Delhi High Court

Aditya Gupta @ Babloo vs State on 22 November, 2012

Author: Sanjiv Khanna

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Reserved on      : 05th October, 2012
                                         Date of Decision: 22nd November, 2012

                            CRIMINAL APPEAL 478/2011

        ADITYA GUPTA @ BABLOO                      ..... Appellant
                       Through Ms. Saahila Lamba, Advocate.
                versus

        STATE                                                ..... Respondent
                                   Through Ms. Richa Kapoor, APP for the
                                   State.


                          CRIMINAL APPEAL 936/2011

        BABU HASAN                                          ..... Appellant
                                   Through Ms. Aishwarya Rao, Advocate.
                          versus

        STATE                                              ..... Respondent
                                   Through Ms. Richa Kapoor, APP for the
                                   State.


                         CRIMINAL APPEAL 989/2011

        DHARMENDER KUMAR                      ..... Appellant
                      Through Ms. Aishwarya Rao, Advocate.
               versus

        STATE                                              ..... Respondent
                                   Through Ms. Richa Kapoor, APP for the
                                   State.

                            CRIMINAL APPEAL 895/2012

        SHAMBHU @ SHYAM SHARMA                    ..... Appellant
                       Through Mr. Jawahar Raja, Advocate.
                versus


CRL.A. No. 478/2011 + connected maters                               Page 1 of 28
         STATE                                              ..... Respondent
                                   Through Ms. Richa Kapoor, APP for the
                                   State.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J.

Subject matter of challenge in these four appeals by Aditya

Gupta @ Babloo, Babu Hasan, Dharmender Kumar and Shambhu @

Shyam Sharma is the common judgment, dated 30th October, 2010 in

Session Case No.978/2008, arising out of FIR No. 102/2008, Police

Station Binda Pur. The four appellants have been convicted under

Section 302 of the Indian Penal Code, 1860 (IPC) and sentenced to

rigorous imprisonment for life and fine of Rs.25,000/- each, which has

to be paid to the family of the deceased-Garima as compensation. In

default of payment of fine, they have to undergo simple imprisonment

for six months. The four appellants have also been convicted under

Section 394 IPC and sentenced to rigorous imprisonment of seven

years and fine of Rs.5,000/- each. In default of payment of fine, they

have to undergo simple imprisonment of one month. Shambhu @

Shyam and Dharmender have also been convicted under Section 307

IPC and sentenced to rigorous imprisonment of 10 years with fine of

Rs.10,000/- each. In default of payment of fine, they have to undergo

simple imprisonment for two months.

2. It is undisputed that the deceased-Garima was found dead in her

house, at A-39, Jeevan Park, Uttam Nagar on 16th April, 2008. As per

the Post Mortem Report (Ex.PW-9/A), Garima was strangulated to

death. Dr. Komal Singh (PW-9) had conducted the post mortem. On

external examination, he found that there was contusion on the inner

surface of the upper lip, nail marks over the right tip of the nose, left

cheeks and at centre of the forehead. Ligature mark of 27cm × 8mm

was found over the entire circumference of the neck except at the right

upper side of the neck. The cause of death, as opined, was asphyxia

subsequent to the ligature strangulation over the neck and smothering

incomination. Both were sufficient to cause death in ordinary course of

nature, together or individually. In the cross- examination, he has

clarified that if the ligature mark is due to use of a wire or a rope for

strangulation, then it would have made different impressions over the

neck, though it is not necessary that in all the cases there would be cut

marks if strangulation was by means of a metallic wire.

3. There is evidence that the baby Astha, aged about 3-4 years, was

also strangulated and then put inside the box bed (Diwan). Her injuries

have been proved by her father Naveen Kumar (PW-1), brother

Sarthak (PW-2), neighbour Savitri Devi (PW-7) and police officials,

who had visited the place of occurrence.

4. Regarding the involvement of the four appellants, the

prosecution case, as is apparent from the facts narrated below, is

premised upon the statement of Aastha, who was present in the house

and was injured in the alleged incident, and on recovery of the stolen

articles.

