Sonu @ Sunil vs The State Of Madhya Pradesh

SONU @ SUNIL ... APPELLANT(S)

VERSUS

STATE OF MADHYA PRADESH ... RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. The appellant was tried with 4 others and was convicted under Sections 394, 460 and 302 read with

Section 34 of the Indian Penal Code, 1860 (hereinafter

referred to as, ‘the IPC’, for short). He was also

found guilty of offences under Sections 11 and 13 of

the Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam,

1981 (hereinafter referred to as, ‘Madhya Pradesh

Adhiniyam’). The appellant was, in fact, sentenced to

death for the offence under Section 302 read with Signature Not Verified Digitally signed by GULSHAN KUMAR Section 34 of the IPC along with two other accused ARORA Date: 2020.05.29 16:57:08 IST Reason:

apart from a fine of Rs. 5000/-. He was sentenced to

1 10 years Rigorous Imprisonment in regard to the offence

under Section 460 of the IPC. He was also handed down

a sentence of 10 years for the offence under Section

394 read with Section 34 of the IPC. Still further, he

was also sentenced to 7 years for the offence under

Sections 11 and 13 of the Madhya Pradesh Adhiniyam. By

the impugned judgment, the High Court answered the

death reference by holding that in the circumstances,

the death penalty was not warranted. In place of death

penalty, the High Court sentenced the appellant and two

other accused to life imprisonment and enhanced the

fine to Rs. 25,000/-. The appeal filed by the appellant

was dismissed otherwise. The prosecution case, in

brief, appears to be as follows:

On 08.09.2008, in the night, Bharosilal

(hereinafter referred to as, ‘the deceased’,

for short) was at his village Bilaua. He was

residing alone. One Abhay Sharma-PW9, who is

the son of the deceased, was informed by one

Neeraj Bhargav that his father has not opened

the door on that day. On receiving such

information, PW9, who also turned out to be

2 the complainant, finally went to his father’s

residence and it was found that his father was

dead and the First Information Report (FIR)

was lodged on 10.09.2008. On the basis of the

investigation conducted, Kalli, Hariom, Veeru,

Virendra and the appellant came to be charged

with the offences as noticed. In fact, the

appellant was charged under Section 397 of the

IPC also.

2. PW1 to PW15 were examined as prosecution witnesses. Material objects were also produced. The following are

the questions, which were framed by the Trial Court:

“(i) Whether accused Kalli @ Gopal Sharma, Sonu @ Sunil and Hariom on the date of incident after sunset and before sunrise after committing house tress pass in the residential house of deceased Bharosilal, committed the murder of Bharosilal?

(ii) Whether accused Kalli @ Gopal Sharma, Sonu @ Sunil and Hariom formed common intention to commit murder of Bharosilal?

(iii) Whether accused Kalli @ Gopal Sharma, Hariom and Sonu @ Sunil in fulfilment of their common intention committed murder of Bharosilal by strangulation and cutting by a chhuri (knife)?

3 (iv) Whether accused Kalli @ Gopal Sharma, Hariom and Sonu @ Sunil by using deadly weapon in committing robbery, committed the murder of Bharosilal and looted gold and silver jewellery and two mobile phones of Nokia made from the possession of Bharosilal?

(v) Whether accused Veeru and Virendera along with accused Kalli @ Gopal Sharma, Hariom and Sonu @ Sunil, at the house of accused Virendra Singh, Kushmah hatched conspiracy of committing robbery in the house of Bharosilal?

(vi) Whether the accused persons committed the offence defined and specified under Section 2(b) of MPDVPK Act and committed the offence u/s 11/13 of the above said Act?”

3. The Trial Court found that it was a case entirely based on circumstantial evidence. It noticed that the

deceased had suffered the following injuries:

“Injury No.1 Incised of 6x1.5x1 c.m. on the right side of the chin.

Injury No. 2 Incised wound of 4 x 1 ½ cm below 1 cm from the injury no. 1.

Injury No. 3 Incised wound of 6 x 3 x 2cm left fore arm anteriority middle.

Injury No. 4 Incised wound of 6 x 1 x 1cm, just 2cm below injury no. 3.

Injury No. 5 Incised wound of 6 x 1 x 1cm, just 2cm below injury no. 4.

4 Injury No. 6 Incised wound on abdomen 3” below measuring 3 x 2 x deep upto peritoneum, part of intestine coming out from the wound.”

4. The cause of death was found to be shock and hemorrhage due to excessive bleeding caused by

multiple wounds. The death was caused within 36 hours

of the postmortem report. The postmortem was conducted

on 10.09.2008. It cannot be disputed that the death

was homicidal and it was caused with the intent to

commit murder. The Trial Court further proceeded to

find that the certain articles were found missing from

the almirah in the house where the deceased stayed.

