Bachchi Singh & Another vs The State (Nct Of Delhi)
2010 Latest Caselaw 3537 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment Reserved on: 21.07.2010
                                    Judgment Pronounced on: 30.07.2010


+             Crl.A. 261/1997


BACHCHI SINGH & ANOTHER                                 .....Appellants



                                    - versus -


THE STATE (NCT OF DELHI)                                .....Respondent


Advocates who appeared in this case:
For the Appellant       : Mr Krishan Mahajan
For the Respondent      : Mr Sanjay Lao, APP



CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

      1.    Whether Reporters of local papers may
            be allowed to see the judgment ?                      Yes

      2.    To be referred to the Reporter or not?                Yes

      3.    Whether the judgment should be reported in Digest?    Yes

V.K. JAIN, J.

1. This appeal is directed against the judgment dated

23rd April 1997, and Order on Sentence dated 26th April 1997,

whereby the appellants were convicted under Section 302 and

392 of IPC read with Section 34 thereof, and were sentenced to

undergo imprisonment for life and to pay fine of Rs 1000/-

each or to undergo SI for one month each in default under

Section 302 IPC and were further sentenced to undergo R.I. for

three years each under Section 392/34 of IPC. The co-

accused of the appellants, namely Ramesh and Hira Singh

were convicted under Section 411 of IPC and were sentenced

to undergo R.I. for three years each.

2. Deceased Dr. R.N. Berry and his wife Rama Berry,

who were residing in House No. 145 Jor Bagh, New Delhi, were

found murdered in the morning of 2nd February 1987. The

appellant Gopal Singh was at that time working as a domestic

servant with them whereas the appellant Bachchi Singh, who

is the brother of Gopal Singh, was an ex servant of Dr Berry

and was removed from service, when he was found committing

theft from the house. The case of the prosecution is that the

appellants and their co-accused were party to a criminal

conspiracy to commit murder of Dr R.N. Berry and his wife

Smt. Rama Berry and commit robbery of valuables from their

house and it was pursuant to that conspiracy that the

appellants committed murder of the deceased persons in the

night intervening 1st/2nd February 1987 and also committed

robbery of a number of articles from the house of Berrys.

3. There is no ocular evidence of the appellants having

committed the murder of Berrys and robbery of valuables from

their house. The case of the prosecution against them rests

on the following circumstantial evidence:-

(i) The appellant Gopal Singh was working as a

substitute domestic servant with Berrys at the time the

murders and robbery were committed.

(ii) The appellant Gopal Singh and PW-8 Pratap Singh,

another domestic servant of the Berrys, were the only persons

present in the house in the night intervening 1st/2nd February

1987 and since there was no evidence of any forced entry in

the house, the murders and robbery could not have been

committed without either Pratap Singh or the appellant Gopal

Singh being a party to it.

(iii) The appellant Gopal Singh was found awake and

standing when PW-8 Pratap Singh got up in the night

intervening 1st/2nd February 1987 and when questioned as to

why he was standing, he told PW-8 that he would smoke and

take a stroll.

(iv) Burnt pieces of cigarette were found by police in the

house of Berrys.

(v) The appellant Bachchi Singh had earlier been found

committing theft in the house and was removed from service

by Dr Berry.

(vi) While in police custody, the appellant Gopal Singh

disclosed to the police that certain articles, which later on

were found to be articles stolen from the house of Berrys at

the time of their murder, had been kept by him in the quarter

of his co-accused Ramesh Chand.

(vii) The stolen articles were recovered from the

possession of both the appellants soon after the theft.

Circumstance No. (i)

4. PW-8 Pratap Singh, who was the other domestic

servant employed by Berrys and was in their employment for

about 45 years before they were murdered came in the witness

box as PW-8 and stated that since the other domestic servant

in the house namely Balwant Singh had gone on leave, the

appellant Gopal Singh was working in his place. In his

statement under Section 313 of Cr.P.C. the appellant Gopal

Singh admitted that he was working as domestic servant with

Berrys at House No. 145, Jor Bagh, for about two months.

