Raj Kumar @ Raju vs State
2010 Latest Caselaw 471 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved On: 14th January, 2010
                       Judgment Delivered On: 28th January, 2010

+                    CRL.APPEAL NO.769/2003

       RAJ KUMAR @ RAJU                              ......Appellant
                Through:        Mr.V.Madhukar, Mr.Parutosh Anil
                                and Mr.Jayendra, Advocates

                                 Versus

       STATE                                   ......Respondent
                     Through:   Mr.M.N.Dudeja, A.P.P.

       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.

1. The appellant has filed the above captioned appeal

challenging the judgment and order dated 6.5.2003 passed by

the Trial Judge convicting him for the offences punishable under

Section 302/392 IPC. For the offence of murder the appellant

has been sentenced to undergo life imprisonment and to pay a

fine in sum of Rs.5,000/- and for the offence of robbery

appellant has been sentenced to undergo rigorous

imprisonment for five years and to pay a fine in sum of

Rs.2,000/-.

2. Briefly stated, case of the prosecution is that

appellant Raj Kumar was employed as a domestic help at the

house of Mrs.Pushplata Correa and Dr.J.P.Correa i.e. at house

bearing Municipal No.I-10 Jangpura B, Delhi. In the evening at

around 7.30 PM on 22.6.1999, appellant Raj Kumar and juvenile

co-accused Sunil Kumar Ojha committed murder of Dr.J.P.Correa

and Mrs.Pushplata and also committed robbery of all the silver

and gold jewellery items in the house.

3. Process of criminal law was set into motion, when at

around 1.05 PM on 24.6.1999 information was received at PS

Hazrat Nizamuddin regarding foul smell emanating from House

No.I-10 Jangpura B, Delhi. It was recorded vide DD No.8A

Ex.PW-19/A. Copy of said DD was entrusted to SI Baldhar Singh

PW-25, who accompanied by HC Dharam Pal PW-18 and

Ct.Parshuram reached the spot. The first floor of the house was

found locked from outside. In the presence of Gurucharan Singh

PW-2 the owner of the house who resided on the ground floor, SI

Baldhar Singh broke open the lock of the first floor, and on

entering therein, found dead bodies of a man and a woman,

lying in a decomposed state. SI Baldhar Singh learnt that the

dead bodies were of Dr.J.P.Correa and his wife Mrs.Pushplata

Correa. He made an endorsement Ex.PW-25/A under the copy

of DD No.8A and sent the same for registration of an FIR. At

3.20 PM, SI Renuka PW-21, the duty officer at PS Hazarat

Nizamuddin registered the FIR Ex.PW-21/A for the offence of

murder. He summoned the crime team and a photographer.

4. After registration of the FIR, the investigations were

transferred to Insp.Gurucharan Dass PW-26, who also reached

the spot. He found a slip Ex.P-21 lying on the top of the fridge

of the house. On one side of the slip it was written 'NEPALI

LADKA MARA HAI. MARTEY SAMAY 24 TAARIKH NEPAL KA MAAR

KE CHALA GAVA' and on another side it was written 'MARTE

SAMAY CHITTHI LIKHA HAI' (We note that the said slip is not in

the Trial Court Record). Insp.Gurucharan Dass seized the said

slip and a one-lined notebook containing addresses of various

persons from the spot vide seizure memo Ex.PW-2/B. The said

notebook contained amongst others, an address in Bihar stated

to be that of appellant Raj Kumar.

5. Along with the inquest papers, Insp.Gurucharan Dass

sent the dead bodies to the mortuary of All India Institute for

Medical Sciences for post-mortem. On 25.6.1999, Dr.Prashant

Kulshreshtha PW-8, conducted post-mortem on the dead bodies

and prepared his reports Ex.PW-8/A and Ex.PW-8/B. PW-8 noted

the appearance of maggots on both the bodies indicating that

the bodies had started decomposing. PW-8 noted multiple

incised stab wounds in the face, neck and front of trunk regions

and opined the cause of death in both cases to be haemorrhagic

shock caused by multiple stab injuries which were sufficient in

the ordinary course of nature to cause death. The time since

death was opined to be 2 ½ to 3 days.

