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), what are the tests: i. 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 [See Sanwant Khan (supra)]; ii. The nature of the stolen article; 36 iii. The manner of its acquisition by the owner; iv. The nature of evidence about its identification; v. The manner in which it was dealt with by the accused; vi. The place and the circumstances of its recovery; vii. The length of the intervening period; viii. Ability or otherwise of the accused to explain its possession

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.57 OF 2013
SONU @ SUNIL ... APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH ... RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. The appellant was tried with 4 others and was
convicted under Sections 394, 460 and 302 read with
Section 34 of the Indian Penal Code, 1860 (hereinafter
referred to as, ‘the IPC’, for short). He was also
found guilty of offences under Sections 11 and 13 of
the Madhya Pradesh Dakaiti Avam Vyapharan Adhiniyam,
1981 (hereinafter referred to as, ‘Madhya Pradesh
Adhiniyam’). The appellant was, in fact, sentenced to
death for the offence under Section 302 read with
Section 34 of the IPC along with two other accused
apart from a fine of Rs. 5000/-. He was sentenced to
2
10 years Rigorous Imprisonment in regard to the offence
under Section 460 of the IPC. He was also handed down
a sentence of 10 years for the offence under Section
394 read with Section 34 of the IPC. Still further, he
was also sentenced to 7 years for the offence under
Sections 11 and 13 of the Madhya Pradesh Adhiniyam. By
the impugned judgment, the High Court answered the
death reference by holding that in the circumstances,
the death penalty was not warranted. In place of death
penalty, the High Court sentenced the appellant and two
other accused to life imprisonment and enhanced the
fine to Rs. 25,000/-. The appeal filed by the appellant
was dismissed otherwise. The prosecution case, in
brief, appears to be as follows:
On 08.09.2008, in the night, Bharosilal
(hereinafter referred to as, ‘the deceased’,
for short) was at his village Bilaua. He was
residing alone. One Abhay Sharma-PW9, who is
the son of the deceased, was informed by one
Neeraj Bhargav that his father has not opened
the door on that day. On receiving such
information, PW9, who also turned out to be
3
the complainant, finally went to his father’s
residence and it was found that his father was
dead and the First Information Report (FIR)
was lodged on 10.09.2008. On the basis of the
investigation conducted, Kalli, Hariom, Veeru,
Virendra and the appellant came to be charged
with the offences as noticed. In fact, the
appellant was charged under Section 397 of the
IPC also.
2. PW1 to PW15 were examined as prosecution witnesses.
Material objects were also produced. The following are
the questions, which were framed by the Trial Court:
“(i) Whether accused Kalli @ Gopal Sharma,
Sonu @ Sunil and Hariom on the date of
incident after sunset and before
sunrise after committing house tress
pass in the residential house of
deceased Bharosilal, committed the
murder of Bharosilal?
(ii) Whether accused Kalli @ Gopal Sharma,
Sonu @ Sunil and Hariom formed common
intention to commit murder of
Bharosilal?
(iii) Whether accused Kalli @ Gopal Sharma,
Hariom and Sonu @ Sunil in fulfilment
of their common intention committed
murder of Bharosilal by strangulation
and cutting by a chhuri (knife)?
4
(iv) Whether accused Kalli @ Gopal Sharma,
Hariom and Sonu @ Sunil by using
deadly weapon in committing robbery,
committed the murder of Bharosilal and
looted gold and silver jewellery and
two mobile phones of Nokia made from
the possession of Bharosilal?
(v) Whether accused Veeru and Virendera
along with accused Kalli @ Gopal
Sharma, Hariom and Sonu @ Sunil, at
the house of accused Virendra Singh,
Kushmah hatched conspiracy of
committing robbery in the house of
Bharosilal?
(vi) Whether the accused persons committed
the offence defined and specified
under Section 2(b) of MPDVPK Act and
committed the offence u/s 11/13 of the
above said Act?”
3. The Trial Court found that it was a case entirely
based on circumstantial evidence. It noticed that the
deceased had suffered the following injuries:
“Injury No.1 Incised of 6x1.5x1 c.m. on
the right side of the chin.
Injury No. 2 Incised wound of 4 x 1 ½ cm
below 1 cm from the injury
no. 1.
Injury No. 3 Incised wound of 6 x 3 x 2cm
left fore arm anteriority
middle.
Injury No. 4 Incised wound of 6 x 1 x 1cm,
just 2cm below injury no. 3.
Injury No. 5 Incised wound of 6 x 1 x 1cm,
just 2cm below injury no. 4.
5
Injury No. 6 Incised wound on abdomen 3”
below measuring 3 x 2 x deep
upto peritoneum, part of
intestine coming out from
the wound.”
4. The cause of death was found to be shock and
hemorrhage due to excessive bleeding caused by
multiple wounds. The death was caused within 36 hours
of the postmortem report. The postmortem was conducted
on 10.09.2008. It cannot be disputed that the death
was homicidal and it was caused with the intent to
commit murder. The Trial Court further proceeded to
find that the certain articles were found missing from
the almirah in the house where the deceased stayed.
