Bhagwan Dass alias Kala vs State of J & K

Sharma, J.—This appeal is directed against the judgment of the Session Judge. Jaminu. dated 31121997. convicting the appellants under

Section 302 read with Section 34 of the Ranbir Penal Code, sentencing them to imprisonment for life with a fine of Rs. 10.00 each. They have also

been sentenced under sections 380 and 457 of the Ranbir Penal Code and sentenced to 3 years and 2 years rigorous imprisonment respectively

with a fine of Rs. 1,000 each.

The Prosecution story as unfolded in evidence is that on the morning of June 28. 1994. Mst. Durgi Devideceased was found dead in her house

in village Camp Khour, Tchsil Akhnoor. by her soninlaw P.W.Badri Nath. The police was informed immediately and the investigation revealed that

she has been killed by strangulation and her house had been burgled by the assailants. Accordingly, a case under sections 302/460/34 was

registered in Police Station Khour. On the same date police arrested appellantBhagwan Dass and Sham Singh. On being interrogated they made

disclosure statement with regard to the possession of some ornaments and cash which was subsequently recovered from the places indicated by

them. The third accused was arrested on 29th June, 1994, and part of the stolen property recovered from him. The cause of death of Mst. Durgi

Devi was found to be asphysia as a result of strangulation. After collecting evidence the accused were sent up for trial under sections 460 and 302

read with section 34 R.P.C. The Sessions Court, however, charged them under sections 302, 380 and 457 R.P.C. to which they pleaded not

guilty.

There is no direct evidence to prove the charge of murder. The circumstantial evidence relied by the prosecution is recovery of the stolen

property from the possession of the accused on the basis of information provided by them. The learned Sessions Judge examined the prosecution

case under the following heads:

1) Motive;

2) Circumstantial evidence:

3) Medical evidence: and

4) Incriminating material.

However, motive, medical evidence and any other incriminating material are all parts of a circumstantial evidence. Therefore, the circumstantial

evidence in this case comprises of motive to commit the crime. Disclosure statement recorded under section 27 of the Evidence Act and recovery

of the property pursuant to such disclosure statement and the proof that property so recovered belonged to the deceased.

While dealing with the motive, the findings of the trial court arc as follows:

there is overwhelming evidence, of unimpeachable character available on record to prove that all the three accused namely Bhagwan Dass. Sham

Singh and Ajeet Singh actuated by a baser motive eliminated Mst Durgi Devi by mental strangnaltion. The medical evidence also support thai the

deceased had died of manual strangulation. According lo the prosecution the accused trooped into the dwelling house of Mst. Durgi Devi on the

night interceeding 27/28(h June. J 994 at Khour Camp with a purposive intent to commit theft by house breaking by night. It is, also forthcoming

that the accused saw Mst. Durgi Devi lying asleep on a cot in the court yard of her dwelling house. Accused Bhagwan Dass gaged her mouth and

accused Sham Singh pressed her throat with both hands and when she started moving her legs and hands obviously in a vain attempt to save

herself from the clutches of the accused, third confedrate Ajeet Singh held out her hands and legs for 15 minutes till they became sure that Mst.

Durgi Devi has died. It is, further troted out that the accused removed the bunch of keys from her undershirt (shameez), entered into the room of

the dwelling house of the deceased. broke opened the two steel boxes removed valuable ornaments and cash and, thereafter, took two steel boxes

to the fields nearby and broke open the nasps and pad locks and took out the ornaments and cash therefrom and decamped with the stolen

ornaments and the cash from the place of occurrence and, thereafter, distributed amongst themselves and absconded.

