2002(1) Crimes 63 (SC)
Supreme court of India
(From Bombay High Court)
R.C. Lahoti and P. Venkatarama Reddi,  JJ.
Limbaji & Others —Appellants
versus
State of Maharashtra —Respondent
Criminal Appeal Nos. 1120-1121 of 2000
Decided on 14-12-2001
Counsel for the Parties :
For the Appellants : C.G. Solshe and Ms. S.V. Sonawane, Advocates.
For the Respondent : Sushil Karanjkar, S.S. Shinde, Advocate for S.V. Deshpande, Advocate/Advocates.

Important Point
The case rests on circumstantial ­evidence of recovery of ornaments worn by deceased, pursuant to information furnished by the accused to the police u/s.27 of Evidence Act, 1872. But High Court was not right to press into service Section 114(9) of Evidence Act in support of its conclusion that accused can be held guilty u/s. 302 r/w 34 IPC on that basis.

Headnote:(i) Indian Penal Code, 1860—Sections 302 r/w 34 and 392 r/w 34 —Offences of murder and robbery with common intention—Appellants tried—Sessions Judge acquitted them of offences under Sections 302 and 392 but found guilty u/s 411 as they were in possession of stolen articles—In appeal, High Court convicted them under Sections 302 r/w 34 and 392 r/w 34 with the help of presumption under Section 114(a) of Evidence Act —Appeals against to Supreme Court —No direct evidence—Only circumstantial evidence—That accused were seen going together towards the field of Baburao (deceased) in the night of occurrence—Sessions Court rejected it but High Court relying on it —Whether correct? (No).

       Held : With regard to the first circumstance, learned Sessions Judge held that it will not lead the prosecution anywhere, especially in view of the fact that, as stated by PW3, there was a public lane behind his house which was used by the villagers. This is a reasonably possible view that could be taken. The High Court had given undue weight to this circumstance and we do not think that the High Court was justified in its approach. (Para II)

       (ii) Indian Penal Code, 1860—Sections 302 r/w. 34 and 392 r/w. 34 and 411—Nature of offence—Accused found in possession of incriminating articles in consequence of information received u/s. 27 of Evidence Act—Whether there was discovery and discovery warrants presumption u/s. 114 Evidence Act? (Yes) (see paras III and IV)—To what extent the presumption u/s. 114(a) of Evidence Act be drawn? (It can be drawn for robbery but not for ­murder) —Appeal allowed in part—Medical evidence, case law and discoveries considered—(Evidence Act, 1872—Section 114(9)—Presumption).

       Held : The argument that there was no information leading to discovery of the material object and the statement of the accused is inadmissible under Section 27 was rightly repelled by the trial Court. There is no good reason to take a different view in this regard. Then we have the evidence of discovery of the other stolen articles concealed beneath the earth in the fields of others and at a spot on the road side. These discoveries were made on the basis of the statements made by accused Nos. 1 and 2 on 15.6.1984 and accused No. 3 on 20.6.1984. The evidence of panch witness (PW9) and the Investigating Officer (PW12) lends proof to these discoveries. Argument has been addressed by the learned counsel for the appellant that the panch witness Sidling was always being called by the police. He figured as panch not only on the first occasion but also on subsequent two occasions when he was allegedly called by the I.O. while going past the police station. The said witness is related to the deceased. It is highly doubtful whether he witnessed the accused pointing out to the places where the stolen articles lay and the police seizing the same. His evidence does not therefore merit acceptance, according to the learned counsel. We are not inclined to disturb the finding of fact recorded by the trial Court as well as the High Court on the truth of the discoveries by disbelieving the panch witness merely on account of some suspicious features. (Para IV a)

       In the light of the above discussion, in the instant case, the presumption under Section 114 illustration (a) could be safely drawn and the circumstance of recovery of the incriminating articles within a reasonable time after the incident at the places shown by the accused unerringly points to the involvement of the accused. Be it noted that the appellants who were in a position to explain as to how they could lay their hands on the stolen articles or how they had the knowledge of concealment of the stolen property, did nothing to explain; on the other hand, they denied knowledge of recoveries which in the light of the evidence adduced by the prosecution must be considered to be false. By omitting to explain, it must be inferred that either they intended to suppress the truth or invited the risk of presumption being drawn. Thus, the ­presumption as to the commission of offence envisaged by illustration (a) of Section 114 is the minimum that could be drawn and that is what the trial court did. [Para V(a)]

       In the light of the medical evidence, there are three points which are to be prominently kept in view. Firstly, there was a lacerated wound on the posterior aspect of the left ear and another such wound on the right ear lobule which according to the doctor could have been caused in the process of forcibly snatching the ear-rings worn by the victim. Secondly, the internal injuries which were the immediate cause of death would have been caused by a hard and blunt object. According to the prosecution the deceased was hit by a heavy stone found at the spot and seized under a panchanama. Thirdly, the injuries in question were antemortem. In this state of evidence, it is clear beyond reasonable doubt that the person or persons who removed the ornaments worn by the deceased themselves inflicted the wounds in the process of removing them. There was evidently a hush-hush operation to run away with the booty without allowing much time to pass. The fact that the ornaments on the person of the deceased came into the hands of the accused soon after the crime and they failed to give any explanation for the circumstances appearing against them justifies the presumption, as already discussed, that they themselves removed these articles from the person of the deceased. Causing injuries to the deceased in the process of removal of ear-rings is, in our view, inextricably inter-linked with the commission of theft which is an ingredient of robbery. It would be far-fetched to think, as the trial Judge has expressed that someone else might have caused injuries and the appellant would have stolen the articles thereafter. The fact that the booty was distributed between the three accused and that they had secreted the robbed articles would clearly reveal that the three accused shared the common intention to commit robbery. Hence, we are of the view that by having resort to the presumption under Section 114, an inference can be safely drawn that the appellants committed robbery in furtherance of common intention. No other reasonable hypothesis consistent with the innocence of the accused is possible. Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khan’s case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased Baburao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No. 1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilise the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatching the ear-rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of S.34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim. In the result we set aside the conviction of the accused under Section 302 IPC. We find the accused guilty of the offence punishable under Section 394 read with Section 34 IPC and accordingly convict the accused under Section 394 and sentence them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/- each and in default to undergo further imprisonment for a period of three months. The appeals are thus partly allowed. (Paras VIb, VIc and VII)