# WasimKhan v. The State of Uttar Pradesh

- **Citation:** [1956] 1 S.C.R. 191
- **Court:** Supreme Court of India
- **Decided:** 1956-03-12
- **Case number:** Criminal Appeal No. 24 of 1956
- **Bench:** B. P. Sinha, Jafer Imam, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/wasimkhan-v-the-state-of-uttar-pradesh-1300
- **Pages:** 9

## Headnote

Possession, recent and unexplained of stolen goods-Presumptive
evidence against prisoner not only of robbery but of murder as well.
The appellant was sentenced to death for the murder of one R
e,nd also sentenced to seven years rigorous imprisonment for having
robbed the murdered man of his goods. It was established by the
evidence on the record that the deceased; a shop-keeper of village
Jarwal had gone to Lucknow to purchase goods for his shop. On his
return journey he got down from the train at about 10 p.m.
He had with him a box, a balti, a gunni bag and a jhola and other
things. He engaged the appellant's cart to take him and his goods
to his village. Two other persons also got on to the cart.
Neither
the deceased, nor the articles which were with him nor the cart
reached Jarwal. In the morning the body of the deceased was found
near a bridge in the vicinity of Jarwal.
During investigation on
the fourth day after the occurrence the appellant gave the key of his
kothri to the police and from the kothri, a dhoti, a box, a balti, a
chadar, a gunny bag and a jhola were recovered which were_identi·
fied as belonging to the deceased.
A big knife was also recovered
from the kothri which the appellant disowned but ·could not explain
how it was found in his home.
The appellant on examination
before the Sessions Judge under s. 342 of the Code of Criminal Procedure stated that the deceased asked him to take his goods in the
cart at about 10 p.m. when he got down at the Railway Station.
Two other men were also in the cart who got down at the Sugar
Mill gate near the Railway Station. At Raduayan Bridge three men
enquired if the deceased was in the cart. The deceased responded
and got down from the cart asking the appellant to halt his cart
near Ja.rwal Bazar Bridge where he waited for the deceased up to
1956
March 12
1956
WasimKhan
v.
The State of
Uttar Pradesh
192
SUPREME COURT REPORTS
(1956]
4 a.m. but he did not turn up. Not knowing the house of the
deceased he took the dead man's goods to his own house as his
buffaloes were very hungry. He stated further that he bad handed
over all the articles of the deceased person to the police which he
had locked in the kothri.
Held, that recent and unexplained possession of the stolen pro·
party while it would be presumptive evidence against a prisoner on
the charge of robbery would similarly be evidence against him on
the charge of murder. All the facts which tell against the appellants
especially his conduct indicating consciousness of guilt1 point equally
to the conclusion that he was guilty as well of the murder as of the
robbery.
The Emperor v. Sheikh Neamatulla ([1913] 17 C.W.N. 1077),
Queen-Empress v. Sami and Another ([1890] LL.R. 13 Mad. 426),
Emperor v. Ghintamoni Shahu (A.LR. 1930 Cal. 379), In re Guli
Venkataswami {A.LR. 1950 Mad. 309), and Ramprashad M1tkundram
Raiput v. The Grown (A.LR. 1949 Nag. 277), referred to.

## Text

S.C.R.
SUPREME COURT REPORTS
191
is corroborated by Madan Lal who states that all the
1956
three accused said that the money had been subRam Krishan
scribed by them jointly and requested him to accept
and another
the same and get the case withdrawn. The case of
v.
Gian Chand does not stand on any different footing The State of Delhi
from that of the other appellants.
d
fi
d
d Chandrasekhara
The convictions an sentences are con rme
an
AiyarJ.
the appeal will stand rejected.
WASIM KHAN
v.
THE STATE OF UTTAR PRADESH.
[B. P. SINHA, JAFER IMAM and CHANDRASEKHARA
AIYAR, JJ.]
Possession, recent and unexplained of stolen goods-Presumptive
evidence against prisoner not only of robbery but of murder as well.
The appellant was sentenced to death for the murder of one R
e,nd also sentenced to seven years rigorous imprisonment for having
robbed the murdered man of his goods. It was established by the
evidence on the record that the deceased; a shop-keeper of village
Jarwal had gone to Lucknow to purchase goods for his shop. On his
return journey he got down from the train at about 10 p.m.
