November, 2015 LAKHINDER Through Ms. Saahila Lamba, Advocate. v. STATE

14. With the aforesaid factual background and evidence, we would first examine the legal issue and effect of Illustration (a) to Section 114 of the Evidence Act and its application to the facts in question. Section 114, illustration (a) of the Evidence Act, for the sake of convenience, is reproduced below:-

The Court may presume— (a) 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;"

15. Section 114 also highlights exceptional situations corresponding to each illustration, where the presumption may not be justifiably attracted. The exception applicable to Illustration (a) reads as follows: "But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to theparticular case before it:— As to illustration (a) —a shop-keeper has inhis till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;" CRL.A. Nos. 998/2012 &861/2012 Page 8of21 Presumptions under Section 114 give statutory recognition to inferences which would normally be drawn when the existence of background facts is established and proved. These presumptions, edificed on common sense principles, relate topresumption offacts. Section 114 postulates that Court may presume existence of any fact, which it thinks likely to have happened. Such inference should be drawn having regard to (i) common course of natural events, (ii) human conduct and (iii) public and private business. The Court, however, exercises discretion in raising such presumptions. Presumptions which are inferences of facts must be distinguished from presumptions in law, or legal fictions, for the presumptions under Section 114 are always discretionary and rebuttable.

16. The first portion ofSection 114 is objective, while the last line ofthe provision requires consideration to be paid to the specificities ofthe case. Therefore, when deciding ifto apply the presumption, the Court has to first elucidate upon and record findings on the facts ofthe case and, only then can it presume the existence ofa fact which would logically follow these established facts.

17. Illustration (a) to Section 114 has been subject matter of several decisions ofthe Supreme Court in Wasim Khan versus State of U.R, AIR 1956 SC 400, Alisher versus State of Uttar Pradesh, AIR 1974 SC 1830 and Baiju versus State ofMadhya Pradesh, AIR 1978 SC 522, but in order to avoid prolixity and repetifion, we would refer to only two decisions: Limbaji and Others Vs. State ofMaharashtra (2001) 10 SCC 340 and State ofRajasthan Vs. Talevar (2011) 11 SCC 666. In the latter decision, it has been held as under "Thus, the law on this issue can be summarised to the effect that where the only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the CRL.A, Nos. 998/2012 &861/2012 Page 9of21 ^ o person in possession of tlie stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof"

18. Limbaji {supra) recorded that presumptions under Section 114, are drawn from the common experience of men and women, which would regard the fact when arising in a particular set of circumstances, to be so generally true that the Court may presume its existence in the absence of direct evidence. The facts of the particular case should, thus, be analysed through the lens of common sense and common experience to arrive at a conscious decision of whetherto draw the presumption. To this effect and on this point, reference in Limbaji {supra) was made to Taylor's treaties on the Law of Evidence on the nature and scope of presumption similar to one in Illustration (a) to Section 114, the relevant portion of which reads as under "The possession of stolen propeity recently after the commission of a theft, is prima facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case, and this presumption, when unexplained, either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by thejury as conclusive. The question ofwhat amounts to recent possession varies according to whether the stolen article is or is not calculated to passreadily from handto hand. This presumption which in all cases is one of fact rather than of law, is occasionally so strong as to render unnecessary any direct proof ofwhat is called the corpus delicti. Thus, to bon-ow an apt illustration from Maule, J., if a man were to go into the London Docks quite sober, and shortly afterwards were found veiy drunk, staggering out of one ofthe cellars, in which above a million gallons of wine are stored, 'I think,' says the learned Judge — and most persons will probably agree with him —'that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any particular vat had been broached, and that any wine had actually been missed'." CRL.A. Nos. 998/2012 &861/2012 Page '0 of21

