TMI Blog2002 (4) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... to 3 under Sections 364, a rigorous imprisonment for a period of ten years was imposed. For the offence committed by accused Nos.2 and 3 under Section 302 read with Section 34, IPC, they were awarded life imprisonment. For the offence committed under Section 392 by the first accused and accused Nos.2 and 3 for the offence committed by them under Section 392 read with Section 34, IPC, they were awarded rigorous imprisonment for ten years. For the offence under Section 201, IPC, the accused were awarded rigorous imprisonment for five years. The sentences awarded as above, except death sentence, were ordered to run concurrently. So far as the charge under Section 120B, IPC, is concerned, the learned Trial Judge held the same to be not proved against the accused. Thereupon, the accused filed Criminal Appeal Nos.410, 482 and 492 of 1997, which were taken up for disposal along with R. T. No.4 of 1997 for confirmation of the death sentence imposed on the first accused. A Division Bench of the High Court thought fit to set aside the conviction of the accused under Sections 364 and 201 of IPC. The conviction and sentence imposed by the Trial Court for the offence under Sections 302 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h very fast and stopped the same for verification. At that time, the Car was found driven by A-3 Mohammed Iqbal, and the other two, namely, A-1 Ezhil and A-2 Saravanan, were seated on the rear seat. When PW-4 questioned them and found their replies to be inconsistent, the Car Dicky was opened and a parcel (M.O.8) bearing a label A.K.Jamal Mohammed Ihamam Dharan-Madras was found. When further inquired, A-1 replied that he was coming from abroad and on being asked to show his Passport, a Passport (Ex.P15) bearing No.E.025019 dated 25.5.1988 was produced by him. On further finding that the photograph on the Passport did not match with either A-1 or anyone-else in the Car, the Dicky was said to have been again opened and searched, as a result of which a plastic bag was found concealed under the mat containing a blood stained bed-sheet, a pair of blood stained hawai chappals, a blood stained lungi, a blood stained broken knife and a blood stained cigar lighter. Further questioning resulted in the accused claiming that the third accused was the Driver while the second accused was the Cleaner and the Car was hired by the first accused. When M.O.8, a Car Board Box, was opened, number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , socks and some currency notes, etc. was prepared and the body was sent for post mortem examination. From the clothes of the deceased, a Tailor Mark New Gentle Tailor, Vadakarai was noticed and PW-26, who was put on the job, contacted PW-16, who not only recognized his own tailoring mark but also the person found in the photograph to be that of one Masukuthu Ali, who was working abroad. Thereafter, the father of the said person was contacted and he could recognize the photo to be of his own son. He was also taken to the Government Hospital at Tindivanam along with the relatives and it was confirmed that the deceased was his son Masukuthu Ali. The post mortem was said to have been conducted at 1.00 p.m. on 12.3.1994 by PW-22, and Ex.P35 report prepared by the Doctor. Thereafter the body was said to have been handed over to the relatives of the deceased. On 13.3.1994, PW-28 got a wireless message from Zam Bazaar Police Station, pursuant to which PW-25, attached to Olakkur Police Station, was sent to Zam Bazaar Police Station and PW-26 collected the whole file from Zam Bazaar Police Station relating to Cr. No.409 of 1994 and handed over the same to PW-28 at Tindivanam. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Investigating Officer, seized the knife and caused the blood stained articles to be sent for chemical examination through the Judicial Magistrate, Tindivanam, on 13.12.1994 and thereafter the investigation was transferred on 5.1.1995 to PW- 30, who was said to have got the left thumb impression of the deceased compared with those found in the other exhibits such as passport applications etc. After completing the investigation, a charge sheet was filed on 25.3.1996 against the accused for offences under Sections 120B, 364, 302, 392, 201 and 34, IPC. The learned Trial Judge as well as the High Court noticed the following incriminating circumstances lending credence to the prosecution case of commission of the offence by the accused and leading to the guilt of the deceased, namely, (1) that the three accused were together in the Car; (2) that the Car was entrusted to the accused persons, particularly A-3 as its Driver and A-2 as its Cleaner; (3) that the Car in which all the three accused were, when it was intercepted at Marina at Chennai, was found carrying the articles, which were proved to be that of the deceased as also