6. On the same day i.e. on 25.6.1999, Insp.Gurucharan

Dass constituted a police team consisting of SI Yashbir Singh

PW-22 and Const.Rishi Raj PW-16, to go to Bihar and visit the

house of the appellant as per address noted in the notebook

seized from the spot. SI Yashbir Singh and Const.Rishi Raj

reached Bihar on 26.6.1999 and with the assistance of the

officials of PS Raj Dhanwar, Bihar in the midnight of

26/27.6.1999 arrested appellant Raj Kumar from his house in his

native village being Village Ropa Mahua. On interrogation,

appellant made a disclosure statement Ex.PW-15/B, wherein he

confessed his involvement in the offence of murder of

Mrs.Correa and Mr.Correa and also disclosed the involvement of

his nephew Sunil Kumar Ojha. He further disclosed that he had

stolen silver and gold ornaments kept in the house and

produced a briefcase which was found to contain a number of

gold and silver ornaments; being a gold bangle, a gold necklace,

two gold chains with pendants, eight pairs of gold earrings, a

gold locket, seven gold rings, a gold saree pin, a set of silver toe

ring and anklet, a gold bracelet, a gold nose-pin, a silver ring, a

pair of silver earrings and a blood-stained silver coin. The same

were seized vide seizure memo Ex.PW-10/B. The appellant got

his nephew Sunil Kumar Ojha also arrested and from his

possession another bag containing silver and gold ornaments

was seized vide memo Ex.PW-22/A.

7. On 27.6.1999, on learning from SI Yashbir Singh

about the arrest of appellant Raj Kumar and the recovery of

gold and silver ornaments from his possession as also from Sunil

Kumar Ojha, accompanied by Ashish PW-3 and a key-maker

Idrish PW-1, Insp.Gurucharan Dass went to the first floor of

house No.I-10, Jangpura and got the almirahs in the house

opened with the help of duplicate keys prepared by PW-1. One

almirah was found to contain 5 empty boxes of jewellery.

Immediately Insp.Gurucharan Dass got added the offence of

Section 392 in the FIR.

8. SI Yashbir Singh brought appellant Raj Kumar and co-

accused Sunil Kumar Ojha to Delhi and on 29.6.1999 appellant

Raj Kumar led the police party to house No.I-10, Jangpura and

got recovered a handle Ex.P-2 of a knife which he stated was

the handle of the knife used in the commission of the offence.

The same was seized vide memo Ex.PW-2/F. Insp.Gurucharan

Dass prepared a sketch Ex.PW-2/A of the handle. Appellant and

co-accused also got recovered two glasses Ex.P-5 and Ex.P-6

which they stated were the glasses in which they drank water

after committing the offence. Appellant Raj Kumar further got

recovered one shirt which he stated was the shirt worn by him

at the time of the incident, from near a Ganda Nala, Machli

Market and the same was seized vide memo Ex.PW-2/H.

9. On 29.6.1999, appellant Raj Kumar and co-accused

were taken for TIP before Sh.Daya Parkash PW-17, Civil Judge,

but they refused to participate in the same. The jewellery

recovered from their possession was also put up for TIP. As per

the Test Identification Proceedings Ex.PW-17/F, Ashish PW-3 the

nephew of Mrs.Correa identified all the jewellery items

recovered from the possession of appellant Raj Kumar, except

three items, as belonging to the deceased. Helena PW-4 a part

time domestic help of the deceased couple also identified all the

jewellery recovered from the appellant Raj Kumar, except the

coins so recovered, as the jewellery of the deceased.

10. On 30.6.1999, appellant Raj Kumar made a

disclosure that he had thrown the keys of the house on the

railway line near Ashram Flyover. Appellant led the police party

and got recovered the key which was seized vide memo Ex.PW-

25/B.

11. From the glasses recovered at the instance of the

appellant and co-accused, ASI Subhash Chand PW-24 of the

Finger Print Bureau, lifted 9 finger prints as recorded in the

report Ex.PW-24/A. Insp.Gurcharan Dass obtained specimen

finger prints of the appellant and those of Sunil Kumar Ojha and

sent the same along with the chance prints lifted from the

glasses to CFSL. As per CFSL report Ex.PE some of the chance

prints were identical to the finger impressions of Sunil Kumar

and six chance prints being Q-5, Q-6, Q-7, Q-8A, Q-8B and Q-9

were identical with impressions of either of the fingers of

appellant Raj Kumar.

