Delhi High Court
Bharat Bhandari & Anr vs State Govt Of Nct Of Delhi on 3 August, 2012
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 17th JULY, 2012
DECIDED ON : 3rd AUGUST, 2012
+ Crl.A.227/2011
BHARAT BHANDARI & ANR. ....Appellants
Through : Ms.Anu Narula, Advocate.
versus
STATE GOVT. OF NCT OF DELHI ....Respondent
Through : Ms.Richa Kapoor, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The appellants Bharat Bhandari (A-1) and Pradeep Dutta @
Bappi Dutta @ Bengali (A-2) have preferred the present appeal against
the judgment dated 28.01.2010 and order on sentence dated 02.02.2010 of
learned Additional Sessions Judge in SC No.57/2009 by which they were
convicted for committing the offences punishable under Sections
302/392/34 IPC and sentenced to undergo imprisonment for life with a
fine of `10,000/- each under Section 302/34 IPC and rigorous
imprisonment for ten years with a fine of `5,000/- each under Section
392/34 IPC. Both the sentences were to operate concurrently. Briefly, the
facts of the prosecution case are as under :
2. Lt.General Harnam Singh Seth (retired) aged 85 years and
his wife Smt.Roop Seth aged 82 years were resident of Flat No.272,
Vasant Enclave, Vasant Vihar. On 20.06.2004 at about 11.10 A.M. on
getting information of their murder, DD No.11A (Ex.PW-13/C) was
recorded at police station Vasant Vihar. The investigation was assigned to
ASI Ram Nath who with Const. Ram Kesh reached the spot and found
two bodies of a male and female having head injuries in the bedroom on
the first floor. The house-hold articles were found scattered. Insp.Narayan
Singh reached the spot. No eye witness was available at the spot. He sent
rukka (Ex.PW-36/B) for lodging First Information Report (FIR). He
prepared the site plan; sent the bodies for post-mortem examination;
seized two elephant tusks, blood stained clothes, brick, iron churi, iron
pipe, iron angle, pair of chappal, one foot print and prepared necessary
seizure memos.
3. On 21.06.2004, Insp.Beer Singh, SHO took over the
investigation. During the investigation, Sohan Singh (brother-in-law of A-
1) received A-1‟s telephone call on mobile from Gorakhpur. The IO faxed
message along with photographs of the accused (A-1 and A-2) to SSP,
Gorakhpur to apprehend the suspects. The police from PS Purandar Pur
(UP) succeeded to apprehend A-1. On search, a purse containing `1,600/-;
other cash `4,500/-, Motorola mobile set, two medals (one of gold colour
and the other of white colour), two cuff links (of gold colour) were
recovered from his possession. On checking the attachee-case, it was
found containing `2,500/- and ladies suits. The accused was also found
wearing Rado watch. On interrogation, A-1 confessed committing the
murder of Harnam Singh and his wife.
4. A-1 was brought to Delhi on 25.06.2004 and during his
police custody remand, cash `6,000/-, a jeans pant and a shirt were
recovered from house No.251A, Second floor, Munirka at his instance.
5. On 22.06.2004, PW-36 (Insp.Narayan Singh) went to
Calcutta in search of A-2. On 24.06.2004, after coming to know his
availability at Nagartalla, he reached local PS Canning and joined SI
G.C.Mandal. A-2 was arrested and in his personal search, `409/- and
some papers were recovered. A-2 got recovered cash `2,600/- from the
„jhuggi‟ of his relative at Nagartalla. At Delhi, A-2 led the police to house
No.146B, Basant Gaon and recovered one silver colour wrist watch and
other articles. He also recovered his pant and T-shirt from the „taand‟ of
the room.
6. Case property recovered was put to test identification
proceedings and the concerned witnesses identified the same. The IO sent
the exhibits to Forensic Science Laboratory (FSL) for examination and
collected its reports. After completing the investigation, a charge-sheet
was filed against the accused in the Court. The accused were duly charged
and brought to trial. To substantiate the charges, the prosecution examined
thirty eight witnesses in all, at the trial. The statements of the accused
were recorded under Section 313 Cr.P.C. They denied the allegations and
pleaded false implication.
7. After appreciating the evidence and considering the rival
contentions of the parties, the Trial Court by the impugned judgment
convicted both the appellants under Sections 392/302/34 IPC. Aggrieved
by the said orders, the appellants have come in appeal.
