CRL.A./52/2016 of GHANSHYAM @ RAJU Vs STATE (GOVT NCT OF DELHI)

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 17.05.2017Judgment Pronounced On: 29.05.2017

CRL.A. 52 /2016

GHANSHYAM @ RAJU

... Appellant

Through: Mr. Siddharth Yadav andMr. Ankit Aggarwal, Advocates.

versus

STATE (GOVT. OF NCT OF DELHI)... Respondent

Through: Ms. Rajni Gupta, APP forState.

CORAM:HON’BLE MR JUSTICE SIDDHARTH MRIDULHON’BLE MS JUSTICE MUKTA GUPTA

J U M N T

SIDDHARTH MRIDUL, J.

1.The present appeal instituted under the provisions of section 374 ofthe Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’),assails the judgment dated 28.07.2015 and the order on sentence dated29.07.2015, rendered by the Ld. Additional Sessions Judge, Delhi, inSessions Case No. 98/2014.

2.By way of the impugned judgment dated 28.07.2015 and order onsentencedated29.07.2015,theappellant/GhanshyamaliasRaju(hereinafter referred to as ‘Appellant’) was convicted and sentenced asfollows:

i.Imprisonment for Life and fine of Rs.5,000/- under theprovisionsofSection302,IndianPenalCode,1860(hereinafter referred to as ‘IPC’). In default of payment offine, he has been sentenced to undergo Simple Imprisonment(SI) for period of 06 months.provisionsofSection302,IndianPenalCode,1860(hereinafter referred to as ‘IPC’). In default of payment offine, he has been sentenced to undergo Simple Imprisonment(SI) for period of 06 months.

ii.Rigorous Imprisonment for period of 10 years and fine ofRs.5,000/- under the provisions of Section 394, IPC read withSection 397, IPC. In default of payment of fine, he has beensentenced to undergo SI for period of 06 months.

iii.Imprisonment for Life and fine of Rs.5,000/- under theprovisions of Section 120-B, IPC. In default of payment offine, he has been sentenced to undergo Simple Imprisonmentfor period of 06 months.

iv.SI for period of 01 year under the provisions of Section 411,IPC.IPC.

All the sentences have been directed to run consecutively. Thebenefit of section 428, CrPC, has been granted to the Appellant with regardto sections 394 and 411, IPC.

3.The fulcrum of the case of the prosecution is that, on 25/26.05.2008,

the Appellant, in conspiracy with the domestic servant ‘X’ (juvenile in

conflict with law), who was employed in the House No. C-61, Niti Baghi.e., the residence of Mr. Ashok Goel and Mrs. Lata Goel; and one otherco-accused namely Birju @ Sita Ram (absconding), committed robbery insaid house. Further, whilst committing robbery, the Appellant along withhis said associates, caused the death of Mr. Ashok Goel and Mrs. LataGoel (hereinafter referred to as the 'deceased victims') by using deadlyweapons (viz. knives).4.On 26.05.2008, pursuant to receiving DD No.9 dated 26.05.2008[Ex.PW-17/A, Ex.PW-29/A], police team proceeded to the house of thedeceased victims where they were found dead; lying in pool of blood;and the house was found ransacked. PW-2 and PW-3, the daughter andson-in-law of the deceased victims, respectively; and PW-5, relative ofthe deceased victims, also reached the crime spot. An FIR No. 175/2008dated 26.05.2008, under sections 302/394/398 IPC was registered [Ex.PW-16/A]. The crime spot was investigated by police team, crime team anda dog squad; articles were lifted for scientific examination [vide seizurememo Ex.PW-3/A]; and the dead bodies were identified by PW-3 and PW-4 and sent to the mortuary. Post mortem on the dead bodies was conducted[Ex.PW-6/A; Ex.PW-30/A] and the bodies were handed over to PW-3 andPW-4.5.It is further the case of the prosecution that on 28.05.2008, duringthe course of investigation, whilst the police team was at the nearby NitiBagh market, New Delhi, they met PW-7, Ramesh Saini, who wasemployed as domestic servant in House No.C-65, Niti Bagh, New Delhi.PW-7 gave statement to the police [Ex.PW-7/A] that, the appellant madea confession of his guilt to PW-7, inasmuch as, he confessed that healongwith his brother (‘X’) and his maternal uncle, had committed robberyat the residence of the deceased and the murder of the deceased victims.The prosecution case is also that, PW-7, ‘X’ and the appellant were knownto each other. Further that, PW-7 informed the police that the appellantworked at House No. C-41, Gulmohar Park, as domestic servant.

