Bhairo vs State
2010 Latest Caselaw 883 Del

R-73 to 76
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision: 16th February, 2010

+                            CRL A 68/2006

       BHAIRO                                       ..... Appellant
                      Through:      Mr.Sudhakar Singh, Advocate for
                                    Ms.Rakhi Dubey, Advocate

                                    versus

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

                             CRL A 466/2005

       SITA                                        ..... Appellant
                      Through:      Ms.Shraddha Bhargava, Advocate

                                    versus

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

                             CRL A 504/2005

       SHYAM RAJ SINGH                             ..... Appellant
                Through:            Ms.Shraddha Bhargava, Advocate

                                    versus

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

                             CRL A 457/2005

       SHANKER @ RAMRAJ SINGH          ..... Appellant
               Through: Ms.Shraddha Bhargava, Advocate

                                    versus

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

Crl.A.Nos.68/2006, 466/2005, 504/2005 & 457/2005           Page 1 of 15
        CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     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

PRADEEP NANDRAJOG, J. (Oral)

1. Noting that counsel appears only for Bhairo and

none appears for any other accused, we appoint Ms.Sharddha

Bhargava Advocate who is present in Court as the Amicus

Curiae on behalf of appellants Sita, Shyam Raj Singh and

Shanker. We fix her fee in sum of Rs.7,500/-, to be paid by the

Delhi High Court Legal Services Committee.

2. Arguments have been heard.

3. We proceed for judgment.

4. 12.12.2000 was a most unlucky day in the life of

Late Smt.Gursharan Kaur. She was a happy housewife living

with her husband Shehbaz Singh PW-1 and her children on the

first floor of house bearing Municipal No.A-16, Mansarover

Garden, Delhi.

5. As per his daily schedule, Shehbaz Singh left his

house for his factory at around 11:30 AM. His son Inderpal

Singh and daughter Harpreet Kaur had already left for school.

His elder son Amitpal Singh had departed for the factory

before Shehbaz Singh left for the factory.

6. Inderpal returned from school at around 2:30 PM

and got no response in spite of ringing the door bell for

considerable time. He contacted his father and informed him

of getting no response from inside. Shehbaz advised him to

wait for his mother at the house of his brother, thinking that

probably Gursharan Kaur may have gone somewhere. At

around 4:30 PM his brother's wife rang up to enquire whether

his wife had told him that she would be visiting some place.

Shehbaz replied in the negative. Sensing something amiss he

requested his sister-in-law to break the windowpane and enter

the house and find out what the matter was. Within 5 minutes

he received a call back informing that a mishap had taken

place in his house. Obviously, he understood what the mishap

was. It had to do something concerning his wife. He reached

home and found his wife murdered.

7. Information was given to the police and noted at

the police station Kirti Nagar. Insp.Babu Lal PW-18 was

handed over copy of DD No.15A, Ex.PW-12/A, and

accompanied by SI Deepak Malik and SI Vijay he reached the

first floor of A-16, Mansarover Garden and found a lady named

Gursharan Kaur lying dead on the floor with slit injuries on her

throat as also stab injuries on the various parts of the body.

Shehbaz Singh PW-1 the husband of the deceased identified

himself and make the statement Ex.PW-1/A in which he named

no suspect but stated that only yesterday he had brought cash

from Gwalior which he had kept in his house and that when he

came to his house he found the door of the almirah opened

and the cash was missing. He also found that some jewellery

of his wife was missing, details whereof he volunteered to give

later on.

8. Making an endorsement Ex.PW-18/A beneath the

statement, Ex.PW-1/A FIR was got registered by Insp.Babu Lal

who summoned the crime team, a photographer and the dog

squad. In the meanwhile he prepared the rough site plan

Ex.PW-18/B. He recovered a chura from the room where the

crime was committed. He also lifted blood sample of the

deceased and blood stained shawl and a rumal which was

seized vide memo Ex.PW-10/A. Sketch Ex.PW-18/C of the

chura was drawn. He initiated the inquest proceedings by

filling up the requisite documents Ex.PW-18/D and Ex.PW-18/E

and along with letter of request Ex.PW-18/F sent the dead

body for post-mortem.

