Full Judgment Text
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CASE NO.:
Appeal (crl.) 664 of 2000
Appeal (crl.) 682 of 2000
Appeal (crl.) 683 of 2000
PETITIONER:
SANJAY @ KAKA SHRI NAWABUDDIN @ NAWAB VINOD KUMAR
Vs.
RESPONDENT:
THE STATE (N.C.T. OF DELHI)
DATE OF JUDGMENT: 07/02/2001
BENCH:
K.T. Thomas & R.P. Sethi.
JUDGMENT:
SETHI,J.
In the broad day light and in the capital city of the
country, the appellants and one Mohabat Ali, the four young
desperados entered the premises No.F-8/5, Model Town,
Part-II, Delhi to commit robbery, in consequence of which
Smt.Sheela was stabbed to death. The occurrence which took
place on 20th June, 1990 is not the isolated act so far as
the law and order and life and liberty of the people of the
capital city and other parts of the country are concerned.
By killing the deceased and subjecting Amarjeet Sharma to
the threat of being killed by pointing a revolver at him,
the resistance of the commission of the intended crime was
immobilised. After registration of the First Information
Report and completion of the investigation, charge-sheet was
filed against the accused persons under Sections 302, 394,
397, 398, 342, 120B and 411 IPC besides Sections 25, 27, 54
and 59 of the Arms Act and Section 5 of the Terrorist and
Disruption Activities (Prevention) Amendment Act, 1993
(hereinafter referred to as "TADA (P) Act"). The trial
court found appellant Vinod guilty of offences under Section
392/34, 397 and 302 IPC, besides Section 5 of the TADA(P)
Act. He was sentenced to imprisonment for life and a fine
of Rs.2,000/- for the offence under Section 302 IPC, for
seven years rigorous imprisonment for the offence under
Sections 397, 392/34 and was also sentenced to rigorous
imprisonment for five years and a fine of Rs.2,000/- for the
commission of offences under Section 5 of TADA (P). Accused
Mohabat Ali was convicted for the offences under Sections
392/34 IPC and Section 5 of the TADA(P) Act and was
sentenced to rigorous imprisonment for five years and a fine
of Rs.2,000/- on each count. Appellants Nawabuddin and
Sanjay Moley were sentenced to five years rigorous
imprisonment and a fine of Rs.2,000/-- each for the
commission of offence under Sections 392/34 IPC. Various
sentences were also imposed in case of default of payment of
fine. All the sentences were directed to run concurrently.
Aggrieved by the judgment of the Designated Trial Court, the
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appellants have filed the present appeals contending that no
case is made out against anyone of them and the trial court
committed a mistake of law for basing its findings and
conviction on the evidence which was not only shaky and
unreliable but also inadmissible in evidence under the
relevant provisions of law. The facts, as disclosed in the
First Information Report and the evidence led by the
prosecution, are that on 20th June, 1990 an annonymous call
was received at the Police Control Room with respect to the
commission of murder in Model Town, Part-II area of the city
of Delhi. This information was recorded vide DD No.13-A
whereafter Harbans Singh, Police Inspector of Police Station
Model Town along with his staff rushed to the spot where he
found the dead body of a woman lying in the pool of blood
with multiple injuries, apparently caused by sharp edged
weapon. He also noticed household goods including clothes
scattered all around. Three jewellery boxes, without
jewellery, were found lying in the room. One Amarjeet
Sharma met the Police Inspector and gave a statement to the
effect that he was employed as a domestic servant in that
house for the last five to six days. According to him, at
about 2.00 p.m. when he was preparing food in the kitchen,
he heard the sound of door bell. When Smt.Sheela, his
employer, opened the door, two young boys aged 18-19 and
19-20 years came inside pushing her. One of them inflicted
multiple knife injuries on the person of Smt.Sheela as a
consequence of which she fell down on the floor. The other
intruder put revolver on the neck of the said Amarjeet
Sharma and made him stand in silence in a corner of the
room. The culprits cut telephone wires and searched for
goods lying in the room. They removed the Kangan and
Necklace worn by Smt.Sheela and kept all jewellery, cash and
other goods in two briefcases. In the process of inflicting
the injuries on the person of Smt.Sheela, the clothes of the
culprits got blood stains. One of the culprits was
described as short-statured and the other long-statured
person. The culprits shut Amarjeet Sharma in an Almirah.
