Ganesh Banaj Vs State Of Chhattisgarh

Sanjay K. Agrawal, J

1. Two appellants namely, Ganesh Banaj (A-1) & Sunil Bharti (A-2) in Cr.A.No.576/2016; sole appellant namely, Satyendra Jangde (A-3) in Cr.A.No.391/2016; sole appellant namely, Hemant Bhardwaj (A-4) in Cr.A.No.659/2016; sole appellant namely, Gopi Banaj (A-5) in Cr.A.No.604/2016; sole appellant namely, Dilchand Banaj (A-6) in Cr.A.No.566/2016; and sole appellant namely, Santosh Kumar Kesharwani (A-8) in Cr.A.No.361/2016, have preferred these appeals under Section 374(2) of the CrPC feeling aggrieved and dissatisfied with the impugned judgment dated 10-3-2016 passed by the Sessions Judge, Baloda Bazaar in Sessions Trial No.1/2015, by which the learned Sessions Judge has convicted and sentenced the appellants in the following manner with a direction to run the sentences concurrently: -

Ganesh Banaj (A-1), Sunil Bharti (A-2), Satyendra Jangde (A-3), Hemant Bhardwaj (A-4), Gopi Banaj (A-5) and Dilchand Banaj (A-6)

Santosh Kumar Kesharwani (A-8)

2. Since all the six criminal appeals have arisen out of one and same judgment dated 10-3-2016 passed by the Sessions Judge, Baloda Bazaar in Sessions Trial No.1/2015 and since common question of fact and law is involved in all the six appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

3. Case of the prosecution, in a nutshell, is that on 7-9-2014 in the night, A-1 to A-6 conspired together and entered into the house of Dhaneshwar Prasad Sahu at Village Nagarda and caused death of Dhaneshwar Prasad, his wife Ganeshi Bai, his brother Rameshwar and his mother Suraj Bai and looted gold & silver ornaments. Acquitted co-accused Laxminarayan Mahilane (A-9) and accused/ appellant Santosh Kumar Kesharwani (A-8) purchased the stolen property. One co-accused Sahasram (A-7) has also been acquitted by the trial Court. One Rajababu Khunte – juvenile, was tried by the jurisdictional juvenile court being juvenile.

4. Further case of the prosecution is that Keshram (PW-1) reported the matter that his nephew Dhaneshwar Prasad Sahu (deceased) was running a Kirana shop in the village in the ground floor and used to stay in the first floor along with his family members; on 7-9-2014, he had gone to his field to work then the clerk of Dhaneshwar Prasad Sahu namely Amritlal Sahu came to him and informed him that his nephew Dhaneshwar has not opened his shop and grill is closed whereupon he along with Amritlal Sahu went there and saw that grill was closed and locked from inside and both the minor daughters of Dhaneshwar were standing inside the house. On being asked, elder daughter of Dhaneshwar namely Kum. Nidhi, aged 4 years, informed that all are sleeping upon which, on suspicion, with the help of a ladder, they peeped into the window where they saw that his nephew Dhaneshwar was lying near the bed and his wife Ganeshi Bai, brother Rameshwar and mother Suraj Bai were also lying near the cot, all have suffered serious injuries and died. One broken piece of bangle, one chain (mala), one rope chain (mala) and other wooden articles were found on the spot. Persons of the vicinity collected and they immediately informed to Bilaigarh Police Station and Dehati Nalsi was registered vide Ex.P-1 against unknown persons. Consequently, Dehati Morgue intimation was recorded vide Exs.P-2 to P-5 separately for deceased persons Dhaneshwar Sahu, Ganeshi Bai, Rameshwar & Suraj Bai. Inquest was conducted vide Exs.P-42 to P-44 & P-56. Dead bodies were subjected to postmortem vide Exs.P-53 to 56 by a team of doctors namely, Dr. Pushpendra Vaishnav (PW-11), Dr. Roshan Krishna Dewangan (PW-12) & Dr. Narayan Sahu (PW-13) and cause of death was stated to be due to excessive bleeding and death was homicidal in nature. Thereafter, on 12-9-2014, the police had commenced investigation and during investigation, the police have recorded memorandum statements under Section 27 of the Evidence Act of the accused persons vide Exs.P-8 to P-15 and after making arrest of the accused persons vide arrest / surrender memo (Exs.P-29 to P-37), on the basis of memorandum and confession made by the accused persons, police seized / recovered looted jewelleries, currency, gold & silver ornaments, mobile, bikes, etc. vide Exs.P-21 to P-28. On 17-10-2014, identification of gold ornaments was conducted by Tahsildar T.R. Bharadwaj and in the identification proceeding, Dhaneshwari Bai (PW-2) – sister of deceased Dhaneshwar Prasad Sahu, identified the seized articles / ornaments to be belonging to the deceased vide identification panchnama Ex.P-38. Seized articles were sent for chemical examination to the FSL vide Ex.P-71 and in the FSL report Ex.C-1, human blood was found on T-shirt & full pant seized from Ganesh Banaj (A-1), human blood was found on T-shirt seized from Sunil Bharti (A-2), human blood was found on shirt seized from Satyendra Jangde (A-3) and blood was found on full shirt seized from Hemant Bhardwaj (A-4). Stolen property was seized from Santosh Kumar Kesharwani (A-8) & Laxminarayan Mahilane (A-9) and they were charged for offence under Section 411 of the IPC.

