JUDGMENT H.R. Malhotra, J.
1. These are two sets of appeals; one preferred by the appellant Kuldip Singh (being Criminal Appeal No. 315/2001) and another composite appeal by the appellant Ram Singh and Om Prakash (being Cr. Appeal No. 476/2001).
2. All the three appellants were tried by the Court of Session for commission of offence punishable under Section 302 IPC read with Section 34 and also under Section 386 and 460 of Indian Penal Code. They were held guilty for these offences vide impugned judgment dated 28th April, 2001. Learned Additional Sessions Judge heard the appellants on the point of sentence and awarded life imprisonment to all the three appellants besides imposing of fine of Rs. 500/- on each of them. All the three appellants were also sentenced to undergo 7 years imprisonment besides fine for commission of offence punishable under Section 460/34 IPC. All the substantive sentences were ordered to run concurrently.
3. Feeling aggrieved by the impugned judgment they have preferred these two appeals.
4. Since both the appeals have arisen from one judgment therefore these two appeals are being disposed of together by one judgment.
5. Facts leading to the prosecution of the appellants are that Smt. Sushma Gulati (since deceased) was residing alone at B-69 Paschim Marg, Vasant Vihar, New Delhi. She was carrying on export business under the name and style of "Maharaja Exports". She had her factory at NOIDA. She being in business, had employed number of persons. The appellant Kuldip Singh according to the prosecution was working at her residence. He was, however, sacked by her about 15-20 days prior to her murder, as she had suspected that the appellant had committed theft of three alarm clocks. She had reported the matter to the police in this regard consequent to which his premises were searched by the police. However, nothing incriminating was recovered from his house. The deceased had again employed him a few days prior to the incident of murder. It is the further case of the prosecution that the deceased was also getting another factory constructed in NOIDA, construction work of which was being supervised by one Sh. Ramesh Kumar who was working as Manager in the export business of the deceased. This man according to the prosecution had telephoned at the residence of the deceased about 8.30 AM on 26th December, 1997 but did not find any response. Since he was to receive certain constructions from the deceased about the construction activities in NOIDA as such had visited her house at 9.45 AM. On entering into her house, he found the dead body of Sushma Gulati lying in the bed-room on the first floor of her house. He also noticed that the room had been ransacked and the belongings lying scattered here and there. He immediately rang up the lawyer of the deceased namely Sh. Baldev Kishan. He also telephonically informed the brother of the deceased Brig. S.J. Ravi Kant simultaneously, on advice of the lawyer Sh. Baldev Kishan. Police Control Room was also informed telephonically. Both the persons referred to above reached the spot. Police also arrived there. To them it appeared to be a case of death caused by strangulation. There were blood stains on the pillow, shirt and mattresses. One tin-box of toffees, one pair of spectacles, left over tea in a glass tumbler were also found there. The police carried out the investigation and seized all these articles. Investigations also searched the car of the deceased parked in the compound and found certain papers lying in the car including two complaints addressed to Surinder Singh, Duty Officer, another complaint being addressed to Supdt. of Police NOIDA. Both these complaints were purportedly made by the deceased. These two complaints related to an incident having taken place on 23rd December, 1997 indicating one Gaurav Tyagi who had an altercation with the deceased on the issue of not making certain payments due to him from the deceased. The deceased had written in the complaint that Gaurav Tyagi had picked up fight with her on that issue and had also assaulted her and fractured her finger and also threatened her that he would kill her. Action was sought against him by writing these two complaints.
6. The dead body was sent for post-mortem examination. The post-mortem examination was conducted on 28th December, 1997. The Doctor who conducted autopsy opined that death had occurred about three and half days prior to the autopsy due to asphyxia as a result of strangulation asserted with smothering with some object like a pillow.
