KARNATAKA HIGH COURT
Ravi Malimath and John Michael Cunha, JJ.
Registrar General
High Court of Karnataka and Ors. —Petitioners
versus
Venkatesh @ Chandra and Ors. —Respondents
Criminal Referred Case No.11 of 2010 c/w Criminal Appeal No.713 of 2011 c/w Criminal Appeal No.562 of 2012
Decided on 27.10.2017

IMPORTANT POINT
Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer.

Headnote:Indian Penal Code, 1860—Section 396/34—Docoity with murder—Four appellants convicted and sentenced to death by trial court—Appeal and death reference—Four-accused-appellants with one absconding accused and two other accused (acquitted by trial court) on a pretext of asking for drinking water entered into the house, caused death of house lady aged about 42 years w/o of PW13 by smothering and robbed four gold bangles and a managlya chain from her person—After about ten months accused-appellants were apprehended and on basis of their statement stolen gold jewellery was recovered—conviction was based on solitary circumstance of recovery of gold ornaments belonging to deceased at the instance of Accused 1, 2 and 3—Appeal—Jwellers PW 9 and 10 from whom recoveries were effected turned hostile but PW11 in whose presence recoveries were effected supported the case—Even testimony of investigating officer if found reliable could be accepted without requiring corroboration—Recovery of gold ornaments belonging to deceased as recovered at the instance of Accused 1, 2 and 3 stood proved—Whether on basis of said circumstance of recovery alone could if be interred that accused were instrumental in murder of deceased? No Recovery of stolen property it self would not lead to conclusion that theft and murder had taken place at the save time—Conviction under Section 398 IPC was liable to be set aside and accused 1, 2 and 3 were liable to be convicted under Section 392 IPC and sentenced to 10 years imprisonment.

       Held: Having come to the above conclusion, the crucial question that remains for determination is whether on the basis of the above circumstance can it be inferred that accused were instrumental in the murder of the deceased? Admittedly the accused were charged for the offence under section 396 of Indian Penal Code. Murder is an integral part of the offence under section 396 of Indian Penal Code. But in the instant case, the only circumstance proved against the accused Nos.1, 2 and 3 is the recovery of gold ornaments belonging to the deceased. In addition to this circumstance, the Trial Court however has relied on the voluntary statements attributed to the accused at Exhibits P.15, P.16 and P.17 and has come to the conclusion that these two circumstances render the accused guilty of the offences under section 396 of Indian Penal Code. We are unable to concur with the reasoning and the finding of the Trial Court in this regard. In our opinion, the circumstance of unexplained recovery of gold ornaments belonging to the deceased, in view of illustration (a) to section 114 of the Evidence Act may at the most give rise to an inference that they were either receivers of stolen property or were the person who committed the theft, but it does lead to the conclusion that the theft and the murder had taken place one at the same time. This view has been authoritatively laid down by the Hon’ble Supreme Court as back as in 1956 the case of Sanwat Khan & Another vs. State of Rajasthan, AIR 1956 SC 54. In the said case also, there was no direct evidence whatsoever in proving the participation of the accused in the murder for which the accused were charged. Learned Sessions Judge in convicting the accused therein under section 302 Indian Penal Code, took into consideration the circumstances of the recovery of a gold kanthi and tashak at the instance of accused and the fact that the accused were seen near the place of occurrence on the day previous to the murder. While setting aside the conviction recorded by the learned Sessions Court.

       In the instant case, the situation is still worse. The Trial Court has recorded conviction for the offence under section 396 of Indian Penal Code based on the voluntary statements of the accused and the recovery of gold ornaments. It is trite law that no conviction would lie on the basis of the voluntary statements recorded by the police officers while the accused were in their custody. Section 25 of the Evidence Act in unmistakable terms provides that no confession made to a police officer is relevant or shall be proved against a person accused of any offence. Section 26 mandates that no confession by any person while he is in custody of a police officer shall be relevant or proved against him. It is unfortunate that the learned Sessions Judge has placed reliance on Exhibits P15, P16 and P17 namely the voluntary statements of the accused to base the conviction. Therefore, on overall consideration of the above facts and circumstances of the case, we are of the view that the conviction recorded against the accused under section 396 of Indian Penal Code cannot be sustained.

       However, taking into account the proof of recovery of gold ornaments at the instance of accused Nos.1, 2 and 3, we are of the view that accused Nos.1, 2 and 3 are liable to be convicted for the offence punishable under section 392 of Indian Penal Code and accordingly, they are convicted for the offence punishable under section 392 of Indian Penal Code. Having regard to the background of the accused as spoken to by PW.16 and especially in view of the fact that accused are alleged to have been involved in similar offences, we deem it appropriate to sentence accused Nos.1, 2 and 3 for rigorous imprisonment for a period of ten years and a fine of Rs.10,000/- each. (Paras 13, 18 and 19)

       Result: Appeals allowed partly-Reference dismissed.