5. The investigating officer after completion of investigation, charge-sheeted the accused persons before the jurisdictional criminal court who committed the case to the Court of Sessions, Baloda Bazaar where the trial was conducted.

6. The prosecution, in order to bring home the offence, has examined as many as 15 witnesses and exhibited 86 documents Exs.P-1 to P-86. The trial Court has admitted two documents Exs.C-1 & C-2 – FSL report & Finger Prints Expert's Report along with covering letter, respectively, and also copy of memo for FSL report along with other connected documents, in evidence. The accused persons abjured the guilt and entered into defence by stating that they have not committed the offence and they have been falsely implicated. They have examined two witnesses Phulbai Ratre (DW-1) & Gautam Kumar (DW-2) in their defence, however, not exhibited any document.

7. The trial Court after appreciating ocular, oral and documentary evidence on record, while acquitting co-accused persons Sahasram (A-7) & Laxminarayan Mahilane (A-9), convicted and sentenced the appellants in the manner mentioned in the opening paragraph of this judgment against which these six appeals have been preferred.

8. Mr. Ashok Kumar Varma, learned counsel appearing for appellants Ganesh Banaj (A-1) & Sunil Bharti (A-2) in Cr.A.No.576/2016, would submit that only on the basis of seizure which has been made pursuant to the memorandum statements of Ganesh Banaj (A-1) & Sunil Bharti (A-2), they have been convicted, whereas memorandum statements have been recorded prior to their arrest which is inadmissible in evidence, as formal arrest is necessary before recording the memorandum statement. In that view of the matter, memorandum and seizure are of no help to the prosecution. Mr. Varma, learned counsel, would further submit that identification proceeding Ex.P-38 is inadmissible in evidence, as only Dhaneshwari Bai (PW-2) – sister of deceased Dhaneshwar Prasad Sahu, has identified the seized articles / ornaments to be belonging to the deceased, and other witnesses Narayani Sahu (PW-8) & Uma Sahu (PW-9) have not identified the ornaments, as such, it has not been established beyond doubt. Mr. Varma would also submit that in the FSL report, though human blood has been found, origin of the blood could not been ascertained. In that view of the matter, two appellants A-1 & A-2 are entitled for acquittal.