19. The Supreme Court emphasized that the words "soon after" in Illustration (a) indicate thatthetest of 'recent possession' must be satisfied when the court decides to apply the said Illustration. This time factor test would require analysis of several factors like the nature and character of the stolen property, i.e. whether it is freely and easily transferable, and the nature and conduct of the accused, i.e. whether he had absconded or concealed the stolen property, etc. When expensive and precious articles like ornaments, rare books, valuable paintings, etc. are stolen, the "soon after" test would be satisfied even if a long gap exists between the date of theft and the date of recovery from or at the behest of the accused. Reference was made to Earabhadrappa Vs. State ofKarnataka (1983) 2 see 330, wherein the Supreme Court reiterated earlier judgments, remarking that no fixed time limit can be read into Illustration (a) to signify whether possession was recent or "soon after". In some cases, such as when the accused has disappeared suddenly after the incident of theft or has absconded before he being caught and questioned, a period of even one year or more would not be too long. Secondly, presumptions envisaged by Illustration (a) to Section 114 can be extended to become the basis for conviction for a graver offence ofrobbery and murder, ifthey are apart of thesame transaction. ForIllustration (a) to apply to the aforesaid situation, it has to be held: first, that there was theft by which the article was taken from the person, second, that the said theft was acomponent ofrobbery or dacoity and, third, the offender had caused hurt, attempted to cause death or had caused death. If all three are shown, thepresumption would equally apply to graver offences. Lastly, on the question of the weight and evidentiary value being accorded in such cases relating to graver offences, the Supreme Court referred to Union Territory of Goa v. Beaventura D'Souza, 1993 SCC (Cri) 999, SurjitSingh v. State ofPunjab, AIR 1994 SC 110 and Sanwat Khan v. State ofRajasthan, AIR 1956 SC 54 which fall in one line, and the decision in Gulab Chand v. State ofM.P., (1995) 3 see 574 which falls in another line. The Bench then examined earlier decisions which follow a middle path between the two lines and wherein the presumption had been invoked as an additional reason to support a conclusion arrived at based on circumstantial evidence. The decision elucidates the facts which must be taken into account for the purpose of probative and evidentiary value, with reference being again made to the nature and character of the stolen goods; whether they are easily available and routinely dealt with, can be planted as evidence, frequently change hands, and the time gap existing between the occurrence and the recovery of the articles. In some cases, it will be proper to only infer that the accused, from whom recovery ofthe articles had been made, had received them or procured them. In other cases, it can be inferred that the accused had Imowledge that the goods were stolen goods. Yet, in other cases, an inference may be made that the accused, who had produced the article, is guilty ofmurder as well. The Supreme Court refeiTed to the observations in Sanwat Khan {supra), a decision of thi'ee Judges Bench, to the following effect:- "In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the.person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof." Gulab Chand's case {supra), it was observed, had been considered and explained in other decisions. In case of conflict between the decisions, greater weightage ought to be given to the dicta in Sanwat Khan {supra). CRL.A.Nos. 998/2012 & 861/2012 Page 12of21

20. Where Illustration (a) applies and the test of 'recent possession' is satisfied, then the Court may draw a rebuttable presumption. This presumption can be negated when there is evidence already on record to the contrary (in which event, itis possible to urge that the presumption may not be drawn in the first place, in view of case specific facts) or when an accused offers an explanation by leading defence evidence or in his statement under Section 313 Cr.P.C. A fundamental principle of criminal law is to cast the burden of proof on the prosecution. However, this fundamental principle does not preclude application of Section 114; and a rebuttable presumption of an incriminating fact may still be drawn when supported by the facts of the case. It is only then that the accused is required to rebut the presumption by offering an explanation (see Mohd. Fazal versus State, Crl. A. No. 243/2009 decided on May 19"\ 2014).

21. When we come to the factual matrix ofthe present case, itis evident as per the statements of Constable Dharamvir (PW-1) and ASI Veer Singh (PW-2), Dina Nath had been robbed and stabbed by the same perpetrators and, thus, the act ofrobbery and murder can be said to be a part of the same transaction. To this extent, the prosecution case is firm and established. Further, it is noticeable that the stolen or robbed articles in question were the mobile phone instrument with IMEI NO. 3552320371900[7] (1) and SIM card with No. 9717146012. This mobile phone instrument was recovered from Laldiinder on 16''^ July, 2010, nearly one month and four days after the date 12"^ June, 2010, when Dina Nath was robbed and stabbed. However, the CDRs of SIM card NO. 9910922750 indicate that Laldiinder had started using the mobile phone instrument of the deceased on 13"' June, 2010 at 8.09 P.M. This significantly reduces the time difference between the robbery and the first use of the mobile phone instrument of the deceased with the SIM Card belonging to Lakhinder to about 40 hours. However, other evidence against CRL.A. Nos. 998/2012 & 861/2012 Page 13 of21 Lakhinder connected with the use of the mobile phone of the deceased is sketchy and fractured. Atbest, itprojects that the two appellants were intouch and knew each other and calls were made to common acquaintances or friends.