12. Insp.Gurucharan Dass also obtained the specimen

handwritings S-1, S-2, S-3 and S-4 of Sunil Kumar Ojha and sent

the same alongwith the slip Ex.P-21 recovered from the spot to

CFSL for comparison of handwritings. As per the report Ex.PD

the questioned writings and the specimens S-1, S-2, S-3 and S-4

appear to have been written by the same person.

13. Appellant Raj Kumar was put to trial and the

prosecution examined 26 witnesses. Since co-accused Sunil

Kumar was aged only 16 years at the time of commission of the

crime, he was tried by the juvenile court.

14. Since the instant trial concerns only the appellant we

note only the testimonies of Gurudarshan Singh PW-2, Ashish

Sarad PW-3, Helena PW-4, Madan Rai PW-15, Harvinder Singh

PW-20, SI Yashbir Singh PW-22, SI Baldhar Singh PW-25 and

Insp.Gurcharan Dass PW-26 being the only relevant witnesses,

since the learned Trial Judge has convicted the appellant on the

basis of last seen evidence emerging from the testimony of

Helena PW-4 and Harvinder Singh PW-20, the evidence of

recovery of jewellery emerging from the testimony of Madan Rai

PW-15 and SI Yashbir Singh PW-22, the identification of the said

jewellery by PW-3 and PW-4 and the note Ex.P-21 seized from

the spot by PW-25 and PW-26.

15. Gurudarshan Singh PW-2 deposed that on 24.6.1999

at about 2:30 PM when he was present at his residence on the

ground floor of the house bearing Municipal No.I-10, Jangpura,

police had gathered outside the first floor of the said house.

Police called him and in his presence broke open the lock of the

door and on entering the first floor, all saw the dead bodies of

Dr.Correa and Mrs.Correa, his tenants lying in the front room.

On the fridge, a slip was kept which read: 'mujhe nepali naukar

ne maara hai.' From the bedroom a single line notebook

containing addresses of persons who worked with Mrs. and

Mr.Correa or were their relatives was found and taken into

possession vide memo Ex.PW-2/B. On 29.6.1999 at about 8:30

AM police brought two accused with them and the accused got

recovered a handle of a knife, a kitchen knife, two glasses from

the house. Appellant Raj Kumar got recovered a shirt from near

a fish market. On being cross examined he admitted that he

had filed a civil suit against the deceased for getting the house

vacated, but no criminal proceedings were going on. He denied

that any dispute regarding supply of water was going on

between the deceased and him. He stated that he was a

graduate from Punjab University.

16. Ashish Sarad PW-3 deposed that Mrs.Correa was his

aunt and he often went for shopping of jewellery with her. In

December 1998 he stayed with Mr.Correa and Mrs.Correa for

10-15 days and at that time appellant Raju was employed by

them as a domestic help. On 24.6.1999, he learnt that

Mr.Correa and Mrs.Correa had been murdered (He produced

photographs of the family of Dr.Correa out of which in one

photograph appellant Raj Kumar can be seen). On 27.6.1999

the investigating officer summoned him at the house of

Dr.Correa and in his presence the locks of the almirah in the

house of the deceased were opened and empty jewellery boxes

were found. He witnessed the recoveries of handle of knife,

glasses and shirt at the instance of the appellant.

17. Helena PW-4 deposed that in the year 1998-99 she

was working as a part time domestic help at House No.I-10,

Jungpura, 1st Floor. She did not remember the names of those

who resided there, but she called them mataji and bauji.

Appellant Raju was also working as domestic help in said house

and till the time he was employed, she used to work at the

house only once a day. But after appellant Raju left the job, she

was called twice a day to work. On a Tuesday at around 6:00

PM when she was returning from Mother Dairy after purchasing

milk, appellant Raju was present in the house. She questioned

Raju as to why he stole Rs.10,000/- from the house and went

away, on which Raju answered that Mata Ji (Mrs.Correa) was

lying. On hearing this Mata Ji (Mrs.Correa) started abusing Raju

and a quarrel ensued. Sahab (Mr.Correa) also arrived in the

meantime, and she left. The next day when she visited the

house at around 10:00 or 11:00 AM, the house was found

locked. She thought that Mr.Correa and Mrs.Correa must have

gone to the Court in regard to their dispute pertaining to the

house with the landlord or to the house of some relative. She

left at that time and when she returned at around 12:00 PM the

next day, foul smell was coming in the staircase. Later on she

learnt that Mrs.Correa and Mr.Correa had been murdered.