Thus it is an admitted fact that the appellant Gopal Singh was

working with Berrys when this incident took place.

Circumstance No. (ii), (iii) and (iv)

5. Pratap Singh, when he came in the witness box,

stated that after taking meal at about 9.30/10 PM he and

Gopal Singh had gone to sleep after locking the gallery. Thus,

according to him no one other than he, the appellant Gopal

Singh and Berrys were present in the house that night. At

about 12 in the night, he woke up since he was having cough.

He saw Gopal Singh standing and asked him as to why he was

standing. Gopal Singh told him that he would smoke and take

a stroll. When he got up at 7 AM and unlocked the gallery, he

found that the gallery door, which ordinarily used to be bolted,

was open from inside. During his cross-examination, no

suggestion was given to him, by the appellant Gopal Singh,

that the witness had not found him standing at 12 in the night

and he had not told him that he would smoke and take a

stroll. No suggestion was given to him that the kundi of the

gallery was not usually bolted from inside and that on 2nd

February 1987 the bolt of the gallery door was not found open

from inside. We see no reason to disbelieve Pratap Singh in

this regard, particularly when the appellant does not claim

any enmity or previous ill-will between him and the witness. It

is not the case of the appellant Gopal Singh in his statement

under Section 313 Cr.P.C. that someone other than him,

Pratap Singh and late Berrys was also present in the house

during that night. It is also not his case that the house was

not locked from inside on that day. As regards locking of the

gallery, he himself stated that Pratap Singh used to lock the

gallery every day.

PW-23 Sardar Jaswant Singh, who investigated this

case, has stated that when he inspected the spot on 2nd

February 1987, he noticed some burnt cigarette pieces lying at

various places such as Room No.2, stairs, kitchen and roof

and he seized them vide memo Ex. PW 3/C. In reply to a

Court Question, he stated that there was no sign of forced

entry of anyone in the house as no bolt door or window were

found broken. He was emphatic that he had investigated the

matter from this point of view. It, therefore, stands proved

that PW-8 Pratap Singh and appellant Gopal Singh were the

only persons present in the house of Berrys in the night

intervening 1st/2nd February 1987 and there was no forced

entry in the house during that night. Therefore, these

circumstances also stand proved during trial.

Circumstance No. (v)

6. PW-7 Mrs Uma Chopra, daughter of the deceased,

stated that the appellant Bachchi Singh, who had worked with

her parents for about a year or so, was caught stealing on

some occasion and was turned out by her parents. PW-8

Pratap Singh stated that Dr Berry had seen the appellant

committing theft from the almirah and, therefore, had

terminated his services. In cross-examination, he stated that,

in his presence, Dr Berry had asked the appellant Bachchi

Singh as to why he had done so. He further stated that

Bachchi Singh used to have keys of the almirah and used to

take out goods from the almirah, since Dr Berry had faith in

him. The trial court has believed the deposition of PW-8

Pratap Singh in this regard and we see no reason to take a

different view particularly when his deposition also stands

corroborated by the deposition of the daughter of the

deceased. Thus, this circumstance also stands duly proved

against the appellant Bachchi Singh, who, admittedly is the

brother of the appellant Gopal Singh.

Circumstance No. (vi)

7. PW-18 SI O.P. Singh has stated that on 2nd February

1987 the appellant Gopal Singh was handed over to SI J.P.

Sharma, by SHO Police Station Lodhi Colony, for the purpose

of his interrogation. He further stated that during

interrogation, the appellant Gopal Singh made disclosure

statement Ex. PW18/A and stated the he could get the

property recovered. PW-20 H.C. Mahender Singh corroborated

the deposition of PW-18 regarding the disclosure statement

made by the appellant Gopal Singh and stated that when he

was interrogated, Gopal Singh, on being handed over to SI J.P.

