Case: Sanjay @ Kaka etc. etc Vs. The State

1. In the broad daylight and in the capital city of the country, the apellants and one Mohabat Ali, the four young desperados entered the premises No. F-8/5, Model Town, Part-II, Delhi to commit robbery, inconsequence of which Smt. Sheela was stabbed to death. The occurrence which took place on 20th June, 1990 is not the isolated act so far as the law and order and life and liberty of the people of the capital city and other parts of the country are concerned. By killing the deceased and subjecting Amarjeet Sharma to the threat of being killed by pointing revolver at him, the resistance of the commission of the intended crime was immobilised. After registration of the First Information Report and completion of the investigation, charge-sheet was filed against the accused persons under Sections 394, 397, 398, 342, 120B and 411, IPC besides Sections 25,27, 54 and 59 of the Arms Act and Section 5 of the Terrorist and Disruptive Activities (Prevention) Amendment Act, 1993 (hereinafter referred to as "TADA (P) Act").2. The Trial Court found appellant Vinod guilty of offences under Section 392 / 34, 397 and 302, IPC, besides Section 5 of the TADA (P) Act. He was sentenced to imprisonment for life and a fine of Rs. 2,000/- for the offence under Section 302, IPC, for seven years rigorous imprisonment for the offence under Sections 397, 392/34 and was also sentenced to rigorous imprisonment for five years and a fine of Rs. 2000/- each for the commission of offence under Section 5 of TADA (P) Act. Accused Mohabat Ali was convicted for the offences under Sections 392/34, IPC and Section 5 of the TADA (P) Act and was sentenced to rigorous imprisonment for five years and a fine of Rs. 2,000/- on each count. Appellants Nawabuddin and Sanjay Moley were sentenced to five years rigorous imprisonment and a fine of Rs. 2,000/- each for the commission of offence under Sections 392/34, IPC. Various sentences were also imposed in case of default of payment of fine. All the sentences were directed to un concurrently.3. Aggrieved by the judgment of the Designated Trial Court, the appellants have filed the present appeals contending that no case is made out against anyone of them and the Trial Court committed a mistake of law for basing its findings and conviction on the evidence which was not only shaky and unreliable but also inadmissible in evidence under the relevant provisions of law.

Court's reasoning:
28. A faint attempt was made by the Counsel for the appellants to persuade us to hold that the recoveries were doubtful because according to them prosecution had failed to ascertain the details of the stolen property and get it identified only after the recovery. Mrs. Ranu Moley, PW 17 who is the daughter of the deceased has deposed in the Court that she was called in the police station on 21st June, 1990 and enquired about the articles missing from her house. After checking she found missing 8 gold bangles, 6 other gold bangles, 6 pairs of ear-rings of gold, 6 pairs of tops, three pairs of ear-jhumkas, one Mangalsutra, one ginni, two golden rings, two idols of Lord Ganesha and Goddess Lakshmi made of silver, the plates of silver on which Air India was engraved, one lady set of silver, 8 wrist watches, 4 cameras, 1 electric shaver, 5 sarees, 20 suit-pieces, 6 gents suit-pieces, stitched shirt, two big bags of leather and one small bag. She has again stated that after the recovery of the property from the accused persons she identified the articles and found them to be belonging to her mother, which were stolen on the day of her murder. We do not agree with the Counsel for the appellants that the recovery of the articles had preceded the making of the disclosure statements.29.Learned Counsel appearing for the appellants Sanjay and Nawabuddin then submitted that even if the disclosure statements and, the recoveries are admitted, their clients can at the most be convicted for the commission of offence under Section 411, IPC.We do not agree with this submission as well in view of the fact that the murder and robbery in the instant case were part of the same transaction and the accused from whom the recoveries were made, consequent upon their disclosure statements, did not offer any explanation regarding their possession of the stolen properties. Drawing a presumption under Section 114 of the Evidence Act it can safely be held that the aforesaid two accused persons were atleast guilty of the offence of robbery punishable under Section 392, IPC on the assumption that they were not armed with any deadly weapon and not aware of Vinod appellant being armed with dagger. The Trial Court was, therefore, justified in holding that "the circumstances enumerated above together complete the chain of circumstances to prove the guilt of the accused persons insofar as the offence of robbery is concerned. In fact the disclosure statements of the accused persons and huge recoveries from them at their instance by itself is a sufficient circumstance on the very next day of the incident which clearly goes to show that the accused persons had joined hands to commit the offence of robbery". The Court also rightly held that, "Recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. (See Baijurv.State of Madhya Pradesh ,AIR 1978 SC Page 522). Also see Eara Bhadrappas case (supra). In the case of the GulabChandv. State of Madhya Pradesh,1975 SCC page 574, quoted its earlier decision in Tulsi Rams case with approval that the presumption permitted to be drawn under Illustration 114(a) of the Evidence Act has to be read along with "important time factor. If the ornaments in possession of the deceased are round in possession of the person soon after the murder, a presumption of killing maybe permitted. In the said case before the Supreme Court ornaments belonging to the deceased had been sold by accused Gulab Chand of that case and within 3-4 days the recovery of the stolen articles was made from his house at the instance of the accused. The Court held that, such close proximity of the recovery which has been indicated by the Court as ‘important timeshould not be lost sight of". On the basis of the evidence led in the case and keeping in view the whole conspectus of the case the Trial Court rightly concluded that accused Vinod in the process of committing robbery used deadly weapon, namely, dagger and killing Smt. Sheela while the other three accused persons have participated in the commission of crime of robbery and actually removed huge articles including jewellery from the house of the deceased.30. Mr. Ramsubramaniam, Advocate, appearing as Amicus Curiae for accused Vinod submitted that as the prosecution has failed to prove the origin of blood found on the pant and shirt of Vinod appellant, he could not be held guilty of the offence of murder. Repelling such contention this Court in State of Rajasthan v.Teja Ram & Ors.., JT 1992 (2) SC 279, heldof the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal Court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.Following Teja Rams case this Court again, in Gura Singhv. State of Rajasthan, JT 2000 (Supp.) 3 SC 528=VIII (2000) SLT 656, helddo not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the origin of the blood, the Trial Court could not have convicted the accused. The Serologist and Chemical Examiner has found it that the Chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The Trial Court as well as the High Court were/ therefore, justified in holding this circumstance as proved beyond doubt against the