After committing the offences, the aforesaid two boys left
the place. He managed to get out of the Almirah with great
difficulty and came down. He raised an alarm, upon which
the people collected. Formal case was registered on the
basis of the statement of the aforesaid domestic servant.
During investigation appellant Sanjay Moley, the nephew of
the deceased was arrested and on his interrogation other
accused apprehended. All the accused made disclosure
statements in consequence of which the .32 bore revolver
with six cartridges, a knife, blood stained clothes, scooter
and the looted property were recovered from their houses and
the places where they had stated to have hidden. After
their conviction and sentences only three of the four
accused have filed the present appeals. Mohabat Ali,
convict has chosen not to challenge the verdict of the
Designated Trial Court. We have heard at length S/Shri R.K.
Jain and Sushil Kumar, Senior Advocates appearing for@@
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appellants Sanjay and Nawabuddin and Shri V.Ramasubramaniam,@@
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Amicus Curaie for appellant Vinod. The learned counsel
appearing for the appellants have vehemently argued that in
the absence of direct evidence in the form of eye-witnesses,
the trial court was not justified in recording the
conviction against the appellants and sentencing them to
various imprisonments. According to them the circumstantial
evidence relied upon by the prosecution was shaky and
inadmissible. Otherwise also the circumstances relied upon
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by the prosecution were not sufficient to connect the
appellants with the commission of the crime for which they
were charged, convicted and sentenced. The circumstances
relied upon by the prosecution and held proved by the trial@@
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court are:@@
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"i) Motive
ii) Medical Evidence
iii) Disclosure statement of accused persons.
iv) Recovery of stolen property from the accused
persons.
v) Recovery of blood stained shirt from accused vinod.
vi) Recovery of weapon of offence from accused Vinod.
vii) Extra judicial confession of accused Sanjay Moley.
viii)Last seen circumstances in respect of accused
Sanjay and Nawabuddin."
The most important circumstances to connect the accused
with the commission of crime are the disclosure statements
made by them and the recovery of weapon of offence, blood
stained clothes and stolen property made in consequence
thereof besides extra judicial confession of accused Sanjay,
the circumstance of his being seen in the company of
Nawabuddin under suspicious circumstances and observance of
his unusual behaviour. The circumstances proving the motive
and the medical evidence connecting the accused with the
commission of crime are dependent upon the proof of the
other circumstances i.e. disclosure statements, recoveries
and the extra judicial confession. The accused were
arrested in consequence to the clue provided by Trilochan
Singh (PW13) and Sheetal Grover (PW5) in response to the
public assistance sought by the police on Public Address
System. Sheetal Grover (PW5) stated that the appellant
Sanjay who was his friend came to his shop in the evening of
20th June, 1990 at about 5-6 p.m. He was in worried mood.
Upon enquiry he told the witness that being in need of money
he along with his three friends went to the house of his
aunt with a view to commit theft. He further told that
while he and one of his friends stood outside the house of
his aunt, the other went inside the house to commit theft.
Those who went inside after coming back out of the house
told Sanjay, appellant that they had committed the murder of
his aunt. After knowing about the death of his aunt, the
aforesaid accused got scared and worried. He came to the
witness for seeking his help. The witness told him that he
should go to the police and make his genuine statement
there. On the same night the witness was called in the
police station where his statement was recorded.
Assailing the testimony of PW5, Shri R.K. Jain, learned
Senior Counsel appearing for Sanjay, appellant, submitted
that the statement of the witness is fabricated,
after-thought and unreliable. According to him, there was
no cause or occasion for Sanjay to go to the witness for
making the aforesaid extra judicial confession as, according
to him, they did not have such relations between them which
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could prompt the aforesaid accused to confide with the
witness. He has further submitted that as the accused
Sanjay was in the police station at the time when statement
of PW5 was recorded and despite statement permitted to go
home, the story of the accused making the extra-judicial
confession stood falsified.