He had with him a box, a balti, a gunni bag and a jhola and other
things. He engaged the appellant's cart to take him and his goods
to his village. Two other persons also got on to the cart.
Neither
the deceased, nor the articles which were with him nor the cart
reached Jarwal. In the morning the body of the deceased was found
near a bridge in the vicinity of Jarwal.
During investigation on
the fourth day after the occurrence the appellant gave the key of his
kothri to the police and from the kothri, a dhoti, a box, a balti, a
chadar, a gunny bag and a jhola were recovered which were_identi·
fied as belonging to the deceased.
A big knife was also recovered
from the kothri which the appellant disowned but ·could not explain
how it was found in his home.
The appellant on examination
before the Sessions Judge under s. 342 of the Code of Criminal Procedure stated that the deceased asked him to take his goods in the
cart at about 10 p.m. when he got down at the Railway Station.
Two other men were also in the cart who got down at the Sugar
Mill gate near the Railway Station. At Raduayan Bridge three men
enquired if the deceased was in the cart. The deceased responded
and got down from the cart asking the appellant to halt his cart
near Ja.rwal Bazar Bridge where he waited for the deceased up to
1956
March 12
1956
WasimKhan
v.
The State of
Uttar Pradesh
192
SUPREME COURT REPORTS
(1956]
4 a.m. but he did not turn up. Not knowing the house of the
deceased he took the dead man's goods to his own house as his
buffaloes were very hungry. He stated further that he bad handed
over all the articles of the deceased person to the police which he
had locked in the kothri.
Held, that recent and unexplained possession of the stolen pro·
party while it would be presumptive evidence against a prisoner on
the charge of robbery would similarly be evidence against him on
the charge of murder. All the facts which tell against the appellants
especially his conduct indicating consciousness of guilt1 point equally
to the conclusion that he was guilty as well of the murder as of the
robbery.
The Emperor v. Sheikh Neamatulla ([1913] 17 C.W.N. 1077),
Queen-Empress v. Sami and Another ([1890] LL.R. 13 Mad. 426),
Emperor v. Ghintamoni Shahu (A.LR. 1930 Cal. 379), In re Guli
Venkataswami {A.LR. 1950 Mad. 309), and Ramprashad M1tkundram
Raiput v. The Grown (A.LR. 1949 Nag. 277), referred to.
CRIMINAL APPELLATE JURISDICTION:
Criminal
Appeal No. 24 of 1956.
On appeal by special leave from the judgment
and order dated the 26th September 1955 of the
Allahabad High Court (Lucknow Bench) in Criminal
Appeal No. 195 of 1955 and Capital Sentence No. 17
of 1955 arising out of the judgment and order dated
the 11th April 1955 of the Court of the Sessions Judge
at Babraicb in Criminal S.T. No. 9 of 1955.
D. R. Prem, for the appellant.
K. B. Asthana and 0. P. Lal, for the respondent.
1956. March 12.
The Judgment of the Court
was delivered by
IMAM J.-Tbe appellant was sentenced to death
for the murder of one Ram Dularey. He was also
sentenced to seven years' rigorous imprisonment for
having robbed the murdered man of bis goods.
He
was tried along with two other persons, who were
acquitted, by the Sessions Judge of Babraich. All the
four assessors, who attended the trial, were of the
opinion that the appellant was guilty. The High
Court of Allahabad affirmed the conviction and the
sentence and this appeal is by special leave.
S.C.R.
SUPREME COURT REPORTS
193
Certain facts have been proved beyond all doubt.
Indeed, the most important of them are admitted by
the appellant in his statement under section 342 of
the Code of Criminal Procedure when examined in the
Court of Sessions. It has been established by the
evidence in the case that the deceased Ram Dularey,
a shop-keeper of J arwal, had gone to Lucknow to
purchase goods for his shop. On his return journey,
he got down from the train at Jarwal Road Station
on the 2nd of July, 1954, at about 9-30 p.m. He had
with him articles consisting of a box, a balti, a gunny
bag, jholas and other things. Shortly thereafter, he
engaged the appellant's cart to take him and his
goods to his village. Two other persons also got on
to the cart.
The appellant was driving the cart.
