[TH zv Resgondent State of Chhattlsgarh Through PS- ‘ Sanya Dust Ralgarh (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE Cr.P.C.) Mr H S Ahluwalla counsel for the appellant ‘ Mrs Madhumsha Smgh Panel Lawyer for the State/respondent JUDGMENT (Passed on 8‘“ December, 201 1) 'T.P.Sharme, J.:- 1. Challenge in this appeal is to the judgment of conviction'& order of sentence dated 25.10.2008 passed by the Additional SessionsJudge, Sarangarh Distt Raigarh in Sessions Trial No 7/08 whereby & whereunder the Additional Sessmns Judge after holding the appellant guilty for commisswn of murder after committing robbery conVicted him under Sections 302 and 392 of the l.P.C. and sentenced to undergo imprisonment for life & fine of Rs.10,000/— and R.l. for ten years & fine of . Rs.5,000/-, in default of payment of fine to further undergo R.l. for six I months. The trial Court has also directed for payment of compensation A of Rs.1o,000/- to husband o‘f the deceased. 1 V 2. Conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality. ‘ 3 4 DIVISION BENCH, ‘ Coram HON BLE MRTP SHARMA& .- 1 7 HON BLE MR R N CHANDRAKAR JJ w > : . I ~ =CriminaIAggeaIN§;1‘922 ofzoosli AQgeI‘Iant»hx¥ Surendra Kuhiar Bhoye S/o Chltrasen (In Jail).u::: 4 Bhoye Sourra Aged about 28 years ':» R/o-Vlllage Jaipur Tora PS Sanya» >' Dlst-Ralgarh(CG) ‘ I Versus . As per case of the prosecution, on the fateful day of 15.4.2007 at about 6 a m unfortunate deceased $ushila Bai wife of Chak‘radhar (PW 4) went for ease towards fietd at vmage Jaipur she was wearing golden necklace and nose pm she dld not come back to her house her husband and other relatives searched her her Injured body was found m the freld. Nose pm and golden necklace were mlssmg Merg was recorded vide Ex P/1 Finally FIR was registered Vlde Ex P/24 lnvestugatrng officer left for scene of occurrence and after summoning the wrtnessesvrde EXP/5A, prepared .Inquest of the body of the deceased vide Ex,.P/6. Spot map was-prepared by‘ri'nvestigating officer 1 vide EXP/3. Dead body was sent for autopsy to‘Community' Health Centre, Baramkela vide EXP/17A. Dr.Smt.J.Choudhari (PW—10) conducted autopsy vide EXP/1 8 and found marks like necklace over the neck, dried blood found over the nostrils, tongue beaten by teethgnails cyanosed, cyanoses over neck and sign of inflammation. Cause of death was asphyxia as a result of strangulation and death was homicidal in nature. During course of investigation, on 5.10.2007 after lapse of about six months accused was taken into custody, he made disclosure statement of golden necklace and nose pin vide EXP/12:: Water has been taken out from well and necklace was'r'ecove'red at the instance of the appellant vide Ex.P/13, which Was identified by Chakradhar (PW-4), husband of the deceased and other relatives; Map was prepared vide EXP/15. . Statements of the witnesses were recorded under Section 161 of the‘ Code of Criminal Procedure, 1973 (for short "Code’) and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Sarangarh, who in turn committed the case to the Court of Sessions, Raigarh, from where the Additional Sessions Judge, Sarangarh has received the case on transfer for trial. . ‘ln order to prove the guilt of the accused/appellant, the prosecution has '7 examined as many as fourteen witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code, in ' ‘ which he denied the circumstances appearing against him and pleaded , i innocence and false implication in the crime in question. v, Af VIdI nlt rin e pties e dlt|o . ter prOng oppoduy of heag to th ar learnd Adnal SesIns Judg Srngarh coted & e te appellant s aforemened . e ve heard earned counsel for the pe pered the udgment uged d record of the l Cour ar h y a ha V e e h ft n . Lened counselafor‘te appellant vehementl rgued tt this is a case of blind murder and robbery. Disclosure statment of the appellant has been recorded after laps of six monts ohe icident and recovery has been made frm 'opekn well, whic was ot-ithin the exclusive possesion of the appellant. The prosecution has not collected other evidence to connect the appellant in crime in question. On the basis of disclosur statement and recovery, althouh same has not been proved b the prosecution, the only inference would be possible that the appella was found in possession of articles which have been removed from body f the ceased, the appellant may be convicted under Seion 44 o he l.P.C. . O the other h, earned Panel Lawyer for the State/respondent opposed he apeal and argued that the aellant is resident of Tra (Jaipur), e was found in possession of costly gold aticle whh was subject matter o the offence. After commission of robbery nd'mer articles have been aken by the person wh has committed robry and murder of the deceased. Possessio o tcles of the appellant is strng ‘ cirumstance against him and uls it is explained, thevonly presumption would be possible hat the appellant has committed robbery of the articles and murder of the deceased. Learned counsel ' further argued that the Additiona Sessions Judge has rightly convicted and sentenced the appellant as aforementioned. 10.ln order to appreciate the arguments advanced on behalf of the parties, ) l we have examined the evidence adduced on behalf of the prosecution. ,l/I ‘_ 11.ln the present case, homicidal death as a result of fatal injuries found L' l over the neck i.e. injury of throttling of deceased Sushila Bai has not _‘, been substantially disputed on behalf of the appellant, even otherwise, it m So e aa nvuc sentencd h a tuon W ha l ams us J Impn an trla t o h nw s e g y nt o de ct 0 f t n and l t p pp e h r ic f aurd, t o be n f ari o c nes t l l i ,, is established by the evidence of Dr.Smt.J.Choudhari (PW-10) and autopsy report EXP/18 that death of deceased Sushila' Bai was homicidal in nature. 