REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 937 of 2005

State of Rajasthan                                …Appellant

Versus

Talevar & Anr.                                            …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred by the State of Rajasthan against  

the judgment and order dated 27.10.2004 passed by the High Court of  

Judicature for Rajasthan, Jaipur Bench, in Criminal Appeal No. 1579  

of 2002 acquitting the respondents, setting aside their conviction and  

the sentence passed by Additional District and Sessions Judge, (Fast  

Track), Laxmangarh, Alwar, dated 2.11.2002 in Sessions Case No. 4  

of  2002 (14/2000)  for  the offences punishable  under  Sections 395,  

396 and 397 of the Indian Penal Code, 1860 (hereinafter called the  

IPC).   

2. The  facts  and  circumstances  giving  rise  to  this  case  are  as  

under:

A. Santosh  Jagwayan (PW.13)  lodged an  FIR on 17.12.1996 at  

8.30  A.M.,  that  in  the  intervening  night  between  16th and  17th  

December, 1996 on hearing the noise, he sent his Chowkidar Gopal  

Nepali  (deceased)  to  the  roof  of  his  house.   Gopal  Nepali  went  

upstairs and opened the gate of the roof and found that 8 to 10 accused  

persons were trying to enter into the house by breaking upon the door  

of the roof.  They immediately fired shot at Gopal Nepali (deceased)  

and entered into the house.  The accused persons locked Shashi Devi  

(PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15),  

his  daughters,  in  the  bathroom  and  started  looting  the  moveable  

properties.  In the meanwhile, his neighbours raised their voice.  Thus,  

the accused immediately fired a shot at Mrs. Anita Yadav, as a result  

of which, she died on the spot.  Kripa Dayal Yadav (PW.2), husband  

of Anita Yadav (deceased) caught  hold of one of the accused but he  

was beaten with the butt of the gun by the other accused persons and  

they  got  the  accused  released  from  his  clutches.  The  accused  

decamped with cash, jewellery and silver wares etc.   

B. On the basis of the said complaint,  an FIR No. 240 of 1996  

(Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC  

and investigation ensued.  The dead bodies of Gopal Nepali and Anita  

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Yadav were recovered and sent for post-mortem examination.  Kuniya  

-  accused/respondent  was  arrested  on  24.12.1996.  He  made  a  

disclosure statement (Ex.P-76) on 29.12.1996 on the basis of which a  

silver glass and one thousand rupees were recovered vide recovery  

memo  (Ex.P-53).  Further,  on  his  disclosure  statement,   a  scooter  

bearing No. RJ-05-0678 was recovered vide recovery memo (Ex.P-

52) on 2.1.1997.  

C. Another  accused  Talevar  –  respondent,  was  arrested  on  

19.1.1997 and on his disclosure statement made on 26.1.1997, two  

thousand rupees, a silver key ring and a key of Ambassador car was  

recovered vide seizure memo (Ex.P-45).   

D. Some  more  recoveries  were  made  from  the  other  accused  

persons.  After  completing  the  investigation  chargesheet  was  filed  

against 9 accused persons including the two respondents.  As all  of  

them  pleaded  not  guilty,  they  were  put  to  trial  for  the  offences  

punishable under Sections 395, 396 and 398 IPC.   

E.     In  the  Sessions  trial  prosecution  examined  34  witnesses  in  

support of its case. The ornaments and stolen articles were identified  

by Shashi Devi (PW.12) and Santosh Jagwayan (PW.13).  The trial  

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court vide judgment and order dated 2.11.2002 convicted 8 accused  

including  the  two  respondents.  One  accused  named  Ram Krishan,  

died during the trial.  All of them stood convicted under the provisions  

of Sections 395, 396 and 397 IPC.  All  the accused were awarded  

punishment to undergo life imprisonment and a fine of Rs. 1,000/- and  

in default of payment of fine, to further undergo six months rigorous  

imprisonment under Section 396 IPC. All of them were convicted for  

the  offence  punishable  under  Section  397  IPC  and  a  sentence  to  

undergo rigorous imprisonment for seven years and a fine of Rs.500/-  

and in default  of payment of fine,  to further undergo three months  

rigorous imprisonment.   They were further convicted under Section  

395 IPC, awarded life imprisonment and fine of Rs. 1,000/- and in  

default  of payment of  fine,  to further  undergo six months  rigorous  

imprisonment.   Accused  namely,  Ghurelal,  Chunchu  @  Bhagwan  

Singh, Kallu, Rajpal and Samay Singh were further convicted under  

Sections 3/25 and 3/27 of the Arms Act and sentence was awarded to  

undergo three years rigorous imprisonment  and a fine of Rs.  500/-  

each of them, in default of payment of fine, to further undergo three  

months rigorous imprisonment.  

