuries were inflicted with that weapon. There is every possibility that one
of the accused picked up the stone at that moment and decided to hit the
deceased in order to silence or immobilise the victim. If the idea was to
murder him and take away the ornaments from his person, there was really no
need to forcibly snatching the ear-rings before putting an end to the victim.
It seems to us that there was no pre-mediated plan to kill the deceased. True,
common intention could spring up any moment and all the three accused might
have decided to kill him instantaneously, for whatever reason it be. While that
possibility cannot be ruled out, the possibility of one of the accused suddenly
getting the idea of killing the deceased and in furtherance thereof picking up
the stone lying at the spot and hitting the deceased cannot also be ruled out.
Thus two possibilities confront us. When there is reasonable scope for two possibilities
and the Court is not in a position to know the actual details of the occurrence
it is not safe to extend the presumption under Section 114 so as to find the
appellants guilty of the offence of murder with the aid of S.34 IPC. While
drawing the presumption under Section 114 on the basis of recent possession of
belongings of the victim with the accused, the Court must adopt a cautious
approach and have an assurance from all angles that the accused not merely
committed theft or robbery but also killed the victim.
VII In
the result, we set aside the conviction of the accused under Section 302 IPC.
We find the accused guilty of the offence punishable under Section 394 read
with Section 34 IPC and accordingly convict the accused under Section 394 and
sentence them to undergo rigorous imprisonment for a period of five years and
to pay a fine of Rs.500/- each and in default to undergo further imprisonment
for a period of three months.
The
appeals are thus partly allowed.
J
(R.C. Lahoti) J (P.Venkatarama Reddi) December 14, 2001.
EXTRACT
FROM DIRECT TAX LAWS COMMITTEE
It
should be recognised that the law, however, exhaustively and elaborately it may
be rationalised, cannot take care of all possible situations and circumstances
which may arise in a developing and complex economy such as ours. The nation is
engaged in a process of planned economic growth consistent with social justice,
and it has wide and varied components like the public sector, joint sector and
the private sector, as also industry, trade, commerce and agriculture, apart
from the urban and rural aspects. All these complexities are inherent in a
developing economy such as ours and, therefore, tax laws cannot be reduced to a
plane of total or absolute simplicity. But best efforts towards simplification
still have to be made.
Brennan
J, writing in the Federal Law Review, indorsed the Kitto view:
"The
judicial function is essentially syllogistic. The applicable principles 'the
law as it is' provide the major premise; 'the facts as they are' provide the
minor premise; the judgment follows inexorably by applying 'the law as
determined to the facts as determined'." These quotations reflect a view
that today seems quaintly anachronistic.
Indeed,
it must be said that it has probably never been the case that the role of an
appellate judge was merely mechanistic, although there is perhaps a question of
degree.
Mason
CJ spelt out his position publicly and clearly. Speaking to the Sydney
Institute his Honour said:
"Just
as the judge is becoming more of a manager of the litigation, so the judge is
also likely to become more of a constructive interpreter of legislation. That
will happen as the so-called 'plain English' reforms in legislative drafting
find their way into the statute book. The movement away from detailed
regulation, which reached its apogee in the Income Tax Assessment Act and the
Corporati8ons Law to the broader statements of principle characterstic of United State legislation and, to a lesser extent, of United Kingdom legislation, will leave the courts
with more to do. The judges will be called upon to spell out the interstices of
the legislative provisions. In doing so, they must resolve questions of
interpretation by reference to the policies and purposes which are reflected in
the legislation.
What I
have just said may not be welcome news to those who believe that the courts do
no more than apply precedents and look up dictionaries to ascertain what the
words used in a statute mean. No doubt to those who believe in fairy tales that
is a comforting belief.
But it
is a belief that is contradicted by the long history of the common law. That
history is one of judicial law-making which shows no signs of unaccountably
coming to an end. However, a distinction must be made between appellate judges
and primary or trial judges who, generally speaking, are confined to applying
principles of law to the facts as they are found." The Indian Constitution
has the place of pride in the world. The history of world after the Indian
independence has fully revealed the wisdom of Indian Constitution and has
proved its efficacy in creating a new world order based on Liberty, Equality and Fraternity the ideals
which inspired the French revolution. We have seen the experience of many
countries which attained freedom after the Second World War.
The
Constitutions of many of those countries with nice phrases and high ideals
meant to ensure a democratic system of governance have faded away, while many
others are struggling to survive. But our Constitution has withstood the test of
time.
The
democratic institutions and practices have grown and nourished under the aegis
of our Constitution. Every Indian can confidently say that the Constitution
cannot fail us despite turbulent times and the ongoing challenges. It is said
by George S. Bidault, very aptly:
"The
good or bad fortune of a nation depends on three factors; its Constitution, the
way the Constitution is made to work and the respect it inspires" We, the
people of India, as the preamble to the Constitution states, have given to
ourselves the Constitution and have solemnly resolved to constitute India into
a Sovereign, Socialist, Secular, Democratic Republic and to secure Justice,
Liberty, Equality and Fraternity. The expression 'Socialist' and 'Secular' were
added to the preamble the 42nd Amendment Act in the year 1976. Even without
those phrases, the socialist and secular character of the Constitution is
implicit in several provisions in their original form with the amendments which
were made till then. It is the fountain source of all laws and the framework of
Legislative, Executive and Judicial power. Constitution is the 'Supreme Law'
and all laws and the executive and judicial action should conform to the
constitutional provisions. Our Constitution is a very lengthy document, perhaps
the lengthiest taking care of each and every details which the free India, needed to have.
The
Drafting Committee scrutinized the democratic Constitutions of various
countries such as USA, Australia, Canada etc. Such of those provisions which are best suited
to our polity and society have been borrowed and several provisions have been
adopted in modified form to suit the Indian conditions, the psyche of the
people and the paramount needs of the nation. The Constitution marked the
culmination of our glorious epic struggle for freedom reflecting the lofty
ideals and ideals and values that inspired that historic crusade; and it
enshrines the cherished goals and objectives that We, the People of India have
set for ourselves.
Our
Constitution is not a mere declaratory document, it sets out a process of
shaping human values, relations and material conditions of life. The
Constitution of India was framed not merely for the democratic governance of
the country but more significantly to promote nation-building process, unlike
in the case of many democracies where the Constitution provided merely for the
institutions and process of governance. In the words of Bhagwati, J. speaking
for "Constituion is not a mere pedantic legal text, but it embodies
certain values, cherished principles, spiritual norms, and recognizes and
upholds the dignity of man. It accepts the individual as a focal point of
development and regards his material, moral, spiritual development, as a chief
concern of governance." In the light of experience gained during half-a-
century, attempts are being made to fine-tune the Constitution to the process
of social transformation it has ignited and to be more responsive to the needs
of the day.
A
Committee to review the working of the Constitution has now been setup. It is
often being debated whether the Constitution, amended 80 times so far is
inadequate, or the persons who operated the Constitution have failed us.
The
bedrock of the Indian Constitution rests on independent judiciary with powers
of Judicial Review.
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