PW8 is wife of the deceased. PW9, as already noticed,
is one of the sons of the deceased. PW13 held
identification of the gold and silver jewellery and
the mobile phones, which according to them, belonged
to the deceased. The identified articles were
belonging to the deceased. One hasli (necklace) made
of silver, one pair of earrings and two mobile phones
were identified. The contention of the accused that
PW13, who held the identification proceedings, deposed
that at that time a Police Officer was present, was
6
rejected by finding that from the Identification MemoExhibit P21, it was clear that no Police Officer was
present at the time of the identification of the
proceedings. The Court also relied upon the evidence
of PW8 and PW9, who were found to have not stated about
the presence of Police Officers at the time of the
identification proceedings. The evidence of PW9 and
the evidence of PW8, were also referred to, to find
that the Police came to open the door. It was opened
and it was seen that the almirah was opened and
goods/gold articles were scattered, and out of the
said goods, one hasli (necklace) made of silver, one
pair of gold earrings and two mobile phones, were
missing. The evidence of PW3-another son, was relied
upon to find that PW5 had overheard the conversation
between all the accused which was to the effect that
the deceased was living alone and they were making a
plan for committing a loot in his house. No doubt, the
Court also noticed that PW1, who was cited by the
prosecution, to prove the said conversation, turned
hostile. PW3 had also deposed that he was told by PW5
about having overheard the conversation between the
7
accused. The evidence of PW3 was relied upon to find
that both Virendra and Veeru used to come to massage
the body of his father and his father used to say that
they would be got employed. PW3 deposed about his
familiarity with accused Virendra, Veeru and Kalli
present in the Court. PW6- another son of the deceased,
has deposed that Kalli used to come to his village to
sell ghee and used to sit and talk with the deceased
and used to massage the body of his father. The Trial
court finds that Veeru, Virendra and Kalli used to
come and they were also acquainted with the deceased
and his family members. Thereafter, the Trial Court
also referred to the recoveries of the articles. From
Hariom, one mobile phone was recovered. From Kalli,
the Chhuri(knife), used for committing the offence,
was recovered. From the appellant, another mobile
phone of Nokia Company, Model 5110, of black colour,
upon which the Number 97321820 was written in red ink,
was also seized. The evidence of PW9 was relied upon
wherein he has deposed, that a Nokia Mobile on which
B.L. in English was written with red marker, and on
the battery of the same, Number 97321820 in red ink,
8
had been written, was stolen. From accused Virendra,
the recovery of hasli(necklace) was effected. From
Veeru, one pair of gold earrings was seized. On the
basis of the same, it was found that the stolen
property and weapon have been seized on the statement
of the accused, and that these circumstances,
completed the chain of circumstantial evidence.
Reliance was placed on the deposition by PW5, who had
overheard the conversation between the accused about
the criminal conspiracy. PW7, a witness to the recovery
statement of the appellant-Exhibit P13 and also
evidence of PW12- the Police Inspector, who arrested
the appellant, has been relied upon to prove the
statement leading to the recovery of the mobile from
the appellant. The following findings may be noted:
 “In the above said analysis it is
proved that there is criminal conspiracy
amongst the accused persons to commit
theft or loot in the house of deceased,
on the basis of memorandum statement of
accused Hariom, the looted mobile is
recovered/ seized from the possession of
accused Hariom on the basis of memorandum
of accused Kalli @ Gopal Sharma and on
producing by him one blood stained sharp
edged chhuri (knife) used in the offence
has been seized from the possession of
accused Kalli @ Gopal Sharma. On the basis
9
of memorandum statement of accused Sonu @
Sunil and on producing by him the looted
mobile Nokia is seized from accused Sonu
@ Sunil. In the same manner on the basis
of Accused Virendra one old and used hasli
(necklace) made of silver is seized from
the possession of accused Virendra. On
the basis of accused Veeru and on
producing by him the looted property i.e.
one pair of earrings are seized by the
police from the possession of accused
Veeru. All the four looted properties
i.e. two mobile phones, one hasli
(necklace) and one pair of gold earrings
have been identified by Rukmani (PW-8)
and Abhay Kumar Sharma (PW-9) in
identification proceedings and they
admitted that the same belong to them.
All these circumstances complete the
chain of circumstances against the
accused persons. The accused persons have
not produced any evidence in rebuttal of
the same. The defence did not explain the
fact that the looted property and weapon
of offence have been recovered from their
possession in this situation it is clear
that. The accused persons hatched
criminal conspiracy of committing loot in
the house of the deceased, accused Kalli
@ Gopal Sharma, Hariom and Sonu @ Sunil
has committed murder of deceased before
sun rises and after sun set by entering
in the house of the deceased.
 From the criminal conspiracy and in
fulfillment of the same and from the
seizure of weapon of offence and looted
property from the accused Kalli @ Gopal
Sharma, Hariom, Sonu @ Sunil and no
explanation of the same on behalf of
defence it would be presumed that accused
Kalli @ Gopal, Sonu @ Sunil and Hariom by
entering in the house of deceased before
sun rise and after sun set has committed
10
loot and in committing of the said loot
has committed the murder of deceased
Bharosilal Sharma by inflicting injuries
with knife. Because at the time of
committing loot all the three accused
persons Kalli @ Gopal, Hariom and Sonu @
Sunil were present at the place of
occurrence, all the three have also
committed loot and in committing of the
said loot the murder of deceased
Bharosilal has been committed, from this
it is clearly concluded that there were
common intention amongst the accused
persons Kalli @ Gopal, Hariom and Sonu @
Sunil to commit the murder of deceased
Bharosilal. Therefore, the offence
u/s460/302/34 against accused Kalli @
Gopal, Hariom and Sonu @ Sunil are proved
beyond reasonable doubt.