Neither the deceased nor the articles, which were
with him, nor the cart ever reached Jarwal. In the
morning, Ram Dularey's body was found near a bridge
in close vicinity of Jarwal. Information was sent
to the police who commenced investigation and their
enquiries led them to the appellant, who was arrested
on the 6th of July, 1954. The appellant gave the key
of his kothri to the police with which it was opened.
From the kothri numerous articles were recovered,
including a big knife Ex. 20 with blood-stains, a dhoti
Ex. 3, a box Ex. 9, a balti Ex. 1, a chadar Ex. 2, a
gunny bag Ex. 1:3 and a jhola Ex. 24. It is not necessary to give the details of the other articles
recovered. The knife was sent to the Chemical
Examiner along with the dhoti.
Although minute
blood-stains were detected on the knife, they were
not sufficient to enable a comparison in a blood group
test. No blood was discover:ed on the dhoti.
The
dhoti Ex. 3, the box Ex. 9, the balti Ex. 1, the chadar
Ex. 2, the gunny bag Ex. 13 and the jhola Ex. 24
have been identified as belonging to the deceased
Ram Dularey.
When examined under section 342 of the Code of
Criminal Procedure by the Sessions Judge, the appellant stated that the deceased Ram Dularey had asked
him to take his goods in his cart and it was agreed
that Rs. 2 would be paid as the fare.
The appellant
1956
Wasim Khan
v.
The State of
Uttar Pradc sh
ImamJ.
1956
Wasim f(han
v.
The State of
Uttar Pradesh
Imam/.
194
SUPREME COURT REPORTS
[1956)
took the deceased on his cart with his goods including the box Ex. 9.
Two other men were also in the
cart who got down at the Sugar Mill gate at the Railway Station. At the Raduayan Bridge three men
enquired if Ram Dularey was in the cart. Ram
Dularey responded and got down from the cart asking
the appellant to halt his cart at Jarwal Bazar Bridge,
where he waited for the deceased until 4 a.m., but
the deceased did not turn up. As the appellant did
not know the house of the deceased in Jarwal Bazar,
he took the dead man's goods in his cart to his own
house as his buffaloes were very hungry. To the question as to whether any article of the deceased was
recovered from his house by the police, the appellan_t
stated that he handed over to the police all the property of the deceased which he had locked in the
kothri. He asserted that he had told the people in his
village as well as the Mukhia that he would hand
over the property to its owner when he came to take
it. Concerning the knife, he disowned its ownership
and could not say how it came to be found in his
house. So far as the dhoti Ex. 3 is concerned, the
appellant claimed it as his.
On behalf of the appellant, it was urged that the
evidence iu the case was insufficient to establish
any of ~he charges framed against him.
In the
alternative, it was suggested, that as the co-accused
of the appellant had been acquitted the latter could
not be convicted of the offence of murder by the application of the provisions of section 34 of the Indian
Penal Code in the absence of proof that any act of
his caused the death of Ram Dularey. It was also
submitted that no question was put by the Sessions
Judge to the appellant when he was examined under
section 342 of the Code of Criminal Procedure concerning the act of murder or robbery.
We have examined the statement of the appellant
recorded under section 342 of the Code of Criminal
Procedure by the Sessions Judge. At the very commencement of the record of that statement, the Sessions Judge read out the appellant's statement under
section 342 of the Code of Criminal Procedure before
S.C.R.
SUPREME COURT REPORTS
195
the Committing Magistrate and enquired whether it
was correct, to which the appellant replied in the
affirmative. The statement of the appellant before the
Magistrate is admissible under section 287 of the
Code of Criminal Procedure. The Magistrate pointedly
asked the appellant as to whether he along with the
other accused murdered Ram Dularey and had taken
his property to which the appellant replied in the
negative. It was not necessary for the Sessions Judge
to specifically repeat the same when the appellant
admitted his statement before the Committing
Magistrate as correct when read out to him. Apart
from this, when the statement of the appellant to the
Sessions Judge is read as a whole, it clearly shows
that the appellant knew what the accusation against
him was and he offered an explanation for the disappearance of Ram Dularey from his cart and for
his possession of the deceased's goods.
There is no
justification for supposing that there had been any
prejudice caused to the appellant on account of improper or insufficient recording of his statement by
the Sessions Judge under section 342 of the Code of
Criminal Procedure.
