Criminal Appeals – Murder and Theft – Sections 302, 379 r/w 34 IPC – Circumstantial evidence – No eyewitnesses – “Last seen” theory not proved – Recovery of stolen property after long delay – Recovery alone insufficient for conviction for murder – Section 411 IPC – Dishonestly receiving stolen property – Proof of recovery and identification – Partial acquittal

Criminal Appeals – Murder and Theft – Sections 302, 379 r/w 34 IPC – Circumstantial evidence – No eyewitnesses – “Last seen” theory not proved – Recovery of stolen property after long delay – Recovery alone insufficient for conviction for murder – Section 411 IPC – Dishonestly receiving stolen property – Proof of recovery and identification – Partial acquittal

Held:
When the prosecution case rests entirely on circumstantial evidence, each circumstance must be proved beyond reasonable doubt and must form a complete chain pointing only to the guilt of the accused. Conviction for murder and theft cannot be sustained solely on the basis of recovery of stolen property, particularly when such recovery is effected after a considerable lapse of time and there is no evidence of “last seen”, motive, or other incriminating circumstances. However, recovery of stolen property duly proved through identification can sustain conviction under Section 411 IPC.
(Paras 16–23)

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FACTS

The appellants (A1 to A4) along with A5 were tried in Sessions Case No.396 of 2014 for offences under Sections 302 r/w 34 IPC, 379 r/w 34 IPC, and Section 411 IPC (against A2), on the allegation that on 20.05.2013 at about 11.30 a.m., they caused the death of Billa Mowlali by hacking and strangulation and committed theft of 20 goats.

The learned Sessions Judge convicted A1 to A4 for offences under Sections 302 and 379 r/w 34 IPC, and A2 additionally under Section 411 IPC, while acquitting A5.
(Paras 1–4)

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PROSECUTION EVIDENCE

• No eyewitnesses to the occurrence.

• Case based entirely on circumstantial evidence.

• P.Ws.6 to 16, examined to prove “last seen” and other circumstances, turned hostile.

• P.Ws.1 to 4 only established that the deceased was missing and that the dead body was found.

• The sole incriminating circumstance was the alleged recovery of 20 goats from the house of A2, nearly three months after the incident, and their identification by P.W.1 in a Test Identification Parade conducted by P.W.20.
  (Paras 10–17)

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POINTS FOR CONSIDERATION

Whether the convictions of A1 to A4 under Sections 302 and 379 r/w 34 IPC and of A2 under Section 411 IPC are sustainable in law.
(Paras 16–17)

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DISCUSSION AND FINDINGS

(A) Charges under Sections 302 and 379 r/w 34 IPC

• The prosecution failed to prove the “last seen” theory, as material witnesses did not support the case.

• Except the recovery of goats, no other circumstance connected the appellants with the murder.

• Recovery was effected after nearly three months, which by itself was held to be insufficient to sustain conviction for murder and theft.

• Motive alleged by the prosecution (theft and sale of goats) was found inconsistent, as keeping goats for three months without disposal was improbable.

• Supreme Court precedents relied upon by the appellants held that recovery alone cannot sustain conviction for murder.
  (Paras 16–20)

(B) Charge under Section 411 IPC against A2

• Recovery of 20 goats from the house of A2 was proved through P.Ws.20 and 24.

• The Test Identification Parade of goats was conducted and not challenged in cross-examination.

• Hence, conviction under Section 411 IPC was held to be proved and sustainable.
  (Paras 19, 21)

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DISTINCTION OF PROSECUTION AUTHORITY

The judgment relied upon by the prosecution (Gulab Chand case) was distinguished, as that case related to recovery of jewellery, whereas the present case concerned livestock, which would ordinarily be disposed of quickly.
(Para 20)

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FINAL ORDER

1. Criminal Appeal Nos.1807, 1953 and 2683 of 2018 – Allowed.

   • Convictions of A1, A3 and A4 under Sections 302 and 379 r/w 34 IPC are set aside.

   • They are acquitted and directed to be released forthwith, if not required in any other case.

2. Criminal Appeal No.266 of 2021 – Allowed in part.

   • Conviction of A2 under Sections 302 and 379 r/w 34 IPC is set aside.

   • Conviction under Section 411 IPC is confirmed.

   • As A2 had already undergone the sentence, he was directed to be released forthwith.

3. Fine amounts, if paid, directed to be refunded.
   (Paras 22–24)

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RATIO DECIDENDI

1. Recovery of stolen property alone, particularly after a long lapse of time, is insufficient to sustain conviction for murder under Section 302 IPC.

2. In a circumstantial evidence case, absence of “last seen”, motive, and other connecting links is fatal to prosecution.

3. However, proved recovery and identification of stolen property can independently sustain conviction under Section 411 IPC.