18. Madan Rai PW-15 deposed that he was a chowkidar

at Village Gopa Mahua and that on 26.6.1999 police came from

Delhi and he accompanied the police to the house of the

appellant where appellant was found present and his personal

search memo Ex.PW-15/A was drawn up in his presence.

Appellant's disclosure statement Ex.PW-15/B was recorded in

his presence and that thereafter the appellant produced an

attachicase which was seized vide memo Ex.PW-10/B and from

within the same jewellery as recorded in the memo Ex.PW-10/B

was seized.

19. Harvinder Singh PW-20 deposed that he was a

resident of Lajpat Nagar and on 22.6.1999 after attending a

Congress Party Program he went to Jangpura to drop Talvinder

Marwah, MLA at his residence in Jangpura. At about 10:30 PM

when he was returning from the house of Talvinder Marwah in

Jungpura and was going to his car, he saw the appellant along

with another boy running from the stairs of House No.I-8 or I-10

Jungpura. In his cross-examination he stated that he was an

active member of the Delhi Youth Congress. He did not see the

appellant carrying any articles in his hands.

20. SI Yashbir Singh PW-22 deposed that on 25.6.1999

accompanied by SI Khalid Akhtar and Const.Rishi Raj he left for

Bihar and reached Bihar at 2:30 PM on 26.6.1999. They went to

PS Raj Dhanwar and with the assistance of the officials of PS Raj

Dhanwar and one chowkidar of village Ropa Mahua namely

Madan Rai went to the house of the accused and arrested

appellant Raj Kumar. He interrogated the appellant and

recorded his disclosure statement, whereupon the appellant

produced a briefcase containing gold and silver jewellery and

coin. Appellant led them to the arrest of co-accused Sunil

Kumar Jha from whose possession also a number of jewellery

items were recovered

21. SI Baldhar Singh PW-25 deposed that on 24.6.1999

he was assigned the investigation of DD No.8A. On reaching the

spot the house was found locked and in the presence of the

owner of the house Gurudarshan Singh he broke open the lock.

On entering the house he found the dead bodies of Dr.Correa

and Mrs.Correa lying there and he prepared endorsement under

the copy of DD No.8A and sent the same for registration of an

FIR. He summoned the crime team and the investigation

thereafter was transferred to Insp.Gurucharan Dass. On being

cross-examined he stated that he was not aware of any quarrel

or civil case going on between the deceased and the owner of

the house.

22. Insp.Gurucharan Dass PW-26 deposed that on

24.6.1999 at about 1:15 PM he received information about foul

smell coming from House No.I-10 Jungpura and he went to the

spot. He met SI Baldhar Singh PW-25 there and saw two dead

bodies of Dr.Correa and Mrs.Correa lying in the house. He

seized a slip from the top of the fridge which read 'nepali naukar

ne maara hai'. He also seized a one line copy containing

various addresses from the spot. He got the dead bodies

identified from the relatives of the deceased and after preparing

the inquest papers sent the bodies for post-mortem. A special

team was sent to Bihar to arrest the accused on the basis of the

address written in the note book seized from the spot. The

appellant was arrested and a number of ornaments of the

deceased were recovered from him. On learning about the

recovery of the ornaments, accompanied by Ashish PW-3 and a

key maker Idrish PW-1 on 27.6.1999 he went to House No.I-10

Jangpura and got the locks of the almirah opened with the help

of duplicate keys. The almirah was found to contain 5 empty

boxes of jewellery. The accused were brought to Delhi and

pursuant to their disclosures they got recovered a handle of the

knife and a knife used in the offence, two glasses and a shirt

worn by appellant Raj Kumar at the time of commission of the

offence. Later, on 30.6.1999 appellant Raj Kumar pursuant to

his disclosure got recovered a key of the house from the railway

line near Ashram Flyover which recovery was entered in the

memo Ex.PW-25/D. He obtained fingerprints of the accused and

sent the same with the chance prints lifted from the glasses

recovered at the instance of accused to CFSL. On being cross-

examined he stated that when the lock of the almirah was

opened, apart from him, Ashish, Gurudarshan, Mahesh, Idrish

and Gambhir were present. He denied the suggestion that the

jewellery was planted by him on the appellant. He admitted

that a dispute between landlord and tenant regarding supply of

water was going on and that even an exchange of hot words

had taken place over the issue of installation of water pipe line

between the deceased and Gurudarshan, but he denied

receiving any complaint at the police station regarding the

same.