8. Learned counsel for the appellants has assailed the findings
of the Trial Court and urged that it did not appreciate the evidence in its
true and proper perspective and fell into grave error in relying upon the
testimonies of PW-6 (Kartar Singh), PW-7 (Sohan Singh), PW-8 (Michael
Wilson) and PW-9 (Madhu Seth) without ascertaining their credibility and
reliability. A-1 was erroneously suspected due to his previous conviction
in a theft case. No substantial cash was robbed from the house of the
deceased. The so-called recoveries from the possession of the accused or
at their instance are farcical and inconsequential as no independent public
witness was associated at any stage of the investigation. It is unbelievable
that A-1 would keep substantial amount of `6,000/- at the residence of his
sister. The theory propounded by the prosecution about receiving a phone
call from A-1 informing Sohan Singh (brother-in-law) his plan to go to
Nepal cannot be believed at all. After alleged abscondance, it is highly
strange that he would reveal his destination. It is improbable that just on
the strength of a wireless message without proper description of suspects
and prior acquaintance, UP police would be in a position to apprehend A-
1 in a bus. The counsel urged that the assailants had no intention to
commit murder. Apparently, their purpose (if any) was to commit
robbery. The fact that house-hold articles were used as weapons of
offence ruled out the possibility of intention of murder. The police did not
investigate PW-7 (Sohan Singh)‟s role in the occurrence. She pointed out
that the quality of investigation was extremely poor and it was a pre-
determined investigation. The testimonies of the witnesses are full of
omissions, contradictions and improvements and cannot be the basis of
conviction of the appellants.
9. Learned APP supported the judgment of the Trial Court and
urged that it did not call for any interference. The prosecution has
categorically established that the robbed articles belonging to the deceased
were recovered from the possession of the accused and at their instance
soon after the commission of the offence. The accused did not offer any
explanation as to how and under what circumstances the deceased‟s
articles came into their possession. The prosecution further established
that the accused had visited the place of occurrence on the night
intervening 19/20.06.2004 and absconded on 20.06.2004. PW-8 (Michael
Wilson) proved that the chappals recovered from the spot were taken by
the accused at the time of their visit to him and it belongs to him. The
finger prints lifted from the spot matched with the finger prints of the
accused.
10. We have considered the submissions of both the parties and
have examined the Trial Court record. The case is based upon
circumstantial evidence only. The circumstances are discussed as under :
(A) Recoveries from the possession of A-1 and at his instance
11. The prosecution examined PW-33 (SI Durga Dutt), PW-30
(Const.Janardhan Yadav) and PW-31 (Const.Ram Sarik Yadav), police
personnel from Gorakhpur (U.P.) who categorically deposed that in the
personal search of A-1, a purse (Ex.P-1) containing `1,600/-; `4,500/-
cash (Ex.P-26), Motorola mobile phone, two medals (one of gold colour
and the other of silver colour) (Ex.P-28 and Ex.P-29), two cuff links
(Ex.P-1), bichuas (Ex.P-2) were recovered. The attachee-case (Ex.P-30)
contained currency notes amounting to `2,500/- (Ex.P-31) and other
articles. He was also found wearing Rado watch (Ex.P-32). Case vide FIR
No.04 under Section 41/411 IPC (Ex.PW-33/A) was registered. Despite
lengthy cross-examination, no material contradiction emerged to discard
their testimonies. They had no prior acquaintance with the accused to foist
false recovery of the articles, which are not easily available in the market.
They had no concern with the case registered at Delhi and even were not
aware what articles were robbed by the culprits at the time of the incident.
A-1 did not explain how and under what circumstances, he happened to be
in Gorakhpur soon after the occurrence. He did not offer any explanation
for his visit to that place. The police officer from UP could not plant
articles, having distinctive features like medals having inscription of
„King George Medical College‟ and the name of the recipient Harnam
Singh. There is nothing to suggest if UP police was in touch with Delhi
police at the time of his apprehension or Delhi police had visited
Gorakhpur with the articles to be planted. Registration of FIR No.0/4
under Section 41/411 IPC (Ex.PW-33/A) same day strengthens the
version given by the witnesses.
12. PW-32 (HC Shyam Dev) Malkhana Mohir, PS Purandarpur
deposed that on 21.06.2004 SI Durga Dutt deposited a sealed parcel
sealed with the seal of SI KP Singh, UPP containing `8,600/-, a mobile
phone make Motorola, a Rado watch, two shields and other articles
recovered from A-1 along with sample seal as case property of FIR
No.0/04 under Section 41 Cr.P.C./411 IPC and he made entry in the
register at Sl.No.36 on 23.06.2004. He handed over the articles along with
sample seal to SI Bahadur Singh from PS Vasant Vihar vide seizure
memo (Ex.PW-16/A). The accused did not cross-examine the witness and
his testimony remained unchallenged. It further corroborates the version
given by the witnesses to the recovery that all these articles were seized
on 21.06.2004.
13. On 25.06.2004, during police custody remand, A-1 led the
police to house No. 251, Munirka village and pursuant to his disclosure
statement, a polythene containing T-shirt (Ex.P-23) and jeans pant (Ex.P-
22) containing `6,000/- were recovered from the taand in the room at the
second floor. All these articles were seized vide seizure memo (Ex.PW-
7/C).
