Delhi High Court
Bachchi Singh & Another vs The State (Nct Of Delhi) on 30 July, 2010
Author: V.K. Jain
Bench: Badar Durrez Ahmed, V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 21.07.2010
Judgment Pronounced on: 30.07.2010
+ Crl.A. 261/1997
BACHCHI SINGH & ANOTHER .....Appellants
- versus -
THE STATE (NCT OF DELHI) .....Respondent
Advocates who appeared in this case:
For the Appellant : Mr Krishan Mahajan
For the Respondent : Mr Sanjay Lao, APP
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment ? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
V.K. JAIN, J.
1. This appeal is directed against the judgment dated 23rd April 1997, and Order on Sentence dated 26th April 1997, whereby the appellants were convicted under Section 302 and 392 of IPC read with Section 34 thereof, and were sentenced to undergo imprisonment for life and to pay fine of Rs 1000/- each or to undergo SI for one month each in default under Crl. A No.261 /1997 Page 1 of 30 Section 302 IPC and were further sentenced to undergo R.I. for three years each under Section 392/34 of IPC. The co- accused of the appellants, namely Ramesh and Hira Singh were convicted under Section 411 of IPC and were sentenced to undergo R.I. for three years each.
2. Deceased Dr. R.N. Berry and his wife Rama Berry, who were residing in House No. 145 Jor Bagh, New Delhi, were found murdered in the morning of 2nd February 1987. The appellant Gopal Singh was at that time working as a domestic servant with them whereas the appellant Bachchi Singh, who is the brother of Gopal Singh, was an ex servant of Dr Berry and was removed from service, when he was found committing theft from the house. The case of the prosecution is that the appellants and their co-accused were party to a criminal conspiracy to commit murder of Dr R.N. Berry and his wife Smt. Rama Berry and commit robbery of valuables from their house and it was pursuant to that conspiracy that the appellants committed murder of the deceased persons in the night intervening 1st/2nd February 1987 and also committed robbery of a number of articles from the house of Berrys.
3. There is no ocular evidence of the appellants having committed the murder of Berrys and robbery of valuables from their house. The case of the prosecution against them rests Crl. A No.261 /1997 Page 2 of 30 on the following circumstantial evidence:-
(i) The appellant Gopal Singh was working as a substitute domestic servant with Berrys at the time the murders and robbery were committed.
(ii) The appellant Gopal Singh and PW-8 Pratap Singh, another domestic servant of the Berrys, were the only persons present in the house in the night intervening 1st/2nd February 1987 and since there was no evidence of any forced entry in the house, the murders and robbery could not have been committed without either Pratap Singh or the appellant Gopal Singh being a party to it.
(iii) The appellant Gopal Singh was found awake and standing when PW-8 Pratap Singh got up in the night intervening 1st/2nd February 1987 and when questioned as to why he was standing, he told PW-8 that he would smoke and take a stroll.
(iv) Burnt pieces of cigarette were found by police in the house of Berrys.
(v) The appellant Bachchi Singh had earlier been found committing theft in the house and was removed from service by Dr Berry.
(vi) While in police custody, the appellant Gopal Singh disclosed to the police that certain articles, which later on Crl. A No.261 /1997 Page 3 of 30 were found to be articles stolen from the house of Berrys at the time of their murder, had been kept by him in the quarter of his co-accused Ramesh Chand.
(vii) The stolen articles were recovered from the possession of both the appellants soon after the theft.
