TMI Blog2011 (6) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2002 in Sessions Case No. 4 of 2002 (14/2000) for the offences punishable under Sections 395, 396 and 397 of the Indian Penal Code, 1860 (hereinafter called the IPC) 2. The facts and circumstances giving rise to this case are as under: A. Santosh Jagwayan (PW.13) lodged an FIR on 17.12.1996 at 8.30 A.M., that in the intervening night between 16th and 17th December, 1996 on hearing the noise, he sent his Chowkidar Gopal Nepali (deceased) to the roof of his house. Gopal Nepali went upstairs and opened the gate of the roof and found that 8 to 10 accused persons were trying to enter into the house by breaking upon the door of the roof. They immediately fired shot at Gopal Nepali (deceased) and entered into the house. The accused person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther accused persons. After completing the investigation charge sheet was filed against 9 accused persons including the two Respondents. As all of them pleaded not guilty, they were put to trial for the offences punishable under Sections 395, 396 and 398 IPC. E. In the Sessions trial prosecution examined 34 witnesses in support of its case. The ornaments and stolen articles were identified by Shashi Devi (PW.12) and Santosh Jagwayan (PW.13). The trial court vide judgment and order dated 2.11.2002 convicted 8 accused including the two Respondents. One accused named Ram Krishan, died during the trial. All of them stood convicted under the provisions of Sections 395, 396 and 397 IPC. All the accused were awarded punishment to undergo life i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some of the looted property had been made on the basis of the disclosure statements made by the said Respondents. The law provides for a presumption that they had participated in the crime and, therefore, the High Court has wrongly acquitted the said accused and thus, the appeal deserves to be allowed. 4. On the contrary, Shri Altaf Hussain, learned Counsel appearing for the said two accused, has vehemently opposed the appeal contending that mere recovery of looted property on the disclosure statement of the accused, is not enough to bring home the charges of offence of loot or dacoity, when the recovery is made after expiry of a considerable period from the date of incident and particularly when the nature of the looted property is such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan, AIR 1956 SC 54, that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. 7.3. In Tulsiram Kanu v. State, AIR 1954 SC 1, this Court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act 1872 has to be drawn under the 'important time factor'. If the ornaments in possession of the deceased are found in possession of a person soon after the mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overies from them at their instance by itself was a sufficient circumstance on the very next day of the incident which clearly went to show that the accused persons had joined hands to commit the offence of robbery. Therefore, recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. 7.6. In Ronny Alias Ronald James Alwaris and Ors. v. State of Maharashtra, AIR 1998 SC 1251, this Court held that apropos the recovery of articles belonging to the family of the deceased from the possession of the Appellants soon after the robbery and the murder of the deceased remained unexplained by the accused, and so the presumption under Illustration (a) of Section 114 of the Evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime were recovered. Thus, it is evident that recovery on the disclosure statements of either of the Respondents/accused persons was not in close proximity of time from the date of incident. More so, recovery is either of cash, small things or vehicles which can be passed from one person to another without any difficulty. In such a fact situation, we reach the inescapable conclusion that no presumption can be drawn against the said two Respondents/accused under Section 114 Illustration (a) of the Evidence Act. No adverse inference can be drawn on the basis of recoveries made on their disclosure statements to connect them with the commission of the crime. 9. The instant appeal has been prepared by the State against the judgment and order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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