14. PW-7 (Sohan Singh), A-1‟s brother-in-law residing in the
said house categorically deposed about recovery of articles at the instance
of the accused from his house. In the absence of prior enmity or ill-will,
this close relative is not expected to falsely implicate the accused. The
accused used to reside with his sister. He had stayed with PW-7 (Sohan
Singh) for last about two months in the absence of his wife who had gone
to Nepal. There were no strained relations with PW-7 to force him to put
his signatures on the seizure memo (Ex.PW-7/C).
15. PW-11 (Praveen Tokas), an independent public witness from
the locality supported the prosecution on material aspects and deposed
about the recovery of the articles seized vide seizure memo (Ex.PW-
10/C). In the cross-examination, he elaborated that the police had come at
about 06.30/06.45 P.M. and seized the clothes and money in his presence.
He fairly admitted that he did not put initials on the currency notes. He
denied that he was a stock witness of the police. The testimony of this
independent public witness inspires implicit confidence as no ill-will or
enmity was alleged against him. Nothing was suggested how this witness
running his STD booth near the residence of PW-7 (Sohan Singh) was a
stock witness of the police or he ever appeared as a witness on behalf of
the prosecution in any other case. Other prosecution witnesses PW-38
(Insp.Beer Singh), PW-14 (SI Raj Kumar) and PW-21 (Const.Anil
Kumar) have all made similar depositions. We have no reasons to discard
their evidence in the absence of any infirmities.
(B) Recoveries from A-2 and at his instance
16. PW-36 (Insp.Narayan Singh) received information about the
presence of A-2 with his relatives at Nagartalla. He along with staff
reached local Police Station Canning, joined PW-27 (SI Gopal Chandra
Mandal) and reached village Nagartalla. From Bahadur‟s Jhuggi, A-2 was
arrested vide arrest memo (Ex.PW-26/A). In his personal search
conducted vide memo (Ex.PW-26/B), a brown wallet (Ex.P-7) containing
`409/-, two railway tickets (one from Delhi to Hawrah and other from
Hawrah to Taldi), slips dated 20.06.2004 and 22.06.2004 was recovered.
A-2 also got recovered cash `2600/- from the Jhuggi seized vide seizure
memo Ex.PW-26/A. He was brought to the Police Station Vasant Vihar,
Delhi after seeking transit remand at Alipur, Calcutta. On 25.06.2004, he
was interrogated and his disclosure statement (Ex.PW-29/B) was
recorded. The accused did not deny his presence and arrest from the
jhuggi at Nagartalla. No suggestion was put to the witnesses when and for
what purpose he (A-2) had visited that remote area. A-2 did not claim that
the place of arrest i.e.jhuggi belonged to him or he used to carry on any
business or job there to justify his presence. PW-27 (SI Gopal Chandra
Mandal) posted at PS Canning, Distt. 24 Pargana, South-West Bangal had
no connection with the case registered in Delhi. He narrated the
circumstance in which A-2 was apprehended and the currency notes with
some papers were recovered from his possession. In the cross-
examination, he disclosed that they had reached Nagartalla at about 04.30
A.M. Sister of the accused had taken them to the jhuggi where the accused
was sleeping. No motive was assigned to this independent police witness,
who assisted Delhi police in the discharge of official duties to apprehend
the accused. The accused did not offer any explanation as to how all these
articles including the railway tickets happened to be in his possession.
17. PW-26 (Alok Chaudhary), Sub Inspector posted at PS
Ultudenga, Calcutta, was also present at the time of apprehension and
recovery of the articles referred above. In the cross-examination, he stated
that they reached at PS Canning at about 03.35 A.M. Insp.Narayan Singh
had requested police assistance from the duty officer at PS Canning.
Chobi, A-2‟s sister and her husband Vikas Pal accompanied them and
they reached Nagartalla at about 04.20 A.M. Nothing was suggested to
him if all these articles were planted. PW-36 (Insp.Narayan Singh) and
PW-29 (SI Balram) have made similar depositions.
18. On 26.06.2004, A-2 led the police to his room No.146B,
Vasant gaon, Delhi and pursuant to his disclosure statement, one hundred
rupee note (Ex.P-14), pair of rings (Ex.P-15), silver coin (Ex.P-16), idol
of goddess (Ex.P-17) and wrist watches (Ex.P-3, P-4, P-5, P-6 and P-18)
were recovered. He also produced blood stained pant (Ex.PW-35/D), T-
shirt (Ex.PW-35/F) and baniyan (Ex.PW-35/E) after taking out of plastic
dustbin. The articles were seized vide seizure memos (Ex.PW-6/A and
Ex.PW-6/B). PW-38 and PW-35 in the cross-examination, disclosed that
the accused used to reside in the said house with his mother.