6.Pursuant to recording of the statement of PW-7, the police teamproceeded to House No. C-41, Gulmohar Park, on 28.05.2008 itself, wherethey found the appellant, who was then arrested [vide arrest memo Ex.PW-28/A]. The appellant made disclosure statement to the police [Ex.PW-28/C]. Thereafter, at the instance of the appellant, the blood stained knife[Ex.PW-28/P-1] used in the commission of the offence, wrapped in ablood stained pant [Ex.PW-28/P-2], was recovered from his possession;alongwith part of the robbed property [Ex.PW-28/P-3; Ex.PW-28/P-4].Currency notes in the sum of Rs.8970/- were also recovered at the instance

of the appellant. The said articles, including the weapon of offence wereseized vide seizure memo Ex.PW-28/E.

7.The case of the prosecution is also that, on 30.05.2008, policeparty, proceeded to Bihar in search of ‘X’; and recovered part of therobbed property from the house of ‘X’ in Bihar [vide seizure memoEx.PW-19/A]. The second police team, alongwith the appellant, left forBihar on 30.05.2008, and on 03.06.2008, recovered part of the robbedproperty from the house of the appellant at his instance [vide seizure memoEx.PW-28/F]. Thereafter, one of the police teams, alongwith the appellantand the recovered robbed property, came back to Delhi. The second policeteam apprehended ‘X’ at Calcutta on 13.06.2008 and returned back toDelhi on 15.06.2008. On 16.06.2008, the prosecution recovered inter aliaanother knife at the instance of ‘X’ [seizure memo PW-3/I] from the lanebehind the house of the deceased victims, in the presence of PW-3.

The articles lifted from the crime spot on the date of the incident, i.e.26.05.2008 as well as the recovered robbed property; the weapons of theoffence; other articles recovered from the accused persons, were sent forscientific examination. The FSL results were received thereafter [Ex.PW-31/A, Ex.PW-32/A, Ex.PW-32/B, Ex.PW-32/C, Ex.PW-32/D]. Medicalopinion qua the weapons of offence was also obtained [Ex.PW-6/B,Ex.PW-6/C, Ex.PW-6/D].

8.Learned Counsel appearing on behalf of the Appellant would urgethat, the investigation in the present case suffers from various lapses andlacunae, inasmuch as, no attempt was made by the prosecution to join anyindependent witness at the time of seizure of the robbed articles and of thealleged weapon of crime (knife), recovered pursuant to the disclosurestatement of the Appellant.

9.Learned Counsel for the Appellant would then draw the attention ofthis Court to the testimonies of PW-22 and PW-28 in order to asseveratethat no evidence has been adduced in support of any investigationconducted by two police teams in Bihar.

10.In other words, it has been urged on behalf of the appellant that theprosecution story ought to be disbelieved on the ground that the allegedrobbed property recovered from the Appellant has been planted on him.

11.It would further be urged that the appellant has been falselyimplicated, inasmuch as, no blood was found at the place from where theblood stained knife wrapped in the blood stained pant was recovered.Further, no scientific evidence was obtained with regard to the crime spotand the recovered knife. Furthermore, the finger print expert conducted hisinvestigation one month after the date of the incident [Ex.PW-8/A].

12.It would then be urged that the reliance on the alleged extra judicialconfession by the appellant to PW-7, is misplaced. In order to buttress this

submission, reliance would be placed on the decision of coordinate benchof this Court in Ghanshyam Prasad Yadav v. State, reported as 2013 (1)JCC 74. Furthermore, it would be contended that PW-7 is plantedwitness of the prosecution, inasmuch as, there are contradictions in thestatements of PW-29 and PW-7 with regard to the place and time ofrecording of the statement of PW-7 on 28.05.2008.