 So far as the question of offence u/s
397/34 IPC against accused Kalli @ Gopal,
Hariom and Sonu @ Sunil is concerned the
weapon used in the offence knife is only
seized from accused Kalli @ Gopal Sharma,
it is clear from the same that at the time
of incident a chhuri, used in the incident
which is deadly and sharp edged was in
possession of accused Kalli @ Gopal
Sharma.”
(Emphasis supplied)
5. The appellant was found along with Hariom, guilty
of the offence under Section 394 read with Section 34
of the IPC, whereas, Section 397 of the IPC was found
proved against Kalli. The Trial Court found Kalli
guilty under Section 397 read with Section 34 of the
IPC. Appellant was also convicted under Section 302
11
read with Section 34 of the IPC. Thereafter, it was
also found that the appellant and others were guilty
of the offences under Sections 11 and 13 of the Madhya
Pradesh Adhiniyam, based on the offences proved
otherwise.
6. The High Court, in appeal, proceeded to find that
eleven circumstances emerged before the Trial Court:
i. The incident in connection with the loot took
place on 08.09.2008 after locking the doors from
inside in the house of the deceased who was
residing alone.
ii. That the postmortem confirms the prosecution
case. It is found that it is natural that on
09.09.2008 when the deceased did not appear to
be seen and was not responding on knocking the
door, Neeraj Bhargava informed PW9 that he was
not responding. PW9 and PW8 departed to the
place to know about the welfare of the deceased.
iii. Upon request of PW9, his neighborPhoolchand climbed through the stairs and he
found the deceased with blood on his hand and
12
was lying dead. He went to the Police Station
Bilaua for lodging the report which was recorded
at about 11:30 P.M in night. The dead body was
referred for postmortem on the same day and the
FIR was lodged in the evening of 10.09.2008.
iv. On 10.09.2008, Ashok Kumar(PW3), in his Case
Diary Statement, disclosed that the Cell Phone
Number 9406586386, generally used by his father,
was also found missing. Another Cell Phone
Number 9928120429, which was made available by
son of deceased, was also found missing.
v. Investigation was conducted by PW15 and
initially names of the assailants were not
dictated by that time.
vi. The successor of PW15-(PW14) conducted
subsequent investigation. Statements of
witnesses were recorded, call details of stolen
mobile sets from Cyber Cell was received. On
18.10.2008, he came to know the names of
assailants from Cyber Cell. Within two days,
arrests were made of the accused, viz., Kalli,
13
Hariom, Parihar, Virendra Kachhi and Veeru. The
Churri(knife) was seized from accused Kalli, one
necklace from Virendra, one pair of gold
earrings from Veeru.
vii. The accused cannot get benefit for the
inaction/ latches of the investigation.
viii. On 02.11.2008, D.P. Sharma-PW12, arrested
appellant and recovered from him one mobile
phone bearing SIM No. 97321820.
ix. As per medical evidence, it is clear that the
deceased was put to death by the accused or any
one of them. Looking to the nature of the
incised wounds seen on the body of the deceased,
the death appears to be homicidal.
x. Identification of properties, which were
seized/ recovered in between 18.10.2008 to
02.11.2008, was conducted on 10.12.2008, which
cannot be said delayed because the persons who
have identified the articles, were the residents
of Gwalior.
14
xi. The motive of the incident is apparently
clear. It was committed for committing
loot/theft, and during the incident of theft,
the deceased was killed by the accused.
7. We have heard learned Senior Counsel for the
appellant and also learned counsel for the state.
Learned Senior Counsel would complain that there is no
evidence against the appellant for convicting him for
the offences, he has been found guilty of. He
complained that the Court’s below have erred in placing
reliance upon PW-5 who allegedly overheard the
conversation between the five accused persons by
standing outside the house of one of them. He points
out that the witness could not be believed. It is
pointed out that PW-1 who was cited by the prosecution
to prove the said conversation has not adhered to the
version which was sought to be attributed to him. It
is highly improbable that PW-5 could have overheard
any such conversation. He pointed out that a clear
discrepancy in regard to the recovery of the mobile
phone from the appellant. In the memorandum relating
15
the alleged recovery of the mobile phone, what is
stated is that the appellant took one mobile phone
make of Nokia of the deceased and he has hidden the
same on the roof of his house. The seizure memo reveals
the following as what was recovered:
“
S.No. Property Signatures
obtained on
packets or
property
1. One mobile phone of Nokia
company of black colour old
and used, model No. 5110
made in Finland CE 0188X no.
490541/30/26305416 is
written. Code No. 0502182 is
written. B.L. is written on
the mobile in red ink and on
its battery a no. 97321820
is written with red ink.
(some portion not
illegible).
