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PETITIONER: BAIJU ALIAS BHAROSA

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT19/01/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. FAZALALI, SYED MURTAZA

CITATION:  1978 AIR  522            1978 SCR  (2) 594  1978 SCC  (1) 588  CITATOR INFO :  F          1978 SC1183  (49)

ACT: Evidence   Act,   (Act   1   of   1872),    1872--Ss.110,114 illustration(a)--Recent and unexplained possession of goods- Presumptive evidence against the accused not only of  theft, but of the charge of murder as well-Value of  circumstantial evidence.

HEADNOTE: The  appellant,  on the pretext of and promise  to  beget  a child to the family of the deceased Ramdayal by sorcery, and after winning confidence committed murders of Ramdayal,  his wife  Smt.   Fulkanwar, his mother Smt.  Bhagwanti  and  his nephew Rambakas, on the night of January 20, 1975 and  also- stole  of  various articles which were  recovered  from  the appellants’ residence soon after.  The trial court convicted him  of offences u/s 394 and u/s 302 I.P.C.  for  committing the  robbery and each of the four murders and sentenced  him to  death.   On  appeal the High  Court  of  Madhya  Pradesh confirmed the conviction-and the sentence. Dismissing the appeals by special leave the Court HELD : 1. The question whether a presumption should be drawn under illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of  each case.  Thus the nature of the stolen  article,  the manner  of its acquisition by the owner, the nature  of  the evidence  about its identification, the manner in  which  it was  dealt  with  by  the  appellant,  the  place  and   the circumstances of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his  possession,  are factors which have to  be  taken  into consideration in arriving at a decision. [600 EG] 2.Recent  and unexplained possession of  stolen  articles may  well be taken to be presumptive evidence of the  charge of murder. [600 B-C] The  prosecution succeeded in proving beyond any doubt  that the commission of the murders and the robbery formed part of one transaction and the recent and unexplained possession of the   stolen  property  by  the  appellant   justified   the presumption  that  it  was  he and  no  one  else,  who  had

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committed  the murders and the robbery.  The  appellant  was given  an opportunity to explain his possession, as well  as his conduct in decoying Smt.  Lakhpatiya and the other  per- sons who died at his hand, but he was unable to do so.  [600 D-E] Wasim  Khan  v. State of Uttar Pradesh, [1956]  S.C.R.  191; Abisher  v.  State  of Uttar Pradesh, [1974]  4  S.C.C.  254 followed.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  No.  128 and 129 of 1977. Appeals  by Special Leave from the Judgment and Order  dated 17-9-76  of  the High Court of Madhya  Pradesh  in  Criminal Appeals Nos. 477 and 488 of 1976 and Criminal Reference Nos. 5 and 6 of 1976. P.   C. Bhartari for the Appellant in Crl.  A. No. 128/77. R.   K.  Jain, Amicus Curiae, for the Appellant in Crl.   A. 129/77. I.   N. Shroff for Respondent in both the appeals. The Judgment of the Court was delivered by SHINGHAL  J.  Ramdayal (deceased) son of  Ranglal  (P.W.  2) lived  in his house at village Gauripur,  district  Sarguja, with his two 595 wives Smt.  Fulkunwar (deceased) and Smt.  Lakhpatiya  (P.W. 1),   his  father  Ranglal,  his  mother   Smt.    Bhagwanti (Deceased)  and his nephew Rambakas, (deceased).   Although. Ramdayal married ,twice, he did not have a child and he  and his  family  were keenly interested in his  having  a  child somehow.  It is alleged that in the month of Kuar  appellant Baiju  alias Bharosa gave out that he had been sent  by  one Niranjan  Gauntia and introduced himself to the family as  a sorcerer  or  wizard who could bring about the  birth  of  a child  in  the  family with his  extraordinary  powers.   He visited the family several times and. practised sorcery.  In those days Smt.  Fulkunwar was suffering from small-pox  and the  appellant  therefore  went away saying  that  he  would return after her recovery.  He went there again in the month of  Kartik  of  his  own accord  and  practised  sorcery  in Ramdayal’s  house for two nights.  He went  to.   Ramdayal’s house again in the month of Aghan and practised sorcery.  He had  a well of Ramdayal’s house dug in and took out a  piece of  bone  which,  according to him, was  an  evil  omen  and prevented the birth of a child.  He started taking  Ramdayal and  his  wives to an adjoining "nala" at mid night  on  the pretext of driving away the evil spirit.  In this way, it is alleged,  the appellant gained the confidence of the  entire family  and went and stayed at Ramdayal’s house in month  of Paus from January 11, 1975 to January 19, 1975.  He demanded cloth and some articles for performing sorcery, but that was resented by Smt.  Lakhpatiya. It is further alleged that on January 19, 1975 the appellant asked  Smt.  Lakhpatiya to go to the house of  her  parents, without her ornaments and money, and promised that he  would reach  there and perform some ritual to drive away the  evil spirit from her.  At the same time he prevented Ramdayal, on false  pretext,  from accompanying her to the house  of  her parents.   Smt.  Lakhpatiya therefore went to the  house  of her  parents  at village Narainpur with  her  father-in-law Ranglal (P.W. 2) on January 20, 1975.  The appellant, in the mean time, persuaded Ramdayal to go with him to an adjoining "nala" for performing some religious rites, killed him there

