Dravid Sharma @ Chhotu Sharma VsState Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellants herein against the impugned judgment dated 04/01/2014 passed by learned 2nd Additional Sessions Judge, Sakti, District Janjgir-Champa in Sessions Trial No. 26/2013 whereby they have been convicted and sentenced as stated below, with a direction to run all the sentences concurrently :-

Conviction

Sentence

U/s 460 of IPC

Life imprisonment with fine of Rs. 1000/- and default of additional R.I. for 15 days.

U/s 302/34 of IPC

Life imprisonment with fine of Rs. 1000/- and default of additional R.I. for 15 days.

U/s 394 of IPC

R.I. for 10 years with fine of Rs. 1000/- and default of additional R.I. for 15 days.

Case of the prosecution, in a nutshell, is that in the intervening night of 18-19/10/2012, both the appellants trespassed into the house of Mograbai W/o Vishram Yadav armed with knife with the intention to commit robbery and after looting her gold earrings as well as her necklace, they strangulated her and caused her death.

Further case of the prosecution is that on 19/10/2012, Dhansai Yadav (P.W.-7) went to Police Station, Dabhra along with some other people and they reported about the sudden death of Mograbai and registered merg intimation vide Ex. P/14 on the basis of which, summons were issued to the panchas vide Ex. P/1 and after conducting inquest vide Ex. P/2, dead body of Mograbai was sent to Community Health Center, Dabhra for postmortem which was conducted by Dr. Narendra Prasad Mishra (P.W.-13) and as per the postmortem report (Ex. P/26), cause of death is said to be asphyxia due to strangulation and nature of death is said to be homicidal. Pursuant thereof, first information report was registered vide Ex. P/30 for offence punishable under Sections 302, 394 and 460 of IPC and the wheels of investigation started running. Statements of the witnesses were recorded and nazri naksha was prepared vide Ex. P/17. The appellants were taken into custody and pursuant to the memorandum statement of appellant No. 1 – Dravid Sharma alias Chhotu vide Ex. P/6, recovery of gold earrings and necklace was made from him vide Ex. P/8 and recovery of a nylon thread was made vide Ex. P/9 and pursuant to the memorandum statement of appellant No. 2 – Kumar Kenwat vide Ex. P/7, recovery of a gold necklace was made from him vide Ex. P/10. After due investigation, both the appellants were charge-sheeted for offences punishable under Sections 460, 394, 394/397, 302 or 302/34 of IPC which was committed to the Court of Sessions for trial in accordance with law. The appellants abjured their guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 18 witnesses and brought on record 34 documents. Statements of the appellants were recorded under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Mograbai to be homicidal in nature and further finding the appellants to be authors of the crime in question, proceeded to convict them for offences punishable under Sections 460, 302/34 and 394 of IPC and sentenced them as stated above.

Learned counsel for the appellants would submit that appellants have falsely been implicated in the crime in question as there is no direct evidence available on record and they have been convicted by the trial Court merely on the basis of memorandum and seizure, however, the incident took place in the intervening night of 18-19/10/2012 whereas the seizure has been made from the appellants on 31/10/2012, as such, there is considerable time gap between the date of offence and seizure of alleged articles from the appellant and even the seized articles have not been identified strictly in accordance with law in the identification proceeding. In alternative, he would submit that even if recovery pursuant to memorandum statement is proved against the appellants, at the most, they can be convicted for offence punishable under Section 411 of IPC, as such, they are liable to be acquitted for the offences in question.

Per contra, Learned State counsel would submit that prosecution has been able to bring home the offence beyond reasonable doubt, therefore, the trial Court has rightly convicted the appellants for the aforesaid offences as the identification proceeding has been conducted strictly in accordance with law and the seized articles have rightly been identified by Dhansai (P.W.-7) and seizure of the said articles has also been supported by Prahlad (P.W.-8), as such, presumption under Section 114(a) of the Indian Evidence Act, 1872 would apply and the instant appeal, therefore, deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

The first question for consideration would be whether the death of deceased Mograbai was homicidal in nature ?

Learned trial Court has recorded an affirmative finding in this regard and held the death of deceased Mograbai to be homicidal in nature relying upon the expert medical opinion of Dr. Narendra Prasad Mishra (P.W.-13) who has proved the postmortem report (Ex. P/26) in which cause of death is said to be asphyxia due to strangulation and nature of death is said to be homicidal.

At this stage, it would be relevant to notice the injuries suffered by the deceased, which are as follows :-

Considering the statement of Dr. Narendra Prasad Mishra (P.W.-13) as well as the postmortem report (Ex. P/26) and further considering the injuries suffered by the deceased on her neck, we are of the considered opinion that the trial Court has rightly held the death of deceased Mograbai to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court.

The next question for consideration would be whether the appellants are the authors of crime in question ?

