LexLIMBAJI AND OTHERS versus STATE OF MAHARASHTRA
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A B c LIMBAJI AND OTHERS v. STATE OF MAHARASHTRA DECEMBER 14, 2001 [R.C. LAHOTI AND P. VENKATARAMA REDD!, JJ.] Evidence Act, I 872 : Section JJ4 with illustration(a)-Presumption-Accused prosecuted.for murder and robbery-No direct evidence for commission of offence-Recovery of incriminating articles of deceased at the instance of accused-Trial Court convicting under Sel'tion 4Jl /PC-However, Hi11h Court convicting accused for murder and robbery drawing presumption under Section I 14-0n appeal held: Evidence proved that accused conunitted th~ft of articles.from person of the deceased after causing bodily injury and accused not merely receivers of D stolen articles-Booty distributed between the accused persons-Shared com- mon intention to commit robbery-Hence presumption can be drawn with regard to robbery though not.for murder-Penal Code, I 860, Sections 302 and 394 read with 34 and 4 JI. E F G Appellants were prosecuted for offences under Sections 302 and 392 read with Secti~n 34 IPC for committing murder of one 'B' at his field and robbing him of his ornaments. According to prosecution, there was no direct evidence regarding the involvement of accused in the murder and robbery of deceased. However, the incriminating articles stolen by accused were recovered consequent to the information received from accused in custody. Trial Court acquitted the accused persons of the charges under Sections 302 and 392 but convicted them under Section 411 IPC. State as well as accused persons filed appeal. High Court drawing presumption nnder Section 114(a) of Evidence Act, found the appellants guilty of rob- bery and murder and accordingly set aside the order of the trial court. Hence the present appeal by accused. The question that arises for consideration is whether there was dis- covery of incriminating articles in consequence of information received from the accused in custody and whether such discovery warrants a pre- sumption to be drawn under Section 114 and if so, to what extent it has to H bedrawn. 672 LIMBAJI v. STATE Partly allowing the appeals, the Court 673 HELD : 1. In the instant case, the circumstances unerringly point to the involvement of the accused in the commission of theft of the articles from the persons of the deceased after causing bodily injury. However, in the peculiar circumstances of the case it would be unsafe to hold the accused guilty of murder assuming that murder and robbery had taken place as part of the same transaction. Therefore, the conviction of the accused persons under Section 302 read with Section 34 IPC is set aside. However, they are held guilty of the offence punishable under Section 394 read with Section 34 IPC to rigorous imprisonment for a period of five years and fine. (693-D; 694-C] 2. The case rests on circumstantial evidence of recovery of orna- ments 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 consideration in this appeal. The discovery of the ornament of the deceased on the basis of the confessional statement under Section 27 of the Evidence Act has been established. The next two questions, viz. whether the accused shall be deemed to be in possession of the articles concealed at various spots and whether such possession could be said to be recent possession have been answered in the affirmation. In the light of the confessional statement under S.27 and the case-law referred, the accused must be deemed to be in exclusive posses- sion of the articles concealed under the earth though the spots at which they were concealed may be accessible to public. The factual circum- stances contemplated by illustraction(a) to Section 114 are fulfilled. (675-F; 682-A; 684-E] Trimbak v. State of M.P., AIR (1954) SC 39, referred to. K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR (1962) SC 1788 and Pulukuri Kotayya v. King Emperor. AIR (1947) PC 67, relied on. 3.1. In the instant case, the presumption under Section 114 illustra- tion (a) could be safely drawn and the circumstance of recovery of the incriminating articles within a reasonable time after the incident at the places shown by the accused unerringly points to the involvement of the accused. Further, it is reasonable to presume that the accused commi
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