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IN SUPREME COURT OF INDIA Page 1 of 17

CASE NO.:
Appeal (crl.) 1120-1121 of 2000

PETITIONER:
LIMBAJI AND OTHERS

Vs.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT: 14/12/2001

BENCH:
R.C. Lahoti & P. Venkatarama Reddi

JUDGMENT:

P.Venkatarama Reddi, J.

I. The three appellants herein faced trial in the Court of Sessions

Judge, Osmanabad, for the offences punishable under Section 302 read with
Section 34 and Section 392 read with Section 34 IPC. They were charged of
committing murder of one Baburao Nana Lagdive (hereinafter referred to as
’Baburao’) at his field and robbing him of golden ear rings and silver
’lingakar’ worn by him in the early hours of 30th May, 1984. Both the
accused and the deceased were the residents of village Shekapur.

The learned Sessions Judge acquitted the accused of the

charges under Sections 302 and 392 but found them guilty under Section
411 IPC and sentenced each of them to rigorous imprisonment for two
years. On appeal by the State as well as by the accused, the High Court of
Bombay (Aurangabad Bench) having found the accused guilty of offences
punishable under Section 302 read with Section 34 and Section 392 read
with Section 34, set aside the judgment of the Sessions Judge. The High
Court sentenced them to life imprisonment for the offence of murder and
five years rigorous imprisonment for the offence of robbery with the
direction that both the sentences should run concurrently. The appeal of the
State was allowed and the appeal filed by the accused was dismissed.
Questioning the said judgment, the present appeals are filed. Leave to
appeal was granted by this Court on 11.12.2000.

The case rests on circumstantial evidence of recovery of ornaments

worn by the deceased, pursuant to the information furnished by the accused
to the police. The High Court pressed into service the presumption under
Section 114 (a) of the Evidence Act in support of its conclusion. It is the
correctness of that view that falls for our consideration in this appeal.

The prosecution case as revealed by the charge sheet and the

record is that the murdered person Baburao aged about 65 years was having
his field close to the village and he used to tether his cattle in that field and
keep fodder heaps therein. That is why he used to sleep in the field.
Deceased Baburao, a lingayat by caste used to wear golden ear rings and
silver lingakar on his person. On the night of the crucial day, he went to the
field to sleep there. Early in the morning of 30th May, 1984, his unmarried
daughter named Sharadbai went to the field to collect cow dung. She found
her father lying dead near the heap of fodder. She rushed back to the house
and informed her brother Ramakrishna (PW2) and others. PW2 and his
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family members went to the field and found Baburao lying dead with
injuries on his ear, chest etc. and the golden ear rings and silver lingakar
missing from his person. One Guruling (PW3) who was residing in a house
close to the field of Baburao came to the spot at that time. On seeing the
dead body, he mentioned to PW2 and others that he saw accused Nos. 1 to 3
going towards the field of Baburao at about 3 A.M. when he woke up for
drawing water. Keshav, PW1 who was the police patel of the village then
came to this spot and after knowing the facts went to the police station at
Osmanabad and lodged the FIR (Exh. 12) which was recorded by PW10
(PSI). On the basis of it, a case was registered under Sections 302 and 392
IPC. Thereafter, PSI Swami (PW11) held inquest on the dead body of the
deceased Baburao in the presence of two Panchas. Having found a big stone
lying at the spot of occurrence, he seized the same and it is marked as article
No.1. He sent the dead body of Baburao to Civil Hospital at Osmanabad on
the same day. PW8 conducted post-mortem examination between 4.30 and
5.30 P.M. The post-mortem report is Exh. 21. He opined that the injuries
sustained by the deceased were ante-mortem and the deceased Babu Rao
died of bilateral haeomothorax with heart injury, liver injury and
hemoperitoneum with multiple injuries. We shall advert to the details of
injuries a little later. In the meanwhile, the I.O. (PW11) recorded the
statements of P.Ws 2, 3 and others. On 1.6.1984, he arrested accused No.1
Limbaji and accused No.2 Bapu. The investigation was then taken over by
Shri Ramesh, Dy. S.P. (PW12), Osmanabad. On 2.6.1984, PW 12 secured
police custody remand of both the accused.

On 7.6.1984 the first accused Limbaji gave information in the

presence of Panchas, namely, Sidling (PW9) and Shivaji (not examined) that
he would point out a shop in which he had sold the golden ear ring. This
statement made by A-1 which is admissible under Section 27 of the
Evidence Act is Exh. 24. Thereafter, A-1 took them and PW 12 to the shop
of PW5 who, at the instance of A-1, handed over the golden ear ring marked
as Article No.7 and the same was seized under a panchanama Exh.25.
Again on 15.6.1984, A-1 furnished information regarding the place at which
silver lingakar was kept. PW12 along with the same panchas went to the
spot which was by the side of Osmanabad-Shekapur road. The lingakar
covered in a piece of cloth concealed beneath the stones under a Babul tree
was shown. The memorandum of the statement of accused is marked as
Exh. 26 and the seizure panchanama relating to ’lingakar’ (article No.8) is
Exh. 27. On the same day, accused No.2 gave information that he would
point out two golden ear rings kept buried under a mango tree situated in the
fields of a nearby village. The statement was recorded under Exh. 28 and
PW12 along with the panchas went to the field and found the two golden ear
rings shown by A-2 and seized the same under a panchanama Exh.29. They
are Article No.9. Accused No.3, who was arrested on 11.6.1984, gave
information on 20.6.1984 in the presence of same panchas that he would
point out one golden ear ring kept buried under a mango tree situated in a
field at Shekapur. After recording the statement Exh. 30, he went to the
spot shown by the accused Arun and recovered one golden ear ring kept in a
cloth and the same was attached under a panchanama marked as Exh. 31. It
is Article No.10. The seized articles, 7 to 10 were identified by PW2 as
those belonging to his deceased father. On 24.6.1984, PW12 seized the
shirt of accused No.2 under the panchanama Exh. 16 and sent the same to
the Chemical Examiner as it was found to contain blood. But the report
Exh.36 revealed that no blood was detected on the shirt.

