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The State of Madhya Pradesh Vs. Murarilal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1973CriLJ1559; 1973MPLJ707
AppellantThe State of Madhya Pradesh
RespondentMurarilal and anr.
Cases ReferredShivappa v. State of Mysore
Excerpt:
- - 4. on 5-2-1971, in a well situate in the outskirts of the village, at a distance of about six furlongs from the house of accused murarilal, a dead body was recovered sewn in a gunny bag which was alsp filled with some bricks, apparently to keep it under water. the fact discovered embraces the place from which the object is produced and tha knowledge of the accused as to this, and the information given must relate distinctly to this fact. however, it was clearly held that, but for such knowledge of the police, the aforesaid statement of the accused would have been admissible in evidence. secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. 1936-37) (underlining is by us) 13. in the aforesaid.....orderj.s. verma, j.1. this judgment shall also govern the cross appeal, i.e., criminal appeal no. 489 of 1971, (murarilal v. the state of madhya pradesh), filed by the present respondents against their conviction under section 411, i. p. c, and the consequent sentence of rigorous imprisonment for two years to each of them. the present appeal by the state is against the acquittal of both these persons for the alleged offences punishable under section 302 read with section 34 and sections 201 and 394, ipc2. the deceased mst. laltibai, mother of p. w. 6 dwarka prasad and mother-in-law of p. w. 11 sudamabai, lived in village hirdayanagar, district mandla, with the aforesaid witnesses. the village is at a distance of about nine kilometers from mandla. nearabout mid-day on 28-1-1971, the.....
Judgment:
ORDER

J.S. Verma, J.

1. This judgment shall also govern the cross appeal, i.e., Criminal Appeal No. 489 of 1971, (Murarilal v. The State of Madhya Pradesh), filed by the present respondents against their conviction under Section 411, I. P. C, and the consequent sentence of rigorous imprisonment for two years to each of them. The present appeal by the State is against the acquittal of both these persons for the alleged offences punishable under Section 302 read with Section 34 and Sections 201 and 394, IPC

2. The deceased Mst. Laltibai, mother of P. W. 6 Dwarka Prasad and mother-in-law of P. W. 11 Sudamabai, lived in village Hirdayanagar, district Mandla, with the aforesaid witnesses. The village is at a distance of about nine kilometers from Mandla. Nearabout mid-day on 28-1-1971, the deceas-sed, an old woman aged about 65 years, whose mobility had been considerably impaired on account of a paralytic attack, left her house and soon thereafter was seen standing near the house of accused Murarilal. That was the last time she was seen alive. Apparently, the deceased was quite affluent and When she left the house that day, she was as usual bedecked with several ornaments. She was also fond of chewing pan and it appears that she had left home at that time to get pan. Admittedly, the accused Murarilal is a Chaurasia and he carried on business of selling pans; and the other accused Darbarilal was his servant at the relevant time. The house of accused Murarilal is located at a short distance from the house in which the deceased lived along with her son and his family.

3. The deceased not having returned till late at night on 28-1-1971, a search was made for her by her sons P. W. 6 Dwarka Prasad and Badri Prasad along Vith others, but to no avail. On failing to find his mother in the village or near about, P. W. 6 Dwarka Prasad considered the only remaining possibility that she might have gone to his sister's place in Jabalpur and so he, along with his elder brother Badri Prasad, went to look for her in Jabalpur. However, on failing to find her there also, P. W. 6 Dwarka Prasad, immediately on return from Jabalpur, lodged on 30-1-1971 a report (Ex. P-2) in Police Station Mandla, In that report it was stated that Mst. Laltibai was missing since noon of 28-1-1971; that on a search being made she could not be found; that having had an attack of paralysis she had become lame so that she was incapable of walking much and going to another village; and that she was wearing ornaments as detailed in Ex. P-2. The ornaments detailed in Ex. P-2 included a gold hasli (Article 1), weighing about 14 tolas; three gold mohars - each weighing one tola-, (one of which is Article 8); a silver todar (Article 9), weighing about one kilogram; and a gold nose-ring (Article 10). Article 1 gold hasli, Article 8 gold mohar, Article 9 silver todar and Article 10 gold nose-ring in this case have been identified as belonging to the deceased which were worn by her when she last left her house, some time after which she was, admittedly, done to death.

