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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

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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

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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

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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.   

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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

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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.

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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

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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

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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

1 AIR 1956 SC 54

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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

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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

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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

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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