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F. Being aggrieved by the said decision, all the accused including  

the  two respondents  preferred  Criminal  Appeal  No.  1579 of  2002,  

which has been decided by the High Court vide judgment and order  

dated  27.10.2004  acquitting  the  two  respondents/accused  though  

maintaining the conviction and sentence in respect of other accused.  

Hence, this appeal by the State against their acquittal.  

3. Dr. Manish Singhvi, learned Additional Advocate General for  

the State  of Rajasthan,  has submitted  that recovery of some of the  

looted  property  had  been  made  on  the  basis  of  the  disclosure  

statements  made  by  the  said  respondents.  The  law  provides  for  a  

presumption that they had participated in the crime and, therefore, the  

High  Court  has  wrongly  acquitted  the  said  accused  and  thus,  the  

appeal deserves to be allowed.  

4. On the contrary, Shri Altaf Hussain, learned counsel appearing  

for  the  said  two  accused,  has  vehemently  opposed  the  appeal  

contending that mere recovery of looted property on the disclosure  

statement of the accused, is not enough to bring home the charges of  

offence of loot or dacoity,  when the recovery is made after expiry of  

a considerable period from the date of incident and particularly when  

the  nature  of  the  looted  property  is  such  which  can  change  hands  

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easily.  Thus, no inference can be drawn against the respondents. The  

order of acquittal made by the High Court has been passed on proper  

appreciation of facts and application of law. The appeal lacks merit  

and is liable to be dismissed.  

5.   We have considered the rival submissions made by the learned  

counsel for the parties and perused the record.

 6. Admitted facts remained so far as the two respondents/accused  

are  concerned,  that  no  test  identification  parade  was  held  at  all.  

Further none of the eye witnesses, particularly, Shashi Devi (PW.12),  

Santosh  Jagwayan  (PW.13),  Kripa  Dayal  Yadav  (PW.2),  Preeti  

(PW.14)  and  Sandhya  (PW.15),  identified  either  of  the  said  

respondents in the court.   Therefore, there is no evidence so far as  

their identification is concerned.  

7. Thus, the sole question remains to be decided whether adverse  

inference could be drawn against the accused merely on the basis of  

recoveries made on their disclosure statements.  

7.1.   In  Gulab Chand v. State of M.P., AIR 1995 SC 1598, this  

Court upheld the conviction for committing dacoity on the basis of  

recovery  of  ornaments  of  the  deceased  from the possession  of  the  

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person  accused  of  robbery  and  murder  immediately after  the  

occurrence.  

7.2.     In  Geejaganda Somaiah v. State of Karnataka, AIR 2007  

SC 1355,  this Court relied on the judgment in Gulab Chand (supra)  

and  observed  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.

7.3. In Tulsiram Kanu v. State, AIR 1954 SC 1, this Court has  

indicated that the presumption permitted to be drawn under Section  

114, Illustration (a) of the Evidence Act 1872  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  a  long period has  

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expired  in  the  interval,  the  presumption  cannot  be  drawn  having  

regard to the circumstances of the case.  

7.4.     In Earabhadrappa v. State of Karnataka AIR 1983 SC 446,  

this Court held that the nature of the presumption under Illustration (a)  

of Section 114 of the Evidence Act must depend upon the nature of  

evidence adduced. No fixed time-limit can be laid down to determine  

whether possession is recent or otherwise. 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 could not be said to  

be  too  long  particularly  when  the  appellant  had  been  absconding  

during that period.  