13.It would further be urged that the alleged conspiracy hatchedbetween the appellant and ‘X’ has not been made out. Next, it would beurged that there is no evidence to demonstrate the entry and exit of theAppellant from the house of the deceased victims, on the date of theincident i.e. 26.05.2008.

14.Per contra, learned Additional Public Prosecutor whilst supportingthe impugned judgment in its entirety, would urge that the findings of theLd. Trial Court require no interference.

15.It would be submitted that the prosecution has established by cogentevidence that, the appellant and his co-accused, ‘X’, in connivance witheach other, had conspired to commit robbery and the murder of thedeceased victims.

16.We have heard the learned counsel appearing on behalf of theparties and perused the entire case record.

17.It is settled legal position that when recovery is effected pursuantto any statement by the accused, the document prepared by theinvestigating officer contemporaneous with such recovery need notnecessarily be attested by an independent witness. If any such statementleads to the recovery of any article, it is open to the investigating officer totake the signature of any person present at that time, on the documentprepared for such recovery. However, if no witness was present, it wouldnot make the document prepared in relation to the recovery, tainted oneand the recovery evidence, unreliable. [Ref: State, Govt. of NCT of Delhiv. Sunil and anr., reported as (2001) 1 SCC 652]

18.In the instant case, the recovery of the part of the robbed articles aswell as the blood-stained knife, wrapped in the blood-stained pantbelonging to the appellant, was made from Delhi, at the house where theappellant used to work as domestic servant. The recovery made fromDelhi, was pursuant to the disclosure statement of the appellant. Further,part of the robbed articles was also recovered from the house of theAppellant in Bihar, at his instance.

19.Furthermore, perusal of the testimony of PW-29 would reveal thatno public witnesses were found in the locality of the appellant in Delhi, atthe time of his arrest. Moreover, it is also clear from perusal of thetestimony of PW-22 that, on 03.06.2008, an attempt was made to join

independent witnesses from the locality of the appellant’s house, whilstconductingtheinvestigationinBihar.However,nonejoinedtheinvestigation at the request of the police team. In this behalf, it would betrite to observe that it is common experience that public persons aregenerally reluctant to join police proceedings. Thus, the Court cannotignore this handicap with which the investigating agency has to dischargeits duties. The Court, therefore, instead of doubting the prosecution casefor want of public witnesses, must consider the broad spectrum of theprosecution story and then search for the nugget of truth with regard toprobability, if any, suggested by the accused. [Ref: Appabhai & anr. v.State of Gujarat, reported as AIR 1998 SC 696]

20.In view of the foregoing, the recovery evidence in the present casecannot be considered as unreliable purely, on account of the non-joining ofany independent witnesses during the seizure.

21.With regard to the investigation conducted in Bihar, PW-22 hasdeposed that he alongwith his team left for Bihar, by air, on 30.05.2008and reached Bihar on the same day. PW-22 has clearly testified that onreaching Bihar, the team made efforts to locate the whereabouts of the co-accused i.e. ‘X’, as per the latter’s name and address on his servantverification form [Ex.PW-29/G]. However, the whereabouts of ‘X’ couldnot be traced and the police team contacted the SHO, P.S. Defence Colony,

who supplied another address of ‘X’ in Bhalva, District Banka, Bihar. Theteam, alongwith the local police officials of Bihar, including PW-19, thenconducted raid at the house of the co-accused ‘X’, and recovery of part ofthe robbed property was made from his house. The police team was joinedby the team led by PW-28 on 31.05.2008, in Bihar. Thereafter, on03.06.2008, the police team alongwith the local police went to the house ofthe appellant, from where part of the robbed articles were also recovered,at his instance. On 05.06.2008, PW-22, alongwith some police staff andthe appellant, took the case property recovered from Bihar, and left forDelhi. The police team reached Delhi on 06.06.2008.22.A perusal of the testimony of PW-28 makes it evident that healongwith his team, including PW-21, left for Bihar on 30.05.2008, bytrain, alongwith the appellant. PW-28 has testified that the team reachedBhagalpur, Bihar in the evening of 31.05.2008. On 03.06.2008, theappellant took the team (alongwith the local police) to the Village Bhalva,District Banka, Bhagalpur, and got recovered brief case make NOVEX,one golden chain with locket of goddess sherawali maa, one ring and onemobile phone make NOKIA. The robbed property was seized vide seizurememo Ex.PW-28/F.