19. The police associated PW-6 (Kartar Singh) resident of 156,
Vasant Gaon, Delhi, landlord who deposed that on 26.06.2004, the police
reached the tenanted room with the accused in custody. The room lying
locked was opened. A-2 pointed out the place behind taand and took out
one bundle of clothes containing pant and shirt, and seized vide seizure
memo (Ex.PW-6/A). Thereafter, A-2 recovered a bundle lying under the
bed. It contained wrist watches (five in number), hundred rupee note,
silver idol of Godess seized vide seizure memo (Ex.PW-6/B) bearing his
signatures. In the cross-examination, he reasserted that the accused had
taken the room on rent w.e.f. 01.06.2004 on a monthly rent of `1,000/-.
but no receipt was issued for the rent paid. Testimony of PW-6, an
independent public witness (the landlord of the accused) inspires
confidence. A bald suggestion was put accusing him a stock witness
without laying any foundation for it. No suggestion was put that the
accused and his mother never resided in the premises in question or no
such article was recovered at his instance. In the absence of any prior
enmity, this independent public witness was not expected to favour the
police.
(C) Identification of articles
20. PW-1 (Amrita Seth), daughter-in-law of the deceased had
furnished the list of missing articles (Ex.PW-1/E) on 20.06.2004 itself to
the police. It described the missing articles as 1) some medals, 2) cash
about `20,000/-, 3) father-in-law‟s wallets, 4) three diamond rings, 5) gold
chain, 6) some silver ornaments, 7) some gents wrist watches which
included a Titan, Rado and an old Omega, and 8) two ladies wrist watches
including watch make Titan. She participated in the TIP proceedings
(Ex.PW34/C) conducted by PW-34 (Sh. AK Sarpal), the then
Metropolitan Magistrate on 01.07.2004 and she identified pair of cuff
links (Ex.P-1) and bichuas (Ex.P-2) belonging to her parents-in-law. In
the cross-examination, she offered reasons for identification of the
articles. She had no ulterior purpose to falsely identify these articles of
insignificant value.
21. PW-2 (Gaurav Seth), deceased‟s son also participated in the
TIP proceedings and recognised the brown colour wallet (Ex.P-7), purse
(Ex.P-8) and cuff links (Ex.P-1) recovered in this case. PW-9 (Madhu
Seth) identified pair of jhumkas (Ex.P-20) in the TIP proceedings
conducted on 01.07.2004. PW-10 (Nikhil Seth) identified four wrist
watches and one purse. He deposed that the purse which he identified
belonged to his father and the wrist watches (Ex.P-4, P-5 & P-6) were
identified by him to be belonging to his parents. He elaborated that HMT
watch (Ex.P-4) was the first watch given by him to his father in 1969,
Omega watch (Ex.P-3) was brought by his father from USA in 1964,
Swiss watch (Ex.P-6) was given by him to his father after purchase from
Geneva, Titan watch (Ex.P-5) was also given by him to his father.
22. From the testimonies of all these witnesses, in the absence of
any reasonable explanation under Section 313 Cr.P.C., it stands
established that the articles referred above were recovered from the
possession of the accused and at their instance. The articles were
identified by family members who had occasion to observe these articles
with the deceased and were found missing on the day of incident. The
accused did not explain how and under what circumstances, they
happened to be in possession of robbed articles belonging to them. They
did not claim ownership of any such article. Recovery of stolen/robbed
articles, thus, is strong incriminating circumstance against the accused to
connect them with the crime.
(D) Familiarity with the family
23. Indisputably, close family members of A-1 used to work as
domestic servants at the residence of the deceased since long. PW-1
(Amrita Singh) revealed that initially parents and sister of A-1 and
thereafter his wife were domestic servants in the house. A-1 himself never
worked as a servant though as a child he used to accompany his mother in
the house. A-1 used to come to pick her wife. The depositions of PW-2
(Gaurav Seth), PW-9 (Madhu Seth) and PW-7 (Sohan Singh), corroborate
her version. A-1 in his statement recorded under Section 313 Cr.P.C.
admitted that as a child he used to go to the residence of the deceased.
Apparently, A-1 was aware about the status of the deceased, the persons
residing at the relevant time in the house, its topography to have a soft
target.
(E) Abscondance
24. On 19.06.2004 and 20.06.2004, both A-1 and A-2 were
present in Delhi. PW-7 (Sohan Singh) with whom A-1 used to reside after
altercation with his parents categorically deposed that on 20.06.2004, A-1
had come along with A-2 to his house in the morning and had taken
meals. They left for Hawrah at about 02.00 or 02.30 P.M. In the cross-
examination, he revealed that A-1 was living with him about two months
prior to the occurrence. His wife had gone to Nepal in April, 2004 and
was living there. A-1 did not dispute his residence with him in the house.
