IMPORTANT POINT
This is not a case where the prosecution case rests only on the evidence in terms of Section 27 of Evidence Act. The High Court was clearly in error in recording acquittal as the prosecution case rests on other evidence also which is sufficient to record conviction.

Headnote:Evidence Act, 1872-Sections 25, 26, 27 and 114(a)-Recovery of robbed article-IPC 1860-Sections 302/34, 392/34-Respondents convicted for murdering an old woman for robbery of a tape recorder-Tape recorder recovered in investigation of another case-Confession made by accused of its robbery-High Court acquitted on the ground that tape recorder was of small value and conviction cannot be based on its recovery-Whether correct? (No)-Appeal allowed.
       Held (after case law) : In the instant case the evidence of PWs 8 and 21 are of significance. PW 21 has stated that in the evening of 21.12.1986 he was sitting in the shop of his father, when A2 approached him with an offer that they (A1 and A2) intend to sell a tape recorder, which was pledged with a pawn broker PW8. They also showed him the pawn ticket. He gave Rs. 240/- to one of the accused and other one was asked to sit in the shop so that the first one can go and bring the tape recorder. After finding that the same was in good condition the extra amount of Rs. 15/- was given to them. Thereafter, Ex.P18 was prepared and it was signed by one of the accused on the stamp paper and was attested by the other. He identified the tape recorder (M.O.2, which was sold by the accused. PW8 who runs pawn broker shop stated that the accused were frequently visiting his shop and on 20.12.1986 they pledged a tape recorder which was redeemed on 21.12.1986. Sale receipt Ex.P8 was produced. Dhanraj (PW-16) is an employee of PW8 who stated that the tape recorder was pledged on 22.12.1986 and was redeemed by A1. In the pawn broker s records, A1 has signed as Peter Brown. At this juncture, it is relevant to take note of Section 114 of the Evidence Act. Illustration (a) provides that a presumption arises that when a man is in possession of stolen goods soon after the theft, he is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Presumption of facts are assumption resulting from one s experience of the course of natural events of human conduct and human character, and all those which one is entitled to make use of or has to make use of in the ordinary course of life, as well as the business of Courts. It was submitted by the learned counsel for the accused that there is no evidence that the one tape recorder which was pawned belonged to the deceased. This plea is without any substance. The oral evidence of R.S. Macdermott (PW-2), Tayarmma (PW-5) and M.W. French (PW-6) clearly show that M.O.2 was one which belonged to the deceased. This article was gifted to the deceased by her daughter. Documentary evidence of the tape recorder, customs invoice and the colour photograph (M.O.3) clearly establish that the tape recorder which was earlier with the deceased was the same one which was pawned by the accused with PW8 and was subsequently sold to PW21. From the evidence of PW-5, it appears that deceased wrapped in shawl, when she first found her bleeding on account of injuries. The weapon used in the assault for causing injuries on the deceased and blood stained shawl (M.O.1) were sent for forensic examination. Forensic reports disclosed that blood group found on the weapon (M.O.4) was the same as was found on the shawl (M.O.1). (Para 6)
       Held further : This is not a case where the prosecution case rests only on the evidence in terms of Section 27 of the Evidence Act. That was only one of the pieces of evidence. It is, therefore, not necessary to decide the question as to whether conviction can be recorded only on the basis of such recovery. The High Court was clearly in error in directing the acquittal. The impugned order of the High Court is set aside, and that of the trial Court is restored. The appeal is allowed. (Paras 7 and 8)

Judgement Key Points

Ratio Decidendi (w.r.t. Section 27, Evidence Act): Recovery evidence under Section 27 of the Evidence Act is not required to be the sole basis for conviction in cases of murder and robbery, where it is sufficiently corroborated by other evidence including presumption of recent and exclusive possession of stolen property under Section 114 Illustration (a), witness identification of robbed articles, documentary proof of ownership, and forensic evidence linking blood stains; acquittal solely for non-reliance on such recovery or on grounds of article's low value is erroneous, as accused's conduct in disposing of the property soon after the crime establishes guilt. (!) [1000072320004][1000072320005][1000072320006]

JUDGMENT

Arijit Pasayat, J.-An octogenarian old lady was the victim of robbery and murder allegedly committed by the respondents-David Rozario and Christopher David (hereinafter referred to as A1 and A2 respectively for convenience).