4. On 5-2-1971, in a well situate in the outskirts of the village, at a distance of about six furlongs from the house of accused Murarilal, a dead body was recovered sewn in a gunny bag which was alsp filled with some bricks, apparently to keep it under water. The dead body was in a highly decomposed state. It was identified as the dead body of Mst Laltibai. After recovery of the dead body a half-chewed pan (Article 21) was also recovered from the mouth of the deceased and was seized as per seizure memo Ex. P-13.

On recovery of the dead body, police being already in the village to enquire about the missing woman, a dehati nalishi (Ex. P-3) was recorded the same day (i. e. 5-2-1971). The investigation led to the arrest of these two accused and their consequent trial for the aforesaid offences.

5. The prosecution alleges that on information given by accused Murarilal as per memo Ex. P. 18 dated 6-2-1971, the gold hasli (Article 1) was recovered from the shop of P. W. 3 Murarilal Siharey alias Mulla Siharey of Mandla and seized as per seizure memo Ex. P-5 in a. mutilated condition, a portion from it having been cut off; and a sum of Rs. 1,485/- was also found concealed in the embankment of the field of one Shobha in that village, kept in a plastic bag, which represented a part of the sale proceeds of that hasli which, it is alleged, was sold by accused Murarilal for a sum of Rs, 2,251/- in the said shop. That amount of Rs. 1.485/-was seized as per seizure memo Ex. P-19. Similarly, the gold mohar (Article 8), silver todar (Article 9), and gold nose-ring (Article 10) were recovered on the information given by the other accused Darbarilal, as per memo Ex. P-16 dated 5-2-1971, from the embankment of the field belonging to one Chandanlal alias Channu Chaurasia in the village and were seized as per seizure memo, Ex. P 17.

6. It is also alleged that the accused Murarilal had told P. W. 6 Dwarka Prasad and his elder brother Badri Prasad on the night of 28-1-1971, when they were frantically searching their mother, that they should go home and sleep and that their mother would not return now. This is relied on as one of the circumstances attributing knowledge to the accused Murarilal of Mst. Laltibai being already dead by that time.

7. There is no direct evidence of the crime in this case. Admittedly, Mst. Laltibai died as a result of violence, as is apparent from the several injuries found on her person which are detailed in the post mortem report (Ex. P-22) and proved by P. W. 15, Dr. D. L. Ayyar. According to the medical opinion, the death was due to aspyxia as a result of strangulation. There is no dispute that the offences of robbery, murder and concealing the evidence of murder have been committed. The only dispute is about the identity of the culprits.

8. Shri A. P. Tare, learned Deputy Government Advocate, appearing for the State, relies on several circumstances to indicate that the present accused alone were the real culprits, responsible not only for the murder of Mst. Laltibai but also for having concealed her dead body and having robbed her of the aforesaid ornaments which were subsequently recovered on the basis of information given by them. The circumstances on which reliance is placed are mainly that the deceased, when last seen alive on 28-1-1971 at mid-day, was going towards the house of accused Murarilal and was actually seen standing near his house; that she was very fond of chewing pan which she always purchased from the accused Murarilal; that a half-chewed pan was actually found in the jnouth of the dead body of the deceased, indicating that she was done to death soon after she had taken pan; that she had left home at that time to get pan; that the gold hasli (Article 1) belonging to the deceased and which she was wearing when last seen alive Was sold by accused Murarilal in the shop of Murarilal Siharey, P. W. 3, at Mandla the same evening that Mst. Laltibai, having become lame as a result of a paralytic attack, was not very mobile and could not have gone far; that the statement of accused Murarilal on the night of 28-1-1971 to the sons of the deceased thai she would not return now indicated that he Was then aware of her death; and that the dead body was found in a gunny bag which indicated that she had been done to death at a place of convenience i. e. a house where arrangements for disposing of the dead body in this manner could be made and not that she had been waylaid. It is also suggested that the house in question could only be that where she would have voluntarily gone during that part of the day and since she had left home to get pan which she always purchased from the accused Murarilal, she must have gone only to the house of accused Murarilal where she was killed. Another circumstance, treated as a connecting link, is the concealment of Rs. 1,485/-, suggested to be a part of the sale proceeds of the gold hasli (Article 1), in the embankment of a field which is an unusual place for keeping money, for which act no explanation has been given. The argument is that these circumstances taken together lead to the only inference that accused Murarilal was one of the persons Who had committed the aforesaid crimes.