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and threw his dead body in the  " nala".  He then  went back to  Ramdayal’s house, took Smt.  Fulkunwar to another  place in the same "nala", killed her there and threw her dead body also  in the "nala".  It has further been alleged that  the appellant  went  to the, house of Ramdayal  and  killed  his mother  Smt.  Bhagwanti and his nephew Rambakas  while  they were  sleeping there.  He ransacked the house,  broke  open the  boxes  and took away a number of articles  including  a transistor, a watch, a bicycle, a torch, two "addhis"  gold, clothes, ornaments. On the following morning, i.e. on the morning of January 21, 1975,  Ramdayal’s neighbours, including his nephew  Jai  Ram (P.W.  4),  became suspicious because of  the  unusual  calm prevailing  in  his house and peeped inside.  They  saw  the dead  bodies of Smt.  Bhagwanti and Rambakas with blood  all around.   They  also  found open boxes  and  articles  lying there.  Jai Ram therefore went to police station Prem  Nagar where he lodged report Ex.P. 38 before Head Constable Jagan- nath (P.W. 24).  The Head Constable went to village Gauripur the  same  day, saw the dead bodies of Smt.   Bhagwanti  and Rambakas inside 596 Ramdayal’s house and the broken boxes and articles lying all around.  He also found that a stone was lying near the  dead body of Rambakas and a piece of wood was lying over the head of  Smt.   Bhagwanti.   He searched for  Ramdayal  and  Smt. Fulkunwar  but  could not find them.  inquest  reports  were prepared  in respect of the dead bodies and they  were  sent for   postmortem  examination.   The  dead  body   of   Smt. Fulkunwar  was  found  on  January 22,  1975  and  the  Head Constable prepared its inquest report.  Sub-Inspector P.  K. Singh reached village Gauripur on January 22, 1975 at  about 6 p.m. and started the investigation.  He prepared what  has been called "a dehati nalish" Ex. P. 32 on January 22,  1975 at 6.30 p.m. and also prepared seizure memorandum of several articles  which were lying in Ramdayal’s house.  He  made  a search  for  Ramdayal and found his dead body lying  in  the water of the " nala", under a block of wood, on January  23, 1975.   An inquest report was prepared and several  articles like rice, thread and match box which were also found  lying on  the " nala" were taken by the Investigating  Officer  in his  custody.   Another  "dehati  nalish"  Ex.  p.  32A  was prepared  on  January 26, 1975.  The  investigating  Officer also  found  receipt Ex.  P. 29 of the sale of  a  watch  to Ramdayal  and  took it into his possession  on  January  26, 1975.  One shoe (article ’U’) and thereafter the other  shoe (article ’U1’) were found near the river on January 27, 1975 and  were taken in police custody.  Ramdayal’s  licence  for the  transistor  was also taken over  by  the  investigating officer. The appellant was arrested on January 28, 1975.  It has been alleged that he gave the information which was recorded in a memorandum  (Ex.   P.  21/P.  21A)  in  respect  of  certain articles  which he undertook to recover from his  house  and that several articles including a transistor (article  ’1:), a  watch  (article  ’Chha’) , ’two  gold  "addhis"  (article ’Cha’),  a  torch  (article ’Ka’)  and  several  "  sarees", blouses,   petticoat,  bed-sheets,  "dhotis",  bush   shirt, blanket, " thali" etc. were thus recovered during the course of  the investigation.  The Police also went to the shop  of Nirmal  Kumar  (P.W. 13) and recovered the voucher  for  the sale  of the transistor to Ramdayal as also  Nirmal  Kumar’s register  evidencing the sale.  It has further been  alleged that  in pursuance of the interrogation on January 31,  1975 as  per memorandum (Ex.  P. 12/P. 12A) the Police  recovered