Sharma, disclosed that these articles had been kept by him in

a bag, in the premises of his co-accused Ramesh and that he

could get the same recovered from that premises. PW-22 SI

J.P. Sharma stated that when the appellant Gopal Singh was

thoroughly interrogated, he made the disclosure statement Ex.

PW 18/A and stated that he could get the property recovered.

8. The disclosure statement, alleged to have been made

by the appellant Gopal Singh, was challenged by the learned

counsel for the appellant on the ground that since he had not

been arrested before he made the disclosure statement, it is

not admissible in evidence under Section 27 of the Evidence

Act. His contention was that only a disclosure made after

arrest or remand of the accused by the Court to police custody

would be admissible under Section 27 of the Act.

9. Section 27 of Evidence Act, which is in the nature of

a proviso to Section 26 of the Act, to the extent it is relevant

provides that when any fact is deposed to as discovered in

consequence of information received from a person accused of

any offence, in the custody of a police officer, so much of such

information, whether it amounts to a confession or not, as

relates distinctly to the fact thereby discovered, may be

proved. Thus the requirement of law is that before the fact

discovered in consequence of an information received from an

accused is allowed to be proved, he (accused) needs to be in

the custody of a police officer.

10. In State of U.P. v. Deoman Upadhyaya 1960

Cri.L.J. 1504, Supreme Court inter alia, observed as under:-

"When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of S.27 of the Indian Evidence Act."

In the context of Section 439 of the Code of Criminal

Procedure, Supreme Court, in Niranjan Singh v. Prabhakar

Rajaram Kharote 1980 Cri.L.J. 426 inter alia observed as

under:-

"When is a person in custody, within the meaning of Section 439, Cr.P.C.? When he is in duress either because he is held by the Investigating Officer or other police or allied authority or is under the control of the Court having been remanded by Judicial order, or having offered himself to the Court‟s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive

power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide-and- seek niceties sometimes heard in Court that the police have taken a man into formal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law.... Custody, in the context of Section 439 (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court."

In Lay Maung v. Emperor AIR 1924 Rang 173, the

Court inter alia observed as under:-

"As soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore, in "custody" within the meaning of Sections 26 and 27 of Evidence Act"

In Haroon v. Emperor AIR 1932 Sind 1490 and

Pharho Shahli v. Emperor AIR 1932 Sind 201 it was pointed

out that even indirect control over the movements of suspects

by the police would amount to "police custody" within the

meaning of that section. In Gurdail Singh v. Emperor AIR

1932 Lah 609 also the same principle was emphasised and it

was observed that there may be police custody without a

formal arrest.

In Laxmi Narayan v. State of Rajasthan 1983 WLN

497 Rajasthan High Court noting that custody is not

equivalent to arrest was of the view that that word „custody‟ in

Section 27 does not necessarily amount to detention or

confinement and if the accused is in surveillance, it amounts

to custody.

In Maharani v. Emperor AIR 1948 All 7 it was held

that:-

"The word „custody‟ in Section 26 or 27, Evidence Act, does not mean formal custody, but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction."

In Pharho Shahwali Vs. Emperor : AIR 1932

Sind 201, the High Court observed as under:

"The word "custody" has not been defined by the Act. But the ordinary sense is sufficiently clear. Two things there must be. First, there must be some limitation imposed upon the liberty of the confessor. Second, this limitation must be imposed either directly or indirectly by the police."

11. Since the appellant Gopal Singh was under the

control of police when he made the disclosure statement, he

having been detained and SI J.P. Sharma having been asked

to interrogate him thoroughly, it is difficult to accept that he

was not in the custody of a police officer at that time. It is

difficult to say that the person, who is a suspect in the eyes of

the police, is under the physical control of the police officer

and is being interrogated by them is not in the custody of the

police officer at the time of his interrogation. Despite his

having not being formally arrested, he definitely was in the

custody of a police officer at the time he was interrogated. In

any case, if a person voluntarily going to a police makes a

confessional statement and gives information envisaged by

Section 27 of Evidence Act he comes in the custody of the

police officer as soon as the incriminating statement is made

by him. Therefore, the disclosure statement Ex. PW18/A, to

the extent it relates to the fact that the certain articles had

been kept by him in the house of Ramesh is admissible in

evidence under Section 27 of Evidence Act.