5. Savitri Devi (PW-7) is the complainant, who was residing in the

neighbourhood. She has deposed that at about 3-3.30 P.M., Sarthak

came to the roof of her house and called her through the „Jaal‟ that her

mother was not opening the house door. She telephoned Garima but

no one responded. She, along with Sarthak, succeeded in entering

Garima‟s house, from the rear entrance. They saw that house was

ransacked, the almirah and the bed were open and Garima was lying

dead. Her daughter Astha was heard crying in other room, and Sarthak

took his sister out from the box bed. PW-7 came out and raised an

alarm. Husband of Garima, Naveen Kumar (PW-1) was informed on

the telephone and the police was called. PW-7‟s statement was

recorded (Ex.PW-7/A). PW-7‟s statement has not been contradicted

and cannot be doubted. But the statement does not implicate the

appellants as perpetrators of the crime.

6. Sarthak (PW-2), son of the deceased and brother of Astha, has

deposed on identical lines. On the date of occurrence, he returned

from school at about 2-2.30 P.M. and found that the main door of the

house was locked from inside. He knocked at the door and called his

mother, but she did not open the door. He climbed over the terrace and

called his mother from the „Jaal‟, on the terrace. PW-2 could hear his

sister crying. He went over to PW-7‟s house and asked her to call her

mother Garima. When no one responded to the phone calls, PW-7 and

PW-2 came to the terrace and then the front door but could not gain

entry. Ultimately, they discovered that the rear side door was bolted

from outside. They entered the house and found it ransacked. Garima,

his mother, was lying dead on the floor. PW-7 raised an alarm and

called other neighbours. Aastha, his sister, was entangled in the diwan,

under the mattress, in the middle room. Her upper portion of the torso

was outside the „Diwan‟ and her rear portion was inside the „Diwan‟.

There is nothing in the cross-examination which dents or casts doubt

over the testimony of PW-2. It is apparent that Aastha was crying and

PW-2 stated that she was in a state of shock. However, he was not

aware if his father (PW-1) made inquiries from Aastha because he was

sent to a neighbour‟s house. He remembered that carpentry work was

being carried out, till the evening before the incident.

7. Naveen Kumar (PW-1), who worked as a Junior Engineer in

CPWD, had left for office at 8.30 A.M., on the date of occurrence. His

daughter Aastha, a student of LKG, had not gone to school that day,

but his son Sarthak, studying in the 5th standard, was at school. When

PW-1 left home, both Garima and Aastha were present in the house. At

about 4.00 P.M., he received a telephone call from his neighbour, who

said that there had been a mishap with his wife. PW-1 left for home

with a senior, and when he reached, he saw that his wife Garima was

lying dead on the floor, in the rear bedroom. The cupboard adjoining

the bed was ransacked and there were marks on Garima‟s neck. Savitri

Devi (PW-7) was taking care of his children. Aastha, when asked by

the police, had stated that Shyam uncle had come to the house. PW-1

has averred that there were abrasions on the neck of his daughter and

she was sent to the hospital for medical examination. After returning

from the hospital, when asked by her father, she had revealed that

Shyam uncle had come with 2-3 other persons. She could not give

much information and, being in a state of shock, she started weeping.

PW-1, therefore, did not push her for further information. He testified

that one Shyam @ Shambhu had worked as a Carpenter, at his house,

on 2-3 occasions, and, at times, for longer period of duration and this

could be the reason why his daughter had referred him as "Shyam

uncle". He averred that his wife usually wore one gold chain, two gold

kara, a pair of tops and a nose pin which were missing. He has stated

that cash of about Rs.26,000/- to 27,000/-, silver coins, 3-4 silver

statues of God/Goddess, rings, 3-4 pairs of tops, three gold chains,

three silver anklets, a heart shaped plate and other jewellery were

missing from the cupboard. He had participated in the TIP

proceedings (Ex.PW-1/A) and identified a pair of gold tops, three

silver coins, a gold necklace, a pair of gold tops, a gold kada, two

silver coins, gold necklace (chain type), silver statue of God Krishna,

silver plate, one gold nose pin, statue of Goddess Durga, an artificial

necklace and pair of silver anklets marked Ex.P-1, 2, 4, 5, 6, 7, 8, 9, 10,

11, 12, 13 and 14 respectively. He identified the different currency

notes, marked Ex. PW-15 to 17, allegedly recovered from the

appellants-Dharmender and Aditya Gupta. In the cross-examination,

he deposed that the appellant Shyam Sharma was introduced to him by

his cousin, Anand Prakash Mittal. Shyam had earlier worked in Anand

Prakash Mittal‟s house. The kara, worn by the deceased, belonged to

his mother and he had seen his mother wearing it since his childhood.