PW-28 further testified that since the police remand of the appellantwas slated to expire, the appellant was sent to Delhi with PW-22 alongwithsome police staff, to be produced in Court.

PW-28 further deposed that thereafter, he alongwith PW-21 andother police staff proceeded to Calcutta on 09.06.2008, to ascertain thewhereabouts of the co-accused ‘X’. ‘X’ was arrested on 13.06.2008 atCalcutta. PW-28 also deposed that he was joined by PW-29 at Calcutta on13.06.2008. The team returned to Delhi on 15.06.2008.

23.PW-19 has testified that he accompanied the police team from Delhito the house of ‘X’, and also deposed regarding the recovery of robbedproperty therefrom. Furthermore, the seizure memo Ex.PW-28/F qua therobbed property recovered from the house of the Appellant in Bihar,clearly demonstrates that the same has also been signed by PW-19.

24.A perusal of the testimony of PW-21 would also show that heaccompanied PW-28 to Bihar on 30.05.2008, and that the team remainedthere upto 09.06.2008.

25.PW-29 has testified that PW-22 reached Delhi from Bihar, with theappellant, on 06.06.2008 and deposited the case property in the malkhana.Further deposed that on the intervening night of 28/29.06.2008, PW-28informed him of the location of ‘X’ at Calcutta. He further testified that he

reached Calcutta on 13.06.2008 when he was informed that the co-accused‘X’ had been arrested. He further deposed that the team returned to Delhion 15.06.2008.

26.In view of the foregoing, it is patently clear that recovery of therobbed property from Bihar has been corroborated by the testimonies ofPW-22, PW-28, PW-21, PW-29 and the testimony of PW-19, the localpolice official of Bihar police. Therefore, the investigation conducted bythe police in Bihar cannot be disputed.

27.Consequently, in view of the foregoing, the bald assertion of theappellant that the robbed articles are planted to falsely implicate theappellant in the present case, does not hold water and is thus rejected.

28.In relation to the scientific evidence, it has been held by the Ld.Trial Court in the impugned judgment that the crime was committed by theappellant with knife. The weapon of crime was recovered along with acream coloured pant pursuant to the disclosure statement made by theappellant on 28.05.2008. The biological report [Ex.PW-32/A] has beenrendered with conclusion that blood was found on the knife which wassent for examination; and the serological report [Ex PW32-B] concludesthat the blood found on the knife was of ‘O’ group. Further, perusal ofthe said serological report also demonstrates that the blood found on theclothes of both the deceased persons was also having ‘O’ group.

29.Further, the knife recovered pursuant to the disclosure statement ofthe appellant was also sent to the Department of Forensic Medicine,AIIMS,Delhi,fortheirsubsequentopinion.PW6(Sr.Resident,Department of Forensic Medicine, AIIMS, Delhi) gave his opinion[Ex.PW-6/B] that the injuries found on the bodies of the deceased could becaused by the said knife. Further, it was opined by PW-6 that the injuriessuffered by the deceased victims were sufficient to cause the death in theordinary course of nature.

30.In view of the above, it is apparent that scientific and medicalevidence adduced in the present case corroborates the prosecution story,inasmuch as, the knife recovered at the instance of the Appellant was theweapon used by the Appellant in the commission of the offence.

31.Furthermore, the argument advanced with regard to the delay inconducting the fingerprint analysis is self-serving, inasmuch as, perusalof the report furnished by the finger print expert [Ex.PW-8/A], reveals thatthe examination was conducted by PW-8 on 26.05.2008 i.e., the date of theincident.

