Shanti Lakara vs State
2009 Latest Caselaw 2715 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment Reserved on: July 14, 2009
                           Judgment Delivered on: July 20, 2009

+                           CRL.A.07/2001

        SHANTI LAKARA                                ..... Appellant
                 Through:         Ms. Ritu Gauba, Advocate.

                                  versus

        STATE                                  ..... Respondent
                       Through:   Mr. Pawan Sharma, APP.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

     3. Whether the judgment should be reported in the Digest?
                                                     Yes

INDERMEET KAUR, J.

1. House No.B-25, Sarvodaya Enclave, New Delhi was the

residence of Sh.R.K.Jain, Sr. Advocate. On 01.12.1989, the family

of Sh.R.K.Jain noted foul smell emanating from the water supply in

their house. A plumber Phagu Ram PW-5, was called. On

checking the water line he detected that the foul smell was

emanating from the underground water tank, which on being

opened, was found to contain the dead body of a male person.

2. The information of a dead body being in the underground

water tank was conveyed to the police. D.D.No.9A was recorded

by PW-7 ASI Ram Kumar on this information being furnished to

him in Police Station Malviya Nagar by PW-22, lady Ct.Pushpa who

had made a telephonic call from the Police Control Room and had

relayed the information given to her by Phagu Ram. The said D.D.

was handed over to PW-32 Inspector B.L. Meena, who

accompanied by PW-27 Hukum Singh and PW-14 Ct.Rohtas Singh

reached the spot.

3. Sh.R.K. Jain, occupant of the house reached the spot on this

information having been given to him by his wife. In his statement

Ex. PW-26/A he has stated that this house was occupied by him

alongwith his wife and two children. Smt. Shanti Lakra was his

domestic servant and she had been working with them for last

eight years. She was living in the servant quarter which was a

part of the residential house. For two days, prior to the incident,

he and his family had gone to Saharanpur to attend the marriage of

their nephew and in their absence the house had been entrusted to

their maid servant Smt. Shanti Lakra. Since she was the only

person in occupation of the house in this period; her role was

suspect; she was however unavailable for interrogation.

4. On the same day, the servant quarter occupied by Shanti

Lakra was searched in her absence and from the said room cash of

Rs.21,060/-, a pass-book, a personal diary, a packet of Baygon

Spray, a quarter bottle of liquor and some photographs were seized

which were taken into possession vide Ex. PW-3/A.

5. Rukka was sent through PW-14 Ct. Rohtas and the formal

FIR was registered by ASI Ram Kumar Ex. PW-7/A at 4.45 p.m.on

01.12.89. PW-21 Ct. Suraj Prakash was handed over a copy of the

special report for delivery to the higher police officials as also to

the concerned Metropolitan Magistrate. Photographer PW-15

H.Ct.Dharambir Singh was summoned to the spot who took six

photographs of dead body Ex.PW-15/A to Ex.PW-15/F1. A rough

site plan Ex.PW-13/A was prepared, thereafter scaled site plan was

prepared by PW-17 Inspector Devender Singh.

6. In the course of the investigation, PW-23 Margret, aunt of the

accused was interrogated and it was revealed that accused was

having an affair with Virender Kazoor a constable posted in police

station Mandir Marg since last about two years. On inquiry, it

transpired that wife of Ct. Virender Kazoor PW-9 Smt. Basanti Devi

had lodged missing report of her husband on 29.11.89 in Police

Station Mukherjee Nagar. On the same day, in the presence of

PW-9, the locker of Ct.Virender Kazoor was checked in the Police

Station and some incriminating documents which included a letter

Ex.PW-18/B purported to have been written by Shanti Lakra to Ct.

Virender Kazoor had been recovered.

7. On 02.12.89 PW-9 was summoned to police station Malviya

Nagar where she identified the dead body of her deceased

husband. Post mortem on the deceased body was conducted on the

following day i.e. 03.12.89 by PW-1 Dr. D.N. Bhardwaj, wherein it

was noted that the stomach contained a yellowish green material.