9. The dog squad could pick no clues. The crime team

lifted some chance prints, which later on, with reference to the

fingerprints of one Lalji and Raj Kumar were opined to be

theirs.

10. The first person to be apprehended was Shanker @

Ramraj Singh. How he became a suspect has not surfaced. As

claimed by the investigating officer on the basis of secret

informer giving him some information Shanker was

apprehended the next day i.e. on 13.12.2000.

11. Thereafter appellant Sita was apprehended on the

same day. Raj Kumar was the next to be apprehended on

15.12.2000 followed by Shyam Raj who was apprehended on

18.12.2000 and lastly Bhairo who was apprehended on

22.12.2000. A juvenile co-accused Lalji whose date of

apprehension is not on record was also arrested and he was

sent for trial before the Juvenile Board.

12. After Shanker was apprehended he made a

disclosure statement Ex.PW-18/G and took the investigating

officer to his jhuggi bearing No.442, Nehru Camp and from

inside the jhuggi got recovered 5 articles which were seized as

recorded in the memo Ex.PW-18/H being: (i) Blood stained

Handkerchief Ex.P-66 (ii) Shampoo bottle Ex.P-60 (iii) Ladies

wrist watch Ex.P-62 (iv) Blood stained Cash Rs.6000/- (6 x

Rs.100/-) Ex.P-65 and (v) Blood stained Ladies Bra Ex.P-70.

13. It may also be noted that the wrist watch which has

been recovered is in a non-working condition showing the time

10 minutes past 2 as recorded in the seizure memo Ex.PW-

18/H.

14. Sita made the disclosure statement Ex.PW-18/K and

from her jhuggi A-157, Nehru Camp got recovered blood

stained cash in sum of Rs.4,700/- Ex.P-67 as entered in the

seizure memo Ex.PW-18/L.

15. At the time of Shyam Raj's arrest, his personal

search yielded recovery of 14 items of gold jewellery which

were seized as recorded in the memo Ex.PW-17/A. Pursuant to

his disclosure statement Ex.PW-17/B he led the police to his

jhuggi at Nehru Camp and got recovered a pant and a shirt

Ex.P-68 which were seized vide memo Ex.PW-17/C.

16. After Bhairo was arrested he made a disclosure

statement Ex.PW-18/N and led the police to jhuggi No.A-157

(the same jhuggi where his mother Sita had led the police to

on 13.12.2000), and on 22.12.2000 Bhairo got recovered a

VCR Panasonic make Ex.P-61 as also a blood stained Pajama

and shirt Ex.P-69 which were seized vide memo Ex.PW-18/P.

17. Co-accused Raj Kumar also made a disclosure

statement after he was apprehended on 15.12.2000 and got

recovered a fair amount of gold jewellery which was seized.

18. We are not noting the exhibit marks pertaining to

the disclosure statement and recoveries got effected by Raj

Kumar for the reason during evidence it was established that

he was a juvenile and therefore after convicting him, for

purposes of sentence, the learned Trial Judge referred his case

to the Juvenile Justice Board.

19. What happened to the fate of Raj Kumar is not

known. Raj Kumar has not preferred any appeal.

20. Thus, we have two juvenile accused namely Raj

Kumar and Lalji regarding whom we have to deal with nothing

while deciding the instant appeals.

21. To complete the narratives and the proof of

incriminating evidence against the accused it may be noted

that Smt.Manjeet Kaur PW-6, the sister-in-law of the deceased

participated in the TIP proceedings conducted during

investigation before Sh.Sanatan Prasad PW-19 and as per the

record of TIP proceedings Ex.PW-19/A successfully identified

the jewellery which was recovered as also the shampoo bottle

Ex.P-60 and the ladies wrist watch Ex.P-62, both of which have

been shown as recovered pursuant to the disclosure statement

of Shanker. She also identified them when she appeared as

PW-6.

22. We may note that as per evidence led, Sita had

been employed as a domestic help by the family of the

deceased and Bhairo is her son.