7. The investigation was carried out by the Investigators. The investigation brought out that the appellant Kuldip had been working with the deceased during November, 1997 but his services were terminated because of being suspicious about having stolen certain articles from the house of the deceased but again was reemployed on 20th December, 1997. Since the Investigators focused the needle of suspicion on the appellant, therefore, they interrogated the appellant Kuldip Singh and also rest of the two appellants. All these arrests were effected on 1st January, 1998. The appellants were interrogated by the Investigators who made their disclosure statements admitting their involvement in the crime. According to their disclosure they admitted that with a view to committing theft the appellants Kuldip Singh, Ram Singh and Om Prakash had gained entry into the house of the deceased by scaling the wall in the evening of 24th December, 1997. They waited for her to go to sleep so that they could commit theft in her house. While she was asleep they made an attempt to commit theft from her house. But during the process of committing the theft, deceased woke up. The appellant Ram Singh and Om Prakash; according to the prosecution case strangulated her to death smothering her with the help of pillow. After the murder had been committed, according to the disclosure statement of Ram Singh and Om Prakash they had called the appellant Kuldip Singh to the said house and then they committed theft of jewellery articles, Camera and other belongings of the deceased.
8. Following their disclosure statement the appellants admitted before the Investigators that they would get the robbed articles recovered from their respective jhuggis. They led the police party to their jhuggis. The police for the purpose of effecting search joined Dalip Singh, PW 5 as a public witness to witness the recovery. According to the prosecution case, six gold bangles, one gold kara, one lady ring of gold and two gold mankas were got recovered by the appellant Kuldip Singh whereas one camera, 6 bangles of gold, one kara of gold, one gold ring with red stone, one locket of gold were recovered from the jhuggi of the appellant Om Prakash. That was recovered from the appellant Ram Singh was the shirt which he was allegedly wearing at the time of the commission of crime. This shirt had blood stains on it. Also half currency note of Rs. 50/- found in the pocket of that shirt was seized. The Investigator also claimed to have recovered a lock and key of the house of the deceased at the instance of appellant Kuldip Singh who led the police party to a place near drain close to main road traffic signal in the vicinity of Sangam Cinema in R.K. Puram.
9. The police also claimed to have strengthened the prosecution case by lifting the chance prints from Tin box of toffees and compared those chance prints with specimen finger prints of the appellant. According to the prosecution chance prints found on the tin-box of toffees was opined by the Finger-print Experts to be identical with the left thumb mark of the appellant Kuldip Singh. However, the blood stained shirt recovered from the possession of the appellant Ram Singh though sent to CFSL but could not be confirmed if the same was that of the deceased. However, it was found to be a blood of human origin.
10. The prosecution to bring home guilt to the accused/appellants examined as many as 27 witnesses. Amongst them were the employees of the deceased, the persons in whose presence the disclosure statement of the appellants were recorded followed by recovery of stolen articles, the police officials who carried out investigation and Doctor who conducted autopsy on the mortal remains of the deceased.
11. Learned Additional Sessions Judge appraised and weighed testimonies of these witnesses. He also looked into the statement of the appellants recorded under Section 313 of the Code of Criminal Procedure. After appraisal, he found all the accused persons responsible for commission of murder of the deceased and accordingly sentenced them as referred to above.
12. We have carefully perused the testimonies of all the important witnesses including that of PW-5, an independent public witness in whose presence the discovery of stolen articles were effected.
13. This case solely rests on circumstantial evidence. We have heard learned counsel for the appellants and also the learned Standing Counsel representing the State. With their able assistance we have been taken through the trial court record containing the evidence led by the prosecution oral as well as documentary. Since this case rests on chain of circumstances therefore, it is imperative duty of the prosecution to prove each circumstance leading to the involvement of the appellants in the commission of the crime. It is the cardinal principle of the criminal law that in a case based on circumstantial evidence prosecution must satisfy the Court that circumstances from which an inference of guilt can be drawn are to be established by unimpeachable evidence. Not only this the prosecution has a bounden duty to further prove that the circumstances when put together should lead only to one irresistible conclusion that the chain of events are so closely tied together so as to make the complete chain which point out to the guilt of the accused persons only and none else. In other words series of events should be so closely connected that it makes a complete chain of events so that the guilty person is not able to come out of that chain. Keeping in view these basic principles of law, let us examine if the prosecution has been able to bring that quality of evidence on record which would fit in the established principles referred to above. All the three appellants were held guilty by the Additional Session Judge, Delhi primarily on the testimony of PW 5 Dalip Singh, who was stated to be a witness of recovery of the articles stolen from the house of the deceased at the time of committing her murder. What else weighed in the mind of learned Additional Sessions Judge while recording conviction was recovery of one tiffin box on which the finger prints of the appellant Kuldip Singh were found to be there.