“
8. He would then point out that the High Court, in
the recital of circumstances, has found that a Cell
Phone Number 9928120429 was found missing, and then he
points out the eighth circumstance, which is noted by
the Court, is that one mobile phone, bearing SIM Number
97321820, was recovered from the appellant. Therefore,
the phone that was seized from the appellant was not
16
the phone number which was mentioned by the son of the
deceased, PW-3, as was being used by his father. He
further pointed out about the mysterious maxi found at
the premises. In this regard, we may notice the
following findings by the Trial Court:
 “It is argued on behalf of defence
that one blood stained and sleeveless
maxi of white colour having lines of brown
colour, the lower portion of the same is
blood stained and the same is used is
seized by the police wide Ex P-6 from the
place of occurrence, while there was no
woman present at the place of occurrence.
In such a situation, on account of seizure
of maxi from the place of occurrence, the
presence of any woman at the time of the
incident is proved, but who was that
woman, the prosecution did not produce
any evidence in this regard hence, the
prosecution case is doubtful. Only
recovery/ seizure of blood stained maxi
from the place of occurrence does not make
doubtful to the prosecution case. Human
blood was detected on the shirt of
deceased and on the said maxi, there is
no evidence that there was blood of any
other person on the maxi. Because the wife
of the deceased Rukmani Sharma is alive
and Rukmani Sharma (Pw-8) has admitted in
her cross examination that she used to go
occasionally to the house/ place of
occurrence at Bilaua. In this sitation
where there are visits of the wife of
deceased in the house then this
probability could not be denied that the
said maxi would be of the wife of the
deceased. In this situation from the
17
seizure of maxi from place occurrence the
incident could not be doubtful.”
9. He would point out that the Investigating Officer
admitted that he did not carry out any investigation
regarding the maxi. He would further contend that there
is no evidence, as far as the appellant is concerned,
to convict him of the offences. The evidence, even
according to the prosecution witnesses, show that the
other accused, viz., Veeru, Virendra and Kalli, were
known to the prosecution witnesses as persons who would
frequent the house of the deceased. As far as the
appellant is concerned, there is no such evidence. In
short, the contention is that the case is one where
the appellant is convicted without any evidence and
the injustice may be set right.
10. Per contra, learned Counsel for the State
supported the judgment.
11. As already noticed the appellant stands convicted
under Section 460, 302 read with Section 34 of the IPC
and Section 394 read with Section 34 of the IPC. This
is besides convicting the appellant under Sections 13
18
and 14 of the Madhya Pradesh Adhiniyam. The case hinges
entirely on circumstantial evidence. Though eleven
circumstances have been enlisted by the High Court,
the circumstances Nos. 2 and 3 relate to the
prosecution version as to the discovery of the death
of the deceased by his son and his wife. They relate
to going to the place of his residence, finding out
the dead body and the lodging of the FIR. Circumstance
No. 5 also does not amount to a circumstance. Equally,
we are not convinced that the circumstance No. 7, viz.,
that the accused cannot get benefit for the
inaction/latches of the investigation, can amount to
a piece of circumstantial evidence for the prosecution
to discharge its burden to prove the case against the
accused.
12. The circumstances, which can be culled out, can
be put as follows:
 The deceased died in his house where
he was living alone, as a result of
shock and hemorrhage from 6 incised
wounds as noticed and proved by medical
evidence. The death is homicidal too.
There were valuable articles, namely, a
silver necklace, gold earring and two
mobile phones which were found missing
too. These articles have been recovered
19
from the accused as already mentioned.
A knife stood recovered from Kalli, one
of the accused. The other valuable
articles identified by the closed
relative, namely, his wife and his son
stood recovered. From the articles so
recovered, one mobile phone was
recovered from the appellant.
13. There is evidence of prosecution witnesses that
out of the five accused, viz., Kalli, Veeru and
Virendra used to frequent the house of the deceased.
The over hearing of the conversation by PW-5 amongst
the accused prior to the death of the deceased about
their plans to commit loot/theft from the house of the
deceased is another circumstance relied upon.
WHETHER A MOBILE PHONE WAS RECOVERED BASED ON STATEMENT
BY APPELLANT
14. PW12 has deposed that on 01.11.2008, after
arresting the appellant and on enquiry in custody, he
(appellant) made Statement-P13 to the effect that the
looted mobile seized was hidden on the loft of his
room and he would recover the same. He further deposed
that appellant took the looted mobile from the loft
and he prepared the Seizure Memo. In the
cross-examination, he states that the seized mobile
20
was of the deceased. He further stated that no
documents were produced. He denied that he had planted
the mobile from anywhere and false proceedings have
been done. PW7 has been examined to prove, inter alia,
that he was called to the Police Station, and after 15
to 20 days of the proceedings relating to the recovery
of the knife from Kalli, enquiry was made from the
person, who he has told was Sonu-appellant. On making
enquiry, he gave an information in respect of the
mobile. He deposed that he has signed on the
Statement-P13 [the Statement purportedly to be under
Section 27 of the Indian Evidence Act, 1872
(hereinafter referred to as, ‘the Evidence Act’, for
short)]. He also admits that he had signed on the
Seizure Memo prepared based on the
Statement-P14. Thus, PW7 and PW12 prove that a
statement was given by the appellant while in custody.