The viscera was preserved. The cause of death was opined as

asphyxia on account of strangulation but the final opinion on the

cause of death was kept pending since the report of the viscera

was yet awaited.

8. Shanti Lakra was not available after 1.12.1989; she was

absconding. On 06.12.89, she was arrested vide memo Ex.PW-32/B

in the presence of PW-6 Subhash Gupta. She gave her disclosure

statement Ex. PW-32/C. She thereafter led the police party to the

jhuggi of her sister Manju from where a wrist watch and a camera

were recovered with two sarees and two petticoats which were

taken into possession vide memo Ex.PW-6/B. The place of the

incident was pointed out by her i.e. B-25, Sarvodaya Enclave. The

hammer vide which she had opened the lid of the water tank in

which the dead body had been disposed of was also taken into

possession by the same memo. Thereafter the accused had led the

investigating party to a pulia near property B-16, Savrodaya

Enclave from where she got recovered a shirt, pant and slippers

which had been worn by deceased. The said articles were taken

into possession vide Ex. PW-2/B. She further led the investigating

team to the chemist shop situated at Adchini, Sarvodaya Enclave

from where she had purchased the baygon spray which as per the

version of the prosecution had been used by her in mixing it with

the tea administered to the deceased pursuant to which he had lost

his consciousness and thereafter she had strangulated him to

death. The said pointing out memo is Ex.PW-2/D. PW-4 Subhash

Chand, the owner of the chemist shop had testified to the effect

that on 21.11.89, the accused had come to his shop and purchased

baygon spray.

9. The viscera of the deceased which had been sent for

chemical examination to Central Forensic Laboratory was opined

vide report dated 25.1.1997 to have tested positive for the

presence of carbamate which is an ingredient of baygon.

Handwriting expert vide its report Ex.PZ1 had opined that the

specimen handwriting of the accused Shanti Lakra and the inland

letter Ex.PW18/B purported to have been written by Shanti Lakra

to the deceased and the admitted writings in her personal diary

Ex.P-9 seized vide memo Ex. PW-3/A were of the same person.

10. The Trial Judge had returned a finding of guilt on the basis of

the aforenoted evidence which had been culled out by the

prosecution. Holding it to be a case of circumstantial evidence, it

had been held that all the links in the chain of circumstances point

to the guilt of the accused Shanti Lakra. The circumstances relied

upon by Trial Court were as under:

a) The accused was employed as maid servant in the house of PW26, a practicing advocate in Supreme Court, at that time living as a tenant in property No. B-25 Sarvodaya Enclave located in jurisdiction of PS Malviya Nagar, for the last about 8 years.

b) The accused was occupying servant's room in the aforesaid house of PW26 and had kept her belongings there.

c) Accused had old acquaintance with the deceased, who in turn was not acquainted with PW26 or with any other member of his family or employ.

d) PW26 left Delhi with his family for Sharanpur in UP on 23.11.89 for attending marriage of his nephew Sanjay Jain, leaving the house in the exclusive control of the accused. PW26 and his family returned from Saharanpur only on 25.11.89.

e) The deceased employed as a constable in Delhi Police and posted at the time in PS Mandir Marg

completed his duty at 10 PM on 23.11.89 and was seen leaving the police station wearing striped bushirt Ex.P4, trousers Ex.P3, chappals Ex.P5 and carrying camera Ex.P11 and wrist watch Ex.P12.

f) The deceased at the time of leaving PS Mandir Marg told PW19 that he would be meeting Shanti Lakra (accused) in Sarvodaya Enclave and that was the stage when he was last seen alive by any one closely known to him (excluding the accused).

g) The deceased made a telephonic call to PS Mandir Marg on 24.11.89 requesting for he to be granted leave for that day.

h) PW9 Basanti Devi wife of the deceased lodged a missing report in his regard in PS Mukherjee Nagar on 29.11.89 showing he had not come home nor been in touch with her after he had left for duty in PS Mandir Marg on 23.11.89.

i) On 1.12.89 on foul smell being noticed in the water supply in the house of PW26, the underground water tank was got opened and was found to contain the bloated and decomposed dead body of the deceased Constable Virender Kazoor.