9. Mr. T.K. Jha, learned counsel appearing for appellant Satyendra Jangde (A-3) in Cr.A.No.391/2016, would submit that witnesses of memorandum & seizure have not supported the case of the prosecution and during the identification proceeding Ex.P-38, Dhaneshwari Bai (PW-2) has also not supported the case of the prosecution and other prosecution witnesses have also not supported the case of the prosecution, as such, the identification proceeding is admissible in evidence, as the police person was present at the time of identification in view of the statement of Dhaneshwari Bai (PW-2) in paragraph 9 of her evidence. Mr. Jha, learned counsel, would further submit that only human blood has been found on the shirt of appellant Satyendra Jangde (A-3) and therefore in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery, and such recovery does not help the case of the prosecution and it will be of no use to the prosecution. In that view of the matter, the FSL report is also not admissible against the present appellant, therefore, he is liable to be acquitted. Mr. Jha would rely upon the decisions of the Supreme Court in the matters of Gireesan Nair and others etc. v. State of Kerala (2023) 1 SCC 180 and Manoj Kumar Soni v. The State of Madhya Pradesh 2023 SCC OnLine SC 984.

10. Mr. Shikhar Sharma, learned counsel appearing for appellants Hemant Bhardwaj (A-4) & Gopi Banaj (A-5) in Cr.A.Nos.659/2016 & 604/2016, respectively, would submit that the prosecution has not been able to prove the offence against the present appellants beyond reasonable doubt, therefore, the present appellants are liable to be acquitted. He would adopt the submissions made by Mr. Varma and Mr. Jha and further submit that the prosecution witnesses have not at all supported the case of the prosecution against the present two appellants, therefore, they are liable to be acquitted.

11. Mr. Palash Agrawal, learned counsel appearing for appellant Dilchand Banaj (A-6) in Cr.A.No.566/2016, would submit that Keshram (PW-1) is related witness & interested witness and present appellant A-6 has been convicted only on the basis of the alleged recovery made pursuant to the memorandum statement which is a weak piece of evidence. In that view of the matter, appellant Dilchand Banaj (A-6) is liable to be acquitted. He would rely upon the decision of the Supreme Court in the matter of Mani v. State of Tamil Nadu AIR 2008 SC 1021.

12. Mr. Shreyansh Agrawal, learned counsel appearing for appellant Santosh Kumar Kesharwani (A-8) in Cr.A.No.361/2016, would submit that the trial Court has specifically recorded a finding in paragraph 45 of the judgment that A-8 has no information that gold & silver ornaments which he had purchased was the stolen property, but he has a reasonable ground to believe that the sold ornaments could be the stolen property, therefore, in light of the decision of the Supreme Court in the matter of Shiv Kumar v. State of Madhya Pradesh (2022) 9 SCC 676, he is entitled for acquittal.

13. Mr. Ashish Tiwari, learned Government Advocate, would submit that the prosecution has been able to bring home the offences against the appellants beyond reasonable doubt, therefore, the appellants have rightly been convicted and furthermore, the six accused persons A-1 to A-6 in furtherance of their conspiracy entered into the house of Dhaneshwar Prasad Sahu in the late night and robbed gold & silver ornaments after committing murder of four deceased persons namely, Dhaneshwar Prasad Sahu, Ganeshi Bai, Rameshwar & Suraj Bai and gold & silver ornaments robbed were duly identified by sister of deceased Dhaneshwar Prasad Sahu namely, Dhaneshwari Bai (PW-2) in the identification proceeding Ex.P-38 and immediately after five days of incident, on 12-9-2014, the robbed property has been recovered on the basis of memorandum and confession made by the accused persons / appellants A-1 to A-6 which they have failed to explain, therefore, they have rightly been convicted under Sections 412 & 120B read with Section 396 of the IPC and as such, their appeals deserve to be dismissed. Mr. Tiwari, learned State counsel, would further submit that conviction of Santosh Kumar Kesharwani (A-8) for offence under Section 411 of the IPC is also in accordance with law and therefore his appeal also deserves to be dismissed.

14. Mr. Dhiraj Kumar Wankhede, learned amicus curiae, has brought the correct factual and legal position qua the offence in question by making elaborate submission in this regard.

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

16. The first question is, whether the death of deceased persons Dhaneshwar Prasad Sahu, Ganeshi Bai, Rameshwar & Suraj Bai was homicidal in nature which the trial Court has answered in affirmative relying upon the postmortem reports Exs.P-53 to 56 proved by team of doctors namely, Dr. Pushpendra Vaishnav (PW-11), Dr. Roshan Krishna Dewangan (PW-12) & Dr. Narayan Sahu (PW-13) in which cause of death of the deceased persons was stated to be due to excessive bleeding and death was homicidal in nature, which in our considered opinion is the correct finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding and hold that death of deceased persons was homicidal in nature.

