Rama Shankar vs State
2009 Latest Caselaw 573 Del

R-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CRL.A. 319/2001

%                                   Date of Order: February 17, 2009

         RAMA SHANKAR                             ..... Appellant
                 Through:           Mr. Sumeet Verma, Advocate

                                    versus

         STATE                                    ..... Respondent
                         Through:   Ms. Richa Kapoor, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MS. JUSTICE ARUNA SURESH

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?                      Yes

3. Whether judgment should be reported in Digest?              Yes

: PRADEEP NANDRAJOG, J. (Oral)

1. The appellant Rama Shankar who has been admitted

to bail is absconding and in spite of attempts the warrants

seeking his production are not being served upon him. We note

that the appellant was admitted to bail by the Supreme Court.

We note that the appellant was being represented through an

amicus as the appeal was filed from jail; noting further that Mr.

Sumeet Verma had been appearing as an amicus for the

appellant we had directed that the appeal would be heard with

assistance of learned amicus for the appellant.

2. We note that fee of learned amicus curiae has been

fixed. We fix his fee at Rs.5,000/-.

3. Before we note the evidence led by the prosecution,

at the outset we notice that chance finger prints were lifted from

an almirah, locker and a box from the house of Mehras i.e. Flat

No.A-13, 9-Prithvi Raj Road, New Delhi. The same have matched

the finger prints of the appellant. We notice that the case of the

prosecution was that the appellant was engaged as a domestic

help by the Mehras about two months prior to the date of the

incident i.e. 7.9.1991, to prove which fact two witnesses namely

Shyam Dei PW-3 and Hira Singh PW-4 have been examined. We

have questioned learned counsel for the appellant, whether for

purposes of the appeal, the counsel seeks to urge submissions

on the plea taken by the appellant when examined under

Section 313 Cr.P.C. that the appellant was never employed as a

domestic help by the Mehras or whether he adopts the line of

argument that the appellant was engaged as a domestic help.

Learned counsel states that he would argue the appeal on the

basis that the appellant was engaged as a domestic help by the

Mehras.

4. We understand the predicament of the learned

counsel. The incident took place in the forenoon of 7.9.1991.

The appellant was found absconding till he was arrested on

16.9.1991. If the appellant admits being engaged as a domestic

help, his conduct of absconding would need to be explained by

him. If appellant takes a stand that he was not employed as a

domestic help by the Mehra family, the incriminating evidence of

his finger prints being lifted from the almirah, steel locker and a

box in the bedroom of the house of the Mehras would need to be

explained. The latter would be fatal. The former would be a

lesser evil.

5. The process of law commenced when Harish Mehra

PW-7 returned to his flat i.e. A-13, 9-Prithvi Raj Road, New Delhi

at around 2:00 PM; having left the same in the morning to visit

his factory; the date being 7.9.1991. He saw that the front door

of the flat was unlocked. All other doors were closed and were

unlocked. He felt suspicious and went to the bedroom of his

mother and saw her and his sister, Nidhi (PW-2) in a pool of

blood. The cupboard was unlocked and open. Articles were

lying messed up. He rang up the police and also informed his

father. He noticed that the appellant Rama Shankar, a domestic

help, was not in the flat.

6. The police reached the flat and recorded his

statement Ex.PW-7/A. His mother and his sister were removed

to AIIMS where his mother was declared brought dead as

recorded in the MLC Ex.PW-29/B-3. Nidhi was in a critical

condition. Her MLC, Ex.PW-18/A, records that she was assaulted

and had lacerated injuries on the occipital region. She was

found bleeding from both nostrils. Peritoneal odema was

suspected. Face was swollen and asymmetrical. There was

swelling on the maxicla.

7. It is apparent that Nidhi had been assaulted with a

blunt object.

8. The dead body of the mother of Mr. Harish Mehra

namely Mrs. Vijay Mehra, was sent for post-mortem and as per

post-mortem report Ex.PW-29/A the lady was brutally battered

on the face and the skull. Suffice would it be to record that

there were fractures on the occipital bone on the right side.

There was a fracture on the middle cranialfossa bone.

9. The brain was congested. There was haemorrhage in

the brain causing instant death.

10. Nidhi survived and her statement under Section 161

Cr.P.C. was recorded by the Investigating Officer on 23.9.1991

i.e. after 16 days of the incident. She informed that the

appellant had assaulted her and her mother.