PW8 is wife of the deceased. PW9, as already noticed,

is one of the sons of the deceased. PW13 held

identification of the gold and silver jewellery and

the mobile phones, which according to them, belonged

to the deceased. The identified articles were

belonging to the deceased. One hasli (necklace) made

of silver, one pair of earrings and two mobile phones

were identified. The contention of the accused that

PW13, who held the identification proceedings, deposed

that at that time a Police Officer was present, was

5 rejected by finding that from the Identification Memo-

Exhibit P21, it was clear that no Police Officer was

present at the time of the identification of the

proceedings. The Court also relied upon the evidence

of PW8 and PW9, who were found to have not stated about

the presence of Police Officers at the time of the

identification proceedings. The evidence of PW9 and

the evidence of PW8, were also referred to, to find

that the Police came to open the door. It was opened

and it was seen that the almirah was opened and

goods/gold articles were scattered, and out of the

said goods, one hasli (necklace) made of silver, one

pair of gold earrings and two mobile phones, were

missing. The evidence of PW3-another son, was relied

upon to find that PW5 had overheard the conversation

between all the accused which was to the effect that

the deceased was living alone and they were making a

plan for committing a loot in his house. No doubt, the

Court also noticed that PW1, who was cited by the

prosecution, to prove the said conversation, turned

hostile. PW3 had also deposed that he was told by PW5

about having overheard the conversation between the

6 accused. The evidence of PW3 was relied upon to find

that both Virendra and Veeru used to come to massage

the body of his father and his father used to say that

they would be got employed. PW3 deposed about his

familiarity with accused Virendra, Veeru and Kalli

present in the Court. PW6- another son of the deceased,

has deposed that Kalli used to come to his village to

sell ghee and used to sit and talk with the deceased

and used to massage the body of his father. The Trial

court finds that Veeru, Virendra and Kalli used to

come and they were also acquainted with the deceased

and his family members. Thereafter, the Trial Court

also referred to the recoveries of the articles. From

Hariom, one mobile phone was recovered. From Kalli,

the Chhuri(knife), used for committing the offence,

was recovered. From the appellant, another mobile

phone of Nokia Company, Model 5110, of black colour,

upon which the Number 97321820 was written in red ink,

was also seized. The evidence of PW9 was relied upon

wherein he has deposed, that a Nokia Mobile on which

B.L. in English was written with red marker, and on

the battery of the same, Number 97321820 in red ink,

7 had been written, was stolen. From accused Virendra,

the recovery of hasli(necklace) was effected. From

Veeru, one pair of gold earrings was seized. On the

basis of the same, it was found that the stolen

property and weapon have been seized on the statement

of the accused, and that these circumstances,

completed the chain of circumstantial evidence.

Reliance was placed on the deposition by PW5, who had

overheard the conversation between the accused about

the criminal conspiracy. PW7, a witness to the recovery

statement of the appellant-Exhibit P13 and also

evidence of PW12- the Police Inspector, who arrested

the appellant, has been relied upon to prove the

statement leading to the recovery of the mobile from

the appellant. The following findings may be noted:

“In the above said analysis it is proved that there is criminal conspiracy amongst the accused persons to commit theft or loot in the house of deceased, on the basis of memorandum statement of accused Hariom, the looted mobile is recovered/ seized from the possession of accused Hariom on the basis of memorandum of accused Kalli @ Gopal Sharma and on producing by him one blood stained sharp edged chhuri (knife) used in the offence has been seized from the possession of accused Kalli @ Gopal Sharma. On the basis

8 of memorandum statement of accused Sonu @ Sunil and on producing by him the looted mobile Nokia is seized from accused Sonu @ Sunil. In the same manner on the basis of Accused Virendra one old and used hasli (necklace) made of silver is seized from the possession of accused Virendra. On the basis of accused Veeru and on producing by him the looted property i.e. one pair of earrings are seized by the police from the possession of accused Veeru. All the four looted properties i.e. two mobile phones, one hasli (necklace) and one pair of gold earrings have been identified by Rukmani (PW-8) and Abhay Kumar Sharma (PW-9) in identification proceedings and they admitted that the same belong to them. All these circumstances complete the chain of circumstances against the accused persons. The accused persons have not produced any evidence in rebuttal of the same. The defence did not explain the fact that the looted property and weapon of offence have been recovered from their possession in this situation it is clear that. The accused persons hatched criminal conspiracy of committing loot in the house of the deceased, accused Kalli @ Gopal Sharma, Hariom and Sonu @ Sunil has committed murder of deceased before sun rises and after sun set by entering in the house of the deceased.

