1996 INSC 1892
                                        SUPREME COURT OF INDIA

                                                    Net Raj Singh

                                                           Vs.

                                                     State of M.P.

                                           (A Anand and K Thomas JJ.)

                                                      19.12.1996

                                                    JUDGMENT

THOMAS, J.

1. The appellant was convicted of dacoity with murder and was sentenced to death by the Sessions
Court. On appeal before the High Court of Madhya Pradesh, the conviction was upheld but the
sentence was reduced to imprisonment for life. He has filed this appeal by special leave. The
question which has narrowed down in this appeal, in the light of concurrent findings on facts by the
two courts, is whether a presumption could legally have been drawn against the appellant for
dacoity and murder on the strength of his possessing one of the stolen article two days after the
occurrence.

2. For considering the aforesaid crucial point, we may set but, briefly, the facts: On 11.10.1988, one
Sunder Lal (PW-8) was proceeding from his village (Nagar Deori) on horse back to Kercani Village
(Madhya Pradesh) with a herd of pigs, his twelve year old son Lathi Ram (PW-10) and twenty year
old daughter (Laxshmibai) were also accompanying him on foot. As they reached the jungle area
(Godarvada Dehat) five persons emerged from the interior and stopped the passengers. One of the
five, who was armed with a gun, pointed the weapon on the chest of Sunder Lal (PW-8) and
demanded him to surrender all his money and jewellery. Sunder Lal dismounted from the
horseback, but suddenly the gunman fired a shot at him which struck him on his loins resulting in
the pellets perforating into his penis and perineum region and then the assailants snatched a bag
containing jewellery from the victim, besides grabbing his wrist watch and the cash from him.
Another person in the gang, who too had a gun, demanded Laxmi Bai to surrender her Karghona (an
ornament). When she began to cry, the armed man shot her dead and grabbed her ornaments. Sunder
Lal (PW-8) managed to stand up and genuflected before the marauders. One of them revealed their
identity as disciples of Gobind Das-so saying he threatened him with the butt end of the gun on his
chest, Sunder Lal (PW-8) slummed down again. In the meanwhile the little boy (Lakhi Ram)
managed to escape from the ken of the dacoits. After they left the scene with the booty Sunder Lal
tottered up and with the help of his little son Lakhi Ram, mounted on his horse returned to his
village leaving the corpse of his daughter Laxmi Bai lying inside the jungle.

3. Sunder Lal (PW-8) accompanied by some others when to Dhooma Police Station and lodged a
first information statement on the same evening (5.25 p.m.). But the police, it appears, remained
lethargic though they were kind enough to ambulance Sunder Lal to Jabalpur Medical College
Hospital.

4. According to the police version they got some information on 13.10.1988 about the clandestine
movements of a person with a country gun hovering around Bhilai Market. PW-15 (Assistant Sub-
Inspector of Dhan-gaur Police Station) rushed to the places with a posse of police and found the
appellant (Netraj) and one Ganpat being trussed up by the local people. Assistant Sub-Inspector
made a search of the person of Ganpat first and recovered a country gun, five cartridges and some
other articles including ornaments. When appellant was searched a silver todal (an ornament) was
recovered. Both of them were arrested at the spot. Later police could trace out four other persons
and they too were nabbed.

5. After completion of investigation police chargesheeted six persons including the appellant and
Ganpat for offences under Section 396 Indian Penal Code and Section 27 of Arms Act. But one of
the six accused remained absconding and hence the trial was held against the other five persons
including the appellant. Sessions Court convicted Ganpat and this appellant or Section 396 I.P.C.
and Section 27 of the Arms Act and sentenced them to death while the other three were acquitted.
High Court of Madhya Pradesh acquitted appellant of the offences under Section 27 of the Arms
Act and confirmed the conviction under Section 396 I.P.C. High Court, however, reduced the
sentence to life imprisonment as for both the convicted persons.

6. This appeal is only by Netraj and hence was need not refer to the evidence pertaining to Ganpat.

7. The only evidence against Netraj is that police recovered the silver todal from him or 13.10.1988.
Both the courts found that the silver todal recovered from him belonged to Sunder Lal and was in
his possession during ill-fated journey designated to Kerpani. In this appeal, we would proceed on
the basis of the fact concluded by both courts that the silver todal was a stolen article and the same
was found in the possession of appellant Netraj on 13.10.1988.

