STATE OF RAJASTHANversusTALEVAR & ANR.

                        [2011] 6 S.C.R. 1050

A                     STATE OF RAJASTHAN
                                  v.
                         TALEVAR & ANR.
                 (Criminal Appeal No. 937 of 2005)

                           JUNE 17, 2011
B
     [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

        Evidence Act, 1872:

c       s. 114, /llustration (a) - Presumption on the basis of
  articles recovered in a case of dacoity with murders - Out of
  8 accused two accused-respondents acquitted by High Court
  - Appeal by State - HELD: Admittedly, there is no evidence
  of identification of the accused - Recovery on disclosure
0 statements was not in close proximity of time from date of
  incident - More so, recovery is either of cash, small things
  or a scooter, which can change hands without any difficulty -
  Therefore, no presumption can be drawn against the accused
  uls 114, Illustration (a) - No adverse inference can be drawn
E on the basis of the recoveries made on their disclosure
  statements to connect them with the crime - Penal Code,
  1860 - ss. 395, 396 and 397.

        Code of Criminal Procedure, 1973:

F      Appeal against acquittal - HELD: Only in exceptional
   cases, where there are compelling circumstances and the
  judgment under appeal is found to be perverse, the appellate
  court can interfere with the order of acquittal - The appellate
  court should bear in mind the presumption of innocence of
G the accused and further that the trial court's acquittal bolsters
  the presumption of his innocence - Interference in a routine
  manner where the other view is possible should be avoided,
  unless there are good reasons for interference - In the instant
  case, there is no reason to interfere with the well reasoned
H                               1050
    STATE OF RAJASTHAN v. TALEVAR & ANR.              1051

judgment and order of the High Court acquitting the           A
 respondents - Penal Code, 1860 - ss. 395. 396 and 397 -
 Constitution of India, 1950 - Article 136.

     An FIR was lodged by P.W.13 on the morning of
17 .12.1996 stating that in the previous night 8-10           8
miscreants committed dacoity in his house in which the
dacoits killed two persons, namely, his chowkidar and his
neighbour, and decamped with cash, jewellery and silver
wares. Respondent no. 2 was arrested on 24.12.1996 and
respondent no. 1 on 19.1.1997. On the basis of disclosure     C
statements made by them, some cash and some articles
were recovered. In all, nine accused including the two
respondents faced the trial. One of the accused died
pending trial. The trial court convicted all the remaining
8 accused. On appeal, the High Court while maintaining
conviction and sentence of imprisonment for life awarded      D
to six of the accused, acquitted the respondents.
     In the instant appeal filed by the State, the question
for consideration before the Court was: whether adverse
inference could be drawn against the accused merely on        E
the basis of recoveries made on their disclosure
statements.

    Dismissing the appeal, the Court

     HELD: 1.1. Admitted facts remained, so far as the two ·F
respondents/accused are concerned, that no test
identification parade was held at all. Further, none of the
eye witnesses, particularly, 'PW.12', 'PW.13', 'PW.2',
'PW.14' and 'PW.15', identified either of the respondents
in the court. Therefore, there is no evidence so far as their G
identification is concerned. [para 6] [1057-G]
    1.2. As regards the adverse inference on the basis of
the recoveries made on disclosure statements made by
                                                              H
    1052   SUPREME COURT REPORTS              (2011] 6 S.C.R.


A the accused, the law on this issue can be summarized
  to the effect that where only evidence against the
  accused is recovery of stolen properties, then although
  the circumstances may indicate that the theft and murder
  might have been committed at the same time, it is not safe
B to draw an inference that the person in possession of the
  stolen property had committed the murder. It also
  depends on the nature of the property so recovered,
  whether it was likely to pass readily from hand to hand.
  Suspicion should not take the place of proof. [para 7.7]
C [1060-C]

      Guiab Chand v. State of M.P., 1995 (3) SCR 27 = AIR
  1995 SC 1598; Tulsiram Kanu v. State, AIR 1954 SC 1;
  Geejaganda Somaiah v. State of Karnataka, 2007 (3)
   SCR 899 = AIR 2007 SC 1355, Sanwat Khan v. State of
D Rajasthan, AIR 1956 SC 54; Earabhadrappa v. State of
  Karnataka 1983 (2) SCR 552 =AIR 1983 SC 446; Sanjay
  @ Kaka etc. etc. v. The State (NCT of Delhi) AIR 2001 SC
  979; Ronny Alias Ronald James Alwaris & Ors. v. State of
  Maharashtra, AIR 1998 SC 1251; Baiju vs state of m.p.
E 1978 (2) SCR 1978= AIR 1978 SC 522; Mukund @ kundu
  mishra vs state of m.p. 1997 AIR 2622 - referred to.

