the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12.09.1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused. 12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming. 13. In view of what has been found above, we do not see as to how the charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1460 OF 2011
RAJ KUMAR @ RAJU …APPELLANT

VERSUS

STATE (NCT OF DELHI) …RESPONDENT

J U D G M E N T

RANJAN GOGOI, J.
1. The accused appellant had been convicted by the learned trial
Court for the offence punishable under Section 302 read with Section 34 IPC
and has been sentenced to undergo rigorous imprisonment for life and a fine
of Rs.2,000/-, in default, to suffer rigorous imprisonment for a period of
two months more. He has also been convicted under Section 411 IPC and
sentenced to undergo rigorous imprisonment for one year. Both the
sentences were directed to run concurrently. In appeal, while the
conviction under Section 302 IPC has been maintained along with sentence
imposed, the conviction under Section 411 IPC has been set aside. Instead,
the accused appellant has been convicted for commission of offence
punishable under Section 392 IPC and sentenced to undergo rigorous
imprisonment for one year for commission of the said offence. Aggrieved,
this appeal has been filed.
2. We have heard the learned counsels for the parties.
3. The entire case of the prosecution is based on circumstantial
evidence. P.W.5 – Ombir Singh, the husband of the deceased in his
deposition has stated that he resides with his wife, three children, his
sister Raj Bala (P.W.9) and niece Sarvesh (P.W.21). Accused Raj Nirmal
Gautam @ Raju (since deceased) was a tenant in one of the two rooms in
their house. On 11th September, 1991 at around 9.00 p.m. accused Raj Nirmal
Gautam along with the present appellant Raj Kumar and one more person named
Dharmender alias Babloo came to his house and together they played a game
of cards. After some time he went to his room and slept. Raj Nirmal, Raj
Kumar (appellant herein) and Dharmender stayed in the room for the night
and left early next morning at about 6.30 a.m. While leaving, accused Raj
Nirmal told P.W. 5 that he was going to his village and may not return for
the night. At around 7.30 a.m., his sister Raj Bala (P.W.9) who used to
reside with him, his niece Sarvesh and the children left for school. He
also left for his workplace at around 7.35 a.m. According to P.W. 5, at
about 2.30 p.m. he received a telephone call in his office informing him
that his wife had met with an accident. He, therefore, reached home by
3.30 p.m. and found the dead body of his wife. The almirah was found
unlocked and all the goods therein lying scattered. A number of jewellery
items including gold ornaments were found missing.
4. The accused Raj Nirmal Gautam and Raj Kumar (appellant herein)
were apprehended on 16th September, 1991 when they were alighting from a
bus. On their personal search, various jewellery items were recovered from
them which were duly seized by seizure memos Ex.PW-14/C and Ex.PW-14/D. The
jewellery items so recovered from the possession of the accused were
identified by P.W.5 (Ombir Singh) to be belonging to his wife. The accused
had no reasonable explanation to offer for their possession of the
jewellery items. They however claimed that they were not guilty.