Circumstance No. (vii)

12. PW-18 SI O.P. Singh has stated that a bunch of keys

was recovered from the personal search of the appellant Gopal

Singh and when they went to the house of his co-accused

Ramesh along with the appellant Gopal Singh, a briefcase

lying inside the premises of Ramesh was opened using the

keys recovered from the appellant Gopal and besides some

cash, one ring, one purse Ex. P-16 and certain documents

including receipt Ex. PW12/A and statement of bank accounts

Ex. PW13/A1 to A5 and PW13/B and Cheque Book Cover Ex.

PW 13/FG were found in that briefcase. The school leaving

certificate of the appellant Ex. PW18/E and his Junior High

School mark sheet Ex. PW18/F were also recovered from their

possession. All these articles, according to the witness, were

seized vide memo Ex. PW 18/J. The deposition of SI O.P.

Singh in this regard has been corroborated by PW-20 HC

Mahender Singh and PW-22 SI J.P. Singh. The bunch of keys

recovered during personal search of the appellant Gopal Singh

is Ex. P-32 and the key from which the briefcase was opened

is Ex. P-33 whereas the briefcase, which was found in the

premises of accused Ramesh, is Ex. P-34.

13. A perusal of the receipt Ex. PW 12/A coupled with

the deposition of PW-12 Mrs Champa Kapoor shows that this

receipt was issued to Mrs Rama Berry by Jor Bagh Ladies‟

Club. A perusal of the bank statement Ex. PW 13/A1 to A5

and Ex. PW 13/B read with the deposition of PW-13 V.K.

Verma, Sub Accountant, Central Bank of India, Jor Bagh

shows that these statements pertain to the bank account of

Berrys.

14. It is not the case of the appellant Gopal Singh that

these documents were handed over to him by late Berrys.

Hence, recovery of these articles from a briefcase, which was

opened using a key recovered during the personal search of

the appellant Gopal Singh, leaves no reasonable doubt that

these documents, which were stolen from the house of Berrys,

were in possession of the appellant Gopal Singh on the very

same day on which date bodies of late Berrys were found in

their house. It is not in dispute that school leaving certificate

Ex. PW 18/E and Junior High School mark sheet Ex. PW 18/F

pertain to the appellant Gopal Singh. The recovery of these

documents along the documents of late Berrys leaves no doubt

that the briefcase in which these documents were found

belonged to the appellant Gopal Singh and was in his

possession and control at the time they were recovered on 2nd

February 1987.

15. A perusal of the Cheque Book Cover Ex. PW 13/FG,

which was also found in the briefcase shows that it belongs to

late Rama Berry and was issued to her by Central bank Jor

Bagh, New Delhi. There could have been no reason for these

documents being found in the briefcase of the appellant Gopal

Singh. One ladies purse Ex. P-16 and one finger ring studded

with white and cherry coloured stones were also found in the

briefcase of the appellant Gopal Singh. Both these articles

were identified by PW-7 Mrs Uma Chopra in judicial TIP

conducted by the learned Metropolitan Magistrate. Sh. M.K.

Gupta, who came in the witness box as PW-17 has proved the

proceedings of Test Identification of case property conducted

by him on 27th March 1987 and the same is Ex. PW 17/C.

The purse Ex. P-16 was also identified by Mrs Uma Chopra as

the purse belonging to her mother. Thus, it stands proved

that on 2nd February 1987, the appellant Gopal Singh was

found in possession of documents belonging to late Berrys,

which was stolen from their house in the night intervening

1st/2nd February 1987. It also stands proved that the ladies

purse Ex. P-16 found in the briefcase of the appellant Gopal

Singh Ex.P-34 also belongs to late Rama Berry and was stolen

from their house in the night of 1st/2nd February 1987.