No suggestion was put to him in the cross-examination that he had not
visited him along with A-2 on 20.06.2004. About A-2, PW-7 (Sohan
Singh) explained that he had visited him earlier also with A-1 and had
requested to find a job for him. He handed over his ID card (Ex.PW-7/E)
to secure job and he delivered it to the police who seized it vide seizure
memo (Ex.PW-7/A). A-2 failed to explain how and under what
circumstance, his ID card came in possession of the witness.
25. PW-8 (Michael Wilson) deposed that on 19.06.2004 both the
accused visited him at night and consumed smack with him. He identified
pair of chappal (Ex.P-9) taken away by the accused on 19.06.2004 while
leaving his chappals there. In the cross-examination, the accused did not
deny their visit to him on 19.06.2004. They did not deny their presence in
Delhi that day and did not claim their presence at any other specific place
on both these days.
26. The police suspected involvement of both the accused in the
incident and set out to apprehend them. However, they could not be found
in Delhi. From PW-7 (Sohan Singh), they came to know that A-1 was
going to Nepal in the evening. This vital clue alerted PW-38 (Insp.Beer
Singh) and he traced the origin of the call from STD booth, Gorakhpur.
He sent fax message along with photographs of A-1 and A-2. UP police
succeeded in apprehending A-1 while he was travelling in bus No.UP-53-
T-2187 at 10.00 P.M. A-1 did not explain what prompted him to leave
Delhi all of a sudden and to go to Gorakhpur without any pre-planning.
The sudden disappearance of A-1 along with A-2 from Delhi points an
accusing finger against them.
27. A-2 was also apprehended at a distant place at Nagartalla, PS
Canning, Distt. 24 Pargana, South-West Bangal on 24.06.2004. Again A-2
did not offer any explanation for absconding from Delhi soon after the
incident without any specific purpose. Possession of the two railway
tickets with him at the time of his apprehension confirms that he travelled
out of Delhi. Their abscondance immediately after the occurrence and
before any finger or acquisition was made, is a factor to be taken into
consideration along with the circumstantial evidence and aspect relied
upon.
(F) Foot print
28. On 20.06.2004, the crime team visited the spot and found one
foot print. With the help of pup, PW-23 prepared a mould of foot print.
He prepared specimen foot moulds of the accused. As per FSL report
(Ex.PW-38/B), Ex.3 (Foot mould specimen of A-2) was found „similar‟
when compared with Ex.1 "Foot mould taken from place of occurrence".
However, Ex.2 (Foot mould specimen of A-1) was found to be „different‟.
The trial court considered it an incriminating circumstance against A-2.
Apparently, similarity of the foot print established presence of A-2 at the
spot at the time of occurrence.
29. The FSL report (Ex.PW-38/B) does not depict reasons for the
opinion given therein. Section 45 of Evidence Act does not include „foot
prints‟ within its ambit. The science of identification of the foot prints or
sole print has not yet reached the stage of an exact science. The fact that
the foot marks tallied with those of the accused means no more than that
these marks were made by shoes of a size corresponding to the size of the
shoes of the accused. There may be a large number of shoes of the size of
the shoes of the accused in the area.
30. In the case of „Mohd.Aman, Babu Khan and Anr. Vs. State of
Rajasthan‟ in Crl.A.No.1749 with Crl.A.No.1833/1996 decided by the
Supreme Court on 08.05.1997, it has been observed :
"So far as the foot prints are concerned, another reason for
which we feel it unsafe to accept the evidence led in this
regard is that the sample foot prints were not taken before a
Magistrate. This apart the science of identification of foot
prints is not a fully developed science and therefore if in a
given case - unlike the present one - evidence relating to the
same is found satisfactory it may be used only to reinforce
the conclusions as to the identity of a culprit already arrived
at on the basis of other evidence. "
31. The similarity of foot prints can be taken as an additional link
to corroborate the other clinching evidence on record.
(G) Finger prints
32. PW-22 (ASI Sumit) (of crime team) developed six chance
prints (Ex.Q1, Q2, Q3, Q4, Q8 and Q15) from the blood stained tusks;
four chance prints (Ex.Q5, Q6, Q7 and Q12) from the outer door; two
chance prints (Ex.Q9 and Q10) on the inner side of the door; Two chance
print (Ex.Q11 and Q13) on shampoo bottles; chance prints (Ex.Q14) from
netted door and Q16 from cello tap and prepared report (Ex.PW-22/A)
requesting the IO to send them for lab photography.
