- (1.) I. The three appellants herein faced trial in the Court of Sessions Judge, Osmanabad, for the offences punishable under Section 302 read with Section 34 and Section 392 read with Section 34, IPC. They were charged of committing murder of one Baburao Nand Lagdive (hereinafter referred to as 'Baburao') at his field and robbing him of golden ear-rings and silver 'lingakar' worn by him in the early hours of 30th May, 1984. Both the accused and the deceased were the residents of village Shekapur. The learned Sessions Judge acquitted the accused of the charges under Sections 302 and 392 but found them guilty under Section 411, IPC and sentenced each of them to rigorous imprisonment for two years. On appeal by the State as well as by the accused, the High Court of Bombay (Aurangabad Bench) having found the accused guilty of offences punishable under Section 302 read with Section 34 and Section 392 read with Section 34, set aside the judgment of the Sessions Judge. The High Court sentenced them to life imprisonment for the offence of murder and five years rigorous imprisonment for the offence of robbery with the direction that both the sentences should run concurrently. The appeal of the State was allowed and the appeal filed by the accused was dismissed. Questioning the said judgment, the present appeals are filed. Leave to appeal was granted by this Court on 11-12-2000. The case rests on circumstantial evidence of recovery of ornaments worn by the deceased, pursuant to the information furnished by the accused to the police. The High Court pressed into service the presumption under Section 114(a) of the Evidence Act in support of its conclusion. It is the correctness of that view that falls for our consideration in this appeal. The prosecution case as revealed by the charge sheet and the record is that the murdered person Baburao aged about 65 years was having his field close to the village and he used to tether his cattle in the field and keep fodder heaps therein. That is why he used to sleep in the field. Deceased Baburao, a lingayat by caste used to wear golden ear-rings and silver lingakar on his person. On the night of the crucial day, he went to the field to sleep there. Early in the morning of 30th May, 1984, his unmarried daughter named Sharadbai went to the field to collect cow dung. She found her father lying dead near the heap of fodder. She rushed back to the house and informed her brother Ramakrishna (P.W. 2) and others. P.W. 2 and his family members went to the field and found Baburao lying dead with injuries on his ear, chest etc. and the golden ear-rings and silver lingakar missing from his person. One Guruling (P.W. 3) who was residing in a house close to the field of Baburao came to the spot at that time. On seeing the dead body, he mentioned to P.W. 2 and others that he saw accused Nos. 1 to 3 going towards the field of Baburao at about 3 a.m. when he woke up for drawing water. Keshav, P.W. 1 who was the police patel of the village then came to this spot and after knowing the facts went to the police station at Osmanabad and lodged the FIR (Exh. 12) which was recorded by P.W. 10 (PSI). On the basis of it, a case was registered under Sections 302 and 392, IPC. Thereafter, PSI Swami (P.W. 11) held inquest on the dead body of the deceased Baburao in the presence of two panchas. Having found a big stone lying at the spot of occurrence, he seized the same and it is marked as article No. 1. He sent the dead body of Baburao to Civil Hospital at Osmanabad on the same day. P.W. 8 conducted post-mortem examination between 4.30 and 5.30 p.m. The post-mortem report is Exh. 21. He opined that the injuries sustained by the deceased were ante-mortem and the deceased Babu Rao died of bilateral haeomothorax with heart injury, liver injury and hemoperitoneum with multiple injuries. We shall advert to the details of injuries a little later. In the meanwhile, the I.O. (P.W. 11) recorded the statements of P.Ws. 2, 3 and others. On 1-6-1984, he arrested accused No. 1 Limbaji and accused No. 2 Bapu. The investigation was then taken over by Shri Ramesh, Dy. S. P. (P.W. 12), Osmanabad. On 2-6-1984, P.W. 12 secured police custody remand of both the accused. On 7-6-1984 the first accused Limbaji gave information in the presence of Panchas, namely, Sidling (P.W. 9) and Shivaji (not examined) that he would point out a shop in which he had sold the golden ear-ring. This statement made by A-1 which is admissible under Section 27 of the Evidence Act is Exh. 24. Thereafter, A-1 took them and P.W. 12 to the shop of P.W. 5 who, at the instance of A-1, handed over the golden ear-ring marked as Article No. 7 and the same was seized under a panchanama Exh. 25. Again on 15-6-1984, A-1 furnished information regarding the place at which silver lingakar was kept. P.W. 12 along with the same panchas went to the spot which was by the side of Osmanabad-Shekapur road. The lingakar covered in a piece of cloth concealed beneath the stones under a Babul tree was shown. The memorandum of the statement of accused is marked as Exh. 26 and the seizure panchanama relating to 'lingakar' (article No. 8) is Exh. 27. On the same day, accused No. 2 gave information that he would point out two golden ear-rings kept buried under a mango tree situated in the fields of a nearby village. The statement was recorded under Exh. 28 and P.W. 12 along with the panchas went to the field and found the two golden ear-rings shown by A-2 and seized the same under a panchanama Exh. 29. They are Article No. 9. Accused No. 3, who was arrested on 11-6-1984, gave information on 20-6-1984 in the presence of same panchas that he would point out one golden ear-ring kept buried under a mango tree situated in a field at Shekapur. After recording the statement Exh. 30, he went to the spot shown by the accused Arun and recovered one golden ear-ring kept in a cloth and the same was attached under a panchanama marked as Exh. 31. It is Article No. 10. The seized articles, 7 to 10 were identified by P.W. 2 as those belonging to his deceased father. On 24-6-1984, P.W. 12 seized the shirt of accused No. 2 under the panchanama Exh. 16 and sent the same to the Chemical Examiner as it was found to contain blood. But the report Exh. 36 revealed that no blood was detected on the shirt.