16. It was held by the Hon‟ble Supreme Court in

Erabhadrappa alias Krishnappa v. State of Karnataka, AIR

1983 SC 446, that where a lady witness identifies the stolen

articles such as ornaments and sarees at the trial without

prior Test Identification Parade, the testimony of such a

witness was not inadmissible in evidence for want of prior Test

Identification Parade, as ladies have uncanny sense of

identifying their own belongings, particularly the articles of

personal use. A particular article may be identified by any

particular mark on it or by its frequent use or observation

which causes a permanent impression on the mind of

identifier that leads to recognition of the article. Since PW-7

has testified that she had been using the articles stolen from

their house and even otherwise she would be seeing these

articles in her house, she definitely was in a position to

identify them during trial. Moreover, in this case identification

by her during trial finds corroboration from her having

identified these articles during Test Identification Parade

conducted by PW-17 Sh. M.K. Gupta and in any case none of

these articles have been claimed by the appellant Gopal Singh,

as lawfully belonging to him. His case is that these articles

were not in his possession at all.

17. PW-10 Const. Rajinder Singh stated that on 3rd July

at about 1.00 AM, Hira Singh, co-accused of the appellants

took them to ISBT Bus Stand. At about 4.45 AM the appellant

Bachchi Singh was apprehended at the pointing out of Hira

Singh and was brought to the Police Post. One ladies purse

containing some articles/jewellery was recovered from the

right side of the pant which he was wearing at that time. The

witness identified Ex. P-18 as the purse, which was found in

the pocket of the pant of Bachchi Singh. He also identified two

pair of tops Ex. P5/1 and 2 and Ex. P6/1 and 2, gold ring Ex.

P-8, ring with red stone and diamond Ex. P-7, nose pin Ex. P-

20, a French coin Ex. P-21, silver ring Ex. P-23 and two

artificial rings Ex. P-25/1 and 2. PW-20 HC Mahender Singh

corroborated the deposition of PW-10 regarding recovery of

various articles from the possession of the appellant Bachchi

Singh, after he was arrested at Bus Stand ISBT and was

brought to the Police Post. He also identified the articles of

jewellery Ex. P-5/1 and 2, Ex. P-6/1 and 2, Ex. P-7, Ex. P-20,

Ex. P-23, Ex. P-24, Ex. P-26 as well as the French coin Ex. P-

21 and identified his signature on the seizure memo of these

articles Ex. PW10/B. PW-22 SI J.P. Sharma further

corroborated the deposition of these witnesses as regards

apprehension of the appellant Bachchi Singh at about 4.45

AM on 3rd February 1987 and recovery of the aforesaid articles

from his possession. He also identified his signatures on the

seizure memo Ex. PW 10/B. PW-23 SI Jaswant Singh also

stated that the appellant Bachchi Singh was arrested at Bus

Stand ISBT at about 4.30 AM on 3rd February 1987 and the

aforesaid articles were recovered from his possession. He also

identified the aforesaid articles in the Court. This

circumstance, therefore, stands duly proved against both the

appellants.

CONCLUSION

18. The prosecution has been able to establish that there

was theft of a number of articles from the house of late Berrys

in the night of 1st/2nd February 1987, when they were

murdered in their house. Some of the stolen articles,

including the purse Ex. P-16, receipt Ex. P-12/A, bank

statements Ex. PW 13/A1 and B1 and cheque book cover Ex.

PW18/FG were recovered from the possession of the appellant

Gopal Singh in the night of 2nd February 1987 whereas some

of the stolen articles, including Ex. P-5/1 and 2, Ex. P-6/1

and 2, Ex. P-7, Ex. P-20, Ex. P-21, Ex. P-22, Ex. P-23, Ex. P-

24, Ex. P-25/1 and 2 were recovered from the possession of

the appellant Bachchi Singh early in the morning of 3rd

February 1987. It cannot be disputed that the robbery of

these articles formed integral part of the transaction in which

Berrys were murdered. In fact, robbery of these articles

appears to be the cause of their murder.