Based on the statement, a mobile phone was recovered
from the appellant. The recovery was from his house.
It was not from an open space.
21
WHETHER RECOVERED PHONE PROVED AS BELONGING TO THE
DECEASED. EVIDENCE RELATED TO THE MOBILE PHONE,
RECOVERED FROM THE APPELLANT
15. PW3-son of the deceased has this to say:
On 10.09.2008, his brother told him that some
persons had committed murder of his father causing
injuries with sharp-edged weapon and took away
goods/articles from the almirah. Along with this,
they also took away two mobile phones of his
father. The mobile phone of his father is
940655863866 which is of BSNL. The sim of the same
has been issued either from Dabra or Bilaua (We
are not concerned with this phone as this phone
has been recovered from another accused).
What is stated next is as follows:
The other phone bearing number 9920121429 make
of M-Nokia was fitted with square LKD Red LED which
had a light while charging the mobile. The mobile
was bought by him at Bombay prior to three months
ago when his father came to Bombay so that
information about him could be communicated.
22
He, however, also says in his cross-examination
that he had stated in his statement to the Police
that when his father came to Bombay, then, he had
given him another phone of make Nokia which had
LED and showing light while charging the mobile.
The mobile number of the other phone was mentioned
in Exhibit D1. He is unable to explain as to why
if such statement is not found in the statement
given by him to the Police. He said that again he
is unable to give the reason as to why it is not
mentioned in the statement to the Police that he
had stated that the father had two sims out of
which one was of Vodafone which was purchased from
Bombay. Lastly, he states in further cross as
follows:-
“Cross-examination by Sh. A.K. Shrotiya,
Advocate for Sunu@Sunil.
I could not tell the date on which I had
given mobile phone to my father the above
said mobile I had purchased from Mahesh
Gahera, Mahesh Gahera is residing Bombay
he lived at Bandra the same was given in
gift the EMI of the same. I could not tell
today I can not produce a receipt of the
same as I was given the above said mobile
as gift to me by Mahesh Gahera, he deals
in mobile phone he as several sets of the
23
same. My father had another mobile phone
made of Nokia EMI no of the same I would
not tell I neither have receipt of the
same nor I could produce the same.”
16. PW9 is another son of the deceased, who has
identified the mobile phones. This is what he has to
say in regard to the mobile phones:
The mobiles were of black colour and having
old antenna. On the battery of one mobile A9406586386 is written in red ink and on the other
mobile on the back side it is written capital ‘BL’,
in English and number 97321820 was written with
red marker. He says that after 8 to 10 days, when
they checked the goods, they came to know that
some articles had been stolen. He further states
that they had informed the Police by that day about
the theft of the mobiles. He and his mother went
to identify the goods. His mother was called first
and he went later.
It is to be remembered that PW3 says he had given
the mobile in question prior to 3 months ago when
deceased came to Bombay. The deceased was staying
24
alone. It is PW9 now who has identified by the number
written in the battery.
17.PW8 is the mother. She says first, on the next
day, Police Officer came and they opened the room and
they saw that almirah was opened and articles were
scattered. Out of the articles, one hensli (necklace
made of silver), gold earrings and two mobile phones
of Nokia Company, were stolen. Except this, no article
was stolen. She says that identification of the
articles was got done by her. In cross-examination on
behalf of Kali alias Gopal, she says that on 11th or
12th, she came to know about the articles which were
stolen. She says that in her statement to the Police,
she has stated that on the next day of incident, the
almirah was opened and the articles were scattered
and, then, she came to know that her goods had been
stolen. She had not made any complaint anywhere in
respect of her stolen goods. She denies allegation
that they have concocted a false story of goods being
stolen after 8 to 10 days of the incident for creating
25
evidence. In this regard, it may be noticed that in
the evidence of PW9-son, he has stated that after going
to the lower room on the next day, he saw the almirah
on that day. Articles were lying outside. Therefore,
they guessed that something had been stolen. At that
time, it could not be known what had been stolen. After
8 to 10 days, when they checked the goods, they came
to know that some articles had been stolen.
18.In the Recovery Memo of the phone from the
appellant, it is stated as follows:
One mobile phone of Nokia company of black
colour mode no. 5110, made in Finland, followed
by a certain number, code number is shown as
0502182 was written, BL is written on the mobile
in red ink and, on its battery, the number 97321820
is written with red ink.
19. According to the deposition of PW3, the recovery
of phone which is attributed from the appellant, was
bearing number 9920121429. The High Court has, in the
impugned judgment, found that another Cell Phone
Number 9928120429, which was made available by his
26
son-PW3, was found missing. Thereafter, the finding by
the High Court is that D.P. Sharma, ASI arrested the
accused and on 02.11.2008 recovered from him one mobile
phone bearing sim number 97321820. It is clear that
the finding by the High Court that recovery was made
from the appellant of one mobile phone sim number
97321820, is clearly contrary to the version of PW3
who purchased or was gifted the phone which he
allegedly gave to his father. Even, according to the
Recovery Memo, the Number 97321820 is shown as the
number on the battery of the mobile phone. The number,
which is allegedly provided by PW3, is the Number
9920121429.