From the criminal conspiracy and in fulfillment of the same and from the seizure of weapon of offence and looted property from the accused Kalli @ Gopal Sharma, Hariom, Sonu @ Sunil and no explanation of the same on behalf of defence it would be presumed that accused Kalli @ Gopal, Sonu @ Sunil and Hariom by entering in the house of deceased before sun rise and after sun set has committed

9 loot and in committing of the said loot has committed the murder of deceased Bharosilal Sharma by inflicting injuries with knife. Because at the time of committing loot all the three accused persons Kalli @ Gopal, Hariom and Sonu @ Sunil were present at the place of occurrence, all the three have also committed loot and in committing of the said loot the murder of deceased Bharosilal has been committed, from this it is clearly concluded that there were common intention amongst the accused persons Kalli @ Gopal, Hariom and Sonu @ Sunil to commit the murder of deceased Bharosilal. Therefore, the offence u/s460/302/34 against accused Kalli @ Gopal, Hariom and Sonu @ Sunil are proved beyond reasonable doubt.

So far as the question of offence u/s 397/34 IPC against accused Kalli @ Gopal, Hariom and Sonu @ Sunil is concerned the weapon used in the offence knife is only seized from accused Kalli @ Gopal Sharma, it is clear from the same that at the time of incident a chhuri, used in the incident which is deadly and sharp edged was in possession of accused Kalli @ Gopal Sharma.” (Emphasis supplied)

5. The appellant was found along with Hariom, guilty of the offence under Section 394 read with Section 34

of the IPC, whereas, Section 397 of the IPC was found

proved against Kalli. The Trial Court found Kalli

guilty under Section 397 read with Section 34 of the

IPC. Appellant was also convicted under Section 302

10 read with Section 34 of the IPC. Thereafter, it was

also found that the appellant and others were guilty

of the offences under Sections 11 and 13 of the Madhya

Pradesh Adhiniyam, based on the offences proved

otherwise.

6. The High Court, in appeal, proceeded to find that eleven circumstances emerged before the Trial Court:

i. The incident in connection with the loot took

place on 08.09.2008 after locking the doors from

inside in the house of the deceased who was

residing alone.

ii. That the postmortem confirms the prosecution

case. It is found that it is natural that on

09.09.2008 when the deceased did not appear to

be seen and was not responding on knocking the

door, Neeraj Bhargava informed PW9 that he was

not responding. PW9 and PW8 departed to the

place to know about the welfare of the deceased.

iii. Upon request of PW9, his neighbor-

Phoolchand climbed through the stairs and he

found the deceased with blood on his hand and

11 was lying dead. He went to the Police Station

Bilaua for lodging the report which was recorded

at about 11:30 P.M in night. The dead body was

referred for postmortem on the same day and the

FIR was lodged in the evening of 10.09.2008.

iv. On 10.09.2008, Ashok Kumar(PW3), in his Case

Diary Statement, disclosed that the Cell Phone

Number 9406586386, generally used by his father,

was also found missing. Another Cell Phone

Number 9928120429, which was made available by

son of deceased, was also found missing.

v. Investigation was conducted by PW15 and

initially names of the assailants were not

dictated by that time.

vi. The successor of PW15-(PW14) conducted

subsequent investigation. Statements of

witnesses were recorded, call details of stolen

mobile sets from Cyber Cell was received. On

18.10.2008, he came to know the names of

assailants from Cyber Cell. Within two days,

arrests were made of the accused, viz., Kalli,

12 Hariom, Parihar, Virendra Kachhi and Veeru. The

Churri(knife) was seized from accused Kalli, one

necklace from Virendra, one pair of gold

earrings from Veeru.

vii. The accused cannot get benefit for the

inaction/ latches of the investigation.

viii. On 02.11.2008, D.P. Sharma-PW12, arrested

appellant and recovered from him one mobile

phone bearing SIM No. 97321820.

ix. As per medical evidence, it is clear that the

deceased was put to death by the accused or any

one of them. Looking to the nature of the

incised wounds seen on the body of the deceased,

the death appears to be homicidal.

x. Identification of properties, which were

seized/ recovered in between 18.10.2008 to

02.11.2008, was conducted on 10.12.2008, which

cannot be said delayed because the persons who

have identified the articles, were the residents

of Gwalior.

13 xi. The motive of the incident is apparently

clear. It was committed for committing

loot/theft, and during the incident of theft,

the deceased was killed by the accused.