17. In the present case, date of offence is intervening night of 6-9-2014 and 7-9-2014 and on information given by Keshram Sahu (PW-1), on the place of incident, Dehati Nalsi Ex.P-1 was recorded by the police on 7-9-2014 at around 9.40 a.m. against unknown persons. Dehati morgue was registered vide Exs.P-2 to P-5 on 7-9-2014 at 9.45 a.m. for deceased Dhaneshwar Prasad Sahu, Ganeshi Bai, Rameshwar & Suraj Bai. FIR was registered against unknown persons on 7-9-2014 at around 11.45 p.m.. Postmortem on the dead bodies of the deceased persons was conducted on 8-9-2014 vide Exs.P-53 to P-56. On 12-9-2014, investigation was commenced. Memorandum statements of the appellants were recorded on 12-9-2014 vide Exs.P-8 to P-15 and on the basis of memorandum statements of the appellants (A-1 to A-6), following recoveries were made: -

18. The above seizure has been made in presence of Keshram (PW-1) & Dhaneshwari Bai (PW-2), and Dhaneshwari Bai (PW-2) has partly supported memorandum & seizure, whereas Keshram (PW-1) has fully supported memorandum & seizure. The incident is of 7-9-2014 and recovery has been made on 12-9-2014.

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

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

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

21. In order to make Section 27 of the Evidence Act applicable, two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must ‘relate distinctly’ to the fact discovered. In the present case, the incident occurred on 7-9-2014 and on 12-9-2014, as pointed out by the appellants (A-1 to A-6), pursuant to their memorandum statements, incriminating articles were recovered from the possession of A-1 to A-6. However, on behalf of Ganesh Banaj (A-1) & Sunil Bharti (A-2) in Cr.A.No.576/2016, it has been contended that on 12-9-2014, firstly, their memorandum statements were recorded and thereafter, they were arrested on the later part of the day at 12.15 a.m. in the night, therefore, the memorandum statement is inadmissible in evidence. The Supreme Court in a recent decision in the matter of Perumal Raja @ Perumal v. State, Rep. by Inspector of Police 2024 INSC 13 has clearly held that the expression “custody” under Section 27 of the Evidence Act does not mean formal custody; it includes any kind of restriction, restraint or even surveillance by the police. Their Lordships observed in paragraphs 25 & 26 of the report as under: -

“25. The pre-requisite of police custody, within the meaning of Section 27 of the Evidence Act, ought to be read pragmatically and not formalistically or euphemistically. In the present case, the disclosure statement (Exhibit P-37) was made by the appellant – Perumal Raja @ Perumal on 25.04.2008, when he was detained in another case, namely, FIR No. 204/2008, registered at PS Grand Bazar, Puducherry, relating to the murder of Rajaram. He was subsequently arrested in this case, that is FIR.No.80/2008, which was registered at PS Odiansalai, Puducherry. The expression “custody” under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police.

26. Reference is made to a recent decision of this Court in Rajesh & Anr. v. State of Madhya Pradesh 2023 SCC OnLine SC 1202, which held that formal accusation and formal police custody are essential pre-requisites under Section 27 of the Evidence Act. In our opinion, we need not dilate on the legal proposition as we are bound by the law and ratio as laid down by the decision of a Constitution Bench of this Court in State of U.P. v. Deoman Upadhyaya (1961) 1 SCR 14. The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. [See Judgments of the Constitution Bench of this Court in Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr., (2005) 2 SCC 673 and Union of India and Anr. v. Raghubir Singh (Dead) By Lrs., (1989) 2 SCC 754. Raghubir Singh (supra) and Central Board of Dawoodi Bohra Community (supra) have been subsequently followed and applied by this Court in Trimurthi Fragrances (P) Ltd. v. Government of N.C.T. of Delhi, 2022 SCC OnLine SC 1247.] This Court in Deoman Upadhyay (supra) observed that the bar under Section 25 of the Evidence Act applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was in custody at the time of making the confession. Further, for the ban to be effective the person need not have been accused of an offence when he made the confession. The reason is that the expression “accused person” in Section 24 and the expression “a person accused of any offence” in Sections 26 and 27 have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. The adjectival clause “accused of any offence” is, therefore, descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement.”