We have critically analysed the statement of the
aforesaid witness and do not find any substance in the
submissions made on behalf of the aforesaid accused. The
witness, PW5 has categorically stated "I developed
friendship with accused Sanjay in the last 1 and half years
of this incident". The common friend of the witness and the
accused was one Dharmender Dhingra. In his statement,
recorded under Section 313 Cr.P.C., the appellant Sanjay has
not specifically denied his friendship with PW5. No
suggestion was made to the aforesaid witness for allegedly
making wrong statement and thereby roping in the said
accused with the commission of the crime. Admittedly, PW5
is a shopkeeper and has no axe to grind with the appellant
Sanjay. Why did he go to the witness to make clean his
breast, is a fact only known to the accused for which he has
not given any explanation. We have no hesitation to believe
the statement of Sheetal Grover (PW5) that the accused
Sanjay had in fact come to him on 20th June, 1990 about 5-6
p.m. and confided with respect to the offence of robbery
and murder committed by him and others on that day. There
is nothing in the deposition of any of the witness that the
police had known about the commission of the offence and
involvement of Sanjay before the statement of Sheetal Grover
(PW5) recorded by the police at about 9.00 p.m.
We cannot accept the contention of Shri Jain to hold
that the accused was present in the police station when the
statement of PW5 was recorded and that the investigating
officer had permitted the said accused to go home despite
the statement of the witness. PW5 has categorically stated
that he closed his shop at about 7.30/8.00 p.m. on 20th
June, 1990 and reached his house in half an hour’s time. He
further stated that "on 20th June, 1990 the police people
came to my house at 8-9 p.m. to call me to the police
station". SI Virender Singh PW24 has stated that Sanjay,
appellant was interrogated in the police station on 20th
June, 1990 at about 8 p.m. and let off after interrogation.
He was directed to come again in the morning at 10.00 a.m.
on the next day. By reading both the statements together it
transpires that after his interrogation Sanjay appellant was
permitted to go home on 20th June, 1990 at 8.00 p.m.
Statement of Sheetal Grover (PW5) was recorded after 9.00
p.m. in the police station, obviously when the said accused
had left for his home. Picking up the words "accused Sanjay
was present in the police station at that time" from the
statement of PW5, the learned counsel has tried to make a
mountain out of the mole. The aforesaid sentence appears in
the context when the police came at the residence of the
witness and "on enquiry, had told us that my presence was
required in the police station about a statement in regard
to Sanjay, accused. Accused Sanjay was present in the
police station at that time". There is no confusion in our
mind that at the time the police party left the police
station for contacting PW5 at about 7.30 and 8.00 p.m.,
Sanjay, appellant was present in the police station. He was
directed to go home as by that time there was nothing
against him as per the statement of SI Virender Singh
(PW24).
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The testimony of PW5 in this regard does not suffer from
any contradiction to absolve the appellant Sanjay of his
criminal liability with respect to the commission of the
crime for which he has been convicted and sentenced. As to
why the said accused was not arrested on the same night, the
defence has not sought any explanation from the IO. One of
the reasons for not arresting accused Sanjay immediately
after recording the statement of PW5 may be that the
investigating officer knew that the said accused had to
appear in the police station on the next morning at 10.00
a.m. for which specific directions had been given to him.
Be that as it may, this alleged omission of not arresting
the accused during the night time cannot be made a basis for
discrediting the testimony of PW5.
We are satisfied that Sheetal Grover (PW5) is an
independent witness and his testimony inspires confidence
which has been relied upon by the trial court. We see no
reason to disbelieve the statement of Sheetal Grover (PW5)
in so far as it relates to the making of the extra-judicial
confession by appellant Sanjay before him. The defence has
utterly failed to bring on record any circumstance which
could be made a basis for discrediting the testimony of the
aforesaid witness. However, the effect of the statement of
the accused before the witness would be tested in the light
of other circumstances and the whole conspectus of the
prosecution case.
There is no dispute that after the statement of Sheetal
Grover (PW5) and interrogation of Sanjay appellant, the
other accused involved in the crime were apprehended and
arrested. During the course of interrogation the accused
persons made statements which led to the recovery of the
weapon of offence, stolen property and other incriminating
material. It is also admitted that Smt.Sheela met with a
homicidal death on account of about 24 injuries inflicted on
her person with a sharp edged weapon like the knife, the
weapon of offence seized in the present case.
