minal 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 ST No 9 of 1955
D R Prem for the appellant
K B Asthana and C P Lal for the respondent
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 pm
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 exhibit 20 with blood stains a dhoti exhibit 3 a box exhibit 9 a balti exhibit I a chadar exhibit 2 a gunny bag exhibit 13 and a jhola exhibit 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 exhibit 3 the box exhibit 9 the balti exhibit 1 the chadar exhibit 2 the gunny bag exhibit 13 and the jhola exhibit 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 exhibit 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 am 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 exhibit 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 commencemeilt 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 vs Sheikh Neamatulla1 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 vs Sami and Another2 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 any one 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 vs Chintamoni Shahu3 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 191317 CWN 1077
2 Mad
a AIR 1930 Cal
379 197 connected with the theft this particular fact of pre sumption 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 Venkataswamy1 as well as in the case of Ramprashad Makundram Rajput vs The Crown2
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 am 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 his story
Reliance was placed on the statement of Iftikhar Ahmad PW 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 AIR 1950 Mad 309
2 AIR 1949 Nag
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 blood stained 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 am for the deceased to return
The cart had started from Jarwal Road Station at about 10 pm
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 am 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 parti cipated 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


Summary:
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 pm
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 section 342 of the Code of Criminal Procedure stated that the deceased asked him to take his goods in the cart at about 10 pm 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 am 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 the kothri
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 vs Sheikh Neamatulla 1913  Queen Empress vs Sami and Another 1890 ILR 13 Mad 426 Emperor vs Chintamoni Shahu AIR  In re Guli Venkataswami AIR 1950 Mad 309 and Bamprashad Mukundram Rajput vs The Crown AIR  referred to