23. In his examination under Section 313 Cr.P.C.,

appellant stated that he was innocent and that since a dispute

was going on between Gurudarshan Singh PW-2 the land lord of

the deceased, and the deceased over water and electricity

supply as also over the vacation of the premises, Gurudarshan

Singh was the probable culprit. He admitted that he was

employed with the deceased but stated that he had gone to his

village to attend a marriage, but in the village he fell ill because

of which he could not return thereafter.

24. Vide impugned judgment and order dated 6.5.2003,

Learned Trial Judge has convicted the appellant for the offences

punishable under sections 302/392 IPC. In doing so, reliance

was placed on the last seen evidence emerging from the

testimony of Helena PW-4, the evidence of Harvinder PW-20 of

seeing the appellant running away from house No.I-10 Jangpura

at about 10.30 PM on 22.6.1999, the evidence of recovery of

jewellery from the possession of the appellant at the time of his

arrest as deposed by SI Yashbir Singh PW-22, Ct.Rishi Raj PW-16

and Madan Rai PW-15 and the same jewellery being identified

by PW-3 and PW-4 as the jewellery of the deceased in Test

Identification Proceedings Ex.PW-17/F and the recovery of

handle of a knife Ex.P-2 at the instance of the appellant from

the house, which he stated was the handle of the knife used by

him in commission of the offence. Another circumstance relied

upon by the learned Trial Judge in convicting the appellant was

the slip Ex.P-21 recovered from the spot, which reads 'Nepali

ladka maara hai'. Learned Trial Judge has noted on page 50 of

the impugned judgment that as per the report of the

handwriting expert, the slip was in the hand of the deceased.

Lastly, the learned Trial Judge has held that the recovery of the

key of the house pursuant to the disclosure statement made to

Insp.Gurucharan Dass, the recovery being as per memo Ex.PW-

25/D was another piece of incriminating evidence.

25. It is unfortunate that the Learned Trial Judge has

failed to correctly appreciate the evidence pertaining to the

report Ex.PD of the handwriting expert, inasmuch as we note

that the report Ex.PD of the handwriting expert notes:

"Handwriting evidence points to the writer of the specimen

Hindi writings marked S-1 to S-4 being the person responsible

for writing the questioned Hindi writings marked Q-1 and Q-2."

We note that the specimen handwritings S-1 to S-4 are not the

specimens of handwriting of either of the deceased, but are the

specimens of handwriting of juvenile co-accused Sunil Kumar.

We are unable to comprehend as to how learned Trial Judge has

reached the conclusion that the slip was written by the

deceased. On the contrary, the evidence of handwriting expert

is unambiguous that the slip was written by co-accused Sunil.

Since we are not concerned here with the co-accused Sunil

Kumar, who as afore-noted was tried by the Juvenile Court, the

evidence of the handwriting expert has to be ignored. In any

case, since there is no evidence that the specimen handwriting

of Sunil Kumar were taken with the permission of the Court i.e.

in compliance with the provisions of Identification of Prisoners

Act 1920 the said report would become inadmissible as

evidence even against Sunil Kumar. Pertaining to the key of the

house claimed to have been recovered at the instance of the

appellant, we note that there is no evidence to link the key with

the lock of the house. No witness of the prosecution has

deposed that using the key, the lock to the main door of the

house was opened. It is apparent that the learned Trial Judge

has admitted in evidence the confessional statement of the

appellant that the key in question was that of the lock of the

house. This confessional statement is inadmissible in evidence.

