3094

LAWOFCRIMES & CRIMINOILOGY

Scc. 390
Valuc of identification
depends the
prccautions taken by the Police, while holding the
on
parade against identify ing witness having opportunity to see the accuscd.
The Magistrates in
conducting the test identification parade have committed a
error. In the case gravc
of accuscd
Gulati who knew the accused.
No. 6, PW-9 had mixcd up
alongwith PWs-l and 2 a
person,
Similarly,
claimed acquaintance with accused
in the identification of the other accuscd, PW-4 who
Nos. 2, 3 and 5 was mixed
persons who have already known the accused up with PWs-l and 2. When
persons to be identified are mixed
witnesses, the test identification is up with the
depends on the cffectiveness and the clearly vitiated and is futile. Value of idcntification parade
an precautions taken
opportunity of sccing the persons to be identified before against the identifying witness having
also agaunst the
identifying witness bcing provided they are
paraded with others and
unfair aid or assistance so as
to facilitate the
by the investigating authority with other
The proceedings of the
identification of the accused concerned.*

Magistrate in the Jail premises onidentification

May 21,
parade was conducted by the Sub-Divisional
1975. It has been
he following marks on the body mentioned in the proceedings that
of the appellant were covered with pieces of paper
(1) Moleon right cheek

(2) Mole near the right temple

(3) Both ears
(4) Cut mark near right ear
(5) Mole on left cheek
(6) Peacock engraved on right forearm
(7) Mole and pock mark on
right nostril.
Ten under-trials were mixed
with the appellant for the
oer-covering was of
done them. All the eleven were madepurpose identification. Similar
to
to close their
The manner in which the eyes.
identification parade was conducted is not
cr make-up on the faces of the satisfactory. That
participants,
de wholly unreliablc. It was more of a drama to such an
extent, has rendered the identification
to convict the than an identification
appellant on the basis of the identification evidence.85 parade. It would not be
Reference was made to
suggestions
ppellants, before they were put up given
to the witnesses that
they were made to identify
for the test identification.
ad in dacoity cases to challenge the This has been
identification by witnesses always a
ing the Police Officer had shown the
that at a test identification by
test identification. Before accepting the suspects to the witnesses before they were put
burt has to first consider the objection toidentification by the witnesses at atest
such identification. identification,
but the Court
has to examine on the Although, task is not very
basis of the materials on
this
y the suspects, who record as to whether
were to be
put up for test
tnesses. the instant case, it is an admitted identification, have already been shown to
O
In
District Jail, Alwar on position that SHO, Police Station, Bandikui,
SCnt 12.1.1984 and took custody of the
case and brought them to appellants in connection with
neikh Hasib Bandikui and lodged them in
vs.
lavaram PeddaState of Bihar, (1972)
(
Sub-Jail on 13.1.1984. Same
SCC 434 1991 Narsi
Reddy vs.
4 ScC
773: 1971 Cr.
App. R
Chanan vs Satu Cr.
1LJ
1833; 191
State
ate of Andhra Pradesh AID
(SC) 410.
 IDENTIFICATION BEFORE COURT 3095
Sec. 390]
Shri 0P Gupta
the test identificationhcld in the prescnce ofthe Judicial Magistratc,
was
day, and they correctly idcntificd
in which as 1l persons from Baswa participatcd
(PW-17). as many
timc of the test identification
mixed up with 11 others at the
the appellants, although they had becn in normal
the appellants identified by the witncsscs,
If the SH0 (PW-37) wanted to first get identification on 13.I.1984 itself
would have hcld the test
expected that he
course, it was not
difficulty in fixing the test
to Bandikui. There was
no
the day the appcllants were brought could have becn shown to
identification on any later date
and in the meantime, the appellants
after the appellants
with which the test identification was held,
the witnesses. But the promptness which satisfies
in connection with the present case is a circumstance,
were taken into custody the test identification B
conscious of the Court about the genuineness and fairness of
the
Identification Before Court
(ii)
A large number of chits were placed on the
face of the appellant in order to cover the
the
marks of identification and the parade was held
after three months. Magistrate who held
to the manner in which the parade
identification parade was not cross-examined at all in regard
on the face of the appellant.
was held or in to the number of chits which were placed
regard
be
The evidence of the Magistrate not having
been challenged during the trial, cannot
manner. Now it is
in the Appellate Court that the parade was held in an irregular
challenged the identification
of about three months in holding
true that in the instant case there was delay
a
were asked to the Investigating
Officer as to why and how
parade but here again, no questions 7
the delay occurred. Note Appeal was dismissed. several
held at the earliest possible opportunity. Having
Test identification parades must be Non-
about the bona fide of the prosecution.
identification parades give rise to suspicions evidence
identification parade also adds to the
doubt. Such
inclusion appellant in the first
ofthe
of identification is liable to be rejected.

18. Value
He was
called upon only to conduct the identification proceedings.
The Magistrate was
elicit any other facts or call
to interrogate witness to
to record any confession
or
not required The statement in column 7
identification.
make any statement beyond
mere
upon them to does not sanction his transgression.
inadmissible in evidence. The Code
would, therefore, be to the
hold identifícation parade when according
It is not necessary for the State to
would not be
the If the accused felt that the witness
prosecution they were arrested
at spot.
identification parade.0
have requested for
able to identify them, they should
five persons and
clear finding that there were more than
The High Court has given fact that only two out of
the
who identified two of them. The mere
believed the eye-witnesses
1994 Cr. LJ 922:
527: (1994) 1 SCC 413:
AlR 1994 SC 739: 1994 SCC (Cr.)
86. Brij Mohan vs. State of Rajasthan, 203: 1994 Cr. LR (SC)
775: (1994) 1 Crimes
288.
1 UJ (SC) 87: JT (1993) Supp. SC 3 SCC 896: 1972 Cr. LJ 1704:
(1994) SC 3478: 1973 SCC (Cr.)
574: (1973)
AIR 1972
87. Bharat Singh vs. State of U.P,
1973 Cr. LR (SC) 317.
1971 Cr. App. R (SC) 410.
State of Bihar, (1972) 4 SCC 773: 2 SCR 289.
Sheikh Hasib 1619: 1970 Cr. LJ 1422: (1969)
vs.
88. AIR 1970 SC
State of Madhya Pradesh, Cr. App.
89. Harnath Singh vs.
263:
(Cr.) 3 SCC 174: 1971 Cr. LJ 642: 1971
(1971)
1971 SC 708: 1971 SCC
90. State ofU.P. vs. Raju, AIR
R. (SC) 93: 1971
UJ (SC) 237.
 3096 LAWOFCRIMES &CRIMINOLOGY Scc 39)
band of attackers ere satisfactorily identificd docs not wcakcn thc forcc of thc finding that
more than five were involved. Use of S. 149, IPC was, thercfore justificd
The appcllant Brahmanand has a beard. It is clcar from thc admission of Babaji and
Jiwan that Brahmanand was brought by the Policc and made to sit outside the Court of the
Magistrate where these witnesses also waited before thc idcntification paradc began The
Magistrate took no precautions to sce whether other similar beardcd man joincd the parade
There were only five other porsons in the parade. Apparently Brahmanand had a tape on his
neck at the time. The identification proccedings was, therefore, rightly dcscribcd by the Trial
Courts as "farce"92
Complainant in the first information report had clearly stated that he and the witnesses
named by him therein had properly seen the miscreants and would be able to identify them if
shown to them. Also, there was the evidence that the witnesses had taken
up their positions
around the house and there was adequate light especially when one of the witnesses set fire to
the heap of dry sugarcane lcaves
nearby.
The opportunity to mark the faces and the features of the miscreants was adequate also
because these miscreants were at the scene of the offence for more than half an hour. Their
number was seven or eight only and there was no crowd between them. The identification of
the accused is not unreliable33
If after arranging the parade the Police leave the ficld and allow the idcntification to be
made under the exclusive direction and supervision of the Panch witnesses, the statements of
the identifying witnesses would be outside the purview of S. 162, Cr. P. Code 94
The pellets from a shot gun, though can be measured, weighed and subjected to chemical
analysis, cannot establish the identity of the gun that fired them though in the case of bullets
from rifled arms the identification of bullet is possible with the help of microscope and experts
services,95

After the arrest of the assailants, seven of them were put up for identification. These
seven were mixed with thirty-nine other persons. PW-I picked out three out of seven suspects
and aiso picked out six out of the remaining thirty-nine. Thus, in fact he made three correct
identifications and made six mistakes at the identification parade.
That in a parade of this kind consisting of 46 persons in all in which there were seven
uspects, the probability is that even if a person who had not seen the murder were to pick out
uspects by mere chance and would be able to place his finger on one or two of the suspects.
No reliance can be placed on such an identification even though witness was disinterested and
also cannot be uscd as corroborative evidence.5
Where the appellant is intimately known to Rakha Singh witness and for more thana

Nar Singh vs. State of Uttar Pradesh, AIR 1954 SC 457: 1954 Cr. LJ 1167: (1955) | SCR 238.
shant vs.StateofMaharashtra, AlR 1973 SC 337: 1972 SCC (Cr) 684: (1972)3 scC 639: 1972 Cr. LJ 1254:
(1973) 1 SCR 291:
1972 UJ (SC) 923.
d e r Singh vs. State ofU.P, AIR 1973 SC 1200: 1973 SCC (Cr.) 133: (1973) 3 SCC 55: 1973 Cr. LJ 926: 1973
UJ (SC) 254.
94
95 anta
In Singh vs. State of
Punjab, AlR 1956 SC 526: 1956 Cr. LJ 930.
re
Kodur 'Thimma
atam Reddi, AIR 1957 Andh. Pra. 758.
Chandrappa vs. State of Andh. Pra. AIR 1960 SC 1340: 1960 Cr. LJ I081.
Sec. 390] VALUE 3097

fortnight before the date of the offence hc lhad mct the appcllant (accuscd) on several occasions
in connection with the disputc, it cannot be said that the identification of the assailant by the
as to affect his
witness Rakha Singh, from what he hecard and obscrved was so improbablc
assailants by the gait and
testimony of identification. So there can be idcntification of the
v o i c e 97

and if the accused person is well

The absence of test identification in all cases is not fatal
for identification. Of coursc, if thc
known by sight, it would be waste of time to put him up
the plea that the witnesses already knew the
prosecution fails to hold an identification on
accused well and it transpires in the course of the
trial that the witnesses did not knovw the
accused the prosecution would run the risk of losing its case.
perviously
The fact that a charge-sheet had been received and the accused had been named by
PWs was no justification for not having ordered the test identification.