II. There is no direct evidence as regards the involvement of accused in

the murder and robbery of the deceased. As analysed by the Sessions court
and the High Court, the following circumstances were relied upon by the
prosecution :-

(i) Accused Nos. 1 to 3 were seen going together

towards the field of Baburao in the night of
occurrence;

(ii) The deceased Baburao was wearing golden ear-

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rings and silver ring on his person and the same
were found missing. His ear-lobes were found
injured which indicated that in the process of
removal of ear-rings such injuries were caused.

(iii) The accused No.1 Limbaji pointed out the shop of

Vijaykumar PW5 to whom he had sold one golden
ear ring belonging to Baburao and recovery of the
same in consequence of the said information;

(iv) recovery of silver lingakar in consequence of the

information given by the said accused;

(v) recovery of two golden rings on 15.6.1984 in

consequence of the information by accused No2;

(vi) recovery of one more ear-ring in consequence of

the information given by accused No.3 on
20.6.1984;

(vii) human blood noticed on the shirt of accused No.2.

In so far as the last circumstance is concerned, the High Court

disbelieved the seizure and that apart, the Chemical Examiner’s report does
not reveal that any blood was found thereon. With regard to the first
circumstance, learned Sessions Judge held that it will not lead the
prosecution anywhere, especially in view of the fact that, as stated by PW3,
there was a public lane behind his house which was used by the villagers.
This is a reasonably possible view that could be taken. The High Court had
given undue weight to this circumstance and we do not think that the High
Court was justified in its approach

We are now left with the evidence of recovery of the ornaments

of the deceased on the basis of the confessional statement of accused under
Section 27 of Evidence Act, leaving apart for the time being the aspect
concerning injuries inflicted on the deceased. The question then is whether
there was discovery of incriminating articles in consequence of information
received from the accused in custody and whether such discovery warrants
a presumption to be drawn under Section 114 and if so, to what extent that
presumption has to be drawn.

III. As the presumption under Section 114 of Evidence Act

looms large in this case, a brief discussion on the basic postulates and
evidentiary implications of presumption of fact may not be out of place.
A presumption of fact is a type of circumstantial evidence which in the
absence of direct evidence becomes a valuable tool in the hands of the
Court to reach the truth without unduly diluting the presumption in
favour of the innocence of the accused which is the foundation of our
Criminal Law. It is an inference of fact drawn from another proved fact
taking due note of common experience and common course of events.
Holmes J. in Greer Vs. US [245 USR 559] remarked " a presumption
upon a matter of fact, when it is not merely a disguise for some other
principle, means that common experience shows the fact to be so
generally true that courts may notice the truth". Section 114 of the
Evidence Act shows the way to the Court in its endeavour to discern the
truth and to arrive at a finding with reasonable certainty. Under the
Indian Evidence Act, the guiding rules for drawing the presumption are
set out broadly in the Section. Section 114 enjoins: "the Court may
presume the existance 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 facts
of the particular case." Having due regard to the germane considerations
set out in the Section, certain presumptions which the Court can draw are
illustratively set out. It is obvious that they are not exhaustive or
comprehensive. The presumption under Section 114 is, of course,
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rebuttable. When once the presumption is drawn, the duty of producing
evidence to the contra so as to rebut the presumption is cast on the party
who is subjected to the rigour of that presumption. Before drawing the
presumption as to the existence of a fact on which there is no direct
evidence, the facts of the particular case should remain uppermost in the
mind of the Judge. These facts should be looked into from the angle of
common sense, common experience of men and matters and then a
conscious decision has to be arrived at whether to draw the presumption
or not.

Among the illustrations appended to Section 114 of the

Evidence Act, the very first one is what concerns us in the present case:
"The Court may presume - 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."

Taylor in his treatise on The Law of Evidence has this to say on

the nature and scope of the presumption similar to the one contained in
Section 114 (a) :

"The possession of stolen property recently after

the commission of a theft, is prima facie evidence
that the possessor was either the thief, or the
receiver, according to the other circumstances of
the case, and this presumption, when
unexplained, either by direct evidence, or by the
character and habits of the possessor, or
otherwise, is usually regarded by the jury as
conclusive. The question of what amounts to
recent possession varies according to whether the
stolen article is or is not calculated to pass readily
from hand to hand.

This presumption which in all cases is one

of fact rather than of law, is occasionally so
strong as to render unnecessary any direct proof
of what is called the corpus delicti. Thus, to
borrow an apt illustration from Maule J., if a man
were to go into the London Docks quite sober,
and shortly afterwards were found very drunk,
staggering out of one of the cellars, in which
above a million gallons of wine are stored, "I
think," says the learned Judge and most persons
will probably agree with him "that this would
be reasonable evidence that the man had stolen
some of the wine in the cellar, though no proof
were given that any particular vat had been
broached, and that any wine had actually been
missed."

IV. We shall now examine as a first step whether the conditions, or

to put it in other words, factual circumstances contemplated by Illustration
(a) to Section 114 are fulfilled.