22. Error free CDRs with data like IMEI number give an equanimous assurance thatthe mobile phone instrument was used with the particular SIM card. CDRs with IMEI number, when authentic, would conclusively establish the calls made to and from the SIM card inserted and used in the mobile instrument for making or receiving calls. CDR data, therefore, lend great reliability and credibility as to the truth of the prosecution version. The chances ofplanting a mobile phone instrument or SIM Card, as incriminating evidence, are considerably reduced and greatly checked. Courts can, thus, rely upon the recoveries with agreat degree ofcertainty and confidence. CDR data is an important and effective tool and evidence which facilitates and assists Courts indeciding whether ornotto apply thepresumption.

23. At the same time, it would be reasonable and proper to take judicial notice that there is a thriving market for second-hand mobile phone instruments. Pre-owned instruments change hands often and within a short time. A visit to any small or around-the-corner market is sufficient to acknowledge and accept that second hand phone instruments are sold and transferred freely and without hesitation, as neither the seller nor the purchaser are aware ofthe risk involved. Unlike ornaments or other articles of value, the sale and transfer of second hand mobile phone instruments, particularly those of lower value, is generally not treated with suspicion. Invariably, such transfers take place without proper documentation in the form ofregular bills or vouchers. Ofcourse, when there is evidence to show frequent sales or purchases with Imowledge as to the antecedent ofthe seller, the effect of Sections 14 and 15 of the Evidence Act may have to be factored and examined.

24. Keeping in view the aforesaid factual position, the time gap of 40 hours in the present case, we have to hold, is substantial and not short or "soon after" for drawing thepresumption, for during this period the mobile phone instrument ofthe deceased could have changed hands. In fact, the mobile phone instrument ofthe deceased was inserted with a SIM Card NO. 965496927 at 5.09 P.M. on 13"' June, 2010. There is no evidence to connect Laldiinder with this SIM Card, which was never recovered and the subscriber was never ascertained. We, therefore, do not think that it would be fair and correct to apply thepresumption under Section 114 Illustration (a) only on the basis that the mobile phone instrument ofthe deceased was first used by Lakhinder on 13"' June, 2010 at 8.09 P.M.

25. Faced with the aforesaid factual position, learned counsel for the State has submitted that the mobile phone instrument of the deceased with the SIM card of the deceased was used for making a call to the telephone number of Ajmeri (9311577669) at 6.38 A.M. on 12"' June, 2010, i.e., within an hour of the occurrence. It is certainly correct and true that the time gap between the said call and the robbery is short and, ifit was shown that Laldiinder had made the said call and spoken to the caller on 9377577669, the presumption under Section 114 Illustration (a) could be applied with full vigour. However, there is difficulty in accepting that Lakhinder must have made the said call from the mobile phone instrument ofthe deceased, which still had the SIM card ofthe deceased. Firstly, we do not know the caller who had received thecall at 6.38 A.M. to telephone no. 9311577669. Customer apphcation fom ofSIM Card no, 9311577699, marked Exhibit PW-25/B, gives the name ofthe subscriber as Ajmeri, but no enquiries have been made to ascertain and whether she was using the said SIM and who had made the said call and spoken to her. It is correct that CDRs of the number 9910922750, marked Exhibit PW-20/E, recovered from Lakhinder do show that calls were exchanged between CRL.A. Nos. 998/2012 &861/2012 Page 15 of21 Laldiinder and the number 9311577699, but then there are also calls to number 9311577699 by several others (see CDRs of telephone nos. 7838196088 and 7838196086).

26. Learned counsel for the State referred to CDRs of telephone NO. 9654169927 marked Exhibit PW-27/C and submitted that this SIM had been inserted in the mobile phone instrument ofthe deceased on 12^' June, 2010 at 9.41 P.M. Thereafter, calls were made to a telephone number of the juvenile, who had faced proceedings before Juvenile Justice Board at 9.41 P.M. on 12^'' June, 2010 and a call was made to the telephone number of Laldiinder (9910922750) at 9.10 A.M. on 13"' June, 2010. There are difficulties in accepting the prosecution contention that this evidence implicates Lakhinder. The inference sought to be drawn is not acceptable. These facts may well go infavour ofLaldiinder. SIM card No. 9654196927 has not been recovered. The said SIM card was issued to Ratti Ram (PW-

