Holding

The court upheld the conviction for robbery on the basis of possession of stolen property but set aside the murder conviction due to lack of a causal link between the robbery and the victim's drowning.

Summary

The deceased, a farm worker, disappeared after leaving for work and his body was later found drowned in a river. The accused, George, was found in possession of the deceased's watch and two gold rings, which he had pledged to others shortly after the disappearance. The prosecution relied on circumstantial evidence, including witnesses who heard the deceased say, "take whatever you like, leave me alone," and the rapid recovery of the stolen items by the accused, to secure convictions for robbery under Section 392 IPC and murder under Section 302 IPC. The Supreme Court held that the possession of the stolen articles within 24 hours satisfied the presumption of robbery under Section 114(a) of the Evidence Act, justifying the robbery conviction. However, the Court found no evidence linking the accused to the drowning, noting the absence of injuries and the possibility of an independent cause of death, and therefore set aside the murder conviction. The appeal was partly allowed: the murder conviction was overturned while the robbery conviction was upheld.

Issues considered

Whether the circumstantial evidence established the accused's guilt for robbery under Section 392 IPC.
Whether the same evidence was sufficient to infer the accused's participation in the murder of the deceased under Section 302 IPC.
Whether Section 114(a) of the Evidence Act permits a presumption of robbery based on the accused's possession of stolen property.

Legislation cited

Indian Evidence Act, 1872s. 114(a)
Indian Penal Code, 1860s. 302, s. 392

Subjects

circumstantial evidencerobberymurderpresumptionSection 114possession of stolen propertyconviction set asideIndian Penal Codeevidence law

Judgment

- GEORGE A
v.
STATE OF KERALA

APRIL 3, 2002

[M.B. SHAH, BRIJESH KUMAR AND D.M. DHARMADHIKARI, JJ.) B

Penal Code, 1860-Sections 392 and 302.

Evidence Act, 1872: s.114 Illustration (a).

Circumstantial evidi;nce-Appreciation of
c
Robbery-Conviction based on circumstantial evidence-Articles worn
by the deceased-Missing-Soon after the incident, the articles recovered at
the instance of accused-Held, it would lead to the inference under Section
J 14(a) that accused had committed the robbery. D
Circumstantial evidence~Recovery of dead body of the deceased from
the river-Long after commission of robbery by the accused-Absence of
external!internal injury on the dead body-No circumstance which may lead
to the only inference that accused and none else was responsible for drowning
ofthe deceased-On facts, held: Conviction for committing murder set aside- E
However conviction for committing robbery upheld.

According to the prosecution, the deceased had been working in a farm
house and residing with his brother and sister. Generally he would return in
the evening but occasionally stayed back at the farm. One day he left for his
work as usual but did not return back. Next day, when he did not turn up F
for work, his employer sent one of his employees to the house of the deceased
to enquire about him. The family members of the deceased made search for
him but to no avail. On the next day, the body of the deceased was recovered
in a thodu (river). A report was registered and photograph was published in
a newspaper. The brother of the deceased identified the dead body and also G
noticed that two gold rings and a watch, which deceased was wearing were
missing.

Subsequently, investigation of the case started and post-mortem
examination conducted. The post-mortem report revealed that no external
or internal injury was found on the dead body; besides superficial injury could H
895
896 SUPREME COURT REPORTS [2002] 2 S.C.R.

A not be detected due to the decomposition of dead body. During the
investigation, it came to notice that accused had pledged the gold rings to .,..
different persons from whom they were recovered and the watch was
recovered at the instance of the accused. '~

The accused denied the charges and contended that he was a friend of
B the deceased and helped him to marry a particular girl but it was not
agreeable to the family members of the deceased and once they tied him up )
and had also beaten him.