IV (a). There can be no doubt that the ornaments which were located
at the instance of the accused were the personal belongings of the deceased
and they were being worn by the deceased. The evidence of PW2, who is
the son of the deceased-victim bears testimony to this fact and even a
gruelling cross examination could not raise a cloud on the veracity of his
deposition on this aspect. The next step which has to be proved by the
prosecution is the possession of the said ornaments of the deceased soon
after the incident. One of the ear rings weighing 1.200 gms.was sold by
accused No.1 to PW 5 who was running a jewellery shop at Osmanabad for
Rs. 170/-. The evidence of PW 6 a cycle shop owner, whose assistance
was sought by accused No.1 to dispose of the ear ring also corroborates the
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evidence of PW 5 and the Investigating Officer (PW 10). According to PW
5, the sale transaction took place on May 30, 1984 at 1.30 P.M. i.e. on the
very next day after the murder of Baburao. PW5 also deposed that accused
No.1 accompanied by two panchas and police came to his shop five or six
days later and the accused asked him to return the gold ear ring sold to him
and on production of ear ring by PW 5, the police seized the same in the
presence of panchas on 7.6.1984. The fact that he had not given any receipt
and taken the signatures of the accused or that he was not having licence to
sell or purchase the gold ornaments are not factors which go to discredit the
evidence of P.W.5 in whose shop the ear ring was found. The possession of
golden ear ring belonging to the deceased by accused No.1 soon after the
occurrence and the sale thereof immediately to PW 5 is thus established
beyond doubt.

Drawing our attention to the evidence of PW 6, it is contended

by the learned counsel for the appellant that there was no discovery of the
ear ring on the basis of the information furnished by accused No.1, but the
police party had information through PW 6 about the sale of ear ring to PW5
and, therefore, the alleged discovery under Section 27 has no value. The
portion of the deposition of PW 6 relied upon by the appellant’s counsel is
as follows:

"It is correct that after about seven days the

police had called me in the police station.
The police had enquired from me as to the
person to whom the gold was sold. I had
told the police the shop in which the golden
ear ring was sold. I had pointed out the shop
to the police. Police had taken Vijay Kumar
(PW 5) and myself to the police station. The
police had got confirmed the sale of the
golden ear rings."

From this statement, it does not follow that there was no discovery within
the meaning of Section 27 of the Evidence Act. As rightly pointed out by the
learned Sessions Judge, the statements were immediately recorded after the
seizure of ear ring from the shop of PW5. The Investigating Officer
evidently cross-checked the information furnished by the accused and PW 5
as regards the role played by PW 6 and that is why he was summoned to the
police station. From the statement of PW 6, it cannot be deduced that the
information furnished by accused No. 1 to the police was only subsequent to
the information furnished by PW 6. Hence, the argument that there was no
information leading to discovery of the material object and the statement of
the accused is inadmissible under Section 27 was rightly repelled by the trial
Court. There is no good reason to take a different view in this regard.

Then we have the evidence of discovery of the other stolen articles

concealed beneath the earth in the fields of others and at a spot on the road
side. These discoveries were made on the basis of the statements made by
accused Nos. 1 and 2 on 15.6.1984 and accused No.3 on 20.6.1984. The
evidence of panch witness (PW9) and the Investigating Officer (PW12)
lends proof to these discoveries. Argument has been addressed by the
learned counsel for the appellant that the panch witness Sidling was always
being called by the police. He figured as panch not only on the first
occasion but also on subsequent two occasions when he was allegedly called
by the I.O. while going past the police station. The said witness is related to
the deceased. It is highly doubtful whether he witnessed the accused
pointing out to the places where the stolen articles lay and the police seizing
the same. His evidence does not therefore merit acceptance, according to
the learned counsel. We are not inclined to disturb the finding of fact
recorded by the trial Court as well as the High Court on the truth of the
discoveries by disbelieving the panch witness merely on account of some
suspicious features.

IV (b). We are left with the evidence of recovery of the ornaments of

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the deceased on the basis of the confessional statement of accused under
Section 27 of Evidence Act, if the discoveries are to be believed which
ought to be. The next two questions are, whether the accused shall be
deemed to be in possession of the articles concealed at various spots and
whether such possession could be said to be recent possession. But for the
decision of this Court in Trimbak Vs. State of M.P. (AIR 1954 SC 39), the
first question need not have engaged our attention at all. That was a case in
which at the instance of the accused the stolen property was recovered at a
field belonging to a third party and the accused gave no explanation about
his knowledge of the place from which the ornaments were taken out. The
High Court while absolving the appellant of the charge of dacoity, convicted
him under Section 411 IPC for receiving the stolen property by applying the
presumption that he himself must have kept the ornaments at that place. On
appeal by the accused, this Court took the view that there was no valid
reason for convicting the appellant under Section 411 IPC. The Court
pointed out that one of the ingredients of Section 411, namely, that the stolen
property was in the possession of the accused, was not satisfied. The Court
observed thus:-

"When the field from which the ornaments were

recovered was an open one, and accessible to all and
sundry, it is difficult to hold positively that the
accused was in possession of these articles. The fact
of recovery by the accused is compatible with the
circumstance of somebody else having placed the
articles there and of the accused somehow acquiring
knowledge about their whereabouts and that being so,
the fact of discovery cannot be regarded as conclusive
proof that the accused was in possession of these
articles."

If this view is accepted, there is the danger of seasoned criminals who

choose to keep the stolen property away from their places of residence or
premises escaping from the clutches of presumption whereas the less
resourceful accused who choose to keep the stolen property within their
house or premises would be subjected to the rigour of presumption. The
purpose and efficacy of the presumption under Section 114 (a) will be
practically lost in such an event. We are, however, relieved of the need to
invite the decision of a larger Bench on this issue in view of the
confessional statement of the accused that they had hidden the articles at
particular places and the accused acting further and leading the
Investigation Officer and the Panchas to the spots where they were
concealed. The Memoranda of panchnama evidencing such statements are
Exhibits 26, 28 and 30. If such statement of the accused in so far as the part
played by him in concealing the articles at the specified spots is admissible
under Section 27 of the Evidence Act, there can be no doubt that the factum
of possession of the articles by the accused stands established. We have the
authority of the three-Judge Bench decision of this Court in K.
Chinnaswamy Reddy Vs. State of Andhra Pradesh (AIR 1962 SC 1788) to
hold that the statement relating to concealment is also admissible in
evidence by virtue of Section 27. In that case, the question was formulated
by Wanchoo, J. speaking for the Court, as follows:-

"Let us then turn to the question whether the statement of

the appellant to the effect that ’he had hidden them (the
ornaments)’ and ’would point out the place’ where they
were, is wholly admissible in evidence under S. 27 or
only that part of it is admissible where he stated that he
would point out the place but not the part where he stated
that he had hidden the ornaments."