In this case, on the witnesses were known to the accused, the trial
the facts, as
was not

vitiated on the ground that the accused persons were denied identification.
not make inadmissible the evidence
of
Failure to hold an identification parade does
identification in the Court
both in the identification parade as
When the cye-witness failed to pick out an accused
would be entirely incorrect to rely upon
his
well as in the Committing Magistrate's Court, it
evidence of such witness must be rejected."
belated identification in the Sessions Court. The
the Court, more so when no
No weight can be attached to the identification held in
Officer's failure to hold a test
satisfactory explanation is forthcoming for the Investigating
identification parade. 101

19. Dark Night

identification
of the night, the evidence of the test
dacoity occurred in the darkness
Where a on their own
would call for a careful scrutiny.
In a case of this kind where the eye-witnesses,
identification of the accused
before the occurrence, their
admission, did not know the appcllants
would have been improper.
for the first time in the dock after a long lapse oftime
person
accused in connection
Officer suspects that persons arrested are
Once the Investigating carliest. It is imperative
should be put up for test identification at the
with a particular dacoity, they at test identification
without
Officer to put up such suspects
duty on the part of the Investigating
to the test identification.05
any delay. That gives sanctity LJ 636: (1964) 3
SCR 992.
SC 712: (1965) 1 Cr. Cr. LJ 305: 1971
State of Uttar Pradesh, AIR 1965 S18: 1971
97. Kirpal Singh vs. 124: (1970) 3 SCC
AIR 1971 SC 363: 1971 SCC (Cr.)
98 Jadunath Singh vs. State of U.P,
2 SCR 917. SCR 1218.
Cr. App. R. (SC) 10: (1971) 1958 SC 350: 1958
Cr. LJ 698: 1958
AIR
Delhi Administration,
Kanta Prashad vs. 1960 Cr. LJ 1681
99 Chandrappa vs. State of Andh. Pra., AlR 1960 SC 1340:
SCC (Cr.) 705: (1992) 3 SCC 700:
100. . Vaikuntam 1992 SC 2100: 1992
vs. Sukhdco Singh alias Sukha, AIR
101 State of Maharashtra
(1992) 4 SC 73. SC 345: 1988
1992 Cr. LJ 3454:
JT Nath vs. State of U.P., AIR 1988
U.P; Chhabi Nath
vs. State of U.P. and Raj S5: (1988) 1 SCR 848: JT (1988)
5 SC 316:
HariNath vs. State of Cr. LR (SC)
102. Cr. LJ 422: 1988
14: (1988) 1 SCC 14: 1988
SCC (Cr.)
SCC 413: 1994 Cr. LJ 922:
(1987) 3
Crimes 667. 1994 SCC (Cr.) 527: (1994) 1
AIR 1994 SC 739:
103. Brij Mohan vs. State of Rajasthan, SC 203: 1994 Cr. LR (SC)
775: (1994) 1 Crimes 288.
87: JT (1993) Supp.
(1994) 1 UJ (SC)
Sec. 390 VALUE 3097

fortnight before the date ofthe offence hc had met the appcllant (accuscd) on sevcral occasions
in conncction with the dispute, it cannot be said that the identification of the assailant by the
witness Rakha Singh, from what he heard and observed was so improbable as to affect his

testimony of identification. So there can bc identification of the assailants by the gait and
voice,97

The absence of test identification in all cases is not fatal and if the accused person is well
known by sight, it would be waste of time to put him up for identification. Of course, if the
knew the
prosecution fails to hold an identification on the plea that the witnesses already
accused well and it transpires in the course of the trial that the witnesses did not know the
accused perviously the prosecution would run the risk of losing its case.

The fact that a charge-shecet had been received and the accused had been named by
PWs was no justification for not having ordered the test identification.
In this case, on the facts, as the witnesses were known to the accused, the trial was not
vitiated on the ground that the accuscd persons were denied identification.*

Failure to hold an identification parade does not make inadmissible the evidence of
99
identification in the Court
identification parade as
When the eye-witness failed to pick out an accused both in the
well as in the Committing Magistrate's Court,
it would be entirely incorrect to rely upon his
identification in the Sessions Court. The evidence of
such witness must be rejected.100
belated
held in the Court, more so when no
Noweight can be attached to the identification Officer's failure to hold a test
for the Investigating
satisfactory explanation is forthcoming
identification parade. 101

19. Dark Night

the evidence of the test identification
Where a dacoity occurred in the darkness of thenight,
on their own
case of this kind where the eye-witnesses,
would call for a careful scrutiny. In a of the accused
bcfore the occurrence, their identification
admission, did not know the appellants would have becn improper.12
for the first time in the dock after long lapse of time
a
person
arrested are accused in conncction
that persons
Once the Investigating Officer suspects earliest. It is imperative
for test identification at the
with a particular dacoity, they should be put up identification without
Officer to put up such suspects at test
duty on thepart of the Investigating
to the test identification.
any delay. That gives sanctity SCR 992.
1 Cr. LJ 636: (1964) 3
Pradesh,
State of Uttar AIR 1965 SC 712: (1965) 1971 Cr. LJ 305: 1971
97. Kirpal Singh vs.
124: (1970) 3 SCC 518:
Jadunath Singh vs. State ofU.P, AIR
1971 SC 363: 1971 SCC (Cr.)
98.
SCR 917.
Cr. App. R. (SC) 10: (1971) 2 1958 Cr. LJ 698: 1958
SCR 1218.
Delhi Administration, AIR 1958 SC 350:
99. Kanta Prashad vs.
1340: 1960 Cr. LJ 1681.
State Pra., AIR 1960 SC
of Andh. 3 SCC 700:
Vaikuntam Chandrappa vs. 1992 SCC (Cr.) 705: (1992)
100. . Sukhdeo Singh alias Sukha, AlR 1992 SC 2100:
101. State Maharashtra vs.
of
1992 Cr. LJ 3454: (1992) 4 SC 73.
JT Nath vs. State ofU.P., AIR
1988 SC 345: 1988
Nath vs. State of U.P. and Raj
Hari Nath vs. State
of U.P.; Chhabi
55: (1988) 1 SCR 848: JT (1988)5 SC 316:
102.
SCC 14: 1988 Cr. LJ
422: 1988 Cr. LR (SC)
SCC (Cr.) 14: (1988)1
922:
(1987) 3 Crimes 667
AIR 1994 SC 739:
1994 SCC (Cr.) (1994) 1 SCC 413: 1994 Cr. LJ
S27:
Brij Mohan vs. State Rajasthan,
of 775: (1994) 1 Crimes 288.
103. SC 203: 1994 Cr. LR (SC)
JT (1993) Supp.
(1994) 1 UI (SC) 87:
 3098 LAWOF CRIMES & CRIMINOLOGY [Sec. 30
This otf evidence is subject which peculiarly attracts thc warning given by the
type a
Supreme Court of the United States in Aldridge vs. Unitcd States (1930) 283 U.S. 308 and
quoted with approval by Desai, J. in Satya Narain vs. State, AIR 1953 Al1. 385
Courts ought not to increase the difficulties by
their province to deal with matters
magnifying theoretical possibilities. It is
actual and material to promote order, and not to hinder
it by excessive theorising or by magnifying what in practice is really not
important."
"A criminal prosecution is more than a
game in which the Government may be checkmated
and the game lost merely because its
officers have not played according
to rule."
During the
investigation of a crime the police has to hold identification parades for the
purpose of enabling witnesses to identify the
offence or to identify the persons concerned properties which are the subject matter of the
therein. They have thus two fold
to satisfy the
investigating agency that a certain objective; firstly,
were involved in the commission of the person previously known to the witnesses
not
offence or a particular
or any other crime. It
is also designed to furnish property was the subject of theft
the witness concerned tenders evidence to corroborate the testimony which
before the Court.
There is one basic difference between
the identification of an
property: whereas in the case of the former the identification is accused person and that of
of one stranger by
the case of the latter it is
invariably by the owner or by those who had been
another, in
to the crime, for
example, stolen property an owner may not be able tofamiliar with it prior
accurate description of his give a meticulously
property, nevertheless common experience shows that he
has difficulty in
picking it out from a number of similar articles, so that seldom
by the owner or his associates can identification of property
always be approached with a greater degree of confidence.
Value of evidence obtained
by Test Identification
identification in Court is very great indeed. But that is so Parade as corroborative evidence of
are held in the manner and
under
only when Test Identification Parades
conditions which preclude even faint
machination during investigation. If such possibility of collusion or
any collusion are indulged in, it
persistent violations of reasonably guarantees against
may not be possible for the Court to
by the Magistrate holding such parades in the accept the assertion made
as conducted under testimony about his satisfaction that identification
conditions precluding possibility of collusion."
There can be no doubt that if the
a witness his
intention is to rely on the identification of the
ability to identify should be treated without suspect by
or
furnishing him the data from showing him the suspect or his
photograph,
identification. Showing a photograph
makes the identification worthless.105 prior to the identification
The identification itself is
by
admissible under Section 9, Evidence substantive evidence and has no independent value, but is
not
Act and provides a
made in court 106 strong corroboration to the identification
104. Panchu
105. Gopal Das vs. The
XInipat Charani and othersState, 1968 Cr. LJ 40: AIR 1968
vs. State off
Cal. 38.
Sta vs. The State, AIR 1955 Maharashtra, AIR 1968 SC 938; 1968 Cr. LJ 1201.
Al13
AlI. 131.
.
L.J. 848: N.U.G. S19: I.L.R. (1953) 3
AlR 1953 Al. Raj 183: 1953 Raj
385: AIR 1950 Pat. L.W. 228, Satya Narain
514; Shiam Lal vs. Rex, 1953 Cr. L.J. 367: AlK 1 .vs.
 Sec. 390] DARK NIGHIT 3099

In Davis vs. The King, 57 C.LR. 170, the High Court of Australia adoptod the Finglish
viewthat-
I f a witncss whose previous knowlcdgc of the accuscd man has not madc him familiar
with his appcarancc has becn shown thc accuscd alonc as a suspcct and has on that
occasion first identificd him, the liability to mistakc is so incrcascd as to makc it unsafc to
convict the accuscd unless his identity is further provcd by othcr cvidencc dircct or
Circumstantial."

