GULABCHAND A v.

STATE OF MADHYA PRADESH

MARCH 28, 1995

(G.N. RAY AND FA1ZAN UDDIN, JJ.] B

Indian Penal Code, 1860 :

Sections 302, 394, 397-Murder and robbery-Accused-ATTest of-Recovery of articles of deceased from the house of accused-Accused not C affluent enough to possess. omaments--Sale of ornaments by accused immediately on the next day of murdo-Murder and robbery held integral parts of the same transaction-Presumption under section 114(a) of the Evidence Act, 1872 held applicable--Omviction by High Court held valid.

Indian Evidence Act, 1872 :

Section 114-lllustl'ation( a )--Possession of stolen goods-Presumption as to guilt-Applicability of

The appellant along with other co-accused was prosecuted under sections 120-B, 302, 394 and 397 of the India Penal Code i.e. for entering E into a criminal conspiracy and pursuant thereto having committed the murder of K while committing robbery of her ornaments. The Trial Court

(i) acquitted all the accused under section 120-B; (ii) acquitted the appellants under section 302, 394 and 397 but convicted him under section 380.

State preferred appeals before the High Court which (i) dismissed the F appeal against acquittal of the accused persons; and (ii) convicted the appellant under sections 302, 394 and 397 and sentenced him to life under section 302 and for seven years in respect of other offences. From the evidence it was established that (i) soon after the appellant's arrest articles belonging to the deceased were recovered by police from the appellant's G house; (ii) Next day to the murder the appellant sold some of the ornaments to PW 12.

Against his conviction and sentence the appellant preferred appeal before this Court contending that the possession of stolen articles ipso facto does not warrant a conclusion that such stolen articles were received H 27

A only by committing robbery and murder; for possession of stolen articles, no conviction can be based under sections 302, 394 and 397 of the Indian Penal Code.

Dismissing the appeal, this Court

B HELD : 1. 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. In the instant case, it has been C established that immediately on the next day of the murder, the appellant sold some of the ornaments belonging to the deceased and within 3-4 days, the recovery of the said stolen articles was made from his house, at the instance of the accused. Such close proximity of the recovery should not be lost sight of in deciding the present case. [31-F, 32-C-D]

2. It has been rightly held by the High Court that the accused was not affiuent enough t~ possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery, a reasonable E inference of the commission of the said offence can be drawn against the appellant Excepting an assertion that the ornaments belonged to the family of the accused which claim bas been rightly discarded, no plausible explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts F of this case the 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. Therefore, there is no reason to G interfere with the impugned decision of the High Court. [32-G-H, 33-A-B]

Santhanakrishnan v. State of Rajasthan, AIR (1956) S.C. 54, held inapplicable.

Tulsi Ram v. State, AIR (1954) S.C. 1 and Earabharappa v. State of H Kamataka, [1983] 2 S.C.C. 330, relied on.

,,_

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GULAB CHAND v. STA TE 29

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A 140 and 140A of 1984.

From the Judgment and Order dated 29.11.83 of the Madhya Pradesh High Court ill Crl. A. No. 327 and 326 of 1980.

Amtiaz Ahmed, A.C. for the Appellant

U manath Singh for the Respondent.

The following Order of the Court was delivered :

This appeal is directed against the judgment of the Division Bench C of Madhya Pradesh High Court at Jabalpur dated 29th November, 1985 in Criminal Appeals 326 and 327 of 1980. Criminal Appeal No. 326/80 was preferred by the State of Madhya Pradesh against the accused Guiab Chand and 7 other accused. Criminal Appeal No. 327/80 was preferred by the State of Madhya Pradesh against Guiab Chand and Durga. It may be D stated that both the appeals were preferred against the Judgment dated 7th December, 1979 passed by the learned Sessions Judge, Jabalpur in Sessions Trial No. 147n9. In the said Sessions Trial, Guiab Chand was accused No. 1 and Durga was accused No. 3. Guiab Chand, Durga a:id other six persons stood charged under Section 120-B of the Indian Penal E Code for entering into a criminal conspiracy in order to commit murder of Kapuriyabai and robbery of her ornaments on or about 23rd April, 1979 in the village Bhakarwara. The accused Guiab Chand, Durga and Parsoo were charged under Section 302, 394 and 397 of Indian Penal Code for having committed the murder of Kapuriyabai in committing the robbery on the intervening night between 23-24 April, 1979. The learned Sessions F Judge, however, acquitted all the aforesaid persons under Section 120-B of the Indian Penal Code and the accused Guiab Chand and Parsoo were also acquitted of the offences punishable under Section 302, 394 and 397 of Indian Penal Code. But the trial court convicted Guiab Chand and Durga for the offence punishable under Section 380 of the Indian Penal Code and G they were sentenced to suffer rigorous imprisonment for 3 years.