14. We have carefully perused the testimony of PW5. He is a star witness of the prosecution being independent. As we have stated above the conviction of the appellants were recorded primarily on the strength of recovery of jewellery, camera of the deceased from the respective jhuggis of the appellants, learned counsel for the appellants contended before us that the jewellery and the camera were foisted on the appellants and in fact these articles were never recovered from the jhuggis of the appellants and they have been falsely framed in this case while the actual assailants were not brought in the net.
15. First question which comes up for consideration in our mind is if there was any occasion for the investigators to remove such articles from the house of the deceased with a view to plant these articles on the appellants. It is admitted case that the brother of the deceased Brigadier S.J. Ravi Kant had already arrived on the scene of the crime after being telephonically informed by PW-7. The police had not arrived by then but came subsequently on the scene of the crime and found the house ransacked. At that time PW-7 Sh. Ramesh and Brig. S.J. Ravi Kant were already there. Thus there was absolutely no opportunity for the police to take into possession any of the recovered jewellery articles or camera. If these articles had already been stolen by the assailants, how could the investigators plant these articles on the appellants. If the arguments of the learned counsel for the appellants are accepted, it would mean, the police had come across other assailants from whose possession these jewellery articles and camera and other articles were recovered. But instead of bringing them to book, planted these articles on the appellants. We are not prepared to accept such proposition as their is nothing on record to indicate about such mischief on the part of the investigators. On the other hand there are circumstances available on record indicating involvement of the appellants in the commission of the crime for greed. True PW 5, star witness of the prosecution did not support the prosecution case wholly but while reading his examination-in-chief and cross-examination part and making scrutiny of his deposition we are of the considered opinion that he was the person in whose presence the police had recorded the disclosure statements of all the three appellants and he was the person who had accompanied the police along with the appellants in custody to the respective jhuggis of the appellants and recovery of stolen jewellery articles were actually effected in his presence. Otherwise he would not have been a witness to the recovery memo. He admitted in his testimony that he had witnessed the recording of the disclosure statement wherein all the three appellants told the police that they could get recovered the articles stolen from the house of the deceased while committing murder and they admitted that the three appellants had led the police party to their respective jhuggis and this witness had also accompanied the police but remained outside the jhuggi whereas police party accompanied by appellants had gone inside the jhuggi of the appellants. If police was to plant the stolen articles on the appellants then they would not have taken this witness right up to the jhuggi of the appellants as in that case it would have been more difficult for the police to plant stolen articles on the appellants more particularly when witness had accompanied them in their jeeps. This witness could be conveniently left behind in the police station if the police had any intention to foist stolen articles on the appellants.
16. Even otherwise PW-5 did not specifically mention in his testimony as to what made him to stand outside the jhuggis. Admittedly it was not his grievance that he was prevented by the police officials/investigators from going inside the jhuggis though he wanted to go inside the jhuggis nor did he stay outside the jhuggi on his own. There is thus no justification in accepting the testimony of PW-5 to the extent of his not visiting the jhuggis. To our mind, he testified so with a view to lend help to the appellants in order to make the prosecution case weak as we feel that he must have been tutored to resile from his statement about his going inside the jhuggis with the police for the purposes of effecting recoveries. Otherwise, reading his statement in entirety makes us to believe that he was a natural witness of the prosecution who was requested by the investigators while he was standing on the bus stand to join investigation for the purpose of witnessing disclosure statement being made by the appellants before the police followed by effecting recoveries of the stolen articles from the house of the deceased.
