RAJ KUMAR@ RAJU versus STATE (NCT OF DELHI)
[2017] 1 S.C.R. 462, Supreme Court of India, 2017
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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[2017] I S.C.R. 462 
RAJ KUMAR@ RAJU 
v. 
STATE (NCT OF DELHI) 
(Criminal Appeal No.1460 of201 I) 
JANUARY 20, 2017 
(RANJAN GOGOi AND ASHOK BHUSHAN, JJ.] 
Penal Code, 1860: s.302 rlw s.34, s.411 - Conviction based 
on circumstantial evidence - Last seen theory - On the fateful 
afternocn, the deceased was found dead and her ornaments were 
missing -Appellant and other accused were present in the house of 
the deceased in the morning - Prosecution witnesses deposed that 
on the same day, appellant and other accused were seen moving 
around in the neighbourhood looking perplexed - Appellant was 
apprehended after few days and ornaments belonging to deceased 
were recovered from him - Conviction of appellant uls.302 and 392 -
Held: The circumstance that the accused persons were seen in the 
vicinity of the neighbourhood of the crime little before the same 
was committed, by itself, would not lead to any condusion consistent 
with the guilt of the accused - The said circumstance, if coupled 
with the recovery of the ornaments of the deceased from the 
possession of the accused, at best, create a highly suspicious 
situation; but beyond a strong suspicion nothing else in the absence 
of any o~her circumstances to suggest the involvement of the accused 
in the offences alleged - Even with the aid of the presumption u/s.114 
of the Evidence Act, the charge of murder cannot be brought home 
unless there is some evidence to show that the robbery and the 
murder
occurred at the same time i.e. in the course of the same 
transaction - Courts below erred in holding the accused guilty for 
the said offence - However, on the basis of the presumption 
permissible under Illustration (a) of s.114 of the Evidence Act, 
conviction of appellallf uls.392 is well founded - Conviction uls.392 
is upheld while conviction u/s.302 is set aside - Evidence Act, 1872 -
s.114, Illustration (a). 
Partly allowing the appeal, the Court 
HELD: 1.1 There are two material circumstances which 
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were proved by the prosecution. Firstly, that in the night prior to 
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RAJ KUMAR @ RAJU v. STATE (NCT OF DELHI) 
the incident i.e. on 11'" September, 1991, the ·accused were 
present in the house; and secondly that on 16" September, 1991 
from the possession of the accused persons recovery of gold 
ornaments was made which belonged to the deceased. Such 
possession was not uplained by the accusecj. Even if the court 
is to accept the evidence of P.W.12 that in the morning of the day 
of the incident the witness had seen the accused in the 
neighbourhood in a perplexed state, notwithstanding the 
contradictions and inconsistencies in the said evidence at the 
highest, another circumstance could be added to the above two, 
namely, that the accused persons were seen in the neighbourhood 
in the morning of the incident. In this regard, P.W.S and P.W.7 
deposed that they had last seen the accused person in the early 
morning of the date of the occurrence and that they were going 
away to some other place. Even if the evidence of P. W.12 is to· be 
accepted, all it can be said is that the evidence of the said witness 
read with the evidence of P. W.S and P. W. 7 disclose that t-he 
accused persons were seen in the vicinity of the neighbourhood 
of the crime little before the same was committed. By itself, the 
said circumstance cannot lead to any conclusion consistent with 
the guilt of the accused. [Paras 9, 11) [466-E-F; 467-F-G) 
1.2 The said circumstance, if coupled with the recovery of 
the ornaments of the deceased from the possession of the
accused, 
at best, create a highly suspicious situation; but beyond a strong 
suspicion nothing else would folio~ in the absence of any other 
circumstance(s) which could suggest the involvement of the 
accused in the offence/offences alleged. Even with the aid of tbe 
presumption under Section 114 of the Evidence Act, the charge 
of murder cannot be brought home unless there is some evidence 
to show that the robbery and the murder occurred at the same 
time i.e. in the course of the same transaction. No such evidence 
is forthcoming. However, on the basis of the presumption 
permissible under Illustration (a) of Section 114 of the Evidence 
Act, it bas to be held that the conviction of the accused appellant 
und<;r Section 392 IPC is well founded. Consequently, the 
prosecution failed to bring home the charge under Section 302 
IPC against the accused and be is acquitted of .the said offen\!e. 
[Paras 12, 13) (467-G-H; 468-A-B, DJ 
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Sanwat Khan and Anr. v. State of Rajasthan AIR 1956 
SC 54 -
relied on. 
Case Law Reference · 
AIR 1956 SC 54 
relied on 
Para 10 
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
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1460of2011. 
From the Order dated 30.10.2009 by the High Court of Delhi in 
Criminal Appeal No. 645 of200l. 
· 
Ms. Sangeeta Kumar; Adv. for the Appellant. 
Y. ·p; Adnyaru, Sr. Adv., P. K. Dey, Ms. Sushma Verma, Ajay 
Kumar Singh, B. K. Prasad, Advs. for the Respondent. 