Partly allowing the appeals, the Court A

c HELD : 1. There is no doubt about the fact that the appellant was )c
putting on three articles, namely, a watch and two gold rings before leaving
for his work. Prosecution witnesses had heard the voice of the deceased saying j.-

~hat "you may take whatever you like, but leave me alone". This link alone
is no doubt not very strong but the other corroborating and clinching
~
circumstance is that thereafter on the next day the appellant had possession I
D of those articles which he had offered to one of the prosecution witnesses and A.
later pledged the rings with other prosecution witnesses. It is difficult to hold
that prosecution witnesses had heard the voice of accused as the evidence on
the point is shaky, but there is no escape of the accused from the liability of
possession of the property. [899~G-H; 900-A] f
~
E.
2.1. The dead body was recovered from a thodu (river). The cause of
death has been indicated as due to drowning. No internal or external injury
was found on the person of the deceased. According to the doctor if there
were any superficial marks of injuries, they could not be noticed due to
decomposition of the dead body. Under the circumstances of the case, >-
F therefore, it is not appropriate to link the death of the deceased by drowning,
with the offence of robbery. The presumption of robbery has been drawn as
against the appellant in view of the fact that he was found in possession of
looted property the next day which could be said to be soon after the incident
of robbery which may have taken place the previous day but thereafter
drowning of the deceased any time before his body was recovered cannot be
G linked with robbery. It is not a circumstance which may lead to irresistible
inference that the appellant and none else was responsible for drowning of y- :
the deceased. The drowning does not appear to be direct or indirect result of
'· the incident of robbery in which the de~eased was deprived of his valuables. )
It cannot be said that it is a circumstance which is wholly incompatible with
H the innocence of the appellant so far as charge of murder is concerned.
GEORGE v. STATE [BRIJESH KUMAR, J.] 897
Therefore, under the stated circumstances, inference that the murder was also A
committed by the appellant cannot be drawn. (900-F, G, H; 901-A-C]

Beifu v. State of Madhya Pradesh, AIR (1978) SC 522, referred to.

2.2. The conviction and sentence of the appellant for imprisonment for
life under Sectiori 302 IPC is set aside and conviction under Section 392 IPC B
upheld. (901-C-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
427-428 of 2000.

From the Judgment and Order dated 14.1.1999 of the Kerala High Court C
in Crl.A. No. 897 of 1998 and 462 of 1998.

Sudhir Kulshrestha and T. Mahipal for the Appellant.

Ramesh Babu M.R. for the Respondent.
D
The Judgment of the Court was delivered by :

BRIJESH KUMAR, J. These appeals arise out of judgment and order
passed by the High Court of Kerala, upholding the conviction and sentence of
imprisonment for life under Section 302 !PC and 7 years rigorous imprisonment
under Section 392 !PC as passed by the II Additional Sessions Judge, Ernakulam E
in Sessions Case No. 128 of 1996.

The case is based on circumstantial evidence. According to the
prosecution the deceased had been working for PW-28 at his farm and in that
connection he used to leave his house at 7.00 a.m. everyday and would return
in the evening but sometimes he stayed back at the farm. He had been residing F
with his younger brother PW-3 and a younger sister, PW-7. On 28.6.1995, as
usual, he left for his work at 7.00 a.m. At the time of leaving his house, PW-
3 and PW-7 had seen him putting on two gold rings and a watch. PW-28 had
also noticed him putting on the above said articles. Till mid-day he was at the
farm of PW-28 and after having his lunch etc. he had left the place. At about G
4.00 p.m., PW-12 had seen him at Kottapuram junction. At about 8.30 p.m.
he went to the shop of PW-8 and purchased some candles and bread from
there. He then sat at a bench in front of the shop of PW-9 who closed his shop
at 9.00 p.m. whereafter deceased also left the place.

The prosecution story further is that at about 9.30 p.m. while PWs 10, H
898 SUPREME COURT REPORTS [2002] 2 S.C.R.