13) but he denies having procured the SIM card. We also do not Icnow the telephone number ofthe juvenile, as the said details are not on record. The call from the mobile phone instrument ofthe deceased with SIM card NO. 9654196927 on the telephone number of Lakhinder (9910922750) on 13"' June, 2010 at 9.10 A.M. would possibly reflect that Lakhinder was not in possession of or using the mobile phone instrument ofthe deceased at that time. We cannot infer from the aforesaid facts that Laldiinder had used the mobile phone instrument ofthe deceased either on 12"' June, 2010 at 9.41 P.M. oron 13"' October, 2010 at 9.10 A.M. Inthese circumstances, merely on the basis of the recovery of the mobile phone of the deceased from Lakhinder on 16"' July, 2010 and the fact that he had started using the said mobile phone instrument on 13"' June, 2010 at 8.09 P.M., it is not safe and prudent to hold that the charge stands proven beyond doubt. At best, recovery ofthe said mobile phone would be a corroborative evidence but not sufficient or conclusive to hold that Lakhinder was involved and rule CRL.A. Nos. 998/2012 &861/2012 Page 16 of21 out involvement of another person, i.e. other than the appellant Laldiinder. Such involvement is not verily negated. It is pertinent to note that, as per Constable Dharamvir (PW-1) and ASI Veer Singh (PW-2), Dina Nath had, on the way to the hospital, avowed and implicated three or four unknown boys. As per the prosecution version, there were five persons or accused, including two juveniles, who were involved in the said occurrence. One perpetrator isyet to be arrested.

27. This brings us to the case against Shaukat who, it is claimed, had inserted and used the SIM card of the deceased in his mobile phone instrument with IMEI No. 35905903158206(0) on 13"' June, 2010 at 11.34 P.M. There was agap ofabout 30 hours between the said installation and the time of occurrence. This gap of 30 hours is not insignificant to dissertate the "soon after" test in the facts of the present case for the following reasons. Firstly, the SIM card of Dina Nath (9717146012) has not been located and seized. This SIM was used in another mobile phone instrument bearing IMEI No. 35696001132469(0) on 16"'^June, 2010 from

4.29 P.M. till 9.18 P.M and again in another mobile phone instrument on lO"' August, 2010, i.e. the day on which the appellant was arrested. This reflects a frequent change of hands or multiple use. It is correct that Bhagwan Dass (PW-10) and Arun Singh (PW-9) profess that they had called the mobile number ofthe deceased 9717146012 on 16^' June, 2010 at 9.05, 9.07 and. 9.18 P.M., which is corroborated by the CDRs marked Exhibit PW-20/B, but we are not inclined to accept the assertions by Bhagwan Dass (PW-10) and Arun Singh (PW-9) that they had spoken to a person who had divulged and introduced himself as Shaukat. The said allegations does not inspire confidence and were in all probability made after the witnesses were made aware that one of the alleged perpetrators was called Shaukat. The statements ofBhagwan Dass (PW-10) and Arun Singh (PW-9) under Section 161 ofthe Cr.P.C. were recorded on CRL.A. Nos. 998/2012 &861/2012 Page of21 28"' September, 2010, i.e., after Shaukat was arrested on lO"' August, 2010. The two witnesses did not make any such statement immediately after the calls on 16"" June, 2010. Mobile phone instrument with IMEI NO. 35905903158206(0) was not recovered fi'om Shaukat but as per the prosecution version was found and handed over by Mohd Taufiq (PW-28), cousin of Shaukat on ll''" August, 2010. Mohd. Taufiq (PW-28) claims that he had purchased the said phone from Shaukat for Rs.900/-. As the mobile phone instrument with IMEI No. 35905903158206(0) was not recovered from Shaukat, there can be some debate on the veracity of the version given by Mohd. Taufiq (PW-28) for if the said witness was using the mobile phone and had accepted earlier use, he would have been implicated instead of Shaukat. The evidence on record and proved is too precarious and feeble to be accepted and made the core foundation for convicting Shaukat inthe given factual matrix.