33. PW-12 (Chetram), Finger Prints Expert examined the chance
prints lifted from the scene of the crime and compared with the specimen
finger prints of suspects i.e. Chanda wife of Bablu Mandal, Samool
Mandal, Babloo Mandal, Ms.Renu, Smt.Rani, Dukhi Ram, Suresh
Kukmar, Sanku Saddar, Juvel Selkh, Rintu Selkh, Savitri, A-1 and A-2
and submitted report (Ex.PW-12/A). He testified that as per scientific
examination conducted by him, chance print mark Q14 was found
identical with specimen right little finger marked (S1) on specimen finger
slip of Bharat Bhandari (A-1). He further deposed that chance prints
marked Q9 and Q10 were found identical with specimen right middle and
right ring finger marked S2 and S3 respectively of finger specimen slip of
A-2 (Ex.PW-14/F). Chance print mark Q6 and Q7 were found identical to
specimen left index and left middle finger mark S4 and S5 respectively
pertaining to Chanda w/o Babloo Mandal. The specimen prints of other
suspects were not found tallying.
34. In the cross-examination, he clarified that the prints are
compared on the basis of eight characters. He did not find any points of
difference between specimen and chance prints. He denied the suggestion
that no finger prints of the accused matched with chance prints lifted from
the spot.
35. We have no reasons to disbelieve the testimony of this expert
witness who was fair enough to opine that the chance prints of the other
suspects except Chanda did not match with the chance prints lifted from
the spot. It has come in evidence that Chanda was maid at the house of the
deceased.
36. Section 45 Evidence Act also talks about finger impression.
Under Section 4 of Identification Act, the police is competent to take
finger prints of the accused. The science of identification of finger prints
is an exact science (HP Administration vs. Om Prakash, AIR 1972 SC
975) and it does not admit of any mistake or doubt (Jaspal Singh vs. State,
AIR 1979 S.C.1708).
37. In the absence of infirmity in comparison, the matching of
the finger prints of the accused with the finger prints collected from the
different articles and the scene of crime is vital incriminating
circumstance against them to prove their presence in the house at the time
of occurrence.
(H) Recovery of Michael Wilson's chappals
38. The Trial Court found that the „chappals‟ recovered at the
spot belonged to PW-8 (Michael Wilson) to whom the accused had met on
19.06.2004 and this recovery was taken an incriminating circumstance
against the accused.
39. PW-4 (Inder Dutt Salwan) an uninterested witness testified
about the seizure of pair of chappal (Ex.P-9) vide seizure memo Ex.PW-
4/E in his presence. The police was not aware to whom the said chappals
belonged. Apparently, the assailants had left the chappals while fleeing
after the occurrence (as the family members of the deceased did not own
it). PW-8 (Michael Wilson) disclosed the police that at the time of visit by
the accused to him on 19.06.2004, they had taken his chappals (Ex.P-9).
No suggestion was put to this witness having friendship with the accused
that the chappal (Ex.P-9) did not belong to him or that the accused never
visited him on 19.06.2004 or took his chappal. No motive was imputed to
this witness for falsely claiming ownership of the chappals of insignificant
value and its possession with the accused. The accused did not deny their
acquaintance with PW-8 (Michael Wilson). In the TIP proceedings
conducted by PW-34 (Sh.A.K. Sarpal), PW-8 identified the chappls. It
lends credence to the version given by the witness. Recovery of chappals
(Ex.P-9) establishes accused‟s presence and visit to the place of
occurrence. The accused persons did not explain the purpose of borrowing
the chappals from PW-8 (Michael Wilson).
(I) Conduct
40. The incident occurred in the night intervening 19/20.06.2004
but was not witnessed by anyone. The police was not aware about the
exact time of death. The post-mortem examination (Ex.PW-37/A) gave
the approximate time since death as 12 hours. The Autopsy Surgeon
started conducting autopsy on 20.06.2004 at about 02.35 P.M. The
approximate time of death thus was at about 02.00 A.M. in the night
intervening 19/20.06.2004. PW-8 (Michael Wilson) proved the visit of
accused to him on 19.06.2004 in the night. PW-7 (Sohan Singh) testified
that A-1 along with A-2 visited him on 20.06.2004. He did not claim that
the A-1 had stayed as usual in the house in the night intervening
19/20.06.2004. In the cross-examination also, the accused did not put any
suggestion that he was at the residence on the said fateful night. Similarly,
A-2 who used to reside with his mother at house No.146B, Basant Gaon
did not claim that on the said night he had visited his house and remained
there. A-2 did not examine his mother to prove his stay on the said night
in the house. In their statements recorded under Section 313 Cr.P.C., they
did not take any specific defence about their presence at any particular
place in the said night. In the absence of any specific purpose, or
compulsion, the accused were not expected to remain missing from their
ordinary place of residence during night. Their absence from respective
houses and silence to explain whereabouts in that night point an accusing
finger against them.
41. On 20.06.2004, the accused without any purpose suddenly
opted to go out of Delhi after visiting PW-7 (Sohan Singh). They actually
left Delhi on 20.06.2004. The accused did not offer any reason or
compulsion to move out of Delhi all of a sudden. Sudden departure from
Delhi without any apparent reason shows unnatural conduct of the
accused. There was no purpose to flee to such remote areas. Only
inference can be drawn that the accused wanted to move out of the reach
of the police at the earliest to avoid apprehension.