The most important circumstance for the prosecution in
the case is the disclosure statements of the accused persons
and recoveries of the stolen property, blood stained shirt
and weapon of offence consequent upon such statements. The
admissibility of the statements made by the accused persons
to the police is challenged on twin grounds, i.e., (i)
factually no such statement was made, and (ii) the statement
made was inadmissible in evidence.
Section 25 mandates that no confession made to a police
officer shall be proved as against a person accused of an
offence. Similarly Section 26 provides that confession by
the accused person while in custody of police cannot be
proved against him. However, to the aforesaid rule of
Sections 25 to 26 of the Evidence Act, there is an exception
carved out by Section 27 providing that when any fact is
deposed to as discovered in consequence of information
received from a person accused of any offence, in the
custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.
Section 27 is a proviso to Sections 25 and 26. Such
statements are generally termed as disclosure statements
leading to the discovery of facts which are presumably in
the exclusive knowledge of the maker. Section 27 appears to
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be based on the view that if a fact is actually discovered
in consequence of information given, some guarantee is
afforded thereby that the information was true and
accordingly it can be safely allowed to be given in
evidence.
As the Section is alleged to be frequently misused by
the police, the courts are required to be vigilant about its
application. The court must ensure the credibility of
evidence by police because this provision is vulnerable to
abuse. It does not, however, mean that any statement made
in terms of the aforesaid section should be seen with
suspicion and it cannot be discarded only on the ground that
it was made to a police officer during investigation. The
court has to be cautious that no effort is made by the
prosecution to make out a statement of accused with a simple
case of recovery as a case of discovery of fact in order to
attract the provisions of Section 27.
The position of law in relation to Section 27 of the Act
was elaborately made clear by Sir John Beaumont in Pulukuri
Kottaya and others v. Emperor [AIR 1947 PC 67] wherein it
was held: "Section 27, which is not artistically worded,
provides an exception to the prohibition imposed by the
preceding section, and enables certain statements made by a
person in police custody to be proved. The condition
necessary to bring the section into operation is that
discovery of a fact in consequence of information received
from a person accused of any offence in the custody of a
Police Officer must be deposed to, and thereupon so much of
the information as relates distinctly to the fact thereby
discovered may be proved. The section seems to be based on
the view that if a fact is actually discovered in
consequence of information given, some guarantee is afforded
thereby that the information was true, and accordingly can
be safely allowed to be given in evidence; but clearly the
extent of the information admissible must depend on the
exact nature of the fact discovered to which such
information is required to relate. Normally the section is
brought into operation when a person in police custody
produces from some place of concealment some object, such as
a dead body, a weapon, or ornaments, said to be connected
with the crime of which the informant is accused. Mr.Megaw,
for the Crown has argued that in such a case the ’fact
discovered’ is the physical object produced, and that any
information which relates distinctly to that object can be
proved. Upon this view information given by a person that
the body produced is that of a person murdered by him, that
the weapon produced is the one used by him in the commission
of a murder, or that the ornaments produced were stolen in a
dacoity would all be admissible. If this be the effect of
section 27, little substance would remain in the ban imposed
by the two preceding sections on confessions made to the
police, or by persons in police custody. That ban was
presumably inspired by the fear of the Legislature that a
person under police influence might be induced to confess by
the exercise of undue pressure. But if all that is required
to lift the ban be the inclusion in the confession of
information relating to an object subsequently produced, it
seems reasonable to suppose that the persuasive powers of
the police will prove equal to the occasion, and that in
practice the ban will lose its effect. On normal principles
of construction their Lordships think that the proviso to
S.26, added by S.27, should not be held to nullify the
substance of the section. In their Lordships’ view it is
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fallacious to treat the ’fact discovered’ within the section
as equivalent to the object produced; the fact discovered
embraces the place from which the object is produced and the
knowledge of the accused as to this, and the information
given must relate distinctly to this fact. Information as
to past user, or the past history, of the object produced is
not related to its discovery in the setting in which it is
discovered. Information supplied by a person in custody
that "I will produce a knife concealed in the roof of my
house" does not lead to the discovery of a knife; knives
were discovered many years ago. It leads to the discovery
of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to
have been used in the commission of the offence, the fact
discovered is very relevant. But if to the statement the
words be added ’with which I stabbed A’ these words are
admissible since they do not relate to the discovery of the
knife in the house of the informant."