32.Coming now to the testimony of PW-7. It is settled legal positionthat minor discrepancies on trivial matters without affecting the core of theprosecution case, ought not to prompt the Court to reject evidence in itsentirety. On the general tenor of the evidence given by the witness, the trial

CRL.A.52/2016

court upon appreciation of evidence forms an opinion about the credibilitythereof. In the normal circumstances the appellate court would not bejustified to review it once again without justifiable reasons. It is the totalityof the situation, which has to be taken note of. Difference in some minordetail, which does not otherwise affect the core of the prosecution case,even if present, that itself would not prompt the Court to reject theevidence on minor variations and discrepancies. [Ref: State v. Saravanan& Anr., reported as AIR 2009 SC 152]

33.It has been deposed by PW-7 that two days subsequent to theincident i.e. 28.05.2008, at about 2 P.M., the Appellant came up to him andthreatened him to the effect that “If I made any complaint to the police, hewould kill me, like he had killed one old man and one old woman”.Further, PW-7 deposed that, upon inquiry by him, the Appellant stated thathe killed the deceased victims, with the help of the co-accused ‘X’ and thematernal uncle of the Appellant. It has been deposed by PW-7 that later onthe same day i.e. 28.05.2008, at about 4 P.M., he met PW-28 at the marketnear House No.C-65, Niti Bagh, New Delhi, and that his statement wasrecorded by PW-28 in the police post.

34.PW-29 deposed that on 28.05.2008, he alongwith PW-28 and otherstaff went to the Niti Bagh market, where PW-7 met them. It has been

further deposed that PW-7 was interrogated and his statement wasrecorded by PW-29 himself.

35.PW-28 deposed that he along with other staff reached the shoppingcomplex Niti Bagh, New Delhi, at around 2-2:30 P.M. and left at 3.30P.M. after recording the statement of PW-7. Further, it has been deposedthat the statement of PW-7 was recorded by PW-29 using the bonnet of theOfficial Gypsy.

36.On conjoint reading of the testimonies of PW-7, PW-28 and PW-29, it cannot be disputed that, the statement of PW-7 was recorded in theafternoon of 28.05.2008, after PW-7 met police team at shoppingcomplex Niti Bagh, Delhi, comprising of, inter alia, PW-28 and PW-29.

37.The contradictions in the testimonies of PW-7, PW-28 and PW-29,as regards the exact time, place and the police officer who recorded thestatement of PW-7, are minor in nature and do not go to the root of thematter. Further, this Court is not oblivious of the fact that the testimony ofPW-7 was recorded almost 2 years after the date of the incident; and thetestimonies of PW-28 and PW-29 were recorded almost 07 years after thedate of the incident, and therefore, the same are prone to such minorinconsistencies.

38.In view thereof, the argument sought to be advanced by theAppellant that PW-7 is planted witness, inasmuch as, there are

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contradictions in the testimonies of PW-7, PW-28 and PW-29 as regardsthe circumstance in which the statement of PW-7 was recorded by thepolice team, is untenable.

39.TheCourt in Ghanshyam Prasad Yadav v. State (supra) placedreliance on the principles enunciated by the Hon’ble Supreme Court with

regard to extra judicial confessions in Sahadevan v. State of Tamil Nadu,

reported as 2012 (5) SCALE 415. The principles enunciated are

reproduced hereinbelow:

“(i) The extra judicial confession is weak evidence by itself. It hasto be examined by the court with greater care and caution.to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra judicial confession attains greater credibility andevidentiary value, if it is supported by chain of cogentcircumstances and is further corroborated by other prosecutionevidence.evidentiary value, if it is supported by chain of cogentcircumstances and is further corroborated by other prosecutionevidence.

(v) For an extra judicial confession to be the basis of conviction, itshould not suffer from any material discrepancies and inherentimprobabilities.should not suffer from any material discrepancies and inherentimprobabilities.

(vi) Such statement essentially has to be proved like any other factand in accordance with law.”and in accordance with law.”

“12. In case of circumstantial evidence, the onus lies upon theprosecution to prove the complete chain of events which shallundoubtedly point towards the guilt of the accused. Further more,in case of circumstantial evidence, where the prosecution reliesupon an extra judicial confession, the court has to examine thesame with greater degree of care and caution. It is settledprinciple of criminal jurisprudence that extra judicial confession isa weak piece of evidence. Wherever the Court, upon dueappreciation of the entire prosecution evidence, intends to base aconviction on an extra judicial confession, it must ensure that the

same inspires confidence and is corroborated by other prosecutionevidence. If, however, the extra judicial confession suffers frommaterial discrepancies or inherent improbabilities and does notappear to be cogent as per the prosecution version, it may bedifficult for the court to base conviction on such confession. Insuch circumstances, the court would be fully justified in ruling suchevidence out of consideration.”

