Wasim Khan vs The State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 24 of 1956

Decision Date: 12 March 1956

Coram: Syed Jaffer Imam, Bhuvneshwar P. Sinha

In the matter titled Wasim Khan versus The State of Uttar Pradesh, a judgment was rendered by the Supreme Court of India on the twelfth day of March, nineteen fifty-six. The opinion was authored by Justice Syed Jaffer Imam, and the bench consisted of Justice Syed Jaffer Imam together with Justices Bhuvneshwar P. Sinha and N. Chandrasekhara. The petitioner in the case was Wasim Khan, while the respondent was the State of Uttar Pradesh. The judgment carries the citation 1956 AIR 400 and 1956 SCR 191.

The factual backdrop, as summarized in the headnote, reveals that the appellant, Wasim Khan, had been convicted of murder and sentenced to death, and additionally received a term of seven years’ rigorous imprisonment for robbery of the victim’s property. The deceased was a shop-keeper from the village of Jarwal who had traveled to Lucknow to purchase merchandise for his store. On his return journey, he disembarked from the train at approximately ten o’clock in the evening, carrying a box, a balti, a gunny bag, a jhola, and other items. He hired the appellant’s cart to convey himself and his belongings to his home village. Two other individuals also boarded the cart. Neither the deceased nor his goods, nor the cart, ever reached Jarwal. The following morning, the body of the shop-keeper was discovered near a bridge close to Jarwal.

During the investigation, four days after the incident, the appellant surrendered the key to his kothri (a locked chamber) to the police. A search of the kothri yielded a dhoti, a box, a balti, a chadar, a gunny bag, and a jhola, all of which were identified as belonging to the deceased. Additionally, a large knife was recovered; the appellant denied ownership of the knife but offered no explanation for its presence in his home. In his examination before the Sessions Judge under section three hundred forty-two of the Code of Criminal Procedure, the appellant testified that the deceased had instructed him to transport the goods in the cart at about ten p.m. after alighting at the railway station. He further stated that two other men in the cart alighted at the sugar-mill gate near the station. At Raduayan Bridge, three men inquired whether the deceased remained in the cart; the deceased responded and disembarked, asking the appellant to stop the cart near Jarwal Bazar Bridge. The appellant waited there until approximately one-nine-two-a-m, but the deceased never returned. Unaware of the deceased’s residence, the appellant claimed he took the goods to his own house because his buffaloes were hungry. He also asserted that he had handed over all the deceased’s articles to the police after locking them in his kothri.

The Court held that recent and unexplained possession of stolen property, while ordinarily regarded as presumptive evidence of robbery, likewise constitutes presumptive evidence of murder. The possession of the victim’s belongings in the appellant’s locked chamber, coupled with his conduct suggesting consciousness of guilt, supported the conclusion that the appellant was liable not only for robbery but also for the murder of the shop-keeper.

The Court noted that recent and unexplained possession of the stolen property, which would ordinarily serve as presumptive evidence against a person charged with robbery, also constituted evidence against the accused on the charge of murder. All the factual material that implicated the appellant, particularly his conduct indicating consciousness of guilt, led to the conclusion that he was liable not only for the robbery but also for the murder. The Court referred to several authorities on this point, namely The Emperor v. Sheikh Neamatulla ([1913] 17 C.W.N. 1077), Queen-Empress v. Sami and Another ([1890] I.L.R. 13 Mad. 426), Emperor v. Chintamoni Shahu (A.I.R. 1930 Cal. 379), In re Guli Venkataswami (A.I.R. 1950 Mad. 309), and Bamprashad Mukundram Rajput v. The Crown (A.I.R. 1949 Nag. 277).

