RAJ KUMAR@ RAJU versus STATE (NCT OF DELHI)

Citation: [2017] 1 S.C.R. 462 · Decided: 20-01-2017 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Case Partly allowed
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Judgment (excerpt)

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[2017] I S.C.R. 462 
RAJ KUMAR@ RAJU 
v. 
STATE (NCT OF DELHI) 
(Criminal Appeal No.1460 of201 I) 
JANUARY 20, 2017 
(RANJAN GOGOi AND ASHOK BHUSHAN, JJ.] 
Penal Code, 1860: s.302 rlw s.34, s.411 - Conviction based 
on circumstantial evidence - Last seen theory - On the fateful 
afternocn, the deceased was found dead and her ornaments were 
missing -Appellant and other accused were present in the house of 
the deceased in the morning - Prosecution witnesses deposed that 
on the same day, appellant and other accused were seen moving 
around in the neighbourhood looking perplexed - Appellant was 
apprehended after few days and ornaments belonging to deceased 
were recovered from him - Conviction of appellant uls.302 and 392 -
Held: The circumstance that the accused persons were seen in the 
vicinity of the neighbourhood of the crime little before the same 
was committed, by itself, would not lead to any condusion consistent 
with the guilt of the accused - The said circumstance, if coupled 
with the recovery of the ornaments of the deceased from the 
possession of the accused, at best, create a highly suspicious 
situation; but beyond a strong suspicion nothing else in the absence 
of any o~her circumstances to suggest the involvement of the accused 
in the offences alleged - Even with the aid of the presumption u/s.114 
of the Evidence Act, the charge of murder cannot be brought home 
unless there is some evidence to show that the robbery and the 
murder occurred at the same time i.e. in the course of the same 
transaction - Courts below erred in holding the accused guilty for 
the said offence - However, on the basis of the presumption 
permissible under Illustration (a) of s.114 of the Evidence Act, 
conviction of appellallf uls.392 is well founded - Conviction uls.392 
is upheld while conviction u/s.302 is set aside - Evidence Act, 1872 -
s.114, Illustration (a). 
Partly allowing the appeal, the Court 
HELD: 1.1 There are two material circumstances which 
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were proved by the prosecution. Firstly, that in the night prior to 
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RAJ KUMAR @ RAJU v. STATE (NCT OF DELHI) 
the incident i.e. on 11'" September, 1991, the ·accused were 
present in the house; and secondly that on 16" September, 1991 
from the possession of the accused persons recovery of gold 
ornaments was made which belonged to the deceased. Such 
possession was not uplained by the accusecj. Even if the court 
is to accept the evidence of P.W.12 that in the morning of the day 
of the incident the witness had seen the accused in the 
neighbourhood in a perplexed state, notwithstanding the 
contradictions and inconsistencies in the said evidence at the 
highest, another circumstance could be added to the above two, 
namely, that the accused persons were seen in the neighbourhood 
in the morning of the incident. In this regard, P.W.S and P.W.7 
deposed that they had last seen the accused person in the early 
morning of the date of the occurrence and that they were going 
away to some other place. Even if the evidence of P. W.12 is to· be 
accepted, all it can be said is that the evidence of the said witness 
read with the evidence of P. W.S and P. W. 7 disclose that t-he 
accused persons were seen in the vicinity of the neighbourhood 
of the crime little before the same was committed. By itself, the 
said circumstance cannot lead to any conclusion consistent with 
the guilt of the accused. [Paras 9, 11) [466-E-F; 467-F-G) 
1.2 The said circumstance, if coupled with the recovery of 
the ornaments of the deceased from the possession of the accused, 
at best, create a highly suspicious situation; but beyond a strong 
suspicion nothing else would folio~ in the absence of any other 
circumstance(s) which could suggest the involvement of the 
accused in the offence/offences alleged. Even with the aid of tbe 
presumption under Section 114 of the Evidence Act, the charge 
of murder cannot be brought home unless there is some evidence 
to show that the robbery and the murder occurred at the same 
time i.e. in the course of the same transaction. No such evidence 
is forthcoming. However, on the basis of the presumption 
permissible under Illustration (a) of Section 114 of the Evidence 
Act, it bas to be held that the conviction of the accused appellant 
und<;r Section 392 IPC is well founded. Consequently, the 
prosecution failed to bring home the charge under Section 302 
IPC against the accused and be is acquitted of .the said offen\!e. 
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