In State of Uttar Pradesh v. Deoman Upadhyaya [AIR 1960
SC 1125] this Court held that Sections 25 and 26 were
manifestly intended to hit an evil, viz., to guard against
the danger of receiving in evidence testimony from tainted
sources about statements made by persons accused of
offences. These sections form part of a statute which
codifies the law relating to the relevancy of evidence and
proof of facts in judicial proceedings. The State is as
much concerned with punishing offenders who may be proved
guilty of committing of offences as it is concerned with
protecting persons who may be compelled to give confessional
statements. Section 27 renders information admissible on
the ground that the discovery of a fact pursuant to a
statement made by a person in custody is a guarantee of
truth of the statement made by him and the legislature has
chosen to make on that ground an exception to the rule
prohibiting proof of such statement. The principle of
admitting evidence of statements made by a person giving
information leading to the discovery of facts which may be
used in evidence against him is manifestly reasonable. In
that case the High Court had acquitted the accused on the
ground that his statement which led to the recovery of
gandasa, the weapon of offence, was inadmissible. The
accused Deoman had made a statement to hand over the gandasa
which he stated to have thrown into a tank and got it
recovered. The trial court convicted the accused for the
offence of murder. The Full Bench of the High Court held
that Section 27 of the Evidence Act which allegedly created
an unjustifiable discrimination between persons in custody
and persons out of custody offending Article 14 of the
Constitution, was unenforceable. After the opinion of the
Full Bench a Division Bench of the Court excluded from
consideration the statement made by the accused in the
presence of the police officer and held that the story of
the accused having borrowed a gandasa on the day of
occurrence was unreliable. The accused was acquitted but at
the instance of the State of U.P., the High Court granted a
certificate to file the appeal in this Court. This Court
did not agree with the position of law settled by the High
Court and decided to proceed to review the evidence in the
light of that statement in so far as it distinctly related
to the fact thereby discovery being admissible. Dealing
with the conclusions arrived at by the High Court and on the
facts of the case, this Court observed:
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"The High Court was of the view that the mere fetching
of the gandasa from its hiding place did not establish that
Deoman himself had put it in the tank, and an inference
could legitimately be raised that somebody else had placed
it in the tank, or that Deoman had seen someone placing that
gandasa in the tank or that someone had told him about the
gandasa lying in the tank. But for reasons already set out
the information given by Deoman is provable in so far as it
distinctly relates to the fact thereby discovered; and his
statement that he had thrown the gandasa in the tank is
information which distinctly relates to the discovery of the
gandasa. Discovery from its place of hiding, at the
instance of Deoman of the gandasa stained with human blood
in the light of the admission by him that he had thrown it
in the tank in which it was found therefore acquires
significance, and destroys the theories suggested by the
High Court."
In Mohmed Inayatullah v. The State of Maharashtra [AIR
1976 SC 483] it was held that expression ’fact discovered’@@
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includes not only the physical object produced but also@@
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place from which it is produced and the knowledge of the
accused as to that. Interpreting the words of Section "so
much of the information" as relates distinctly to the fact
thereby discovered, the Court held that the word
"distinctly" means "directly", "indubitably", "strictly",
"unmistakably". The word has been advisedly used to limit
and define the scope of proveable information. The phrase
"distinctly" relates "to the fact thereby discovered". The
phrase refers to that part of information supplied by the
accused which is the direct cause of discovery of a fact.
The rest of the information has to be excluded.