j) When plumber was being called for checking the underground water tank, the accused went away and was not seen around till arrested on 6.12.89.

k) The post mortem report and result of analysis of viscera indicate the death had occurred on account of asphyxia by strangulation and the deceased had also been administered insecticide known as carbamate.

l) During search of the room of the accused on 1.12.89, amongst other things a half used packet of baygon spray powder (which contains carbamate) was recovered, which is proved to have been purchased by the accused from the shop of PW4 on 21.11.89, two days before he went missing.

m) During investigation the camera Ex.P11 and wrist watch Ex.P12 was recovered from amongst the personal clothes of the accused kept in her attaché case in the jhuggi of her sister Manju in Luxmi Bai Nagar area.

n) After arrest on the basis of disclosure made by the accused, the bushirt Ex.P4, trousers Ex.P3 and chappals Ex.P5 were recovered kept in a polythene bag concealed beneath a small drain bridge behind property close to the house of PW26 in the same locality.

o) There is positive evidence available that bushirt Ex.P4, trousers Ex.P3, chappals Ex.P5, camera Ex.P11 and wrist Watch Ex.P12 belonged to the deceased and were in his use or possession in the night of 23.11.89 at the time he left PS Mandir Marg whereafter he was discovered dead in the afternoon of 1.12.89.

11. On behalf of the accused, it has been argued that the

judgment is based on conjectures and surmises and there is no

evidence to establish that Mr.R.K.Jain had remained out of the

house between 23.11.89 to 25.11.89 and the house was in the

exclusive possession of the accused in his absence. It is argued

that in a case of circumstantial evidence, motive is a very relevant

fact and this has not been proved by the prosecution. What could

and what was the reason for the accused to have committed the

murder of the deceased has not been spelt out. It is argued that

the defence of the accused is that the deceased was a stranger to

her and she had no connection with him, the inland latter Ex. PW-

18/B purported to have been written by accused to the deceased is

bereft of any stamp and does not decipher the author of the letter;

it was seized on 02.12.89 but admittedly handed over to the

Investigating Officer only on 09.12.89 and thus the possibility of

the tampering of the said document cannot be excluded; the

recovery effected as per Ex. PW-3/A was on 01.12.89 i.e. prior to

the arrest of the accused and the said recovery attributed to the

accused is inadmissible as it is not a recovery made pursuant to

any disclosure statement of the accused. There are contrary

versions given by the recovery witnesses; attention has been drawn

to the contradictions in the versions of PW-3 and PW-27. It is

argued that the chemist PW-4 Mr. Subhash Chand from whom the

baygon spray was purchased by the accused has stated in his

cross-examination that the police had taken his signatures on blank

papers and as such no reliance can be placed on his version. All

the links in the chain of evidence have been broken and there is

nothing with the prosecution on the basis of which a finding of

guilt could have been returned.

12. Arguments have been appreciated; record has been perused.

13. Admittedly, this is a case of circumstantial evidence. All the

links in the chain of evidence must be so inter-twined that they

must singularly, unambiguously and convincingly point to the guilt

of the accused. Hypothesis of the innocence of the accused has to

be excluded.

14. PW-26 Sh.R.K.Jain, the occupier of house bearing no.B-25,

Sarvodaya Enclave has deposed that Shanti Lakra was working as

a maid servant in their house since the last 7 to 8 years and on

01.12.89 after a dead body was found recovered in the

underground water tank of his house, the servant's quarter was

searched in his presence from where certain recovery had been

effected. He had given his statement to the police Ex. PW-26/A

wherein he has stated that he and his family were out of station for

two days, prior to the incident and their maid servant was looking

after their house in their absence. PW-2 Sh.Pradeep Kumar,

brother of PW-26, has reiterated that Shanti Lakra was working as

a domestic servant in the house of his brother. PW-12 Suresh Rathi

has deposed that on 23.11.89 he had attended the reception of

Sanjay Jain at Saharanpur and Sh.R.K.Jain was also present there

and he had subsequently left for Delhi on 25.11.89. In the course

of investigation PW-13 SI Rajinder Singh had verified this fact from

Taj Hotel, Saharanpur wherein it was confirmed by PW-24 Sh.Man

Mohan, the owner of the said hotel that Sh. R.K.Jain had stayed for

two nights i.e. 24.11.89 and 25.11.89 in his hotel at Saharanpur.