23. As per the prosecution Shanker, Raj Kumar, Shyam

Raj and Lalji participated in the crime at the behest of Bhairo

and Sita who were aware that there was a lot of money and

the jewellery lying in the house.

24. As noted in para 9 above, chance fingerprints lifted

from the house matched those of Raj Kumar and Lalji. Other

unidentified chance prints did not match those of any other

accused.

25. Since we are not concerned with Raj Kumar and

Lalji we ignore the incriminating evidence pertaining to the

lifting of the chance fingerprints as the same relates to Raj

Kumar and Lalji.

26. The only other incriminating evidence which we

need to notice is the report of the serologist Ex.PX as per

which human blood of group AB i.e. the group of the deceased

was detected on all the blood stained articles recovered from

the spot or from the person of the deceased or on such blood

stained article which was recovered pursuant to the disclosure

statements made by the accused, save and except a pant

Ex.11-B and nail clippings Ex.2 of the deceased.

27. It is apparent that the learned Trial Judge, and

indeed it is the reasoning given by the learned Trial Judge, has

returned a finding of guilt against the appellants holding that

the recoveries effected pursuant to the disclosure statements

of the appellants were proved to be articles which were stolen

when the crime was committed. Since the appellants were

found to be in possession of a part of the fruit of the crime, the

learned Trial Judge has held that the same establishes the

involvement of the appellants in the crime.

28. Learned counsel for appellant Sita urges that the

recovery of Rs.4,700/- at her behest is a planted recovery. In

any case, learned counsel urges that the question of anybody

proving that said notes were stolen property does not arise.

Counsel urges that there is no evidence to show with reference

to the numbers on the notes that it stands proved that they

were in the house of the deceased.

29. Learned counsel for Bhairo urges that it is strange

that recovery of money was made on 13.12.2000 from the

jhuggi No.A-157, Nehru Camp and the police recovered

nothing more. Counsel urges that Bhairo is the son of Sita and

the possibility of the VCR Ex.P-61 being shown as a planted

recovery on 22.12.2000 is within the realm of a possibility.

30. Learned counsel arguing the appeal for Shanker

urges that it is surprising that an ordinary bottle of shampoo

Ex.P-60 could be identified by the sister-in-law of the deceased

as belonging to the deceased. Counsel urges that why would

Shanker pick up blood stained handkerchief and a ladies bra.

Counsel wondered as to why would Shanker steal a shampoo

bottle. Counsel urges that Rs.600/- got recovered from

Shanker have not been proved as stolen money and for the

logic of the argument, learned counsel urges the same as that

urged pertaining to the recovery of money as the behest of

Sita.

31. Arguing the appeal for Shyam Raj from whom 14

jewellery items consisting of ear tops, bangles and payjabes

have been effected, learned counsel urges that their

recoveries on 18.12.2000 are far removed from 12.12.2000

and possibly could be planted.

32. From a perusal of the evidence led we note that

very heavy recoveries of stolen property has been effected

from Raj Kumar and Shyam Raj as also from Lalji.

33. The proof of the jewellery belonging to the

deceased, is the test identification conducted by the sister-in-

law of the deceased, who also identified the stolen jewellery

when she deposed in Court as PW-6.

34. We are satisfied with the proof of the jewellery in

question being proved to be that of the deceased. We are

satisfied with the purity of the recoveries pertaining to the

jewellery at the instance of Shyam Raj. We eschew any

reference to Raj Kumar and Lalji whose appeals are not before

us.

35. The reason why Raj Kumar and Lalji appear not to

have filed any appeal is that they were juvenile and as per law

the maximum period for which they could be kept in

observation in a children's home is 3 years.

36. Thus, there is no merit in the appeal filed by Shyam

Raj notwithstanding the fact that the recoveries effected from

him are on 18.12.2000. As noted above the recovery was on

his personal search when he was arrested.

37. It is settled law that where the value of the stolen

articles is heavy, it leans towards a presumption that the same

is the fruit of the crime and not that the accused has

subsequently acquired the same through somebody else.