17. We have gone through the judgment on this aspect where learned Additional Sessions Judge dealt with this aspect and believed that PW-5 in fact had gone inside the jhuggis and recoveries made before him. We find no infirmity as far as this aspect was dealt with by learned Additional Sessions Judge. This being so this is a strong circumstance brought on record by the prosecution pointing out the involvement of the appellants in the commission of the crime. Although learned counsel for the appellants referred to authorities reported in Vijender v. State of Delhi, , Nesar Ahmed and Anr. v. State of Bihar I (2001) CCR 346 (SC) and Babu Khan v. State of Rajasthan 1997 Supreme Court Cases (Crl) 777 and we have carefully perused such authorities and its implications but since each case is to be judged on its peculiar facts and circumstances, therefore, while applying the ratio of the cases referred to above we are of the view that these authorities do not strictly fit in to the fats of the present case in strict sense as evidence of PW-5 when weighed in terms of the established principles of law, leads us to only one irrestible conclusion that PW-5 had witnessed the disclosure statement being made by the appellants before the police at Police Station Adarsh Nagar and had also joined the police party to the different jhuggis of the appellants for the purpose of effecting recovery of stolen articles from their respective jhuggis and we have no reason to disbelieve that stolen articles were not recovered from the jhuggis of the appellants in the presence of PW-5 and more so PW-5 had affixed his signatures on all the three recovery memos. Now it does not lie from his mouth to say that no such recoveries were effected in his presence.
18. Another important circumstance which further strengthens the chain of events pointing out towards the appellants is the presence of finger prints of Kuldip Singh on the toffees box. As is evident, the investigators had collected various chance prints from the scene of crime including the toffee box. The investigators had also taken the finger prints of the appellants and both sent to FSL for comparison. Results received indicated that the prints found on the toffee box resembled with the finger prints of the appellant when compared. We may state that such kind of evidence which is scientific in nature has its own evidentiary value. It must be believed. Unless it is shown by the accused persons that police managed to obtain such finger prints in a clandestine manner, which is not the case of the appellants herein.
19. Although learned counsel for the appellant endeavored to show that finger prints so taken on the toffee box could not be termed as chance prints and to support such contention, he placed reliance on authorities referred in Babu Khan v. State of Rajasthan 1997 Supreme Court Cases (Cri) 777 and Mahmood v. State of U.P. but reading of the authorities so cited by the learned counsel for the appellants clearly indicate that it has absolutely no applications on the facts and circumstances of the case in hand. As the nature of investigation carried out in the case referred to above were not alike in nature because in the case titled as Mohd. Aman and Anr. v. State of Rajasthan 1997 Supreme Court Cases (Crl) 777 the prosecution had failed to prove that seized articles could not be tampered with before they reached Finger Prints Bureau and the brass jug from where finger prints were taken was not produced during trial whereas in the case in hand the position is not so. Therefore it cannot be said by any stretch of imagination that the toffee box on which finger prints of the appellants were found and finally compared with the admitted finger prints of the appellants and tallied were not that of the appellant Kuldip Singh.
20. Similarly other two authorities referred by the learned counsel for the appellant do not fit in to the facts of the present case. On the other hand presence of the appellant Kuldip Singh on the scene of crime is established beyond any shadow of doubt. This piece of evidence being based on scientific tests is another strong circumstances indicating the presence of the appellant Kuldip Singh in the room of the deceased where she was done to death by strangulation.
21. Motive of the crime is also writ large as is seen from the disclosure statement followed by recovery of stolen/robbed articles. Appellant Kuldip Singh as is the case of the prosecution was employed with the deceased as a domestic servant. He was quite familiar with the topography of the house of the deceased including her precious belongings. It also came in evidence that appellant Kuldip Singh was suspected of having committed theft of alarm clock a few days prior to the occurrence for which he was sacked but subsequently again employed by the deceased. Admittedly appellant Kuldip Singh belongs to the poor strata of the society. Since he was acquainted with the topography of the house of the deceased as also her articles, therefore, he thought of doing away with those precious articles and this he did with the active connivance of other two appellants from whose jhuggis stolen articles were also recovered. True, their motive may not be initially to commit the murder of the deceased as initially they were solely concerned with the theft of jewellery and other precious articles but since she woke up abruptly therefore the appellants put an end to her life by strangulating her. Learned counsel for the appellants urged that the appellants at best should be convicted for the commission of the offence of theft and not for murder as they never intended to commit her murder but compelled them to do so as circumstances warranted and therefore according to the learned counsel for the appellants; learned Additional Sessions Judge erroneously convicted them of committing murder. We are not impressed by such arguments. If at all their intention was only to commit theft of the stolen articles then they could very well flee from the house if such attempt to commit theft was foiled by the awakening of the deceased. Where was the need to take her life when their intention was only to commit theft and not the murder. We may say that for the purpose of gathering common intention it was not necessary that there must be a prior meeting. Such as intention can be gathered and shared together even at the place of occurrence. We find such support from an authority reported in Manepalli Anjaneyulu v. State of A.P. 1999 Crl. L.J. 4375. There is thus fallacy in the arguments of the learned counsel for the appellants seeking their conviction under Section 380 IPC only and not under Section 302. Such arguments are devoid of substance and cannot be accepted.
