# I S.C.R. 462 RAJ KUMAR@ RAJU v. STATE (NCT OF DELHI)

- **Citation:** [2017] 1 S.C.R. 462
- **Court:** Supreme Court of India
- **Decided:** 2017-01-20
- **Case number:** Criminal Appeal No. c D E F G H 1460of2011
- **Bench:** RANJAN GOGOi, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-s-c-r-462-raj-kumar-raju-v-state-nct-of-delhi-31776
- **Pages:** 7

## Headnote

Penal Code, 1860: s.302 rlw s.34, s.411 - Conviction based
on circumstantial evidence - Last seen theory - On the fateful
afternocn, the deceased was found dead and her ornaments were
missing -Appellant and other accused were present in the house of
the deceased in the morning - Prosecution witnesses deposed that
on the same day, appellant and other accused were seen moving
around in the neighbourhood looking perplexed - Appellant was
apprehended after few days and ornaments belonging to deceased
were recovered from him - Conviction of appellant uls.302 and 392 -
Held: The circumstance that the accused persons were seen in the
vicinity of the neighbourhood of the crime little before the same
was committed, by itself, would not lead to any condusion consistent
with the guilt of the accused - The said 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 in the absence
of any o~her circumstances to suggest the involvement of the accused
in the offences alleged - Even with the aid of the presumption u/s.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 - Courts below erred in holding the accused guilty for
the said offence - However, on the basis of the presumption
permissible under Illustration (a) of s.114 of the Evidence Act,
conviction of appellallf uls.392 is well founded - Conviction uls.392
is upheld while conviction u/s.302 is set aside - Evidence Act, 1872 -
s.114, Illustration (a).
Partly allowing the appeal, the Court
HELD: 1.1 There are two material circumstances which
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were proved by the prosecution. Firstly, that in the night prior to
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RAJ KUMAR @ RAJU v. STATE (NCT OF DELHI)
the incident i.e. on 11'" September, 1991, the ·accused were
present in the house; and secondly that on 16" September, 1991
from the possession of the accused persons recovery of gold
ornaments was made which belonged to the deceased. Such
possession was not uplained by the accusecj. 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 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. In this regard, P.W.S and P.W.7
deposed that they had last seen the accused person in the early
morning of the date of the occurrence 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.S and P. W. 7 disclose that t-he
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. [Paras 9, 11) [466-E-F; 467-F-G)
1.2 The said 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 folio~ 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 tbe
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. However, on the basis of the presumption
permissible under Illustration (a) of Section 114 of the Evidence
Ac