11. The appellant who was a suspect for the reason he

was a domestic servant in the house and was absconding soon

after the incident, the police was on his look out and finally

arrested him on 16.9.1991. He was interrogated and made a

disclosure statement Ex.PW-4/J in which he not only admitted his

involvement in the crime but also disclosed the place where he

had concealed the fruits of his crime and pursuant thereto got

recovered the following articles:-

                      Kangan (Gold)               Ex.P-1

                      Ear Ring (Gold)             Ex.P1/2 & 3

                      Pair of Karas (Gold)        EX.P-43

                      Nose Pin (Gold)             Ex.P-45

                      Ear Tops (Gold)             Ex.P-39

                      Paijaib (Gold)              Ex.P-44

                      Tulsi Mala (Gold)           Ex.P-38

                      Tops (Gold)                 Ex.P-50

                      Bangles (Gold)              Ex.P-7

                      Karas (Gold)                Ex.P-16

                      Necklace (Gold)             Ex.P-1/5

                      Purse                       Ex.P-51

                      Boxes                       Ex.P-1/4 & Ex.P-49

                      Purse                       Ex.P-1/6

12. The same were seized vide seizure memo Ex.PW-4/H.

13. Nidhi informed the police that on the day of the

incident she was in her house studying for her exams and was in

the room of her mother and that the appellant entered the bed

room armed with a bat in his hand and assaulted her mother

and herself i.e. Nidhi. She lost consciousness as a result of the

assault.

14. Needless to state the appellant was charged with the

offence of having murdered Mrs.Vijay Mehra and attempted to

murder Nidhi Mehra as also for the offence of robbery.

15. We eschew reference to all and sundry evidence for

the reason while convicting the appellant, the learned Trial Judge

has relied upon the testimony of Nidhi Mehra who claimed to be

an eye witness and deposed that the appellant had launched the

brutal attack on herself and her mother. The learned Trial Judge

has not found any material contradiction or anything in the

testimony of Nidhi to discredit her. The second incriminating

evidence found against the appellant is his conduct of

absconding from the house soon after the incident. Lastly, the

recovery of the jewellery and other electronic items pursuant to

the disclosure statement of the appellant, all of which we note

were duly identified in Court by Sh. Prem Mehra husband of the

deceased who appeared as PW-10.

16. Needless to state, with reference to the third

incriminating evidence the learned Trial Judge has held that

since the appellant was found with the fruits of the crime;

keeping in view the enormity of the recovery made, it was but

evident that the said recovery of the fruits of the crime linked

the appellant to the crime itself.

17. The appellant has been convicted of the offence of

murdering Mrs. Vijay Mehra. He has been convicted for the

offence of attempting to murder Nidhi Mehra. He has also been

convicted for the offence of robbery. All sentences imposed

have been directed to run concurrently. The sentence for the

longest period of incarceration, is the one imposed for the

offence of murder i.e. imprisonment for life.

18. At the hearing of the appeal today, learned counsel

for the appellant has urged that Nidhi Mehra was a planted

witness and in any case the police has put words in her mouth

for the reason her statement under Section 161 Cr.P.C. was

recorder after 16 days of the incident. Learned counsel urges

that there is an unexplainable delay in recording the statement

of Nidhi. Counsel urges that in the meanwhile, since the

appellant was arrested on 16.9.1991 and his purported

disclosure statement was recorded, to fill up the lacuna in the

cases of the prosecution the police motivated Nidhi to state

incorrect facts.

19. Learned counsel draws our attention to the

deposition of Nidhi wherein she has stated that the police had

made inquiries from her after 4 and 5 days of the incident.

Counsel submits that it is obvious that the police had recorded

Nidhi's statement after 4 and 5 days of the incident and said

statement has deliberately been withheld. Counsel urges that

reason thereof is that in said statement Nidhi did not name the

appellant as the assailant.

20. That Nidhi was with her mother when she and her

mother were assaulted, stands independently established from

the testimony of Harish Mehra PW-7, brother of Nidhi. He has

categorically deposed that he had left the flat in the morning to

visit his factory and when he returned home at around 2:00 PM

he saw that his mother Smt. Vijay Mehra and his sister Nidhi

Mehra lying in a pool of blood and brutally assaulted in the

bedroom of the house. He deposed that he informed the police

and that with the help of the police his mother and his sister

were removed to the hospital.

21. Thus, Nidhi being in the company of her mother and

both being assaulted together stands established. This in turn

gives credence to the fact that Nidhi had witnessed the assault

and hence had seen the assailant.