7. We have heard learned Senior Counsel for the appellant and also learned counsel for the state.

Learned Senior Counsel would complain that there is no

evidence against the appellant for convicting him for

the offences, he has been found guilty of. He

complained that the Court’s below have erred in placing

reliance upon PW-5 who allegedly overheard the

conversation between the five accused persons by

standing outside the house of one of them. He points

out that the witness could not be believed. It is

pointed out that PW-1 who was cited by the prosecution

to prove the said conversation has not adhered to the

version which was sought to be attributed to him. It

is highly improbable that PW-5 could have overheard

any such conversation. He pointed out that a clear

discrepancy in regard to the recovery of the mobile

phone from the appellant. In the memorandum relating

14 the alleged recovery of the mobile phone, what is

stated is that the appellant took one mobile phone

make of Nokia of the deceased and he has hidden the

same on the roof of his house. The seizure memo reveals

the following as what was recovered:

“ S.No. Property Signatures obtained on packets or property

1. One mobile phone of Nokia company of black colour old and used, model No. 5110 made in Finland CE 0188X no.

490541/30/26305416 is written. Code No. 0502182 is written. B.L. is written on the mobile in red ink and on its battery a no. 97321820 is written with red ink.

(some portion not illegible).

“

8. He would then point out that the High Court, in the recital of circumstances, has found that a Cell

Phone Number 9928120429 was found missing, and then he

points out the eighth circumstance, which is noted by

the Court, is that one mobile phone, bearing SIM Number

97321820, was recovered from the appellant. Therefore,

the phone that was seized from the appellant was not

15 the phone number which was mentioned by the son of the

deceased, PW-3, as was being used by his father. He

further pointed out about the mysterious maxi found at

the premises. In this regard, we may notice the

following findings by the Trial Court:

“It is argued on behalf of defence that one blood stained and sleeveless maxi of white colour having lines of brown colour, the lower portion of the same is blood stained and the same is used is seized by the police wide Ex P-6 from the place of occurrence, while there was no woman present at the place of occurrence. In such a situation, on account of seizure of maxi from the place of occurrence, the presence of any woman at the time of the incident is proved, but who was that woman, the prosecution did not produce any evidence in this regard hence, the prosecution case is doubtful. Only recovery/ seizure of blood stained maxi from the place of occurrence does not make doubtful to the prosecution case. Human blood was detected on the shirt of deceased and on the said maxi, there is no evidence that there was blood of any other person on the maxi. Because the wife of the deceased Rukmani Sharma is alive and Rukmani Sharma (Pw-8) has admitted in her cross examination that she used to go occasionally to the house/ place of occurrence at Bilaua. In this sitation where there are visits of the wife of deceased in the house then this probability could not be denied that the said maxi would be of the wife of the deceased. In this situation from the

16 seizure of maxi from place occurrence the incident could not be doubtful.”

9. He would point out that the Investigating Officer admitted that he did not carry out any investigation

regarding the maxi. He would further contend that there

is no evidence, as far as the appellant is concerned,

to convict him of the offences. The evidence, even

according to the prosecution witnesses, show that the

other accused, viz., Veeru, Virendra and Kalli, were

known to the prosecution witnesses as persons who would

frequent the house of the deceased. As far as the

appellant is concerned, there is no such evidence. In

short, the contention is that the case is one where

the appellant is convicted without any evidence and

the injustice may be set right.

10. Per contra, learned Counsel for the State

supported the judgment.

11. As already noticed the appellant stands convicted under Section 460, 302 read with Section 34 of the IPC

and Section 394 read with Section 34 of the IPC. This

is besides convicting the appellant under Sections 13 17 and 14 of the Madhya Pradesh Adhiniyam. The case hinges

entirely on circumstantial evidence. Though eleven

circumstances have been enlisted by the High Court,

the circumstances Nos. 2 and 3 relate to the

prosecution version as to the discovery of the death

of the deceased by his son and his wife. They relate

to going to the place of his residence, finding out

the dead body and the lodging of the FIR. Circumstance

No. 5 also does not amount to a circumstance. Equally,

we are not convinced that the circumstance No. 7, viz.,

that the accused cannot get benefit for the

inaction/latches of the investigation, can amount to

a piece of circumstantial evidence for the prosecution

to discharge its burden to prove the case against the

accused.

12. The circumstances, which can be culled out, can be put as follows:

The deceased died in his house where he was living alone, as a result of shock and hemorrhage from 6 incised wounds as noticed and proved by medical evidence. The death is homicidal too. There were valuable articles, namely, a silver necklace, gold earring and two mobile phones which were found missing too. These articles have been recovered

18 from the accused as already mentioned.

A knife stood recovered from Kalli, one of the accused. The other valuable articles identified by the closed relative, namely, his wife and his son stood recovered. From the articles so recovered, one mobile phone was recovered from the appellant.