       1.3. In the instant case, respondent no. 2 was
  arrested on 24.12.1996 and a silver glass and one
F thousand rupees were alleged to have been recovered
  on his disclosure statement on 29.12.1996. Again on
  disclosure statement dated 2.1.1997, a scooter alleged to
  have been used in the dacoity, was recovered. Similarly,
  respondent no. 1 was arrested on 19.1.1997 and on his
G disclosure statement on 26.1.1997, two thousand rupees,
  a silver key ring and a key of an Ambassador car alleged
  to have been used in the crime were recovered. Thus, it
  is evident that recovery on the disclosure statements of
  either of the respondents/accused persons was not in
H close proximity of the time from the date of incident. More
    STATE OF RAJASTHAN v. TALEVAR & ANR.              1053

so, recovery is either of cash, small things or vehicles      A
which can be passed from one person to another without
any difficulty. In such a fact situation, the inescapable
conclusion is that no presumption can be drawn against
the two respondents/accused u/s 114 Illustration (a) of
the Evidence Act. No adverse inference can be drawn on        B
the basis of recoveries made on their disclosure
statements to connect them with the commission of the
crime. [para 8) [1060-D-H]

     2. The instant appeal has been preferred by the State
against the judgment and order of acquittal of the            C
respondents by the High Court. The law on the issue is
settled to the effect that only in exceptional cases where
there are compelling circumstances and the judgment
under appeal is found to be perverse, the appellate court
can interfere with the order of acquittal. The appellate      D
court should bear in mind the presumption of innocence
of the accused and further that the trial court's acquittal
bolsters the presumption of his innocence. Interference
in a routine manner where the other view is possible
should be avoided, unless there are good reasons for          E
interference. In the instant case, there is no reason to
interfere with the well reasoned judgment and order of the
High Court acquitting the respondents. [para 9-10) [1061-
A-E]
                                                              F
     Brahm Swaroop & Anr. v. State of UP., AIR 2011SC280;
V.S. Achuthanandan v. R. Balakrishna Pillai & Ors., (2011)
3 SCC 317; and Rukia Begum & Ors. v. State of Karnataka,
(2011) 4 sec 779, relied on

                    Case Law Reference:                       G

    1995 (3) SCR 27           referred to         para 7.1
    2007 (3) SCR 899          referred to         para 7.2
    AIR 1956 SC 54            referred to         para 7.2    H,
    1054    SUPREME COURT REPORTS                   [2011] 6 S.C.R.


A       AIR 1954 SC 1                 referred to          para 7.3

        1983 ( 2 ) SCR 552            referred to          para 7.4

        AIR 2001 SC 979               referred to          para 7.5

B       AIR 1998 SC 1251              referred to          para 7.6

        1978 (2) SCR 1978             referred to          para 7.6

        1997 AIR 2622                 referred to          para 7.6

        AIR 2011 SC 280               relied on            para 9
c
        (2011) 3 sec 317              relied on            para 9

        (2011) 4 sec 119              relied on            para 9

      CRIMINAL APPELALTE JURISDICTION : Criminal Appeal
D No. 937 of 2005.

        From the Judgment & Order dated 27 .10.2004 of the High
    Court of Judicature for Rajasthan, Jaipur bench at Jaipur in D.B.
    Criminal Appeal No. 1579 of 2002.
E
        Manish Singhvi, AAG, Milind Kumar, Altaf Hussain,
    Harbans Lal Bajaj for the appearing parties.