Circumstance No. (i)
4. PW-8 Pratap Singh, who was the other domestic servant employed by Berrys and was in their employment for about 45 years before they were murdered came in the witness box as PW-8 and stated that since the other domestic servant in the house namely Balwant Singh had gone on leave, the appellant Gopal Singh was working in his place. In his statement under Section 313 of Cr.P.C. the appellant Gopal Singh admitted that he was working as domestic servant with Berrys at House No. 145, Jor Bagh, for about two months. Thus it is an admitted fact that the appellant Gopal Singh was working with Berrys when this incident took place. Circumstance No. (ii), (iii) and (iv)
5. Pratap Singh, when he came in the witness box, stated that after taking meal at about 9.30/10 PM he and Gopal Singh had gone to sleep after locking the gallery. Thus, according to him no one other than he, the appellant Gopal Singh and Berrys were present in the house that night. At Crl. A No.261 /1997 Page 4 of 30 about 12 in the night, he woke up since he was having cough. He saw Gopal Singh standing and asked him as to why he was standing. Gopal Singh told him that he would smoke and take a stroll. When he got up at 7 AM and unlocked the gallery, he found that the gallery door, which ordinarily used to be bolted, was open from inside. During his cross-examination, no suggestion was given to him, by the appellant Gopal Singh, that the witness had not found him standing at 12 in the night and he had not told him that he would smoke and take a stroll. No suggestion was given to him that the kundi of the gallery was not usually bolted from inside and that on 2nd February 1987 the bolt of the gallery door was not found open from inside. We see no reason to disbelieve Pratap Singh in this regard, particularly when the appellant does not claim any enmity or previous ill-will between him and the witness. It is not the case of the appellant Gopal Singh in his statement under Section 313 Cr.P.C. that someone other than him, Pratap Singh and late Berrys was also present in the house during that night. It is also not his case that the house was not locked from inside on that day. As regards locking of the gallery, he himself stated that Pratap Singh used to lock the gallery every day.
Crl. A No.261 /1997 Page 5 of 30
PW-23 Sardar Jaswant Singh, who investigated this case, has stated that when he inspected the spot on 2nd February 1987, he noticed some burnt cigarette pieces lying at various places such as Room No.2, stairs, kitchen and roof and he seized them vide memo Ex. PW 3/C. In reply to a Court Question, he stated that there was no sign of forced entry of anyone in the house as no bolt door or window were found broken. He was emphatic that he had investigated the matter from this point of view. It, therefore, stands proved that PW-8 Pratap Singh and appellant Gopal Singh were the only persons present in the house of Berrys in the night intervening 1st/2nd February 1987 and there was no forced entry in the house during that night. Therefore, these circumstances also stand proved during trial. Circumstance No. (v)
6. PW-7 Mrs Uma Chopra, daughter of the deceased, stated that the appellant Bachchi Singh, who had worked with her parents for about a year or so, was caught stealing on some occasion and was turned out by her parents. PW-8 Pratap Singh stated that Dr Berry had seen the appellant committing theft from the almirah and, therefore, had terminated his services. In cross-examination, he stated that, in his presence, Dr Berry had asked the appellant Bachchi Crl. A No.261 /1997 Page 6 of 30 Singh as to why he had done so. He further stated that Bachchi Singh used to have keys of the almirah and used to take out goods from the almirah, since Dr Berry had faith in him. The trial court has believed the deposition of PW-8 Pratap Singh in this regard and we see no reason to take a different view particularly when his deposition also stands corroborated by the deposition of the daughter of the deceased. Thus, this circumstance also stands duly proved against the appellant Bachchi Singh, who, admittedly is the brother of the appellant Gopal Singh.
Circumstance No. (vi)
7. PW-18 SI O.P. Singh has stated that on 2nd February 1987 the appellant Gopal Singh was handed over to SI J.P. Sharma, by SHO Police Station Lodhi Colony, for the purpose of his interrogation. He further stated that during interrogation, the appellant Gopal Singh made disclosure statement Ex. PW18/A and stated the he could get the property recovered. PW-20 H.C. Mahender Singh corroborated the deposition of PW-18 regarding the disclosure statement made by the appellant Gopal Singh and stated that when he was interrogated, Gopal Singh, on being handed over to SI J.P. Sharma, disclosed that these articles had been kept by him in a bag, in the premises of his co-accused Ramesh and that he Crl. A No.261 /1997 Page 7 of 30 could get the same recovered from that premises. PW-22 SI J.P. Sharma stated that when the appellant Gopal Singh was thoroughly interrogated, he made the disclosure statement Ex. PW 18/A and stated that he could get the property recovered.
