PETITIONER: BAIJU ALIAS BHAROSA Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT19/01/1978 BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. FAZALALI, SYED MURTAZA CITATION: 1978 AIR 522 1978 SCR (2) 594 1978 SCC (1) 588 CITATOR INFO : F 1978 SC1183 (49) ACT: Evidence Act, (Act 1 of 1872), 1872--Ss.110,114 illustration(a)--Recent and unexplained possession of goods- Presumptive evidence against the accused not only of theft, but of the charge of murder as well-Value of circumstantial evidence. HEADNOTE: The appellant, on the pretext of and promise to beget a child to the family of the deceased Ramdayal by sorcery, and after winning confidence committed murders of Ramdayal, his wife Smt. Fulkanwar, his mother Smt. Bhagwanti and his nephew Rambakas, on the night of January 20, 1975 and also- stole of various articles which were recovered from the appellants' residence soon after. The trial court convicted him of offences u/s 394 and u/s 302 I.P.C. for committing the robbery and each of the four murders and sentenced him to death. On appeal the High Court of Madhya Pradesh confirmed the conviction-and the sentence. Dismissing the appeals by special leave the Court HELD : 1. The question whether a presumption should be drawn under illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article, the manner of its acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. [600 EG] 2.Recent and unexplained possession of stolen articles may well be taken to be presumptive evidence of the charge of murder. [600 B-C] The prosecution succeeded in proving beyond any doubt that the commission of the murders and the robbery formed part of one transaction and the recent and unexplained possession of the stolen property by the appellant justified the presumption that it was he and no one else, who had committed the murders and the robbery. The appellant was given an opportunity to explain his possession, as well as his conduct in decoying Smt. Lakhpatiya and the other per- sons who died at his hand, but he was unable to do so. [600 D-E] Wasim Khan v. State of Uttar Pradesh, [1956] S.C.R. 191; Abisher v. State of Uttar Pradesh, [1974] 4 S.C.C. 254 followed. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 128
and 129 of 1977.
Appeals by Special Leave from the Judgment and Order dated
17-9-76 of the High Court of Madhya Pradesh in Criminal
Appeals Nos. 477 and 488 of 1976 and Criminal Reference Nos.
5 and 6 of 1976.
P. C. Bhartari for the Appellant in Crl. A. No. 128/77.
R. K. Jain, Amicus Curiae, for the Appellant in Crl. A.
129/77.
I. N. Shroff for Respondent in both the appeals.
The Judgment of the Court was delivered by
SHINGHAL J. Ramdayal (deceased) son of Ranglal (P.W. 2)
lived in his house at village Gauripur, district Sarguja,
with his two
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wives Smt. Fulkunwar (deceased) and Smt. Lakhpatiya (P.W.
1), his father Ranglal, his mother Smt. Bhagwanti
(Deceased) and his nephew Rambakas, (deceased). Although.
Ramdayal married ,twice, he did not have a child and he and
his family were keenly interested in his having a child
somehow. It is alleged that in the month of Kuar appellant
Baiju alias Bharosa gave out that he had been sent by one
Niranjan Gauntia and introduced himself to the family as a
sorcerer or wizard who could bring about the birth of a
child in the family with his extraordinary powers. He
visited the family several times and. practised sorcery. In
those days Smt. Fulkunwar was suffering from small-pox and
the appellant therefore went away saying that he would
return after her recovery. He went there again in the month
of Kartik of his own accord and practised sorcery in
Ramdayal’s house for two nights. He went to. Ramdayal’s
house again in the month of Aghan and practised sorcery. He
had a well of Ramdayal’s house dug in and took out a piece
of bone which, according to him, was an evil omen and
prevented the birth of a child. He started taking Ramdayal
and his wives to an adjoining “nala” at mid night on the
pretext of driving away the evil spirit. In this way, it is
alleged, the appellant gained the confidence of the entire
family and went and stayed at Ramdayal’s house in month of
Paus from January 11, 1975 to January 19, 1975. He demanded
cloth and some articles for performing sorcery, but that was
resented by Smt. Lakhpatiya.