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some  silver ornaments from goldsmith Goverdhan (P.W. 7)  of village  Surajpur.  The recovered articles were put  up  for identification  and the memoranda in that respect have  also been placed on the record.  Smt.  Lakhpatiya and Ranglal are said  to have correctly identified the transistor,watch  and gold "addhis" etc. as belonging to the deceased Ramdayal. Separate charge sheets were put up by the police against the appellant for each of the four murders.  The Sessions  Judge took  notice  of the fact that the murders and  the  robbery were committed in the same transaction, and although he  was of  the opinion that there was no difficulty in holding  one trial   of  all  the  offences  he  thought  it  "safe"   to consolidate only two murder charges in one trial.  There was therefore   one  trial for the murders of Ramdayal  and  his wife  Smt.   Fulkunwar and another for the murders  of  Smt. Bhagwanti and Rambakas.  Two 597 separate  judgments  were accordingly delivered in  the  two cases  on  April 30, 1976, convicting  the  appellant  under section  302  I.P.C. for each of the four murders.   He  was also convicted under section 394 for the offence of  robbery in  the  trial relating to the murder of Ramdayal  and  Smt. Fulkunwar.   The  learned  Sessions  Judge  considered   the question  of sentence thereafter, and took the view that  as the  murders were pre-planned, and were committed  with  the sole object of theft, and that the appellant had gained  the confidence of Ramdayal and his family members by  systematic manoeuvres  for his personal benefit even though he and  his family  members  had done no harm to him,  he  deserved  the sentence of death.  For the offence under section 394 I.P.C. he sentenced him to rigorous imprisonment for 5 years.  When the  matter went up before the High Court on appeals by  the accused and on reference by the trial court, the High  Court dismissed   the  appeals,  upheld  the  conviction  of   the appellant on all the counts and confirmed the death sentence by its judgments dated September 17, 1976. It  was  not  disputed  before  us  that  the  case  of  the prosecution all through was that the appellant committed one series  of acts which were so connected together as to  form the  same transaction and that he could be charged with  and tried  at one trial for all the four offences of murder  and the  offence  of  robbery.   The  learned  counsel  in  fact addressed their arguments jointly in the two appeals  before us and referred mainly to the record of Criminal Appeal  No. 129  of  1977.   Their arguments were  common  to  both  the appeals and were addressed with reference to the same set of evidence.   No  useful purpose will therefore be  served  by giving  separate judgments in the two appeals, and we  shall dispose  them  of by this common judgment  as  suggested  by learned counsel. It has been argued that an error was committed by the  trial Court  as  well as the High Court in mistaking  the  "dehati nalish"  (Ex.P.  32) dated January 22, 1975  and  the  other "dehati nalish" (Ex.  P. 32A) dated January 26, 1975 as  the first  information reports, and that they were wrongly  read in  evidence  as reports under section 154 of  the  Code  of Criminal Procedure.  It has also been urged in this  connec- tion  that when it was the case of the prosecution that  Jai Ram  (P.W. 4) and several other villagers had seen the  dead bodies  of  Smt.  Bhagwanti and Rambakas on the  morning  of January 21, 1975 and Jai Ram had gone and lodged the  report at  police  station Prem Nagar the same day,  there  was  no justification  for withholding that report and treating  the aforesaid  village  complaints  as  the  first   information reports.  The argument appeared to be of some consequence at