8. The disclosure statement, alleged to have been made by the appellant Gopal Singh, was challenged by the learned counsel for the appellant on the ground that since he had not been arrested before he made the disclosure statement, it is not admissible in evidence under Section 27 of the Evidence Act. His contention was that only a disclosure made after arrest or remand of the accused by the Court to police custody would be admissible under Section 27 of the Act.
9. Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant provides 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 amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
Crl. A No.261 /1997 Page 8 of 30
10. In State of U.P. v. Deoman Upadhyaya 1960 Cri.L.J. 1504, Supreme Court inter alia, observed as under:-
"When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody"
of the police officer within the meaning of S.27 of the Indian Evidence Act."
In the context of Section 439 of the Code of Criminal Procedure, Supreme Court, in Niranjan Singh v. Prabhakar Rajaram Kharote 1980 Cri.L.J. 426 inter alia observed as under:-
"When is a person in custody, within the meaning of Section 439, Cr.P.C.? When he is in duress either because he is held by the Investigating Officer or other police or allied authority or is under the control of the Court having been remanded by Judicial order, or having offered himself to the Court‟s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive Crl. A No.261 /1997 Page 9 of 30 power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide-and- seek niceties sometimes heard in Court that the police have taken a man into formal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law.... Custody, in the context of Section 439 (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court."
In Lay Maung v. Emperor AIR 1924 Rang 173, the Court inter alia observed as under:-
"As soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore, in "custody" within the meaning of Sections 26 and 27 of Evidence Act"
In Haroon v. Emperor AIR 1932 Sind 1490 and Pharho Shahli v. Emperor AIR 1932 Sind 201 it was pointed out that even indirect control over the movements of suspects by the police would amount to "police custody" within the meaning of that section. In Gurdail Singh v. Emperor AIR 1932 Lah 609 also the same principle was emphasised and it Crl. A No.261 /1997 Page 10 of 30 was observed that there may be police custody without a formal arrest.
In Laxmi Narayan v. State of Rajasthan 1983 WLN 497 Rajasthan High Court noting that custody is not equivalent to arrest was of the view that that word „custody‟ in Section 27 does not necessarily amount to detention or confinement and if the accused is in surveillance, it amounts to custody.
In Maharani v. Emperor AIR 1948 All 7 it was held that:-
"The word „custody‟ in Section 26 or 27, Evidence Act, does not mean formal custody, but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction."
In Pharho Shahwali Vs. Emperor : AIR 1932 Sind 201, the High Court observed as under:
"The word "custody" has not been defined by the Act. But the ordinary sense is sufficiently clear. Two things there must be. First, there must be some limitation imposed upon the liberty of the confessor. Second, this limitation must be imposed either directly or indirectly by the police."
11. Since the appellant Gopal Singh was under the control of police when he made the disclosure statement, he having been detained and SI J.P. Sharma having been asked Crl. A No.261 /1997 Page 11 of 30 to interrogate him thoroughly, it is difficult to accept that he was not in the custody of a police officer at that time. It is difficult to say that the person, who is a suspect in the eyes of the police, is under the physical control of the police officer and is being interrogated by them is not in the custody of the police officer at the time of his interrogation. Despite his having not being formally arrested, he definitely was in the custody of a police officer at the time he was interrogated. In any case, if a person voluntarily going to a police makes a confessional statement and gives information envisaged by Section 27 of Evidence Act he comes in the custody of the police officer as soon as the incriminating statement is made by him. Therefore, the disclosure statement Ex. PW18/A, to the extent it relates to the fact that the certain articles had been kept by him in the house of Ramesh is admissible in evidence under Section 27 of Evidence Act.