(2.) There is no direct evidence as regards the involvement of accused in the murder and robbery of the deceased. As analysed by the Sessions Court and the High Court, the following circumstances were relied upon by the prosecution :- (i) Accused Nos. 1 to 3 were seen going together towards the field of Baburao in the night of occurrence; (ii) The deceased Baburao was wearing golden ear-rings and silver ring on his person and the same were found missing. His ear-lobes were found injured which indicated that in the process of removal of ear-rings such injuries were caused. (iii) The accused No. 1 Limbaji pointed out the shop of Vijaykumar P.W. 5 to whom he had sold one golden ear-ring belonging to Baburao and recovery of the same in consequence of the said information; (iv) recovery of silver lingakar in consequence of the information given by the said accused; (v) recovery of two golden rings on 15-6-1984 in consequence of the information by accused No. 2; (vi) recovery of one more ear-ring in consequence of the information given by accused No. 3 on 20-6-1984; (vii) human blood noticed on the shirt of accused No. 2. In so far as the last circumstance is concerned, the High Court disbelieved the seizure and that apart, the Chemical Examiner's report does not reveal that any blood was found thereon. With regard to the first circumstance, learned Sessions Judge held that it will not lead the prosecution anywhere, especially in view of the fact that, as stated by P.W. 3, there was a public lane behind his house which was used by the villagers. This is a reasonably possible view that could be taken. The High Court had given undue weight to this circumstance and we do not think that the High Court was justified in its approach. We are now left with the evidence of recovery of the ornaments of the deceased on the basis of the confessional statement of accused under Section 27 of Evidence Act, leaving apart for the time being the aspect concerning injuries inflicted on the deceased. The question then is whether there was discovery of incriminating articles in consequence of information received from the accused in custody and whether such discovery warrants a presumption to be drawn under Section 114 and if so, to what extent that presumption has to be drawn.
(3.) As the presumption under Section 114 of Evidence Act looms large in this case a brief discussion on the basic postulates and evidentiary implications of presumption of fact may not be out of place. A presumption of fact is a type of circumstantial evidence which in the absence of direct evidence becomes a valuable tool in the hands of the Court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of our Criminal Law. It is an inference of fact drawn from another proved fact taking due note of common experience and common course of events. Holmes J. in Greer v. US, [245 USR 559] remarked "a presumption upon a matter of fact, when it is not merely a disguise for some other principle, means that common experience shows the fact to be so generally true that Courts may notice the truth". Section 114 of the Evidence Act shows the way to the Court in its endeavour to discern the truth and to arrive at a finding with reasonable certainty. Under the Indian Evidence Act, the guiding rules for drawing the presumption are set out broadly in the section. Section 114 enjoins : "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 facts of the particular case." Having due regard to the germane considerations set out in the section, certain presumptions which the Court can draw are illustratively set out. It is obvious that they are not exhaustive or comprehensive. The presumption under Section 114 is, of course, rebuttable. When once the presumption is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a fact on which there is no direct evidence, the facts of the particular case should remain uppermost in the mind of the Judge. These facts should be looked into from the angle of common sense, common experience of men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not. Among the illustrations appended to Section 114 of the Evidence Act, the very first one is what concerns us in the present case : "The Court may presume - 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." Taylor in his treatise on The Law of Evidence has this to say on the nature and scope of the presumption similar to the one contained in Section 114(a) : "The possession of stolen property recently after the commission of a theft, is prima facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case, and this presumption, when unexplained, either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by the jury as conclusive. The question of what amounts to recent possession varies according to whether the stolen article is or is not calculated to pass readily from hand to hand. This presumption which in all cases is one of fact rather than of law, is occasionally so strong as to render unnecessary any direct proof of what is called the corpus delicti. Thus, to borrow an apt illustration from Maule, J., if a man were to go into the London Docks quite sober, and shortly afterwards were found very drunk, staggering out of one of the cellars, in which above a million gallons of wine are stored, "I think," says the learned Judge - and most persons will probably agree with him - "that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof was given that any particular vat had been broached, and that any wine had actually been missed.";