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first  sight because Jai Ram’s report did not form  part  of the paper books of this Court, but Mr. 1. N. Shroff was able to  retrieve Jai Ram’s report Ex.  P. 38 to  Head  Constable Jagannath dated January 21, 1975, from the original  record. As has been stated, Jai Ram had stated in that report how he and  other villagers grew suspicious, peeped into the  house of  Ramdayal and found the dead bodies of Ramdayal’s  mother and  of a boy (Rambakas) lying there, with blood all  around and  the  household articles scattered  all  over.   Learned counsel  for the appellant thereupon gave up  the  arguments which they advanced on the basis 598 of  the non-production of the first information report.   It cannot,  all  the same, be doubted that the  two  so  called "dehati  nalish"  could not have been read in  evidence  as. first  information reports and we have therefore  left  them out  of  consideration.  That does not  however  affect  the merits of the case because the prosecution has been able  to produce  other satisfactory evidence to establish the  guilt of the appellant in respect of the offences for which he has been convicted. It  has  next been argued that when the Police knew  of  the murder  and  the robbery on January 21, 1975  on  Jai  Ram’s report  Ex.   P.  38and, when it was also the  case  of  the prosecution  that Smt.  Lakhpatiya returned to her house  on Tuesday (i.e. on the night of January 21, 1975) on  learning of  the murders of her mother-in-law and the nephew and  the suspicious conduct of the appellant, there was no reason why the  Police  should  not  have searched  his  house  at  the earliest  possible opportunity when  sufficient  particulars had been obtained from Smt.  Lakhpatiya for the, purpose  of identifying him.  It has therefore been urged that there was no  justification  for delaying the search until  after  his arrest  on January 28, 1975.  On these premises it has  been argued that the articles which were recovered from the house of  the appellant on January 28, 1975, had been  planted  by the  police  and their recovery should not have  been  taken into consideration against him.  There is however no  reason to  think  that  the  courts below  have  erred  in  placing reliance  on the recovery of the various articles  from  the house  of  the appellant on January 28, 1975.  As  has  been stated, he was arrested on January 28, 1975, and even though the  allegation that the recovery of the articles was made at  his instance has been disbelieved by the two courts,  we find  that  the  appellant’s  wife  Smt.   Isuni  (P.W.  10) produced  those  articles from the house of her  husband  as alleged  by the prosecution.  In fact she has  categorically stated  that those articles, including the  transistor,  the watch, the gold "addhis" and the torch did not belong to her house and were brought by the appellant and were kept there. It  is also significant that the appellant has not  ventured to  suggest  in his statements that his  wife  was  inimical towards  him  or was anxious to implicate  him  falsely.   A reading of his statement shows, on the other hand,, that  he believed  that  his wife was anxious to  save  him  somehow. There  is  therefore  no  merit in  the  argument  that  the recovery  of the articles which was made from the  house  of the  appellant on January 28, 1975 was not genuine and  that the articles were "planted" by the Police. An ancillary argument has been advanced that the recovery of the  articles could not be said to be incriminating as  they were  not satisfactorily identified and that their  recovery did not connect the appellant with the crime.  We have  gone through  the  evidence on the record and we  find  that  the theft  of the transistor was, brought to the notice  of  the

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police  authorities on January 22, 1975 by Smt.   Lakhpatiya after she reached her house, and it has been established  by memorandum  Ex.  P. 3/3A that Investigating  Officer  P.  K. Singh  seized  a ’Hind? receipt dated  September  13,  1974, written  by  Nirmal Kumar in respect of licence  No.  15  of transistor  RL 517/OOB/631422 on January 26, 1975  from  the house of the deceased Ramdayal.  The same trans- 599 istor was thereafter found in the house of the appellant  on January  28, 1975, and its license dated October 1, 1974  in Ramdayal’s  name  was  also taken in  police  custody.   The statement of Nirmal Kumar shows that the transistor was sold by  him to Ramdayal and he was able to produce  his  receipt book  evidencing the sale.  Moreover Smt.  Lakhpatiya  (P.W. 1)  identified the transistor as belonging to  her  husband. The  recovery  of  the  transistor from  the  house  of  the appellant  was therefore a material circumstance which  went to  establish  that the stolen property was  recovered  from ’his house soon after the commission of the crime. It  will be recalled that a wrist watch was  also  recovered from  the  house  of  the appellant  on  January  28,  1975. Investigating Officer P. K. Singh recovered a receipt  dated August 4, 1974 evidencing the sale of the watch by  Mohammad Awesh  Karmi (P.W. 14) to the deceased  Ramdayal.   Mohammad Awesh Karmi has proved the sale of the watch to Ramdayal and the  watch has also been identified by Smt.   Lakhpatiya  in the   trial  court.   Its  recovery  is  therefore   another circumstance  which goes to connect the appellant  with  the crime. As  has  been  stated,  several  other  articles  were  also recovered  from the house of the appellant which he and  his wife  did  not  claim  to be their  property.   It  will  be sufficient  to  mention that two gold "addhis" and  a  torch were  two of the other articles which were recovered  during the  course of the investigation.  The recoveries have  been proved  by  Atmaram  (P.W.  11)  and  Smt.   Lakhpatiya  has identified them during the course of the trial.  Smt.  Isuni (wife of. the appellant) has proved that those articles were also  brought  to  her house by the appellant  and  did  not belong to her or her husband.  The recovery of the  articles also  therefore bears on the guilt of the appellant and  has rightly been taken into consideration against, him. It  has also been argued that although there was  no  direct evidence  to  prove that the appellant committed any  of  he four  murders  or the offence of robbery for  which  he  was tried  and  convicted,  and the case  against  him  depended entirely on circumstantial evidence, the trial court and the High  Court committed an error of law in thinking  that  the evidence  was  sufficient to prove his guilt.   The  precise argument which has been advanced in this connection is  that even  though  it could be said that there  was  satisfactory evidence to prove that the appellant committed theft of  the various articles including the transistor, the wrist  watch, the  gold "addhis" and the torch which were  recovered  from his  house, that could not justify the conclusion  that  the murders were also committed by him.  It has been urged  that it  would not have been possible for any one person to  have committed as many as four murders single handed. We  find  that  the High Court has made  a  mention  of  the circumstantial  evidence which led it to conclude  that  the murders  were  committed  by the  appellant,  including  the evidence bearing on his repeated visits to the house of  the deceased,  his  promise to beget a child to  the  family  by sorcery,  his  winning  their confidence to  the  extent  of pursuading them to do whatever he liked, his ruse to get rid