This conclusion of the learned trial court is based on no evidence and is against his own observations that there is no eye witness to the

occurrence and the prosecution case depends purely on circumstantial evidence. How and when the accused party entered the house of the

deceased and in what manner they strangulated her to death is a matter of inference only and therefore the finding is erroneous. The trial court had

dealt with this question as if these facts have been proved by direct evidence that too of an unimpeachable character. Thus view of the trial court is

therefore erroneous because there is no evidence in support of the conclusion about the manner and method the deceased was strangulated and

thereafter bunch of keys removed from her undershirt. Nodoubt these facts are disclosed in the police report prepared under section 173 Cr.P.C.

but are not supported by any evidence. The question how the stolen property was shared by the accused is also a matter of inference to be drawn

from the evidence about their separate possession. Moreover, the trial court should not have stretched the motive part to such an extent if theft was

the motive. Since the entire prosecution case rests on the recovery of stolen property, once it is proved that they were found in possession of the

property belonging to the deceased immediately after her death there could be no other motive to commit murder than theft as the appellants had

no enemity with the deceased who was an old lady in the village. Since she was a lady of means, therefore, theft of her property could be a

sufficient motive for committing murder to facilitate the commission of theft. Motive afterall is something which prompts a person to form an

intention to do a particular act as observed by their Lordships in 'Suresh Chandra Bahri Vs. Suite of Bihar"". AIR 1994 Supreme Court 2420:

At the very outset we may mention that some times motive plays an important role and becomes a compelling force to commit a crime and

therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form

an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there

is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty for the

offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the

accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what

circumstances prompted him to a certain course of action leading to the commission of the crime.

So in case the accused and appellant were found in possession of the property of the deceased the motive for committing murder will stand

proved.

Disclosure statement made by the appellants leading to the recovery of the property. According to the statement of P.W Badhri Nath. Munshi

Ram and Investigating Police OfficerPardeep Singh, the assailants of the deceased had entered the house of the deceased by opening the lock of

the room and thereafter committed theft by breaking open locks of the two steel boxes during the night intervening 27th28th June. 1994. On the

same date appellantBhagwan Dass and Sham Singhaccused were arrested by the police. Their disclosure statements were also recorded on the

same date. As per EXPWBN/5 appellantBhagwan Dass disclosed that he was in possession of a number of ornaments the details of which is

recorded in the statement. He has also promised to identify the place where lj£ had kept them. It was on the basis of this statement that each one

of the items numbering 12 including ear rings, finger rings. Tika and other gold and silver ornaments including Rs. 4 of silver were recovered at his

instance. The details of each one of the items recovered from his possession is given in seizure memoEXPWBN/7.

Similarly, on the basis of disclosure statement made by Sham singh accused, stolen property was recovered from his possession also as per

EXPWBN/7.

However, the third accusedappellant Ajeet Singh could be arrested only on 29th June, 1994, that too after a hotchase as he was playing hide and

seek with the police. At the time of his arrest he was in possession of Rs. 1.800/ besides number of ornaments, the details of which are given in the

seizure memoEXPWBN/8. On a comparison of the property recovered from each one of the three accused, it becomes clear that there has been

equal distribution of the booty as they shared equally Rs. 5.400/ and the ornaments. There is practically no challenge to the evidence of the

witnesses regarding the disclosure statement as well as the recovery of the property from their possession and to this extent the appreciation of

evidence by the trial court is unexceptionable.

However, it is not the recovery of possession of the ornaments but their identity which will trace the recoverv of these articles to the commission

of crime. In order to prove that the seized property belonged to the deceased, the prosecution relied on the evidence of P.W.Badhri Nath and his

wife Mst. Sheelo Devi, who are soninlaw and daughter of the deceased. There is an empnatic statement made by P.W. Badhri Nath that entire

property recovered from the possession of the accused persons belonged to her motherinlaw Mst. Durgi Devi. This statement was not challenged

on behalf of any of the accused in the crossexamination. The only question put to him was to name the goldsmith who had manufactured the

ornaments. Although he pleaded ignorance about the name of the goldsmith but he was not crossexamined as to how he was in a position to

identify the property. Assuming that he was not in a position to identify the ornaments, there is no reason why the statement of his wifeSheelo Devi

is not accepted. According to this witness, some of the ornaments belonged to her mother while the rest were of her sisterinlaw. She had given

separate description of those belongings to her mother and sisterinlaw e.g. Tika, Finger rings, ear rings, Bugdi6 and some other belong to her

sisterinlaw. She also named one DesuGoldsmith who had made the ornaments for her mother whereas those of her sisterinlaw were made by a

different person. She separated the ornaments belonging to her mother and sisterin law only in the crossexamination which fact was not challenged

further so the articles recovered from the appellant and the third accused stand identified by a very close relative of the deceased who undoubtedly

must have seen her mother wearing these apparel a number of times . Ladies even other wise are know to have an uncanny habit of identifying the

personal belonging of their close relatives.

