IMPORTANT POINT
The presumption of robbery can be drawn on the circumstantial evidence but it is not possible to draw any inference that the Murder was also committed by appellant. Thus conviction and sentence for offence under Section 302 IPC is set aside but conviction and sentence for offence under section 392 in maintained by the Apex Court.

Headnote:Indian Penal Code, 1860-Sections 302 and 392-Offences of Murder and Robbery-Evidence Act, 1872 -Section 114(a) - Presumption of possession of property which is subject matter of robbery-Appellant convicted for murder and Robbery on circumstantial evidence by Courts below-Appeals against to Supreme Court-Circumstantial evidence establishing recovery and possession of two gold rings and watch of deceased from appellant-But Evidence not connecting robbery with murder-Cause of death found to be drowning in a thodu-No external injury on body found-Possibility of a different incident about drowning not ruled out-What offence is made out against the appellant on the basis of the circumstantial evidence? (Robbery but not of Murder)-Appeals partly allowed-AIR 1978 SC 522 explained.
       Held : The possession of the articles which had been duly identified by the witnesses as belonging to the deceased were found in his possession within less than 24 hours of the incident. It would lead to inference under Section 114(a) of the Evidence Act that the appellant has himself committed the robbery, an offence punishable under Section 392 IPC. According to the statement of PWs 10, 12 and 13 deceased had been saying "take whatever you want leave me alone", shows that he must have been under some apprehension or threat thereof. (Para 7)
       But held : The presumption of robbery has been drawn by us as against the appellant in view of the fact that he was found in possession of looted property the next day at about 1.30 p.m. which could be said to be soon after the incident of robbery which may have taken place around 9.30 p.m. the previous day but thereafter drowning of the deceased any time before his body was recovered on 30.6.95 cannot be linked with robbery. It may though be well before the body was recovered since decomposition had set in but the fact that body does not bear any mark of external or internal injury, the death by mere drowning does not provide any link with the robbery and the death of the deceased. It is difficult to guess in what manner and in what circumstances the deceased may have drowned after the incident of robbery may have taken place. There may be possibility of a different incident having taken place resulting in drowning of the deceased. It is not a circumstance which may lead to irresistible inference that the appellant and none else was responsible for drowning of the deceased. The drowning does not appear to be direct or indirect result of the incident of robbery in which the deceased was deprived of his valuables. It cannot be said that it is a circumstance which is wholly incompetible with the innocence of the appellant so far charge of murder is concerned. We therefore feel that it would not be possible to draw any inference that the murder was also committed by the appellant. (Para 8)
       Consequently held : In view of the discussion held above we partly allow the appeals and set aside the conviction and sentence of the appellant for imprisonment for life under Section 302 IPC buy dismiss the appeals in so far it relates to conviction and sentence as awarded by the trial court and upheld by the High Court under Section 392 IPC. (Para 9)

JUDGMENT

Brijesh Kumar, J.-These appeals arises out of judgment and order passed by the High Court of Kerala, upholding the conviction and sentence of imprisonment for life under Section 302 IPC and 7 years rigorous imprisonment under Section 392 IPC as passed by the II Additional Sessions Judge, Ernakulam in Sessions Case No. 128 of 1996.

2. The case is based on circumstantial evidence. According to the prosecution the deceased had been working for PW-28 at his farm and in that connection he used to leave his house at 7.00 a.m. everyday and would return in the evening but sometimes he stayed back at the farm. He had been residing with his younger brother PW-3 and a younger sister, PW-7. On 28-6-1995, as usual, he left for his work at 7.00 a.m. At the time of leaving his house, PW-3 and PW-7 had seen him putting on two gold rings and a watch. PW-28 had also noticed him putting on the above said articles. Till mid-day he was at the farm of PW-28 and after having his lunch etc. he had left the place. At about 4.00 p.m., PW-12 had seen him at Kottapuram junction. At about 8.30 p.m. he went to the shop of PW-8 and purchased some candles and bread from there. He then sat at a bench in front of the shop of PW-9 who closed his shop at 9.00 p.m. whereafter deceased also left the place.

3. The prosecution story further is that at about 9.30 p.m. while PWs 10, 12 and 13 were at their house, they heard the deceased saying "take whatever you want, leave me alone". PW-12 is said to have heard the voice of the appellant as well. Since the deceased did not turn up to his work in the morning next day, PW-28 sent one of his employees to the house of the deceased to find out the reason. This is how PW-3 the brother of the deceased came to know that his brother was missing and started search for him but with no results. On 30.6.1995, PW-1 saw a body floating in thodu. A report in that connection was registered and the photograph of the dead body was published in the newspaper which PW-3 saw on 1.7.1995. On that basis he went to the Government hospital and identified the body of his brother. He further noticed that the two gold rings and the watch which the deceased was putting on were missing.

4. The investigation was taken up by PW-29. Post-mortem examination was also conducted which indicated drowning, as the cause of death. No external or internal injury was found on the dead body by the doctor. The doctor further stated that superficial injury if any could not be detected due to decomposition of the dead body. During the course of investigation, PW-29 came to know that accused had pledged a gold ring with PW-19 which led to the arrest of the appellant on 5.7.1995 at Kottapuram toddy shop. The accused led the police party to rubber plantation of one Jose Verghese and handed over M.O. I (watch) in respect of which recovery memo was prepared Ex.P-6. He also took the police party to his house from where he produced document in token of the pledge of M.O. II(a) (the other ring) with a private banker. Thus the other gold ring was recovered from the shop of PW-24.

5. The accused denied the charge and took up the defence that PW-3 namely, the brother of the deceased and other members of the family were unhappy with him and therefore he has been falsely implicated in the case. His case was that he was a friend of the deceased and had helped him to marry one Sharda for which members of their family were not agreeable. In this connection the members of the family of the deceased had once tied up the deceased and had also given him a beating.

6. The case depends on circumstantial evidence. The circumstances are as follows:

1. Deceased had left to attend to his work on 28-6-1995 at 7.00 in the morning putting on two rings and a watch. This fact is testified by PWs 3 and 7, his brother and sister respectively and PW-28.

2. The deceased took candles and bread from the shop of PW-8 and at about 9.00 p.m. he was sitting in front

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2002 Supreme(SC) 430

Cases Referred (1)