those entrusted to him by others and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e car in the exclusive possession of the accused, about which there could be no reasonable or plausible explanation by any of the accused. Since the questions very much depend upon the drawl of presumptions engrafted in Section 106 and illustration (a) to Section 114 of the Evidence Act, over which only there has been serious contest by the learned counsel for the appellant, it is appropriate to notice the principles governing the same, before undertaking any consideration of the justification to apply them to the facts of the case. The entire case law on the subject has been extensively reviewed by this Court in a decision reported in Sanjay Alias Kaka vs State (NCT of Delhi) [2001(3) SCC 190] authored by one of us (R.P.Sethi, J) and it was held that courts can draw presumptions under Section 106 and illustration (a) to Section 114 of the Evidence Act, and to attract and apply illustration (a) to Section 114 the nature of evidence adduced must be seen to find, among other things the important time factor . Though no standard time limits can be fixed to determine whether the possession is recent or otherwise, each case must be judged on its own facts and in a case where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether in the car when they were intercepted, interrogated and articles seized from the dickey of the car stand proved by the very admissions made in the written statement filed by the third accused under Section 233 (2) of the Cr.P.C. and also stated to have been adopted by the other accused. The presence of all the accused in the car when the same was intercepted and interrogated on the Marina at Chennai with all the articles recovered, in the dickey of the car have been found established by other evidence, even dehors the written statement. The further facts found proved are that the dickey of the car contained seven parcels of which one was bearing label A.K. Jamal Mohammed Thamam Dharam-Madras M.O.8. PW-15 Fazhil Mohammed, who claimed to know the deceased and working in abroad in 1994, has stated that he sent the parcel and the articles in the parcels M.O.96 and M.O.97, identified by him to be the very same carried in the name of A. Faizal. All the seven parcels were found to contain clear cut address slips and noticed even in the mahazar Ex.P16 prepared by PW-4 and the First Information Report Ex.P17. PW-23, S.M. Jinnah, was, at the relevant point of time, working in Saud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2 first saw the dead body and by about 2.30 p.m. the complaint Ex.P1 was prepared by the village Administrative Officer and lodged with Olakkur Police Station. On receipt of the information from the Sub Inspector, the Inspector of police, Tindivanam, went to the said Police Station at about 3.20 p.m. and after holding inquest and the usual and necessary formalities sent the dead body to the Government hospital by 11 p.m. The autopsy was conducted by PW-22, the Government Doctor at 1 p.m. on 12.3.94 and the post-mortem report Ex.P35, as well as final opinion marked as Ex.P33 (a) was prepared showing that injury No.1 sustained by the deceased could be fatal and cause death and could have been caused by a stab inflicted with the knife M.O.12. During the course of trial, the Doctor opined that the deceased might have died 48 hours prior to the autopsy and the same helped the Courts to fix the death somewhere prior to 1 p.m. on 10.3.94 or within 12 hours prior to that. The death indisputably was a homicidal death. Though, the learned counsel for the appellants attempted to discredit the evidence by pointing out some minor variations and contradictions, we are of the view that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The appellants in this case have miserably failed to explain their lawful possession of those articles with them that really belonged to and were in the possession of the deceased when he landed at the airport at Chennai. Consequently, it was legitimate for the courts below, on the facts and circumstances of this case, to draw the presumption not only of the fact that they were in possession of the stolen articles after committing robbery but also committed the murder of the deceased, keeping in view the proximity of time within which the act of murder was supposed to have been committed and body found and the articles recovered from the possession of the accused. The conclusions, in this regard, concurrently recorded by both the courts below are unassailable and do not call for our interference, within the area permissible for interference in an appeal entertained under Article 136 of the Constitution of India only wherein it is shown that on the proved facts wrong inference of law has been drawn or the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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