22. In that view of the legal position as held by their Lordships of the Supreme Court recently, the submission made by Mr. Varma, learned counsel appearing for A-1 & A-2, that the memorandum statements of A-1 & A-2 are not admissible as the same were made prior to their formal arrest, deserves to be rejected and it is accordingly, rejected.

23. The next submission made by Mr. Verma, learned counsel for A-1 & A-2, that Dhaneshwari Bai (PW-2) has only partly identified the stolen articles held by the deceased persons and further, Narayani Sahu (PW-8) & Uma Sahu (PW-9) – elder sisters of deceased Ganeshi Bai, have not identified gold & silver ornaments, therefore, the identification proceeding Ex.P-38 has no evidentiary value, deserves to be rejected, as Dhaneshwari Bai (PW-2) has clearly identified gold & silver ornaments owned and possessed by the deceased persons. The Supreme Court in the matter of Earabhadrappa alias Krishnappa v. State of Karnataka (1983) 2 SCC 330 has held that it is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings particularly articles of personal use in the family. As such, the submission on behalf of A-1 & A-2 that memorandum and pursuant seizure have not been proved in accordance with law and further, the ornaments have not been identified in a duly constituted test identification proceeding, has no merit and deserves to be and is accordingly rejected.

24. The next submission made on behalf of Mr. Jha, learned counsel for Satyendra Jangde (A-3), is that since the police was present at the time of identification as per the statement of Dhaneshwari Bai (PW-2) in paragraph 9 of her evidence, in light of the decisions of the Supreme Court in Manoj Kumar Soni (supra) and Gireesan Nair (supra), identification proceeding Ex.P-38 is inadmissible in evidence. In Gireesan Nair (supra), their Lordships of the Supreme Court have held that the conduct of the TIP, coupled with the hovering presence of the police during the conduct of the TIP vitiated the entire process. However, this is not the case here. In the case in hand, it is only the identification proceeding of gold & silver ornaments by the sister of deceased Dhaneshwar Prasad Sahu namely, Dhaneshwari Bai (PW-2). In that view of the matter, presence of police would not make the identification proceeding inadmissible in evidence.

25. Furthermore, human blood was found on T-shirt & full pant seized from Ganesh Banaj (A-1), human blood was found on T-shirt seized from Sunil Bharti (A-2), human blood was found on shirt seized from Satyendra Jangde (A-3) and blood was found on full shirt seized from Hemant Bhardwaj (A-4). The submission that since blood group could not be ascertained, the FSL report Ex.C-1 is inadmissible in evidence, deserves to be rejected in light of the decisions of the Supreme Court in Balwan Singh (supra). In Balwan Singh (supra), their Lordships of the Supreme Court have clearly held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood, and observed in paragraphs 23 & 24 as under: -

“23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.

24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

26. In that view of the matter, recovery of bloodstained articles from the possession of A-1 to A-4 is of great help to the prosecution in proving the case against them.

27. Now, the next submission on behalf of the appellants is that even if the seized articles were owned by the deceased persons and were found in possession of the appellants, they can only be convicted for offence under Section 379 of the IPC, but cannot be convicted for offence under Section 120B read with Section 396 of the IPC, whereas it is the case of the State / respondent that where murder and robbery are proved to have been integral parts of one and the same transaction and consequently, the presumption under Illustration (a) to Section 114 of the Evidence Act would be drawn that it is only the appellants who not only committed the murder of the deceased persons but also committed robbery of their gold and silver ornaments which form part of the same transaction, as the prosecution has led sufficient evidence to connect the appellants with the commission of the offence in question.