13. There is evidence of prosecution witnesses that out of the five accused, viz., Kalli, Veeru and

Virendra used to frequent the house of the deceased.

The over hearing of the conversation by PW-5 amongst

the accused prior to the death of the deceased about

their plans to commit loot/theft from the house of the

deceased is another circumstance relied upon.

WHETHER A MOBILE PHONE WAS RECOVERED BASED ON STATEMENT BY APPELLANT

14. PW12 has deposed that on 01.11.2008, after

arresting the appellant and on enquiry in custody, he

(appellant) made Statement-P13 to the effect that the

looted mobile seized was hidden on the loft of his

room and he would recover the same. He further deposed

that appellant took the looted mobile from the loft

and he prepared the Seizure Memo. In the

cross-examination, he states that the seized mobile

19 was of the deceased. He further stated that no

documents were produced. He denied that he had planted

the mobile from anywhere and false proceedings have

been done. PW7 has been examined to prove, inter alia,

that he was called to the Police Station, and after 15

to 20 days of the proceedings relating to the recovery

of the knife from Kalli, enquiry was made from the

person, who he has told was Sonu-appellant. On making

enquiry, he gave an information in respect of the

mobile. He deposed that he has signed on the

Statement-P13 [the Statement purportedly to be under

Section 27 of the Indian Evidence Act, 1872

(hereinafter referred to as, ‘the Evidence Act’, for

short)]. He also admits that he had signed on the

Seizure Memo prepared based on the

Statement-P14. Thus, PW7 and PW12 prove that a

statement was given by the appellant while in custody.

Based on the statement, a mobile phone was recovered

from the appellant. The recovery was from his house.

It was not from an open space.

20 WHETHER RECOVERED PHONE PROVED AS BELONGING TO THE DECEASED. EVIDENCE RELATED TO THE MOBILE PHONE, RECOVERED FROM THE APPELLANT

15. PW3-son of the deceased has this to say:

On 10.09.2008, his brother told him that some

persons had committed murder of his father causing

injuries with sharp-edged weapon and took away

goods/articles from the almirah. Along with this,

they also took away two mobile phones of his

father. The mobile phone of his father is

940655863866 which is of BSNL. The sim of the same

has been issued either from Dabra or Bilaua (We

are not concerned with this phone as this phone

has been recovered from another accused).

What is stated next is as follows:

The other phone bearing number 9920121429 make

of M-Nokia was fitted with square LKD Red LED which

had a light while charging the mobile. The mobile

was bought by him at Bombay prior to three months

ago when his father came to Bombay so that

information about him could be communicated.

21 He, however, also says in his cross-examination

that he had stated in his statement to the Police

that when his father came to Bombay, then, he had

given him another phone of make Nokia which had

LED and showing light while charging the mobile.

The mobile number of the other phone was mentioned

in Exhibit D1. He is unable to explain as to why

if such statement is not found in the statement

given by him to the Police. He said that again he

is unable to give the reason as to why it is not

mentioned in the statement to the Police that he

had stated that the father had two sims out of

which one was of Vodafone which was purchased from

Bombay. Lastly, he states in further cross as

follows:-

“Cross-examination by Sh. A.K. Shrotiya, Advocate for Sunu@Sunil.

I could not tell the date on which I had given mobile phone to my father the above said mobile I had purchased from Mahesh Gahera, Mahesh Gahera is residing Bombay he lived at Bandra the same was given in gift the EMI of the same. I could not tell today I can not produce a receipt of the same as I was given the above said mobile as gift to me by Mahesh Gahera, he deals in mobile phone he as several sets of the

22 same. My father had another mobile phone made of Nokia EMI no of the same I would not tell I neither have receipt of the same nor I could produce the same.”

16. PW9 is another son of the deceased, who has identified the mobile phones. This is what he has to

say in regard to the mobile phones:

The mobiles were of black colour and having

old antenna. On the battery of one mobile A-

9406586386 is written in red ink and on the other

mobile on the back side it is written capital ‘BL’,

in English and number 97321820 was written with

red marker. He says that after 8 to 10 days, when

they checked the goods, they came to know that

some articles had been stolen. He further states

that they had informed the Police by that day about

the theft of the mobiles. He and his mother went

to identify the goods. His mother was called first

and he went later.

It is to be remembered that PW3 says he had given

the mobile in question prior to 3 months ago when

deceased came to Bombay. The deceased was staying

23 alone. It is PW9 now who has identified by the number

written in the battery.