After referring to the well known case of Pulukuri Kotayya Vs. King-
Emperor (AIR 1947 PC 67), the question was answered as follows :-

"If we may respectfully say so, this case clearly brings

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out what part of the statement is admissible under S.27.
It is only that part which distinctly relates to the
discovery which is admissible; but if any part of the
statement distinctly relates to the discovery it will be
admissible wholly and the court cannot say that it will
excise one part of the statement because it is of a
confessional nature. Section 27 makes that part of the
statement which is distinctly related to the discovery
admissible as a whole, whether it be in the nature of
confession or not. Now the statement in this case is said
to be that the appellant stated that he would show the
place where he had hidden the ornaments. The Sessions
Judge has held that part of this statement which is to the
effect ’where he had hidden them’ is not admissible. It is
clear that if that part of the statement is excised the
remaining statement (namely, that he would show the
place) would be completely meaningless. The whole of
this statement in our opinion relates distinctly to the
discovery of ornaments and is admissible under S.27 of
the Indian Evidence Act. The words ’where he had
hidden them’ are not on a par with the words ’with which
I stabbed the deceased’ in the example given in the
judgment of the Judicial Committee. These words
(namely, where he had hidden them) have nothing to do
with the past history of the crime and are distinctly
related to the actual discovery that took place by virtue of
that statement. It is however urged that in a case where
the offence consists of possession even the words ’where
he had hidden them’ would be inadmissible as they
would amount to an admission by the accused that he
was in possession. There are in our opinion two answers
to this argument. In the first place S.27 itself says that
where the statement distinctly relates to the discovery it
will be admissible whether it amounts to a confession or
not. In the second place, these words by themselves
*though they may show possession of the appellant
would not prove the offence, for after the articles have
been recovered, the prosecution has still to show that the
articles recovered are connected with crime, i.e. in this
case the prosecution will have to show that they are
stolen property. We are therefore of opinion that the
entire statement of the appellant (as well as of the other
accused who stated that he had given the ornament to
Bada Sab and would have it recovered from him) would
be admissible in evidence and the Sessions judge was
wrong in ruling out part of it."

* (emphasis supplied)

In the light of this decision, we must hold that the accused must be deemed
to be in exclusive possession of the articles concealed under the earth
though the spots at which they were concealed may be accessible to public.
It may be mentioned that in Trimbak’s case (supra) this Court did not refer
to the confessional statement, if any, made by the accused falling within the
purview of Section 27 and the effect thereof on the aspect of possession.

IV (c). Coming to the next question whether the test of time factor or
’recent possession’ has been satisfied, there can be no doubt that the
accused came to possess incriminating articles (ornaments) soon after the
crime. Accused No.1 Limbaji sold one of the articles, namely, the golden
ear rings on the very next day to PW 5. The other articles were found
concealed at the places shown by the accused within a short time after their
arrest. All the discoveries were made within three weeks. The arrest took
place on the very next day after the occurrence in the case of the
accused Nos. 1 and 2. The ornaments which came into
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their possession were concealed by them for obvious reasons before their
arrest. As regards the third accused, he was arrested 10 days after the
occurrence and by that time the stolen articles were found concealed under a
tree. Even in the case of the third accused, the time lag is not so much as to
preclude the presumption being raised under illustration (a) to Section 114.
In Earabhadrappa’s case (AIR 1983 SC 446), this Court while reiterating
the principle that no fixed time limit can be laid down to determine whether
possession is recent or otherwise, held that even a period of one year was
not too long having regard to the fact that the accused suddenly disappeared
after the incident and he was absconding for a long time. In the present case,
the 3rd accused Arun gave the information about the stolen article, namely,
golden ear-ring soon after his arrest and this led to the discovery of stolen
property. Having regard to the nature of the articles, it is difficult to
visualise that it would have changed hands within this short time and
ultimately landed itself in the possession of the said accused. The accused,
on his part, did not come forward with any such explanation.
V.(a) In the light of the above discussion, in the instant case
the presumption under Section 114 illustration (a) could be safely
drawn and the circumstance of recovery of the incriminating articles within a
reasonable time after the incident at the places shown by the accused
unerringly points to the involvement of the accused. Be it noted that the
appellants who were in a position to explain as to how they could lay their
hands on the stolen articles or how they had the knowledge of concealment
of the stolen property, did nothing to explain; on the other hand, they denied
knowledge of recoveries which in the light of the evidence adduced by the
prosecution must be considered to be false. By omitting to explain, it must
be inferred that either they intended to suppress the truth or invited the risk
of presumption being drawn. Thus, the presumption as to the commission of
offence envisaged by illustration (a) of Section 114 is the minimum that
could be drawn and that is what the trial court did.

