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PETITIONER: WASIM KHAN

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH.

DATE OF JUDGMENT: 12/03/1956

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SINHA, BHUVNESHWAR P. AIYAR, N. CHANDRASEKHARA

CITATION:  1956 AIR  400            1956 SCR  191

ACT: Possession,   recent  and  unexplained  of   stolen   goods- Presumptive  evidence against prisoner not only  of  robbery but of murder as well.

HEADNOTE: The  appellant was sentenced to death for the murder of  one and also sentenced to seven years rigorous imprisonment  for having  robbed  the  murdered  man  of  his  goods,  It  was established by the evidence on the record that the deceased, a  shop-keeper  of  village Jarwal had gone  to  Lucknow  to purchase  goods for his shop.  On his return journey he  got down from the train at about 10 p.m. He had with him a  box, a  balti,  a  gunni bag and a jhola and  other  things.   He engaged  the appellant’s cart to take him and his  goods  to his  village.   Two other persons also got on to  the  cart. Neither  the deceased, nor the articles which were with  him nor the cart reached Jarwal.  In the morning the body of the deceased was found near a bridge in the vicinity of  Jarwal. During investigation on the fourth day after the  occurrence the  appellant gave the key of his kothri to the police  and from the kothri, a dhoti, a box, a balti, a chadar, a  gunny bag  and  a jhola were recovered which  were  identified  as belonging  to the deceased.  A big knife was also  recovered from  the kothri which the appellant disowned but could  not explain  how  it was found in his home.   The  appellant  on examination  before the Sessions Judge under s. 342  of  the Code  of Criminal Procedure stated that the  deceased  asked him to take his goods ’in the cart at about 10 p.m. when  he got down at the Railway Station.  Two other men were also in the  cart  who  got down at the Sugar  Mill  gate  near  the Railway  Station.  At Raduayan Bridge three men enquired  if the  deceased was in the cart.  The deceased  responded  and got down from the cart asking the appellant to halt his cart near Jarwal Bazar Bridge where he waited for the deceased up to 192 4 a.m. but he did not turn up.  Not knowing the house of the deceased  he took the dead man’s goods to his own  house  as his  buffaloes were very hungry.  He stated further that  he had  handed over all the articles of the deceased person  to

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the police which he had locked in the kothri. 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 appellants especially  his  conduct indicating  consciousness  of guilt, point  equally  to  the conclusion  that he was guilty as well of the murder  as  of the robbery. The  Emperor v. Sheikh Neamatulla ([1913] 17  C.W.N.  1077), Queen-Empress  v.  Sami and Another ([1890] I.L.R.  13  Mad. 426), Emperor v. Chintamoni Shahu (A.I.R. 1930 Cal. 379), In re Guli Venkataswami (A.I.R. 1950 Mad. 309), and  Bamprashad Mukundram  Rajput  v.  The Crown  (A.I.R.  1949  Nag.  277), referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 24 of 1956. On appeal by special leave from the judgment and order dated the,  26th  September  1955  of  the  Allahabad  High  Court (Lucknow  Bench)  in  Criminal Appeal No. 195  of  1955  and Capital Sentence No. 17 of 1955 arising out of the  judgment and  order  dated the 11th April 1955 of the  Court  of  the Sessions Judge at Bahraich in Criminal S.T. No. 9 of 1955. D.   R. Prem, for the appellant. K.   B. Asthana and C. P. Lal, for the respondent. 1956.  March 12.  The Judgment of the Court was delivered by IMAM J.-The appellant ’was sentenced to death for the murder of  one Ram Dularey.  He was also sentenced to seven  years’ rigorous imprisonment for having robbed the murdered man  of his  goods.  He was tried along with two other persons,  who were’ acquitted, by the Sessions Judge of Bahraich.  All the four assessors,, who attended the trial, were of the opinion that the appellant was guilty.  The High Court of  Allahabad affirmed the conviction and the sentence and this appeal  is by special leave, 193 Certain  facts have been proved beyond all  doubt.   Indeed, the most important of them are admitted by the appellant  in his  statement  under section 342 of the  Code  of  Criminal Procedure  when examined in the Court of Sessions.   It  has been  established  by  the evidence in  the  case  that  the deceased  Ram Dularey, a shop-keeper of Jarwal, had gone  to Lucknow  to  purchase  goods for his shop.   On  his  return journey,  he got down from the train at Jarwal Road  Station on the 2nd of July, 1954, at about 9-30 p.m. He had with him articles  consisting of a box, a balti, a gunny bag,  jholas and  other  things.   Shortly  thereafter,  he  engaged  the appellant’s  cart to take him and his goods to his  village. Two  other persons also got on to the cart.   The  appellant was  driving  the  cart.   Neither  the  deceased  nor   the articles,  which  were with him, nor the cart  ever  reached Jarwal.  In the morning, Ram Dularey’s body was found near a bridge  in close vicinity of Jarwal.  ’Information was  sent to   the  police  who  commenced  investigation  and   their enquiriesed  them to the appellant, who was arrested on  the 6th of July, 1954.  The appellant gave the key of his kothri to  the  police with which it was opened.  From  the  kothri numerous articles were recovered, including a big knife  Ex. 20  with blood-stains, a dhoti Ex. 3, a box Ex. 9,  a  balti Ex.  I,, a chadar Ex. 2, a gunny bag Ex. 13 and a jhola  Ex. 24.   It is not necessary to give the details of  the  other