12.'As regards the complicity of the appellant in crime in question, inithe present case-robbery of golden articles and murder of Sushila Bai have not been substantially disputed on behalf of the appellant, same is also established by the evidence of Chakradhar (PW-4), husband of the deceased, who has specifically depOSed that‘on the date of incidenthis wife Sushila Bai went for ease towards field, but She did not come back, then they searched, injured body of the deceased was lying ih the field. Golden necklace and nose pin which she was wearing were missing, somebody has committed robbery, they were taking injured body of Sushila Bai to their house, during the course ofjourney she died. As per l para 4 of evidence of Ramsingh Thakur (PW-5), memorandum statement of the appellant was recorded vide EX.P/11 and the appellant has informed that necklace has been kept in well, water of the well was taken out and necklace was recovered from well vide EXP/12. Chetan Vishi (PW-6) has also corroborated the evidence of Ramsingh Thakur (PW-5), but in para 6 of his cross-examination, he has deposed that police has not interrogated the appellant. InVestigating ofhcer Kishore ‘ Kerketta (PW-14), who has recorded memorandum, has specifically deposed that on interrogation the appellant made disclosure statement of golden necklace and nose pin and stated that same have been kept in well, then water was taken out from well, golden necklace was t recovered from well but nose pin was not found in well. Memorandum and seizure were recorded vide Exs.P/11 and P/12. Gopinath Pradhan (PW—7) has also corroborated the aforesaid fact. 13.Defence has cross-examined these witnesses at length. There are some contradictions, omissions and discrepancies relating to preparation of documents Exs.P/10 to P/13, but they have specifically admitted and deposed that the appellant has made disclosure statement of golden necklace and nose pin and golden necklace has been recovered at the instance of the appellant. 14.Ex.P/15 map reveals that alleged well is situated inside kitchen garden 0f the appellant and his family and they are user of the we“ for watering to their kitchen garden. Well is not for common ‘use by other viiiagers. The present appellant is agriculturist. Golden necklace has been recovered at the instance of the appellant from inside the well after taking out water from the well. Article recovered from the well is not visible, even it was not possible for any person to presume that some articles would be inside the well. This is not the case in which on account of some enmity Or suspicion or othen/vise the appellant has been implicated in crime in question. The appellantis also resident of same village. As per para 4 of evidence of Kishore Kerketta (PW-14), cost of article was about Rs.10,000/—. Costlygolden item has been recovered at the instance of the appellant within his possession. The appellant has not offered any explanation that how he came to know about the fact that golden necklace is inside the well and who has thrown it. Alleged golden necklace is costly item not easily available in the possession of the villagers. 15.]ncident of robbery and murder took place on 15.4.2007 and recovery has been made on 5.10.2007 after about 5 months and 20 days of the incident. As per Illustration (a) to Section 114 of the Evidence Act, if the person found in possession of stolen goods “soon after the theft" may be presumed by the court to be either the thief or one who has received the goods knowing them to be stolen, unlesshe can account for his possessmn. i 16.While dealing with the meaning of word soon after theft and time factor between the date of offence and recovery of the property in the matter of Ganesh Lal v. State of Rajasthan‘ the Supreme Court has held that while raising such presumption the time factor between the date of offence and recovery of the stolen property from the possession of the accused would playa significant role. Precaution has to be taken that //'\ii 1 (2002) 1 scc 731 the accused guilty of not only having committed robbery but also murder of the deceased. The presumption would founded on recovery of stolen property belonging to the deceased. The Supreme'Court has observed in para 15 as under:- “15.,A review of several decisions of this CoUrt, some of which we have citied hereinabove, lead‘s to the following statement of law Recovery of stolen property from the possessron of the accused enables a presumption as to commISSIon of offence other than theft or dac0ity being drawn against the accused so as to hold him a perpetrator of such other offences on the following tests being satisned: (i) the offence of criminal misappropriation, theft or dacoity relating to the articles recovered from the posseSSIon of the accused and such other offences can reasonably be held to have been committed as an Integral part of the same transaction (II) the time-lag between the date of commission of the offence and the date of recovery of articles from the accused is not so wide as to snap the link between recovery and commission of the offence (iii) availability of some piece of incriminating eVIdence or Circumstance other than mere recovery of the articles connecting the accused With such other offence (iv) caution on the part of the court to see that suspicion, however strong, does not take the place of proof. In such cases the explanation offered by the accused for his possession of the stolen property assumes significance. Ordinarily the purpose of Section 313 of the Code of Criminal Procedure is to afford the accused an opportunity of offering an explanation of incriminating circumstances appearing in possession of evidence