20. In Ashish Jain v. Makrand Singh and others1, it is
held as follows:
 “28. We find substance in the argument
of the learned Amicus Curiae that this
identification was not done in accordance
with due procedure. It is evidence from
the testimony of several of the examined
pledgors, such as PWs 15, 16 and 28, that
the identification procedure was
conducted without mixing the recovered
jewellery with similar or identical
ornaments….”
1 (2019) 3 SCC 770
27
21. In this case also in regard to the mobile phone
only the two mobiles were kept for identification and
it was purportedly identified as noticed by PW9 besides
PW8. In the identification conducted by PW13, it is
come out that two mobile phones were not mixed with any
other mobile phones
22. What is the effect of recovery of the mobile
proceeding on the basis that it belonged to the
deceased? Section 114 of the Evidence Act with
illustration (a) reads as follows:
 “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.
Illustrations
The Court may presume—
(a) That a man who is in possession of
stolen goods soon after the theft is
either the thief or has received the goods
knowing them to be stolen, unless he can
account for his possession;”
28
23. The scope of this provision has been considered
by this Court on various occasions. In Sunder Lal alias
Sundera v. State of Madhya Pradesh2, both the accused
and deceased were seen together. After the alleged
murder, the accused went with the article belonging to
the deceased for pledging/selling it. In the
circumstances, the Court took the view that the
ornaments were established to be the ornaments worn by
the deceased. No explanation was forthcoming how the
accused came to be in possession on the very same day
on which the alleged murder was committed. On this,
the Court took the view that the conviction under
Section 302 of the IPC, based on the circumstances,
was correct.
24. On the other hand, in Sanwant Khan and another v.
State of Rajasthan3, one Mahant Ganesh Das, who was a
wealthy person, used to live in a temple of Shri
Gopalji along with another person. Both of them were
found dead. The house had been ransacked and boxes and
almirah opened. It was not known at the time who
2 AIR 1954 SC 28
3 AIR 1956 SC 54
29
committed the offence. Investigation resulted in
arrest of the appellant, and on the same day, he
produced a gold khanti from his bara, where it was
found buried in the ground. Another accused produced
a silver plate. The Court found that there was no
direct evidence. There were certain circumstances
which were rejected by the Sessions Judge and the
solitary circumstance was the recovery of the two
articles. In these circumstances, the Court held,
inter alia, as follows:
“Be that as it may, in the absence of
any direct or circumstantial evidence
whatsoever, from the solitary
circumstance of the unexplained recovery
of the two articles from the houses of
the two appellants the only inference
that can be raised in view of illustration
A to S. 114 of the Evidence Act is that
they are either receivers of stolen
property or were the persons who
committed the theft, but it does not
necessarily indicate that the theft and
the murders took place at one and the same
time.
xxx xxx xxx
Here, there is no evidence, direct or
circumstantial, that the robbery and
murder formed parts of one transaction.
It is not even known at what time of the
night these events took place. It was only
30
late next morning that it was discovered
that the Mahant and Ganpatia had been
murdered and looted. In our Judgment,
Beaumonth, C.J., and Sen J. in – Bhikha
Gobar v. Emperor, AIR 1943 Bom 458 (B)
rightly held that the mere fact that an
accused produced shortly after the murder
ornaments which were on the murdered
person is not enough to justify the
inference that the accused must have
committed the murder.
xxx xxx xxx
In our judgment no hard and fast rule can
be laid down as to what inference should
be drawn from a certain circumstance.
Where, however, the only evidence against
an accused person is the recovery of
stolen property and although the
circumstances may indicate that the theft
and the murder must have been committed
at the same time, it is not safe to draw
the inference that the person in
possession of the stolen property was the
murdered. Suspicion cannot take the
place of proof.
(Emphasis supplied)
25. In Baiju v. State of Madhya Pradesh4, the Court
held:
“14. The question whether a presumption
should be drawn under illustration (a) of
S. 114 of the Evidence Act is a matter
which depends on the evidence and the
circumstances of each case. Thus the
nature of the stolen article, the manner
of its acquisition by the owner, the
nature of the evidence about its
4 AIR 1978 SC 522
31
identification, the manner in which it
was dealt with by the appellant, the place
and the circumstances of its recovery,
the length of the intervening period, the
ability or otherwise of the appellant to
explain his possession, are factors which
have to be taken into consideration in
arriving at a decision.”
That was a case where the Court found that
prosecution had proved the case.
26. This Court, in Shri Bhagwan v. State of Rajasthan5,
held:
 “11. The possession of the fruits of
the crime, recently after it has been
committed, affords a strong and reasonable
ground for the presumption that the party
in whose possession they are found is the
real offender, unless he can account for
such possession in some way consistent
with his innocence. It is founded on the
obvious principle that if such possession
had been lawfully acquired, that party
would be able to give an account of the
manner in which it was obtained. His
unwillingness or inability to afford any
reasonable explanation is regarded as
amounting to strong, self-inculpatory
evidence. If the party gives a reasonable
explanation as to how he obtained it, the
courts will be justified in not drawing
the presumption of guilt. The force of
this rule of presumption depends upon the
recency of the possession as related to
the crime and that if the interval of time
be considerable, the presumption is
weakened and more especially if the goods
5 AIR 2001 SC 2342
32
are of such kind as in the ordinary course
of such things frequently change hands.