What is admissible in evidence is that pursuant to the disclosure

statement made by the appellant to Insp.Gurucharan Dass he

led the police to a spot not known to the police and got

recovered a key. Had the prosecution led further evidence to

link the key to the lock of the house, only then could it be said

that there was incriminating evidence of the appellant having

knowledge of the spot where the key of the lock of the house

was lying. Further, with reference to the arguments advanced

by learned counsel for the appellant pertaining to the chance

finger prints of the appellant purportedly lifted from a glass

tumbler in the house after the appellant was apprehended, for

the reason while obtaining the alleged specimen chance finger

print impressions of the appellant, provisions of The

Identification of Prisoner's Act 1920 were not followed, in that,

no orders were obtained from the competent Court and the

prisoner was not identified as required by law, the incriminating

evidence pertaining to the report Ex.PE of the finger print expert

has to be ignored.

26. At the hearing of the appeal, learned counsel for the

appellant urged that as stated by appellant in his examination

under Section 313 Cr.P.C., the appellant was innocent and since

Gurudarshan Singh PW-2 was having dispute with the deceased

on the issue of vacation of premises of PW-2 and also on the

issue of water and electricity supply, there was high probability

that PW-2 committed the murder of Mrs.Correa and Dr.Correa

and thereafter falsely implicated the appellant as the appellant,

having served the deceased as a domestic help, was an easy

scapegoat. Counsel urged that the investigating officer was

obliged to investigate the matter keeping in view the aforesaid

fact and he having not so done, investigation was tainted.

27. Counsel urged that the deposition of Harvinder Singh

PW-20 of having seen the appellant running away from the stair

case of the house of the deceased does not inspire confidence,

for two reasons; firstly Harvinder Singh is not a resident of

Jangpura, so his presence there is doubtful and secondly that at

10.30 PM in the night, persons walking or running on the street

would usually go unnoticed by persons not known to them.

Harvinder Singh PW-20 did not know the appellant. Even if he

would have come across someone running on the street, it was

unlikely that he would be able to recollect his face to be able to

identify him later on, in the court. In this view of the matter,

counsel urged that it was more probable that PW-20 was a

planted witness.

28. Highlighting that Insp.Gurucharan Dass PW-26 has

stated that on 29.7.1999, he went to the spot and with the help

of duplicate keys made by a key-maker Idrish PW-1, opened the

almirahs in the house of the deceased, counsel urged that in

view of the afore-noted admission by PW-26, the possibility of

PW-26 taking out the jewellery from the almirah of the deceased

at that time and planting the same upon the appellant cannot

be ruled out.

29. Counsel urged that the chance prints lifted from the

tumblers recovered at the instance of the appellant do not

inspire confidence as PW-25 categorically stated that he

summoned the crime team, but the crime team could not lift

any chance prints. Thus, counsel urged that the chance prints

lifted from the tumblers were not there at the time of recovery

of the dead bodies and were planted later on to implicate the

appellant. Counsel further urged that in any case the evidence

of matching of finger impressions of the appellant with those

lifted from the tumblers recovered from the spot at the instance

of the appellant are inconsequent as the finger impressions of

the appellant were not taken in compliance with the provisions

of the Identification of Prisoners Act 1920. Counsel urged that

in light of the law laid down in the decisions reported as 1994

(5) SCC 152 Sukhvinder Singh & Ors. Vs. State of Punjab, AIR

1980 SC 791 State of U.P. vs. Rambabu Mishra AIR 2003 SC

4377 State of Haryana vs. Jagbir Singh & Ors. the same need to

be excluded.

30. Pertaining to the defence raised by appellant in his

examination under Section 313 Cr.P.C. that Gurudarshan Singh

PW-2 was having dispute with the deceased and therefore he

was the probable assailant, we note that Gurudarshan Singh

PW-2 has stated in his cross-examination that he has filed a civil

suit for getting the premises vacated, but no criminal

proceedings were pending for the same. We further note that

all throughout the investigation, Gurudarshan Singh PW-2

cooperated with the police officials. He was present when the

police first arrived on getting information about foul smell

emanating from the house and the lock of the door was broken

in his presence as deposed to by SI Baldhar Singh PW-25. He

was a witness to the seizure memos Ex.PW-2/G of the glasses,

Ex.PW-2/F of the handle of knife and Ex.PW-2/H of the shirt

recovered at the instance of the appellant on 29.6.1999. Had

Gurudarshan Singh been the real culprit, he would not have

cooperated with the police officials during investigation.

Instead, he would have made all efforts to shrug off the

investigation.