He deposed that the robbed money belonged to him and the rest was a

gift which had been received by his wife on various occasions.

8. What is noticeable in the statement of PW-1 is that Aastha had

told him that Shyam uncle had come with 2-3 other persons. After that

she had not given much information and had started weeping. She was

in a state of shock and, therefore, PW-1 did not ask for more details.

He further deposed that Aastha had said, in the SHO‟s presence, that

Shyam uncle had come to the house. We record here that the

testimony of PW-1, that Aastha had stated Shyam uncle to be with 2-3

persons, was not specifically questioned in the cross examination.

However, to our mind, this is irrelevant, as the statement of Aastha, to

her father or to the police, would substantially fall in the category of

hearsay, except to the limited extent that certain leads were provided

by Aastha. Aastha‟s recollection of events has to be examined and

evaluated separately, when we deal with her testimony to the Court.

On the said aspect, we note that PW-1, in his initial statement under

Section 161 of the Code of Criminal Procedure, 1973 (Cr.P.C.), has

stated that Aastha had mentioned the presence of one other person with

Shyam uncle, but, in the subsequent statement, he has stated that,

according to Aastha Shyam uncle, had come with 2-3 other people.

PW-1 was not confronted, in the cross-examination, with these

statements. However, it would be pertinent to refer to the testimony of

the Investigating Officer. ASI Mahender Singh (PW-15) has deposed

that he visited the occurrence/site after the initial information was

recorded, as DD No.40A and 41-A at about 3.55 P.M. on 16th April,

2008. He reached the spot, along with the SHO Inspector Ranjeet

Singh and others. There he found a girl, namely Aastha, aged about 5

years, and she was found to be scared. Aastha informed them that one

Shyam uncle, along with another, had come to their house and,

thereafter, she started weeping. SHO prepared the rukka and the case

was registered. He remained at the spot, till 8.00 P.M., along with SHO

Inspector Ranjit Singh.

9. Inspector Dig Vijay Singh (PW-22) has deposed on similar lines.

On the date of occurrence, he was posted as Inspector (Investigations).

He was directed to conduct further investigation in the case. He

reached at the spot and recorded statement of the witnesses. One girl

„Aastha‟, 4 years old, met him there, but she was very scared. In PW-

22‟s presence, father of Aastha spoke to her and she revealed that

Shyam uncle and another uncle had come to the house. PW-1 said that

Shyam had worked as a carpenter, in his house. This raised suspicion

against Shyam and inquiries were made but he was found to be

absconding and untraceable. On 25th April, 2008, they received secret

information that Shyam was spotted around C-1, Janakpuri. PW-22,

along with staff members, in civil clothes, reached there and at about

2.00 P.M. apprehended Shyam. He was arrested vide memo Ex.PW-

16/A.

10. The testimonies of ASI Mahender Singh (PW-15) and Inspector

Dig Vijay Singh (PW-22) create doubt regarding whether Shyam was

accompanied by one or more than one person, according to Aastha.

PW-15 and PW-22 deposed that according to Astha, Shyam had come

with another person and not with 2-3 persons. PW-15 and PW-22 were

not cross-examined by the Public Prosecutor on this aspect.

11. Aastha was not examined as a prosecution witness due to her

tender age and incoherent statements, to her father and the police

officers. In the Trial Court, final arguments were heard and judgment

was reserved. Thereafter, vide order dated 7th October, 2010, the

Additional Sessions Judge directed that statement of Aastha should be

recorded as a court witness. She was, therefore, examined, as a Court

witness, on 8th October, 2010, about 26 months from the date of

occurrence. At that time, she was about 6-7 years of age while at the

time of occurrence she was aged 4 years. The Additional Sessions

Judge posed several questions to Aastha, to satisfy that she had

maturity to depose. Aastha identified the appellant- Shyam, in the

court. Dharmender was also identified by her, in the court, as the one

who had caught her legs along with Shyam and both of them had

thrown her in the „Diwan‟. She identified Babu Hasan and Aditya

Gupta, as the other two people who had come with Shyam. Aastha

stated that she was lying in a different room and, after some time,

Shyam uncle came and pressed her neck while other man caught her

legs and both dumped her in a „diwan‟. She has stated that Aditya,

Babu Hassan and Dharmender had come to the house with Shyam.