This was further fortified by the PW-20 Qayur Alam who had met

Sh.R.K.Jain on 24.11.89 at this wedding. On the specific query to

the accused in her statement under Section 313 of the Cr.P.C. on

certain recoveries having been effected from the room which was

in her possession at B-25, Sarvodaya Enclave , she had not denied

the factum of the possession of the room and had admitted that

part of those recoveries were effected therefrom; she had however

denied the recovery of the baygon spray. DW-1, Manju sister of the

accused, was examined in defence. She had deposed that between

21.11.89 to 29.1189 Shanti Lakra who was working as a maid

servant had taken leave from Sh.R.K.Jain and during this period

she lived with her, thereby substantiating the version of the

prosecution that except for this period, on other days Shanti Lakra

was living in the servant quarter room at B-25, Sarvodaya Enclave

where she was employed as a maid servant.

15. From this evidence which had gathered, it is established that

between 23.11.89 to 25.11.89 Sh.R.K. Jain and his family were

away to a attend marriage at Saharanpur. The house in their

absence was entrusted to their maid servant Shanti Lakra who was

working with them for the last 7 to 8 years. The servant room in

the house was in her occupation. She was in exclusive possession

of the house during this period.

16. The medical evidence i.e. the post mortem report

Ex.PW-13/A had opined the cause of death of deceased i.e.

Ct.Virender Kazoor as asphyxia as a result of strangulation.

Viscera had been preserved and poisoning had not been ruled out.

The post mortem had been conducted on 03.12.89. The time of

death of the deceased was opined as 7 to 10 days prior to the date

of post mortem i.e. approximately between 23.11.89 to 26.11.89.

This was also the period during which Sh.R.K. Jain and his family

were absent from their house.

17. On 29.11.89, PW-9 Smt.Basanti Devi wife of the deceased

had lodged the missing report of her husband in Police Station

Mukherjee Nagar as her husband had not returned home after

23.11.89. She had deposed on oath that when her husband left

the house on 23.11.89 he was wearing a blue striped shirt, a white

pant, brown chappals as also a watch and was carrying a camera

with cover. On 2.11.89, she had identified the dead body of her

husband at AIIMS. PW-18 SI Shanker Pal Singh was on duty

alongwith the deceased constable at police station Mandir Marg on

23.11.89. His duty hours were from 4.00 p.m. up to mid-night.

This witness has deposed that after his duty hours which were

between 6 to 10 p.m. Ct. Virender Kazoor left the Police Station

stating that he wanted to rest and at that time he was wearing a

striped shirt and a white pant; thereafter telephonic message was

received that he would be absent from duty on 24.11.89. PW-19

H.Ct.Sudershan also posted at Police Station Mandir Marg has

reiterated this version; PW-31 Mahesh Chand has also on oath

corroborated that constable Virender Kazoor posted along with him

at Police Station Mandir Marg had requested for leave on 23.11.89

but the same was refused; on 24.11.89 the deceased has

telephonically informed him about leave, entry of which was

recorded in D.D.Ex. PW-31/A; further Virender Kazoor continued to

remain absent up to 01.12.89 when he was reported dead.

18. This evidence establishes that the deceased constable

Virender Kazoor was alive up to 24.11.89 when he had

telephonically informed PW-31 requesting for leave and thereafter

he did not report for duty right up to the date when his dead body

was recovered on 01.12.89. Further when he was last seen on

23.11.89 he was wearing a blue striped shirt, white pant, brown

chappals, a watch and was carrying his camera which had a cover.