V (b). The question then is, applying illustration (a) to Section 114,
whether the presumption should be that the accused stole the goods or later
on received them knowing them to be stolen. Though the trial court
observed that the accused "might have robbed" the ornaments of the
deceased after he was murdered by someone else, it found them guilty of the
offence under Section 411 IPC only which is apparently self-contradictory.
On an overall consideration of the circumstances established, it is reasonable
to presume that the accused committed the theft of the articles from the
person of the deceased after causing bodily harm to the deceased. The fact
that within a short time after the murder of the deceased, the appellants came
into possession of the ornaments removed from the person of the deceased
and the 1st accused offered one of the stolen articles for sale on that very
day and the further fact that the other articles were found secreted to the
knowledge of appellants coupled with non-accountal of the possession of the
articles and the failure to give even a plausible explanation vis-Ã -vis the
incriminating circumstances would go to show that they were not merely
the receivers of stolen articles from another source but they themselves
removed them from the person of the deceased. Thus, the presumption to
be drawn under illustration (a) to Section 114 should not be confined to their
involvement in the offence of receiving the stolen property under Section
411 but on the facts of the case, it can safely go beyond that. In this context,
the three-Judge Bench decision of this Court in Sanwath Khan Vs. State of
Rajasthan, is quite apposite. While holding that from the solitary
circumstance of unexplained recovery of the articles belonging to the
deceased from the houses of the accused, the presumption of commission of
offence of murder cannot be raised, the Court nevertheless held that they can
be convicted of theft under Section 380 I.P.C. which was one of the charges
against the accused. Another decision of relevance is Shivappa Vs. State of
Mysore [1970 (1) SCC 487]. That was a case in which bundles of cloth
being carried in carts were looted by twenty persons and the accused were
charged for dacoity. Searches which took place within a few days after the
incident led to the recovery of large quantities of stolen clothes from their
houses. On these facts the Court drew the presumption that the persons with
whom the items of clothes were found were the dacoits themselves and the
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conviction was sustained. Hidayatullah, C.J. speaking for the three Judge
Bench observed that "It is only when accused cannot be connected with the
crime except by reason of possession of the fruits of crime that the
presumption may be drawn." Drawing support from these decisions too, we
are of the view that by invoking the presumption under Section 114 read
with Illustration (a) thereto, the appellants must, as a first step, be held to
have committed theft of ornaments which were removed from the person of
the deceased and that they are not mere receivers of stolen property. Theft is
a component of the offence of robbery and theft becomes robbery, if, in
order to the committing of theft, the offender causes or attempts to cause
death, hurt or wrongful restraint or instils fear thereof. Whether, on the
facts, they shall be convicted for robbery is yet another aspect which we
shall advert to a little later. We are only pointing out presently that if we
stop at applying illustration (a) to Section 114, the accused can be safely
convicted for the offence of theft rather than for the offence under S.411.
What is the position if we look beyond illustration (a) is another aspect.

VI. (a) The above discussion paves the way for consideration of a more
important question whether, having regard to the facts of this case, the
presumption should be extended to the perpetration of the offence of robbery
or murder or both? Presumption envisaged by illustration (a) to Section 114
has been stretched in decided cases to make a similar presumption as the
basis for conviction for graver offences of robbery and murder, if they are
part of the same transaction. Strictly speaking, such presumption does not
come within the sweep of illustration (a), though in some cases illustration
(a) has been referred to while upholding the conviction for robbery and
murder. Extending the presumption beyond the parameters of illustration (a)
could only be under the main part of the Section. The illustration only
provides an analogy in such a case. With this clarification, let us examine
whether there is scope to presume that the appellants committed robbery and
murder sharing the common intention. While on this point, we have come
across divergent approaches by this Court in various cases. In some cases,
the extended presumption was drawn while in some cases the Court
considered it unsafe to draw the presumption merely on the basis of recovery
of incriminating articles from the possession of the accused soon after the
crime. The decisions of this Court in Union Territory of Goa Vs.
Beaventura D’Souza [1993 Supp. (3) SCC 304], Surjit Singh Vs. State of
Punjab [AIR 1994 SC 110] and Sanwath Khan Vs. State of Rajasthan [AIR
1956 SC 54] fall in one line, whereas the decision in Gulab Chand Vs.
State of M.P. [1995 (3) SCC 574) falls on the other side of the line. In
the mid way we find certain decisions wherein the presumption was invoked
as an additional reason to support the conclusion based on circumstantial
evidence. We shall briefly refer to these decisions.

In Union Territory of Goa Vs. B. D’Souza (supra) a two-Judge

Bench of this Court held that discovery of incriminating articles including
gold ornaments of the deceased and the absence of explanation for the
possession of stolen articles does not by itself justify a presumption that the
accused committed murder. Suspicion however strong cannot take the place
of proof. The finding of the Sessions Judge based on the presumption "does
not stand scrutiny in the eye of law". Unless there is something else to show
that the accused alone were in the company of the deceased, the presumption
cannot be drawn. It was held that there were no circumstances connecting
the accused with the murder. The Court however convicted the accused
under Section 411 IPC. In a more recent case, namely, Ronny Vs. State of
Maharashtra [1998 (3) SCC 625], the above decision was referred to and
distinguished and the raison d’etre for not drawing the presumption was said
to be that the injured witness did not implicate the accused and the recovery
was after one month. However, on a perusal of the judgment in D’Souza
case, it is not apparent that the injured witness was in a position to see and
identify the accused at all. As regards the time factor, there was no
categorical observation in D’Souza’s case that the lapse of one month’s time
would weaken the presumption. Another judgment rendered by the same
Bench was in the case of Surjit Singh Vs. State of Punjab (supra). It was
held therein that recovery of watch belonging to the deceased from a pawn
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17
broker after 15 days of the date of occurrence on the basis of the information
furnished by the accused was held to be insufficient to connect him with
murder by invoking Section 114 of the Evidence Act. At the most, it was
held that he can be convicted under Section 411 and accordingly he was
convicted and sentenced. Another case which broadly falls within first
category is that of Sanwath Khan (supra). As it is a three-Judge Bench
decision, we may refer to it in some detail.