A 12 and 13 were at their house, they heard the deceased saying "take whatever
you want, leave me alone". PW-12 is said to have heard the voice of the ""
appellant as well. Since the deceased did not tum up to ,his work in the \
morning next day, PW-28 sent one of his employees to the house of tl}e
deceased to find out the reason. This is how PW-3 the brother of the deceased
came to know that his brother was missing and started search for him but with
B no results. On 30.6.1995, PW-I saw a body floating in thodu. A report in that
connection was registered and the photograph of the dead body was published
in the newspaper which PW-3 saw on l.7.1995. On that basis he went fo the •'
Government hospital and identified the body of his brother. He further noticed A
that the two gold rings and the watch which the deceased was putting on were
c missing.
~

The investigation was taken up by PW-29. Post-mortem examination
was also conducted which indicated drowning, as the cause of death. No
external or internal injury was found on the dead body by the doctor. The
doctor further stated that superficial injury if any could not be detected due
D f? decomposition of the dead body. During the course of investigation, PW-
29 came to know that accused had pledged a gold ring with PW-19 which led
to the arrest of the appellant on 5.7.1995 at Kottapuram toddy shop. The
accused led the police party to rubber plantation of one Jose Verghese and
handed over M.0.1 (watch) in respect of which r~overy memo was prepared
Ex.P-6. He also took the police party to his house from where he produced
E document in token of the pledge of M.0.11 (a) (the other ring) with a private
banker. Thus the other gold ring was recovered from the shop of PW-24.

The accused denied the charge and took up the defence that PW-3
namely, the brother of the deceased and other members of the family were
F unhappy with him and therefore he has been falsely implicated in the case.
His case was that he was a friend of the deceased and had helped him to marry
one Sharda for which members of their family were not agreeable. In this
connection the members of the family of the deceased had once tied up the
deceased and had also given him a beating.

G The case depends on circumstantial evidence.

The circumstances are as follows: .Y

I. Deceased had left to attend to his work on 28.6.1995 at 7.00 in the
morning putting on two rings and a watch. This fact is testified by
H PWs 3 and 7, his brother and sister respectively and PW-28.
GEORGEv. STATE [BRIJESH KUMAR. J.] 899
2. The deceased took candles and bread from the shop of PW-8 and A
at about 9.00 p.m. he was sitting in front of the shop of PW-9. He
left the place thereafter.
3. At about 9.30 p.m. PWs 10, 12 and 13 heard the deceased saying
"take whatever you want, leave me alone". PW12 and PW-13 are
said to have recognized his voice. PW-10, wife of PW-12 had no B
idea about the voice of the deceased.
• 4. PW-12 said to have stated before the Investigating Officer that he
.. had heard the voice of appellant also but initially he had not stated
so in the Court. He also could not say as to what was uttered by
the appellant. c
5. On 29.6.1995 the accused offered the rings to PW-17 in repaying
the loan but he refused to take it, ultimately he had pledged the
rings with PW-19 and PW 24 which were recovered from them.
6. The dead body was recovered on June 30, 1995 but the rings and
)- the watch were not found on the dead body. D
7. On the arrest of the accused on 5.7.1995 watch was recovered at
his instance.

Yet another witness who has stated about it is PW15 who said that he had also
heard the shouts and he saw somebody lying who looked like the deceased E
and somebody looking like the accused was standing near a culvert. His
statement was recorded by the Investigating Officer on 6.7.1995. The High
Court has observed that much reliance could not be placed upon his evidence.
We feel such evidence could not be of any help to the prosecution.

We find that the evidence of the prosecution witnesses in support of the F
circumstances enumerated above could not be assailed on behalf of the
appellant. The case as put forward by the appellant in defence also has no legs
to stand. It is nothing but a cock & bull story which cannot be believed. The
·main question for consideration on the basis of the circumstances indicated
above is as to what offence stands made out against the appellant. There is no
doubt about the fact that the appellant was putting on the three articles as G
~ indicated earlier before leaving for his work. PWs 10,12 and 13 had heard the
voice of the deceased saying that "you may take whatever you like, but leave
me alone". This link alone is no doubt not very strong but the other
corroborating and clinching circumstance is that soon thereafter namely at
about 1.30 p.m. next day i.e. on 29.6.1995 the appellant had possession of H
900 SUPREME COURT REPORTS [2002] 2 S.C.R.