against him. It is not necessary for the accused to speak and explain. However, when the case rests on circumstantial evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an incriminating circumstance by itself would yet enable an inference being raised against him because the fact being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do." 17.While dealing with the question of interpretation of word “soon after the theft” in the matter of Alisher v State of Uttar Pradeshz the Supreme Court has observed in para 5 as under:- “5 ......... Suppose the Pitt Dimond or the Crown Jewels were stolen, and after the lapse of one or two years, found in the possession of a person in the comparatively humble station of life, who refused to give any account of where he got them, would there be anything harsh or violent in ZAIR 1974 sc 1830 presuming that he had not come by them hones‘tly? But suppose the goods lost were merely a pair of shoes, or a case such as in his station of life it would be natural and proper for the prisoner to wear, and that these were not traced into his possession until after a few months from the time of the theft, the injustice of making so violent a presumption as to deem him the thief becomes obvious at once.” 18min the present case, murder and robbery committed as an integral part of same transaction and valuable golden article has been recovered from the appellant who has not offered any explanation. While dealing with the same question i.e. offence forming part of same transaction and time gap between commission of offence and recovery of the property in the matter of Earabhadrappa alias Krishnappa v. State of Karnataka3 the Supreme Court has held that recovery of such article after lapse of time is sufficient to justify the presumption that accused in whose possession valuable article has been recovered has committed murder and robbery. In that matter the Supreme Court has considered time gap of one year as possession soon after the commission of offence. Para 13 of the said judgment reads as under:- “13. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) of Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which from part of the same transaction. The prosecution has led, sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of PW 3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by PW 26 at village Hosahaily on March 29, 1980, taken with the circumstance that he made the statement Ex.P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself 3 (1 983) 2 SCC 330 is an incriminating circumstance. The nature of presumption under lllustration (a) to Section 114 must depend upon the nature of the evidence adduced. No fixed time Iimit can be laid down to determine whether possession is recent or othenNise and 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 where not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been abscdnding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property." 19.While dealing with 'the question of presumption under Illustration (a) to Section 114 of the Evidence Act in case of murder, theft and rape committed as an integral parts of the same transaction in the matter of Ganesh Lal (supra) the Supreme Court has held that aforesaid recovery is sufficient for making presumption that the person has committed rape, murder and theft and court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Paras 12 and 13 of the said judgment read as under:- “12. Section 114 of the Evidence Act provides that the court may presume the existence 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. illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather. than of law. ln the facts and circumstances of a given case relying on the strength of the presumption the court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where the offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to the deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offense forming part of that transaction. 13. In Baiju v. State of M.P.4, Earabhadrappa (supra), Gulab Chand v. State of M.P.5, Mukund v. State of M.P.6 and A. Devendran v. State of T.N.7 para 20, murder and robbery were proved to have been integral'parts of one and the same transaction and the presumption arising under lllustration (a) toSection 114 of the Evidence Act was applied for holding the accused guilty of not only having committed robbery but also murder of the deceased, The presumption was founded on recovery of stolen property belonging to the deceased." 20.ln the present case, valuable articles have been recovered at the instance of the appellant on the basis of disclosure of facts of the appellant and in terms of Section 27 of the Evidence Act there is time gap between commission of offence and recovery of the property but there is no time gap between recovery and his arrest. The-appellant has taken into custody and after recovery he has been arrested vide EXP/27. 7 .ln the light of the aforesaid propositions of law and presumption available under illustration (a) to Section 114 of the Evidence Act, the only inference would be possible that the appellant has committed murder of Sushila Bai and has also committed robbery of valuable articles. 22.After appreciating the evidence available on record, the Additional Sessions Judge, Sarangarh has convicted and sentenced the appellant as aforementioned. 23.0n close scrutiny, we do not find any illegality or infirmity in the judgment impugned warranting interference. 24.Consequently, the appeal being without substanCe is liable to be dismissed and it is hereby dismissed. Sdl- ":34, Sdl— r T. P. Sharma “L /, Cl ’ R.N. Chandrakar 5 Judge Bl- 4 (1978) 1 scc 588 5(1995) 3 scc 574 . 6(1997) 10 scc 13o 7 (1997) 11 scc 720