2. Prosecution version sans unnecessary details is as follows:

The deceased who had three children residing abroad, was staying alone in her house at No. 47, Stephen s Road, Frazer Town, Bangalore City. A maid-servant Tayarmma (PW5) was working in her house and also in the house of Mrs. Joyce wife of Holmes (PW10). In the evening of 20.12.1986 the fateful day, PW5 as usual served coffee to the deceased in her house and went to the house of PW10 to work there, and was there till about 8.00 p.m. Thereafter, she left the place to go to her house, which was situated on the back side of deceased s house. When she was near the house of the deceased, she saw the electric lights in the house of the deceased were burning, and also noticed that the front door of the house was closed. While the back door was open she entered the house of the deceased through back door and came to the hall, where she saw the deceased sitting on a chair with blood all over the body. The deceased had sustained head injury, which was bleeding. PW5 ran out screaming to the house of Mrs. Joyce and brought her husband PW10 along with her to the house of deceased. They also called another person PW-7. They took the deceased in injured condition to the Nursing Home of Bikram Chand (PW14). Since the deceased had sustained injuries on the head, the doctor PW14 requisitioned an Ambulance and sent her to the Nimhans Hospital for further treatment. In spite of treatment she could not regain consciousness and passed away around mid-night. Intimation was sent by the doctor to the police station. First information report was accordingly recorded and investigation was undertaken. On 26.12.1986 information was gathered by the Investigating Officer about one tape recorder which was missing from the house of the deceased. The tape recorder (M.O. 2) was of foreign make. It came to light that the said tape recorder was gifted by her daughter to the deceased. Some days after the date of the incident the accused persons were arrested in another case of theft of a T.V. set. Accused No. 2 led the Investigating Officer and others to a shop where Dilip Ghodke (PW-21), the owner of the shop was asked by A2 to bring the tape recorder which he had sold to him, after redeeming the same from the pawn broker Mohammed Ilyas (PW-8). Relevant pawn ticket receipts were seized by the Investigating Officer. On the basis of the information given by the accused persons recovery was made of the weapon i.e. an Iron Rod (M.O. 4). The VII Additional Sessions Judge, Bangalore, on the basis of evidence on record found the accused-appellants guilty under Section 302 read with Section 34 and Section 392 read with Section 34 of the Indian Penal Code, 1860 (in short IPC ). They were sentenced to undergo imprisonment for life and rigorous imprisonment for a period of 5 years respectively for the aforesaid two offences. The Division Bench of the Karnataka High Court set aside the conviction.

3. The State of Karnataka is in appeal before this Court. Learned counsel for appellant-State submitted that the High Court by a sketchy and practically non-reasoned order has set aside the conviction. Learned counsel for the respondents on the other hand submitted that the High Court has rightly stressed upon the fact that the tape recorder was of very small value and two persons could not have taken the life of an elder lady. According to him, Section 27 of the Indian Evidence Act, 1872 (in short Evidence Act ) was applied by the trial court to record conviction when the same cannot be the only foundation for conviction.

4. It has to be noted that primarily what seems to have weighed with the High Court, is the meager value of the tape recorder. It was also observed that there was no eviden

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2002 Supreme(SC) 940

IMPORTANT POINTThis is not a case where the prosecution case rests only on the evidence in terms of Section 27 of Evidence Act. The High Court was clearly in error in recording acquittal as the prosecution case rests on other evidence also which is sufficient to record conviction.

Cases Referred (4)

IMPORTANT POINT
This is not a case where the prosecution case rests only on the evidence in terms of Section 27 of Evidence Act. The High Court was clearly in error in recording acquittal as the prosecution case rests on other evidence also which is sufficient to record conviction.