So far as the other accused Darbarilal Is concerned, the additional circumstances suggested are that he was present in the house of Murarilal at that time, being his servant; and that he was in very recent possession of the gold mohar (Article 8) silver todar (Article 9) and the gold nose-ring (Article 10), also proved to have been worn by the deceased when last seen alive and which he had concealed in the manner already indicated; and the fact of several injuries being found on the person of the deceased as also the manner of disposing of the dead body which indicated that it was the work of more than one person. For these reasons it is contended that the other accused Darbarilal is equally guilty of the aforesaid crimes. The total absence of any explanation by the two accused of their such possession of the ornaments worn by the deceased is also put forth as a relevant circumstance.

9. The trial Court accepted that the alleged discoveries had been made at the instance of the two accused, and came to the conclusion that the accused Murarilal had sold the gold hasli (Article 1) in the manner alleged and the co-accused Darbarilal had concealed the other three ornaments as stated. However, it was of opinion that the circumstances led only to the conclusion that an offence under Section 411, I. P. C, and none of the alleged offences, was proved against any of the two accused. Accordingly, both of them have been convicted only under Section 411, I. P. C, as already stated.

10. Shri Rajendra Singh, learned Counsel for both the accused, has made no attempt to assail the conviction already made under Section 411, IPC In fact, his argument is that the possession of these ornaments by the accused gives rise only to the presumption that they were mere receivers of stolen property so that no offence other than the one under Section 411, I. P. C, is made out against them. On this basis he contends that the present appeal by the State ought to be dismissed. No attempt has been made to dispute that the aforesaid four ornaments, viz., gold hasli (Article 1), gold mohar (Article 8,) silver todar (Article 9) and gold nose-ring (Article 10) did in fact belong to the deceased and that she was wearing the same at the time she was killed. Similarly it has not been disputed that the gold hasli (Article 1) was recovered and seized by the police from the shop of P, W. 3 Murarilal Siharey at Mandla and the other three ornaments (Articles 8, 9 and 10) were recovered and seized from the place already indicated. Further, the sale of the gold hasli (Article 1) by accused Murarilal in the shop of P. W. 3 Murarilal Siharey at Mandla has not been challenged. What has been challenged is the date of that sale, the argument being that the sale was not in fact made on the evening of 28-1-1971 as stated by P. W. 2 Rajkumar Siharey and his father P. W. 3 Murarilal Siharey and corroborated by the entries made in the shop books, but that it was made many days later, so that the only inference which can arise is of an offence under Section 411, IPC In short, the argument of Shri Rajendra Singh is that the possession of these ornaments by the accused on 28-1-1971 itself, the day on which Mst. Laltibai was last seen alive, has not been proved. On this basis it is contended that the possession of ornaments not being (proved?) soon after Laltibai was robbed and murdered but only a few days later, the only reasonable inference is that the two accused were mere receivers of stolen property and were not the robbers or murderers themselves. The other circumstances relied on by the prosecution are mostly not challenged and are said to be innocuous. The several arguments advanced by Shri Rajendra Singh in support of this conclusion are dealt with hereafter.