19. PW 26 has testified that till 01.12.89 accused Shanti Lakra

continued to work in the house; however, when the dead body was

recovered by the plumber from the underground water tank of the

house, the accused had disappeared. PW-26/A specifically recites

that the accused was not available after that and her photographs

were handed over to the police for the purpose of identification as

PW-26 had suspected her role in this foul play but the police could

not interrogate her because of non-availability. This version has

also been reiterated by PW3 Sukhdev Chand Pal, an Advocate who

had also reached the spot on 1.12.89; he has categorically stated

that after the dead body was taken out from the tank, the accused

had run away. She was finally arrested on 06.12.89.

20. The act of the accused in absconding from the date when the

dead body of Ct. Virender Kazoor was recovered up to the date of

her arrest is a relevant fact probablising the guilty intent of her

mind. Such a conduct is relevant under the provisions of Section 8

of the Indian Evidence Act.

21. On 01.12.89, a recovery memo Ex.PW-3/A was prepared.

This recovery was effected from the servant quarter room of Shanti

Lakra by PW-32 ACP B.L. Meena in the presence of PW-26

Mr.R.K.Jain and his brother PW-2 Mr.Pradeep Jain. Both the said

witnesses had attested Ex. PW-3/A and had reiterated this version

in the court. As per this document Ex.PW-3/A one empty bottle of

whisky, one packet of baygon, cash of Rs.21,060, a pass-book

bearing name of Shanti Lakra, personal diary of the accused as

also some medical treatment papers had been taken into

possession. The accused in her statement under Section 313

Cr.P.C. had not denied that this room was not in her possession;

in fact, she had admitted the recovery of the diary Ex.P-9 and her

medical papers but had denied the recovery of the baygon.

22. At this stage it would be relevant to point out that the

viscera, kidney, spleen and the liver pieces which had preserved

from the dead body of the deceased had been sent to Central

Forensic Laboratory which vide its report Ex. PW-32/L had opined

that there were traces of carbamate in the liver, spleen, kidney,

stomach and the intestine contents of the deceased. It was thus

established that carbamate which is an essential ingredient of

baygon had been found in the dead body of the deceased.

23. The accused had been arrested on 06.12.89 in the presence

of PW-6 Subhash Gupta. PW-6 was an independent witness and

police had requested him to join investigation. After the arrest of

the accused she had made her disclosure statement and had

thereafter led the police police party to Adchini village pointing out

the shop of the chemist vide memo Ex. PW-2/D from where she had

purchased the baygon. PW-4 Subhash Chand was the said chemist,

who had deposed that on 21.11.89 the accused Shanti Lakra had

come to his shop and purchased a packet of baygon baite) in the

evening. The witness had not shifted his stand in the cross-

examination and had denied the suggestion that he was deposing

falsely at the instance of the police. No specific motive has been

attributed to him as to why he would depose falsely; it is not the

case of the accused that he is a stock witness of the police or has

some other ulterior purpose in implicating the accused wrongly.

24. It was, thus, established by the prosecution that baygon had

been purchased by the accused Shanti Lakra on 21.11.89. The

date of death of the deceased, had been opined to be between

24.11.89 to 26.11.89. The dead body had contained traces of

Carbamate which is an ingredient of baygon. Remnants of baygon

in the form of a half empty packet had also been recovered from

the room search of the accused on 01.12.89.

25. The connectivity of the accused having administered baygon

spray to the deceased three days prior to his death which had been

approximated by medical evidence to be between 24.11.89 to

26.11.89 and after having purchased it on 21.11.89 was slowly and

gradually surfacing.

26. In her statement under Section 313 Cr.P.C., the accused had

admitted that the diary recovered from her room search on

01.12.89 vide Ex. PW-3/A was her personal diary. These were her

admitted writings. A translation of its contents evidence that on

one page she had written that she would not forgive the person

who had made her life so miserable that it had become full of

thorns; this evidence was a reflection on her mental psyche and an

insight into her mind which appeared to be traumatized and

unhappy.