Circumstance No. (vii)
12. PW-18 SI O.P. Singh has stated that a bunch of keys was recovered from the personal search of the appellant Gopal Singh and when they went to the house of his co-accused Ramesh along with the appellant Gopal Singh, a briefcase lying inside the premises of Ramesh was opened using the keys recovered from the appellant Gopal and besides some Crl. A No.261 /1997 Page 12 of 30 cash, one ring, one purse Ex. P-16 and certain documents including receipt Ex. PW12/A and statement of bank accounts Ex. PW13/A1 to A5 and PW13/B and Cheque Book Cover Ex. PW 13/FG were found in that briefcase. The school leaving certificate of the appellant Ex. PW18/E and his Junior High School mark sheet Ex. PW18/F were also recovered from their possession. All these articles, according to the witness, were seized vide memo Ex. PW 18/J. The deposition of SI O.P. Singh in this regard has been corroborated by PW-20 HC Mahender Singh and PW-22 SI J.P. Singh. The bunch of keys recovered during personal search of the appellant Gopal Singh is Ex. P-32 and the key from which the briefcase was opened is Ex. P-33 whereas the briefcase, which was found in the premises of accused Ramesh, is Ex. P-34.
13. A perusal of the receipt Ex. PW 12/A coupled with the deposition of PW-12 Mrs Champa Kapoor shows that this receipt was issued to Mrs Rama Berry by Jor Bagh Ladies‟ Club. A perusal of the bank statement Ex. PW 13/A1 to A5 and Ex. PW 13/B read with the deposition of PW-13 V.K. Verma, Sub Accountant, Central Bank of India, Jor Bagh shows that these statements pertain to the bank account of Berrys.
Crl. A No.261 /1997 Page 13 of 30
14. It is not the case of the appellant Gopal Singh that these documents were handed over to him by late Berrys. Hence, recovery of these articles from a briefcase, which was opened using a key recovered during the personal search of the appellant Gopal Singh, leaves no reasonable doubt that these documents, which were stolen from the house of Berrys, were in possession of the appellant Gopal Singh on the very same day on which date bodies of late Berrys were found in their house. It is not in dispute that school leaving certificate Ex. PW 18/E and Junior High School mark sheet Ex. PW 18/F pertain to the appellant Gopal Singh. The recovery of these documents along the documents of late Berrys leaves no doubt that the briefcase in which these documents were found belonged to the appellant Gopal Singh and was in his possession and control at the time they were recovered on 2nd February 1987.
15. A perusal of the Cheque Book Cover Ex. PW 13/FG, which was also found in the briefcase shows that it belongs to late Rama Berry and was issued to her by Central bank Jor Bagh, New Delhi. There could have been no reason for these documents being found in the briefcase of the appellant Gopal Singh. One ladies purse Ex. P-16 and one finger ring studded with white and cherry coloured stones were also found in the Crl. A No.261 /1997 Page 14 of 30 briefcase of the appellant Gopal Singh. Both these articles were identified by PW-7 Mrs Uma Chopra in judicial TIP conducted by the learned Metropolitan Magistrate. Sh. M.K. Gupta, who came in the witness box as PW-17 has proved the proceedings of Test Identification of case property conducted by him on 27th March 1987 and the same is Ex. PW 17/C. The purse Ex. P-16 was also identified by Mrs Uma Chopra as the purse belonging to her mother. Thus, it stands proved that on 2nd February 1987, the appellant Gopal Singh was found in possession of documents belonging to late Berrys, which was stolen from their house in the night intervening 1st/2nd February 1987. It also stands proved that the ladies purse Ex. P-16 found in the briefcase of the appellant Gopal Singh Ex.P-34 also belongs to late Rama Berry and was stolen from their house in the night of 1st/2nd February 1987.