38. Shyam Raj lives in a jhuggi and is not expected to

purchase 14 gold jewellery articles. In any case, it was a fact

with his special knowledge as to how he acquired the same.

He has not discharged the said duty by telling the Court the

source of his acquisition.

39. Qua Shanker, we find merit in the submission as to

why would he steal a blood stained handkerchief and a ladies

bra, both useless articles. We see no reason why he would

keep them knowing their incriminating value but no money

worth. We also wonder wherefrom the sister-in-law of the

deceased could have identified the shampoo bottle Ex.P-60 as

that of her sister. We find no evidence of there being any

distinctive mark on the shampoo bottle.

40. No doubt the sister-in-law of the deceased, has

during TIP proceedings, identified the ladies wrist watch Ex.P-

62 as belonging to the deceased and also when she deposed

in Court, but noting that there is no evidence of the said ladies

wrist watch having any distinct characteristics as also the

disproportion in the value of the booty recovered (maximum

recoveries being from Raj Kumar, Shyam Raj and Lalji) we are

of the opinion that Shanker deserves to be given the benefit of

doubt of either being a recipient of the wrist watch which he

may have unknowingly acquired or the same being planted

upon him. We would be failing if we do not note that

pertaining to the TIP proceedings, whereas relatable to the

VCR Ex.P-61 it has been recorded that the same was mixed up

with those other similar VCRs, in respect of the ladies wrist

watch it has not been so mentioned. The only expression used

is that similarly the ladies wrist watches have been mixed up.

It is also relevant to note that the wrist watch was not even in

a working condition.

41. Qua appellant Bhairo, the only recovery shown at

his instance is that of the VCR Ex.P-61. Bhairo was arrested on

22.12.2000 on which day he not only made the disclosure

statement but got recovered the VCR. The place wherefrom

the VCR was recovered is jhuggi No.A-157, the same jhuggi

wherefrom on 13.12.2000 i.e. 9 days prior the police had made

a recovery of Rs.4,700/- at the instance of Sita who is the

mother of Bhairo. There is evidence that the police has

accessed the jhuggi on 13.12.2000. The police was

investigating an offence of dacoity cum murder and obviously

would be looking for the stolen property. A presumption would

arise that the jhuggi was searched on 13.12.2000; in any case,

it cannot be said that it would be preposterous to presume

that the jhuggi was searched on 13.12.2000. Thus, Bhairo

would be entitled to a benefit of doubt with respect to the

recovery of the VCR Ex.P-61 and since there is no other

evidence against him, would be entitled to be acquitted by

giving him the benefit of doubt.

42. Pertaining to recoveries, the law is that as the

recovery becomes distant in the past the possibility of the

same being acquired by the possessor other than by way of

fruit of the crime cannot be ruled out and thus recoveries

which move further away in point of time vis-à-vis the date of

the offence get diminished in their incriminating character and

that recoveries of cheap articles are less incriminating as

these articles are likely to change hands very quickly. Thus,

both aspect i.e. how distant away is the date of the recovery

and what is the value of the article recovered have to be kept

in mind. Where the recovery is of a valuable which cannot be

expected to be acquired by the accused, unless the accused

explains, notwithstanding the recovery being far removed from

the date of the crime, its incriminating evidence would be of

high degree.

43. Crl.A.No.68/2006, Crl.A.No.466/2005 and

Crl.A.No.457/2005 are allowed.

44. Crl.A.No.504/20005 is dismissed.

45. Noting that appellant Sita and appellant Shanker

who have been acquitted are on bail we discharge the bail

bond and surety bonds furnished by them.

46. Noting that Bhairo is still in custody we direct that

copy of this order be sent to the Superintendent Central Jail

Tihar with a direction that Bhairo would be released forthwith if

not required in custody in any other case.

47. Since Shyam Raj Singh has been convicted, he

being on bail, his bail bond and surety bond are cancelled.

Shyam Raj Singh would be taken into custody and he would

suffer the remaining sentence.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

February 16, 2010 mm