The judgment concerned Criminal Appeal No. 24 of 1956, which was filed by special leave against the order dated 26 September 1955 of the Allahabad High Court (Lucknow Bench) in Criminal Appeal No. 195 of 1955 and the Capital Sentence No. 17 of 1955 issued on 11 April 1955 by the Sessions Judge at Bahraich in Criminal S.T. No. 9 of 1955. Counsel for the appellant and counsel for the respondent were instructed. The appellant had been sentenced to death for the murder of Ram Dularey and to seven years’ rigorous imprisonment for robbing the deceased of his goods. He was tried together with two other individuals who were acquitted; the Sessions Judge of Bahraich had heard the case, and all four assessors present at the trial had expressed the view that the appellant was guilty. The Allahabad High Court affirmed both the conviction and the sentence, and the present appeal was permitted by special leave.

The Court observed that several facts were proved beyond any doubt, and the most material of these were admitted by the appellant in his statement under section 342 of the Code of Criminal Procedure when examined before the Sessions Court. Evidence established that the deceased, Ram Dularey, a shop-keeper from Jarwal, had travelled to Lucknow to purchase merchandise for his shop. On his return journey he alighted from the train at Jarwal Road Station on 2 July 1954 at about 9:30 p.m., carrying a box, a balti, a gunny bag, jholas and other items. He subsequently engaged the appellant’s cart to convey himself and his goods to his village, and two other persons also boarded the cart, which was driven by the appellant. Neither the deceased nor his articles, nor the cart, ever reached Jarwal. In the early morning the body of Ram Dularey was discovered near a bridge close to Jarwal. The police were informed, began an investigation, and summoned the appellant, who was arrested on 6 July 1954. The appellant surrendered the key to his locked storage (kothri), which the police opened, retrieving numerous articles, including a large knife (Exhibit 20) bearing bloodstains. The Court recorded that the recovered items also comprised a dhoti (Exhibit 3), a box (Exhibit 9), a balti (Exhibit 1), a chadar (Exhibit 2), a gunny bag (Exhibit 13) and a jhola (Exhibit 24), all of which were identified as belonging to the deceased. The knife was forwarded to the Chemical Examiner along with the dhoti; although minute bloodstains were found on the knife, they were insufficient for a blood-group comparison, and no blood was detected on the dhoti.

The police recovered a number of articles from the appellant’s lock-up, including a dhoti marked as Exhibit 3, a box marked as Exhibit 9, a balti marked as Exhibit 1, a chadar marked as Exhibit 2, a gunny bag marked as Exhibit 13 and a jhola marked as Exhibit 24. The report indicated that it was unnecessary to enumerate the remaining items that were also found. The knife that had been discovered in the lock-up was sent to the Chemical Examiner together with the dhoti. The examination revealed only minute blood-stains on the blade, which were insufficient to permit a blood-group comparison. No blood was detected on the dhoti. The forensic team positively identified the dhoti (Exhibit 3), the box (Exhibit 9), the balti (Exhibit 1), the chadar (Exhibit 2), the gunny bag (Exhibit 13) and the jhola (Exhibit 24) as belonging to the deceased, Ram Dularey.

When the appellant was examined by the Sessions Judge under section 342 of the Code of Criminal Procedure, he recounted that the deceased Ram Dularey had requested him to transport his goods in the appellant’s cart for a fare of two rupees. Accordingly, the appellant conveyed Ram Dularey and his belongings, including the box (Exhibit 9), in the cart. Two other men were also in the cart; they alighted at the sugar-mill gate of the railway station. Later, at Raduayan Bridge, three men inquired whether Ram Dularey was still in the cart. Ram Dularey replied, disembarked, and asked the appellant to stop the cart at Jarwal Bazar Bridge. The appellant complied, and Ram Dularey waited there until four o’clock in the morning, but he never returned. Because the appellant did not know the location of Ram Dularey’s house in Jarwal Bazar, he took the deceased’s goods to his own residence, stating that his buffaloes were hungry. When asked whether any of the deceased’s articles had been recovered from his house, the appellant said that he had handed over all the property of the deceased that he had found in the lock-up to the police. He further asserted that he had informed the villagers and the village head (Mukhia) that he would return the property to its rightful owner when the owner appeared. Regarding the knife, the appellant disclaimed ownership and could not explain how it had come to be in his house. He claimed the dhoti (Exhibit 3) as his own. The appellant’s counsel argued that the prosecution’s evidence was insufficient to sustain any of the charges. Alternatively, it was contended that, since a co-accused had been acquitted, the appellant could not be convicted of murder under section 34 of the Indian Penal Code without proof that any act of his caused Ram Dularey’s death. It was also submitted that the Sessions Judge had not posed any question to the appellant when he was examined under section 342 of the Code of Criminal Procedure.