Two persons who were living in a temple were found lying

dead in the temple premises. They succumbed to axe injuries. The house
was found ransacked and almirahs etc. opened. One of the accused who was
arrested 12 days later produced a gold kanthi which it was lying buried in
his premises. Another accused who was arrested 17 days later produced a
silver plate from his house where it lay buried in the ground. Both these
articles belonged to the deceased. The High Court upheld the conviction by
relying on the solitary circumstance of the recovery of two articles at the
instance of the accused and the absence of explanation about their
possession. On further appeal, the three-Judge Bench of the Supreme Court
set aside the conviction under Section 302 and found the appellants guilty
under Section 380 IPC. Mahajan, J. speaking for the Bench observed as
under :-

"In the absence of any evidence whatsoever of the

circumstances in which the murders or the robbery
took place, it could easily be envisaged that the
accused at some time or other seeing the Mahant
and Ganpatia murdered, removed the articles
produced by them from the temple or received
them from the person or persons who had
committed the murder."

The Court, after having referred to the possibility of someone

else murdering the deceased observed thus :

"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.

The accused produced these articles about a

fortnight after the theft and the maximum that can
be said against them is that they received these
goods knowing them to be stolen or that they
themselves stole them; but in the absence of any
other evidence, it is not possible to hold that they
are guilty of murder as well."

Having referred to the decisions of various High Courts, the

Court concluded as follows :-

"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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17
possession of the stolen property was the murderer.
Suspicion cannot take the place of proof."

Now, it is time we refer to Gulab Chand Vs. State of M.P.

[1995 (3) SCC 574] case, where presumption under Section 114 of the
Evidence Act was carried to the utmost extent. In that case the accused were
charged under Sections 120-B, 302, 394 and 397 for having committed the
murder and robbery. The appellants were convicted under Section 380. On
appeal by the State, the High Court reversed the order of acquittal and
convicted the appellant Gulab Chand under Sections 302, 394 and 397. The
conviction of the other accused was modified to one under Section 411. In
that case, within a few days after the incident, on the search of the
appellant’s house, various articles were found including ornaments
belonging to the deceased. Some of the ornaments were also recovered from
a shop on the basis of the information given by the accused. The Court
started the discussion with the preface: "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." After
referring to the test of time factor for drawing the presumption under
S. 114 (a) as laid down in Tulsiram Kanu Vs. State (AIR 1954 SC 1), the
Court observed, if the ornaments of the deceased were found in possession
of a person soon after the murder, a presumption of guilt can follow. But if
several months have expired, the presumption may not be permitted to be
drawn. Having regard to the close proximity of the time of recovery and
lack of credible explanation for the possession thereof and on account of
dealing with the ornaments immediately after the crime, it was held that a
reasonable inference of commission of offence could be drawn against the
accused. In conclusion, the learned Judges observed:

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 Illustration (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."

The above decision was cited with approval in the case of Mukund vs.
State of M.P. (1997 (10) SCC 130). The Court, having negatived the
contention of the appellant’s counsel that mere recovery of stolen articles
from the house pointed out by the accused could only lead to the
presumption that the offence was committed under Section 411 but not the
offences under Sections 302 and 394, observed thus :-

"If in a given case as the present one the

prosecution can successfully prove that the
offences of robbery and murder were committed in
one and the same transaction and soon thereafter
the stolen properties were recovered, a court may
legitimately draw a presumption not only of the
fact that the person in whose possession the stolen
articles were found committed the robbery but also
that he committed the murder. In drawing the
above conclusion we have drawn sustenance from
the judgment of this Court in Gulab Chand Vs.
State of M.P.".

At the same time, the Court was cautious enough to say that the
other incriminating circumstances detailed earlier reinforced the ultimate
conclusion. Various others incriminating circumstances were referred to in
the judgment.

Gulab Chand’s case was also referred to in Ronney Vs. State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17
of Maharahstra [1998 (3) SCC 625] and Sanjay Vs. State (NCT of Delhi)
[2001 (3) SCC 193]. But it is to be noted that in all the three cases decided
subsequent to Gulab Chand’s case, there were additional circumstances
which shed light on the involvement of the accused. So also in the case of
Earabhadrappa Vs. State of Karnataka [AIR 1983 SC 446], presumption
was raised that the accused who pointed out the places at which the
ornaments and sarees of the victim were kept committed robbery and
murder. Here again, quite a number of additional circumstances were
noticed, apart from the recovery of stolen articles. Thus, as far as the factual
matrix goes, only Gulab Chand’s case stands apart. The recovery of the
articles of victim soon after the crime at the instance of the accused and
incredible explanation given by the accused for possession
of the articles were held to be sufficient to raise the
presumption of having committed robbery and murder, if they were
otherwise part of the same transaction.

Before parting with the discussion on judicial precedents, we

may advert to a recent decision in State of Maharashtra Vs. Suresh [2000
(1) SCC 484]. The Bench consisting of K.T. Thomas and R.P. Sethi, JJ.,
observed that a false answer offered by the accused to explain away the
incriminating circumstances which are supposed to be within his knowledge
’provides a missing link for completing the chain’.

Whether the approach of the Court and ratio of the decision in

Gulab Chand’s case is in consonance with the three-Judge bench decision in
Sanwath Khan’s case (supra) is, at least a debatable issue. When this
decision was brought to the notice of their Lordships who decided Gulab
Chand’s case, it was merely observed that "the said decision is not
applicable in the facts and circumstances of the present case". There was no
further elaboration. In this state of law, the safer course would be to give
due weight to the dicta laid down and the ultimate conclusion reached by the
larger Bench in Sanwath Khan’s case. We cannot go against that decision in
so far as it applies to the present case.