5. P.W. 21 – Sarvesh deposed that at around 10.15 a.m. she had
come back to the house for lunch and at that time she found the accused
persons present in the house and were playing cards. Her aunt gave her
lunch and after that she again left for school. When she returned at 1.00
p.m. she saw her aunt Suman lying in the kitchen. P.W. 21 was, however,
disbelieved by the learned trial Court as she was found to have falsely
implicated accused Jagpal who has been acquitted by the learned trial
court.
6. P.W.9 – Raj Bala, sister of P.W.5, in her evidence had deposed
that in the night of 11.09.1991 the accused persons were in the room and
they had left early in the morning of the next day. She has further deposed
that she is a teacher in the school and had accompanied P.W.21 and the two
children of P.W.5 to school in the morning at about 7.30 a.m. She has also
deposed that at about 12.00–12.30 p.m. she had sent the two children of
P.W.5 back home with an Aaya and on being informed by the Aaya that her
sister-in-law (deceased) was not available in the house, she came home to
find her sister-in-law lying dead in the kitchen.
7. P.W.12 – Dhani Ram had deposed that he had seen the accused
persons moving around in the neighbourhood looking perplexed. An attempt
was made to discredit the said witness in view of his further deposition
that he had seen the accused in police custody on 13th September, 1991
whereas, according to the prosecution, accused were arrested on 16th
September, 1991 when they were alighting from a bus. The said contention
was negatived by the High Court on the ground that the aforesaid
discrepancy is on account of wrong recapitulation and confusion over the
specific dates.
8. P.W. 15 – Raj Kumar, a TSR driver, also deposed that he had
occasion to take the three persons including appellant Raj Kumar in his TSR
at about 11.00 a.m. on 12th September, 1991 and in the course of their
conversation he had overheard them discussing as to whether they should
have killed “her” or not. P.W. was disbelieved by the High Court on the
ground that the conversation attributed by him to the accused is opposed to
normal human behavior and conduct.
9. This is the sum total of the evidence on record. From the
above, it transpires that there are two material circumstances which have
been proved by the prosecution. Firstly, that in the night prior to the
incident i.e. on 11th September, 1991 the accused were present in the
house; and secondly that on 16th September, 1991 from the possession of the
accused persons recovery of gold ornaments was made which belonged to the
deceased. Such possession has not been explained by the accused. Even if
the court is to accept the evidence of P.W.12 that in the morning of the
day of the incident the witness had seen the accused in the neighbourhood
in a perplexed state, notwithstanding the contradictions and
inconsistencies in the said evidence as already noticed, at the highest,
another circumstance could be added to the above two, namely, that the
accused persons were seen in the neighbourhood in the morning of the
incident. The question that confronts the court is whether on the basis of
the aforesaid circumstances the case of the prosecution can be taken to
have been proved beyond all reasonable doubts.
10. Learned counsel for the appellant would contend that the
aforesaid circumstances do not conclusively point to the involvement of the
accused appellant in the crime. The chain leading to the sole conclusion
that it is the accused persons and nobody else who had committed the crime
is not established by the three circumstances set forth above, even if all
of such circumstances are assumed to be proved against the accused.
Reliance has also been placed on the decision of this Court in the case of
Sanwat Khan and Anr. vs. State of Rajasthan[1], wherein this Court had
taken the view that recovery of ornaments of the deceased from the accused
or production of the same by the accused in the course of investigation,
howsoever suspicious, cannot be conclusive of the question of the accused
having committed the offence. As per Illustration (a) to Section 114 of the
Evidence Act, 1872 though recovery of the ornaments can lead to presumption
that the accused had committed robbery or received stolen property, unless
there are circumstances to show that the theft/robbery and the murder took
place in the same transaction, the accused would not be liable for the
offence under Section 302 IPC.
11. The facts in Sanwant Khan (supra) bear a striking resemblance
to the facts that confront us in the present appeal. If the evidence of
P.W.12 is to be discarded on the ground that such evidence is vague, (there
is no mention of the date on which P.W.12 had seen the accused person in
the neighbourhood and also as the said testimony runs counter to the
prosecution case about arrest of the accused on 16.09.1991) the last seen
theory built up on the evidence of P.W.5 and P.W.7 leaves a significant
margin of time during which the crime could have been committed by somebody
other than the accused. The said fact must go to the benefit of the
accused. In this regard, it may be recollected that P.W.5 and P.W.7 have
deposed that they had last seen the accused person in the early morning of
the date of the occurrence i.e. 12.09.1991 and that they were going away to
some other place. Even if the evidence of P.W.12 is to be accepted, all it
can be said is that the evidence of the said witness read with the evidence
of P.W.5 and P.W.7 disclose that the accused persons were seen in the
vicinity of the neighbourhood of the crime little before the same was
committed. By itself, the said circumstance cannot lead to any conclusion
consistent with the guilt of the accused.
12. The above circumstance, if coupled with the recovery of the
ornaments of the deceased from the possession of the accused, at best,
create a highly suspicious situation; but beyond a strong suspicion nothing
else would follow in the absence of any other circumstance(s) which could
suggest the involvement of the accused in the offence/offences alleged.
Even with the aid of the presumption under Section 114 of the Evidence Act,
the charge of murder cannot be brought home unless there is some evidence
to show that the robbery and the murder occurred at the same time i.e. in
the course of the same transaction. No such evidence is forthcoming.
13. In view of what has been found above, we do not see as to how
the charge against the accused/appellant under Section 302 IPC can be held
to be proved. The learned trial court as well as the High Court, therefore,
seems to be erred in holding the accused guilty for the said offence.
However, on the basis of the presumption permissible under Illustration (a)
of Section 114 of the Evidence Act, it has to be held that the conviction
of the accused appellant under Section 392 IPC is well founded.
Consequently, we hold that the prosecution has failed to bring home the
charge under Section 302 IPC against the accused and he is acquitted of the
said offence. The conviction under Section 392 IPC is upheld. As the
accused appellant, who is presently in custody, had already served the
sentence awarded to him under Section 392 IPC, we direct that he be set at
liberty forthwith.
14. The appeal, consequently, is partly allowed in terms of the
above.

………………..,J.
(RANJAN GOGOI)
………………..,J.
(ASHOK BHUSHAN)

NEW DELHI
JANUARY 20, 2017
———————–
[1] AIR 1956 SC 54

Advertisements
This entry was posted in Uncategorized and tagged . Bookmark the permalink.