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of Smt.  Lakhpatiya by sending her to her parents’ house  at Narainpur after leaving 600 her  husband and her ornaments behind on promise of  meeting her  there  on January 21, 1975, Ms failure to  fulful  that promise,  the death of Smt.  Lakhpatiya’s  husband  Ramdayal and his other wife Smt.  Fulkunwar at the "nala"’ where  the appellant  used  to take them and Smt.   Lakhpatiya  on  the pretext  of  practising  sorcery, the  death  of  Ramdayal’s mother Smt.  Bhagwanti and his nephew Rambakas in the  house the  same  night, the ransacking of the house and  the  com- mission  of theft of several articles of Ramdayal  including the transistor, the watch, the gold "addhis", the torch  and ornaments  etc,  and the recovery of those  articles  either from  the  louse of the appellant or at his  instance.   His counsel have not been able to point out how it could be said that  any  part  of this circumstantial  evidence  has  been misread  or  that  any error of law has  been  committed  in taking  the view that it was quite sufficient to  prove  the guilt  of the appellant.  As has been held by this Court  in Wasim  Khan  v. The State of Uttar  Pradesh,(")  recent  and unexplained possession of stolen articles can well be  taken to be presumptive evidence of the charge of murder as  well. A  similar view has been taken in Alisher v. State of  Uttar Pradesh. (2) As has been stated, the prosecution has succeeded in proving beyond any doubt that the commission of the murders and  the robbery  formed part of one transaction, and the recent  and unexplained  possession  of  the  stolen  property  by   the appellant  justified the presumption that it was he, and  no one else, who had committed the murders and the robbery.  It will  be  recalled that the offences were committed  on  the night  intervening January 20 and 21, 1975, and  the  stolen property was recovered from the house of the appellant or at his  instance on January 28, 1975.  The appellant was  given an  opportunity to explain his possession, as well as  his conduct  in decoying Smt.  Lakhpatiya and the other  persons who  died  at  his hand, but he was unable to  do  so.   The question  whether  a  presumption  should  be  drawn   under illustration  (a)  of section 114 of the Evidence Act  is  a matter  which depends on the evidence and the  circumstances of  each case.  Thus the nature of the- stolen article,  the manner  of its acquisition by the owner, the nature  of  the evidence  about its identification, the manner in  which  it was  dealt  with  by  the  appellant,  the  place  and   the circumstances of  its recovery, the length of  the  inter- vening period, the ability or otherwise of the appellant  to explain  his possession, are factors which have to be  taken into consideration in arriving at a decision.  We have  made a  mention of the facts and circumstances bearing  on  these points   and  we  have  no  doubt  that  there   was   ample justification for reaching the inevitable conclusion that it was the appellant and no one else who had committed the four murders  and the robbery.  In the face of  the  overwhelming evidence  on  which  reliance has been placed  by  the  High Court, it is futile to argue that the murders could not have been  committed  by a single person.  As  has  been  stated, there  is satisfactory evidence on the record to  show  that the dead bodies of Ramdayal and Smt.  Fulkunwar (1)  [1956] S.C.R. 191. (2)  [1974] 4 S.C.C. 254. 601 were  found at two different places near the "nala" so  that it  cannot  be said that they were  murdered  together.   As regards  Smt.  Bhagwanti and Rambakas, the evidence  on  the

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record shows that they were murdered while they were  asleep in  the  house, and there is no reason why a  single  person could not have committed their murders also. As  there  is  no force in the  arguments  which  have  been advanced before us, the appeals fail and are dismissed. S.R.                                                 Appeals dismissed. 602