40.A plain reading of the above principles makes it abundantly clearthat an extra judicial confession can be safely made the basis for theconviction of an accused, in the event the same, (i) is made voluntarily; (ii)inspiresconfidence;(iii)iscorroboratedbyachainofcogentcircumstances and prosecution evidence; and (iv) does not suffer from anymaterial discrepancies and improbabilities.

41.In the present case, the Ld. Trial Court with regard to the extrajudicial confession made to PW-7 by the Appellant, has held as follows:

“22. Extra judicial confession made by accused Ghanshyambefore PW-7 Ramesh Kumar Saini fulfills all requirementslaid down by Hon’ble Delhi High Court in the aforesaidcase. Thus, confession was made by accused Ghanshyamvoluntarily and same inspires confidence of the Court. ExtrajudicialconfessionmadebyaccusedGhanshyamissupported by cogent circumstances and is also corrobaratedby other prosecution evidence viz. recovery of weapon ofoffence i.e. knife, at the instance of accused, scientific andmedical evidence providing that the said knife was used incommission of crime and recovery of part of robbed articlesfrom or at the instance of the accused Ghanshyam. TheCourt does not find any material discrepancy or inherentimprobability. Therefore, the extra judicial confession madeby the accused stands proved in accordance with law.”42.In terms of the decision in Sahadevan (supra), in our consideredview, the Ld. Trial Court is not in error in placing reliance on the extrajudicial confession of the appellant, inasmuch as, the extra judicialconfession made voluntarily made to PW-7, inspires confidence and hasbeen corroborated by chain of cogent circumstances and prosecutionevidence. Furthermore, the extra judicial confession made by the appellantdoes not suffer from any material discrepancies and improbabilities.

43.With regard to the offence of conspiracy, the well-settled legalposition is that conspiracy is hatched in secrecy and more often than notthe same is proved by way of circumstantial evidence. [Ref: State ofKarnataka v. Selvi J. Jayalalitha, in Criminal Appeal Nos. 300-303 of2017 (Arising out of SLP (Crl.) Nos. 6117-6120 of 2015), reported as2017 SCC OnLine SC 134]

44.The Trial Court has found that the testimonies of PW-3, PW-4 andPW-7 clearly establish the acquaintance between the appellant and his co-accused ‘X’ and that the prosecution has proved beyond reasonable doubtthat the Appellant and ‘X’ conspired to commit robbery and murder at thehouse of the deceased victims.

45.A perusal of the testimony of PW-3 would reveal that on18.05.2008, the Appellant and PW-2 went to the house of the deceased

victims where there domestic servant ‘X’ was also present. perusalfurther reveals that on the said date ‘X’ had also called one of hisassociates viz. the Appellant, to work in the house of the deceased persons.PW-3 has also testified that, the Appellant was working as domesticservant in the same neighbourhood as the deceased persons.

46.PW-4 deposed that ‘X’ was working as domestic servant in thehouse of the deceased victims. On 18.05.2008, PW-4 went to the house ofthe deceased to attend their wedding anniversary. He further deposed that,the Appellant was also present in the house of the deceased, and washelping ‘X’ in serving food. PW-4 further testified that ‘X’ introduced theAppellant as his cousin who was working in nearby flat.

47.PW-7 identified the Appellant in Court and deposed that the latterwas working at House No.C-41, Gulmohar Park, Delhi. It has beendeposed by PW-7 that he got to know the Appellant, one month prior tothe date of the incident, when they used to go to Mother Dairy in thenearby Niti Bagh market to bring milk. PW-7 further deposed that theAppellant introduced ‘X’ as his brother. He further deposed that, on therequest of the Appellant, he got ‘X’ appointed as domestic servant atHouse No.C-8, Gulmohar Park, New Delhi. However, subsequently theservices of ‘X’ were terminated therefrom.