17. PW8 is the mother. She says first, on the next day, Police Officer came and they opened the room and

they saw that almirah was opened and articles were

scattered. Out of the articles, one hensli (necklace

made of silver), gold earrings and two mobile phones

of Nokia Company, were stolen. Except this, no article

was stolen. She says that identification of the

articles was got done by her. In cross-examination on

behalf of Kali alias Gopal, she says that on 11th or

12th, she came to know about the articles which were

stolen. She says that in her statement to the Police,

she has stated that on the next day of incident, the

almirah was opened and the articles were scattered

and, then, she came to know that her goods had been

stolen. She had not made any complaint anywhere in

respect of her stolen goods. She denies allegation

that they have concocted a false story of goods being

stolen after 8 to 10 days of the incident for creating

24 evidence. In this regard, it may be noticed that in

the evidence of PW9-son, he has stated that after going

to the lower room on the next day, he saw the almirah

on that day. Articles were lying outside. Therefore,

they guessed that something had been stolen. At that

time, it could not be known what had been stolen. After

8 to 10 days, when they checked the goods, they came

to know that some articles had been stolen.

18. In the Recovery Memo of the phone from the appellant, it is stated as follows:

One mobile phone of Nokia company of black

colour mode no. 5110, made in Finland, followed

by a certain number, code number is shown as

0502182 was written, BL is written on the mobile

in red ink and, on its battery, the number 97321820

is written with red ink.

19. According to the deposition of PW3, the recovery of phone which is attributed from the appellant, was

bearing number 9920121429. The High Court has, in the

impugned judgment, found that another Cell Phone

Number 9928120429, which was made available by his

25 son-PW3, was found missing. Thereafter, the finding by

the High Court is that D.P. Sharma, ASI arrested the

accused and on 02.11.2008 recovered from him one mobile

phone bearing sim number 97321820. It is clear that

the finding by the High Court that recovery was made

from the appellant of one mobile phone sim number

97321820, is clearly contrary to the version of PW3

who purchased or was gifted the phone which he

allegedly gave to his father. Even, according to the

Recovery Memo, the Number 97321820 is shown as the

number on the battery of the mobile phone. The number,

which is allegedly provided by PW3, is the Number

9920121429.

20. In Ashish Jain v. Makrand Singh and others1, it is held as follows:

“28. We find substance in the argument of the learned Amicus Curiae that this identification was not done in accordance with due procedure. It is evidence from the testimony of several of the examined pledgors, such as PWs 15, 16 and 28, that the identification procedure was conducted without mixing the recovered jewellery with similar or identical ornaments….”

1 (2019) 3 SCC 770

26

21. In this case also in regard to the mobile phone only the two mobiles were kept for identification and

it was purportedly identified as noticed by PW9 besides

PW8. In the identification conducted by PW13, it is

come out that two mobile phones were not mixed with any

other mobile phones

22. What is the effect of recovery of the mobile proceeding on the basis that it belonged to the

deceased? Section 114 of the Evidence Act with

illustration (a) reads as follows:

“114. Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations The Court may presume—

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;”

27

23. The scope of this provision has been considered by this Court on various occasions. In Sunder Lal alias

Sundera v. State of Madhya Pradesh2, both the accused

and deceased were seen together. After the alleged

murder, the accused went with the article belonging to

the deceased for pledging/selling it. In the

circumstances, the Court took the view that the

ornaments were established to be the ornaments worn by

the deceased. No explanation was forthcoming how the

accused came to be in possession on the very same day

on which the alleged murder was committed. On this,

the Court took the view that the conviction under

Section 302 of the IPC, based on the circumstances,

was correct.

24. On the other hand, in Sanwant Khan and another v. State of Rajasthan3, one Mahant Ganesh Das, who was a

wealthy person, used to live in a temple of Shri

Gopalji along with another person. Both of them were

found dead. The house had been ransacked and boxes and

almirah opened. It was not known at the time who

2 AIR 1954 SC 28 3 AIR 1956 SC 54

28 committed the offence. Investigation resulted in

arrest of the appellant, and on the same day, he

produced a gold khanti from his bara, where it was

found buried in the ground. Another accused produced

a silver plate. The Court found that there was no

direct evidence. There were certain circumstances

which were rejected by the Sessions Judge and the

solitary circumstance was the recovery of the two

articles. In these circumstances, the Court held,

inter alia, as follows:

“Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S. 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.

xxx xxx xxx

Here, there is no evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only

29 late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our Judgment, Beaumonth, C.J., and Sen J. in – Bhikha Gobar v. Emperor, AIR 1943 Bom 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference that the accused must have committed the murder.

xxx xxx xxx

In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. 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 murdered. Suspicion cannot take the place of proof.

(Emphasis supplied)

25. In Baiju v. State of Madhya Pradesh4, the Court held:

“14. The question whether a presumption should be drawn under illustration (a) of S. 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

4 AIR 1978 SC 522

30 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.”