Thus, identification evidence should be held as a check upon the veracity of people who
are believed to know something about the matter, the actual evidence regarding identification is
107
that which is given by the witnesses in court.
Identification procecdings held in jail amount to this, namely, that certain persons are
brought to the jail or other place and make statements, either express or implied, that certain
individuals whom they point out are persons whom they recognise as having been concerned in
a particular crime. These statements are of course not made on oath and again they are made
in the course of extrajudicial proceedings. The law does not allow statements of this kind made
available as evidence at the trial unless and until the persons who made those statements are
called as witnesses then these previous statements become admissible as evidence to corroborate

or contradict the statements made in court (Session 155 and 157, Evidence
by these witnesses
corroborate the testimony
Act). According to Section 157 ofthe Indian Evidence Act, in order to
the same fact, at or about
of a witness, any former statement made by such witness relating to
to investigate the
the time when the fact took place, or before any authority legally competent
that the nule cmbodied in Section 157
fact, is admissible in evidence. But it has to be observed
which says that not only is the record of
is controlled by the provisions of Section 162 Cr. P.C.
of the Cr. P.C. excluded from evidence but
the statement of a witness taken under Section 161
the purpose of corroborating the testimony
also the proof of such statement by oral evidence for
of the witness for the prosecution.10
time when they
The made by the witnesses to the investigating officer at the
statements
who had committed the offence are hit by the prohibition
picked out the accused as the person
admissible.109
contained in Section 162 Cr. P.C. and are
accused is
that the witness had identified the
The statement of the investigating officer trial in regard
admissible under Section 162 Cr. P.C. But
the evidence ofidentifier himsclfat the
at the trial.0
to his identification is admissible by way
of corroboration of his identification

20. Person
to exclude the dead body
of a
cannot be so narrowly construcd as
The word person transaction inwhich theft was committed.
human being who was killed in the course ofthe
same
transaction
is stolen from body apart from the
a dead
The matter would be different if a thing his/
the body of the victim after causing
in which death occurred. Removing of ornaments from
578.
AlR 1936 Pesh 166: 164 I.C.
Mohammad Husain vs. Emperor, 37 Cr. LJ 981:
107.
438: AIR 1925 Lah. 399.
108. Rakha Emperor, 27 Cr. LJ
vs. 2 Cal. 569: 43 C.W.N. 1117.
41 Cr. LJ 405: AIR 1940 Cal. 182: I.L.R. (1939)
109. Krishna Kahar vs. Emperor, 104.
1955 Cr. LJ 196: AIR 1955 S.C.
110 Ram Kishan vs. State of Bombay, Balla Munshi Bhai, AlR 1958 MP 192.
MP 106. Sec, However,
111. Jamnadas, AlR 1963
 3100

her death LAWOF CRIMES

cannot
property out of amount to
robbcry. Removing
&CRIMINOIOXGY
21. possession of
Wrongful Restraint person by a ornanments from dcad body
force. 112 a
cannot be
takm
Wrongfulmeans and
incorrect, mischicvous, connotes
against the law, illegal, bad,
-

Restraint nauthorized, malicious, unfair, improper, criminal

detain. deprive means and connotes unlawful, unjust.
check, keep underof liberty. delimit, debar,arrest, bind, blockade, check,
-

control, keep within feter, handcuff, hinder, holdcramp. control

See section
339 of this bounds, lock up. hack, hold in
under code.
However, the provision of
Section 339 arc
339. reproduced
that person Wrongful
as
restraint. -Whoever
from
proceeding in any direction involuntarily
wrongfully to restrain obstructs any person so
that person which that person has a right to as to prevent
proceed, is said
Exception.- obstruction of a
The
good faith believes himself to have a
private way over land or water which a
meaning of this section. lawful right to obstruct, is not an offence person in
within the
The gist of the offence
being. 113 defined in Section 339 is
causing obstruction directly to a human
Wrongful restraint is keeping a man out of a
to be. The obstruction must be place where he wishes to be and has a right
physical.
Restraint' implies abridgement of
the liberty of a person against his will. Wrongful restraint
means the
keeping a man out of a place where he wishes to be, and has a
right to be. A person
deprived of his will power by sleep or otherwise cannot while in that condition,
restraint, 114 be subject to any
The obstruction should be so complete and successful as to
prevent the person obstructed
rom proceceding in any direction in which he has a
right to proceed.3 The obstruction must be
oluntary.
Where a police officer refused to let a person go home until he gave bail;t6 where the
ccused prevented thc complainants from proceeding in a certain direction with their carts and
tracted from them a sum of money on a false plea." Where a police-ofticer obtaincd Rs. 7
om two prisoners on a promise of releasing them and threatened them that unless they gave
m Rs. 200, he would confine them in the lock-up and keep them therc for months while a
he
arge of bribery against them, in respect of Rs. 7 was being investigated, and on his threat
committed was that of
aiowed to take certain ornaments, it was held that the offence
as
bberv, 118

Muhammnad 1974 Cri. LJ 204 (Ker.); Thavasi, In re 1972 Cri. LJ 445 (Mad).
3
KOzhipalliyalil
A.LR. 1928 Lah. 445
4
(446): 29 Cr. LJ 602.
1955 Andhra WR 143
15 1955 Andh LT (Cr) 7.
15 Bom. LR
103.
U n Sahai vs. Mohomed Fazil Khan (1868) 10 WR (Gd 20.
 WRONGFUL RESTRAINT 31O)
Sec. 390]
to be qucstioncd but hc cannot sunmon
A Police Officer can ccrtainly summon a person intcrrogation
must be askcd to attend
male under 15 ycars of agc. Such persons
a woman or a to S. 160, Cr. P Code says. By
where reside. This is what the proviso
they
at the place thc appcllant was guilty of
and Jagbir, a boy agcd 13 ycars,
summoning Chand Kaur,
a woman

no doubt that hc kept

these persons and also Devi Dut
There is
infringemcnt of this provision. not kccp thcm under rcstraint
under wrongful restraint. Thc appcllant could
and Lakshmi Dutt
not undcr S. 342.
offence under S. 341, I.P.C. but
The appcllant was, thus, guilty of an
IP.C. is concerned, the only allcgation rclating
to
offence under S. 341,
LPC.1 So far as the in front of Mrs. Bajaj in such a manner
that she had to move
Gill stood
the same is that Mr. restraincd" her within the
such act alonc, it cannot be said that he "wrongfully
backward. From
under S. 341, I.P.C.120
meaning of S. 339 1.P.C. to make him liable
refused temporary injunction
the ground
is that as the appellant had been
The acquittal on
whereafter no further
against that order, she was described as a trespasser,
and in the appeal IP.C. is made out inasmuch
as for an
offence under S. 341,
civil proceeding was taken,
no in
the person concerned must have "right to proceed",
action to amount to "wrongful restraint",
S. 339, I.P.C., which
as would appear from what has been stated in
the direction in question,
restraint.
has spelt out what is wrongfül admitted in
above are that the appellant was
the aspect
The skeletal facts relating to addressed to her on 1st
of Victoria School. A letter was
the Campus
occupation of a room in Committee of the School
not to
to the decision of the Managing her in the
October, 1982 that pursuant she was to vacate the
room provided to

allow any outsiders to reside

in the Campus, October by praying for
letter replied by the appellant on 4th
hostel within a week. This rather short. The
was
that the notice to vacate was
extension of time to leave
the room, stating
the end of October.
vacated the room, it was locked by
appellant not having
accused had in any way appropriated
record did not show that the
It was held material on
which were in the room and,
therefore, no damages
the belongings of the complainant
or stolen
121

can be awarded for the same

Code" cannot be read ejusdem
generis
offence under the Indian Penal which
The words "only misappropriation and cheating
theft in building, dishonest
with the offences such as theft,
offences
clause stands by itself
and indicates that all
connected with property.
This dealt with
offences ofbeing
are
years' imprisonment are also capable
than two Chap. 17
punishable with not property are all included in
more

