SONU @ SUNIL v. STATE OF MADHYA PRADESH

Judgment

4 S.C.R. 269 269 SONU @ SUNIL v. STATE OF MADHYA PRADESH (Criminal Appeal No.57 of 2013) MAY 29, 2020 [SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.] Penal Code, 1860: ss.394, 460, 302 r/w s.34 – Robbery and murder – Five accused including appellant – Case based on circumstantial evidence – Prosecution case was that the victim- deceased resided alone in his house – On 9.9.2008, son of the deceased (PW- 9) received information that his father had not opened the door on that day – PW-9 went to his father’s residence and found him dead – Certain articles were missing from the almirah in the house of deceased – On the basis of investigation, four accused and appellant were charged with the offence of robbery and murder – Appellant was charged under s.397 and under ss.11 and 13 of Madhya Pradesh Adjiniyam also – Knife and other valuable articles were recovered from the co-accused – Appellant was arrested two months after the incident and a mobile phone was recovered from him – Courts below relied upon the evidence of PW-5 who allegedly overheard the conversation between the five accused regarding conspiracy to commit robbery in the house of deceased – Conviction of all the accused including appellant – On appeal, held: Appellant, along with the others, were charged under the offences with the aid of s.34 – The common intention must be for the very offence which the accused is charged with – The finding by trial court in this case was that there was a criminal conspiracy hatched to commit robbery – Though there was a charge of causing death by strangulation, the finding was that the death was caused as a result of the injuries inflicted with the knife – The knife was, apparently, carried and wielded by the co-accused – In fact, the recovery of the knife was also effected from co- accused – Thus, guilt of appellant was based only on the recovery of the mobile phone where the recovery itself suffered from suspicion and doubt – There was discrepancy about the number of mobile missing and mobile recovered from the appellant – PW-5 had not taken name of the appellant – Essentially, evidence of PW-5 and the recovery was relied on to hold that the chain of 269 A B C D E F G H 270 SUPREME COURT REPORTS [2020] 4 S.C.R. circumstances was complete – Appellant was not mentioned as one of the persons who used to visit the deceased’s father though three of the other accused were named – Moreover, no Test Identification Parade was conducted – Thus, appellant is entitled to benefit of doubt – Conviction of appellant set aside – Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam, 1981 – ss.11 and 13 – Evidence Act, 1872 – s.114. Allowing the appeal, the Court HELD: 1.1 In the case of recovery of an article from an accused person when he stands accused of committing offences other than theft also, (in this instance murder), the tests are: The first thing to be established is that the theft and murder forms part of one transaction. The circumstances may indicate that the theft and murder must have been committed at the same time. But it is not safe to draw the inference that the person in possession of the stolen property was the murderer; the nature of the stolen article; the manner of its acquisition by the owner; the nature of evidence about its identification; The manner in which it was dealt with by the accused; the place and the circumstances of its recovery; the length of the intervening period; ability or otherwise of the accused to explain its possession. In this case, applying the tests, it is found that the appellant has not given any explanation as to how he came by possession of the mobile. He has no explanation in his questioning under Section 313 of the Code of Criminal Procedure, 1973; As far as length of the intervening period is concerned, recovery was effected on 02.11.2008 whereas the date of the incident is 08.09.2008. That means, a gap of less than two months. The arrest of the appellant was effected on 01.11.2008, i.e., a day before the recovery; as far as nature of the article is concerned, it was a mobile phone which was capable of being transferred by mere delivery. No doubt, it would contain a sim which may connect the phone with the previous owner or person in possession. It is also common knowledge, however, that it may be open to the person, who possesses the mobile, to equip it with a new sim. It is not in dispute that the two mobile phones were kept and they were not mixed with any other similar looking mobile phones. [Paras 28, 29][290-D-H; 291-A-E] A B C D E F G H SONU @ SUNIL v. STATE OF MADHYA PRADESH 271 Baiju v. State of Madhya Pradesh AIR 1978 SC 522 : [1978] 2 SCR 594; Shri Bhagwan v. State of Rajasthan AIR 2001 SC 2342 : [2001] 3 SCR 656 – relied on.

1.2 The appellant, along with the others, were charged under the offences with the aid of Section 34 of the IPC. The finding by the Trial Court in this case is that there was a criminal conspiracy hatched to commit robbery. As far as Section 34 is concerned, it proclaims the principle of vicarious criminal liability. The soul of the Section, and the principle which underlies criminal liability for the acts of another therein, is the shared intention or the common intention to commit an offence. The common intention must be for the very offence which the accused is charged with. In this case, that though there is a charge of causing death by strangulation, the finding is that the death was caused as a result of the injuries inflicted with the knife. The knife was, apparently, carried and wielded by the co-accused. From him, in fact, the recovery of the knife was also effected which becomes all the more reason to conclude that it will be totally unsafe to convict the appellant of the charges of which he is found guilty including Section 302 of the IPC based only on the recovery of the mobile phone where the recovery itself suffers from suspicion and doubt. Thus, in this case, as far as the appellant is concerned, the evidence against him essentially consists of the recovery of the mobile phone and there is discrepancy about the number. PW5 has not taken the name of the appellant. Essentially evidence of PW5 and the recovery is relied on to hold that the chain of circumstances is complete. The appellant is not mentioned as one of the persons who used to visit the deceased’s father though three of the other accused were named. No Test Identification Parade was conducted for the accused. In the facts of this case, it would not be safe to uphold the conviction of the appellant. He would be entitled to the benefit of doubt. [Paras 30, 34, 35][291- F-H; 292-A-B; 294-D-F] Hardev Singh and others v. State of Punjab AIR 1975 SC 179; Arun v. State by Inspector of Police, Tamil Nadu (2008) 15 SCC 501 : [2008] 17 SCR 279; Dharam Pal v. State of Haryana (1978) 4 SCC 440 : Brijlal Pd. Sinha v. State of Bihar (1998) 5 SCC 699 : [1998] 3 A B C D E F G H 272 SUPREME COURT REPORTS [2020] 4 S.C.R. A B C SCR 529; Girija Shankar v. State of U.P. (2004) 3 SCC 793 : [2004] 2 SCR 73 – relied on.