11. The first argument of Shri Rajendra Singh is that the memo Ex. P-18 is inadmissible in evidence since it did not occasion the discovery of any fact as required by Section 27 of the Evidence Act. His contention is that the accused Murarilal only stated that the hasli (Article 1) was to be found in the shop of P. W. 3 Murarilal Siharey and he did not indicate the exact place in the shop where it was kept, so that a further act of investigation was necessary in order to get the hasli and that was independent ol the information contained in the said memo, He argues that in order to make this statement admissible in evidence by virtue of Section 27 of the Evidence Act, it is necessary that the information so given should have itself directly led to the discovery without tha further assistance of the owner of the shop. In support of this argument reliance is placed mainly on the decision of the Privy Council in Pulukuri Kotayya V. Emperor AIR 1947 PC 67 : (48 Cri LJ 533) and particularly to a passage which reads as follows:-. In their Lordships view 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 tha knowledge of the accused as to this, and the information given must relate distinctly to this fact....

The main emphasis is, that the actual place in the shop where the hasli was kept was known only to the owner of the shop and not to the accused Murarilal who gave the information and, as such, one of the essential requirements to constitute the 'fact discovered' within the meaning of Section 27 of the Evidence Act is not present. Another face of the same argument has been placed by contending that the accused Murarilal only informed that he had sold the hasli to tha owner of that shop, so that the person to whom it was handed over by the accused was the only thing known as a result of this information, and, thereafter, the further co-operation of the named person was necessary in order to really get the hasli. For these reasons it is contended that no discovery as contemplated by Section 27 of the Evidence Act was in fact made as a result of the memo. Ex. P-18.

12. The aforesaid decision of theis Lordships of the Privy Council undoubtedly continues to be the leading case on the point However, the narrow meaning suggested by Shri Rajendra Singh to the principle laid down therein is unwarranted, as would ba evidenced from a recent decision of the Supreme Court in which the aforesaid Privy Council decision was relied on. In Jaffaj Hussain Dastagir v. State of Maharashtra : 1970CriLJ1659 tha portion of the statement, with reference to which this question arose, read as follows:

I will point out one Gaddi alias Ranv singh of Delhi at Bombay Central Railway Station at III Class Waiting Hall to whom 1 have given a packet containing diamonds of different sizes more than 200 in number.

The only question for decision in that case before the Supreme Court was whether the aforesaid statement made by the accused waa admissible in evidence by virtue of Section 27 of the JEvidence Act, the diamonds having been found with the person named. In the facts of that case their Lordships came to the conclusion that the police had already known that the diamonds were with the person named by the accused, with the result that there was no fact discovered by the police as a result of the statement made by the accused. For this reason it was held that there was no discovery within the meaning of Section 27 of the Evidence Act. However, it was clearly held that, but for such knowledge of the police, the aforesaid statement of the accused would have been admissible in evidence. This is evident from the following observations made in that case:-. If the police had not gone to the office of the Bombay Samachar and had not learnt of the complicity of the third accused with the crime, the statement of tha appellant would amount to information received from him relating to the discovery of the diamonds in the custody of accused No. 3. (Para 11 at p. 1939, col. 2).

While dealing with this question their Lordships of the Supreme Court laid down the principles on the basis of the aforesaid Privy Council decision as under:-.. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled. If an accused charged with a theft of articles or receiving stolen articles, within the meaning of Section 411, I. P. G, states to the police, 'I will show you the articles at the place where I have kept them and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact, i. e., keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle there is no difference between the above statement and that made by the appellant in this case which in effect is that 'I will show you the person to whom I have given the diamonds exceeding 200 in number. The only difference between the two statements is that a 'named person' is substituted for 'the place' where the article is kept. In neither case are the articles or the diamonds the fact discovered. (Para 5 at pp. 1936-37)

(Underlining is by us)

13. In the aforesaid decision of the Supreme Court it has been clearly pointed out that in substance there is no difference between a 'named person' and the place' where the article is kept. The result is that if the accused gives information about a person to whom he had given the incriminating article and offers to point out that person, it is the same thing as naming the place where the article is kept and which place he offers to point out. If the article is found with the 'named person', the statement made by the accused leads to discovery and the same is admissible by virtue of Section 27 of the Evidence Act. This position cannot be doubted in view of the said decision of the Supreme Court. Thus, the narrow construction suggested by Shri Rajendra Singh of the Privy Council decision is not justified and such a reading of that decision is contrary to the law laid down by their Lordships of the Supreme Court, as already indicated.