Code (old), offences against

under S. 562(1-A) of Cr. P. of S. S62 (1-A) of
offences against
limit the operation
desired to seventeenth Chapter of
of the I.P.C. and if it
was
to have mentioned in the
easiest thing
it would have been the even in the
offence
property, 561(1-A) can be passed
of admonition under S.
the Code. So the sentence
122

of wrongful confinement,
i.e., S. 342, I.P.C.
R (SC) 304: 1970 UJ (SC)
945: 1970 Cr. App
193: (1971) 3 SCC
1972 SCC (Cr.)
119. Raja Ram vs. State of Haryana, 1996 Cr.
1995 SCC (Cr) 1059: (1995) 6 SCC 194:
512. AIR 1996 SC 309:
Deol Bajaj vs. Kanwar Pal Singh Gill,
120. Rupan L.J 1371:
7 SCC 148: 1996 Cr.
LJ 381.
AlR 1996 SC 1058:
1996 SCC (Cr) 236: (1996)
vs. S.M. Rao,
121. Vijay Kumari Magee Crimes 1.
JT (1996) 1 SC
375: (1996) 1 2 SCR 309.
Purnchandra Rao, ANR 1967
Si
Akarapu Katta Mallu vs.
122.
 3102 LAWOFCRIMES & CRIMINOLOGY
[Scc. 390
The offence of wrongful restraint is linear in its
a man out of a
scope, while wrongful restraint is kecping
place where he wishes to be and has a right to be. A person may obstruct
another by causing it to appcar to the other that it is
aswell as by causing it impossible, difficult or dangerous to proceed
actually to beimpossible, difficult or dangerous for that other to proceed
The obstruction must be
physical. Verbal prohibition or remonstrance does not amount to such
obstruction. The offence is the
abridgment of the liberty of a person against his will. In a
Wrongful restraint there need not be any
channel different from the stoppage of the movement; it may be directed into a
direction, in which the victim intends to
the obstructor is not
necessary, nor is any actual assault
move. Physical presence
of
restraining a man out of a necessary and fear of immediate ham
place where he wishes to be and
has a right to be is sufficient. 123
An effective restraint on
the right of the freedom whether caused by threats or actual
physical force is sufficient for purpose of commission by
can, in certain of offence. The coercion of the mind
an
circumstances, be as effective
conduct of the wrongdoer within the as coercion of the body in order to
of ambit of Section 341, I.P.C. bring the
words, acts, gestures or the like sufficient a Such restraint may arise out
to induce a
submit will result in the use of reasonable apprehension that failure to
force.124
The word "obstruction"
threats. Offence under Section
means
physical obstruction, may be by force or menace and
339 or Section 341
caused and not by nature of act.123 is determined more by nature of effect
obstruction. 126 Offence can be committed by mere words without physical
To constitute the
it to be
offence, the
obstructor must intend or know or have reasons to
likely that the means
adopted would cause the obstruction of the believe
The word
"obstruction" or "restraint" implies a desire to complainant.127
therefore, there was never any such proceed in a certain way. If,
may have intended it and even desire, there could be no obstruction, though the accused
his present expressed his intention to restraint another should he move from
position.128
is not obstruction."23
The obstruction must be
physical. A verbal prohibition or remonstrance
Mere direction or
demonstration is not sufficient.130
Wrongful confinement is a species of
under Section 341 or 342 is that there must wrongful restraint. The gist of the offence either
be restraint when there is a
a
particular direction.131 desire to proceed in
Every subject has the liberty to go when and
lawful manner. Every where he likes to go
offered in the exercise of such provided does so in
he
impediment
me exceptions, be unlawful and may constitute liberty would, subject to
the offence of
59 or S. 340,132
wrongful restraint under S.
3. AIR 1964 Mad.
247, 1954 Cr. LJ 283 1952
4. AIR MWN 163.
5. AIR
1959 Cr. LJ 368;
AIR 1959 Punj. 134 ILR 1958
1955 NUC Punj. 2318: 60 Punj. LR 563.
6. AlR 1971 Cr. LJ(Cul) 1420.
7. 11 Cr. LJ 708. 182.
AlR 1957
29 (1882) 1 Cr. LJ 769 AIR 1957 Ori. 130:
30. Weir 339 23 Cut LT 88.
8Cr. 1.J
31 212,
AR 1957 (C (1951) 1 MLJ 13.
Sec. 3901 SENIENCE 3103

The words "in any dircction" vould includc a vertical dircction and that if A had a right to
go up to the roof of his housc or come down from thc roof or to go up a mountain or to gct up
a ladder and he was wrongfully prcvented from doing so by B. B will be guilty of an offcncc
133
under this section.
A menace or thrcat crcating a fear of physical obstruction would be within this section 1

22. Sentence
of
In of robbery, which was not planned but which had been committed on the spur
a case
the moment and because of nonresistance to temptation, years rigorous imprisonment
3 was

held sufficient.135
Out of the amount of Rs. 40,000/- an amount of Rs. 39,170/- has been recovered from
accused Nos. 1, 4 and 7. Thus there is a shortfall of Rs. 830/- only. It is true that in the
meantime PW 2 has suffered loss of interest on his amount. Taking all these facts into
consideration and bearing in mind the facts that the accused persons were in jail for sometime,
far as the
we think that the ends of justice would be met if the accused persons are fined. So
at the door of accused No.
gravity of the offence is concerned, the maximum blame can be laid
l and 2 and thereafter Accused
1, a police man, next comes, accused No. 7, neighbour of PWs
the basis of the share of the loot
No. 4 a mere companion. This view can be supported even on
received by each of them. Having regard to various
factors such as the passage of time,
the time spent in prison before release on bail etc.,
we
recovery of almost the entire amount,
direct accused No. I to
think it is not necessary to send the accused to prison. We, therefore,
accused No.
default to suffer rigorous imprisonment for three years
pay a fine of Rs. 7500/-, in
7 to pay a fine of Rs. 5,000/-, in default to suffer rigorous
imprisonment for twó years, and
in default to suffer rigorous imprisonment for
one
accused No. 4 to pay a fine of Rs. 3000/-,
136
year.
and therefore when deciding case of such
Highway robbery is very heinous offence
a
is to
should not be criterion whereby the amount of punishment
nature, value of stolen property
be determined, 137

of the requirement of the

A sentence of fine of one rupee only is not adequate compliance
l a w 138
139

Accused 23 years old- No injury to complainant, sentence ofsix months held sufficient.
murdered the deccased. There after
Being cnragcd by a slight provocation the accused it was held that the
the aticles. In these circumstances
he broke open the boxes and stole committed
connection with the theft and hence the offence
murder could not be said to have any
under Section 380 and not S. 392.140
by the accused fell
LJ 1023 (DB).
133. AIR 1927 Bom 369 (369) : 28 Cri. 1 Cal. 251.
LJ 368 ILR
1959 Cri. (1952)
134. AIR 1957 Punj 134 (142): LJ 1285
(1955) 5 Raj. 510: 1955 Cri.
135. AIR 1955 Raj. 147 (151) : ILR 1989 Cr. LJ 1451: 1989 AIR (SC) 1410: 1989 (2)
Ors. 1989 CAR 185:
136. Suryamoorthi & Anr. vs. Govindaswamy &
Crimes 176.
AIR 1942 Oudh 221 (225,
226):43 Cri. LJ 416: 17Luck 516.
137 1967 MPLJ 697 (DB).
225 (228) : 1965 (2) Cri. LJ 507:
138. AIR 1965 Madh. Pra.
AIR 1950 Mad 639 (640) (DB).
139. Cri. LJ 1665.
140. AIR 1953 Him. Pra. 105 (110): 1953
 dues. It wasTUfcibly
and since plainant GY
force had held in detained
went
the mule to the shop of
accused.41 also thesc to thc
a
fine A
sentence
may be added of
been uscd
an
put
that circumstanccs
pressure accuscd with the
on
thc act of the
142 offence
imprisonment
is an under Scction
thc complainantcompl apayinant'
Where an accused to
392 was amountcd to u
road and essential
was accused sentencc under made out theft
View in appeal.143 sentenced tocommits
7 high-handed S. 392 against the
To this
years rigorous and broad day scntence
In
imprisonment , light act of
be robbery, the
inflicted. the court robbery publc
offence underSection Legislature
on
declincd a

392 is the has provided three

to takc
lenient a

aggravated circumstances.
regards the minimum different
general scction, and the degrecs of
circumstances This section two
other sections punishment which
of seven punishment
which would make to be doubt
awarded, but allows the Court, specify the no may
same
years, it the when the offence discretion as
would not be a attempt to commit it
the offence has been is
proper exercise of punishable with the minimum attended with
accomplished
Simply because knife used in
144 discretion to award lesser sentence
sentence when
a

one only under Section

302, IPC 145 robbery was not recovered, offence cannot be
treated
Robbery of a gold ring and wrist as

has already spent 1-1/2 watch- Occurrence

years in jail. Appeal being 10 years old- Accused
reduced period already spent in jail.146
to against conviction was filed. Sentence -

was

Where there
consistency in
was
door and then carrying away utensils.evidence
of witnesses found
regarding opening of back-
When chased by villagers accused gave blows with
stones and arrows and stolen articles recovered at the instance
of accused-
case was fully established. Guilt proved and appeal dismissed however-
Prosecution
Sentence reduced
rom seven years' to half of its imprisonment.147
When the appellants entering the house of complainant armed with bows and arrows and
household convicted which was challenged in appeal
goods. Hence
ak1ng away ornaments and docs not
he recovery of goods were found to be properly made. The statement of witnesses
The guilt was found proved
shown to them beforc identification.
uggest that articles were court below is
confirmed.148
sentence recorded by
lence conviction and
3. Trial oftence under
trial, be tried for
an
at the same
under Section 397, can,
A person accused
cction 394.149
4302.
41 AIR 1955 NUC (Him. Pra.) 44 AlI 538 (DB).
42. AIR 1922 All. 245 (246) 23
Cri. : LJ 274
43. Jaivir Singh 1996 Cri. LJ 1494 (All).
1 44. Chandra Nath (1931) 7 Luck 543. 1977 Cri.
LJ 577 (Bom
Maharashtra,
145. Shukla vs. State of
4
46
umar
and Mukha State of Haryana, (1995) o
47 ukhtiar Singh vs.