It is further alleged that on January 19, 1975 the appellant
asked Smt. Lakhpatiya to go to the house of her parents,
without her ornaments and money, and promised that he would
reach there and perform some ritual to drive away the evil
spirit from her. At the same time he prevented Ramdayal, on
false pretext, from accompanying her to the house of her
parents. Smt. Lakhpatiya therefore went to the house of
her parents at village Narainpur with her father-in-law
Ranglal (P.W. 2) on January 20, 1975. The appellant, in the
mean time, persuaded Ramdayal to go with him to an adjoining
“nala” for performing some religious rites, killed him there
and threw his dead body in the ” nala”. He then went back
to Ramdayal’s house, took Smt. Fulkunwar to another place
in the same “nala”, killed her there and threw her dead body
also in the “nala”. It has further been alleged that the
appellant went to the, house of Ramdayal and killed his
mother Smt. Bhagwanti and his nephew Rambakas while they
were sleeping there. He ransacked the house, broke open
the boxes and took away a number of articles including a
transistor, a watch, a bicycle, a torch, two “addhis” gold,
clothes, ornaments.
On the following morning, i.e. on the morning of January 21,
1975, Ramdayal’s neighbours, including his nephew Jai Ram
(P.W. 4), became suspicious because of the unusual calm
prevailing in his house and peeped inside. They saw the
dead bodies of Smt. Bhagwanti and Rambakas with blood all
around. They also found open boxes and articles lying
there. Jai Ram therefore went to police station Prem Nagar
where he lodged report Ex.P. 38 before Head Constable Jagan-
nath (P.W. 24). The Head Constable went to village Gauripur
the same day, saw the dead bodies of Smt. Bhagwanti and
Rambakas inside
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Ramdayal’s house and the broken boxes and articles lying all
around. He also found that a stone was lying near the dead
body of Rambakas and a piece of wood was lying over the head
of Smt. Bhagwanti. He searched for Ramdayal and Smt.
Fulkunwar but could not find them. inquest reports were
prepared in respect of the dead bodies and they were sent
for postmortem examination. The dead body of Smt.
Fulkunwar was found on January 22, 1975 and the Head
Constable prepared its inquest report. Sub-Inspector P. K.
Singh reached village Gauripur on January 22, 1975 at about
6 p.m. and started the investigation. He prepared what has
been called “a dehati nalish” Ex. P. 32 on January 22, 1975
at 6.30 p.m. and also prepared seizure memorandum of several
articles which were lying in Ramdayal’s house. He made a
search for Ramdayal and found his dead body lying in the
water of the ” nala”, under a block of wood, on January 23,
1975. An inquest report was prepared and several articles
like rice, thread and match box which were also found lying
on the ” nala” were taken by the Investigating Officer in
his custody. Another “dehati nalish” Ex. p. 32A was
prepared on January 26, 1975. The investigating Officer
also found receipt Ex. P. 29 of the sale of a watch to
Ramdayal and took it into his possession on January 26,
1975. One shoe (article ‘U’) and thereafter the other shoe
(article ‘U1’) were found near the river on January 27, 1975
and were taken in police custody. Ramdayal’s licence for
the transistor was also taken over by the investigating
officer.
The appellant was arrested on January 28, 1975. It has been
alleged that he gave the information which was recorded in a
memorandum (Ex. P. 21/P. 21A) in respect of certain
articles which he undertook to recover from his house and
that several articles including a transistor (article ‘1:),
a watch (article ‘Chha’) , ‘two gold “addhis” (article
‘Cha’), a torch (article ‘Ka’) and several ” sarees”,
blouses, petticoat, bed-sheets, “dhotis”, bush shirt,
blanket, ” thali” etc. were thus recovered during the course
of the investigation. The Police also went to the shop of
Nirmal Kumar (P.W. 13) and recovered the voucher for the
sale of the transistor to Ramdayal as also Nirmal Kumar’s
register evidencing the sale. It has further been alleged
that in pursuance of the interrogation on January 31, 1975
as per memorandum (Ex. P. 12/P. 12A) the Police recovered
some silver ornaments from goldsmith Goverdhan (P.W. 7) of
village Surajpur. The recovered articles were put up for
identification and the memoranda in that respect have also
been placed on the record. Smt. Lakhpatiya and Ranglal are
said to have correctly identified the transistor,watch and
gold “addhis” etc. as belonging to the deceased Ramdayal.