(J) Recovery of blood stained clothes
42. The blood stained clothes recovered pursuant to the
disclosure statements of accused were sent to Forensic Science Laboratory
for examination. Their clothes contained human blood of „A‟ and „AB‟
groups of the deceased. As per FSL report (Ex.PW-38/D) human blood of
„A‟ group was detected on jeans pant (of A-1) and human blood of „AB‟
was detected on A-2‟s pant. The accused did not deny that the clothes did
not belong to them and were not recovered at their instance. They failed to
explain how and under what circumstances they got blood on their
clothes, particularly when they had not suffered any injury. Presence of
the blood group of the deceased on the clothes of the accused is another
incriminating circumstance to establish their presence and participation in
the crime.
(K) Homicidal death
43. Homicidal death of the deceased Harnam Singh Seth and his
wife Smt.Roop Seth is not under challenge. However, counsel urged that
the assailants had no intention to commit murder and their only motive
was to commit robbery. The use of household articles in causing injuries
to the victims rules out intention of the assailants to commit murder. We
are not impressed with these submissions. The intruders had committed
lurking house-tress during the intervening night of 19/20.06.2004. Due to
their old age, the deceased were not in physical condition to offer stiff
resistance to the young assailants. As per post-mortem examination
(Ex.PW-37/A) Harnam Singh sustained six external ante-mortem injuries
on various body parts with blunt object. Injury No.3 was opined
individually sufficient to cause death in the ordinary course of nature.
44. The post-mortem examination (Ex.PW-37/B) of Smt.Roop
Seth reveals that the assailants inflicted eight external injuries with blunt
object. The autopsy doctor was of the opinion that injury No.7
individually was sufficient to cause death in the ordinary course of nature.
The death was instant. Photographs (Ex.PW-24/B1 to B8) reveal that the
assailants had tied hands and feet of the deceased with nylon rope and
shut their mouths and noses with cello tape. House-hold articles were
lying scattered. Two elephant tusks (having blood-stains) were apparently
used to inflict injuries on the deceased. Besides this, from the spot, the
police recovered iron rod, iron angle, knife and brick. These show that the
assailants had come prepared to inflict fatal injuries.
45. Both the deceased were killed by the assailants during
robbery. They committed the murder for their avarice with preplanned
mind and in cold-blood. The number and the nature of the injuries, the
parts of the body where the injuries were inflicted and the nature of
weapons used in inflicting the injuries leave no room for doubt that the
injuries were inflicted with the intention of causing death. The evidence
leaves no doubt that both the robbery and the murder were committed in
the course of the same transaction. The victims were known to the
accused and they could not take risk of their identification, if left alive.
Their acquaintance with the victims probably forced them to eliminate the
couple. In our view, it is a case of homicide.
(L) Conclusion
46. The robbery and the murder have been proved beyond any
reasonable doubt. The circumstantial evidence discussed above
categorically establishes involvement of both the accused for the
commission of robbery and murder. The robbed articles were recovered
by the police from the possession of the accused and at their instant from
their places of residence. A legitimate presumption can safely be drawn
under Section 114 (a) of the Evidence Act that the appellants not only
took part in the robbery but also in the murder of the deceased.
47. In the case of Earabhadrappa v. State of Karnataka, AIR
1983 SC 446 : the accused was charged for murder and robbery. He could
be arrested after the lapse of a period of one year and some stolen articles
were recovered pursuant to his statement under S.27, Evidence Act.
Before the Supreme Court the argument was advanced that since a period
of one year elapsed between the murder and the discovery of the stolen
articles the only reasonable inference that could be drawn under S.114(a),
Evidence Act was that the accused was merely the receiver of stolen
property and had not committed the murder. Overruling the argument,
their Lordships held that since the accused was absconding, the
presumption of both murder and robbery could legitimately be drawn
against him even though the stolen properties were recovered after the
lapse of one year.
48. In „Shri Bhagwan vs. State of Rajasthan‟ (2001) 6 SCC 296,
observation of the Supreme Court are relevant to appreciate the evidence
in this case.