That was a case where the Court found that

prosecution had proved the case.

26. This Court, in Shri Bhagwan v. State of Rajasthan5, held:

“11. The possession of the fruits of the crime, recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found is the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self-inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods

5 AIR 2001 SC 2342

31 are of such kind as in the ordinary course of such things frequently change hands.

It is not possible to fix any precise period. This Court has drawn similar presumption of murder and robbery in a series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation. Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447] was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at his instance. This Court observed: (Para 13)

“This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction.”

PW5, WHO OVERHEARD THE CONSPIRATORIAL CONVERSATION

27. In this case both the courts have apparently drawn strength from the testimony of PW5. PW5 is a person

whose evidence is virtually the sole testimony relied

on to prove the conspiracy to commit theft/robbery.

It is worthwhile to consider what he has deposed in

Court. He and Mohan Sharma, (who is PW1 and has turned

32 hostile) at the house of Virendra Kushwah (Virendra is

one of the accused in this case) found Virendra, Veeru

Dheemar and three other persons sitting and talking.

When they (PW1, PW5) passed in front of the gate, he

saw that they stopped talking. Then they went little

forward. He told that these goondas/miscreants

(Badmaash) seem to be outsiders. Let us listen to their

conversation. They heard, Virendra Kushwah and Veeru

were saying to the three persons that Bharosilal is an

old man and he has a lot of money and is living alone.

He and Veeru would remain here. Kalli-the appellant

and Hariom would go to the house of the deceased to

commit the theft. Then they left from there. Next day

it was known that someone had killed Bharosilal. In

the evening of the next day he refrained from telling

anyone because they were goondas. Later on, he told

the son of Bharosilal, whose name is Abhay, that these

five accused have committed murder. He identified

them. In cross, he says his house is far from where

the goondas were making conversation. On the 16th day,

when the Police came for inquiry, he told all the above

things to the Police. He himself did not tell by going

33 to the Police Station. He says that he has seen all

the three persons (which apparently includes the

appellant) at the Police Station. On 16.10.2008, when

he was called at the Police Station, at that time, all

the three persons were sitting. [The arrest of the

appellant, it may be noted, is made by PW-12 only on

01.11.2008]. He deposed that he did not also see the

accused persons at the Police Station. The Police made

inquiry in the office and these three accused persons

were detained in the Police Station. The police

officials also not shown him the three accused persons

at there. He further says that when the accused persons

were sent to jail, then S.I. had shown to him the

accused persons in the vehicle. The names of all the

three were told and all the three were got identified.

He further says that he had got knowledge of the names

of all the three persons when Police recorded his

statement, i.e., after 8 to 10 days from 16.10.2008.

Then, he came to the name of the remaining three

persons. In earlier cross-examination on behalf of

another accused, he has stated in his statement that

till the Police recorded his statement. He did not

34 know about the residence of the three persons whose

names he has told except Virendra and Veeru but they

seemed to be outsiders. He further says that he has no

knowledge of the fact that the persons who were sitting

in the house of Virendra, if they were uttering by

taking wrong names of each other. He, no doubt, says

that there was light in the house of Virendra. The

light of the same was scattered.

28. In the case of recovery of an article from an accused person when he stands accused of committing

offences other than theft also, (in this instance

murder), what are the tests:

i. The first thing to be established is that the theft and murder forms part of one transaction.

The circumstances may indicate that the theft

and murder must have been committed at the same

time. But it is not safe to draw the inference

that the person in possession of the stolen

property was the murderer [See Sanwant Khan

(supra)];

ii. The nature of the stolen article;

35 iii. The manner of its acquisition by the owner;

iv. The nature of evidence about its identification;

v. The manner in which it was dealt with by the accused;

vi. The place and the circumstances of its recovery;

vii. The length of the intervening period;

viii. Ability or otherwise of the accused to explain its possession [See Baiju (supra)].

29. In this case, applying the tests as above, we find as follows:

I. The appellant has not given any explanation as

to how he came by possession of the mobile. He

has no explanation in his questioning under

Section 313 of the Code of Criminal Procedure,

1973 (hereinafter referred to as ‘the CrPC’, for

short);

II. As far as length of the intervening period is concerned, recovery was effected on 02.11.2008

whereas the date of the incident is 08.09.2008.

36 That means, a gap of less than two months. The

arrest of the appellant was effected on

01.11.2008, i.e., a day before the recovery;

III. As far as nature of the article is concerned, it was a mobile phone which was capable of being

transferred by mere delivery. No doubt, it would

contain a sim which may connect the phone with

the previous owner or person in possession. It

is also common knowledge, however, that it may

be open to the person, who possesses the mobile,

to equip it with a new sim;

IV. As far as identification is concerned, we have already seen the nature of the evidence;

V. It is not in dispute that the two mobile phones

were kept and they were not mixed with any other

similar looking mobile phones.