Gula vs. State of M.P., 1994 Cr. LJ 323 (MP).

n g h vs. State of M.P, 1994 Cr. LR (MP) 10 (N)|
143 AlR 19s5 Cal 177.(179. 10sS Cri LL617 I.R (1956) 1 Cal. 259 (DB)
Sec. 3901 FOR THAT END 3105

When the Magistrate has jurisdiction to try the prisoncr for an offcncc under Sction 394,
the fact that the prisoner might also have becn chargcd under Section 397 docs not takc away
his jurisdiction. 150

24. For that End

scction clearly mean that the hurt caused by the
The words for that end" uscd in this must be
of facilitating the committing of the theft or
offender must be with the express object to carryy
the theft or is carrying away or is attempting
caused while the offender is committing or the hurt must be
the theft. It does not mean that the assault
away the property obtained by must
in the same circumstances,191 The hurt contemplated
caused in the same transaction or
on the part of the thief for the purpose
of overpowering
be a conscious and voluntary act 152
of the victim quite separate and distinct from the act of theft itself.
resistance on the part

However, it does not mean 'in those circumstances.153

caused in committing theft, or in carrying away
Death, hurt, or wrongful restraint, must be
154
property obtained by theft.
hurt etc. has been caused. If
It is not sufficient that in the transaction of committing theft, other than the
time of the commission of the theft
but foran object
hurt, etc. is caused at the
one referred to in this section, theft would not amount to robbery.1
stones at his
obtained by theft and threw
Where the accused abandoned the property accused was guilty of theft
to deter him from continuing
the pursuit, it was held that the
pursuer
156
and not of robbery. after
committed and violence is used to help the offender to escape
Where theft is that violence was
robbery and where two views are possible
commission of theft. Theft is not offender to escape, the view
most
stolen articles or to enable the
used to help removal of
favourable to the accused
has to be accepted.1
which watchmen of a
outside the room, the room in
Where the accused locked from
be held to have caused wrongful
and committed theft they could not
building were asleep would be guilty of
Section 391 had no application, though they
restraint to the watchmen
and
theft, 158
end'. Was any hurt
turns upon the words for that
whole question
It seems to us that the case, cause for the end
of the commission
that was caused in the present unused for the
or fear of instant hurt, whatever violence was used, was
us that
think not. It scems to in question
ofthe theft.? We who were already
in possession ofthe premises
the persons at the same time.
purpose of disposscssing theft was committed
commission of theft, although
and had no relation to the
449 (450) (DB).
150. (1905) 1 Weir also (1962) 2 Cr. LJ
415.
476:42 Cr. LJ 530. See
151. AIR 1941 Oudh
297. LJ 346.
152. Karmun, 35 Cr. LJ Gounden vs Emperor, 18 Cr.
Record 1896 (Cr.) & Karupa
Cr R June 27, 1872,
Unrep Cr. C. 65.
153 12 Punjab Kalio Kerio (1872)
Ruhman Khan (1865) 3 WR (Cr) 14; II Cri LJ 415 (Guj).
154.
2 Guj LR 678: (1962) "Thet AlR 1917 LB 1: (1918)
Shivsing (1961) Cr. C 65; Nga Po
155. Himatsing Cr. R June 27, 1872, Unrep
Kalio Kerio (1872)
156. (1865) 1 Weir 442;
19 Cri LJ 27 (LB). 1474.
1966 Cr. LJ
Titir Dusadh,
AIR 1966 Pat 453: 602.
157 445: 29 Cr. LJ
Mohammad, AlR 1928 Lah
158. Fateh
 inter thatJhar1ly, OF
violencc
if
violence or CRIMES
something in or
hurt was is
&CRIMINOL OGY
hurt ctc.
different purpose.
evidence to show causcd for caused at the timc of
Theft will
159
that hurt or facilitating thec
violence attempt
thcft, it
wonuld be
of theft or become robbery was
causcd not
to do so rcarv
carrying away or
Where, therefore, only if in the for this But, there ha
theft, etc., no
force attempting to committing of purprine hnt
been the or
show of forcecarry away theft or in
accused is found propcrty obtaincd order to the
their already committed cannot be found commtinu
guilty of the to have bccn uscd by theft,
attempt to escape andby the accuscd and force uet rs
offence of the in
Where
his servant it was
not to
commit theft,injurics were robbery 1 Wherc
inflicted
commttimg of

and established that the the clement by thcm theft ihas

was subsequcntly
of
It was subsequently accused persons
held, that in the committed the theft of the cash first
robbery wanting
in

it was
caused belaboured the
the when the circumstances
assault it could complainant and
of the committing of the theft.
The
was made
with the
not be said that
whatever injury was
theft, although the assault or the primary object of caused
accused were not, theft was beating had no relation enabling the accused to
committed at the same time whatever to the
If the
therefore, guilty of an
offence under Sec. or immediately afterwards. commission
she was accu[ed, while walking behind a 394.162 The
wearing on her shoulders, and in woman in a street, forcibly
at least
caused her bodily shock. It pulled the shawl. which
doing so, used considerable violence
purpose of overpowering the was held
that, in as much as violence waswhich must have
guilty of highway robbery. 163 lady but only to get possession of her shawl, the accused
not used for the
was not

The crucial words in the section

are "for that end"
which will distinguish a case of thet
accompanied with assault covered by the provisions of Secs. 379 and 323 of the Penal Code.
from that of a case of
robbery.164
The hurt is caused for preventing the pursuit is within the purview of the section." "It
was allegcd that victim Avnish Kumar was relieved of his watch by A in a running train when
the train was about to stop at a Railway Station. On the victim raising alarm B slapped the
victim to enable A to carry away the stolen watch.
to or bearing on the thett
Held that thc hurt caused fell within Section 390 as it had relation
which had becn committed.
resists arrest after committing
committed where a pickpocket, for example,
Robbery is not from which the
on the appropriation,
thc act of theft is complete
the thctt. The pickpocket, use of forcc cannot convert the
thett into robbery.
conclusion is that any subsequent
ogical T9)) Au
Cr. LJ 15. vs. State, AlR
State of Gujarat, 1962 (2) Cr. LJ 364.
Sheo Murar
59 Himatsingh vs.
1961 Pat. 362:
1961 (2)
1273.
60. Sheodeni Singh vs. State of Bihar, AIR AIR 1952 All 785:
1952 Cr. LJ
Prasad vs. State,
128: 195S Cr. LJ 336; Sant 1966 Cr. LJ
1474.
1966 Pat. 453: OWN T262.
61 l i r 1Dusadh vs. State of Bihar, AIR Oudh 476: 42
Cr. LJ 530:
1941
1941
62. Nath vs. Emperor, AIR
Sambhar P 304.
Rex vs. Thomas Gnosil, (1824) 1 C
&
176; AIR 1980
SC2127:1980
I e o u a r a i n Tewari, 1953
BLJR 465. CrLU68:1976 Cr. LR
f.4 r u a r i vs
Sec. 390 MISAPPROPRIATION 3107

Unless, in the ensuing strugglc, the propcrty is retakcn from the accuscd who thcn
recaptures it, in which casc thcre is a fresh appropriation. But unlcss thc accuscd loscs possession

there cannot be successive appropriations.

Force if used both "at the timc of" the thcft and "in order
to" commit thcft, makcs the

offcnce robbery.
25. Misappropriation
D who wanted scnd by registcrcd insurance post a letter with somc currency notes
to
the envelopc- Accuscd trying to substitutc anothcr
asking accused to write the address on and asking for the original
envelope in placc of the original o n e - becoming suspicious
D
cost torn -Held, that the offencc
envelope-Scuftle in which theoriginal envclope and D's
of robberyfor which the accused could be held guilty was more or less technical, the real
attempt ofthe accused being that of criminal misappropriation."
26. Essential and evidence
A thief is not guilty of robbery when he uses violence against his pursuers after abandoning
the stolen property.
that hurt wrongful restraint
For a conviction under Section 392, it must be proved or

should have been caused.168

must be with the object of facilitating the committing
Hurt caused of the theft or must be
caused while the offender is committing theft or is carrying away or is attempt1ng to carry
assault the hurt must
away property obtained by the theft. It does not merely mean that the or

be caused in the same transaction or in the same circumstances.

the last act of accused, offence was theft and
Where hurt was caused first and theft was
not robbery.170
27. Poisoning in order to facilitate
Dhatura to certain travellers, and both decamped
Where accused gave laddus containing
travellers died. Held, that the offence fell under
with their property, and subsequently the
Section 326 or Section 328, I.P.C. only.71

28. Resistance
are prepared to commit
murder in the event
If four persons armed with deadly weapons
murder. Held, all are liable for murder.172
of resistance and two persons commit
29. Voluntarily causes
convert his
infliction of injury by a thicf will not
These words denote that an accidental caused
or fear of any of these, is
or wrongful restraint,
offence into robbery. Even if death, hurt oftence would
the property obtained by theft, this
after committing thcft, in order to carry away
AIR 1933 Sind. 139 (141): 34
Cri. LJ 802 (DB).
166.
128.
167. 42 IC 987. Sce 1955 A
133 IC 7: 1931 M 481 32 Cr. LJ 973.
168.
1953 Sau 85; 1941 Oudh 475; 1918 M 821; 1933 L 407.
169.
N 214.
170. AIR 1953 sau 85; 1954 P 157; 1950
19 FR 1919 Cr, 20 A 143; 31 A 148 Foll; 32 PLR 1911 Dist.
171.
LJ 1406.
172. 1926 63 8 9 IC 716: 26 Cr.
L
 3108
be LAW OF CRIMES &
committed. This section CRIMINOLOGY
voluntarily. docs not
apply wherc
If
hurt the hurt is
than the one etc., is
caused at thc timc causcd
is also referred to in Sec. of the accidcntally and notot
not 390, commission
commission sufficient
of
that hurt had Indian Penal Code, the theft, but
for an
of the theft. becn causcd in theft would not amount objcct other
pertectly
the course of to offers ne r
Ordinarily,
infer that if violence
or hurt
the same robbery, It
transaction
not be roh
violence or hurt was etc., is caused at the as
31. Robb
something evidence to
in caused for time of theft, it
different purpose.!73 show that hurt or facilitating the attempt to would be reasonable to
violence was do so. This
But, there
caused not for this may be
from the
Theft will become purpose but fora
of theft or
carrying robbery only if in the
Where, therefore, no forceor attempting to carrycommitting
away
away
of theft or in
order to the
theft, ctc., the accused
or show
of property
force is found to obtained by committing
cannot be found have been used in theft, force is used.
guilty of the offence of the
Where it was
established that robbery.174 committing of
is servant and the accused persons first
subscquently
It was held, that in
committed the theft of the cash belaboured the complainant and
the circumstances it : tis
t was caused when the assault could not be said that
whatever injury was caused
he committing of the theft. The assaultmade
was whe
with the primary
or the
object of enabling the accused to there is nC
fthe theft, beating had no relation
although the theft was committed at the same time whatever to the commission It is
ccused were not, therefore, guilty of an or immediately afterwards. The to const
offence under
Section 394.175
The hurt deitvery
e
contemplated must be a conscious and voluntary act on the part of the thief for In O
purpose of overpowering resistance on the part of the victim, quite separate and distinct
om the act of theft itself. the prope
been cau=
Where a thicf after abandoning the stolen Th
property uses violence against his pursuers in
der to avoid capture, the theft is not thereby converted into robbery.175 offence
fear of in
. Hurt and Property
In
The force used must be on any person, not on property. Similarly any robbery by putting and und
car implics a fcar of force applied to the person and not a threat to damage the property. theft or a
and robt
A tug-war between the accused and the victim for taking the possession of the house and
Singh w
the possession of that
he proccss causing injury and then forcc fully and illegally taking few day=
offence would not fall withinthe of Section 390. However, there may be
purview 390 IPC
sc, the
in fear th
r offences.
of under Se
more persons for the purpose
Where hurt fear of instant hurt was caused by five or
or the offem
no relation to the
in posscssion of some premises and had
OSsessing persons already time as a
mission of theft, although the theft might have
been committed at the same 177. Ots
178. De
179 19
LJ 15. 180. 19
iasinh vs. State of Gujarat, 1962(2) Cr. (2) Cr. LJ364; Sheo
Murar vs. State, AIR 1999 A"