On the facts proved beyond question it is clear that
the last time the deceased was seen alive was in the
company of the appellant and two other persons
when the cart started for Jarwal and his goods were
on that cart. There is, however, no evidence as to
what happened in the course of the journey. Concerning that we have only the statement of the accused.
The evidence next establishes that after the
cart started, next morning, the 3rd of July, the dead
body of Ram Dularey was found not far from Jarwal. His goods had disappeared and some of them
at any rate were found in the possession of the
appellant on the 6th of July.
The real question is whether the evidence in the
case establishes that the appellant murdered and
robbed Ram Dularey. The evidence is circumstantial.
Before we deal with that evidence, it is necessary to
consider how far recent possession of property of a
deceased, in circumstances clearly indicating that he
1956
Wasim Kha"
v.
The State of
Uttar Pradesh
Jt11a1n J.
1956
WasimKhan
v.
The State of
Uttat' Pt'ad.esli
196
SUPREME COURT REPORTS
[1956)
had been murdered and robbed, would suggest that
not only the possessor of the property was a thief
or a receiver of stolen property, but that it also indicated that he was guilty of a more aggravated
crime which had connection with the theft. In the
case of The EmperrJr v. Sheikh Neamatulla(') Sir Lawrence Jenkins had the occasion to examine this question. After referring to section 114 of t.he Evidence
Act, he quoted the following passage from Wills on
Circumstantial Evidence:
"the possession of stolen goods recently after the
loss of them, may be indicative not merely of the
offence oflarceny, or of receiving with guilty knowledge, but of any other more aggravated crime which
has been connected with theft. This particular fact
of presumption commonly forms also a material element of evidence in cases of murder; which special
application of it has often been emphatically recognized".
In the case of Queen-Empress v. Sami and Another(')
at page 432, the learned Judges of the High Court
observed, "Under these circumstances, and in the
absence of any explanation, the presumption arises
that any one who took part in the robbery also took
part in the murder.
In cases in which murder and
robbery have been shown to form parts of one transaction, it has been held that recent and unexplained
possession of the stolen property while it would be
presumptive evidence against a prisoner on the charge
of robbery would similarly be evidence against him
on the charge of murder.
All the facts which tell
against the appellant, especially his conduct indicating a consciousness of guilt, point equally to the conclusion that he was guilty as well of the murder as of
the robbery .................... ".
In the case of Emperor v.
Chintamoni Shahu('), the opinion was expressed that
"the possession of stolen goods recently after the loss
of them may be indicative not merely of the offence
of larceny or of receiving with guilty knowledge but
of any other more aggravated crime which has been
(1) [1918] 17 C.W.N.1077.
{2) [1890] I.L.R. 18 Mad. '26,
·
(8) A.I.R. 1930 C•!. 879.
'
S.C.R.
SUPREME COURT REPORTS
197
connected with the theft; this particular fact of presumption forms also a material element of evidence
in the case of murder". A similar view seems to have
been taken in the case of In re Guli Venkataswamy(1)
as well aa. in the case of Ramprashad Makundram Rajput v. The Orown(9).
In the present case it is established beyond doubt
that the deceased travelled with his goods with the
appellant on his bullock cart. He should have reached
his destination Jarwal in the course of the night. He
never got there. Obviously, he was murdered on his
way home.
On the appellant's own statement, he
and the deceased were alone in the cart after the
other two persons had got off the cart at the Sugar
Mill gate.
Thereafter the deceased was never seen
alive by any one.
He was found murdered.
The
appellant was found in possession of the deceased's
goods three days afterwards. The appellant made no
effort to trace the whereabouts of the deceased or
lodge information of his disappearance from the bullock cart. The appellant has told the court that some
people called the deceased while the cart was on its
journey and the deceased told him to wait for him at
a certain place.
He waited until 4 a.m. but the deceased never turned up.
This should have aroused
his suspicions and he should have informed the police
or someone in authority about it.
He says he informed the Mv.khia and all the people about it.
Neither the Mukhia nor anyone has been examined
by the appellant to support his story. Reliance was
placed on the·statement of Iftikhar Ahmad P.W. 7,
who spoke of a rumour in the village that the appellant had brought the property of a man on his cart
who had gone away and that this rumour had been
spread by the appellant.