It is not possible to fix any precise
period. This Court has drawn similar
presumption of murder and robbery in a
series of decisions especially when the
accused was found in possession of these
incriminating articles and was not in a
position to give any reasonable
explanation. Earabhadrappa v. State of
Karnataka [(1983) 2 SCC 330 : 1983 SCC
(Cri) 447] was a case where the deceased
Bachamma was throttled to death and the
appellant was taken into custody and gold
ornaments and other articles were
recovered at his instance. This Court
observed: (Para 13)
 “This is a case where murder and
robbery are proved to have been integral
parts of one and the same transaction and
therefore the presumption arising under
Illustration (a) to Section 114 of the
Evidence Act is that not only the
appellant committed the murder of the
deceased but also committed robbery of
her gold ornaments which form part of the
same transaction.”
PW5, WHO OVERHEARD THE CONSPIRATORIAL CONVERSATION
27. In this case both the courts have apparently drawn
strength from the testimony of PW5. PW5 is a person
whose evidence is virtually the sole testimony relied
on to prove the conspiracy to commit theft/robbery.
It is worthwhile to consider what he has deposed in
Court. He and Mohan Sharma, (who is PW1 and has turned
33
hostile) at the house of Virendra Kushwah (Virendra is
one of the accused in this case) found Virendra, Veeru
Dheemar and three other persons sitting and talking.
When they (PW1, PW5) passed in front of the gate, he
saw that they stopped talking. Then they went little
forward. He told that these goondas/miscreants
(Badmaash) seem to be outsiders. Let us listen to their
conversation. They heard, Virendra Kushwah and Veeru
were saying to the three persons that Bharosilal is an
old man and he has a lot of money and is living alone.
He and Veeru would remain here. Kalli-the appellant
and Hariom would go to the house of the deceased to
commit the theft. Then they left from there. Next day
it was known that someone had killed Bharosilal. In
the evening of the next day he refrained from telling
anyone because they were goondas. Later on, he told
the son of Bharosilal, whose name is Abhay, that these
five accused have committed murder. He identified
them. In cross, he says his house is far from where
the goondas were making conversation. On the 16th day,
when the Police came for inquiry, he told all the above
things to the Police. He himself did not tell by going
34
to the Police Station. He says that he has seen all
the three persons (which apparently includes the
appellant) at the Police Station. On 16.10.2008, when
he was called at the Police Station, at that time, all
the three persons were sitting. [The arrest of the
appellant, it may be noted, is made by PW-12 only on
01.11.2008]. He deposed that he did not also see the
accused persons at the Police Station. The Police made
inquiry in the office and these three accused persons
were detained in the Police Station. The police
officials also not shown him the three accused persons
at there. He further says that when the accused persons
were sent to jail, then S.I. had shown to him the
accused persons in the vehicle. The names of all the
three were told and all the three were got identified.
He further says that he had got knowledge of the names
of all the three persons when Police recorded his
statement, i.e., after 8 to 10 days from 16.10.2008.
Then, he came to the name of the remaining three
persons. In earlier cross-examination on behalf of
another accused, he has stated in his statement that
till the Police recorded his statement. He did not
35
know about the residence of the three persons whose
names he has told except Virendra and Veeru but they
seemed to be outsiders. He further says that he has no
knowledge of the fact that the persons who were sitting
in the house of Virendra, if they were uttering by
taking wrong names of each other. He, no doubt, says
that there was light in the house of Virendra. The
light of the same was scattered.
28. 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), what are the tests:
i. 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 [See Sanwant Khan
(supra)];
ii. The nature of the stolen article;
36
iii. The manner of its acquisition by the owner;
iv. The nature of evidence about its identification;
v. The manner in which it was dealt with by the
accused;
vi. The place and the circumstances of its recovery;
vii. The length of the intervening period;
viii. Ability or otherwise of the accused to
explain its possession [See Baiju (supra)].
29. In this case, applying the tests as above, we find
as follows:
I. 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 (hereinafter referred to as ‘the CrPC’, for
short);
II. 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.
37
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;
III. 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;
IV. As far as identification is concerned, we have
already seen the nature of the evidence;
V. It is not in dispute that the two mobile phones
were kept and they were not mixed with any other
similar looking mobile phones.
30. The appellant, along with the others, were charged
under the offences with the aid of Section 34 of the
IPC. The finding by the Trial Court in this case is
that there was a criminal conspiracy hatched to commit
38
robbery. As far as Section 34 is concerned, it
proclaims the principle of vicarious criminal
liability. The soul of the Section, and the principle
which underlies criminal liability for the acts of
another therein, is the shared intention or the common
intention to commit an offence. The common intention
must be for the very offence which the accused is
charged with. In this case, it is to be noted that
though there is a charge of causing death by
strangulation, the finding is 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-Kalli. From him, in fact, the recovery of
the knife was also effected which becomes all the more
reason for us to conclude that it will be totally
unsafe to convict the appellant of the charges of which
he is found guilty including Section 302 of the IPC
based only on the recovery of the mobile phone where
the recovery itself suffers from suspicion and doubt.