        The Judgment of the Court was delivered by

F      DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
  by the State of Rajasthan against the judgment and order dated
  27.10.2004 passed by the High Court of Judicature for
  Rajasthan, Jaipur Bench, in Criminal Appeal No. 1579 of 2002
  acquitting the respondents, setting aside their conviction and
G the sentence passed by Additional District and Sessions
  Judge, (Fast Track), Laxmangarh, Alwar, dated 2.11.2002 in
  Sessions Case No. 4 of 2002 (14/2000) for the offences
  punishable under Sections 395, · 396 and 397 of the Indian
  Penal Code, 1860 (hereinafter called the IPC).
H
     STATE OF RAJASTHAN v. TALEVAR & ANR.                 1055
             [DR. B.S. CHAUHAN, J.]

    2. The facts and circumstances giving rise to this case are   A
as under:

      A. Santosh Jagwayan (PW.13) lodged an FIR on
 17.12.1996 at 8.30 A.M., that in the intervening night between
 16th and 17th December, 1996 on hearing the noise, he sent
                                                                  8
his Chowkidar Gopal Nepali (deceased) to the roof of his
house. Gopal Nepali went upstairs and opened the gate of the
roof and found that 8 to 1Oaccused persons were trying to enter
into the house by breaking upon the door of the roof. They
immediately fired shot at Gopal Nepali (deceased) and entered     C
into the house. The accused persons locked Shashi Devi
(PW.12) wife of complainant, Preeti (PW.14) and Sandhya
(PW.15), his daughters, in the bathroom and started looting the
moveable properties. In the meanwhile, his neighbours raised
their voice. Thus, the accused immediately fired a shot at Mrs.
Anita Yadav, as a result of which, she died on the spot. Kripa    D
Dayal Yadav (PW.2), husband of Anita Yadav (deceased)
caught hold of one of the accused but he was beaten with the
butt of the gun by the other accused persons and they got the
accused released from his clutches. The accused decamped
with cash, jewellery and silver wares etc.                        E

     8. On the basis of the said complaint, an FIR No. 240 of
1996 (Ex.P-30) was registered under Sections 395, 396, 397
and 398 IPC and investigation ensued. The dead bodies of
Gopal Nepali and Anita Yadav were recovered and sent for F
post-mortem examination. Kuniya - accused/respondent was
arrested on 24.12.1996. He made a disclosure statement
(Ex.P-76) on 29.12.1996 on the basis of which a silver glass
and one thousand rupees were recovered vide recovery memo
(Ex.P-53). Further, on his disclosure statement, a scooter G
bearing No. RJ-05-0678 was recovered vide recovery memo
(Ex.P-52) on 2.1.1997.

   · C. Another accused Talevar - respondent, was arrested
on 19.1.1997 and on his disclosure statement made on
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   1056     SUPREME COURT REPORTS                   [2011] 6 S.C.R.


A 26.1.1997, two thousand rupees, a silver key ring and a key of
  Ambassador car was recovered vide seizure memo (Ex.P-45).

       D. Some more recoveries were made from the other
  accused persons. After completing the investigation
  chargesheet was filed against 9 accused persons including the
8
  two respondents. As all of them pleaded not guilty, they were
  put to trial for the offences punishable under Sections 395, 396
  and 398 IPC.

        E. In the Sessions trial prosecution examined 34 witnesses
C in support of its case. The ornaments and stolen articles were
  identified by Shashi Devi (PW.12) and Santosh Jagwayan
  (PW.13). The trial court vide judgment and order dated
  2.11.2002 convicted 8 accused including the two respondents.
  One accused named Ram Krishan, died during the trial. All of
o them stood convicted under the provisions of Sections 395, 396
  and 397 IPC. All the accused were awarded punishment to
  undergo life imprisonment and a fine of Rs. 1,000/- and in
  default of payment of fine, to further undergo six months rigorous
  imprisonment under Section 396 IPC. All of them were
E convicted for the offence punishable under Section 397 IPC and
  a sentence to undergo rigorous imprisonment for seven years
  and a fine of Rs.500/- and in default of payment of fine, to further
   undergo three months rigorous imprisonment. They were further
  convicted under Section 395 IPC, awarded life imprisonment
F and fine of Rs. 1,000/- and in default of payment of fine, to further
   undergo six months rigorous imprisonment. Accused namely,
   Ghurelal, Chunchu @ Bhagwan Singh, Kallu, Rajpal and Samay
   Singh were further convicted under Sections 3/25 and 3/27 of
   the Arms Act and sentence was awarded to undergo three
G years rigorous imprisonment and a fine of Rs. 500/- each of
   the·m, in default of payment of fine, to further undergo three
   months rigorous imprisonment.
       F. Being aggrieved by the said decision, all the accused
  including the two respondents preferred Criminal Appeal No.
H 1579 of 2002, which has been decided by the High Court vide
     STATE OF RAJASTHAN v TALEVAR & ANR.                   1057
             [DR. B.S. CHAUHAN, J.]

judgment and order dated 27.10.2004 acquitting the two             A
respondents/accused though maintaining the conviction and
sentence in respect of other accused. Hence, this appeal by
the State against their acquittal.

