CASE NO.: Appeal (crl.) 140-140A of 1984 PETITIONER: GULAB CHAND RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT: 28/03/1995 BENCH: G.N. RAY & FAIZAN UDDIN JUDGMENT:
JUDGMENT
1995 (3) SCR 27
The following Order of the Court was delivered :
This appeal is directed against the judgment of the Division Bench of
Madhya Pradesh High Court at Jabalpur dated 29th November, 1985 in Criminal
Appeals 326 and 327 of 1980. Criminal Appeal No. 326/80 was preferred by
the State of Madhya Pradesh against the accused Gulab Chand and 7 other
accused. Criminal Appeal No. 327/80 was preferred by the State of Madhya
Pradesh against Gulab Chand and Durga. It may be stated that both the
appeals were preferred against the Judgment dated 7th December, 1979 passed
by the learned Sessions Judge, Jabalpur in Sessions Trial No. 147/79. In
the said Sessions Trial, Gulab Chand was accused No. 1 and Durga was
accused No. 3. Gulab Chand, Durga and other six persons stood charged under
Section 120-B of the Indian Penal Code for entering into a criminal
conspiracy in order to commit murder of Kapuriyabai and robbery of her
ornaments on or about 23rd April, 1979 in the village Bhakarwara. The
accused Gulab Chand, Durga and Parsoo were charged under Section 302, 394
and 397 of Indian Penal Code for having committed the murder of Kapuriyabai
in committing the robbery on the intervening night between 23-24 April,
1979. The learned Sessions Judge, however, acquitted all the aforesaid
persons under Section 120-B of the Indian Penal Code and the accused Gulab
Chand and Parsoo were also acquitted of the offences punishable under
Section 302, 394 and 397 of Indian Penal Code. But the trial court
convicted Gulab Chand and Durga for the offence punishable under Section
380 of the Indian Penal Code and they were sentenced to suffer rigorous
imprisonment for 3 years.
As aforesaid, the State of Madhya Pradesh preferred the aforesaid appeals
before the Madhya Pradesh High Court and by the impugned judgment of the
Madhya Pradesh High Court allowed both the said appeals in part and
convicted the accused Gulab Chand under Section 302, 394 and 397 of Indian
Penal Code and sentenced him to suffer rigorous imprisonment for life under
Section 302 and rigorous imprisonment for 7 years for the other offences.
It was directed that both the sentences would run concurrently. So far as
the accused Durga was concerned, his conviction under Section 380 of Indian
Penal Code was set aside and he was convicted under Section 411 of Indian
Penal Code. But the sentence of 3 years’ rigorous imprisonment was
maintained with a fine of Rs. 2,000, in default to suffer further
imprisonment for 9 months. The appeal by the State against all the other
accused directed against their acquittal under Section 120B of Indian Penal
Code was dismissed by the High Court and the appeal against acquittal of
Parsoo and Durga for the offences punish-able under Sections 302, 394 and
Section 397 of Indian Penal Code was also dismissed. Against the order of
conviction and sentence passed by the High Court, accused No. l Gulab Chand
has preferred the instant appeals No. 140-140A/84.
The learned counsel Mr. Amtiaz Ahmed, appearing as amicus curie for the
appellant Gulab Chand has submitted that there is no evidence worthy of
credence to establish the crime of murder and dacoity by Gulab Chand for
which his conviction under Section 302, 392 and 397 of the Indian Penal
Code is warranted. In the absence of any convincing evidence, the learned
Sessions Judge had acquitted the appellant of the charge under Sections
302, 394 and 397 of the Indian Penal Code. He has submitted that
appellant’s case was that the ornaments stated to have been recovered
either from his possession or from the shop, belonged to him and the
members of his family. Unfortunately, such case has not been accepted
either by the learned trial court or by the High Court. But for possession
of such ornaments even if stolen, no conviction under Section 320, 394 and
397 of the Indian Penal Code can be based. The learned Sessions Judge was
fully justified in convicting the appellant under Section 380 of the Indian
Penal Code and there was no occasion to interfere with the well reasoned
judgment of the learned Sessions Judge. The learned counsel for the
appellant has also submitted that no motive for dacoity or murdering the
deceased has been established by leading convincing evidence. The decision
rendered by the High Court lies more on surmise than on facts proved beyond
reasonable doubt. It has been submitted that in a case for conviction on
account of circumstantial evidence, the evidence must be very clear and
specific so that the entire chain of events justifying complicity of the
accused is clearly established to such an extent that irresistible
conclusion about the guilt of the accused can be safely drawn. The learned
appellant has submitted that possession of stolen articles ipso facto does
not warrant a conclusion that such stolen articles were received only by
committing robbery and murder, as alleged by the prosecution. He has,
therefore, submitted that there has been gross miscarriage of justice so
far as the appellant is concerned and this appeal should be allowed and the
impugned order of conviction passed against the appellant should be set
aside.