27. The inland letter Ex. PW-18/B purported to be in the writing

of the accused to the deceased, was sent to the CFSL for opinion of

the handwriting expert who had after comparison of the admitted/

specimen writings of the accused alongwith this questioned

document had opined the same to be in the handwriting of the

same person. This piece of evidence had been ignored by the Trial

Court and report of the handwriting expert not having been

tendered as per rules of evidence, the same had been held

inadmissible. Even otherwise the specimen writings of the

accused were taken without prior permission of the concerned

Court; as such in view of the ratio of the judgment of the Supreme

Court reported in 1994(5) SCC 152 Sukhvinder Singh & Ors V.

State of Punjab, an opinion based on such writings cannot be

considered by the court. The argument of the learned defence

counsel on this score is thus of little value.

28. On 06.12.89 the accused after her disclosure statement had

led the police party to the jhuggi of her sister where from an

attache-case she got recovered a camera, wrist watch and her own

clothes. The said articles had been seized vide memo Ex. PW-6/A.

The attesting witness to this document PW-6 Sh. Shubhash Gupta

was an independent person who has confirmed this version on oath

in Court. The camera and the watch were subsequently identified

by PW-9 Basanti Devi wife of the deceased as belonging to the

deceased in TIP proceedings which had been conducted before

learned M.M. Sh.O.P.Gupta. The said TIP proceedings are Ex. PW-

9/B. Sh.O.P. Gupta, learned M.M. had been examined as PW-25.

29. On the same day i.e. 06.12.89, the accused had also got

recovered the clothes of the deceased from near a pulia of B-16

Sarvodaya Enclave i.e. a white colour pant, sky blue striped T-Shirt

and brown chappals. This recovery memo is Ex. PW-2/B and has

been attested by PW-6 Subhash Gupta and PW-2 Sh. Pradeep

Kumar Jain and both these witnesses have corroborated this

version on oath in Court. This wearing apparel of the deceased

was subsequently identified by the wife of the deceased PW-9 in

her version on oath in Court as the same clothes which the

deceased had been wearing on 21.11.89 when he had left the

house.

30. PW-8 Saroj Singh was the driver of PW-26 where the accused

was also working as a maid servant. He had on oath stated that

the deceased Virender Kazoor had been seen by him with the

accused two-three months before the incident. No cross-

examination of this witness had been effected. PW-23 Margret

was the aunt of the accused. She had not supported the case of the

prosecution but in her cross-examination on having been

confronted with certain documents relating to Laxmi Varsha

Company, she had admitted that the name of the deceased

Virender Kazoor was found mentioned at serial no.5 of the said

document, name of accused Shanti Lakra was mentioned at serial

no.7 and her name had been mentioned at serial no.6. PW-32, the

investigating officer ACP B.L.Meena had deposed that on 08.12.89

the accused in the presence of PW-23 had got recovered these

documents relating to Laxmi Varsha Company which had been

taken into possession vide Ex. PW-23/A. Although PW-23 had

denied this recovery yet she had admitted that these documents

contain her name as also the name of the deceased and that of the

accused. PW-19 a co-constable on duty with the deceased in Police

Station Mandir Marg had also testified that on 23.11.89 when the

deceased had left the Police Station he had stated that he would be

meeting Shanti Lakra.

31. These versions of PW-8, PW-23 and PW-19, thus, establish

that the accused and the deceased were known to each other and

as such the defence sought to be taken up by the accused that the

deceased was a total stranger to her is not borne out from the

record; in fact, this is a deliberate false plea which has been set

up by the accused for which an adverse inference has to be read

against her.

32. The credibility of the aforementioned witnesses has not been

impeached. Their ocular versions have been corroborated by the

documentary evidence which includes the medical opinion and the

scientific report. The fingers of guilt unerringly point towards the

accused; she appears to have no escape.

33. Prosecution has been able to establish that the accused

Shanti Lakra had committed the murder of the deceased Virender

Kazoor and after administering baygon tablets to him, he was

strangulated to death; she thereafter had dragged his dead body

into the underground water tank from where it was subsequently

recovered.

34. There is no merit in the appeal; it is accordingly dismissed.

35. The accused is reported to be on bail. Her bail bond and

surety bond are cancelled. The appellant shall surrender to

suffer the remaining sentence.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

July 20, 2009 Nandan