As aforesaid, the State of Madhya Pradesh preferred the aforesaid appeals before the Madhya Pradesh High Court and by the irnpunged judgment of the Madhya Pradesh High Court allowed both the said appeals in part and convicted the accused Guiab Chand under Section 302, 394 H

A and 397 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for life under Section 302 and rigorous imprisonment for 7 years for the other offences. It was directed that both the sentences would run concurrently. So far as the accused Durga was concerned, his conviction under Section 380 of Indian Penal Code was set aside and he was

B convicted under Section 411 of Indian Pe11al Code. But the sentence of 3 years' rigorous imprisonment was maintained with a fine of Rs. 2,000, in default to suffer further imprisonment for 9 months. The appeal by the State against all the other accused directed against their acquittal under Section 120B of Irrdian Penal Code was dismissed by the High Court and the appeal against acquittal of Parsoo and Durga for the offences punish- C able under Sections 302, 394 and Section 397 of Indian Penal Code was also dismissed. Against the order of conviction and sentence passed by the High Court, accused No.1 Guiab Chand has preferred the instant appeals No. 140-140N84.

D The learned counsel Mr. Amtiaz Ahmed, appearing as lll!licus curie for the appellant Guiab Chand has submitted that there is no evidence worthy of credence to establish the crime of murder and daecoity by Guiab Chand for which his conviction under Section 302, 392 and 397 of the Indian Penal Code is warranted. In the absence of any convincing evidence, the learned Sessions Judge had acquitted the appellant of the charge under E Sections 302, 394 and 397 of the Indian Penal Code. He has submitted that appellant's case was that the ornaments stated to have been recovered either from his possession or from the shop, belonged to him and the members of his family. Unfortunately, such case has not been accepted either by the learned trial court or by the High Court. But for possession F of such ornaments even if stolen, no conviction under Section 320, 394 and 397 of the Indian Penal Code can be based. The learned Sessions Judge was fully justified in convicting the appellant under Section 380 of the Indian Penal Code and there was no occasion to interfere with the well reasoned judgment of the learned Sessions Judge. The learned counsel for the appellant has also submitted that no motive for dacoity or murdering G the deceased has been established by leading convincing evidence. The decision rendered by the High Court lies more on surmise than on facts proved beyond reasonable doubt. It has been submitted that in a case for conviction on account of circumstantial evidence, the evidence must be very clear and specific so that the entire chain of events justifying complicity of H the accused is clearly established to such an extent that irresistible con-

A this court by indicating that suspicion should not take the place of proof.

It appears that the High Court in passing the impugned judgment has taken note of the said decision of this Court. But as rightly indicated by the High Court the said decision is not applicable in the facts and circumstances of the present case. The High Court has placed reliance on the other decision B of this Court rendered in Tulsiram v. State, AIR (1954) SC 1. In the said decision, this court has indicated that the presumption permitted to be drawn under Section 114, illustration (a) of the Evidence Act has to be read along with the 'important time factor'. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if Several months had expired C in the interval, the presumption cannot be pet mitted to be drawn having regard to the circumstances of the case. In the instant case, it has been established that immediately on the next day of the murder, the accused Guiab Chand had sold some of the ornaments belonging to the deceased and within 3-4 days, the recovery of the said stolen articles was made from D his house, at the instance of the accused Such close proximity of the recovery, which has been indicated by this Court as an "important time factor", should not be lost sight 0f in deciding the present case. It may be indicated here that in a later decision of this Court in Earabharappa v. State of Kamataka, (1983] 2 SCC 330, this Court has held that the nature of the E presumption and illustration (a) under. Section 114 of the Evidence Act must depend upon the nature of evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and . each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the preslll'nption of guilt varies according as the stolen article is or is not calculated to pass readily from F hand to hand. If the stolen articles where such as were 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 absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments G and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged H to the famiiy of the accused which claim has been rightly discarded, no

GULABCHANDv. STATE 33

plausible explanation for lawful possession of the said ornaments immedi- A ately after the murder has been given by the accused. 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. We therefore do not find any reason to interfere B with the impugned decision of the High Court and accordingly this appeal fails and is dismissed. '

The appellant has been released on bail. He should be taken into custody to undergo the sentence.

T.N.A.

Appeal dismissed. c