22. It is further urged by the appellants that the deceased was a short tampered lady and her temper would rise high with her employees over petty matters and therefore many of her employees were unhappy with her and this being the position, she could be eliminated by any of them and not particularly by the appellants with whom she had no enimity. They further argued that two days prior to the incident she had picked up a quarrel with one Gaurav Tyagi who had supplied bricks to her and she was not making payment to her over which quarrel had ensued between the two. Tyagi had also abused and twisted her finger as a result of which she suffered fractures of her finger and she had reported this matter to the police apprehending danger to her life as Tyagi had threatened to her that he would kill her. Learned counsel for the appellants urged that this was quite a serious incident which had taken place a day prior to her murder and therefore it was quite possible that Mr. Tyagi with whom she had altercation might be responsible for causing her death. While going through the file for the purposes of dictating judgment, this aspect had weighed in our mind to some extent and therefore we wanted to get it further clarified whether this part of the incident was looked into by the investigators. We had fixed the case for directions for seeking such clarification and also for summoning the investigator with the police file. We went through the police file and satisfied ourselves that this could not be the reason for her murder. It is a common practice that in commercial transactions many times payments are not received on time. Many a time unpleasantries are exchanged between the parties over the payment but hardly murder takes place for such incidents. Even otherwise Gaurav Tyagi would not have been benefited at all by committing murder of this lady merely on the question of payment. He is the person who owns a brick kiln and supply bricks to many of his customers. Merely because payments were not received on time and some quarrel had taken place over such payments we have no doubt in our mind if Gaurav Tyagi would go that extreme merely on the issue of non-payment of money. Therefore possibility of involvement of Gaurav Tyagi is completely ruled out.
23. As regards her enmity with other persons nothing has come on record to indicate if any of her employees was enimical to her. Even otherwise it is difficult to accept such arguments that since the deceased had many enemies therefore any one could kill her. The position would have been different if it was a blind murder. In the case in hand suspicion was focused on appellant Kuldip Singh as earlier too he was accused of committing theft of three alarm clocks from the house of the deceased. Though nothing was recovered from his house but since the deceased had only suspected him of such theft therefore this was a prominent clue for the investigators to view this incident in that light and since the appellant had a tendency to commit such like crimes therefore the police thought of interrogating him first and he broke down during investigation as to the manner in which he had committed the crime and also got recovered stolen articles from him.
24. It is beyond our comprehension as to why police would falsely implicate him and his accomplises more particularly when no enmity was shown between the appellants and the police. It is also beyond our comprehension to doubt the huge recoveries of stolen articles from the respective jhuggis of the appellants and being rightly identified by the daughter of the deceased before the Metropolitan Magistrate. We have also gone through the testimonies of police officials and also the testimony of Doctor who conducted the autopsy of mortal remains of the deceased. These testimonies are absolutely in line with the prosecution case with little variances here and there which was bound to occur with the lapse of time and which need to be overlooked. It is difficult to believe that police deliberately framed these three appellants and let off the real assailants. The investigation carried out by the police was quite impartial. They had interrogated all concerned persons including PW-7 Shri Ramesh Kumar who had first noticed the dead body of the deceased when he visited her house on the date of the occurrence. Since he was the first to be seen in the house of the deceased so the police had also taken his finger prints to tally with chance prints taken from the spot. It does to establish that police wanted to bring real culprit to book and not predetermined in mind to frame these appellants.
25. Impugned judgment suffers from no infirmity. The trial court dealt with each and every aspect of the matter and rightly found the appellants guilty and convicted them accordingly. We have no reason to differ with the findings of the learned Additional Sessions Judge it being in order and we accordingly maintain the same. In the result both the appeals are dismissed resulting in maintaining the judgment and conviction of the appellants.