48.Thus, conjoint reading of the above makes it evident that contraryto what has been contended by the Appellant, the Appellant and ‘X’ wereknown to each other. In this behalf, it is trite to observe that in case ofcircumstantial evidence when the accused offers an explanation and thatexplanation is found to be untrue, then the same offers an additional link inthe chain of circumstances to complete the chain. [Ref: Swapan Patra v.State of West Bengal, reported as (1999) 9 SCC 242; State ofMaharashtra v. Suresh, reported as (2000) 1 SCC 471; Kuldeep Singh v.State of Rajasthan]

In the instant case, the false answer given by the Appellant to thespecific questions put to him whilst recording his statement under section313, CrPC, denying that he knew ‘X’ and his maternal uncle, Birju,provides the additional link or missing link in completing the chain ofcircumstances.

49.In the present case, the prosecution has brought on record medicalevidence in the form of the post-mortem report, and the medical opinionclearly establishes that the death of the deceased was caused due to theshock suffered, due to the injuries caused on them [Ex.PW-6/B, Ex.PW-30/A]. Further, it has been opined that the said injuries on the deceasedvictims could have been caused by the knives which was sent for medicalopinion [Ex.PW-6/B].

50.On conjoint reading of the scientific evidence and the medicalopinion, the prosecution has unequivocally established that the knives usedby the Appellant and his associate, recovered at their instance, were in factthe weapons used in the commission of the crime.

51.Furthermore, the prosecution has recovered major part of therobbed property and the same has been identified by PW-3, daughter of thedeceased victims, as belonging to the latter [in the TIP proceedings,Ex.PW-2/B, Ex.PW-24/A, Ex.PW-24/C, Ex.PW-24/D] . The said robbedproperty was recovered from the respective houses of the Appellant and‘X’, at Bihar; and from the Appellant in Delhi. Further, bare reading ofthe testimony of PW-7 would reveal that the Appellant has confessed hisguilt qua the commission of the offence and he has also stated that he, inconspiracy with ‘X’ and his maternal uncle, committed the robbery andmurder in the present case.

52.In view of the foregoing, it cannot be said that the Ld. Trial Courterred in holding that the Appellant and his associates conspired to committhe offences in the present case.

53.Under the provisions of Section 114 of the Indian Evidence Act,1872 (hereinafter referred to as ‘the Evidence Act’), the Court isempowered to presume existence of certain facts. Illustration (a) to the saidprovision under Section 114 of the Evidence Act, entitles the Court to

presume that man who is in possession of stolen goods after the theft, iseither the thief or has received the goods knowing them to be stolen, unlesshe can account for their possession. If the prosecution by way of evidence,is able to prove beyond reasonable doubt that, the commission of murderand the robbery formed part of one transaction; and the recovery of thestolen properties from the house of some of the accused persons and attheir instance, and no explanation from those accused persons on beingquestionedundertheprovisionsunderSection313ofCrPCisforthcoming, it reasonably points to the guilt of this accused persons,establishing the fact that it is they who committed the murders in the houseand then committed robbery and left the scene of occurrence. [Ref: A.Devendran v. State of Tamil Nadu, reported as 1997 (11) SCC 720]

54.In the present case, the prosecution has been able to prove that themurder and robbery at the house of the deceased victims were integralparts of the same transaction, owing to the recovery of the robbed propertyand weapon of offence being made at the instance of the appellant, twodays after the date of the incident. Furthermore, the Appellant has raisedno defence in the present case and made only bald denials in his statementunder section 313, CrPC with regard to the recovery of robbed propertyand weapon of offence. Thus, the same offers an additional link in thechain of circumstances in order to complete the chain, that the Appellant

and his co-accused ‘X’ not only conspired to commit robbery at the houseof the deceased, but in consequence thereof also committed murder of thedeceased.

55.In view of the foregoing discussion, the prosecution havingestablished its case beyond reasonable doubt, it cannot be said that thefinding of conviction of the Appellant reached by the Ld. Trial Court isperverse, calling for any interference by this Court.