19. Section 114 of Evidence Act, to the extent it is

relevant, reads 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.

Illustration The Court my presume-

(a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for is possession..."

20. It was contended by the learned counsel for the

appellants that in view of illustration (a), the presumption can

be either that the appellants had committed theft of the

articles, alleged to have been recovered from them or they had

received them knowing them to be stolen goods and there

cannot be a presumption of the appellants having also

committed murder of Dr R.N. Berry and his wife Rama Berry.

21. In our view, the presumption permitted to be drawn

under Section 114 of the Evidence Act in a case where the

theft and murder are committed in the course of the same

transaction, will, to a large extent, depend upon the time gap

between the murder and robbery and the recovery of the

stolen articles. If the ornaments or other articles belonging to

the deceased are found in possession of a person soon after

the murder and robbery, a presumption of that person being

involved in the incident of murder and robbery can be safely

drawn. If, however, a substantial time has expired in the

interval, depending upon other facts and circumstances of the

case and the nature of the stolen article(s), the presumption to

be drawn by the court may be that the person found in

possession of the stolen articles was only a receiver of those

articles. The nature of the presumption to be drawn by the

court would also be influenced by the nature of the articles

stolen from the possession of the deceased, as to whether it

was an article which could be easily disposed of or it was an

article which would be difficult to dispose of soon after the

murder was committed.

22. In the case of Earabhadrappa (Supra), the case

before the Supreme Court was a case where murder and

robbery formed integral parts of one and the same transaction.

The appellant before the Supreme Court disappeared from his

house in the morning of March 22, 1979 when the murder of

the deceased and theft of her gold ornament was detected. He

was apprehend on March 29, 1980 and the stolen articles

were got recovered by him. It was held by Supreme Court that

in such a case the presumption arising under illustration (a) to

Section 114 of the Evidence Act was that not only the

appellant committed the murder of the deceased but he also

committed robbery of her gold ornament, which formed part of

the same transaction. It was noted that the appellant had no

satisfactory explanation to offer for the possession of the

stolen property and had chosen to deny that the stolen

property was recovered from him. Supreme Court found the

false denial itself to be an incriminating circumstance.

Identical is the factual situation before us except for the fact

that in the case before us the recovery of stolen articles was

effected almost immediately after their theft. Hence, it is a

much stronger case for presuming that the appellants had

committed murder of the Berrys, as well as theft of various

articles from their house.

23. In Gulab Chand Vs. State of Madhya Pradesh : AIR

1995 SC 1598, the murder and robbery took place in the

night intervening 23/24th April, 1979. The stolen articles

were recovered from his possession on 27th April, 1979. It was

held that such close proximity of the recovery was an

important time factor which should not be lost sight of in

deciding the case. Noticing that the accused before the court

was not affluent enough to possess ornament recovered from

him and considering the recovery of the stolen articles from

his possession and his having sold some of them immediately

after the murder and robbery and no plausible explanation for

lawful possession of the articles having been given, the court

was of the view that murder and robbery were integral part of

the same transaction and, therefore, the presumption was that

not only the appellant committed the murder of the deceased

but also committed robbery of her ornaments.

24. In Mukund @ Kundu Mishra & Another Vs. State

of M.P. : (1997) 10 SCC 130, the murder and robbery were

committed in the course of the same transaction. The murder

was committed in the night intervening 17th/18th January,

1994. During next night, the appellants were arrested and

some of the stolen articles were recovered from the possession

of the appellants. There was no eye-witness of the murder and

robbery. It was contended before the court that even if it was

assumed that the articles stolen from the house of the

deceased were recovered from the appellants, it could at best

be said that they had committed the offence under Section 411

of IPC, but not the offences of murder and robbery for which

they were convicted. Rejecting the contention, the Supreme

Court, inter alia, observed as under:

"If in a given case - as the present one - the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder."