We have considered the judgment passed by the learned Sessions Judge and
also by the High Court and we have been taken through the evidences adduced
in this case. It has been established in the instant case that the
appellant Gulab Chand was taken into custody on 27th April, 1979 by the
police and when the police searched his house with the key supplied by the
accused, a musical instrument called Banjo was found in his room and from
inside the said instrument, the police seized golden Tabij (Article 10),
two pair of Jhumkas (Article 11), Shrinagaridan (Article 9), silver bangles
(Art. 7), one brass Bungari (Art. 21) and currency notes worth Rs. 1200. It
has also been established in this case that on the information given by the
said accused, the police seized certain silver ornaments from PW. 12.
Balram from his shop at Jabalpur and it has been established that the
accused sold the said ornaments to Balram and signed in the register
maintained by Balram in proof of selling the said ornaments. It has also
been established by cogent evidence that the said ornaments belonged to the
deceased. It may be stated that 29th May, 1979, a test identification
Parade was held in which the recovered ornaments were duly identified as
belonging to the deceased by Durgaprasad and other witnesses. It is true
that simply on the recovery of stolen articles, no inference can be drawn
that a person in possession of the stolen articles is guilty of the offence
of murder and robbery. But culpability for the aforesaid offences will
depend on the facts and circumstances of the case and the nature of
evidence adduced. It has been indicated by this Court in Santhanakrishnan
v. State of Rajasthan, AIR (1956) SC 54, that no hard and fast rule can be
laid down as to what inference should be drawn from certain circumstances.
It has also been indicated that where only evidence against the accused is
recovery of stolen properties, then although the circumstances may indicate
that the theft and murder might have been committed at the same time, it is
not safe to draw an inference that the person in possession of the stolen
property had committed the murder. A note of caution has been given by this
court by indicating that suspicion should not take the place of proof. It
appears that the High Court in passing the impugned judgment has taken note
of the said decision of this Court. But as rightly indicated by the High
Court the said decision is not applicable in the facts and circumstances of
the present case. The High Court has placed reliance on the other decision
of this Court rendered in Tulsiram v. State, AIR (1954) SC 1. In the said
decision, this court has indicated that the presumption permitted to be
drawn under Section 114, illustration (a) of the Evidence Act has to be
read along with the ‘important time factor’. If the ornaments in possession
of the deceased are found in possession of a person soon after the murder,
a presumption of guilt may be permitted. But if Several months had expired
in the interval, the presumption cannot be permitted to be drawn having
regard to the circumstances of the case. In the instant case, it has been
established that immediately on the next day of the murder, the accused
Gulab Chand had sold some of the ornaments belonging to the deceased and
within 3-4 days, the recovery of the said stolen articles was made from his
house, at the instance of the accused. Such close proximity of the
recovery, which has been indicated by this Court as an “important time
factor”, should not be lost sight of in deciding the present case. It may
be indicated here that in a later decision of this Court in Earabharappa v.
State of Karnataka, [1983] 2 SCC 330, this Court has held that the nature
of the presumption and illustration (a) under Section 114 of the Evidence
Act must depend upon the nature of evidence adduced. No fixed time limit
can be laid down to determine whether possession is recent or otherwise and
each case must be judged on its own facts. The question as to what amounts
to recent possession sufficient to justify the presumption of guilt varies
according as the stolen article is or is not calculated to pass readily
from hand to hand. If the stolen articles where such as were not likely to
pass readily from hand to hand, the period of one year that elapsed cannot
be said to be too long particularly when the appellant had been absconding
during that period. In our view, it has been rightly held by the High Court
that the accused was not affluent enough to possess the said ornaments and
from the nature of the evidence adduced in this case and from the recovery
of the said articles from his possession and his dealing with the ornaments
of the deceased immediately after the murder and robbery a reasonable
inference of the commission of the said offence can be drawn against the
appellant. Excepting an assertion that the ornaments belonged to the family
of the accused which claim has been rightly discarded, no plausible
explanation for lawful possession of the said ornaments immediately after
the murder has been given by the accused. In the facts of this case, it
appears to us that murder and robbery have been proved to have been
integral parts of the same transaction and therefore the presumption
arising under illustration (a) of Section 114 Evidence Act is that not only
the appellant committed the murder of the deceased but also committed
robbery of her ornaments. We therefore do not find any reason to interfere
with the impugned decision of the High Court and accordingly this appeal
fails and is dismissed.
The appellant has been released on bail. He should be taken into custody to
undergo the sentence.