SONU @ SUNIL versus STATE OF MADHYA PRADESH

Citation: [2020] 4 S.C.R. 269 · Decided: 29-05-2020 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Appeal(s) allowed

cites 6 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
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
[2020] 4 S.C.R. 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 

Excerpt shown. Read the full judgment & AI analysis in Lexace.