## Text

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[2017] I S.C.R. 462
RAJ KUMAR@ RAJU
v.
STATE (NCT OF DELHI)
(Criminal Appeal No.1460 of201 I)
JANUARY 20, 2017
(RANJAN GOGOi AND ASHOK BHUSHAN, JJ.]
Penal Code, 1860: s.302 rlw s.34, s.411 - Conviction based
on circumstantial evidence - Last seen theory - On the fateful
afternocn, the deceased was found dead and her ornaments were
missing -Appellant and other accused were present in the house of
the deceased in the morning - Prosecution witnesses deposed that
on the same day, appellant and other accused were seen moving
around in the neighbourhood looking perplexed - Appellant was
apprehended after few days and ornaments belonging to deceased
were recovered from him - Conviction of appellant uls.302 and 392 -
Held: The circumstance that the accused persons were seen in the
vicinity of the neighbourhood of the crime little before the same
was committed, by itself, would not lead to any condusion consistent
with the guilt of the accused - The said 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 in the absence
of any o~her circumstances to suggest the involvement of the accused
in the offences alleged - Even with the aid of the presumption u/s.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 - Courts below erred in holding the accused guilty for
the said offence - However, on the basis of the presumption
permissible under Illustration (a) of s.114 of the Evidence Act,
conviction of appellallf uls.392 is well founded - Conviction uls.392
is upheld while conviction u/s.302 is set aside - Evidence Act, 1872 -
s.114, Illustration (a).
Partly allowing the appeal, the Court
HELD: 1.1 There are two material circumstances which
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were proved by the prosecution. Firstly, that in the night prior to
462
RAJ KUMAR @ RAJU v. STATE (NCT OF DELHI)
the incident i.e. on 11'" September, 1991, the ·accused were
present in the house; and secondly that on 16" September, 1991
from the possession of the accused persons recovery of gold
ornaments was made which belonged to the deceased. Such
possession was not uplained by the accusecj. 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 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. In this regard, P.W.S and P.W.7
deposed that they had last seen the accused person in the early
morning of the date of the occurrence 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.S and P. W. 7 disclose that t-he
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. [Paras 9, 11) [466-E-F; 467-F-G)
1.2 The said 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 folio~ 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 tbe
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. However, on the basis of the presumption
permissible under Illustration (a) of Section 114 of the Evidence
Act, it bas to be held that the conviction of the accused appellant
und<;r Section 392 IPC is well founded. Consequently, the
prosecution failed to bring home the charge under Section 302
IPC against the accused and be is acquitted of .the said offen\!e.
[Paras 12, 13) (467-G-H; 468-A-B, DJ
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[2017] 1 S.C.R.
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Sanwat Khan and Anr. v. State of Rajasthan AIR 1956
SC 54 -
relied on.
Case Law Reference ·
AIR 1956 SC 54
relied on
Para 10
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
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1460of2011.
From the Order dated 30.10.2009 by the High Court of Delhi in
Criminal Appeal No. 645 of200l.
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Ms. Sangeeta Kumar; Adv. for the Appellant.
Y. ·p; Adnyaru, Sr. Adv., P. K. Dey, Ms. Sushma Verma, Ajay
Kumar Singh, B. K. Prasad, Advs. for the Respondent.
The Judgment of the Court was delivered by
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 dee.eased) was a tenant in one of the two rooms
in their house. On 11 'h September, 1991 at around 9 .00 p.m. accused Raj
Nirmal Gautam along with the present appellant Raj Kumar and one
RAJ KUMAR@ RAJU v. STATE (NCT OF DELHI)
[RANJAN GOGOi, J.]
more person named Dharmender alias Babloo came to his hous,e 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 wus 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 16'" 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 <hP, 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.
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6. P.W.9- Raj Bala, sister of P.W.5, in her evidence had deposed
that i.1 the night of 11.09.1991 the accused persons were in the room and
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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.2.I 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
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[2017] I S.C .R.
children of P. W.5 back home with an Aaya and on being informed by
theAtzyc that her sister-in-law (deceased) was not available in the house,
she e11me 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 th11 neighbourhood looking perplexed. An
attempt was made to discredit the said witness in view of his further
deposition t.hat he had seen the accused in police custody on J Jlh
September, 1991 whereas, according to the prosecution; accused were
arrested on 16"' 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. IS - 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 12'" 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 !he grQund 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 be(;n proved by the prosecution. Firstly, that in the night prior to
the incident i.e. on 11'" September, 1991 the accused were present in the
house; and secondly that on J 61h September, 1991 from the possession
of the accused persons recovery of gold ornaments was made which
belQDged 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 incidentthe witness had seen the accused
in the r.eighbourhood in a perplexed state, notwithstanding the
cootmdictions 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 i.n the neighbourhood in the
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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 reasqnable doubts.
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I 0. · Loamed counsel for the appellant would contend that the
aforefll!id circumstances do not conclusively point to the involvement of
RAJ KUMAR@ RAJU v. STATE (NCT OF DELHI)
467
. (RANJAN GOGOi, J.]
the accused appellant in the crime. The chain leading to the sole conclusion · A
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
accured. 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 !PC ..
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 s.aid testimony runs counter
to the prosecution case about arrest of the accused oil 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 evidemle of the
said witness read with the evidence of P. W.S and P. W. 7 disclose that
the accused persons were seen in the vicinity of the neighbouthood of
the crime little before the same wa:s 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 or the
ornaments of the deceased from the possession of the accused, at best,
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[201 7] 1 S .C.R.
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
atthe same time i.e. in the course of the .same transaction. No such
evipence 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 JPC
can be held to be pr.oved. 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
Jllustration (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 offe11ce. 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 h,e be set at liberty forthwith.
14. The appeal, consequently, is partly allowed in terms of the
above.·
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Devika Oujral
Appeal partly allowed.
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