JUDGMENT

THOMAS, J. - The appellant was convicted of dacoity with murder and was sentenced to death by the Sessions Court. On appeal before the High Court of Madhya Pradesh, the conviction was upheld but the sentence was reduced to imprisonment for life. He has filed this appeal by special leave. The question which has narrowed down in this appeal, in the light of concurrent findings on facts by the two courts, is whether a presumption could legally have been drawn against the appellant for dacoity and murder on the strength of his possessing one of the stolen articles two days after the occurrence.

2. For considering the aforesaid crucial point, we may set out, briefly, the facts : On 11-10-1988, one Sunder Lal (PW 8) was proceeding from his village (Nagan Deori) on horseback to Kerpani Village (Madhya Pradesh) with a herd of pigs. His twelve-year-old son Lakhi Ram (PW 10) and twenty-year-old daughter (Laxmi Bai) were also accompanying him on foot. As they reached the jungle area (Gadarvada Dehat) five persons emerged from the interior and stopped the passengers. One of the five, who was armed with a gun, pointed the weapon on the chest of Sunder Lal (PW 8) and demanded him to surrender all his money and jewellery. Sunder Lal dismounted from horseback, but suddenly the gunman fired a shot at him which struck him on his loins resulting in the pellets perforating into his penis and perineum region and then the assailants snatched a bag containing jewellery from the victim, besides grabbing his wrist-watch and the cash from him. Another person in the gang, who too had a gun, demanded Laxmi Bai to surrender her kardhona (an ornament). When she began to cry, the armed man shot her dead and grabbed her ornaments. Sunder Lal (PW 8) managed to stand up and genuflected before the marauders. One of them revealed their identity as disciples of Gobind Das - so saying he threatened him with the butt end of the gun on his chest. Sunder Lal (PW 8) slumped down again. In the meanwhile the little boy (Lakhi Ram) managed to escape from the ken of the dacoits. After they left the scene with the booty Sunder Lal tottered up and with the help of his little son Lakhi Ram, mounted on his horse and returned to his village leaving the corpse of his daughter Laxmi Bai lying inside jungle.

3. Sunder Lal (PW 8) accompanied by some others went to Dhooma Police Station and lodged a first information statement on the same evening (5.25 p.m.). But the police, it appears, remained lethargic though they were kind enough to ambulance Sunder Lal to Jabalpur Medical College Hospital.

4. According to the police version they got some information on 13-10-1988 about the clandestine movements of a person with a country-gun hovering around Bhilai Market. PW 15 (Assistant Sub-Inspector of Dhangaur Police Station) rushed to the place with a posse of police and found the appellant (Net Raj) and one Ganpat being trussed up by the local people. Assistant Sub-Inspector made a search of the person of Ganpat first and recovered a country-gun, five cartridges and some other articles including ornaments. When the appellant was searched a silver total (an ornament) was recovered. Both of them were arrested at the spot. Later on, police could trace out four other persons and they too were nabbed.

5. After completion of investigation the police charge-sheeted six persons including the appellant and Ganpat for offences under Section 396 Indian Penal Code and Section 27 of the Arms Act. But one of the six accused remained absconding and hence the trial was held against the other five persons including the appellant. Sessions Court convicted Ganpat and this appellant under Section 396 IPC and Section 27 of the Arms Act and sentenced them to death while the other three were acquitted. The High Court of Madhya Pradesh acquitted the appellant of offences under Section 27 of the Arms Act confirmed the conviction under Section 396 IPC. The High Court, however, reduced the sentence to life