7.5.   Following such a reasoning, in Sanjay @ Kaka etc. etc. v. The  

State  (NCT  of  Delhi),  AIR 2001  SC 979, this  Court  upheld  the  

conviction by the trial court since disclosure statements were made by  

the accused persons on the next day of the commission of the offence  

and the property of the deceased was recovered at their instance from  

the places where they had kept such properties, on the same day. The  

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Court  found  that the  trial  Court  was  justified  in  holding  that  the  

disclosure statements of the accused persons and huge recoveries from  

them at their instance by itself was  a sufficient circumstance on the  

very next  day of  the  incident  which clearly  went to show that  the  

accused persons had joined hands to commit the offence of robbery.  

Therefore, recent and unexplained possession of stolen properties will  

be taken to be presumptive evidence of the charge of murder as well.   

7.6.     In Ronny  Alias Ronald James Alwaris & Ors.  v. State of  

Maharashtra, AIR 1998 SC 1251, this Court held that apropos the  

recovery of articles belonging to the family of the deceased from the  

possession of the appellants soon after the robbery and the murder of  

the  deceased  remained  unexplained  by  the  accused,  and  so  the  

presumption under Illustration (a) of Section 114 of the Evidence Act  

would be attracted :  

“It needs no discussion to conclude that the murder and the  robbery of the articles  were found to be 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."  

(See also:  Baijur v. State of Madhya Pradesh, AIR 1978 SC 522;  and  Mukund  alias  Kundu  Mishra &  Anr.  v.  State  of  Madhya  Pradesh, AIR 1997 SC 2622).

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7.7.     Thus, the law on this issue can be summarized to the effect 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. It also depends on the nature of  

the property so recovered, whether it was likely to pass readily from  

hand to hand. Suspicion should not take the place of proof.  

8. In the instant case, accused Kuniya was arrested on 24.12.1996  

and a silver glass and one thousand rupees were alleged to have been  

recovered  on  his  disclosure  statement  on  29.12.1996.  Again  on  

disclosure statement dated 2.1.1997, a scooter alleged to have been  

used  in  the  dacoity,  was  recovered.   Similarly,  another  accused  

Talevar was arrested on 19.1.1997 and on his disclosure statement on  

26.1.1997,  two  thousand  rupees,  a  silver  key  ring  and  a  key  of  

Ambassador  car  alleged  to  have  been  used  in  the  crime  were  

recovered.  Thus,  it  is  evident  that  recovery  on  the  disclosure  

statements  of  either  of  the respondents/accused persons was not  in  

close proximity of time from the date of incident.  More so, recovery  

is either of cash, small things or vehicles which can be passed from  

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one person to another without any difficulty.  In such a fact situation,  

we  reach  the  inescapable  conclusion  that  no  presumption  can  be  

drawn against  the  said two respondents/accused under  Section 114  

Illustration  (a)  of  the  Evidence  Act.  No  adverse  inference  can  be  

drawn on the basis of recoveries made on their disclosure statements  

to connect them with the commission of the crime.  

9. The instant appeal has been prepared by the State  against the  

judgment and order of acquittal of the respondents by the High Court.  

The law on the issue is settled to the effect that only in exceptional  

cases  where  there  are  compelling  circumstances  and  the  judgment  

under appeal is found to be perverse, the appellate court can interfere  

with the order of acquittal. The appellate court should bear in mind  

the presumption of innocence of the accused and further that the trial  

Court’s  acquittal  bolsters  the  presumption  of  his  innocence.  

Interference  in  a  routine  manner  where  the  other  view is  possible  

should be avoided, unless there are good reasons for interference.   

(See : Brahm Swaroop & Anr. v. State of  U.P., AIR 2011 SC 280;  V.S.  Achuthanandan  v.  R.  Balakrishna  Pillai  &  Ors.,  (2011)  3  SCC 317; and Rukia Begum & Ors. v. State of Karnataka, (2011)  4 SCC 779).  

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10. In view of the above, we do not find any reason to interfere  

with  the  well  reasoned  judgment  and  order  of  the  High  Court  

acquitting  the  said  respondents.   The  appeal  lacks  merit  and  is  

accordingly dismissed.  

                                                    ……………..................... J.                                       (Dr. B.S. CHAUHAN)

                                                               ………............................J.          (SWATANTER KUMAR)  New Delhi,               June 17, 2011

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