14. Shri Rajendra Singh tried to distinguish the aforesaid Supreme Court decision by saying that there the diamonds were actually found on the person of the 'named person', whereas in the case before us the hasli was taken out from some place in the shop. We are unable to accept that such a distinction exists. In the statement which the Supreme Court was considering there was no mention of the place where the diamonds were to be found with the 'named person' and all that was said by the accused was that he would point out the person to whom he had given a packet containing diamonds. There is nothing in the judgment to indicate that the fact of diamonds being actually found on the person of the 'named person' was even considered relevant for the decision. In fact, the principles enunciated by their Lordships of the Supreme Court are wholly independent of this fact. We are therefore unable to accept the argument that the Supreme Court decision can be applied only in that situation where the incriminating article is actually found on the person of the 'named person'.

15. Shri Rajendra Singh also relies on two decisions of this Court in State of Madhya Pradesh v. Dhannalal, (1961) 2 Cri LJ 238 (M. P.) and Maganlal Bagdi v. Emperor AIR 1934 Nag 71 : (1934) 35 Cri LJ 1097. In the former case the accused was tried for poisoning by mixing a certain poison in the sweets. The question there for consideration was whether a statement made by the accused that he had bought the poison from a particular Hakim's shop was admissible in evidence by virtue of Section 27 of the Evidence Act. It was held that the discovery that was directly made as a direct consequence was the existence of the shop of the Hakim, and this was no discovery at all, being in an open street. As such, there was no fact discovered so as to attract Section 27. It is difficult to appreciate how this decision has any relevance here. In the latter case (Maganlal's case), A stated that he handed on the property to B and B stated that he handed on to C and C to D and D to E, and recovery was made from E. It was held by the learned Judicial Commissioner that the statements of A, B, C and D have no direct bearing on the recovery of the property, although they may have indirectly helped the police in the investigation. For the purpose of this case it is sufficient to say that the decision is clearly distinguishable on facts. In the present case there are no intervening persons, as was the position in that case. Here the hasli was found with the 'named person' and no others were involved in between. This by itself makes that decision inapplicable. However, if the learned Judicial Commissioner intended to lay down therein, the proposition which Shri Rajendra Singh wants to spell out viz. that where A stated that he had handed over the property to B as a result of which the property was recovered from B only, yet that statement would not be admissible in evidence, then that is no longer good law in view of the aforesaid decision of their Lordships of the Supreme Court in Jaffer Hus-sain's case : 1970CriLJ1659 . We would therefore read the decision in Maganlal's case AIR 1934 Nag 71 : (35 Cri LJ 1097) (supra) as confined only to the facts therein, which were different from those before us.

16. Faced with tnis situation Shri Rajendra Singh contended that the police actually knew that the hasli (Article 1) was in the shop of P. W. 3 Murarilal Siharey on account of which no discovery was made as a result of the statement made by the accused Murarilal as contained in Ex. P-18. In support of this argument reliance is placed mainly on a casual admission obtained from P. W. 11 Mst. Sudamabai, daughter-in-law of the deceased, at the beginning of her cross-examination. She has stated that on the very day when the dead body was found it was known in the evening that the aforesaid ornaments (todar, mohar, nose-ring and hash') had been found. The dead body was found on 5-2-1971 and todar, mohar and nose-ring were also found the same day as a result of the information given by the other accused Darbarilal. However, information by accused Murarilal regarding the hasli is alleged to have been given on 6-2-1971, on which date it was also recovered from the shop of P. W. 3 Murarilal Siharey as a result of the information so given. The argument is that if the hasli was known to have -been found on the evening of 5-2-1971 itself, there could be no discovery on the next day as alleged by the prosecution. We are unable to accept this contention.