28. Rajesh (PW-ll)'s version that he had sold mobile SIM card NO. 7838196086 to Shaukat also has some gaps, as the telephone connection was issued in the name of Pramod Sharma (PW-12) vide customer application form marked Exhibit PW-27/D[2]. Even if we accept this version of Rajesh (PW-11), the prosecution case would remain doubtfol and unsure. The CDRs of telephone no. 7838.196086, marked Exhibit 27/A[3], would at best show that Shaukat was in touch with Laldiinder as well as with telephone No. 9311577669. However, it may not be possible to draw an affirmative or confirmatory inference from the said CDRs so as to implicate Shaukat with the murder of Dina Nath. Noticably, there is nothing to link and connect Shaukat with purchase or use of SIM NO. 7838196088 purchased in the name of Madhuri Devi (PW-17). There are also calls from this number to Lakhinder and 9311577669. The said CDRs are a weak piece of evidence and only show that Shaukat was possibly using the SIM card with telephone No. 7838196086 and had CRL.A. Nos. 998/2012 &861/2012 Page 18 of21 remained in touch with telephone No. 9311577669, which was the telephone number to which a call had been made from the telephone instrument of the deceased at 6.38 A.M. on 12"^ June, 2010. It may be noted that the said SIM card with telephone No. 7838196086 was not recovered from Shaukat.

29. Faced with the aforesaid situation, learned counsel for the State has referred to the statements of Lakhinder and Shaukat under Section 313 Cr.P.C. and relied upon decision of the Supreme Court in Dr. Sunil Clifford Daniel versus State ofPunjab, (2012) CRL.L.J. 4657. The said judgment after referring to several earlier decisions elucidates the importance ofthe statement ofthe accused under Section 313 Cr.P.C. as this affords an opportunity to the accused to give an explanation as regards inculpatory circumstances put to him. It stands observed that ifthe accused fails to offer an appropriate explanation or gives a false answer, the said fact may be accounted as providing a missing link for the completion ofchain ofcircumstances. In the present case, the appellants Lalchinder and Shaukat may have given vague answers in response to questions under Section 313 Cr.P.C., but we do not thinlc the said answers by themselves can be counted as providing a missing link in the chain of circumstances. When we look at the evidence on record, proved and established cumulatively, it is clearto us that the prosecution case does not prove and establish that Laldiinder and Shaukat were the perpetrators, though there are indications that Laldiinder had used the mobile phone instrument of the deceased, but after a gap. As far as Shaukat is concerned, there are gaps and missing links to establish that he had used the SIMcard of the deceased "soon after" the occurrence. The evidence would not indicate that Lakhinder and Shaukat, along with the juveniles or the unarrested person, were the perpetrators who had robbed and assaulted Dina Nath. The possibility of another person's involvement is certainly not CRL.A, Nos. 998/2012 & 861/2012 ruled out or negated. Accordingly, the appellants Laldiinder and Shaukat are entitled to benefit of the doubt and should not be convicted for the murder and robbery of Dina Nath.

30. Conviction under Section 396 IPC requires five or more persons, who conjointly while committing dacoity commit murder. As per the versions given by two police officers, namely, Dharamvir (PWl) and ASI Veer Singh (PW[2]), Dina Nath had referred to presence of three or four boys. Dina Nath did not refer to the presence of 5 or more perpetrators. There is no evidence to indicate five or more perpetrators.

31. Conviction of Lakhinder under Section 412 IPC would fail and has to be set aside for the same reason. However, looking at the evidence on record, we would hold that appellant Laldiinder did know or had reasons to believethat he had a stolenproperty with him. To this extent, he had acted dishonestly. Therefore, we would convert his conviction from Section 412 IPC to Section 411 IPC. Offence under Section 411 IPC is punishable with imprisonment of either description for a term which may extend to three years with fine or with both. We, accordingly, sentence the appellant Lal<diinder to rigorous imprisonment for a period of two years and fine of Rs.10,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of six months. Section 428 Cr.P.C. would apply.

32. Resultantly, we dispose of the appeal, by acquitting Shaukat and setting aside his conviction under Section 302 read with Section 34 IPC and Section 396 IPC. Appellant Lakhinder's appeal is also partly allowed and his conviction under Section 302 read with Section 34 IPC and Section 396 IPC is set aside. Conviction of appellant Lakhinder under Section 412 IPC is converted to Section 411 IPC and the sentence is accordingly modified. Shaukat will be released, if he is not required to be detained in accordance with law in another case. Appellant Lakhinder would be CRL.A. Nos. 998/2012 & 861/2012 Page 20 of21 / released if he has already undergone the sentence imposed or upon undergoing and suffering the sentence awarded. -sd- (SANJIV KHANNA) JUDGE -sd- (R.K. GAUBA)

JUDGE NOVEMBER 24, 2015 VKR CRL.A.Nos. 998/2012 &861/2012 Page 21 of21