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articles  recovered.   The knife was sent  to  the  Chemical Examiner along with the dhoti.  Although minute blood-stains were  detected  on the knife, they were  not  sufficient  to enable  a  comparison in a blood group test.  No  blood  was discovered  on the dhoti.  The dhoti Ex. 3, the box  Ex.  9, the balti Ex. 1, the chadar Ex. 2, the gunny bag Ex. 13  and the  jhola Ex. 24 have been identified as belonging  to  the deceased Ram Dularey.  When  examined  under section 342 of the Code  of  Criminal Procedure  by the Sessions Judge, the appellant stated  that the deceased Ram Dularey bad asked him to take his goods  in his  cart and it was agreed that Rs. 2 would be paid as  the fare.  The appellant 194 took  the deceased on his cart with his goods including  the box Ex. 9. Two other men were also in the cart who got  down at  the  Sugar  Mill gate at the Railway  Station.   At  the Raduayan Bridge three men enquired if Ram Dularey was in the cart.   Ram  Dularey responded and got down  from  the  cart asking  the  appellant  to halt his  cart  at  Jarwal  Bazar Bridge,  where he waited for the deceased until 4 a.m.,  but the deceased did not turn up.  As the appellant did not know the house of the deceased in Jarwal Bazar, he took the  dead man’s  goods in his cart to his own house as  his  buffaloes were very hungry.  To the question as to whether any article of the deceased was recovered from his house by the  police, the  appellant stated that he handed over to the police  all the  property  of the deceased which be had  looked  in  the kothri.   He  asserted that he had told the  people  in  his village  as well as the Mukhia that he would hand  over  the property  to its owner when he came to take  it.  Concerning the  knife, he disowned its ownership and could not say  how it came to be found in his house.  So far as the dhoti Ex. 3 is concerned, the appellant claimed it as his.   On behalf of the appellant, it was urged that the evidence in the case was insufficient to establish any of the charges framed  against him.  In the alternative, it was  suggested, that  as the co-accused of the appellant had been  acquitted the  latter could not be convicted of the offence of  murder by  the application of the provisions of section 34  of  the Indian  Penal Code in the absence of proof that any  act  of his caused the death of Ram Dularey.  It was also  submitted that  no  question  was put by the  Sessions  Judge  to  the appellant when he was examined under section 342 of the Code of  Criminal  Procedure  concerning the  act  of  murder  or robbery.  We  have examined the statement of the  appellant  recorded under  section 342 of the Code of Criminal Procedure by  the Sessions Judge.  At the very commencemeilt of the record  of that  statement, the Sessions Judge readout the  appellant’s statement  under  section  342  of  the  Code  of   Criminal Procedure before 195 the  Committing  Magistrate  and enquired  ’Whether  it  was correct.,   to   which  the  ’appellant   replied   in   the affirmative.   The  statement of the  appellant  before  the Magistrate  is admissible under section 287 of the  Code  of Criminal  Procedure.   The Magistrate  pointedly  asked  the appellant  as  to whether he along with  the  other  accused murdered Ram Dularey and had taken his property to which the appellant replied in the negative.  It was not necessary for the Sessions Judge to specifically repeat the same when  the appellant  admitted  his  statement  before  the  Committing Magistrate  as  correct when read out to  him.   Apart  from this,  when the statement of the appellant to  the  Sessions

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Judge  is  read  as  a whole,  it  clearly  shows  that  the appellant  knew what the accusation against him was  and  he offered an explanation for the disappearance of Ram  Dularey from  his  cart  and for his possession  of  the  deceased’s goods.   There is no justification for supposing that  there had been any prejudice caused to the appellant on account of improper  or insufficient recording of his statement by  the Sessions  Judge  under section 342 of the Code  of  Criminal Procedure.   On  the facts proved beyond question it is clear that  the last time the deceased was seen alive was in the company  of the  appellant and two other persons when the  cart  started for  Jarwal  and his goods were’ on that  cart.   There  is, however,  no evidence as to what happened in the  course  of the journey.  Concerning that we have only the statement  of the  accused.  The evidence next establishes that after  the cart  started, next morning, the 3rd of July, the dead  body of Ram Dularey was found not far from Jarwal.  His goods had disappeared  and some of them at any rate were found in  the possession of the appellant on the 6th of July.  The  real  question  is whether the evidence  in  the  case establishes  that  the  appellant murdered  and  robbed  Ram Dularey.   The evidence is circumstantial.  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 196 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  The  Emperor   v.   Sheikh Neamatulla(1)  Sir  Lawrence  Jenkins had  the  occasion  to examine  this question.  After referring to section  114  of the Evidence Act, be quoted the following passage from 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 Queen-Empress v. Sami and  Another(2)  at page  432,  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(3),  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 (1) [1913]17 C.W.N. 1077.   (2) [1890] I.L.R. 13 Mad. 426.

