the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12.09.1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused. 12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming. 13. In view of what has been found above, we do not see as to how the charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1460 OF 2011


RAJ KUMAR @ RAJU                  ...APPELLANT

                            VERSUS

STATE (NCT OF DELHI)            ...RESPONDENT



                               J U D G M E N T

RANJAN GOGOI, J.


1.          The accused appellant had been convicted by  the  learned  trial
Court for the offence punishable under Section 302 read with Section 34  IPC
and has been sentenced to undergo rigorous imprisonment for life and a  fine
of Rs.2,000/-, in default, to suffer rigorous imprisonment for a  period  of
two months more.  He has also been convicted  under  Section  411  IPC   and
sentenced  to  undergo  rigorous  imprisonment  for  one  year.   Both   the
sentences  were  directed  to  run  concurrently.  In  appeal,   while   the
conviction under Section 302 IPC has been  maintained  along  with  sentence
imposed, the conviction under Section 411 IPC has been set  aside.  Instead,
the  accused  appellant  has  been  convicted  for  commission  of   offence
punishable  under  Section  392  IPC  and  sentenced  to  undergo   rigorous
imprisonment for one year for commission of  the  said  offence.  Aggrieved,
this appeal has been filed.
2.          We have heard the learned counsels for the parties.
3.          The entire case of the prosecution is  based  on  circumstantial
evidence.  P.W.5  –  Ombir  Singh,  the  husband  of  the  deceased  in  his
deposition has stated that  he resides with his wife,  three  children,  his
sister Raj Bala (P.W.9) and niece  Sarvesh  (P.W.21).   Accused  Raj  Nirmal
Gautam @ Raju (since deceased) was a tenant in  one  of  the  two  rooms  in
their house. On 11th September, 1991 at around 9.00 p.m. accused Raj  Nirmal
Gautam along with the present appellant Raj Kumar and one more person  named
Dharmender alias Babloo came to his house and together they  played  a  game
of cards.  After some time he went to his room and slept.  Raj  Nirmal,  Raj
Kumar (appellant herein) and Dharmender stayed in the  room  for  the  night
and left early next morning at about 6.30 a.m.  While leaving,  accused  Raj
Nirmal told P.W. 5 that he was going to his village and may not  return  for
the night.  At around 7.30 a.m., his sister Raj Bala  (P.W.9)  who  used  to
reside with him, his niece Sarvesh and the  children  left  for  school.  He
also left for his workplace at around 7.35 a.m.  According  to  P.W.  5,  at
about 2.30 p.m. he received a telephone call in  his  office  informing  him
that his wife had met with an accident.   He,  therefore,  reached  home  by
3.30 p.m. and found the dead body  of  his  wife.   The  almirah  was  found
unlocked and all the goods therein lying scattered.  A number  of  jewellery
items including gold ornaments were found missing.
4.          The accused Raj Nirmal Gautam and Raj Kumar  (appellant  herein)
were apprehended on 16th September, 1991 when they  were  alighting  from  a
bus. On their personal search, various jewellery items were  recovered  from
them which were duly seized by seizure memos Ex.PW-14/C and Ex.PW-14/D.  The
jewellery items so  recovered  from  the  possession  of  the  accused  were
identified by P.W.5 (Ombir Singh) to be belonging to his wife.  The  accused
had  no  reasonable  explanation  to  offer  for  their  possession  of  the
jewellery items. They however claimed that they were not guilty.