     3. Dr. Manish Singhvi, learned Additional Advocate            8
General for the State of Rajasthan, has submitted that recovery
of some of the looted property had been made on the basis of
the disclosure statements made by the said respondents. The
law provides for a presumption that they,had participated in the
crime and, therefore, the High Court has wrongly acquitted the     C
said accused and thus, the appeal deserves to be allowed.

     4. On the contrary, Shri Altaf Hussain, learned counsel
appearing for the said two accused, has vehemently opposed
the appeal contending that mere recovery of looted property on
the disclosure statement of the accused, is not enough to bring    D ·
home the charges of offence of loot or dacoity, when the
recovery is made after expiry of a considerable period from the
date of incident and particularly when the nature of the looted
property is such which can change hands easily. Thus, no
inference can be drawn against the respondents. The order of       E
acquittal made by the High Court has been passed on proper
appreciation of facts and application of law. The appeal lacks
merit and is liable to be dismissed.

     5. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.
                                                                   F

     6. Admitted facts remained so far as the two respondents/
accused are concerned, that no test identification parade was
held at all. Further none of the eye witnesses, particularly,
Shashi Devi (PW.12), Santosh Jagwayan (PW.13), Kripa Dayal         G
Yadav (PW.2), Preeti (PW.14) and Sandhya (PW.15), identified
either of the said respondents in the court. Therefore, there is
no evidence so far as their identification is concerned.

    7. Thus, the sole question remains to be decided whether       H
               -
   1058     SUPREME COURT REPORTS                [2011] 6 S.C.R.


A adverse inference could be drawn against the accused merely
  on the basis of recoveries made on their disclosure statements.

       7.1. In Guiab Chand v. State of M.P., AIR 1995 SC 1598,
  this Court upheld the conviction for committing dacoity on the
  basis of recovery of ornaments of the deceased from the
3
  possession of the person accused of robbery and murder
  immediately after the occurrence.

        7.2. In Geejaganda Somaiah v. State of Karnataka, AIR
  2007 SC 1355, this Court relied on the judgment in Guiab
C Chand (supra) and observed that simply on the recovery of
  stolen articles, no inference can be drawn that a person in
  possession of the stolen articles is guilty of the offence of
  murder and robbery. But culpability for the aforesaid offences
  will depend on the facts and circumstances of the case and the
D nature of evidence adduced.

       It has been indicated by this Court in Sanwat Khan v. State
  of Rajasthan, AIR 1956 SC 54, that no hard and fast rule can
  be laid down as to what inference should be drawn from certain
E circumstances.

        7.3. In Tulsiram Kanu v. State, AIR 1954 SC 1, this Court
  has indicated that the presumption permitted to be drawn under
  Section 114, Illustration (a) of the Evidence Act 1872 has to
  be drawn under the 'important time factor'. If the ornaments in
F possession of the deceased are found in possession of a
  person soon after the murder, a presumption of guilt may be
  permitted. But if a long period has expired in the interval, the
  presumption cannot be drawn having regard to the
  circumstances of the case.
G
        7.4. In Earabhadrappa v. State of Kamataka AIR 1983 SC
  446, this Court held that the nature of the presumption under
  Illustration (a) of Section 114 of the Evidence Act must depend
  upon the nature of evidence adduced. No fixed time-limit can
H be laid down to determine whether possession is recent or
     STATE OF RAJASTHAN v. TALEVAR & ANR.                     1059
             [DR. B.S. CHAUHAN, J.]

otherwise. Each case must be judged on its own facts. The             A
question as to what amounts to recent possession sufficient to
justify the presumption of guilt varies according "as the stolen
article is or is not calculated to pass readily from hand to hand".
If the stolen articles were such as were not likely to pass readily
from hand to hand, the period of one year that elapsed could          B
not be said to be too long particularly when the appellant had
been absconding during that period.