Separate charge sheets were put up by the police against the
appellant for each of the four murders. The Sessions Judge
took notice of the fact that the murders and the robbery
were committed in the same transaction, and although he was
of the opinion that there was no difficulty in holding one
trial of all the offences he thought it “safe” to
consolidate only two murder charges in one trial. There was
therefore one trial for the murders of Ramdayal and his
wife Smt. Fulkunwar and another for the murders of Smt.
Bhagwanti and Rambakas. Two
597
separate judgments were accordingly delivered in the two
cases on April 30, 1976, convicting the appellant under
section 302 I.P.C. for each of the four murders. He was
also convicted under section 394 for the offence of robbery
in the trial relating to the murder of Ramdayal and Smt.
Fulkunwar. The learned Sessions Judge considered the
question of sentence thereafter, and took the view that as
the murders were pre-planned, and were committed with the
sole object of theft, and that the appellant had gained the
confidence of Ramdayal and his family members by systematic
manoeuvres for his personal benefit even though he and his
family members had done no harm to him, he deserved the
sentence of death. For the offence under section 394 I.P.C.
he sentenced him to rigorous imprisonment for 5 years. When
the matter went up before the High Court on appeals by the
accused and on reference by the trial court, the High Court
dismissed the appeals, upheld the conviction of the
appellant on all the counts and confirmed the death sentence
by its judgments dated September 17, 1976.
It was not disputed before us that the case of the
prosecution all through was that the appellant committed one
series of acts which were so connected together as to form
the same transaction and that he could be charged with and
tried at one trial for all the four offences of murder and
the offence of robbery. The learned counsel in fact
addressed their arguments jointly in the two appeals before
us and referred mainly to the record of Criminal Appeal No.
129 of 1977. Their arguments were common to both the
appeals and were addressed with reference to the same set of
evidence. No useful purpose will therefore be served by
giving separate judgments in the two appeals, and we shall
dispose them of by this common judgment as suggested by
learned counsel.
It has been argued that an error was committed by the trial
Court as well as the High Court in mistaking the “dehati
nalish” (Ex.P. 32) dated January 22, 1975 and the other
“dehati nalish” (Ex. P. 32A) dated January 26, 1975 as the
first information reports, and that they were wrongly read
in evidence as reports under section 154 of the Code of
Criminal Procedure. It has also been urged in this connec-
tion that when it was the case of the prosecution that Jai
Ram (P.W. 4) and several other villagers had seen the dead
bodies of Smt. Bhagwanti and Rambakas on the morning of
January 21, 1975 and Jai Ram had gone and lodged the report
at police station Prem Nagar the same day, there was no
justification for withholding that report and treating the
aforesaid village complaints as the first information
reports. The argument appeared to be of some consequence at
first sight because Jai Ram’s report did not form part of
the paper books of this Court, but Mr. 1. N. Shroff was able
to retrieve Jai Ram’s report Ex. P. 38 to Head Constable
Jagannath dated January 21, 1975, from the original record.
As has been stated, Jai Ram had stated in that report how he
and other villagers grew suspicious, peeped into the house
of Ramdayal and found the dead bodies of Ramdayal’s mother
and of a boy (Rambakas) lying there, with blood all around
and the household articles scattered all over. Learned
counsel for the appellant thereupon gave up the arguments
which they advanced on the basis
598
of the non-production of the first information report. It
cannot, all the same, be doubted that the two so called
“dehati nalish” could not have been read in evidence as.
first information reports and we have therefore left them
out of consideration. That does not however affect the
merits of the case because the prosecution has been able to
produce other satisfactory evidence to establish the guilt
of the appellant in respect of the offences for which he has
been convicted.