A those articles which he had offered to PW-17 and later pledged the rings with
PW-19 and PW-24. It is though difficult to hold that PW-12 and PW-13 had
heard the voice of accused as the evidence on· the point is shaky but there is
no escape from the liability of possession of the property viz. subject-matter
of the robbery with the appellant soon thereafter. According to PW-17 appellant
had offered to give him ring in the payment of loan of Rs. 50 on 29.6.95 at
B 1.30 p.m. On being asked by PW-17, the appellant is said to have given a false
explanation saying that he had won the ring in the game of cards but later
changed the version again. The appellant wanted to give him watch M.O.I
which too PW-17 refused to. accept. On the same day namely 29.6.95, he
pledged one ring with PW-24 and the other with PW-19 on l.7.95. The
C possession of the articles which had been duly identified by the witnesses as
belonging to the deceased were found in his possession within less than 24
,-......
hours of the incident. It would kad to inference under Section 114 (a) of the
Evidence Act that the appellant has himself committed the robbery , an offence
punishable under Section 392 IPC. According to the statement of PWs 10, 12
and 13 ·deceased had been saying "take whatever you want leave me alone",
D shows that he must have been under some apprehension or threat thereof.
So far the conviction of the appellant under Section 302 IPC is concerned,
the High Court has placed reliance upon a decision reported in AIR 1978 S.C.
522 Baiju v. State of Madhya Pradesh. It has been held in this case that where
E the prosecution succeeds in proving beyond any doubt that the commission of I-

the murder and the robbery form part of one transaction and recent and
unexplained possession of stolen property by the accused-appellant, it could
also be presumed that the appellant and none else would be liable for committing
the murder also. In this case, however, we find that the dead body was recovered
on June 30, 1995 from a thodu. The cause of death has been indicated by
F drowning. No internal or external injury was found on the person of the
deceased. According to the doctor if there were any superficial marks of
injuries, they could not be noticed due to decomposition of the dead body. In
our_ view, it is difficult to link the death of the deceased by drowning with the
offence of robbery. The presumption of robbery has been drawn by us as
G against the appellant in view of the fact that he was found in possession of
looted property the next day at about 1.30 p.m. which could be said to be soon
after the incident of robbery which may have taken place around 9.30 p.m. the
previous day but thereafter drowning of the deceased any time before his body
was recovered on 30.6.95 cannot be linked with robbery. It may though be
well before the body was recovered since decomposition had set in but the
H fact that body does not bear any mark of external or internal injury, the death
GEORGEv. STATE [BRIJESH KUMAR. l./ 901
by mere drowning does not provide any link with the robbery and the death A
of the deceased. It is difficult to guess in what manner and in what circumstances
the deceased may have drowned after the incident of robbery may have taken
place. There may be possibility of a different incident having taken place
resulting in drowning of the deceased. It is not a circumstance which may lead·
to irresistible inference that the appellant and none else was responsible for
drowning of the deceased. The drowning does not appear to be direct or B
indirect result of the incident of robbery in which the deceased was deprived
of his valuables. It cannot be said that it is a circumstance which is wholly
incompatible with the innocence of the appellant so far charge of murder is
concerned. We therefore feel that it would not be possible to draw any inference
that the murder was also committed by the appellant. C
Jn view of the discussion held above we partly allow the appeals and set
aside the conviction and sentence of the appellant for imprisonment for life
under Section 302 !PC but dismiss the appeals in so far it relates to conviction
and sentence as awarded by the trial court and upheld by the High Court under
Section 392 !PC. D
S.K.S. Appeal partly allowed.