31. Though Insp.Gurucharan Dass stated in his cross-

examination that there was dispute between the landlord and

the deceased regarding supply of water and that an exchange

of hot words also took place between the deceased and the

owner of the house with regard to the installation of a water

pipe line, but he categorically stated that no complaint

regarding the same was received in the police station from the

deceased. The afore-noted suggests that though there was

some dispute pertaining to either water supply or to the

possession of the land belonging to PW-2, but no criminal

proceedings were pending in relation to the same. From the

facts of the instant case, it is evident that the deceased and

landlord PW-2 belonged to an economically sound stratum of

the society and were educated people as the deceased was a

doctor and PW-2 admitted that he was a graduate from Punjab

University. It is not expected out of people of such credentials

to go about killing each other over minor disputes pertaining to

supply of water or vacation of premises. In any case there is no

evidence, apart from traces of a motive emerging from a

dispute between PW-2 and the deceased couple, to substantiate

the defence of the appellant that it was PW-2 who committed

the crime and the said defence is based on mere conjectures

which cannot be accepted. In effect the contention that there

was a possibility of PW-2 committing the murder and falsely

implicating the appellant is rejected.

32. As far as Harvinder Singh PW-20 is concerned, true

that he is not a resident of the locality and is not expected to be

present in the locality at 10.30 PM in the night. But, this does

not rule out his being at all present in Jangpura. PW-20 has

clearly stated that he was there to drop one Talvinder Marwah

at his residence and when he was returning from the house of

Talvinder Marwah to his car, he saw the appellant and another

boy running. We do not find any merit in the contention that

Harvinder Singh PW-20 was a planted witness, for the reason, if

police intends to plant witnesses to depose against the accused,

it would be those who are vulnerable to being influenced by the

police, for instance people illegally selling vegetables on the

pavements, auto-rickshaw or riskshaw drivers not having license

to drive in a particular area, vagabonds, etc. Such people due

to their humble backgrounds would easily succumb to the

pressure exerted upon them by the police. People such as

Harvinder Singh PW-20, who is an active member of the Delhi

Youth Congress, are not susceptible to being influenced by

police. People such as him would rather be themselves

influential enough to influence police officials, than being

influenced by them. We may add, that no motive for PW-20 to

depose falsely has been pleaded by the defence. For said

reason, his being a planted witness is ruled out.

33. Even if we ignore the testimony of PW-20, we have

the evidence of Helena PW-4 who deposed of having seen the

appellant at the house of the deceased, a day prior to her

finding the house of the deceased locked from outside and two

days prior to the recovery of the dead bodies of the deceased

from their house. PW-4 stated that she was employed as a part

time domestic help and appellant was employed as a full time

domestic help with the deceased but sometime prior to the

incident the appellant had left the job. Since his leaving the job,

she was required to go to the house of the deceased twice a day

to work. She further deposed that one evening when she went

to the house of the deceased, she saw the appellant there. On

her asking the appellant as to why he stole money of the

deceased, a quarrel had ensued between the appellant and the

deceased couple. She had left in the middle of the quarrel.

Next day when she returned, she found the door of the house

locked from outside and a day later when she returned, foul

smell was emanating from the house of the deceased. It is not

in dispute that Helena PW-4 worked as a part time domestic

help with the deceased. She was therefore the most natural

witness and we see no reason to disbelieve her on the part that

she saw the appellant with the deceased two days prior to the

recovery of the decomposed dead bodies of the deceased.

34. The line of cross-examination of PW-2, PW-25 and

PW-26 by the counsel for the accused, regarding a dispute

between the landlord PW-2 and the deceased couple, indicates

the personal knowledge of the appellant regarding the

existence of such a dispute. This further adds credibility to the

testimony of PW-4, that the appellant was employed with the

deceased. Now, whether he continued to be employed with the

deceased couple at the time of their death or he left their

services prior to their death, may require some deliberation;

but having believed PW-4 on that the appellant was a full time

employee of the deceased, we see no reason to disbelieve PW-4

on that the appellant had left the job, prior to her seeing him at

the house of the deceased. However, that he had left the job, is

insufficient to cast any doubt on his presence in the house of

the deceased on 22.6.1999 and discredit the last seen evidence

given by PW-4, because there may be a number of reasons for

the appellant returning to the house of the deceased. It has

come in the evidence of PW-4 that no other full time domestic

help had been employed by the deceased. It could be that

appellant wanted to again join the deceased or it could be that

he visited the deceased merely to pay regards to the deceased

or to collect any of his belongings kept in the house of the

deceased since the time he was employed there. In any case,

we need not contemplate as to why he returned to the

deceased as it is irrelevant. But, for the reasons afore-noted,

we find the evidence of last seen emerging from the testimony

of PW-4, worthy of full credence.