In Earabhadrappa alias Krishnappa v. State of Karnataka
[1983(2) SCR 552] it was held that for the applicability of@@
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section 27 of the Evidence Act two conditions are@@
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pre-requisite, viz., (i) information must be such as has
caused discovery of the fact, and (ii) the information must
’relate distinctly’ to the fact discovered. Under Section
27 only so much of the information as distinctly relates to
the fact really thereby discovered, is admissible. While
deciding the applicability of Section 27 of the Evidence
Act, the Court has also to keep in mind the nature of
presumption under Illustration (a) to (s) of Section 114 of
the Evidence Act. The Court can, therefore, presume the
existence of a 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
relations to the facts of the particular case. In that case
one of the circumstance relied upon by the prosecution
against the accused was that on being arrested after a year
of the incident, the accused made a statement before the
police leading to the recovery of some of the gold ornaments
of the deceased and her six silk sarees, from different
places which were identified by the witness as belonging to
the deceased. In that context the court observed:
"There is no controversy that the statement made by the
appellant Ex.P-35 is admissible under S.27 of the Evidence
Act. Under S.27 only so much of the information as
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distinctly relates to the facts really thereby discovered is
admissible. The word ’fact means some concrete or material
fact to which the information directly relates."
In a latest judgment this Court in State of Maharashtra
v. Damu, S/o Gopinath Shinde & Ors. [2000 (6) SCC 269] has
held that the Section 27 was based on the doctrine of
confirmation by subsequent events and giving the section
actual and expanding meanings, held: "The basic idea
embedded in Section 27 of the Evidence Act is the doctrine
of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered in a
search made on the strength of any information obtained from
a prisoner, such a discovery is guarantee that the
information supplied by the prisoner is true. The
information might be confessional or non- inculpatory in
nature, but it results in discovery of a fact it becomes a
reliable information. Hence the legislature permitted such
information to be used as evidence by restricting the
admissible portion to the minimum. It is now well settled
that recovery of an object is not discovery of a fact as
envisaged in section. The decision of the Privy Council in
Pulukuri Kottaya v. Emperor [AIR 1947 PC 67] is the most
quoted authority for supporting the interpretation that the
’fact discovered’ envisaged in the section embraces the
place from which the object was produced, the knowledge of
the accused as to it, but the information given must relate
distinctly to that effect."
In this case after the arrest of Sanjay appellant, the
extra- judicial confession made by him to PW5 and recording
the statement of PW5 the investigating officer apprehended
the other accused persons. In his interrogation Vinod
appellant made a confessional statement, a major portion of
which is inadmissible in evidence being hit by Sections 24
to 26 of the Evidence Act. However, the relevant portion
which was used for recovery of the stolen property is as
under:
"I got gold jewellery and watches which are lying at my
house at Shakarpur. I can point out the same and get them
recovered. Both shirts are lying at my house, one pant at
the residence of my friend at Madipur, and I am wearing the
pant which I washed (after commission of the offence). I
can get recovered the Dagger and Katta from my house at
Shakarpur and also above mentioned things."
In his disclosure statement accused Mohabat Ali had
stated: "I got gold jewellery watches, cameras and clothes
which are lying at my home. The revolver and kirpan used in
the commission of the offence are also lying in my house. I
can recovered the (looted) property and the weapon of
offence from my house at Mangolpuri. I can also get
arrested Ramkishan, the seller of the revolver."
The relevant portion of statement of accused Nawabuddin
is as under:
"I took jewellery and watches of my and Sanjay’s share
to my residence. Sanjay dropped me on scooter. I can get
recovered the (looted) property from my residence."
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Raising objections to the words "after commission of the
offence" appearing in the disclosure statement of Vinod and
"looted property" in the statement of Nawabuddin, the
learned counsel for the appellants submitted that the whole
of the statement was hit by Sections 24 to 26 of the
Evidence Act and Section 162 of the Code of Criminal
Procedure. We are not inclined to accept such a general
statement. Even if the objectionable words (bracketed
above) are deleted, the appellants cannot be conferred with
any benefit which would entitle them to acquittal. It is
not disputed that consequent upon the disclosure statements
made, the articles mentioned therein were actually recovered
at their instance from the place where such articles had
been hidden by them. The mere use of the words "looted
property" in relation to the articles seized which were
found to have been taken away after the commission of the
crime of murder and robbery would not change the nature of
the statement. The words do not implicate the accused with
the commission of the crime but refer only to the nature of
the property hidden by them which were ultimately recovered
consequent upon their disclosure statements. Hypertechnical
approach, as projected by the defence counsel, would defeat
the ends of justice and have disastrous effect. The
property recovered consequent upon the making of the
disclosure statements has been proved to be the property of
the deceased, stolen after the commission of the offence of
robbery and murder.