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

“114. Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume—

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;”

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

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

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

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

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

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

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

1. The nature of the stolen article,

2. the manner of its acquisition by the accused,

3. the nature of the evidence about its identification,

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

5. the place and circumstances of its recovery,

6. the length of the intervening period, and

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

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

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

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

37. In view of the aforesaid discussion, we are of the opinion that the prosecution has been able to prove the offence against appellants A-1 to A6 beyond reasonable doubt, as pursuant to the memorandum statements of A-1 to A-6, gold & silver ornaments have been seized vide Exs.P-21 to P-28 from their possession on 12-9-2014, which have been proved by witnesses namely, Keshram (PW-1) & Amritlal (PW-3) to memorandum & seizure and gold & silver ornaments were identified by Dhaneshwari Bai (PW-2) in the identification proceeding Ex.P-38 on 17-10-2014 conducted by T.R. Bhardwaj, Tahsildar, to be belonging to the deceased persons. The appellants have failed to give explanation about the ornaments which were recovered on 12-9-2014 i.e. within five days from the date of incident (7-9-2014) and have failed to explain the recent and unexplained possession of the robbed articles which itself is an incriminating circumstance. Moreover, clothes of A-1, A-2 & A-3 were found stained with human blood. In that view of the matter, the trial Court is absolutely justified in holding that A-1 to A-6 are authors of the crime and as such, the trial Court is justified in convicting them under Sections 412 & 120B read with Section 396 of the IPC (four times).

38. Now, the case of appellant Santosh Kumar Kesharwani (A-8) comes. It has been contended by Mr. Shreyansh Agrawal, learned counsel, that in the impugned judgment, paragraph 45, the trial Court itself has clearly recorded a clear-cut finding that the appellant (A-8) has no knowledge that the ornaments were stolen property, but the trial Court after recording the said finding further held that the appellant has reason to believe that the same was stolen property, therefore, he could not have purchased the same and proceeded to convict him under Section 411 of the IPC. Mr. Agrawal relied upon the decision of the Supreme Court in Shiv Kumar (supra) to bolster his submission in which their Lordships relying upon their earlier decision in the matter of Trimbak v. State of M.P.20 have observed in paragraphs 22, 23 & 24 as under: -

“22. In Trimbak v. State of M.P. (1953) 1 SCC 397 : AIR 1954 SC 39, this Court discussed the essential ingredients for conviction under Section 411 IPC. Mehr Chand Mahajan, J., in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove: (SCC p. 399, para 5)

“5. … (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property.”

23. When we apply the legal proposition as propounded to the present circumstances, the inevitable conclusion is that the prosecution has failed to establish that the appellant had the knowledge that articles seized from his possession are stolen goods. This essential element was not established against the appellant to bring home the charge under Section 411 IPC against him.

24. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the charge under Section 411 IPC. The prosecution’s evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, “you speak an infinite deal of nothing." [William Shakespeare, Merchant of Venice, Act 1 Scene 1]

39. Reverting to the facts of the present case, since the trial Court itself has recorded a finding in para 45 of judgment that appellant Santosh Kumar Kesharwani (A-8) has no knowledge about the property which has been purchased by him to be the stolen property as held by their Lordships of the Supreme Court, it is one of the ingredients of offence under Section 411 of the IPC and the essential ingredient of the offence is not established against the appellant, relying upon the decision of the Supreme Court in Shiv Kumar (supra), conviction of A-8 under Section 411 of the IPC is set aside and he is acquitted of the said charge. He is already on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.

40. Consequently, the criminal appeals preferred by Ganesh Banaj (A-1), Sunil Bharti (A-2), Satyendra Jangde (A-3), Hemant Bhardwaj (A-4), Gopi Banaj (A-5) and Dilchand Banaj (A-6) namely, Cr.A. Nos.576/2016, 391/2016, 659/2016, 604/2016 & 566/2016 are dismissed finding no merit, whereas, the criminal appeal preferred by Santosh Kumar Kesharwani (A-8) namely, Cr.A.No.361/2016 is allowed.

41. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence.

42. Before parting with record, we express our gratitude and appreciation to Mr. Dhiraj Kumar Wankhede, learned amicus curiae, who in short notice has prepared the case and made submission and written submission as well.