35. Turning to the admission by Insp.Gurucharan Dass

PW-26 that on 27.6.1999 he went to the spot and with the help

of duplicate keys prepared by a key-maker Idrish PW-1 opened

the almirahs in the house of the deceased, we note that PW-26

explicitly states that he got the almirahs opened only after

learning about the recovery of the jewellery from the possession

of the appellant. Obviously, he did so to confirm whether the

jewellery so recovered belonged to the deceased couple or not.

In any case, since the appellant was arrested in Bihar by the

midnight of 26/27.6.1999 and the jewellery was recovered from

him by early morning of 27.6.1999, as deposed to by PW-22,

PW-15 and PW-16, there was no scope for PW-26, to have

visited the house of the deceased in Delhi, on 27.6.1999, i.e.

after the recovery of the ornaments from the appellant, and

thereafter to have planted upon the appellant, any jewellery

recovered by him on unlocking the almirahs therein. In fact

Inspector Gurucharan Dass PW-26 has admitted that from the

almirahs, 5 empty jewellery boxes were found. We note that

PW-26 is not the sole witness deposing about the empty

jewellery boxes, but he is corroborated by Ashish PW-3 who in

his cross-examination stated that the locks of the almirah were

opened in his presence and empty jewellery boxes were found.

Ashish PW-3 is a nephew of the deceased and we see no reason

why he should depose falsely to corroborate the evidence of

Insp.Gurucharan Dass PW-26.

36. Now, the recovery of such huge quantity of jewellery

from the appellant at the time of his arrest is not doubtful as the

same has been supported by three witnesses; being SI Yashbir

Singh PW-22, Ct.Rishi Raj PW-16 and Madan Rai PW-15. The

appellant nowhere in his defence claims to own the jewellery

recovered from him. The fact of said jewellery being identified

by Ashish PW-3 and Helena PW-4 in the test identification

proceedings conducted by Sh.Daya Prakash PW-17, as the

jewellery of the deceased, proves that the jewellery recovered

from appellant belonged to the deceased. No plea suggesting

that the deceased themselves gave the jewellery to the

appellant has been raised. This being so, the only inference that

can be made is that the appellant stole the jewellery from the

house of the deceased.

37. We ignore the evidence of recovery of handle of knife

at the instance of the appellant, for the reason whether the

knife was the one used in the offence or not, cannot be

positively stated, as only the handle has been recovered and

the blade of the knife has not been recovered. Even if the blade

had been found, the doctor would at best have opined that the

knife was the possible weapon of offence and nothing more. In

any case, since the post-mortem report was available with the

investigating officials prior to the recovery of the handle of knife

and the report clearly stated that the cause of death was

multiple stab injuries, the possibility of the recovery of the

handle of knife being fabricated to strengthen the evidence

against the appellant, cannot be ruled out. We therefore

exclude said piece of evidence.

38. To summarize, we hold that from the evidence of

Helena PW-4 and ignoring the testimony of Harvinder Singh PW-

20 it stands proved that the appellant was in the house of the

deceased in the evening of 22.6.1999. The deceased were not

seen alive thereafter. The post-mortem reports of the deceased

establishes that they were killed somewhere in the late evening

or night of 22.6.1999. From the testimony of Madan Rai PW-15

and SI Yashbir Singh PW-22 it stands proved that gold and silver

jewellery was recovered from the house of the appellant. From

the testimony of Helena PW-4 and Ashish PW-3 it stands proved

that the said jewellery belonged to the deceased. The recovery

of the fruits of the crime link the appellant to the crime itself.

Thus, ignoring other evidence held incriminating by the learned

Trial Judge, we hold that there is sufficient evidence wherefrom

guilt of the appellant can be inferred.

39. The appeal is dismissed.

40. Since the appellant is still in jail we direct that a copy

of our decision be sent to the Superintendent, Central Jail, Tihar,

to be made available to the appellant.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE JANUARY 28, 2010 mm / dk