VI (b). Now, let us revert back to the question formulated by us at the

outset and examine whether in the light of the facts and circumstances of the
present case, the presumption under Section 114 should be so extended as
to hold the appellant liable for graver offences of robbery and murder.

Before proceeding further, it is relevant to refer to the medical

evidence. PW 8, who was the medical officer in the Civil Hospital,
Osmanabad, conducted post-mortem over the dead body. He found four
external injuries : (1) Contused lacerated wound on posterior aspect of
the left ear measuring 3 cm.; (2) Contused lacerated wound on the right ear
lobule and measuring 2 x 1 x 2 cm.; (3) Abrasion on the chest wall,
anterior side in the third intercostal space on right side of the size of 3 x 3
cm.; and (4) Contusion on the right pectoral region measuring 3 x 2 cm.
He stated that all the injuries were antemortem. On internal examination, he
found bilateral haemothorax and laceration of the right lung base of the size
of 6 x 7 cm. He also found that there was a vertical tear on 4th right and left
ventricles of the heart and a contused lacerated wound on right lobe of the
liver of the size of 5 x 3 x 2 cm. PW 8 deposed that the cause of the death
was bilateral haemothorax with heart injury, liver injury and
haemoperitonium. According to him, external injuries 1 and 2 could have
been caused if the earrings were forcibly snatched. External injuries 3 and 4
could have been caused by hard and blunt object like a stone. He clarified
that internal injuries could be caused by article No.1 (stone weighing 10
k.g.). if it is forcibly hit on the chest. Further he deposed that the external
injuries and internal injuries were sufficient in the ordinary course of nature
to cause death. He denied the suggestion that the deceased could not have
been hit with a stone. In the light of the medical evidence, there are three
points which are to be prominently kept in view. Firstly, there was a
lacerated wound on the posterior aspect of the left ear and another such
wound on the right ear lobule which according to the doctor could have been
caused in the process of forcibly snatching the ear-rings worn by the victim.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17
Secondly, the internal injuries which were the immediate cause of death
would have been caused by a hard and blunt object. According to the
prosecution the deceased was hit by a heavy stone found at the spot and
seized under a panchanama. Thirdly, the injuries in question were
antemortem. In this state of evidence, it is clear beyond reasonable doubt
that the person or persons who removed the ornaments worn by the deceased
themselves inflicted the wounds in the process of removing them. There
was evidently a hush-hush operation to run away with the booty without
allowing much time to pass. The fact that the ornaments on the person of
the deceased came into the hands of the accused soon after the crime and
they failed to give any explanation for the circumstances appearing against
them justifies the presumption, as already discussed, that they themselves
removed these articles from the person of the deceased. Causing injuries to
the deceased in the process of removal of ear-rings is, in our view,
inextricably inter-linked with the commission of theft which is an ingredient
of robbery. It would be far-fetched to think, as the trial Judge has expressed
that someone else might have caused injuries and the appellant would have
stolen the articles thereafter. The fact that the booty was distributed between
the three accused and that they had secreted the robbed articles would
clearly reveal that the three accused shared the common intention to commit
robbery. Hence, we are of the view that by having resort to the presumption
under Section 114, an inference can be safely drawn that the appellants
committed robbery in furtherance of common intention. No other
reasonable hypothesis consistent with the innocence of the accused is
possible.

VI.(c) Whether the presumption could be further stretched to find

the appellants guilty of gravest offence of murder is what remains to be
considered. It is in this arena, we find divergent views of this Court, as
already noticed. In Sanwath Khan’s case, the three-Judge Bench of this
Court did not consider it proper to extend the presumption beyond theft (of
which the accused were charged) in the absence of any other incriminating
circumstances excepting possession of the articles belonging to the deceased
soon after the crime. However, we need not dilate further on this aspect as
we are of the view that in the peculiar circumstances of the case, it would be
unsafe to hold the accused guilty of murder, assuming that murder and
robbery had taken place as a part of the same transaction. The reason is this.
Going by the prosecution case, the deceased Baburao was hit by a heavy
stone lying on the spot. The medical evidence also confirmed that the fatal
injuries would have been inflicted by a heavy stone like article No.1. It is
not the case of the prosecution that the appellants carried any weapon with
them or that the injuries were inflicted with that weapon. There is every
possibility that one of the accused picked up the stone at that moment and
decided to hit the deceased in order to silence or immobilise the victim. If
the idea was to murder him and take away the ornaments from his person,
there was really no need to forcibly snatching the ear-rings before putting an
end to the victim. It seems to us that there was no pre-mediated plan to kill
the deceased. True, common intention could spring up any moment and all
the three accused might have decided to kill him instantaneously, for
whatever reason it be. While that possibility cannot be ruled out, the
possibility of one of the accused suddenly getting the idea of killing the
deceased and in furtherance thereof picking up the stone lying at the spot
and hitting the deceased cannot also be ruled out. Thus two possibilities
confront us. When there is reasonable scope for two possibilities and the
Court is not in a position to know the actual details of the occurrence it is not
safe to extend the presumption under Section 114 so as to find the appellants
guilty of the offence of murder with the aid of S.34 IPC. While drawing the
presumption under Section 114 on the basis of recent possession of
belongings of the victim with the accused, the Court must adopt a cautious
approach and have an assurance from all angles that the accused not merely
committed theft or robbery but also killed the victim.

VII In the result, we set aside the conviction of the accused under
Section 302 IPC. We find the accused guilty of the offence punishable
under Section 394 read with Section 34 IPC and accordingly convict the
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accused under Section 394 and sentence them to undergo rigorous
imprisonment for a period of five years and to pay a fine of Rs.500/- each
and in default to undergo further imprisonment for a period of three months.
The appeals are thus partly allowed.