5.          P.W. 21 – Sarvesh deposed that at  around  10.15  a.m.  she  had
come back to the  house for lunch and at that time  she  found  the  accused
persons present in the house and were  playing  cards.  Her  aunt  gave  her
lunch and after that she again left for school. When she  returned  at  1.00
p.m. she saw her aunt Suman lying in the kitchen.   P.W.  21  was,  however,
disbelieved by the learned trial Court as she  was  found  to  have  falsely
implicated accused Jagpal who  has  been  acquitted  by  the  learned  trial
court.
6.          P.W.9 – Raj Bala, sister of P.W.5, in her evidence  had  deposed
that in the night of 11.09.1991 the accused persons were  in  the  room  and
they had left early in the morning of the next day. She has further  deposed
that she is a teacher in the school and had accompanied P.W.21 and  the  two
children of P.W.5 to school in the morning at about 7.30 a.m. She  has  also
deposed that at about 12.00–12.30 p.m. she had  sent  the  two  children  of
P.W.5 back home with an Aaya and on being informed  by  the  Aaya  that  her
sister-in-law (deceased) was not available in the house, she  came  home  to
find her sister-in-law lying dead in the kitchen.
7.          P.W.12 – Dhani Ram had deposed that  he  had  seen  the  accused
persons moving around in the neighbourhood looking  perplexed.   An  attempt
was made to discredit the said witness in view  of  his  further  deposition
that he had seen the accused in  police  custody  on  13th  September,  1991
whereas, according  to  the  prosecution,  accused  were  arrested  on  16th
September, 1991 when they were alighting from a  bus.  The  said  contention
was  negatived  by  the  High  Court  on  the  ground  that  the   aforesaid
discrepancy is on account of wrong recapitulation  and  confusion  over  the
specific dates.
8.          P.W. 15 – Raj Kumar, a TSR driver,  also  deposed  that  he  had
occasion to take the three persons including appellant Raj Kumar in his  TSR
at about 11.00 a.m. on 12th September, 1991  and  in  the  course  of  their
conversation he had overheard them discussing  as  to  whether  they  should
have killed “her” or not.  P.W. was disbelieved by the  High  Court  on  the
ground that the conversation attributed by him to the accused is opposed  to
normal human behavior and conduct.
9.          This is the sum total of  the  evidence  on  record.   From  the
above, it transpires that there are two material  circumstances  which  have
been proved by the prosecution.  Firstly, that in the  night  prior  to  the
incident i.e. on 11th September,  1991  the  accused  were  present  in  the
house; and secondly that on 16th September, 1991 from the possession of  the
accused persons recovery of gold ornaments was made which  belonged  to  the
deceased. Such possession has not been explained by  the  accused.  Even  if
the court is to accept the evidence of P.W.12 that in  the  morning  of  the
day of the incident the witness had seen the accused  in  the  neighbourhood
in   a   perplexed   state,   notwithstanding   the    contradictions    and
inconsistencies in the said evidence as already  noticed,  at  the  highest,
another circumstance could be added to  the  above  two,  namely,  that  the
accused persons were seen  in  the  neighbourhood  in  the  morning  of  the
incident. The question that confronts the court is whether on the  basis  of
the aforesaid circumstances the case of the  prosecution  can  be  taken  to
have been proved beyond all reasonable doubts.
10.         Learned  counsel  for  the  appellant  would  contend  that  the
aforesaid circumstances do not conclusively point to the involvement of  the
accused appellant in the crime. The chain leading  to  the  sole  conclusion
that it is the accused persons and nobody else who had committed  the  crime
is not established by the three circumstances set forth above, even  if  all
of such  circumstances  are  assumed  to  be  proved  against  the  accused.
Reliance has also been placed on the decision of this Court in the  case  of
Sanwat Khan and Anr. vs. State  of  Rajasthan[1],  wherein  this  Court  had
taken the view that recovery of ornaments of the deceased from  the  accused
or production of the same by the accused in  the  course  of  investigation,
howsoever suspicious, cannot be conclusive of the question  of  the  accused
having committed the offence. As per Illustration (a) to Section 114 of  the
Evidence Act, 1872 though recovery of the ornaments can lead to  presumption
that the accused had committed robbery or received stolen  property,  unless
there are circumstances to show that the theft/robbery and the  murder  took
place in the same transaction, the accused  would  not  be  liable  for  the
offence under Section 302 IPC.
11.         The facts in Sanwant Khan (supra) bear  a  striking  resemblance
to the facts that confront us in the present  appeal.  If  the  evidence  of
P.W.12 is to be discarded on the ground that such evidence is vague,  (there
is no mention of the date on which P.W.12 had seen  the  accused  person  in
the neighbourhood and also  as  the  said  testimony  runs  counter  to  the
prosecution case about arrest of the accused on 16.09.1991)  the  last  seen
theory built up on the evidence of P.W.5  and  P.W.7  leaves  a  significant
margin of time during which the crime could have been committed by  somebody
other than the accused. The  said  fact  must  go  to  the  benefit  of  the
accused. In this regard, it may be recollected that  P.W.5  and  P.W.7  have
deposed that they had last seen the accused person in the early  morning  of
the date of the occurrence i.e. 12.09.1991 and that they were going away  to
some other place. Even if the evidence of P.W.12 is to be accepted,  all  it
can be said is that the evidence of the said witness read with the  evidence
of P.W.5 and P.W.7 disclose that  the  accused  persons  were  seen  in  the
vicinity of the neighbourhood of  the  crime  little  before  the  same  was
committed. By itself, the said circumstance cannot lead  to  any  conclusion
consistent with the guilt of the accused.
12.         The above circumstance, if coupled  with  the  recovery  of  the
ornaments of the deceased from the  possession  of  the  accused,  at  best,
create a highly suspicious situation; but beyond a strong suspicion  nothing
else would follow in the absence of any other  circumstance(s)  which  could
suggest the involvement of the  accused  in  the  offence/offences  alleged.
Even with the aid of the presumption under Section 114 of the Evidence  Act,
the charge of murder cannot be brought home unless there  is  some  evidence
to show that the robbery and the murder occurred at the same  time  i.e.  in
the course of the same transaction. No such evidence is forthcoming.
13.         In view of what has been found above, we do not see  as  to  how
the charge against the accused/appellant under Section 302 IPC can  be  held
to be proved. The learned trial court as well as the High Court,  therefore,
seems to be erred in holding  the  accused  guilty  for  the  said  offence.
However, on the basis of the presumption permissible under Illustration  (a)
of Section 114 of the Evidence Act, it has to be held  that  the  conviction
of  the  accused  appellant  under  Section  392  IPC   is   well   founded.
Consequently, we hold that the prosecution has  failed  to  bring  home  the
charge under Section 302 IPC against the accused and he is acquitted of  the
said offence. The conviction  under  Section  392  IPC  is  upheld.  As  the
accused appellant, who is presently  in  custody,  had  already  served  the
sentence awarded to him under Section 392 IPC, we direct that he be  set  at
liberty forthwith.
14.         The appeal, consequently, is partly  allowed  in  terms  of  the
above.

                                                     ....................,J.
                                          (RANJAN GOGOI)


                                                     ....................,J.
                                                             (ASHOK BHUSHAN)

NEW DELHI
JANUARY 20, 2017
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[1]    AIR 1956 SC 54