Admittedly, P. W. 11 Mst. Sudamabai had made that statement only on the basis of the impression she had gathered, and she had no personal knowledge of the same. None of those ornaments were recovered in her presence, nor did she witness any of the events which led to their recovery. She has clearly stated this from hearsay, and this impression appears to have been caused on account of the fact that three out of the four ornaments had in fact been found on 5-2-1971 itself. No witness has said so from personal knowledge and this portion of the statement of P. W. 11 Sudamabai, being hearsay, is of no probative value. No question was put to any of the police officers examined in this case to indicate that any such prior knowledge was attributed to them. Nothing else has been shown to us from the record which would suggest that the police was aware of the hasli being present in the shop of P. W. 3 Murarilal Siharey prior to the information given by accused Murarilal.

17. In fact this argument was resorted to only in an effort to get over the Supreme Court's decision in Jaflfar Hussain's case : 1970CriLJ1659 when the same was pointed out to Shri Rajendra Singh after he had concluded his arguments on this point.

18. We are clearly of the opinion that from the evidence present on record, no such prior knowledge on the part of the police is borne out. For the aforesaid reasons, in our opinion, the statement of the accused Murarilal contained in the memo Ex. P-18, which led to the discovery, is clearly admissible in evidence by virtue of Section 27 of the Evidence Act. It is, therefore, proved that the hasli (Article 1) was handed over by the accused Murarilal in the shop of P. W. 3 Murarilal Siharey, and this fact was discovered as a result of information given by him (Murarilal accused). (After discussing further evidence in the case in paras 19 to 28 the judgment proceeded.- Ed.)

29. As a result of the discussion aforesaid we are of opinion that the following facts and circumstances were fully proved, namely,'-

(1) The deceased Laltibai was an old woman, aged about 65 years, who had become lame as a result of a paralytic attack on account of which she was unable to walk a long distance;

(2) On 28-1-1971, at about 11 or 11.30 A. M., the deceased, having left her house sometime before that, was seen standing neau the house of accused Murarilal Chaurasia and that was the last time she was seen alive;

(3) When the deceased left home, she was wearing ornaments, namely, gold hash' (Article 1), gold mohar (Article 8), silver todar (Article 9) and gold nose-ring (Article 10), which she was also wearing when last seen alive;

(4) The deceased was fond of chewing pan which she always bought from accused Murarilal Chaurasia, whose house is quite close to that of the deceased;

(5) The deceased had left home to get pan, having taken her meals sometime earlier and no pan being available at home;

(6) Accused Darbarilal was a servant of accused Murarilal at that time and was present in the latter's house;

(7) On the evening of 28-1-1971, accused Murarilal sold the hasli (Article 1), which the deceased was seen wearing earlier the same day when she was last seen alive, in the shop of P. W. 3 Murarilal Siharey at Mandla, a distance of about 9 kilometers from the village;

(8) A sum of Rs. 1,485/- was concealed by accused Murarilal in the embankment of a field belonging to another person near about that time;

(9) Accused Darbarilal was in possession of the gold mohar (Article 8), the silver toda (Article 9) and the gold nose-ring (Article 10), worn by the deceased when last seen alive and had concealed them in the embankment of a field from which place they were recovered on 5-2-1971;

(10) The dead body of Laltibai was found in a well on the outskirts of the village, sewn in a gunny bag which was also filled with some bricks so as to keep it under water;

(11) The deceased Laltibai was killed within a few hours of her leaving home on 28-1-1971 itself, which must have been during the day time;

(12) A half chewed pan was found in the mouth of the deceased, indicating that she had taken pan very soon before she was killed;

(13) Since the killing was done during day time and inside a house in the village, that house must have been one inside which she voluntarily went and took pan; and

(14) No explanation has been offered by either of the two accused for their possession of the aforesaid ornaments belonging to the deceased and worn by her when last seen alive, and also for their immediate disposal or concealment as already indicated.

