Bablu @ Babbu @ Chhotu Tiwari v. State of Chhattisgarh, Through Station House Officer, Police Station

6. Mr. B.P. Singh, learned counsel appearing for the appellant, would submit that the impugned judgment of conviction recorded and sentences awarded are contrary to the facts and circumstances of the case and material available on record and therefore conviction and sentences imposed upon the appellant are liable to be set aside. He would further submit that the Executive Magistrate who conducted the test identification parade vide Ex.P-6 namely, D.C. Banjare has not been examined which is fatal to the case of the prosecution and furthermore, Ex.P-6 has not been proved by the prosecution witnesses in accordance with law and as such, the appellant cannot be convicted for offence under Section 302 of the IPC, and at the most, he can be convicted for the offence of theft, if any, but he cannot be convicted under Section 302 of the Cr.A.No.672/2012 IPC, as such, the impugned judgment is liable to be set aside and the appeal deserves to be allowed.

7. Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the State / respondent, would support the impugned judgment and would submit that it is a case of circumstantial evidence and it is a case where the appellant has firstly, a week before the offence, visited the house of the deceased and thereafter, on the fateful day, in absence of other family members, unauthorizedly, trespassed the house of the deceased, caused her death and looted her ornaments. He would further submit that pursuant to the memorandum statement (Ex.P-9) of the appellant, silver & gold articles were seized vide Ex.P-13 and same were subjected to identification in presence of the Executive Magistrate, which have been identified vide Ex.P-6 by Geeta Bai (PW-2) and the identification proceeding has been proved by Chimanlal Patel (PW-8). As such, it has clearly been established that it is the appellant who has not only unauthorizedly trespassed the house of the deceased, but also committed her murder and thereafter, robbed gold & silver ornaments wore / kept by the deceased, which have been recovered from the possession of the appellant pursuant to his memorandum statement, as such, the trial Court has rightly convicted the appellant herein, therefore, the appeal deserves to be dismissed. Cr.A.No.672/2012

8. 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.

9. The first question for consideration would be, whether the trial Court is justified in holding that the death of deceased Phulwa Bai was homicidal in nature?

10. The trial Court after relying upon the medical evidence of Dr. S.K. Soni (PW-3) and further relying upon the postmortem report Ex.P-8, came to the conclusion that the death of the deceased was homicidal in nature as the death occurred on account of rupture of right kidney and on account of cardio- respiratory arrest and shock. The finding recorded by the trial Court that death of deceased Phulwa Bai was homicidal in nature, is a pure 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. Even it has not been seriously questioned on behalf of the appellant.

11. The next question is, whether the appellant is the author of the crime?

12. The appellant has been identified by Geeta Bai (PW-2) – daughter of the deceased. In her statement before the Court Cr.A.No.672/2012 in paragraph 1, she has identified the appellant and furthermore, in paragraph 4, she has clearly stated that a week before the incident, the appellant had visited her house and he had given his phone number to her and also has taken tea in her house. As such, it is quite established that the appellant had earlier visited the house of the deceased & Geeta Bai (PW-2) and has developed some relation with the deceased and her family specially with Geeta Bai (PW-2).

13. In the postmortem conducted by Dr. S.K. Soni (PW-3) – Medical Officer, Community Health Centre, Balod, three injuries were noticed on the body of the deceased which state as under: -

1. Abrasion internal on neck at level of thyroid cartilage and left side of mastoid 2 x 2 c.m. & 1 x1 c.m. ½

2. Contusion 12 x 7 c.m. internal on the back of lumbar region right side with fracture of 9th, 10th, 11th ribs.

3. Abrasion internal on right knee (anterior) 2 x 3 c.m.

14. A careful perusal of the aforesaid statement of Medical Officer Dr. S.K. Soni (PW-3) would show that apart from scratch on neck of the deceased, left side rib bones – 9th, 10th & 11th were found fractured on account of which right kidney was found ruptured and on that account the deceased died on account of shock. Injury No.3 was on right knee, it was Cr.A.No.672/2012 scratch of 2 x 3 c.m.. As such, the deceased had the sign of struggle over the body which is apparent from the statement of Dr. S.K. Soni (PW-3).

15. The incident is of 14-9-2011 between 10.00 a.m. and 05.00 p.m. and information was received to the police station on 14- 9-2011 at 09.05 p.m.. The appellant was taken into custody and his memorandum statement was recorded vide Ex.P-9 on 15-9-2011 at 02.40 p.m. and silver anklet, silver chain & other gold articles were seized from the possession of the appellant on 15-9-2011 vide Ex.P-13 in presence of Vijay Kumar (PW- 4) & Chimanlal Patel (PW-8).

16. It is well settled law that under Section 27 of the 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-Emperor1, 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.”

17. Following the principle of law laid down in Pulukuri Kotayya 1 AIR 1947 PC 67 Cr.A.No.672/2012 (supra), their Lordships of the Supreme Court in the matter of Asar Mohammad and others v. State of U.P. 2 , 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.

18. 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 14-9-2011 between

10.00 a.m. and 05.00 p.m. and on 15-9-2011 at 03.45 p.m., as pointed out by the appellant, pursuant to his memorandum statement, incriminating articles were recovered from his possession. As such, recovery made from the appellant pursuant to the disclosure statement satisfies the requirement of 2 AIR 2018 SC 5264 Cr.A.No.672/2012 Section 27 of the Indian Evidence Act, 1872, and that being so, the statement made by the appellant under Section 27 vide Ex.P-9, is clearly admissible in evidence.

19. Now, the seized articles i.e. 11 in number have been identified by Geeta Bai (PW-2) – daughter of the deceased, who at the relevant point of time was staying with the deceased, though at the time of incident, she was not present in the house. Geeta Bai (PW-2) has been examined before the Court and she has clearly proved the identification proceeding of the seized articles vide Ex.P-6, as she was staying with her mother and in paragraph 23, she has clearly stated that at the time of identification, no police officer was present and she has identified gold and silver ornaments of her mother.

20. Not only this, Chimanlal Patel (PW-8) – panch witness, has also been examined who has not only proved memorandum statement and seizure, but also proved Ex.P-6 – identification proceeding of silver & gold ornaments. He has been subjected to lengthy cross-examination, but nothing has been extracted to hold that the identification proceeding has not been conducted in accordance with law, however, he has clearly stated that at that time, police persons were not present in the identification proceeding and identification proceeding was conducted by the Cr.A.No.672/2012 Executive Magistrate. In our considered opinion, the seized ornaments have been identified though the ornaments can be treated to be the ornaments in common use in the villages, but Geeta Bai (PW-2), being daughter of the deceased, has not committed any mistake in identifying the seized ornaments of the deceased and has clearly identified the ornaments i.e. silver anklet, chain, mangal sutra, etc., to be of her mother, as mentioned in Ex.P-6. The Supreme Court in the matter of Earabhadrappa alias Krishnappa v. State of Karnataka3 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 the appellant 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.

21. Now, the next submission on behalf of the appellant is that even if the seized articles were owned by the deceased and were found in possession of the appellant, he can only be convicted for offence under Section 379 of the IPC, but cannot be convicted for offence under Section 302 of the IPC, 3 (1983) 2 SCC 330 Cr.A.No.672/2012 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 appellant who not only committed the murder of the deceased but also committed robbery of her gold and silver ornaments which form part of the same transaction, as the prosecution has led sufficient evidence to connect the appellant with the commission of the offence in question.

22. 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;”

23. In order to draw an inference that fact in dispute has been Cr.A.No.672/2012 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 others4).

24. 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.

25. In the matter of Tulsiram Kanu v. The State5, 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.