30. The appellant, along with the others, were charged under the offences with the aid of Section 34 of the

IPC. The finding by the Trial Court in this case is

that there was a criminal conspiracy hatched to commit

37 robbery. As far as Section 34 is concerned, it

proclaims the principle of vicarious criminal

liability. The soul of the Section, and the principle

which underlies criminal liability for the acts of

another therein, is the shared intention or the common

intention to commit an offence. The common intention

must be for the very offence which the accused is

charged with. In this case, it is to be noted that

though there is a charge of causing death by

strangulation, the finding is that the death was caused

as a result of the injuries inflicted with the knife.

The knife was, apparently, carried and wielded by the

co-accused-Kalli. From him, in fact, the recovery of

the knife was also effected which becomes all the more

reason for us to conclude that it will be totally

unsafe to convict the appellant of the charges of which

he is found guilty including Section 302 of the IPC

based only on the recovery of the mobile phone where

the recovery itself suffers from suspicion and doubt.

We may, in this regard, notice the view expressed by

38 this Court in Hardev Singh and others v. State of

Punjab6: -

“9. The view of the High Court that even the person not committing the particular crime could be held guilty of that crime with the aid of Section 34 of the Penal Code if the commission of the act was such as could be shown to be in furtherance of the common intention not necessarily intended by every one of the participants, is not correct. The common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention. Then only others can be held to be guilty………..” (Emphasis supplied)

31. In Arun v. State by Inspector of Police, Tamil Nadu7, this Court, dealing with the case where Section

34 of the IPC was sought to be invoked against the

appellant in the matter of committing the offence of

murder. No doubt, it was a case where there was no

charge or evidence that he committed the murder. This

Court referred to the tests laid down in the decision

in Dharam Pal v. State of Haryana8 and we would refer

6 AIR 1975 SC 179 7 2008 (15) SCC 501 8 1978 (4) SCC 440

39 to paragraphs 14 and 15 of the said judgment. The same

reads as under:

“14. It may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.

15. A criminal court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. There is no law to our knowledge which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit.

The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender.” (Emphasis Supplied)

40

32. As far as the presumption being drawn of common intention, we notice the judgment of this Court in

Brijlal Pd. Sinha v. State of Bihar9:

“11……..The liability of one person for an offence committed by another in the course of a criminal act perpetrated by several persons will arise under Section 34 of the Penal Code, 1860 only where such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention will, of course, be difficult to get and such intention can only be inferred from the circumstances. But the existence of a common intention must be a necessary inference from the circumstances established in a given case. A common intention can only be inferred from the acts of the parties. Unless a common intention is established as a matter of necessary inference from the proved circumstances the accused persons will be liable for their individual act and not for the act done by any other person. For an inference of common intention to be drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas had taken place amongst the different accused and in prosecution of it, the overt acts of the accused persons flowed out as if in obedience to the command of a single mind. If on the evidence, there is doubt as to the

9 1998 (5) SCC 699

41 involvement of a particular accused in the common intention, the benefit of doubt should be given to the said accused person. ….”

33. In Girija Shankar v. State of U.P.10, this Court made the following observations:

“9. …… In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime.….” (Emphasis supplied)

34. Thus, in this case, as far as the appellant is concerned, the evidence against him essentially

consists of the recovery of the mobile phone and there

is discrepancy about the number which we have noted.

PW5 has not taken the name of the appellant.

Essentially evidence of PW5 and the recovery is relied

on to hold that the chain of circumstances is complete.

We have noticed the testimony of PW5. The appellant is

10 2004 (3)SCC 793

42 not mentioned as one of the persons who used to visit

the deceased’s father though three of the other accused

were named, viz., Veeru, Kalli and Virendra. There is

complaint from the appellant that no Test

Identification Parade was conducted for the accused.

We have referred to what PW5 has deposed.

35. In the facts of this case, we are inclined to think that it would not be safe to uphold the conviction of

the appellant. He would be entitled to the benefit of

doubt. We allow the appeal. The impugned judgment in

so far as it relates to the appellant will stand set

aside and he will stand acquitted. The appellant’s

bail bond shall stand discharged. He will be set at

liberty if his custody is not required in connection

with any other case.

…………………………………………………J. [SANJAY KISHAN KAUL]

…………………………………………………J. [K.M. JOSEPH] NEW DELHI;

MAY 29, 2020.

43