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(a) A.I.R. 1930 Cal. 379. 197 connected  with  the  theft; this particular  fact  of  pre- sumption  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 Guli Venkataswamy(1) as well as  in  the case of Ramprashad Makundram Rajput v. The Crown(2).   In  the present case it is established beyond  doubt  that the deceased travelled with his goods with the appellant  on his  bullock cart.  He should have reached  his  destination Jarwal  in  the course of the night.  He  never  got  there. Obviously,  he  was  murdered  on  his  way  home.   On  the appellant’s own statement, he and the deceased were alone in the cart after the other two persons had got off the cart at the Sugar Mill gate.  Thereafter the deceased was never seen alive by any one.  He was found murdered.  The appellant was found  in  possession  of the deceased’s  goods  three  days afterwards.   The  appellant  made no effort  to  trace  the whereabouts  of  the deceased or lodge  information  of  his disappearance from the bullock cart.  The appellant has told the  court  that some people called the deceased  while  the cart  was on its journey and the deceased told him  to  wait for him at a certain place.  He waited until 4 a.m. but  the deceased  never  turned up.  This should  have  aroused  his suspicions and he should have informed the police or someone in  authority about it.  He says he informed the Mukhia  and all the people about it.  Neither the Mukhia nor anyone  has been  examined  by  the  appellant  to  support  his  story. Reliance was placed on the statement of Iftikhar Ahmad  P.W. 7)  who spoke of a rumour in the village that the  appellant had  brought the property of a man on his cart who had  gone away and that this rumour had been spread by the  appellant. It  is clear, however, that the witness was not speaking  of this  from his personal knowledge and his statement  is  not legal evidence.  On the other hand, if really the  appellant had  spread such a rumour there is no  adequate  explanation for his failure to inform the authorities.  He (1) A.I.R. 1950 Mad. 309.      (2) A.I.R. 1949 Nag. 277. 26 198 knew  he  was in possession of a large  number  of  articles belonging  to  the  man  who had  hired  his  cart  but  had disappeared  in  very strange circumstances.   In  addition, there  is no explanation for his possession of a big  blood- stained knife, a weapon which if used against the  deceased, could  have  caused the injuries found on him.  It  is  true that  the  blood  stains  were  minute  and  have  not  been established  to be of human blood.  The appellant,  however, denied that the knife belonged to him, and has not explained as to how it came to be in his possession.  It is impossible to  believe  his story that he waited until 4 a.m.  for  the deceased  to return.  The cart had started from Jarwal  Road Station at about 10 p.m. It could not have been more than  a couple  of hours later that the deceased left the cart.   To wait  from  that time until 4 a.m. at a place not  far  from Jarwal  itself appears to be a fantastic story.  It is  true that  none of the clothes of the appellant were found to  be bloodstained,  as  they should have been, if he  bad  parti- cipated  in the murder, having regard to the nature  of  the injuries  on  the deceased.  These clothes were  not  seized until the 6th July, some three days later, and the appellant could  have  removed  all traces of blood  stains  from  his clothing in that time.   The appellant was convicted of the offences of murder  and robbery by the Sessions Judge by the application of  section

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34  of the Indian Penal Code.  The charge  framed,  however, was  one of murder and robbery and there was no  mention  of these offences having been committed in the furtherance of a common  intention.  The High Court, however, found that  the appellant along with two others committed these offences and they  shared in the goods robbed.  On this finding, even  if the   co-accused  of  the  appellant  were  acquitted,   the appellant  could  be  convicted by the  application  of  the provisions  of  section 34 of the Indian  Penal  Code.   The charge  framed  against  the appellant was  for  murder  and robbery and the only question to be decided was whether  the evidence  was sufficient to support such a charge or did  it merely establish offences less grave in nature.  We think it 199 was  and are satisfied that it establishes the  offences  of murder and robbery against the appellant and not merely  the minor  offence  of robbery or theft.  It  is  impossible  to accept  the submission that the evidence does not  establish any offence having been committed by the appellant.  Having  regard to what is established in the case  and  the principles deducible from the cases cited, we are  satisfied that  the  appellant  has  been  rightly  convicted  of  the offences  of murder and robbery.  The appeal is  accordingly dismissed.