30. The question now is whether the only presumption arising from these circumstances is that the two accused were mere receivers of stolen property, as argued by Sbri Rajendra Singh, or whether they are liable for the offences alleged against them by the prosecution.

31. Obviously, which presumption arises in a particular case is ultimately a question of fact depending on the facts and circumstances found. However, the principles to be applied in drawing the presumption have been laid down by their Lordships of the Supreme Court in Shivappa v. State of Mysore : 1971CriLJ260 as follows:-.If there is other evidence to connect an accused with the crime itself, however small, the finding of the stolen property with him is a piece of evidence which connects him further with the crime. There is then no question of presumption. The evidence strengthens the other evidence already against him. It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn. In what circumstances the one presumption or the other may be drawn, it is not necessary to state categorically in this case. It all depends upon the circumstances under which the discovery of the fruits of crime are made with a particular accused. It has been stated on more than one occasion that if the gap of time is too large, the presumption that the accused was concerned with the crime itself gets weakened. The presumption is stronger when the discovery of the fruits of crime is made immediately after the crime is committed. The reason is obvious. Disposal of the fruits of crime requires the finding of a person ready to receive them and the shortness of time, the nature of property which is disposed of, that is to say, its quantity and character, determine whether the person who had the goods in his possession received them from another or was himself the thief or the dacoit. In some cases there may be other elements which may point to the way as to how the presumption may be drawn. They need not be stated here as they differ from case to case... It is impossible to think that within the short time available these goods could have been easily disposed of to receivers of stolen property or could be placed in the custody of friends till such time as the original offenders could take them away. The time gap in some cases is as short as two days and in some others it is not more than five days.... (Para 5 at pp. 197-98).

32. Thus, it is obvious that where the only circumstance proved against the accused is the possession of stolen property and the time gap is sufficient to suggest the possibility of the property having been disposed of to receivers, then the only presumption would be that the accused are mere receivers of stolen property. However, if in addition to the finding of stolen property there is other evidence, howsoever small, to connect an accused with the crime itself, then there is no question of presumption alone, since this evidence strengthens the other evidence already against him.

33. We have already enumerated the several circumstances which appear against the two accused persons and the case against them does not depend merely on their being found in possession of the stolen property soon after the robbery and murder. Applying the aforesaid principles, we have no doubt that the two accused persons are not mere receivers of stolen property but were in fact the robbers themselves as also the murderers and they alone had concealed the dead body in the manner already stated so as to cause disappearance of the evidence of the offence. In our opinion, both the accused persons, Murarilal and Darbarilal, are guilty of the offence of murder under Section 302 read with Section 34 of the Indian Penal Code and of robbery under Section 392 of the Code instead of Section 394 as originally charged and also of the offence of causing disappearance of the evidence regarding commission of the offence of murder under Section 201 of the Code. As for the sentence, in our opinion, rigorous imprisonment for life to each of them for the offence under Section 302 read with Section 34, Indian Penal Code, would be sufficient to meet the ends of justice. In addition, we sentence each of them to rigorous imprisonment for seven years and fine of Rs. 1,000/- or, in default, further rigorous imprisonment for one year for the offence under each of the Sections 392 and 201, Indian Penal Code. The sentences for all the three offences hi respect of both the accused are, however, ordered to run concurrently. Their conviction and sentence under Section 411, Indian Penal Code are set aside.

34. As regards disposal of property, we agree with the direction given by the trial Court in that behalf and order that the same be disposed of accordingly.

35. Consequently both the appeals, Criminal Appeal No. 668 of 1971 filed by the State and Criminal Appeal No. 489 of 1971 filed by the accused Murarilal and Darbarilal are allowed with the result stated above.


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