25. In Ezhil & Others Vs. State of Tamil Nadu : 2002

Cri. L.J. 2799, the robbery and murder took place in the night

intervening 10/11th March, 1994. The articles of the deceased

were recovered from the possession of the appellants on 11th

March, 1994. There was no direct evidence of the appellants

being involved in the murder and robbery. Noticing that the

possession by the appellants was very much proximate in

point of time to death of the deceased to constitute whole thing

an integral affair, the Supreme Court, inter alia, held as

under:

"The accused have not been able to properly or reasonably explain as to the legitimacy or origin of their possession of the articles carried by the deceased when he arrived from abroad at the airport at Chennai. In such circumstances, since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special, rule in Section 106 of the Evidence Act, to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The appellants in this case have miserably failed to explain their lawful possession of those articles with them that really belonged to and were in the possession of the deceased when he landed at the airport at Chennai. Consequently, it was legitimate for the courts below, on the facts and

circumstances of this case, to draw the presumption not only of the fact that they were in possession of the stolen articles after committing robbery but also committed the murder of the deceased, keeping in view the proximity of time within which the act of murder was supposed to have been committed and body found and the articles recovered from the possession of the accused."

26. In the present case, the murder of Dr R.N. Berry and

his wife Rama Berry took place in the night intervening 1/2nd

February, 1987. The appellant Gopal Singh remained in the

house during that night and the police arrived on the spot at

about 10.30 am. Thereafter, he remained with the police till

the time disclosure statement was made by him and the stolen

articles of the Berrys were recovered from his briefcase, kept in

the house of his co-accused Ramesh. Therefore, there was

absolutely no scope for the appellant Gopal Singh to have

come into possession of the stolen articles from some other

person. Considering the above facts coupled with the fact

that he was employed in the house of Dr Berry, was present

there during the night in which the murder and robbery took

place was found awake at 12 midnight and the pieces of

cigarette smoked by him were found in the house, no outsider

could have entered the house without he or PW-8 Pratap

Singh being a party to the robbery and murder, there is

nothing incriminating against PW-8 Pratap Singh, who was

employed with Berrys for more than 40 years, the presumption

has to be that not only had he committed robbery of the

articles found in his possession, he was also involved in the

murder of late Dr R.N. Berry and his wife Smt Rama Berry,

and he shared a common intention with the other accused to

commit their murder and also commit robbery of the articles

belonging to them.

27. As regards the appellant Bachchi Singh, the stolen

articles were recovered from his possession early in the

morning of 3rd February, 1987, which would be not more than

29 hours after the murder and robbery took place. He is none

other than the brother of the appellant Gopal Singh. He does

not claim that the stolen articles were handed over to him by

his brother Gopal Singh. Since Gopal Singh was seen by PW-8

Pratap Singh at about 1200 am on 2nd February, 1987 and

then again at about 7.00 am when he woke up and, thereafter,

he remained in the house and then with the police, and

therefore had no opportunity to transfer these articles to him,

unless the appellant Bachchi Singh was present when the

murder and robbery took place, the presumption to be drawn

in his case also has to be that he also was a party to the

murder of the deceased Dr R.N. Berry and his wife Rama Berry

and robbery of the articles belonging to them. The fact that he

was arrested from ISBT in the early morning is a clear

indicator that he was trying to leave the city along with the

stolen articles. This is yet another circumstance which leads

to the inference that he also was involved in the murder and,

therefore, was trying to leave the city, lest he was caught by

the police.