22. We note that in her testimony, Nidhi has stated that

she remained unconscious in the hospital for about 15 days. It is

true that she has deposed that after 4 and 5 days the police

enquired about the crime from her and she told the police as to

what had happened. But in the same breath, she has stated

that she remained unconscious in the hospital for 15 days.

23. Unfortunately for us, the medical case sheet of Nidhi

has not been proved as an exhibit and no doctor has been

questioned as to for what duration Nidhi remained unconscious.

24. But we note that on the date of the incident i.e.

7.8.1991, the Investigating Officer had moved an application,

Ex.PW-22/A, on which the doctor had written that the patient i.e.

Nidhi was unfit for statement.

25. We have referred to the injuries of Nidhi in para 6

hereinabove. The same show odema of the brain. We can

reasonably gather therefrom that Nidhi would be unconscious.

He who has odema of the brain and has suffered an assault of

the nature which was suffered by Nidhi, would presumably be

unconscious. We have no reason to disbelieve Nidhi's statement

that she remained unconscious for about 15 days.

26. Hence, the Investigating Officer recording Nidhi's

statement on 23.9.1991 cannot be frowned upon.

27. Even otherwise, from the testimony of PW-37 the

Investigating Officer, we note that he has deposed of moving out

of Delhi to trace and arrest the appellant who was not a resident

of Delhi. We note that Hira Singh PW-4, a watchman in the

building, who was instrumental in securing employment of the

appellant with the Mehras, was taken along by Investigating

Officer and the police team had left Delhi on 9.9.1991 to return

to Delhi somewhere after 16.9.1991; meaning thereby, that the

Investigating Officer was not available in Delhi for recording the

statement of Nidhi; even if she had regained consciousness a

little prior.

28. Indeed, no discrepancy or inconsistency has been

pointed out to us in the deposition of Nidhi and thus we need not

discuss any further, for the reason Nidhi was an eye witness to

the incident and her testimony is clearly inculpatory of the

appellant.

29. Add thereon the fact that the appellant was

absconding; the two would be enough to conclude against the

appellant i.e. unerringly would point the finger of guilt towards

the appellant.

30. We have noted hereinabove the recoveries effected

at the instance of the appellant pursuant to his disclosure

statement Ex.PW-4/J.

31. Except for making a feeble attempt that the articles

recovered could possibly be planted for the reason no public

witness was associated at the time of the recovery, learned

counsel for the appellant, very fairly conceded that he had no

other submission to make pertaining to the recovery.

32. The extent of jewellery items; the nature thereof and

the value thereof are of a magnitude where it would be difficult

to believe that to fabricate evidence said quantity would be

planted by the police. Indeed, if something had to be planted,

there was no necessity of duplicating the jewellery items; a

bangle or two; a ring or two would have been enough.

33. We note that the seizure memo Ex. PW-4/H pertaining

to the recovery of the jewellery and electronic goods has been

witnessed by Hira Singh the chowkidar of the building who was

accompanying the police for the reason it was only he who could

have helped the police to identify the appellant if the police

learnt about the where abouts of the appellant.

34. We are satisfied that the prosecution has

satisfactorily established the recovery of the fruits of the crime

pursuant to the disclosure statement made by the appellant, and

from the custody of the appellant.

35. Thus, the third piece of evidence namely recovery of

the fruits of the crime, linking the same with the first two pieces

of evidence namely the eye witness account and the conduct of

the appellant of absconding from the flat are sufficient evidence

to sustain the finding of guilt returned by the learned Trial Judge.

36. We may incidentally note that the other incriminating

evidence against the appellant found by the learned Trial Judge

is one envelope containing a letter; recovered vide memo Ex-

PW-32/G, from the jhuggi of co-accused Virender Kumar. The

envelope in which this letter was found as well as the letter were

sent to CFSL for comparison with the specimen writing of the

accused Rama Shankar and it was reported vide report Ex.PW-

38/A, that this letter bears his writing marked Q1 to Q7. The

letter is addressed to co-accused Virender Kumar and Kamlesh

Yadav, convicted u/S 411 I.P.C. The letter clearly shows that

some articles of jewellery stolen by Rama Shankar from house of

Mehras were taken by said co-accused and when Rama Shankar

came to know of it, he wrote a letter to them asking them to

deposit Rs.50,000/-. Accused Rama Shankar also threatened to

disclose their names in case money was not paid.

37. Noting that the sentences imposed upon the

appellant have been directed to run concurrently; finding no

merits in the appeal, we dismiss the appeal.

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

FEBRUARY 17, 2009 mm