The Judgment of the Court was delivered by 
RANJAN GOGOi, J. 1. The accused appellant had been 
convicted by the learned trial Court for the offence punishable under 
Section 302 read with Section 34 IPC and has been sentenced to undergo 
rigorous imprisonment for life and a fine of Rs.2,000/-, in default, to 
suffer rigorous imprisonment for a period of two months more. He has 
also been convicted under Section 411 IPC and sentenced to undergo 
rigorous imprisonment for one year. Both the sentences were directed 
to run concurrently. In appeal, while the conviction under Section 302 
IPC has been maintained along with sentence imposed, the conviction 
under Section 411 IPC has been set aside. Instead, the accused appellant 
has been convicted for commission of offence punishable under Section 
392 IPC and sentenced to undergo rigorous imprisonment for one year 
for commission of the said offence. Aggrieved, this appeal has been 
filed. 
2. We have heard the
learned counsels for the parties. 
3. The entire case of the prosecution is based on circumstantial 
evidence. P. W.5 - Ombir Singh, the husband of the deceased in his 
deposition has stated that he resides with his wife, three children, his 
sister Raj Bala (P.W.9) and niece Sarvesh (P.W.21 ). Accused Raj Nirmal 
Gautam @Raju (since dee.eased) was a tenant in one of the two rooms 
in their house. On 11 'h September, 1991 at around 9 .00 p.m. accused Raj 
Nirmal Gautam along with the present appellant Raj Kumar and one
RAJ KUMAR@ RAJU v. STATE (NCT OF DELHI) 
[RANJAN GOGOi, J.] 
more person named Dharmender alias Babloo came to his hous,e and 
together they played a game of cards. After some time he went to his 
room and slept. Raj Nirmal, Raj Kumar (appellant herein) and 
Dharmender stayed in the room for the night and left early next morning 
at about 6.30 a.m. While leaving, accused Raj Nirmal told P.W. 5 that 
he wus going to his village and may not return for'the night. At around 
7.30 a.m., his sister Raj Bala (P.W.9) who used to reside with him, his 
niece Sarvesh and the children left, for school. He also left for his 
workplace at around 7.35 a.m. According to P.W. 5, at about 2.30 p.m. · 
he received a telephone call in his office informing him that his wife had 
met with an accident. He, therefore, reached home by 3 .30 p.m. and 
found the dead body of his wife. The almirah was found unlocked and 
all the goods therein lying scattered. A number of jewellery items including 
gold ornaments were found missing. 
4. The accused Raj Nirmal Gautam and Raj Kumar {appellant 
herein) were apprehended on 16'" September, 1991 when they were 
alighting from a bus. On their personal search, various jewellery items 
were recovered from them which were duly seized by seizure memos 
Ex.PW-14/C and Ex.PW-14/D. The jewellery items so recovered from 
the possession of the accused were identified by P.W.5 (Ombir Singh) 
to be belonging to his wife. The accused had no reasonable explanation 
to
offer for their possession of the jewellery items. They however claimed 
that they were not guilty. 
5. P.W. 21 - Sarvesh deposed that at around 10.15 a.m. she had 
come back to the house for lunch and at that time <hP, found the accused 
persons present in the house and were playing cards. Her aunt gave her 
lunch and after that she again left for school. When she returned at 1.00 
p.m. she saw her aunt Suman lying in the kitchen. P.W; 21 was, however, 
disbelieved by the learned trial Court as she was found to have falsely 
implicated accused Jagpal who has been acquitted by the learned trial 
court. 
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6. P.W.9- Raj Bala, sister of P.W.5, in her evidence had deposed 
that i.1 the night of 11.09.1991 the accused persons were in the room and 
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they had left early in the morning of the next day. She has further deposed 
that she is a teacher in the school and had accompanied P. W.2.I and the 
two children of P.W.5 to school in the morning at about 7.30 a.m. She 
has also deposed that' at about 12.00-12.30 p.m. she had sent the two 
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children of P. W.5 back home with an Aaya and on being informed by 
theAtzyc that her sister-in-law (deceased) was not available in the house, 
she e11me home to find her sister-in-law lying dead in the kitchen. 
7. P, W.12 - Dhani Ram had deposed that he had seen the accused 
persons moving around in th11 neighbourhood looking perplexed. An 
attempt was made to discredit the said witness in view of his further 
deposition t.hat he had seen the accused in police custody on J Jlh 
September, 1991 whereas, according to the prosecution; accused were 
arrested on 16"' September, 1991 when they were alighting from a bus. 
The said contention was negatived by the High Court on the ground that 
the aforesaid discrepancy is on account of wrong recapitulation and 
confusion over the specific dates. 
8. P. W. IS - Raj Kumar, a TSR driver, also deposed that he had 
occasion to take the three persons including appellant Raj Kumar in his 
TSR at about 11.00 a.m. on 12'" September, 1991 and in the course of 
their conversation he had overheard them discussing as to whether they 
should have killed "her" or not. P. W. was disbelieved by the High Court 
on !he grQund that the conversation attributed by him to the accused is 
opposed to normal human behavior and conduct. 