8. Learned Senior Counsel Shri Bachawat, who argued for the State of Madhya Pradesh submitted
that conviction of appellant of the offence under Section 396 IPC is liable to be confirmed on the
aforesaid solitary incriminating circumstance against him. Learned senior counsel contended that
illustration (a) to Section 114 of the evidence Act can well be pressed into service for drawing a
presumption against the appellant. The said illustration reads thus:

That court may presume that a man who is in the possession of stolen goods soon after the theft as
either the thief or has received the goods knowing them to be stolen, unless he can account for his
possession.

9. No doubt the illustration is only an example or at the utmost it is a guideline. Nonetheless the
illustration has a logical basis. Section 114 of the Evidence Act helps the court in deciding on whom
is the burden of, proof in certain situations. A presumption on facts is drawn to assist the court for
determining as to the burden of proof in a set of circumstances.

10. As the court can draw certain inferences either on the basis of cumulative conclusion of
circumstance or on single circumstances the court would be in a position to fix up the responsibility
on one of the other party in the case with the burden to reverse such inferred presumption.
11. Illustration (a) indicates two stages for a presumption. First is that the possessor could be the
thief himself and the second is that the possessor would have been only a receiver of the stolen
property with the requisite knowledge. Accordingly, the former is of aggravated degree and the
latter is of a lesser degree. If possession of stolen article with the accused alone is established in
evidence it is a difficult task for the court to choose between the two stages of presumption
envisaged in the illustration. The nature of possession of the articles, the place of mode of
concealment, the manner in which they were dealt with by the accused, the length of the intervening
period, the number of stolen articles possessed by him are all factors which would assist the court in
drawing a presumption that the possessor was the thief himself. Similarly, if the possession is
associated with any other indication or incriminating circumstance there may. as justification for
drawing the more aggravated presumption. In a case where robbery (or) dacoity and murder are so
inter connected with each other as to become integral parts of same transaction, the court can go to
the extent of drawing the presumption that the possessor was the murderer also.

12. In Ayodhya Singh v. State of Rajasthan speaking for a Bench of three Judges, Justice Khanna, J.
pointed out that the extent of presumption, in a case where it is established that the accused was in
possession of stolen goods, would depend upon the facts and circumstances of the particular case
and no hard and fast rule can be laid down in that regard. Their lordships were dealing with a case
in which a good number of stolen articles were recovered from the house of the prisoner as well as
from his person and also from a graveyard few days later pursuant to disclosure statements elide
from the prisoner. On the facts even at interval of 17 days between the theft and recovery of the
articles was not considered sufficient to desist from concurring with the presumption drawn by the
courts below that the prisoner was guilty of the offence or theft. Another bench of three Judges
considered this position hi Kali Ram v. State of Himanchal Pradesh where two persons were
murdered and their ornaments were pawned by the accused with a banker. It was observed that no
hard and fast rule can be laid down. Human behavior is so complex that room must be left for play
in the Courts. It is not possible to formulate a series of exact propositions and confine human
behavior within straitjackers. The raw material here is far too complex to be susceptible of precise
and exact and exact propositions for exactness here is a fake in Bairy v. State of Madhya Pradesh
this Court considered a case or murder of two inmates of a house coupled with burglary in which a
transistor, a wrist watch, two gold ornaments, a torch light, several sarees and shirts were stolen -
when accused was arrested police recovered those articles from his house on the strength of a
statement made by him. This Court found certain other circumstances and concluded that the
possession of all those articles with the accused when counted along with the other circumstances
would justify the presumption that accused is not only the burglar but also the murderer of the
inmates of the house. In Earaphaprappa v. State of Kamataka this Court observed that "the question
as to what amounts to recent possession of stolen property 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."

13. Here the appellant Net Raj was found in possession of silver todal, not immediately after the
murder, but within and two days of the dacoity. He was found openly moving about with the
ornament keeping it on his person. There is quite a variation in the evidence as to whether the silver
todals were on the person of the deceased, as deposed to by her mother, when she left with her
father or whether father had the same throughout, as evidenced by the story put up by the
prosecution. Whatever that be, there is no evidence to show that he concealed it, nor was he in
possession of any other stolen property involved in the dacoity. Could he have come in possession
of it from one of the dacoits? Is it not possible that he would have received it from someone else?
We are of the opinion that, on the facts and circumstances of this case, it would not be sound to
draw a presumption beyond his being a receiver of the stolen property with the requisite knowledge.

14. We, therefore, allow this appeal and set aside the conviction and sentence passed on the
appellant Net Raj under Section 396 of the Indian Penal Code. We alter his conviction to Section
411 of the I.P.C. and sentence him to rigorous imprisonment for three years. Needless it is to say
that if he had already completed the aforesaid period of imprisonment he shall be released forthwith
if he is not required in any other case.