16. It was held by the Hon‟ble Supreme Court in Erabhadrappa alias Krishnappa v. State of Karnataka, AIR 1983 SC 446, that where a lady witness identifies the stolen articles such as ornaments and sarees at the trial without prior Test Identification Parade, the testimony of such a witness was not inadmissible in evidence for want of prior Test Identification Parade, as ladies have uncanny sense of identifying their own belongings, particularly the articles of Crl. A No.261 /1997 Page 15 of 30 personal use. A particular article may be identified by any particular mark on it or by its frequent use or observation which causes a permanent impression on the mind of identifier that leads to recognition of the article. Since PW-7 has testified that she had been using the articles stolen from their house and even otherwise she would be seeing these articles in her house, she definitely was in a position to identify them during trial. Moreover, in this case identification by her during trial finds corroboration from her having identified these articles during Test Identification Parade conducted by PW-17 Sh. M.K. Gupta and in any case none of these articles have been claimed by the appellant Gopal Singh, as lawfully belonging to him. His case is that these articles were not in his possession at all.
17. PW-10 Const. Rajinder Singh stated that on 3rd July at about 1.00 AM, Hira Singh, co-accused of the appellants took them to ISBT Bus Stand. At about 4.45 AM the appellant Bachchi Singh was apprehended at the pointing out of Hira Singh and was brought to the Police Post. One ladies purse containing some articles/jewellery was recovered from the right side of the pant which he was wearing at that time. The witness identified Ex. P-18 as the purse, which was found in the pocket of the pant of Bachchi Singh. He also identified two Crl. A No.261 /1997 Page 16 of 30 pair of tops Ex. P5/1 and 2 and Ex. P6/1 and 2, gold ring Ex. P-8, ring with red stone and diamond Ex. P-7, nose pin Ex. P- 20, a French coin Ex. P-21, silver ring Ex. P-23 and two artificial rings Ex. P-25/1 and 2. PW-20 HC Mahender Singh corroborated the deposition of PW-10 regarding recovery of various articles from the possession of the appellant Bachchi Singh, after he was arrested at Bus Stand ISBT and was brought to the Police Post. He also identified the articles of jewellery Ex. P-5/1 and 2, Ex. P-6/1 and 2, Ex. P-7, Ex. P-20, Ex. P-23, Ex. P-24, Ex. P-26 as well as the French coin Ex. P- 21 and identified his signature on the seizure memo of these articles Ex. PW10/B. PW-22 SI J.P. Sharma further corroborated the deposition of these witnesses as regards apprehension of the appellant Bachchi Singh at about 4.45 AM on 3rd February 1987 and recovery of the aforesaid articles from his possession. He also identified his signatures on the seizure memo Ex. PW 10/B. PW-23 SI Jaswant Singh also stated that the appellant Bachchi Singh was arrested at Bus Stand ISBT at about 4.30 AM on 3rd February 1987 and the aforesaid articles were recovered from his possession. He also identified the aforesaid articles in the Court. This circumstance, therefore, stands duly proved against both the appellants.
Crl. A No.261 /1997 Page 17 of 30 CONCLUSION
18. The prosecution has been able to establish that there was theft of a number of articles from the house of late Berrys in the night of 1st/2nd February 1987, when they were murdered in their house. Some of the stolen articles, including the purse Ex. P-16, receipt Ex. P-12/A, bank statements Ex. PW 13/A1 and B1 and cheque book cover Ex. PW18/FG were recovered from the possession of the appellant Gopal Singh in the night of 2nd February 1987 whereas some of the stolen articles, including Ex. P-5/1 and 2, Ex. P-6/1 and 2, Ex. P-7, Ex. P-20, Ex. P-21, Ex. P-22, Ex. P-23, Ex. P- 24, Ex. P-25/1 and 2 were recovered from the possession of the appellant Bachchi Singh early in the morning of 3rd February 1987. It cannot be disputed that the robbery of these articles formed integral part of the transaction in which Berrys were murdered. In fact, robbery of these articles appears to be the cause of their murder.
19. Section 114 of Evidence Act, to the extent it is relevant, reads 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.Crl. A No.261 /1997 Page 18 of 30
Illustration The Court my presume-
(a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for is possession..."