9. This is the sum total of the evidence on record. From the 
above, it transpires that there are two material circumstances which 
have be(;n proved by the
prosecution. Firstly, that in the night prior to 
the incident i.e. on 11'" September, 1991 the accused were present in the 
house; and secondly that on J 61h September, 1991 from the possession 
of the accused persons recovery of gold ornaments was made which 
belQDged to the. deceased. Such possession has not been explained by 
the accused. Even if the court is to accept the evidence of P. W.12 that 
in the morning of the day of the incidentthe witness had seen the accused 
in the r.eighbourhood in a perplexed state, notwithstanding the 
cootmdictions and inconsistencies in the said evidence as already noticed, 
at the highest, another circumstance could be added to the above two, 
· namely, that the accused persons were seen i.n the neighbourhood in the 
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morning of the incident. The question that. confronts the court is whether 
on the basis of the aforesaid circumstances the case of the prosecution 
can be taken to have been proved beyond all reasqnable doubts. 
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I 0. · Loamed counsel for the appellant would contend that the 
aforefll!id circumstances do not conclusively point to the involvement of
RAJ KUMAR@ RAJU v. STATE (NCT OF DELHI) 
467 
. (RANJAN GOGOi, J.] 
the accused appellant in the crime. The chain leading to the sole conclusion · A 
that it is the accused persons and nobody else who had committed the 
crime is not established by the three circumstances set forth above, 
even if all of such circumstances are assumed to be proved against the 
accured. Reliance has also been placed on the decision of this Court in 
the case of Sanwat Khan and Anr. vs. State of Rajasthan 1, wherein this 
Court had taken the view that recovery of ornaments of the deceased 
from the accused or production of the same by the accused in the course 
of investigation, howsoever suspicious, cannot be conclusive of the 
question of the accused having committed the offence. As per Illustration 
(a) to Section 114 of the Evidence Act, 1872 though recovery of the 
ornaments can lead to presumption that the accused had .committed 
robbery or received stolen property, unless there are circumstances to 
show that the theft/robbery and the murder took place in the same 
transaction, the accused would not be liable for the offence under Section 
302 !PC .. 
11. The facts in Sanwant Khan (supra) bear a striking resemblance 
to the facts that confront us in the present appeal. If the evidence of 
P. W.12 is to be discarded on the ground that such evidence is vague, 
(there is no mention of the date on which P.W.12 had seen the accused 
person in the neighbourhood and also as the s.aid testimony
runs counter 
to the prosecution case about arrest of the accused oil 16.09.1991) the 
last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a 
significant margin of time during which the crime could have been 
committed by somebody other than the accused. The said fact must go 
to the benefit of the accused. In this regard, it may be recollected that 
P. W.5 and P. W. 7 have deposed that they had last seen the accused 
person in the early morning of the date of the occurrence i.e. 12.09.1991 
and that they were going away to some other place. Even if the evidence 
'of P.W.12 is to be accepted, all it can be said is that the evidemle of the 
said witness read with the evidence of P. W.S and P. W. 7 disclose that 
the accused persons were seen in the vicinity of the neighbouthood of 
the crime little before the same wa:s committed, By itself,. the said 
circumstance cannot lead to any conclusion consistent with the guilt of 
the accused. 
12. The above circumstance, if coupled with the recovery or the 
ornaments of the deceased from the possession of the accused, at best, 
1 AIR 1956 SC 54 
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create a highly suspicious situation; but beyond a strong suspicion nothing 
else would follow in the absence of any other circumstance(s) which 
could suggest the involvement of the accused in the offence/offences 
alleged. Even with the aid of the presumption under Section 114 of the 
Evidence Act, the charge of murder cannot be brought home unless 
there is some evidence to show that the robbery and the murder occurred 
atthe same time i.e. in the course of the .same transaction. No such 
evipence is forthcoming. 
13. In view of What has been found above, we do not see as to 
how the charge against the accused/appellant under Section 302 JPC 
can be held to be pr.oved. The learned trial court as well as the High 
Court, therefore, seems to be erred in holding the accused guilty for the 
said offence. However, on the basis of the presumption permissible under 
Jllustration (a) of Section 114 of the Evidence Act, it has to be held that 
the conviction of the accused appellant under Section 392 IPC is well 
founded. Consequently, we hold that the prosecution has failed to bring 
home the. charge. under Section 302 IPC against the accused and he is 
acquitted of the said offe11ce. The conviction under Section 392 IPC is 
. upheld. As the accused appellant, who is presently in custody, had already 
served the sentence awarded to him under Section 392 IPC, we direct 
that h,e be set at liberty forthwith. 
14. The
appeal, consequently, is partly allowed in terms of the 
above.· 
· 
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Devika Oujral 
Appeal partly allowed. 
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