181. 1
12H
State
of Bihar, AlR 1961 Pat. 362: 1961
195S r 1.J 336; Sant Prasad vs. State, AIR 1952 All 785: 1952 Cr. LJI273. 182 G=
C
NNga PtaThetNath vs. Emperor, AIR 1941 Oudh 476: 42 Cr. LJ 530: 1941 OWn 52.
vs. Finperor, 19 Cr. LJ 27: 42 Ind Sas 7 i L
 ROBBERY&EXTORTION
3109
Sec. 390]
not amount to robbery.'"
Where thc victim
that this did
perfectly independent act, it was held without thc victim's conscnt will
Disposscssion
offers no resistance against thc disposscssion.
caused voluntarily.178
not be robbery even if hurt is

Extortion
31. Robbery &
The Cxtortion is distinguishcd
This offence takes a middle placc betwecn thcft and robbery.
from theft as under
In theft thc offendcr
by the wrongful obtaining of
conscnt.
(1) Extortion is committed
consent.
takes without the owner's
not limited in theft to movable property
(2) The property obtained by extortion is as

extortion.
only. Immovable property may be the subject of
obtained by intentionally putting a person in fear,of
(3) In extortion the property is
inducing him to part
injury to that person or to any other, and thereby dishonestly
arise.
with his property. In theft the element of force does
not

restraint.
It is not necessary that extortion should follow immediately upon
the victim the property in question,
Where the offender snatches from the possession of
there is no extortion. The offence in such a case is not robbery by extortion. "179

upon the restraint

in order
It is not necessary that the extortion should follow immediately the time. of
fear of instant wrongful restraint at
to constitute robbery, provided that there is
delivery of the property.0
of
In order to constitute robbery by means
of extortion, there must be immediate delivery
which should have
to do so must be endangered by fear
the property by the victim and the will
antecedent to the delivery 181
been caused by the extortioner
either the
The offence of robbery is distinct
from theft or extortion, but in every robbery
extortion will be committed. Extortion aggravated by
causing
offence of theft or the offence of
fear of instant death etc, is robbery.
under Section 387
held that there cannot be conviction
In a recent case Supreme Court either
Section 390 IPC lays down that in all robberies there is
and under Section 392 IPC, as
extortion
means that a person
cannot be convicted both for
theft or extortion; and that necessarily Nirmal
which is a special aggravated form of the former. As in the instant case,
and robbery, but a
induced to pay the money on the day
he was put on fear of instant death
Singh was not
the meaning of Section
have committed 'robbery within
few days later, he cannot be said to 'induces the person so put
offence is that the offender
390 IPC for one of the ingredients of this 's conviction
extorted'. Consequently the appellant
in fear then and there to deliver up the thing maintained for
392 IPC for committing robbery has got to be set aside, but was
under Section
the offence under Scction 387,
IPC.182

Kafiluddi Manjhi (1900) 5 CWN 372.

177. Otaruddi Manjhi vs.

Devassia Joscph 1982 Cri. LJ 714 (Ker).

178.
1950 All LJ 711 (712).
179.
28 Cri. LJ 164.
180. 1927 mAlD 307 (307):
1950 All. LJ 711 (712).
181.
1996(2) sC (Cr.) 323.
182. Gursharan Singh vs. State of Punjab,
 3110 LAW OF CRIMES & CRIMINOLOGY
Sec. 390
32. When extortion is robbery
1. That the extortioner put such pcrson in fear of
instant dcath, instant hurt or instant
Wrongful restraint
2. That thc extortion was at the time of committing cxtortion then in the
presencc of such
person.
3. That hc did
intentionally.
so

4. That he thercby dishonestly induced that person then and there to deliver up the thing
extorted.

33. Hijacking

Hijacking is an offence which is squarely covered by the

provisions of this section.
Hijacking of aircraft, ships, trains, bus etc., is a form of hostage-seizure with similar aims. The
threat is to the lives of the
passengers and crew rather than to the transport vehicle itself. Bomb
extortion by threat are related directly to
The extortion may occur before
violence, whether used against property or people.
any action has been taken at all, i.e. by the threat that if the
money or concession is not given, there will be an attack arson, by sabotage, bombing
contamination, disruption, personal attack, kidnapping or hijacking.
34. Presumption
The Court may presume
(a) That a man who is in the 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.
Though Illus. (a) to S. 114 only mentions a case of ordinary theft, it is well-established
that its principle applies not only to ordinary cases of theft, but also cognate offences such as
dacoity and robbery: ILR 25 Pat. 262. S. 114 is general in its terms, Illus. (a) is only an
illustration, and the fact that the section does not provide an illustration with reference to a
dacoity does not mean that where the accused is in possession of property stolen at a dacoity,
no presumption can be made cither that he was one of the dacoits or that he had
dishonestly
reccived or retaincd the property, knowing or having reason to believe that the possession had
been transferred by dacoity or knowing or having reason to belicve that it was stolen property 183
t is undoubtedly true that the presumption of guilt from recent and unexplained possession of
the stolen property is not confined to cases of theft but may be extended to graver offences
also. No invariable rules can be laid down when and what presumption may arise from recent
CxClusive and uncxplained, possession of stolen property, and it depends upon the facts and
Cireumstances of each case.

h e principle of Illus. (a) toS. 114, Evidence Act, applies not only to cases of ordinary
ut also to cognate offences like dacoity and when other necessary facts have
dee
S d , presumption under S. 114, can be taken recourse to, to believe tnat
the
IkA posS
19771945 Cal. 421: W..N. 317:
184
Raj. 1L.W. 178: 1071 (1944-45) 49 Cal. W.N, ?
Sec. 390] PRESUMPTION 311T

and thc accuscdwas convictcd

of the stolen propcrty was transferrcd by commission ofdacoity
under S. 412, Penal Code. Whcrc an accuscd is charged under S. 412, Pcnal Code and the only
aftcr thc commission
proved against him is thc recovery of stolen propcrty
soon
Circumstance
under S. 411.185
of dacoity, the conviction may properly only
be
Illus. (a) of S. 114 is an cxplanation of
explanation requircd of an accuscd under
The
that the so-called stolen property is not in fact stolen
possession of stolen property. If he alleges
he offers no explanation of his possession of it, and
property but is the property of his rclation,
to him.186
the presumption under the section may be applied
been stolen and those recovered
Unless the connection betweon the articles said to have
could be drawn under S.
from the housc of the accuscd has been cstablished, no presumption
114 (a) of the Evidence Act either that a person is the thief or receiver of stolen articles."5
accused cannot be
The question of raising a presumption arises only when the concerned
concerned in the
connected with the crime in question except by reason of possession of goods
c n m e . 188

to what pcriod is covered by the expression ""soon after"

in llus. (a)
The question as

to the circumstances of each case. The Court is

not bound to draw this
must vary according
presumption and the Court must ask itself whether in the circumstances of a particular
always
case the presumption is one which in fairness to the accused can be drawn.

Where the incriminating thing is one which may change hands quite frequently or is
the accused many months after the theft, held,
no
commonly available and is recovered from be drawn
thief or a receiver of stolen property, can
presumption that either the accused was
against him. 190

dacoity of be said to be recent in order

Possession of stolen articles within six months
can

Where the recovery was made more than

six months
to raise presumption under llus. (a).
no presumption under S.
114 could be raised.191
after the report was lodged, held,
have been shown to form parts of one transaction,
In cases in which murder and robbery circumstances tending
recent and unexplained possession
of stolen property in the absence of
be presumptive
to show that the accused was only
the receiver of the property would not only
of murder. The
of robbery but also on the charge
evidence against the prisoner on the charge can be drawn
whether in a given casc a presumption
in the sense rcferred to above
question
must depend upon the facts of
the particular case.2
commission of the
any doubt that the
Where the prosecution succeeded in proving beyond possession
murders and the robbery formed part of one
transaction, held, recent and unexplained
131.
185. AIR 1958 Ori. 106: ILR (1958) Cut.
49 Cal. W.N. 392.
186. AlR 1945 Cal. 421: (1944-45)
482: 1957 Cr. LJ 939.
187. AIR 1957 Andh. Pra. Rel. on: (1973) 2 Mys. LJ 348.
AlR 1956 SC 54, Foll; AIR 1963 Mad. 476,
188. AIR 1972 SC 2501 and 47 Bom. LR 63: AlR 1945
Bom. 292; AIR 1954
Bom. 325. Sec also (1945)
43 Bom. LR 629: AlR 1941
189. (1941)
Mad. 433.
L.W. 225. 17 (F.B.)
190. 1984 Raj. 1960 M.P.L.J. 299; AlR 1937 Nag.
1960 Jab. LJ. 356:
191. 1960 M.P.C. 216: 243: AIR 1954 Pat. 109 (DB), AIR 1950 Madh.
Trav. Co. 402: 1LR 32 Pat,
Co. 514: AIR 1953
192, ILR (1953) Trav. 1954 Trav-Co. 466.
Ker. LT 344: AIR
Bh. 104; 1954
 3112
LAWOFCRIMES&CRIMINOLOGY
of the stolen
property by the appcllant justificd the
who committed the murders and the prcsumption that hc, and no on it was
robbery 193