"The possession of the fruits of the crime, soon after it has
been committed, affords a strong and reasonable ground for
the presumption that the party in whose possession they are
found is the real offender, unless he can account for such
possession in some way consistent with his innocence. It is
founded on the obvious principle that if such possession had
been lawfully acquired, that party would be able to give an
account of the manner in which it was obtained. His
unwillingness or inability to afford any reasonable
explanation is regarded as amounting to strong, self-
inculpatory evidence. If the party gives a reasonable
explanation as to how he obtained it, the courts will be
justified in not drawing the presumption of guilt. The fore of
this rule of presumption depends upon the recency of the
possession as related to the crime and that if the interval of
time be considerable, the presumption is weakened and more
especially if the goods are of such kind as in the ordinary
course of such things frequently change hands. It is not
possible to fix any precise period in this regard. The Supreme
Court has drawn similar presumption of murder and robbery
in a series of decisions especially when the accused was
found in possession of these incriminating articles and was
not in a position to give any reasonable explanation. "
49. The Supreme Court further held :
"In the present case the accused-appellant could not give an
explanation as to how he came into possession of various
gold ornaments and other articles belonging to the members
of the deceased family. The appellant also could not give any
reasonable explanation how he sustained injuries on his body
and how his shirt became bloodstained. In the facts and
circumstances, it is a fit case where the presumption under
Illustration (a) to Section 114 of the Evidence Act could be
drawn that the appellant committed the murders and the
robbery. "
50. In the recent case of „Geejaganda Somaiah vs. State of
Karnataka‟ (2007) 9 SCC 315, the Supreme Court held :
"28. Besides Section 27 of the Evidence Act, the courts can
draw presumptions under Section 114, Illustration (a) and
Sectin 106 of the Evidence Act. In Gulab Chand vs. State of
M.P. where ornaments of the deceased were recovered from
the possession of the accused immediately after the
occurrence, this Court held : (SCC pp.577-78, para 4)
"It is true that simply on the recovery of stolen
articles, no inference can be drawn that a person in
possession of the stolen articles is guilty of the offence of
murder and robbery. But culpability for the aforesaid
offences will depend on the facts and circumstances of the
case and the nature of evidence adduced. It has been
indicated by this Court in Sanwat Khan vs. State of Rajasthan
that no hard-and-fast rule can be laid down as to what
inference should be drawn from certain circumstances. It has
also been indicated that where only evidence against the
accused is recovery of stolen properties, then although the
circumstances may indicate that the theft and murder might
have been committed at the same time, it is not safe to draw
an inference that the person in possession of the stolen
property had committed the murder. A note of caution has
been given by this Court by indicating that suspicion should
not take the place of proof. It appears that the High Court in
passing the impugned judgment has taken note of the said
decision of this Court. But as rightly indicated by the High
Court, the said decision is not applicable in the facts and
circumstances of the present case. The High Court has
placed reliance on the other decision of this Court rendered
in Tulsiram Kanu vs. State. In the said decision, this Court
has indicated that the presumption permitted to be drawn
under Section 114, Illustration (a) of the Evidence Act has to
be read along with the „important time factor‟. If the
ornaments in possession of the deceased are fond in
possession of a person soon after the murder, a presumption
of guilt may be permitted. But if several months had expired
in the interval, the presumption cannot be permitted to be
drawn having regard to the circumstances of the case. In the
instant case, it has been established that immediately on the
next day of the murder, the accused Gulab Chand had sold
some of the ornaments belonging to the deceased and within
3-4 days, the recovery of the said stolen articles was made
from his house at the instance of the accused. Such closed
proximity of the recovery, which has been indicated by this
Court as an „important time factor‟, should not be lost sight
of in deciding the present case. It may be indicated here that
in a later decision of this Court in Earabhadrappa Vs. State
of Karnataka this Court has held that the nature of the
presumption and Illustration (a) under Section 114 of the
Evidence Act must depend upon the nature of evidence
adduced. No fixed time-limit can be laid down to determine
whether possession is recent or otherwise and each case must
be judged on its own facts. The question as to what amounts
to recent possession sufficient to justify the presumption of
guilt varies according as the stolen article is or is not,
calculated to pass readily from hand to hand. If the stolen
articles were such as were not likely to pass readily from
hand to hand, the period of one year that elapsed cannot be
said to be too long particularly when the appellant had been
absconding during that period. In our view, it has been
rightly held by the High Court that the accused was not
affluent enough to possess the said ornaments and from
nature of the evidence adduced in this case and from the
recovery of the said articles from his possession and his
dealing with the ornaments of the deceased immediately after
the murder and robbery a reasonable inference of the
commission of the said offence can be drawn against the
appellant. Excepting an assertion that the ornaments
belonged to the family of the accused which claim has been
rightly discarded, no plausible explanation for lawful
possession of the said ornaments immediately after the
murder has been given by the accused. In the facts of this
case, it appears to us that murder and robbery have been
proved to have been integral parts of the same transaction
and therefore the presumption arising under Illustration (a)
of Section 114 Evidence Act is that not only the appellant
committed the murder of the deceased but also committed
robbery of her ornaments. "
51. The Trial Court had discussed each and every factual and
legal aspect elaborately. Omissions/contradictions pointed out by the
appellants are trivial in nature, which do not go to the root of the case.
52. In the light of above discussion, we find no illegality or
material irregularity in the impugned judgment. The appeal filed by the
appellants is without merits and is dismissed. The order of sentence is also
upheld.
(S.P.GARG)
JUDGE
(SANJIV KHANNA)
JUDGE
AUGUST 03, 2012
tr