It is clear, however, that
the witness was not speaking of this from his personal knowledge and his statement is not legal evidence. On the other hand, if really the appellant had
spread such a rumour there is no adequate explanation for his failure to inform the authorities.
He
(1) A.I.R. 1950 Mad. 809.
26
(2) A.I.R. 1949 Nag. 277,
1956
Wasi111 Khan
v.
The State of
Uttar Praduh
I111a111 J.
1956
Wasim Khan
v.
The State of
Uttar Pradesh
198
SUPREME COURT REPORTS
(1956]
knew he was in possession of a large number of articles belonging to the man who had hired his cart but
had disappeared in very strange circumstances.
In
addition, there is no explanation for his possession of
a big blood-stained knife, a weapon which if used
against the deceased, could have caused the injuries
found on him. It is true that the blood stains were
minute and have not been established to be of human
blood. The appellant, however, denied that theknife
belonged to him, and has not explained as to how it
came to be in his possession.
It is impossible to believe his story that he waited until 4 a.m. for the
deceased to return. The cart had started from Jarwal
Road Station at about 10 p.m.
It could not have
been more than a couple of hours later that the deceased left the cart.
To wait from that time until
4 a.m. at a place not far from Jarwal itself appears
to be a fantastic story.
It is true that none of the
clothes of the appellant were found to be bloodstained, as they should have been, if he had participated in the murder, having regard to the nature of
the injuries on the deceased.
These clothes were not
seized until the 6th July, some three days later, and
the appellant could have removed all traces of blood
stains from his clothing in that time.
The appellant was convicted of the offences of
mur.der and robbery by the Sessions Judge by the
application of section 34 of the Indian Penal Code.
The charge framed, however, was one of murder and
robbery and there was no mention of these offences
having been committed in the furtherance of a common intention. The High Court, however, found that
the appellant along with two others committed these
offences and they shared in the goods robbed. On
this finding, even if the co-accused of the appellant
were acquitted, the appellant could be convicted by
the application of the provisions of section 34 of the
Indian Penal Code.
The charge framed against the
appellant was for murder and robbery and the only
question to be decided was whether the evidence was
sufficient to support such a charge or did it merely
establish offences less grave in nature. We think it
~· -
S.C.R.
SUPREME COURT REPORTS
199
was and are satisfied thatit establishes the offences of
murder and robbery against the appellant and not
merely the minor offence of robbery or theft. It is
impossible to accept the submission that the evidence
does not establish any offence having been committed
by the appellant.
Having regard to what is established in the case
and the principles deducible from the cases cited, we
are satisfied that the appellant has been rightly convicted of the offences of murder and robbery. The
appeal is accordingly dismissed.
SHAMBU NATH MEHRA
v.
THE STATE OF AJMER.
[VIVIAN BOSE and CHANDRASEKHARA AIYAR JJ.]
Burden of proof-Proof of facts within especial knowledgeFacts eqiially within the knowudge of the prosecution and the accused,
if "especially within the knowledge" of the accused-Illustration,
Scope of-Indian Evidence Act (I of 1872), s. 106, Illustration (b).
The appellant was put up for trial under s. 420 of the Indian
Penal Code and s. 5(2) of the Prevention of Corruption Act of 194 7
for obtaining a total sum of Rs. 23-12-0 from the Government as
T.A., being second class railway fares for two journeys, one from
Aimer to Abu Road and the other from Aimer to Reengus, without
having actually paid the said fares.
The prosecution proved from
the railway books and registers that no such second class tickets
were issued at Aimer on the relevant dates and the same witness
who proved this also proved that tickets were not always issued and
the passengers could pay the fare in the train and if the second
class was fully booked, no further tickets were issued till the train
arrived, in which case passengers sometimes bought third class or
inter-class tickets and thereafter paid the difference to the guard of
the train, if they could find second class accommodation on the
arrival of the train. There was no proof that one or other of those
courses were not followed by the appellant and the prosecution instead of proving the absence of any such payments, in the same
way as it had proved the non-issue of second class tickets, relied on
Illustration (b) to s. 106 of the Evidence Act and contended that it
was for the appellant to prove that he had actually paid the second
class fares.
1956
WasimKhan
v.
The State of
Uttar Pradesh
Imamj.
1956
March 12