Where murder and

robbery are
because discovery of articles was provcd to be intcgral parts of a singlc transaction,
madc after a merel
permissible that the accuscd from whom the long werclapsc of time, held, no
presumption i
stolen property and not goods rccovcred was only a
guilty of murder. 194 recciver of

Robbery and murder Unexplained

possession of stolen articles soon after the crime
-

will be cvidence of murder

also. 195
The presumption
has to be read permitted to be drawn under S. 114, illustration (a)
alongwith the important time factor. If ornaments or of the Evidcnce Act
found in the
possession of a person soon after the murder, a things of the deccased are
permitted. But if several months expire in the presumption of guilt may be
be drawn to the interval, presumption may not be
the
circumstances of the case.196 permitted to
The recovery of the stolen
goods was made from'the prosecution of the
days after the dacoity. appellant three
So three presumptions are possible from the recovery
) That the appellant took part in the dacoity.
(1) That he reccived stolen goods knowing that the goods were stolen in the commission
of a dacoity; and
(11) That the appellant received these goods knowing them to have been stolen. The
choice to be made, however, must depend on the facts proved in the
case.
It is quite clear that all the property which was stolen by the dacoits was not recovered
from the appellant. The only articles that were found with the appellant were a length of muslin
(Ex. 2) anda length of charkhana doriya (Ex. 3). The appellantis stated to be a cloth merchant
and he may well have acquired these goods as a receiver. It has not been shown that in the

village in which the appellant lived it was known that a dacoity had taken place and goods had
been stolen in the dacoity.
to be drawn is that
On the facts of this case, it seems that the only legitimate presumption in a
but he did not know that they were stolen
the appellant knew that the goods were stolen
can only be convicted under
S. 411, IPC. It was held that for
dacoity. The appellant, therefore, mere possession.
IPC prosecution has to show something more than the
offences under S. 412, section to use is
possession of the dacoity goods, the proper
If the prosecution has shown only
197
S. 411 IPC. of
property is an optional presumption
The presumption from recent possession of
stolen
convict an appellant by
Evidence Act. It is open to the Court to
the fact under S. 114, Indian reasonable hypothesis
no other
where the circumstances indicate that
using the presumption 93: 1978 Cr. LI 646:
(19/8)
1978 SC 522: 1978 UJ (SC)
193. SC 400; AIR 1974 SC 1830, Rel. on:
AIR
SCC 588: (1978) 2 SCR 594. 330: (1983) 2 MLJ *0
(o
194 Crimes 784: (1983) 1 SCC
195. 9 8 3 SC 446: 1983 Cr. LJ 846: (1983) 1
1960 Ker. LT 829.
Tulsiram Kanu vs. State, AIR 1954 SC 1: 1954 Cr. LJ
Z.Lw bu
eo Nath vs. State of UP., AIR 1970 SC 535: 1970 Cr.
 Sec. 3901 PRESUMPTION 3113

except the guilty knovwledge of the appcllant is open to the prosccutio

In this casc, the appellant had given a fairly acccptable cxplanation. Thc prosccution had
been unable to repel the effect of it. The owner of the truck, S.D. Sutar, had made admissions
which indicated that the prosecution case of an unlawtiul posscssion on the part of thc appcllant
was not likely. It is more likely that the appcllant had becn cntrustcd with thc truck in order that
he might repair it and realise the costs."95
The recent and unexplained posscssion ofthe stolen property by the appellant justificd the
presumption that it wvas he, and no onc clse, who had committed the murders and the robbery.
The offences were committed on the night intervening January 20 and 21, 1975, and the stolen
property was recovered from the house ofthe appellant or at his instance on January 25, 1975
It was held there was ample justification for reaching the inevitable conclusion that it was the
appellant and no one clse who had committed the four murders and the robbery 199
The articles were recovered very soon after the dacoity had taken place and had been
proved to have been stolen in the course of the dacoity, the case of the appellants clearly falls
within the ambit of S. 412, IPC 200
The recovery is not immediate. It was effected on 4-10-1991 i.e. six days after the
incident. In view of this belated recovery, the offence of robbery would not be established
against this appellant and only one under Section 411, Indian Penal Code would be made out
against him. Court relied upon Supreme Court authority Shivnath vs. State of U.P, AIR 1970
S.C. 535, wherein three days after the incident recovery of looted property was effected and
the Supreme Court reverscd the judgment ofthe Allahabad High Court reversed the judgment
of the Allahabad High Court upholding the conviction and sentence of the appellant for the
offence under Section 396, Indian Penal Code and instead convicted him for one under Section
411, Indian Penal Codc 201
The nature of presumption under ilustration (a) to S. 114, Evidence Act must depend
upon the nature of the evidence adduced. No fixed time limit can be laid down to determine
whether possession is recent or otherwise and each case must be judged on its own facts. The
question as to what amounts to recent possession sufficient to justify the presumption of guilt
varies according as the stolen article is or is not calculated to pass readily from hand to hand. If
the stolen articles were such as were not likely to pass readily from hand to hand, the period of
one year that elapsed cannot be said to be too long particularly when the appellant had been
absconding during that period. There was no lapse oftime between the date of his arrest and
202
the recovery of the stolen property
The Advisory Board in the instant case was constituted by three Judges of the High
Court, one of them being the Chairman. That would justify assumption that the members of the
198. Karnal Singh Uttam Singh vs. State ofMaharashtra, AIR 1976 SC 1097: 1976 SCC (Cr.) 204: (1976) 1 SCC 882
1976 Cr. LJ 842: (1976) 2 SCR 747: 1976 UJ (SC) 56.
199. Baiju vs. State ofMadhya Pradesh, AIR 1978 SC 522: 1978 SCC (Cr.) 142: (1978) 1 SCC s88: 1978 Cr. LI 647:
(1978) 2 SCR 594: 1978 UI (SC) 93: 1978 Cr. App. R. (SC) 98.
200. Amar Singh vs. State ofMadhya Pradesh, AIR 1982 SC 129: 1982 SCC (Cr) 700 (2): (1982) 3 SCC 214: 1982 Cr.
LJ 610.
201. Bala Pandurang Kesarkar vs. State of Maharashtra, 2000(1) Crimes 38 (Bom)
202. (a) Earabhadrappa vs.State of Karnataka, AlR 1983 SC 446: 1983 SCC (Cr.) 447: (1983)2 SCC 330: 1983 Cr. LJ
846: 1983 Cr. LR (SC) 278: 1983 Cr. App. R (SC) 232: (1983) 1 Crimes 784. (b) Gulab Chand vs. State of M..
AIR 1995 SC 1598.
 LAW OFCRIMES&CRIMINOLOGY

roperty by the appellant justificd the presumption that it was he. an

'*3 no one e '
d the murders and the robben
r and robben are proved to be intagrai parts of a singie transa-
er of articles was madr
arter a long lapse of me. neld. o
mete
ar the accusi
trom whom the is were recoverod
was
only
presumptson
a rea
and nor guily of murder "
murder -Unexplained posseas of stolen
art1cies
"* soon after the
of murdr also crim

t o be drawn under S. I14.

illustration (a) of the Evndence
mith he important time ractOr. if ornamnts or Act
ssion ofa person soon arter tne murðer. a things of the deceased are
onths presumption of guilt mav be
expire in the interval, the presumpton
circunsances of the case * mav not be peTmitted to

of the stolen goods was made from the prosecution

of three the appelant
possible ron the recovery:
ns are

the appellan: took part in the dacoity

ereceivad stokn goods knowng that the goods ware soln in he commission
acoity. and

he appellant received hese goods knowing then to have bem solen The
tO be made, howaver. must depend on the facs provad in the case.
ar thar all the propery which was stolen by the dacoits was nOR rECOVErEd
The only articles that were found with the appellant were a kngh of muslin
a cloth merchant
h of charkhana dorya (Ex 3). The appellant is stated to beshown thar in the
not been
ave acquired these goods as a receiver. Ít has
had taken place and goods had
appellant lived it a s known that dacoity
a

iaci
presumption to be drawn is that
of this case. it seems that the only legiumate
did not know that they were stolkn in a
that the goods stolen but he
were
convicted under S. 411. IPC. It was held that for
ant. therefore. can only be more than the mere possession
12. IPC prosecution has to show something
the proper saction to use is
shown only possession of the dacoity goods,
as
presumption or
on trom recent of stoien property 1s an optional
possession
convict an appellant by
4. Indian Evidence Act.
It is open to the Court to
circumstances indicate that no
other reasonable hypothesis
on where the 1
1978 Cr LU 646: (1978)
AIR 1978 SC $22
:978 UI (SC) 93:
AR 1974 SsC 1830. Rei oe