It has next been argued that when the Police knew of the
murder and the robbery on January 21, 1975 on Jai Ram’s
report Ex. P. 38and, when it was also the case of the
prosecution that Smt. Lakhpatiya returned to her house on
Tuesday (i.e. on the night of January 21, 1975) on learning
of the murders of her mother-in-law and the nephew and the
suspicious conduct of the appellant, there was no reason why
the Police should not have searched his house at the
earliest possible opportunity when sufficient particulars
had been obtained from Smt. Lakhpatiya for the, purpose of
identifying him. It has therefore been urged that there was
no justification for delaying the search until after his
arrest on January 28, 1975. On these premises it has been
argued that the articles which were recovered from the house
of the appellant on January 28, 1975, had been planted by
the police and their recovery should not have been taken
into consideration against him. There is however no reason
to think that the courts below have erred in placing
reliance on the recovery of the various articles from the
house of the appellant on January 28, 1975. As has been
stated, he was arrested on January 28, 1975, and even though
the allegation that the recovery of the articles was made
at his instance has been disbelieved by the two courts, we
find that the appellant’s wife Smt. Isuni (P.W. 10)
produced those articles from the house of her husband as
alleged by the prosecution. In fact she has categorically
stated that those articles, including the transistor, the
watch, the gold “addhis” and the torch did not belong to her
house and were brought by the appellant and were kept there.
It is also significant that the appellant has not ventured
to suggest in his statements that his wife was inimical
towards him or was anxious to implicate him falsely. A
reading of his statement shows, on the other hand,, that he
believed that his wife was anxious to save him somehow.
There is therefore no merit in the argument that the
recovery of the articles which was made from the house of
the appellant on January 28, 1975 was not genuine and that
the articles were “planted” by the Police.
An ancillary argument has been advanced that the recovery of
the articles could not be said to be incriminating as they
were not satisfactorily identified and that their recovery
did not connect the appellant with the crime. We have gone
through the evidence on the record and we find that the
theft of the transistor was, brought to the notice of the
police authorities on January 22, 1975 by Smt. Lakhpatiya
after she reached her house, and it has been established by
memorandum Ex. P. 3/3A that Investigating Officer P. K.
Singh seized a ‘Hind? receipt dated September 13, 1974,
written by Nirmal Kumar in respect of licence No. 15 of
transistor RL 517/OOB/631422 on January 26, 1975 from the
house of the deceased Ramdayal. The same trans-
599
istor was thereafter found in the house of the appellant on
January 28, 1975, and its license dated October 1, 1974 in
Ramdayal’s name was also taken in police custody. The
statement of Nirmal Kumar shows that the transistor was sold
by him to Ramdayal and he was able to produce his receipt
book evidencing the sale. Moreover Smt. Lakhpatiya (P.W.
1) identified the transistor as belonging to her husband.
The recovery of the transistor from the house of the
appellant was therefore a material circumstance which went
to establish that the stolen property was recovered from
‘his house soon after the commission of the crime.
It will be recalled that a wrist watch was also recovered
from the house of the appellant on January 28, 1975.
Investigating Officer P. K. Singh recovered a receipt dated
August 4, 1974 evidencing the sale of the watch by Mohammad
Awesh Karmi (P.W. 14) to the deceased Ramdayal. Mohammad
Awesh Karmi has proved the sale of the watch to Ramdayal and
the watch has also been identified by Smt. Lakhpatiya in
the trial court. Its recovery is therefore another
circumstance which goes to connect the appellant with the
crime.
As has been stated, several other articles were also
recovered from the house of the appellant which he and his
wife did not claim to be their property. It will be
sufficient to mention that two gold “addhis” and a torch
were two of the other articles which were recovered during
the course of the investigation. The recoveries have been
proved by Atmaram (P.W. 11) and Smt. Lakhpatiya has
identified them during the course of the trial. Smt. Isuni
(wife of. the appellant) has proved that those articles were
also brought to her house by the appellant and did not
belong to her or her husband. The recovery of the articles
also therefore bears on the guilt of the appellant and has
rightly been taken into consideration against, him.