     7.5. Following such a reasoning, in Sanjay@ Kaka etc.
etc. v. The State (NCT of Delhi), AIR 2001 SC 979, this Court
upheld the conviction by the trial court since disclosure             C
statements were made by the accused persons on the next
day of the commission of the offence and the property of the
deceased was recovered at their instance from the places
where they had kept such properties, on the same day. The
Court found that the trial Court was justified in holding that the    D
disclosure statements of the accused persons and huge
recoveries from them at their instance by itself was a sufficient
circumstance on the very next day of the incident which clearly
went to show that the accused persons had joined hands to
commit the offence of robbery. Therefore, recent and                  E
unexplained possession of stolen properties will be taken to be
presumptive evidence of the charge of murder as well.

      7.6. In Ronny Alias Ronald James Alwaris & Ors. v. State
of Maharashtra, AIR 1998 SC 1251, this Court held that F
apropos the recovery of articles belonging to the family of the
deceased from the possession of the appellants soon after the
robbery and the murder of the deceased remained
unexplained by the accused, and so the presumption under
Illustration (a) of Section 114 of the Evidence Act would be G
attracted :
    "It needs no discussion to conclude that the murder and
    the robbery of the articles were found to be part of the
    same transaction. The irresistible conclusion would
                                                                      H
    1060    SUPREME COURT REPORTS                [2011) ·6 S.C.R.


A       therefore, be that the appellants and no one else had
        committed the three murders and the robbery."

        (See also: Baijur v. State of Madhya Pradesh, AIR 1978
        SC 522; and Mukund alias Kundu Mishra & Anr. v. State
        of Madhya Pradesh, AIR 1997 SC 2622).
B
         7.7. Thus, the law on this issue can be summarized to the
  effect that where only evidence against the accused is recovery
  of stolen properties, then although the circumstances may
  indicate that the theft and murder might have been committed
C at the same time, it is not safe to draw an inference that the
  person in possession of the stolen property had committed the
  murder. It also depends on the nature of the property so
  recovered, whether it was likely to pass readily from hand to
  hand. Suspicion should not take the place of proof.
D
         8. In the instant case, accused Kuniya was arrested on
  24.12.1996 and a silver glass and one thousand rupees were
  alleged to have been recovered on his disclosure statement on
  29.12.1996. Again on disclosure stater. 1 ent dated 2.1.1997, a
E scooter alleged to have been used in the dacoity, was
  recovered. Similarly, another accused Talevar was arrested on
   19.1.1997 and on his disclosure statement on 26.1.1997, two
  thousand rupees, a silver key ring and a key of Ambassador
  car alleged to have been used in the crime were recovered.
  Thus, it is evident that recovery on the disclosure statements
F of either of the respondents/accused persons was not in close
   proximity of time from the date of incident. More so, recovery
   is either of cash, small things or vehicles which can be passed
  from one person to another without any difficulty. In such a fact
   situation, we reach the inescapable conclusion that no
G presumption can be drawn against the said two respondents/
   accused under Section 114 Illustration (a) of the Evidence Act.
   No adverse inference can be drawn on the basis of recoveries
   made on their disclosure statements to connect them with the
   commission of the crime.
H
       STATE OF RAJASTHAN v. TALEVAR & ANR.                  1061
               [OR. S.S. CHAUHAN, J.]

      9. The instant appeal has been prepared by the State           A
against the judgment and order of acquittal of the respondents
by the High Court. The law on the issue is settled to the effect
that only in exceptional cases where there are compelling
circumstances and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of        B
acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the
trial Court's acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is
possible should be avoided, unless there are good reasons for        c
interference.

       (See : Brahm Swaroop & Anr. v. State of U.P., AIR 2011
       SC 280; V. S. Achuthanandan v. R. Balakrishna Pillai &
       Ors., (2011) 3 SCC 317; and Rukia Begum & Ors. v. State
       of Karnataka, (2011) 4 SCC 779).                              0
      10. In view of the above, we do not find any reason to
interfere with the well reasoned judgment and order of the High
Court acquitting the said respondents. The appeal lacks merit
and is accordingly dismissed.                                        E

R.P.                                        Appeal dismissed.