SCR S4
Crmes 784: (1983) I SCC 330: (1983)2 MLI 46 (SC
1983 Cr s46 (1983) 1
Stane AJR 1954 SC 1 1954 Cr L 25
ar od tu P AUR 1970 SC 535 1970 Cr. L 601.
 Sec. 390] PRESUMPTION 3113

is to the proscution
Except the guilty knowlcdge of the appellant open
Thc prosccution had
In this casc, the appellant had given a fairly acccptable cxplanation.
of the tnuck, S.D. Sutar, had madc admissions
been unable to repel thc effcct of it. The owner
an unlawful posscssion on the part of the appcllant
which indicated that the prosccution casc of
was not likely. It is more likely that
the appcllant had bccn cntrustcd with the truck in order that
he might repair it and realise the costs.18
The recent and unexplained possecssion ofthe stolen property by the appellant justified the
presumption that it was he, and no one clse, who had committed the murders and the robbery.
The offenoes were committed on the night intervening January 20 and 21, 1975, and the stolen
or at his instance on January 25, 1975.
property was recovered from the house ofthe appellant
it was held there was ample justification for reaching the incvitable conclusion that it was the
appellant and no one clse who had committed the four murders and the robbery
The articles were recovered very soon after the dacoity had taken place and had been
proved to have been stolen in the course of the dacoity, the case of the appellants clearly falls
within the ambit of S. 412, IPC 200
The recovery is not immediate. It was effected on 4-10-1991 i.c. six days after the
incident. In view of this belated recovery, the offence of robbery would not be established
against this appellant and only one under Section 411, Indian Penal Code would be made out
AIR 1970
against him. Court relied upon Supreme Court authority Shivnath vs. State of U.P,
S.C. 535, wherein three days after the incident recovery of looted property was effected and
the Supreme Court reversed the judgment of the Allahabad High Court reversed the judgment
of the Allahabad High Court upholding the conviction and sentence of the appellant for the
offence under Section 396, Indian Penal Code and instead convicted him for one under Section
411, Indian Penal Code 201
The nature of presumption under illustration (a) to S. 114, Evidence Act must depend

upon the nature of the evidence adduced. No fixed time limit can be laid down to determine
whether possession is recent or otherwise and each case must be judged on its own facts. The
of
question as to what amounts to recent possession sufficient to justify the presumption guilt lf
from hand to hand.
varies according as the stolen article is or is not calculated to pass readily
the period of
the stolen articles were such as were not likely to pass readily from hand to hand,
one year that elapsed cannot be said to be too long particularly
when the appellant had been

absconding during that period. There was no of time between the date of his arrest and
lapse
the recovery of the stolen property.
of the High
The Advisory Board in the instant case was constituted by three Judges
that the members of the
Court, one of them being the Chairman. That would justify assumption
1097: 1976 SCC (Cr.) 204: (1976) 1 SCC 882:
198. Karnal Singh UttamSingh vs. Statc of Maharashtra, AIR 1976 SC
1976 Cr. LJ 842: (1976) 2. SCR 747: 1976 UJ (SC) 56.
142: (1978) 1 SCC 588: 1978 Cr. LJ 647:
199. Baiju vs. State of Madhya Pradesh, AIR 1978 SC 522: 1978 SCC (Cr.)
(1978) 2 SCR 594: 1978 UJ (SC) 93: 1978 Cr. App. R. (SC) 98.
SCC (Cr) 700 (2): (1982) 3 SCC 214: 1982 Cr.
Amar Singh State of Madhya Pradesh, AIR 1982 SC 129: 1982
200 vs.

LJ 610.
Bala Pandurang Kesarkar vs. State of Maharashtra, 2000(1) Crimes 38 (Bom.)
201
AIR 1983 SC 446: 1983 SCC (Cr.) 447: (1983) 2 SCC 330: 1983 Cr. LJ
(a) Earabhadrappa
202 846: of Karnataka,
vs. State
1983 Cr. LR (SC) 278: 1983 Cr. App. R (SC) 232: (1983) 1 Crimes 784. (b) Gulab Chand vs. State of M.P.,
AIR 1995 SC 1598.
 3114 LAWOFCRIMES&CRIMINOIOXIY
Board by their professional ability and acumcn werc capable to asscss thc mattcr
and form an objcctive opinion on the basis ofmaterials produccd 203
in a
prone
In the prescnt casc, it has bccn rightly hcld by thc
High Court that thc accused was not
afflucnt enough to possess thc said onmamcnts and from thc nature of thc cvidencc
adduced in
this casc and from the recovery of thc said articles from his and
possession his dealing with the
ornaments of the deccased immediately after the murdcer and
robbery, a rcasonable inference
of the commission of the offences of murder and
robbery
can be drawn the against accused
Excepting an assertion that the ornaments belonged to the family of the accuscd, which claim
has been rightly discardcd, no
plausiblc explanation for lawful possession of the said ornaments
immediately after the murder has becn given by the accused. In the facts of the it case, appears
that murder and robbery have becn
proved to have beenintegral parts of thetransaction
same
and, therefore, the presumption arising under illustration (a) of S. 114, Evidence Act is that not
only the appellant committed the murder of the deceased but also committed robbery of her
ornaments. 204

The recovery of the stolen goods was made from the possession of the appellant three
days after the dacoity
So these presumptions are possible from the recovery:-
i) that the appcllant took part in the dacoity;
() that he received stolen goods knowing that the goods were stolen in the commission
of a dacoity; and
(i) that the appellant received these goods knowing them to have becn stolen. The
choice to be made, however, must depend on the facts proved in the case. It is
quite clear that all the property which was stolen by the dacoits were not recovered
from the appellant. Clothes, ornaments, cash, ctc. were stolen. The only articles
that were found with thc appellant were a length of the Muslim (Ex 2) and a length
of charkhana doriya (Ex 3). The appellant is stated to be a cloth merchant and he
may well have acquired thcse goods as a receiver. It has not bcen
shown that in
the village in which the appellant lived, it was known that a dacoity had taken place
and goods had been stolen in the dacoity.
On the facts of this case it seems that the only legitimate presumption to be drawn is that
were stolen in a
oellant knew that the goods were stolen but he did not know that theyIt was held that for
oity. The appellant, therefore, can only be convicted under S. 411, IPC.
ence under s. 412, IPC presumption has to show something more than the mere possesion.
use is
e prosecution has shown only possession of the dacoity goods, the proper section to
11, IPC.205
206
Supplemcntary list of the stolen goods is hit by S. 162, Cr. PC and so is inadmissible.

Lachman Ram
134: 1985 Cr.
vs. State of Orissa, AIR 1985 SC 486: 1985 scC (Cr.) 263: 1985 Cr. LJ 753: 1985 Cr. App. R. (S)
LR (SC) 186.
Sh and vs. State of M.P, AIR 1995 SC 1598: 1995 ScC (Cr.) 552: (1995) 3 SCC 574.
UJ
(Ss
(SC) 11: VS State of'U.P, AlR 1970 SC 535:
1970 Cr.
1970 ScC (C.) 15: (1969) 3 SCC 116: 1970 Cr. LJ 601: 1970
M App. R ((SC) 30.
 Sec. 390]
MURDERAND ROBBERY 3115

Where the alleged stolen article was handcd ovcr to the accuscd by somconc m thie
presence of the Police and thercafter the Police went through the formality of scizing it from
the accused, such discovery is open to grave doubt. It was hcld that it cannot to bc said that the
watch was seized from the accuscd 207
The recent and unexplaincd possession ofthe stolen property by the appcllant justificd thc
presumption that it was he, and none clse, wvho had committed the murders and the robbery. It
will be recalled that the offences were committed on the night intervening January 20 and 21,
1975, and the stolen property was recovered from thc house of the appellant or at his instance
on January 28. 1975. The appcllant was given an opportunity to explain his possession, as well
as his conduct in decoying Smt. Lakhpatiya and the other persons who died at his hand, but he
was unable to do so. Thus, the nature of the evidence about its identification, the manner in
which it was dealt with by the appellant, the place and the circumstance of its recovery,
length ofthe intervening period, the ability or otherwise of the appellant to explain his possession,
are factors which have to be taken into consideration in arriving at a decision. It was held that
there wasample justification for reaching the inevitable conclusion that it was the appellant and
no one else who had committed the four murders and the robbery 208
The articles removed during the dacoity had been concealed in the different parts of the
residence of the appellant Barchia and were recovered pursuant to the information given by the
three appellants to the Investigating Officer. The only objection taken on behalfofthe appellants
before the Supreme Court is that it looked unnatural that stolen articles would have been kept
at different places by the three appellants but within the same compound i.e., the residence of
the appellant Barchia. It is very dificult for the Court to say as to how a set of culprits would
have behaved after commission of the dacoity, in respect of disposal or concealment of the
booty. There is nothing unnatural or inmprobable on the part of the appellants in keeping their
share of the stolen articles concealed in the residence of one of the appellants.209

35. Murder and Robbery

This is a case where murder and robbery are proved to have been integral parts of one
and the same transaction and, therefore, the presumption arising under Illus. (a) to Section 114.
Evidence Act is that not only the appellant committed the murder of the deccased but also
committed robbery of her gold ornaments which form part of the same transaction. The
commission of the
prosecution has led sufficient evidence to connect the appellant with the
crime. The sudden disappearance of the appellant from the house of PW-3 on the morning of
to death and
March 22, 1979 when it was discovered that the deceased had becn strangulated
was absconding for a
relieved of her gold ornaments, coupled with the circumstance that he
on March 29,
period of over one ycar till he was apprehended by PW-26 at village Hosahally
Ex P-35 immediately upon his
1980, takcn with the circumstance that he made the statement
must necessarily raise the inference that
arrest leading to the discovery of the stolen articles,
the appcllant alone and no one else was guilty of having commnitte th murder of the deceased
1974 SCC (Cr.) 60: (1974) 3 SCC 582: 1974 Cr. LJ
207. Nabu Kumar Das vs. State of West Bengal, AIR 1974 SC 777:
$12: 1974 Cr. LR (SC) 3: 1974 Cr. App. R (SC) 23.
1978 SCC (Cr.) 142: (1978) 1 SCC 588: 1978
208. Baiju alias Bharbsa vs. State of Madhya Pradesh, AlR 1978 SC 522:
1978 Cr. App. R. (SC) 98.
Cr. LJ 647: 1978 Cr. LR (SC) 66:
AlR 1994 SC 739: 1994 SCC (Cr.) 527: (1994) 1 SCC 413: 1994 Cr. LJ 922:
209 Brij Mohan vs. State of Rajasthan,
SC 203: 1994 Cr. LR (SC) 775: (1994) 1 Crimes 288.
(1994) 1 UJ (SC) 87: JT (1983) Supp.