Learned trial Court has mainly convicted the appellants on the basis of incriminating circumstance of seizure made from them pursuant to their disclosure statements. Pursuant to memorandum statement of appellant No. 1 – Dravid Sharma alias Chhotu vide Ex. P/6, recovery of gold earrings and necklace was made from him vide Ex. P/8 and recovery of a nylon thread was made vide Ex. P/9 and pursuant to the memorandum statement of appellant No. 2 – Kumar Kenwat vide Ex. P/7, recovery of a gold necklace was made from him vide Ex. P/10 which has been made in the presence of two witnesses namely Hushram (P.W.-5) and Prahlad (P.W.-8) and in a duly conducted identification proceeding (Ex. P/18) the said seized articles have been identified by Dhansai (P.W.-7).

It is well settled law that under Section 27 of Evidence Act only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word ‘fact’ means some concrete or material fact to which the information directly relates. As held by Sir John Beaumont in the matter of Pulukuri Kotayya v. King-Emperor AIR 1947 PC 67,

“… it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced ; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.”

Following the principle of law laid down in Pulukuri Kotayya (supra), their Lordships of the Supreme Court in the matter of Asar Mohammad and others v. State of U.P . AIR 2018 SC 5264, with reference to the word “fact” employed in Section 27 of the Evidence Act, have held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence.

In order to make Section 27 of the Evidence Act applicable, two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must ‘relate distinctly’ to the fact discovered. In the present case, the incident occurred in the intervening night of 18-19/10/2012 and on 31/10/2012, as pointed out by the appellants, pursuant to their memorandum statements, incriminating articles were recovered from their houses. As such, recovery made from the appellants pursuant to their disclosure statement satisfies the requirement of Section 27 of the Evidence Act and that being so, the statements made by the appellants under Section 27 vide Ex. P/6 and P/7 , is clearly admissible in evidence.

Now, the seized articles – gold earrings and necklaces have been identified by Dhansai (P.W.-7), nephew of deceased Mograbai, in identification proceeding (Ex. P/18). Dhansai (P.W.-7) has clearly stated in his statement before the Court that the seized ornaments belonged to the deceased and he has proved his signature in Ex. P/18. The identification proceeding was conducted by Pratap Singh Parihar, Nayab Tahsildar/Executive Magistrate in which Dhansai (P.W.-7) has identified the ornaments recovered from the possession of the appellants to be the ornaments of deceased Mograbai. He has been subjected to cross-examination, but nothing has been elicited from him to hold that the identification proceeding (Ex. P/18) was not conducted in accordance with law. In our considered opinion, the seized ornaments have been identified though the ornaments can be treated to be the ornaments in common use, but the said witness Dhansai (P.W.-7) has not committed any mistake in identifying the seized gold ornaments. The Supreme Court in the matter of Earabhadrappa alias Krishnappa v. State of Karnataka (1983) 2 SCC 330 has held that 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. As such, the submission on behalf of the appellant that memorandum and pursuant seizure have not been proved in accordance with law and further, the ornaments have not been identified in a duly constituted test identification proceeding, has no merit and deserves to be and is accordingly rejected.

Now, the next submission on behalf of the appellant is that even if the seized articles were owned by the deceased and were found in the possession of the appellants, they can only be convicted for offence under Section 411 of the IPC, but cannot be convicted for offence under Section 302 of the IPC, whereas it is the case of the State / respondent that where murder and robbery are proved to have been integral parts of one and the same transaction and consequently, the presumption under Illustration (a) to Section 114 of the Evidence Act would be drawn that it is only the appellant who not only committed the murder of the deceased but also committed robbery of her gold and silver ornaments which form part of the same transaction, as the prosecution has led sufficient evidence to connect the appellant with the commission of the offence in question.

In order to consider the submission, it would be appropriate to notice Illustration (a) to Section 114 of the Indian Evidence Act, 1872, which states as under: -

“114. Court may presume existence of certain facts.—The Court may presume the existence 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 the facts of the particular case.

Illustrations

The Court may presume—

(a) 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;”

In order to draw an inference that fact in dispute has been established, there must exist, on record, some direct material facts or circumstances from which such inference could be drawn. Inference of proof of that fact could be drawn from given objective facts, direct or circumstantial (see R. Puthunainar Alhithan, etc. v. P.H. Pandian and others AIR 1996 SC 1599).

Furthermore, the illustrations appended to the aforesaid section are not exhaustive but merely illustrate the principle underlying the main provision. The presumption to be drawn under that provision is one of fact and whether it should be drawn or not in a particular case must depend upon the facts of that case.

In the matter of Tulsiram Kanu v. The State AIR 1954 SC 1, while considering Illustration (a) appended to Section 114 of the Evidence Act, their Lordships of the Supreme Court have held that the presumption permitted to be drawn under Section 114, illustration (a), Evidence Act, has to be read along with the important time-factor. If ornaments or things of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. Their Lordships observed in paragraph 7 as under: -

“7. Apart from this confession, the judgment of the High Court is based on the identification of the gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning, under the circumstances of the case, is unsound. The alleged murder took place on 28-5-1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the appellant being the murderer of the deceased. The important factor which appear to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under S. 114, illu. (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case. The criticism applied equally to the reasoning of the High Court for its conclusion.