20. It was contended by the learned counsel for the appellants that in view of illustration (a), the presumption can be either that the appellants had committed theft of the articles, alleged to have been recovered from them or they had received them knowing them to be stolen goods and there cannot be a presumption of the appellants having also committed murder of Dr R.N. Berry and his wife Rama Berry.
21. In our view, the presumption permitted to be drawn under Section 114 of the Evidence Act in a case where the theft and murder are committed in the course of the same transaction, will, to a large extent, depend upon the time gap between the murder and robbery and the recovery of the stolen articles. If the ornaments or other articles belonging to the deceased are found in possession of a person soon after the murder and robbery, a presumption of that person being involved in the incident of murder and robbery can be safely drawn. If, however, a substantial time has expired in the interval, depending upon other facts and circumstances of the case and the nature of the stolen article(s), the presumption to Crl. A No.261 /1997 Page 19 of 30 be drawn by the court may be that the person found in possession of the stolen articles was only a receiver of those articles. The nature of the presumption to be drawn by the court would also be influenced by the nature of the articles stolen from the possession of the deceased, as to whether it was an article which could be easily disposed of or it was an article which would be difficult to dispose of soon after the murder was committed.
22. In the case of Earabhadrappa (Supra), the case before the Supreme Court was a case where murder and robbery formed integral parts of one and the same transaction. The appellant before the Supreme Court disappeared from his house in the morning of March 22, 1979 when the murder of the deceased and theft of her gold ornament was detected. He was apprehend on March 29, 1980 and the stolen articles were got recovered by him. It was held by Supreme Court that in such a case the presumption arising under illustration (a) to Section 114 of the Evidence Act was that not only the appellant committed the murder of the deceased but he also committed robbery of her gold ornament, which formed part of the same transaction. It was noted that the appellant had no satisfactory explanation to offer for the possession of the stolen property and had chosen to deny that the stolen Crl. A No.261 /1997 Page 20 of 30 property was recovered from him. Supreme Court found the false denial itself to be an incriminating circumstance. Identical is the factual situation before us except for the fact that in the case before us the recovery of stolen articles was effected almost immediately after their theft. Hence, it is a much stronger case for presuming that the appellants had committed murder of the Berrys, as well as theft of various articles from their house.
23. In Gulab Chand Vs. State of Madhya Pradesh : AIR 1995 SC 1598, the murder and robbery took place in the night intervening 23/24th April, 1979. The stolen articles were recovered from his possession on 27th April, 1979. It was held that such close proximity of the recovery was an important time factor which should not be lost sight of in deciding the case. Noticing that the accused before the court was not affluent enough to possess ornament recovered from him and considering the recovery of the stolen articles from his possession and his having sold some of them immediately after the murder and robbery and no plausible explanation for lawful possession of the articles having been given, the court was of the view that murder and robbery were integral part of the same transaction and, therefore, the presumption was that Crl. A No.261 /1997 Page 21 of 30 not only the appellant committed the murder of the deceased but also committed robbery of her ornaments.
24. In Mukund @ Kundu Mishra & Another Vs. State of M.P. : (1997) 10 SCC 130, the murder and robbery were committed in the course of the same transaction. The murder was committed in the night intervening 17th/18th January, 1994. During next night, the appellants were arrested and some of the stolen articles were recovered from the possession of the appellants. There was no eye-witness of the murder and robbery. It was contended before the court that even if it was assumed that the articles stolen from the house of the deceased were recovered from the appellants, it could at best be said that they had committed the offence under Section 411 of IPC, but not the offences of murder and robbery for which they were convicted. Rejecting the contention, the Supreme Court, inter alia, observed as under:
"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."Crl. A No.261 /1997 Page 22 of 30
25. In Ezhil & Others Vs. State of Tamil Nadu : 2002 Cri. L.J. 2799, the robbery and murder took place in the night intervening 10/11th March, 1994. The articles of the deceased were recovered from the possession of the appellants on 11th March, 1994. There was no direct evidence of the appellants being involved in the murder and robbery. Noticing that the possession by the appellants was very much proximate in point of time to death of the deceased to constitute whole thing an integral affair, the Supreme Court, inter alia, held as under:
"The accused have not been able to properly or reasonably explain as to the legitimacy or origin of their possession of the articles carried by the deceased when he arrived from abroad at the airport at Chennai. In such circumstances, since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special, rule in Section 106 of the Evidence Act, to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The appellants in this case have miserably failed to explain their lawful possession of those articles with them that really belonged to and were in the possession of the deceased when he landed at the airport at Chennai.