Besides Section 27, the courts can draw presumptions
under Section 114, Illustrations (a) and Section 106 of the
Evidence Act. In Gulab Chand v. State of M.P. [1995 (3)
SCC 574] where ornaments of the deceased were recovered from
the possession of the accused immediately after the
occurrence, this Court held:
"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 Sanwat Khan 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 Kanu 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 drawn under 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
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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 latter decision of
this Court in Earabhadrappa 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 in the 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 were 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
llustration (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."
In the instant case also, the disclosure statements were
made by the accused persons on the next day of the@@
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commission of the offence and the property of the deceased@@
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was recovered at their instance from the places where they
had kept such properties, on the same day. To the same
effect are the judgments in Mukund Alias Kundu Mishra &
Anr.v. State of M.P. [1997 (10) SCC 130] and Ronny Alias
Ronald James Alwaris & Ors. v. State of Maharashtra [1998
(3) SCC 625]. In the latter case the Court held:
"Apropos the recovery of articles belonging to the Ohol
family from the possession of the appellants soon after the
robbery and the murder of the deceased (Mr.Mohan Ohol,
Mrs.Ruhi Ohol and Mr.Rohan Ohol) which possession has
remained unexplained by the appellants, the presumption
under Illustration (a) of Section 114 of the Evidence Act
will be attracted. It needs no discussion to conclude that
the murder and the robbery of the articles were found to be
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part of the same transaction. The irresistible conclusion
would, therefore, be that the appellants and no one else had
committed the three murders and the robbery."
The disclosure statements by the accused persons stand
established by the testimony of Satish Khanna (PW22) and the
investigating officer. The trial court was, therefore,
justified in relying upon the circumstances of the
disclosure statements of the accused persons and consequent
recovery of stolen property, blood stained shirt of Vinod
appellant besides weapon of offence. We find no substance
in the submission of the learned defence counsel that as no
independent witnesses were associated with the recoveries, a
doubt is created in the prosecution version. Satish Khanna
(PW22) is the natural witness being brother of the deceased
to be present during the investigation when the accused are
stated to have made the statements within the meaning of
Section 27 of the Evidence Act. Otherwise also there is no
reason to disbelieve the testimony of the IO Harbans Singh
(PW25).
A faint attempt was made by the counsel for the
appellants to persuade us to hold that the recoveries were
doubtful because according to them prosecution had failed to
ascertain the details of the stolen property and get it
identified only after the recovery. Mrs.Renu Moley, PW17
who is the daughter of the deceased has deposed in the Court
that she was called in the police station on 21st June, 1990
and enquired about the articles missing from her house.
After checking she found missing 8 gold bangles, 6 other
gold bangles, 6 pairs of ear- rings of gold, 6 pairs of
tops, three pairs of ear-jhumkas, one Mangalsutra, one
ginni, two golden rings, two idols of Lord Ganesha and
Goddess Lakshmi made of silver, the plates of silver on
which Air India was engraved, one lady set of silver, 8
wrist watches, 4 cameras, 1 electric shaver, 5 sarees, 20
suit-pieces, 6 gents suit-pieces, stitched shirt, two big
bags of leather and one small bag. She has again stated
that after the recovery of the property from the accused
persons she identified the articles and found them to be
belonging to her mother, which were stolen on the day of her
murder. We do not agree with the counsel for the appellants
that the recovery of the articles had preceded the making of
the disclosure statements. Learned counsel appearing for
the appellants Sanjay and Nawabuddin then submitted that
even if the disclosure statements and the recoveries are
admitted, their clients can at the most be convicted for the
commission of offence under Section 411 IPC. We do not
agree with this submission as well in view of the fact that
the murder and robbery in the instant case were part of the
same transaction and the accused from whom the recoveries
were made, consequent upon their disclosure statements, did
not offer any explanation regarding their possession of the
stolen properties. Drawing a presumption under Section 114
of the Evidence Act it can safely be held that the aforesaid
two accused persons were atleast guilty of the offence of
robbery punishable under Section 392 IPC on the assumption
that they were not armed with any deadly weapon and not
aware of Vinod appellant being armed with dagger. The trial
Court was, therefore, justified in holding that "the
circumstances enumerated above together complete the chain
of circumstances to prove the guilt of the accused persons
in so far as the offence of robbery is concerned. Infact
the disclosure statements of the accused persons and huge
recoveries from them at their instance by itself is a
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sufficient circumstance on the very next day of the incident
which clearly goes to show that the accused persons had
joined hands to commit the offence of robbery". The Court
also rightly held that, "Recent and unexplained possession
of stolen properties will be taken to be presumptive
evidence of the charge of murder as well. (See Baijur vs.