In this matter, the Court examined the statement that had been recorded from the appellant under section 342 of the Code of Criminal Procedure by the Sessions Judge. At the very beginning of that recorded statement, the Sessions Judge read the appellant’s statement before the Committing Magistrate and asked the appellant whether the reading was correct. The appellant answered affirmatively, confirming that the statement had been read accurately. The Court noted that the statement made before the Magistrate was admissible under section 287 of the Code of Criminal Procedure. Subsequently, the Magistrate asked the appellant directly whether he, together with the other accused persons, had murdered Ram Dularey and taken his property. The appellant replied in the negative, denying participation in the murder or the theft. The Court held that it was unnecessary for the Sessions Judge to repeat this question, because the appellant had already admitted that the statement read before the Committing Magistrate was correct. Moreover, when the entire statement made to the Sessions Judge is considered, it is clear that the appellant understood the accusations leveled against him and offered an explanation for the disappearance of Ram Dularey from his cart as well as for his possession of the deceased’s goods. The Court found no justification for the suggestion that the appellant had suffered prejudice because of any improper or insufficient recording of his statement under section 342 of the Code of Criminal Procedure.

The facts that had been proved beyond doubt showed that the last time the deceased was seen alive was when he was in the company of the appellant and two other persons as the cart set out for Jarwal, with the goods placed on that cart. No evidence was presented regarding what transpired during the journey; the only account of that period was the statement of the accused. The evidence then established that after the cart had started, on the morning of 3 July, the dead body of Ram Dularey was discovered not far from Jarwal. His goods had vanished, and on 6 July some of those goods were found in the possession of the appellant. The principal question before the Court was whether the evidence established that the appellant had both murdered and robbed Ram Dularey. The Court observed that the evidence was circumstantial. Before analysing that circumstantial evidence, the Court considered how the recent possession of a deceased person’s property, under circumstances that clearly indicated murder and robbery, might suggest that the possessor was not only a thief or a receiver of stolen property but also guilty of a more serious crime connected with the theft. In this context, the Court referred to the case of The Emperor v. Sheikh Neamatulla, where Sir Lawrence Jenkins examined the issue and, after referring to section 114 of the Evidence Act, quoted a passage from Wills on Circumstantial Evidence concerning the possession of stolen goods shortly after the loss of those goods.

In the Court’s discussion, it was observed that the recent possession of property that has been lost may suggest not only the crime of larceny or the receipt of stolen goods with knowledge of the theft, but also the commission of a more serious offence that is connected with the theft. The Court quoted the principle that this type of presumption frequently serves as a material element of evidence in murder cases, a special application that has been repeatedly recognised by precedent. The judgment of Queen-Empress v. Sami and Another was cited, wherein the High Court at page 432 held that, in the absence of any explanation, a presumption arises that anyone who participated in a robbery also participated in the murder when the two acts form part of a single transaction. The Court further explained that recent and unexplained possession of stolen property, which would ordinarily be presumptive evidence against a person charged with robbery, likewise operates as evidence against that person on a charge of murder. The Court emphasized that all the facts that point against the appellant, especially his conduct showing a consciousness of guilt, support the conclusion that he was equally guilty of murder as of robbery. The Court also referred to the decision in Emperor v. Chintamoni Shahu, reiterating that possession of stolen goods shortly after their loss may indicate a more aggravated crime connected with the theft, and that this presumption forms a material element of evidence in murder prosecutions. Similar reasoning was noted in the decisions In re Guli Venkataswamy and Ramprashad Makundram Rajput v. The Crown, which likewise treated recent possession of stolen property as indicative of involvement in a related homicide.