56.Coming now to the order on sentence dated 29.07.2015. five-JudgeConstitutionBenchoftheHon’bleSupremeCourtin Muthuramalingam&Others v. State, reportedas 2016(8)SCC313, whilst dealing with reference from three-Judge Bench, as regardsthe question “Whether consecutive life sentences can be awarded to aconvict on being found guilty of series of murders for which he has beentried in single trial?”, held as follows:

“34. In conclusion our answer to the question is in thenegative. Weholdthatwhilemultiplesentencesforimprisonment for life can be awarded for multiple murdersor other offences punishable with imprisonment for life, thelife sentences so awarded cannot be directed to runconsecutively.Suchsentenceswould,however,besuperimposed over each other so that any remission orcommutation granted by the competent authority in onedoes not ipso facto result in remission of the sentenceawarded to the prisoner for the other.

35. Wemay,whileparting,dealwithyetanotherdimension of this case argued before us, namely, whetherthe court can direct life sentence and term sentences to runconsecutively. That aspect was argued keeping in view thefactthattheappellantshavebeensentencedtoimprisonment for different terms apart from being awardedimprisonment for life. The trial court's direction affirmedby the High Court is that the said term sentences shall runconsecutively. It was contended on behalf of the appellantsthat even this part of the direction is not legally sound, foronce the prisoner is sentenced to undergo imprisonment forlife,thetermsentenceawardedtohimmustrunconcurrently. We do not, however, think so. The power ofthe court to direct the order in which sentences will run isunquestionable in view of the language employed inSection 31 CrPC. The court can, therefore, legitimatelydirect that the prisoner shall first undergo the term sentencebefore the commencement of his life sentence. Such adirection shall be perfectly legitimate and in tune withSection 31 CrPC. The converse however may not be truefor if the court directs the life sentence to start first it wouldnecessarily imply that the term sentence would runconcurrently. That is because once the prisoner spends hislife in jail, there is no question of his undergoing anyfurther sentence.Whether or not the direction of the courtbelow calls for any modification or alteration is matterwith which we are not concerned. The regular Benchhearing the appeals would be free to deal with that aspectof the matter having regard to what we have said in theforegoing paragraphs.

(emphasis supplied)”

57.Thus, the following legal position can be clearly culled out from theaforesaid decision:

i.Life imprisonments can be awarded for multiple offences, inaccordance with law, by superimposing them over each other.However, the life sentences cannot be directed to runconsecutively.accordance with law, by superimposing them over each other.However, the life sentences cannot be directed to runconsecutively.

ii.Section 31 of the CrPC does not impose any limitation on theconcerned Court to direct the convict to undergo the termsentence before the commencement of his life sentence.concerned Court to direct the convict to undergo the termsentence before the commencement of his life sentence.

iii.However, the concerned Court cannot direct the convict toundergo the life sentence prior to the commencement of histerm sentence. If so directed, it would necessarily imply thatthe term sentence shall run concurrently.undergo the life sentence prior to the commencement of histerm sentence. If so directed, it would necessarily imply thatthe term sentence shall run concurrently.

58.In view of the above dicta, we are of the view, that the Ld. TrialCourt fell into grave error, inasmuch as, there was no direction that theAppellant would first undergo the term sentences under section 411, IPC,and under section 394 read with section 397, IPC; before undergoing thelife sentences awarded to him under section 302 and section 120-B, IPC.

59.However, after bestowing our anxious consideration to the facts andcircumstances of the case, we are of the view that it would sufficientlyserve the ends of justice if the term sentences awarded to the Appellant aredirected to run concurrently with the life imprisonments awarded to him.60.In view of the foregoing, the Order on Sentence dated 29.07.2015 ismodified to the extent that, all the sentences awarded for the commission

of offences punishable under the provisions of sections 120-B, 302, 397,394, 411, IPC, shall run concurrently.

61.The conviction of the Appellant under sections 302, 120-B, 394, 397and 411, IPC, is however, upheld. The present appeal is accordinglydismissed with the above modification.

62.No order as to costs.

63.Copy of the judgment be communicated to the appellant through the

Superintendent, Tihar Jail and be sent also for updation of the records.

SIDDHARTH MRIDUL, J.

MUKTA GUPTA, J.

MAY 29, 2017mk/sb