One of the arguments put forward by Mr. Kalgotra was that there was no test identification of the ornaments before these were identified by the

Mst . Sheelo Devi as such her evidence is not trustworthy. However a similar objection was rejected by the Apex court in Earabhadrappa Vs.

state of Karnataka. AIR 1983 SC 446. holding as under:

Bayamma was not cross examined at all as regards her identification of the seized ornaments and clothes as belonging to the deceased. Even if the

seized ornaments could be treated to be ornaments incommon use. this witness could never make a mistake in identifying the seized six silk sarees .

It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings. Particularly articles of personal use in the

family. That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in

the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for

want of prior test identification. There is no such legal requirement"".

In view of the above the argument of Mr. Kalgortra to the contrary is rejected . The next question is how much of the statement recovered

under section 27 of the evidence Act is admissible . The investigation police officer has been very discrete while recording the statement of the

accused under section 27 of the Evidence Act because no part of it amounts to confession of any of the accused. In view of this the statements of

the accused and appellant satisfy . the tests laid down by their lordships in 'Mohd Inayatullah V. The State of Maharashtra', AIR 1976 Sc 483

holding that:

Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete

cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded

of its requirements. The Section says:

'Provided 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 amount to a confession or not, as relates distinctly to the fact thereby

discovered may be proved.'

The expression ""provided that"" together with the phrase ""whether it amounts to a confession or not"" shows that the section is in the nature of an

exception to the proceeding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any

extent, Sec. 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a

relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must

be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important

condition is that only ""so much of the information"" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to

be excluded. The word ""distinctly"" means 'directly"", indubitably"" ""strictly"", ""unmistakably"". The word has been advisedly used to limit and define the

scope of the proveable information, the phrase 'distinctly"" relates ""to the fact thereby discovered"" (sic) (and?) is the linchpin of the provisions. This

phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind

this partial lifting of the ban against confessions and statements made to the police is that if a fact is actually discovered in consequence of

information given by the accused, it affords some guarantee of truth of that part, and that part only of the information which was the clear,

immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or

remotely related to the fact discovered."" Applying these tests to the present case the threefold facts discovered are:1) Ornaments in question.

2) Place wherein they were deposited; and

3) The knowledge of the appellantBhagwan Dass and Sham Singh of the place where these were deposited;

So all the three tests are satisfied. In view of this, disclosure statements does not suffer from any infirmity and the argument to the contrary has no

merit.

Another argument of the learned counsel appearing for the appellant is that possession of stolen property by itself is no a proof of murder so the

appellant according to him can only be convicted under Section 411 for being in possession of the stolen property. In support of this he placed

reliance on the decision of the Apex Court in 'Surjeet Singh V State of Punjab', AIR 1994 SC 110. However, the facts in Surjeet's case were

entirely different because the prosecution had relied on the statement of an eye witness whose evidence was rejected by the Court on the ground

that his conduct was unnatural and he was a man of a questionable character. It was in these circumstances that the accused was convicted under

Section 411 I.P.C. as he was found in possession of watch of the deceased. However, recent possession of stolen property has been held to be a

circumstance on the basis of which conviction on the charge of murder could also be recorded. This was laid down in 'Wasirn Khan V. the State

of Uttar pradesir, AIR 1956 SC 400 holding as under:

Before we deal with that evidence, it is necessary to consider how far recent possession of property of a deceased, in circumstances clearly

indicating that he had been murdered and robbed, would suggest that not only the possessor of the property was a thief or a receiver of stolen

property, but that it also indicated that he was guilty of a more aggravated crime which had connection with the theft. In the case of 'Emperor V.