Consequently, it was legitimate for the courts below, on the facts and Crl. A No.261 /1997 Page 23 of 30 circumstances of this case, to draw the presumption not only of the fact that they were in possession of the stolen articles after committing robbery but also committed the murder of the deceased, keeping in view the proximity of time within which the act of murder was supposed to have been committed and body found and the articles recovered from the possession of the accused."
26. In the present case, the murder of Dr R.N. Berry and his wife Rama Berry took place in the night intervening 1/2nd February, 1987. The appellant Gopal Singh remained in the house during that night and the police arrived on the spot at about 10.30 am. Thereafter, he remained with the police till the time disclosure statement was made by him and the stolen articles of the Berrys were recovered from his briefcase, kept in the house of his co-accused Ramesh. Therefore, there was absolutely no scope for the appellant Gopal Singh to have come into possession of the stolen articles from some other person. Considering the above facts coupled with the fact that he was employed in the house of Dr Berry, was present there during the night in which the murder and robbery took place was found awake at 12 midnight and the pieces of cigarette smoked by him were found in the house, no outsider could have entered the house without he or PW-8 Pratap Singh being a party to the robbery and murder, there is nothing incriminating against PW-8 Pratap Singh, who was Crl. A No.261 /1997 Page 24 of 30 employed with Berrys for more than 40 years, the presumption has to be that not only had he committed robbery of the articles found in his possession, he was also involved in the murder of late Dr R.N. Berry and his wife Smt Rama Berry, and he shared a common intention with the other accused to commit their murder and also commit robbery of the articles belonging to them.
27. As regards the appellant Bachchi Singh, the stolen articles were recovered from his possession early in the morning of 3rd February, 1987, which would be not more than 29 hours after the murder and robbery took place. He is none other than the brother of the appellant Gopal Singh. He does not claim that the stolen articles were handed over to him by his brother Gopal Singh. Since Gopal Singh was seen by PW-8 Pratap Singh at about 1200 am on 2nd February, 1987 and then again at about 7.00 am when he woke up and, thereafter, he remained in the house and then with the police, and therefore had no opportunity to transfer these articles to him, unless the appellant Bachchi Singh was present when the murder and robbery took place, the presumption to be drawn in his case also has to be that he also was a party to the murder of the deceased Dr R.N. Berry and his wife Rama Berry and robbery of the articles belonging to them. The fact that he Crl. A No.261 /1997 Page 25 of 30 was arrested from ISBT in the early morning is a clear indicator that he was trying to leave the city along with the stolen articles. This is yet another circumstance which leads to the inference that he also was involved in the murder and, therefore, was trying to leave the city, lest he was caught by the police.
28. Neither of the appellants has been able to rebut the statutory presumption which is drawn against them under Section 114 of the Evidence Act. Besides the statutory presumption, the other incriminating circumstances against the appellant Gopal Singh are that (i) he was employed with late Dr R.N. Berry and was present in his house in the night during which murder and robbery took place; (ii) he was found standing by PW-8 Pratap Singh at around midnight and when asked by PW-8 as to why he was standing at that hour of the night, he stated that he wanted to smoke; (iii) the burnt pieces of cigarettes were found at various places in the house of Berrys; (iv) there was no sign of any forced entry in the house despite all doors and windows having been checked by the IO from this point of view and, therefore, the murder could not have been committed without either he or PW-8 Pratap Singh being a party to it since no other person except the deceased persons was present in the house at that time. These another Crl. A No.261 /1997 Page 26 of 30 circumstances strongly indicate that he in furtherance of a common intention which he shared with the other accused person(s), committed murder of late Dr R.N. Berry and his wife Rama Berry and robbery of various articles from their house.