We may, in this regard, notice the view expressed by
39
this Court in Hardev Singh and others v. State of
Punjab6: -
 “9. The view of the High Court that
even the person not committing the
particular crime could be held guilty of
that crime with the aid of Section 34 of
the Penal Code if the commission of the
act was such as could be shown to be in
furtherance of the common intention not
necessarily intended by every one of the
participants, is not correct. The common
intention must be to commit the
particular crime, although the actual
crime may be committed by any one sharing
the common intention. Then only others
can be held to be guilty………..”
(Emphasis supplied)
31. In Arun v. State by Inspector of Police, Tamil
Nadu7, this Court, dealing with the case where Section
34 of the IPC was sought to be invoked against the
appellant in the matter of committing the offence of
murder. No doubt, it was a case where there was no
charge or evidence that he committed the murder. This
Court referred to the tests laid down in the decision
in Dharam Pal v. State of Haryana8 and we would refer
6 AIR 1975 SC 179
7 2008 (15) SCC 501
8 1978 (4) SCC 440
40
to paragraphs 14 and 15 of the said judgment. The same
reads as under:
 “14. It may be that when some persons
start with a pre-arranged plan to commit
a minor offence, they may in the course
of their committing the minor offence
come to an understanding to commit the
major offence as well. Such an
understanding may appear from the conduct
of the persons sought to be made
vicariously liable for the act of the
principal culprit or from some other
incriminatory evidence but the conduct or
other evidence must be such as not to
leave any room for doubt in that behalf.
15. A criminal court fastening
vicarious liability must satisfy itself
as to the prior meeting of the minds of
the principal culprit and his companions
who are sought to be constructively made
liable in respect of every act committed
by the former. There is no law to our
knowledge which lays down that a person
accompanying the principal culprit shares
his intention in respect of every act
which the latter might eventually commit.
The existence or otherwise of the common
intention depends upon the facts and
circumstances of each case. The intention
of the principal offender and his
companions to deal with any person who
might intervene to stop the quarrel must
be apparent from the conduct of the
persons accompanying the principal
culprit or some other clear and cogent
incriminating piece of evidence. In the
absence of such material, the companion
or companions cannot justifiably be held
guilty for every offence committed by the
principal offender.” (Emphasis Supplied)
41
32. As far as the presumption being drawn of common
intention, we notice the judgment of this Court in
Brijlal Pd. Sinha v. State of Bihar9:
 “11……..The liability of one person
for an offence committed by another in
the course of a criminal act perpetrated
by several persons will arise under
Section 34 of the Penal Code, 1860 only
where such criminal act is done in
furtherance of a common intention of the
persons who join in committing the crime.
Direct proof of common intention will, of
course, be difficult to get and such
intention can only be inferred from the
circumstances. But the existence of a
common intention must be a necessary
inference from the circumstances
established in a given case. A common
intention can only be inferred from the
acts of the parties. Unless a common
intention is established as a matter of
necessary inference from the proved
circumstances the accused persons will be
liable for their individual act and not
for the act done by any other person. For
an inference of common intention to be
drawn for the purposes of Section 34, the
evidence and the circumstances of the
case should establish, without any room
for doubt, that a meeting of minds and a
fusion of ideas had taken place amongst
the different accused and in prosecution
of it, the overt acts of the accused
persons flowed out as if in obedience to
the command of a single mind. If on the
evidence, there is doubt as to the
9 1998 (5) SCC 699
42
involvement of a particular accused in
the common intention, the benefit of
doubt should be given to the said accused
person. ….”
33. In Girija Shankar v. State of U.P.10, this Court
made the following observations:
“9. …… In order to bring home the
charge of common intention, the
prosecution has to establish by
evidence, whether direct or
circumstantial, that there was plan or
meeting of minds of all the accused
persons to commit the offence for which
they are charged with the aid of Section
34, be it pre-arranged or on the spur
of the moment; but it must necessarily
be before the commission of the
crime.….”
(Emphasis supplied)
34. Thus, in this case, as far as the appellant is
concerned, the evidence against him essentially
consists of the recovery of the mobile phone and there
is discrepancy about the number which we have noted.
PW5 has not taken the name of the appellant.
Essentially evidence of PW5 and the recovery is relied
on to hold that the chain of circumstances is complete.
We have noticed the testimony of PW5. The appellant is
10 2004 (3)SCC 793
43
not mentioned as one of the persons who used to visit
the deceased’s father though three of the other accused
were named, viz., Veeru, Kalli and Virendra. There is
complaint from the appellant that no Test
Identification Parade was conducted for the accused.
We have referred to what PW5 has deposed.
35. In the facts of this case, we are inclined to think
that it would not be safe to uphold the conviction of
the appellant. He would be entitled to the benefit of
doubt. We allow the appeal. The impugned judgment in
so far as it relates to the appellant will stand set
aside and he will stand acquitted. The appellant’s
bail bond shall stand discharged. He will be set at
liberty if his custody is not required in connection
with any other case.
…………………………………………………J.
[SANJAY KISHAN KAUL]
…………………………………………………J.
 [K.M. JOSEPH]
NEW DELHI;
MAY 29, 2020.