State of Madhya Pradesh AIR 1978 SC Page 522). Also see
Eara Bhadrappa’s case (supra). In the case of Gulab Chand
vs. State of Madhya Pradesh 1975 SCC page 574 quoted its
earlier decision in Tulsi Ram’s case with approval that the
presumption permitted to be drawn under illustration 114(a)
of the Evidence Act has to be read alongwith ’important time
factor’. If the ornaments in possession of the deceased are
found in possession of the person soon after the murder, a
presumption of killing may be permitted. In the said case
before the Supreme Court ornaments belonging to the deceased
had been sold by accused Gulab Chand of that case and within
3-4 days the recovery of the stolen articles was made from
his house at the instance of the accused. The court held
that such close proximity of the recovery which has been
indicated by the court as ’important time factor’ should not
be lost sight of". On the basis of the evidence led in the
case and keeping in view the whole conspectus of the case
the trial court rightly concluded that accused Vinod in the
process of committing robbery used deadly weapon, namely,
dagger and killing Smt.Sheela while the other three accused
persons have participated in the commission of crime of
robbery and actually removed huge articles including
jewellery from the house of the deceased.
Shri Ramsubramaniam, Advocate, appearing as Amicus
Curaie for accused Vinod submitted that as the prosecution
has failed to prove the origin of blood found on the pant
and shirt of vinod appellant, he could not be held guilty of
the offence of murder. Repelling such contention this Court
in State of Rajasthan v. Teja Ram & Ors. [JT 1992 (2) SC
279] held:
"Failure of the Serologist to detect the origin of the
blood due to disintegration of the serum in the meanwhile
does not mean that the blood stuck on the axe would not have
been human blood at all. Sometimes it happens, either
because the stain is too insufficient or due to
haematological changes and plasmatic coagulation that a
serologist might fail to detect the origin of the blood.
Will it then mean that the blood would be of some other
origin? Such guesswork that blood on the other axe would
have been animal blood in unrealistic and far-fetched in the
broad spectrum of this case. The effort of the criminal
court should not be to prowl for imaginative doubts. Unless
the doubt is of a reasonable dimension which a judicially
conscientious mind entertains with some objectivity, no
benefit can be claimed by the accused."
Following Teja Ram’s case this Court again in Gura Singh
v. State of Rajasthan [JT 2000 (Suppl.3) SC 528] held:@@
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"We do not find any substance in the submissions of the
learned counsel for the appellant that in the absence of the
report regarding the origin of the blood, the trial court
could not have convicted the accused. The Serologist and
Chemical Examiner has found it that the Chadar (sheet)
seized in consequence of the disclosure statement made by
the appellant was stained with human blood. As with the
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lapse of time the classification of the blood could not be
determined, no bonus is conferred upon the accused to claim
any benefit on the strength of such a belated and stale
argument. The trial court as well as the High Court were,
therefore, justified in holding this circumstance as proved
beyond doubt against the appellant."
By producing positive evidence, the prosecution
established that appellant Vinod was in possession of a fire@@
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arm and cartridges in a Notified Area of Delhi vide@@
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notification No.F.25(3) 87-HP dated 20.10.1987 and thus
guilty of the offence punishable under Section 5 of the TADA
(P) Act besides the offence of murder punishable under
Section 302 IPC. We do not find any merit in these appeals
which are accordingly dismissed.@@
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