Thereafter, in the matter of Wasim Khan v. The State of Uttar Pradesh AIR 1956 SC 400, the Supreme Court posed a question for consideration, whether the evidence in the case establishes that the appellant murdered and robbed Ram Dularey and their Lordships answered the question that recent and unexplained possession of stolen articles can well be taken to be presumptive evidence of the charge of murder as well as robbery.

Thereafter, in the matter of Alisher v. State of Uttar Pradesh (1974) 4 SCC 254, it has been held by their Lordships of the Supreme Court that illustration (a) to Section 114 of the Evidence Act makes it plain that the time factor has a material bearing and the Court must keep it in view before it can draw the presumption in accordance with the illustration. It was further held that the presumption can be raised if a person is found to be in possession of stolen goods soon after the theft. If, however, a long period elapses between the date of the theft and the date on which a person is found to be in possession of the stolen articles, the Court would not be justified in drawing the presumption in accordance with illustration (a) to Section 114. It was also held that the question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend on the nature of the stolen article and the facts of each case.

In the matter of Baiju alias Bharosa v. State of Madhya Pradesh (1978) 1 SCC 588, the Supreme Court following the decisions in Wasim Khan (supra) and Alisher (supra) and while dealing with the presumption to be drawn under illustration (a) to Section 114 of the Evidence Act has held that it is a matter which depends on the evidence and circumstances of each case. Further, their Lordships pointed out the following factors in order to attract illustration (a) to Section 114 of the Evidence Act: -

The nature of the stolen article,

the manner of its acquisition by the accused,

the nature of the evidence about its identification,

the manner in which it was dealt with by the accused,

the place and circumstances of its recovery,

the length of the intervening period, and

the ability or otherwise of the accused to explain his possession, are factors which have to be taken into consideration in arriving at a decision.

Thereafter, in the matter of Gulab Chand v. State of M.P. (1995) 3 SCC 574, following the decision of the Supreme Court in Tulsiram Kanu (supra), their Lordships have held that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be read along with the “important time factor” and if the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted, but if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case.

Similarly, in the matter of George v. State of Kerala (2002) 4 SCC 475, relying upon the earlier decision in Baiju (supra), the Supreme Court while dealing with the phrase “soon after” employed in illustration (a) to Section 114 of the Evidence Act held as under: -

“7. … The possession of the articles which had been duly identified by the witnesses as belonging to the deceased were found in his possession within less than 24 hours of the incident. It would lead to inference under Section 114(a) of the Evidence Act that the appellant has himself committed the robbery, an offence punishable under Section 392 IPC. According to the statement of PWs 10, 12 and 13 the deceased had been saying “take whatever you want, leave me alone”, which shows that he must have been under some apprehension or threat thereof.”

Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court to invoke illustration (a) to Section 114 of the Evidence Act, it is quite vivid that the incident is said to have occurred in the intervening night of 18-19/10/2013 and pursuant to memorandum statement of appellant No. 1 – Dravid Sharma alias Chhotu vide Ex. P/6, recovery of gold earrings and necklace was made from him vide Ex. P/8 and recovery of a nylon thread was made vide Ex. P/9 and pursuant to the memorandum statement of appellant No. 2 – Kumar Kenwat vide Ex. P/7, recovery of a gold necklace was made from him vide Ex. P/10 on 31/10/2012. The said seizure has been proved by Prahlad (P.W.-8) and the seized ornaments have been identified by Dhansai (P.W.-7) in a duly conducted identification proceeding (Ex. P/18). Thus, the ornaments of the deceased were found in possession of the appellants soon after the murder and therefore, it satisfies the requirement of important time factor envisaged by the Supreme Court in the matter of Tulsiram Kanu (supra) to invoke illustration (a) to Section 114 of the Evidence Act, as the ornaments were duly identified by nephew of the deceased namely Dhansai (P.W.-7). As such, since murder and robbery are proved to be integral parts of one and the same transaction, therefore, presumption under illustration (a) of Section 114 of the Evidence Act would apply and thus, we are of the considered opinion that the trial Court has rightly held that it is the appellants who, not only committed robbery and looted the deceased but also murdered her by strangulating her for which prosecution has led ample evidence to connect the appellants with the offences punishable under Section 302/34 and 394 of IPC. Moreover, the conviction of the appellants for offence under Section 460 of IPC is also well-merited. We do not find any merit in the instant appeal.

Accordingly, this criminal appeal stands dismissed. The appellants/convicts Dravid Sharma @ Chhotu Sharma (A-1) and Kumar Kenwat (A-2) are reported to be on bail. Their bail bonds are hereby forfeited and they are directed to surrender forthwith to serve out the sentence as awarded by the trial Court by means of the impugned judgment and order dated 04/01/2014.

Office is directed to transmit the lower court record along with the certified copy of this judgment to the court concerned forthwith for necessary information and compliance.