Neamatulla' 17 Cal WN 1077 (A) Sir Lawrence Jenkins had the occasion to examine this question. After referring to S. 114, Evidence Act. he

quoted the following passage form Wills on Circumstantial Evidence: 'the possession of stolen goods recently after the loss of them,may be

indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been

connected with theft. This particular fact of presumption commonly forms also a material element of evidence in cases of murder' which special

application of it has often been emphatically recognized.' In the case of'QueenEmpress V. Sami 13 Mad 426 at P. 432 (B), the learned Judges of

the High court observed:

'Under these circumstances, and in the absence of any explanation, the presumption arises that any one who took part in the robbery also took

part in the murder. In cases in which murder and robbery have been shown to form parts of one transaction.it has been held that recent and

unexplained possession of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly

be evidence against him on the charge of murder. All the facts which tell against the appellant, especially his conduct indicating a consciousness of

guilt, point equally to the conclusion that he was guilty as well of the murder as of the robbery.......'

In the case of'Emperor V. Chintamoni Shahu', 1930 Cal 379 (2) (AIR V 17). (C), the opinion was expressed that: 'the possession of stolen goods

recently after the loss of them may be indicative not merely of the offence of larceny or of receiving with guilty knowledge but of any other more

aggravated crime which has been connected with the theft; this particular fact of presumption forms also a material element of evidence in the case

of murder.

A similar view seems to have been taken in the case of'In re Venkataswamy', 1950 Mad 309 (AIR V 37) (D) as well as in the case

of""Ramprashad Makundram V The Crown'. 1949 Nag 277 (AIR V 36) (E).

Since Wasim Khan was found in possession of the deceased's' goods three days afterwards, their lordships held him guilty of murder of the owner

of the goods. Similarly in the case of 'Earabhadrappa V State of Karnataka'. AIR 1983 SC 446 (supra), the facts of which are more close to the

facts of this case, it was held as under:

This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore, the

presumption arising under illustration (a) to Sec. 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but

also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the

appellant with the commission of the crime. The sudden disappearance of the appellant from the house of P. W. 3 on the morning of March 22.

1979 when it was discovered that the deceased has been strangulated to death and relieved of her gold ornaments, coupled with the circumstance

that he was absconding for a period of over one year till he was apprehended by P. W. 26 at village Hosahally on March 29. 1980. taken with the

circumstance that he made the statement EX.P35 immediately upon his earliest leading to the discovery of the stolen articles, must necessarily raise

the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery, of her gold

ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the

stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under illustration (a)

to Sec. 114. must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession in

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

has been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.

The ratio applies to the facts of the case because appellants Bhagwan Dass and accused Sham Singh were arrested within 24 hours of the

occurance and stolen property recovered from them on the same date. Both of them belong to the same village and know the deceased intimately.

None of their family members claimed the property recovered on the basis of their disclosure statements. Similarly appellant Jeet Singh was

arrested alongwith the stolen property while attempting to escape his arrest. He did not find sufficient time to dispose of the stolen property. The

deceased was killed on the date the theft was committed. Before that she had not complained of theft of her property. So her murder is traceable

to theft of her property and since appellant had committed the theft they have done so only after strangulating her to death.

Moreover, none of the accused have complained how they came into possession of such huge jewellery when none of them was married. They

have simply denied their possession but this denial is false in view of the overwhelming evidence. The answers given by them only tend to show that

they have committed the offence of murder because the deceased was strangulated to death on the night intervening 27th28th June. 1994 only to

facilitate commission of theft. Section 342 (2) of Cr. P.C. reads as follows:

342 (2). The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but

the court may draw such inference from such refusal or answers as it thinks just."" Since answers given by the appellants and the third accused

denying their possession and recovery of the stolen property are false, therefore, it can be safely inferred that they committed murder to commit

theft of the property which they shared equally. We are, therefore, satisfied that the appellant and the third accused have been rightly found guilty

and convicted accordingly. The appeal is thus dismissed and the sentences awarded to the appellants as well as Sham Singh are confirmed.