Presumption U/S 114(a) Evidence Act Can't Be Extended To Hold Accused Guilty Of Murder In Absence Of Incriminating Circumstances: Kerala HC

The Kerala High Court on Monday held that in the absence of any incriminating circumstances, and where there is more than one possibility for cause of death, the presumption under Section 114(a) of the Evidence Act cannot be extended to hold the accused guilty of the offence of murder. 

Section 114(a) of the Evidence Act stipulates that the "Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession".

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha relied upon the decision in Limbaji v. State of Maharashtra (2001), and observed that,

"...when there is reasonable scope for more than one possibility for the death and the court is not in a position to know the actual details of the occurrence, it is not safe to extend the presumption under Section 114 (a) of the Evidence Act, so as to find the appellant guilty of offence of murder, for suspicion howsoever strong, cannot take the place of proof". 

Factual Background

The body of one Muhammed Kunju who was working as a security guard in a residential house was found in a partly decomposed state in the outhouse of the said residential house, following which four natives of Nepal were identified as the accused. 

The prosecution case against the accused persons was that in furtherance of their criminal conspiracy to murder the victim and commit robbery, they had trespassed into the house, and strangulated the deceased, and kept the body in the outhouse. It was alleged that they had thereafter, broken into the house, and committed theft of a silver lamp, gold ornaments weighing 45.400 grams and silver ornaments weighing 66.500 grams.

They were thus accused of having committed offences under Sections 457 ('Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment'), 342 ('Punishment for wrongful confinement'), 397 ('Robbery, or dacoity, with attempt to cause death or grievous hurt'), 302 ('Punishment for murder') and 120(b) of IPC. 

Since the 3rd and 4th accused persons could not be apprehended, the final report against them was split up and the first two accused persons were committed for trial.

The Sessions Court found the first accused guilty of the offences punishable under Sections 457, 342, 397, and 302 IPC and sentenced him accordingly. The 2nd accused was however, acquitted. It is on being aggrieved by the sentence and conviction imposed on him that the first accused filed the present appeal. 

Arguments Raised

Advocate R. Padmakumari argued on behalf of the appellant that the circumstances established in the case did not prove the appellant's guilt beyond reasonable doubt. The counsel averred that it was solely based on the recovery of some stolen articles and implements for allegedly breaking open the house, and the evidence tendered by the prosecution that one of the chance fingerprints developed from the scene of occurrence tallied with the specimen of the right middle finger impression of the appellant, that the Court of Session found the appellant guilty of the offences. The Counsel submitted that the chance fingerprints had been manipulated by the investigating officer after the arrest of the appellant and as such, the evidence could not be relied upon. 

On the other hand, the Senior Public Prosecutor Alex M. Thombra argued that the circumstances established in the case were conclusive in nature and established the prosecution case. 

Findings of the Court

The Court, on relying upon the post mortem certificate issued by the Forensic surgeon, affirmed that the present case was one of homicide. 

The Court then proceeded to examine whether the prosecution had established beyond reasonable doubt that it was the appellant and the others who had caused the death of the deceased and committed robbery. 

The Court could not find any merit in the argument advanced by the counsel for the appellant that the chance fingerprints were manipulated by the investigating officer after the appellant's arrest. The Court discerned that no material had been elicited from the fingerprint expert to suspect or doubt the credibility of the evidence tendered. 

The Court also took note that despite there being a charge of criminal conspiracy against the accused, no evidence was led by prosecution to establish the same. 

As to whether the circumstances in the case were sufficient to sustain the conviction of the appellant under Sections 457, 342, 397 and 302 of IPC, the Court was of the considered opinion that as regards the stolen articles, the presumption under Illustration (a) to Section 114 could be safely drawn, and that it could be presumed that the appellant had committed theft of the ornaments from the deceased's house. 

The moot question before the Court thereafter, was whether the said presumption could be extended to the perpetration of the offence of robbery or murder or both. The Court observed that extending the presumption beyond the parameters of Illustration (a) could only be under the main part of Section 114, having regard to the expression therein “in their relation to the facts of the particular case". 

The Court noted a plethora of precedents in this regard, and observed that while in some, the extended presumption was drawn, in others, the Court considered it unsafe to draw the presumption merely on the basis of recovery of incriminating articles from the possession of the accused soon after the crime. 

Relying on the decisions in Limbaji (Supra), and Raj Kumar v. State (NCT of Delhi) (2017), the Court observed that the presumption under Section 114 of the Evidence Act cannot be extended, when there is reasonable scope for two possibilities, and the court is not in a position to know the actual details of the occurrence. 

The Court was of the considered opinion that the only circumstance of recovery of ornaments in this case, does not connect the appellant with the murder. 

"In the absence of any incriminating circumstances to connect the appellant and other accused with the murder, and having regard to the fact that the body of the deceased was found only in the outhouse of the house, it might be a case where the death of the victim was caused by someone else for some other reason. It might also be a case where the theft must have been committed while the deceased was sleeping, although he is not supposed to sleep during night hours. It might also be a case where the theft must have taken place after the death of the victim, without noticing his death," the Court observed. 

The Court thus held that in this case, there was no evidence to prove that the house breaking was done at night or that the appellant and the others had wrongfully confined the deceased, or that they had caused the death of the victim and committed robbery.

The Court accordingly set aside the conviction of the appellant under Sections 457, 342, 397 and 302 IPC, and found him guilty of the offences punishable under Sections 453 (House-breaking) and 380  (Theft in dwelling house) IPC and sentenced him to undergo rigorous imprisonment for a period of seven years.

The appeal was thus allowed in part. 

Case Title: Bhagavat Sing @ Bheem Sing v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 363

Case Number: CRL.A NO. 1552 OF 2019

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