It has also been argued that although there was no direct
evidence to prove that the appellant committed any of he
four murders or the offence of robbery for which he was
tried and convicted, and the case against him depended
entirely on circumstantial evidence, the trial court and the
High Court committed an error of law in thinking that the
evidence was sufficient to prove his guilt. The precise
argument which has been advanced in this connection is that
even though it could be said that there was satisfactory
evidence to prove that the appellant committed theft of the
various articles including the transistor, the wrist watch,
the gold “addhis” and the torch which were recovered from
his house, that could not justify the conclusion that the
murders were also committed by him. It has been urged that
it would not have been possible for any one person to have
committed as many as four murders single handed.
We find that the High Court has made a mention of the
circumstantial evidence which led it to conclude that the
murders were committed by the appellant, including the
evidence bearing on his repeated visits to the house of the
deceased, his promise to beget a child to the family by
sorcery, his winning their confidence to the extent of
pursuading them to do whatever he liked, his ruse to get rid
of Smt. Lakhpatiya by sending her to her parents’ house at
Narainpur after leaving
600
her husband and her ornaments behind on promise of meeting
her there on January 21, 1975, Ms failure to fulful that
promise, the death of Smt. Lakhpatiya’s husband Ramdayal
and his other wife Smt. Fulkunwar at the “nala”‘ where the
appellant used to take them and Smt. Lakhpatiya on the
pretext of practising sorcery, the death of Ramdayal’s
mother Smt. Bhagwanti and his nephew Rambakas in the house
the same night, the ransacking of the house and the com-
mission of theft of several articles of Ramdayal including
the transistor, the watch, the gold “addhis”, the torch and
ornaments etc, and the recovery of those articles either
from the louse of the appellant or at his instance. His
counsel have not been able to point out how it could be said
that any part of this circumstantial evidence has been
misread or that any error of law has been committed in
taking the view that it was quite sufficient to prove the
guilt of the appellant. As has been held by this Court in
Wasim Khan v. The State of Uttar Pradesh,(“) recent and
unexplained possession of stolen articles can well be taken
to be presumptive evidence of the charge of murder as well.
A similar view has been taken in Alisher v. State of Uttar
Pradesh. (2)
As has been stated, the prosecution has succeeded in proving
beyond any doubt that the commission of the murders and the
robbery formed part of one transaction, and the recent and
unexplained possession of the stolen property by the
appellant justified the presumption that it was he, and no
one else, who had committed the murders and the robbery. It
will be recalled that the offences were committed on the
night intervening January 20 and 21, 1975, and the stolen
property was recovered from the house of the appellant or at
his instance on January 28, 1975. The appellant was given
an opportunity to explain his possession, as well as his
conduct in decoying Smt. Lakhpatiya and the other persons
who died at his hand, but he was unable to do so. The
question whether a presumption should be drawn under
illustration (a) of section 114 of the Evidence Act is a
matter which depends on the evidence and the circumstances
of each case. Thus the nature of the- stolen article, the
manner of its acquisition by the owner, the nature of the
evidence about its identification, the manner in which it
was dealt with by the appellant, the place and the
circumstances of its recovery, the length of the inter-
vening period, the ability or otherwise of the appellant to
explain his possession, are factors which have to be taken
into consideration in arriving at a decision. We have made
a mention of the facts and circumstances bearing on these
points and we have no doubt that there was ample
justification for reaching the inevitable conclusion that it
was the appellant and no one else who had committed the four
murders and the robbery. In the face of the overwhelming
evidence on which reliance has been placed by the High
Court, it is futile to argue that the murders could not have
been committed by a single person. As has been stated,
there is satisfactory evidence on the record to show that
the dead bodies of Ramdayal and Smt. Fulkunwar
(1) [1956] S.C.R. 191.
(2) [1974] 4 S.C.C. 254.
601
were found at two different places near the “nala” so that
it cannot be said that they were murdered together. As
regards Smt. Bhagwanti and Rambakas, the evidence on the
record shows that they were murdered while they were asleep
in the house, and there is no reason why a single person
could not have committed their murders also.
As there is no force in the arguments which have been
advanced before us, the appeals fail and are dismissed.
S.R. Appeals
dismissed.
602