29. As regards appellant Bachchi Singh, besides recovery of the stolen articles, the other incriminating circumstance against him are that he was earlier employed with Dr Berry and was removed from service when he was found committing theft of various articles from his almirahs, he is the brother of appellant Gopal Singh and he was trying to leave the city in the early morning of 3rd February, 1987.
30. It was contended by the learned counsel for the appellant that though PW-8 Pratap Singh saw the dead body of Berrys at about 8.00 am, he did not inform either his family members or the police till driver Suraj Prakash arrived at 8.30 am, which creates suspicion on his conduct. We are unable to agree with the learned counsel. It has come in the deposition of Pratap Singh that he knocked for about 5-10 minutes at the door of the bedroom of Berrys, but when there was no response, the door was opened by him since it was not bolted from inside. The reason for knocking at the door was also given by the witness. According to him, he had been directed by his employer that he should not enter the door before Crl. A No.261 /1997 Page 27 of 30 knocking. If the door was opened by Pratap Singh at about 8 - 10 am, it must have taken him some time to get over the shock which he must have received on finding Dr.R.N.Berry and his wife dead on their beds. Driver Suraj Prakash also arrived at 8.30 am which would be around the same time and the witness asked him to inform the daughter and son-in-law of the deceased. Moreover, when a witness gives the time of an incident which took place much before his deposition in the court, he can give only approximate and not the exact time and in fact Pratap Singh specifically used the word "at about"
while giving time of his knocking at the door and Suraj Prakash Driver coming to the house. Therefore, we find nothing abnormal in the conduct of PW-8 Pratap Singh.
31. It was also contended by the learned counsel that one glass on which finger prints were suspected by the Investigating Officer was not seized by him. In this regard, we notice that according to PW-23 SI Jaswant Singh(Retd.), he suspected some chance finger prints on a glass, but later the glass could not be traced as there was a huge crowd in the house and somebody might have removed that glass. We fail to appreciate how the failure of the Investigating Officer to seize that glass has prejudiced the appellants in any manner.
Had the IO been able to seize that glass and had finger prints Crl. A No.261 /1997 Page 28 of 30 of someone other than the appellant been found on it, that, by itself, would not have ruled out the involvement of the appellants in the crime. Therefore, nothing really turns on the inability of the IO to seize that glass.
32. The circumstances proved against the appellants lead to an irresistible conclusion that they were party to a criminal conspiracy to commit murder of Late Dr R.N. Berry and his wife Smt Rama Berry and also to commit robbery of various valuables from their house. They also shared a common intention to commit murder and robbery and the murder of Berrys and robbery from their house and their murder was committed in furtherance of that common intention. The circumstances proved against them are totally incompatible with their innocence and it would be safe to conclude that, in all human probability, they both were involved in the transaction during the course of which not only the robbery of various articles was committed from the house of late Berrys, they were also murdered so as to facilitate the robbery. Both the appellants have been rightly convicted under Sections 302 and 392 IPC read with Section 34 thereof. In any case, on the basis of evidence produced during trial, they are liable to be convicted for being a party to the criminal conspiracy to Crl. A No.261 /1997 Page 29 of 30 commit murder of Berrys and robbery from their house for which both of them were duly charged.
33. We find no merits in the appeal and the same is dismissed. The appellants be taken into custody to undergo remaining part of the sentence awarded to them.
V.K. JAIN, J BADAR DURREZ AHMED, J July 30, 2010 Ag/RS Crl. A No.261 /1997 Page 30 of 30