J
(R.C. Lahoti)

J
(P.Venkatarama Reddi)
December 14, 2001.
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EXTRACT FROM DIRECT TAX LAWS COMMITTEE

It should be recognised that the law, however, exhaustively and

elaborately it may be rationalised, cannot take care of all possible situations
and circumstances which may arise in a developing and complex economy
such as ours. The nation is engaged in a process of planned economic
growth consistent with social justice, and it has wide and varied components
like the public sector, joint sector and the private sector, as also industry,
trade, commerce and agriculture, apart from the urban and rural aspects. All
these complexities are inherent in a developing economy such as ours and,
therefore, tax laws cannot be reduced to a plane of total or absolute
simplicity. But best efforts towards simplification still have to be made.

Brennan J, writing in the Federal Law Review, indorsed the Kitto view:
"The judicial function is essentially syllogistic. The applicable
principles ’the law as it is’ provide the major premise; ’the facts as
they are’ provide the minor premise; the judgment follows inexorably
by applying ’the law as determined to the facts as determined’."
These quotations reflect a view that today seems quaintly anachronistic.
Indeed, it must be said that it has probably never been the case that the role
of an appellate judge was merely mechanistic, although there is perhaps a
question of degree.
Mason CJ spelt out his position publicly and clearly. Speaking to the
Sydney Institute his Honour said:
"Just as the judge is becoming more of a manager of the litigation, so
the judge is also likely to become more of a constructive interpreter of
legislation. That will happen as the so-called ’plain English’ reforms
in legislative drafting find their way into the statute book. The
movement away from detailed regulation, which reached its apogee in
the Income Tax Assessment Act and the Corporati8ons Law to the
broader statements of principle characterstic of United State
legislation and, to a lesser extent, of United Kingdom legislation, will
leave the courts with more to do. The judges will be called upon to
spell out the interstices of the legislative provisions. In doing so, they
must resolve questions of interpretation by reference to the policies
and purposes which are reflected in the legislation.
What I have just said may not be welcome news to those who
believe that the courts do no more than apply precedents and look up
dictionaries to ascertain what the words used in a statute mean. No
doubt to those who believe in fairy tales that is a comforting belief.
But it is a belief that is contradicted by the long history of the
common law. That history is one of judicial law-making which shows
no signs of unaccountably coming to an end. However, a distinction
must be made between appellate judges and primary or trial judges
who, generally speaking, are confined to applying principles of law to
the facts as they are found."

The Indian Constitution has the place of pride in the

world. The history of world after the Indian independence has
fully revealed the wisdom of Indian Constitution and has
proved its efficacy in creating a new world order based on
Liberty, Equality and Fraternity the ideals which inspired the
French revolution. We have seen the experience of many
countries which attained freedom after the Second World War.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17
The Constitutions of many of those countries with nice phrases
and high ideals meant to ensure a democratic system of
governance have faded away, while many others are struggling
to survive. But our Constitution has withstood the test of time.
The democratic institutions and practices have grown and
nourished under the aegis of our Constitution. Every Indian can
confidently say that the Constitution cannot fail us despite
turbulent times and the ongoing challenges. It is said by
George S. Bidault, very aptly:
"The good or bad fortune of a nation depends on
three factors; its Constitution, the way the
Constitution is made to work and the respect it
inspires"
We, the people of India, as the preamble to the
Constitution states, have given to ourselves the
Constitution and have solemnly resolved to constitute
India into a Sovereign, Socialist, Secular, Democratic
Republic and to secure Justice, Liberty, Equality and
Fraternity. The expression ’Socialist’ and ’Secular’ were
added to the preamble the 42nd Amendment Act in the
year 1976. Even without those phrases, the socialist and
secular character of the Constitution is implicit in several
provisions in their original form with the amendments
which were made till then. It is the fountain source of all
laws and the framework of Legislative, Executive and
Judicial power. Constitution is the ’Supreme Law’ and
all laws and the executive and judicial action should
conform to the constitutional provisions. Our
Constitution is a very lengthy document, perhaps the
lengthiest taking care of each and every details which the
free India, needed to have.
The Drafting Committee scrutinized the
democratic Constitutions of various countries such as
USA, Australia, Canada etc. Such of those provisions

which are best suited to our polity and society have been
borrowed and several provisions have been adopted in
modified form to suit the Indian conditions, the psyche of
the people and the paramount needs of the nation. The
Constitution marked the culmination of our glorious epic
struggle for freedom reflecting the lofty ideals and ideals
and values that inspired that historic crusade; and it
enshrines the cherished goals and objectives that We, the
People of India have set for ourselves.
Our Constitution is not a mere declaratory
document, it sets out a process of shaping human values,
relations and material conditions of life. The
Constitution of India was framed not merely for the
democratic governance of the country but more
significantly to promote nation-building process, unlike
in the case of many democracies where the Constitution
provided merely for the institutions and process of
governance. In the words of Bhagwati, J. speaking for
the Supreme Court, in Bachan Singh Vs. State of Punjab

"Constituion is not a mere pedantic legal text, but it

embodies certain values, cherished principles, spiritual
norms, and recognizes and upholds the dignity of man. It
accepts the individual as a focal point of development
and regards his material, moral, spiritual development, as
a chief concern of governance."
In the light of experience gained during half-a-
century, attempts are being made to fine-tune the
Constitution to the process of social transformation it has
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17
ignited and to be more responsive to the needs of the day.
A Committee to review the working of the Constitution
has now been setup. It is often being debated whether
the Constitution, amended 80 times so far is inadequate,
or the persons who operated the Constitution have failed
us.
The bedrock of the Indian Constitution rests on
independent judiciary with powers of Judicial Review.
The Supreme Court and High Courts are the creatures
of the Constitution and hence they are known

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