28. Neither of the appellants has been able to rebut the

statutory presumption which is drawn against them under

Section 114 of the Evidence Act. Besides the statutory

presumption, the other incriminating circumstances against

the appellant Gopal Singh are that (i) he was employed with

late Dr R.N. Berry and was present in his house in the night

during which murder and robbery took place; (ii) he was found

standing by PW-8 Pratap Singh at around midnight and when

asked by PW-8 as to why he was standing at that hour of the

night, he stated that he wanted to smoke; (iii) the burnt pieces

of cigarettes were found at various places in the house of

Berrys; (iv) there was no sign of any forced entry in the house

despite all doors and windows having been checked by the IO

from this point of view and, therefore, the murder could not

have been committed without either he or PW-8 Pratap Singh

being a party to it since no other person except the deceased

persons was present in the house at that time. These another

circumstances strongly indicate that he in furtherance of a

common intention which he shared with the other accused

person(s), committed murder of late Dr R.N. Berry and his wife

Rama Berry and robbery of various articles from their house.

29. As regards appellant Bachchi Singh, besides

recovery of the stolen articles, the other incriminating

circumstance against him are that he was earlier employed

with Dr Berry and was removed from service when he was

found committing theft of various articles from his almirahs,

he is the brother of appellant Gopal Singh and he was trying

to leave the city in the early morning of 3rd February, 1987.

30. It was contended by the learned counsel for the

appellant that though PW-8 Pratap Singh saw the dead body

of Berrys at about 8.00 am, he did not inform either his family

members or the police till driver Suraj Prakash arrived at 8.30

am, which creates suspicion on his conduct. We are unable to

agree with the learned counsel. It has come in the deposition

of Pratap Singh that he knocked for about 5-10 minutes at the

door of the bedroom of Berrys, but when there was no

response, the door was opened by him since it was not bolted

from inside. The reason for knocking at the door was also

given by the witness. According to him, he had been directed

by his employer that he should not enter the door before

knocking. If the door was opened by Pratap Singh at about 8 -

10 am, it must have taken him some time to get over the

shock which he must have received on finding Dr.R.N.Berry

and his wife dead on their beds. Driver Suraj Prakash also

arrived at 8.30 am which would be around the same time and

the witness asked him to inform the daughter and son-in-law

of the deceased. Moreover, when a witness gives the time of

an incident which took place much before his deposition in the

court, he can give only approximate and not the exact time

and in fact Pratap Singh specifically used the word "at about"

while giving time of his knocking at the door and Suraj

Prakash Driver coming to the house. Therefore, we find

nothing abnormal in the conduct of PW-8 Pratap Singh.

31. It was also contended by the learned counsel that one

glass on which finger prints were suspected by the

Investigating Officer was not seized by him. In this regard, we

notice that according to PW-23 SI Jaswant Singh(Retd.), he

suspected some chance finger prints on a glass, but later the

glass could not be traced as there was a huge crowd in the

house and somebody might have removed that glass. We fail

to appreciate how the failure of the Investigating Officer to

seize that glass has prejudiced the appellants in any manner.

Had the IO been able to seize that glass and had finger prints

of someone other than the appellant been found on it, that, by

itself, would not have ruled out the involvement of the

appellants in the crime. Therefore, nothing really turns on the

inability of the IO to seize that glass.

32. The circumstances proved against the appellants lead

to an irresistible conclusion that they were party to a criminal

conspiracy to commit murder of Late Dr R.N. Berry and his

wife Smt Rama Berry and also to commit robbery of various

valuables from their house. They also shared a common

intention to commit murder and robbery and the murder of

Berrys and robbery from their house and their murder was

committed in furtherance of that common intention. The

circumstances proved against them are totally incompatible

with their innocence and it would be safe to conclude that, in

all human probability, they both were involved in the

transaction during the course of which not only the robbery of

various articles was committed from the house of late Berrys,

they were also murdered so as to facilitate the robbery. Both

the appellants have been rightly convicted under Sections 302

and 392 IPC read with Section 34 thereof. In any case, on the

basis of evidence produced during trial, they are liable to be

convicted for being a party to the criminal conspiracy to

commit murder of Berrys and robbery from their house for

which both of them were duly charged.

33. We find no merits in the appeal and the same is

dismissed. The appellants be taken into custody to undergo

remaining part of the sentence awarded to them.

V.K. JAIN, J

BADAR DURREZ AHMED, J July 30, 2010 Ag/RS