Applying these principles to the present case, the Court found that the facts established beyond doubt that the deceased, Ram Dularey, had travelled with his goods on the appellant’s bullock cart with the intention of reaching Jarwal during the night. The deceased never arrived at his destination, and it was evident that he had been murdered en route. According to the appellant’s own statement, after two other persons had alighted at the Sugar Mill gate, only he and the deceased remained in the cart, after which the deceased was never seen alive again. The appellant was later discovered in possession of the deceased’s goods three days after the murder. The appellant made no attempt to ascertain the whereabouts of the deceased nor to report the disappearance to the authorities. He claimed that the deceased had asked him to wait at a certain place after being called by some people while the cart was in motion, and that he waited until four a.m. without the deceased reappearing. The Court held that such circumstances should have raised a strong suspicion in the appellant, obliging him to inform the police or another authority. The appellant’s explanation offered no satisfactory reason for his failure to report the incident, and his possession of the stolen property, together with his conduct, supported the inference of his participation in both the robbery and the murder.

The Court observed that the appellant claimed to have informed the village headman, known as the Mukhia, and many villagers about the disappearance of the deceased. However, the Court noted that neither the Mukhia nor any other individual had been examined or called to corroborate the appellant’s version of events. The prosecution relied on the testimony of Iftikhar Ahmad, identified as witness number seven, who reported hearing a rumor in the village that the appellant had taken the deceased’s property onto his cart after the man left. The Court pointed out that the witness was not speaking from personal knowledge and therefore his statement could not be treated as admissible legal evidence. Even assuming that the appellant had indeed spread such a rumor, the Court found no satisfactory explanation for why he failed to notify the authorities. The record further showed that the appellant was aware that he possessed a large number of articles belonging to the man who had hired his cart and subsequently vanished under unusual circumstances. In addition, the appellant could not explain how he came into possession of a large blood-stained knife, a weapon capable of inflicting the injuries that were later discovered on the deceased. While the blood traces on the knife were described as minute and had not been conclusively proven to be human, the appellant denied ownership of the knife and offered no account of how it entered his custody.

The Court found the appellant’s claim that he waited until four in the morning for the deceased to return to be implausible. According to the evidence, the cart had departed from Jarwal Road Station at approximately ten o’clock at night, and the deceased would have left the cart only a few hours later. To remain waiting at a location not far from Jarwal until four a.m. constituted, in the Court’s view, an impossible storyline. The Court also observed that none of the appellant’s clothing was found to be stained with blood, a condition that would be expected if he had participated in the murder considering the nature of the injuries on the victim. Nevertheless, the appellant’s garments were not seized until the sixth of July, three days after the incident, providing him the opportunity to remove any blood traces. The Sessions Judge had convicted the appellant of murder and robbery under section thirty-four of the Indian Penal Code. Although the charge framed did not expressly refer to a common intention, the High Court concluded that the appellant, together with two other persons, had committed the offences and shared the stolen goods. Consequently, even if the co-accused were acquitted, the appellant could still be held liable under section thirty-four. The charge against the appellant remained for murder and robbery, and the Court identified the central issue as whether the evidence supported that specific charge.

The Court examined whether the material presented by the prosecution was adequate to sustain the charge of murder and robbery or whether it merely indicated offences of a lesser seriousness. Having carefully reviewed the trial record, the Court concluded that the evidence indeed established the full crimes of murder and robbery against the appellant, not merely a petty robbery or theft. The submission that no offence could be attributed to the appellant was found to be untenable in light of the factual findings and the legal principles drawn from the authorities cited. In accordance with the established facts and the jurisprudence applicable to Section thirty-four of the Indian Penal Code, the Court was satisfied that the appellant’s conviction for murder and robbery was correctly pronounced. Consequently, the appellate application was dismissed and the judgment of the lower court was affirmed in its entirety. The Court reiterated that for a conviction under Section thirty-four, it must be shown that the accused shared a common intention to commit the crime, and the record satisfied this requisite. Thus, the combination of the appellant’s participation in the robbery and the resultant homicide fulfilled the statutory elements of both offences. Accordingly, no ground existed for modifying the conviction or ordering a new trial, and the appeal was dismissed with costs.