The question is whether the identification made by Aastha, of the

appellants Aditya Gupta, Dharmender and Babu Hasan stands proved

and should be accepted by the Court? We have grave reservations in

view of the statements of the Investigating Officer (PW-15) and

Inspector Digvijay Singh (PW-22). In addition to their statements, we

have in the trial court record Aastha‟s statement, recorded under

Section 164 Cr.P.C. The application for recording her 164 Cr.P.C

statement was filed by Inspector Dig Vijay Singh on 22nd July, 2008.

In the application, it was stated that Aastha had uttered Shyam uncle‟s

name to her father. Aastha was about four years of age and was

extremely nervous, as the accused had tried to kill her. She, therefore,

could not be examined as a prosecution witness. Her father had also

stated that Aastha was not in a position to give a statement. We may

note that the appellants herein were arrested earlier i.e. before the

application dated 22nd July, 2008 was filed. In the application, it was

not mentioned that Aastha could recognize the other accused or that

she had indicated that there were 2-3 other persons, who were present

with Shyam uncle. Aastha, on 23rd July, 2008, in her statement, under

Section 164 Cr.P.C., before the Metropolitan Magistrate stated as

under:-

"Shyam uncle had come that day. His friends (dost) had also come with him. Their names are not known. One of them was Shyam uncle. Do not know how many friends had come. Earlier I was sleeping. I woke up as soon as they came. They had come to steal the money. Two persons had strangulated me. Shyam uncle had also strangulated me. At that time my mother was packing the clothes. She was keeping them in the Almirah. I found my mother lying on the floor. She was not getting up. I had gone to the hospital

later. My mother has died. She has become a star. I remember that Shyam uncle had come. I am not able to recollect anything else."

12. CW-1, Aastha was a very young child at the time of occurrence,

aged about four years. She had gone through a traumatic experience,

which had petrified and shocked her. She was extremely nervous and

was not in a position to speak cogently and to recall the entire incident

or to indicate the number of persons, who had come with Shyam. With

regard to the number of persons who had come to her house, her

statement under Section 164 Cr.P.C., is to the contrary and cannot be

reconciled with her testimony in the court. She has used the word

„dost‟, in her statement under Section 164 Cr.P.C., which can be both

singular and plural. However, on a specific question, she has stated

that she does not remember how many others were there. She has

stated that two persons had pressed her neck and Shyam uncle had also

pressed her neck. In the end, she has stated that she does not

remember anything other than the presence of Shaym uncle. The

statement of Aastha (CW-1), recorded under Section 164 Cr.P.C.,

necessarily creates doubt and suspicion on the testimony of CW-1 in

the Court, in which she had recognized the appellants Dharmender,

Aditya Gupta and Babu Hassan. In her statement, before the Court,

she has stated that there were three more persons with Shyam uncle.

13. Recently, the Supreme Court in K. Venkateshwarlu v. State of

A.P. (2012) 8 SCC 73 has observed that evidence of child witness

should be subjected to closest scrutiny and can be accepted only if the

Court comes to the conclusion that the child understands the questions

put to him and is capable of giving rational answers (see Section 118 of

the Evidence Act, 1872). A child witness, by reason of his tender age,

is a pliable witness and can be tutored easily either by threat, coercion

or inducement. The Court, therefore, should be satisfied that child

witness is not giving his/her statement under influence of someone or

under threat, fear or coercion. The evidence of child witness should be

evaluated to ensure that evidence is truthful and is not by a tutored

witness. It may be safe and prudent to look for corroboration because

there is scope that a child witness may give evidence on the basis of

intimidation and may develop fear and may not tell truth.

14. We may note that the courts have relied upon child witnesses

and their testimonies, but after ensuring that the child witness is not

tutored and was not under any pressure, threat or coercion either to

implicate or exonerate any of the accused. Several aspects have to be

kept in mind, while relying upon statement of child witness, and due

care should be taken to decide that to what extent a child witness‟s

testimony can be relied upon and acted upon. In Criminal

Investigation: A Practical Handbook by Dr. John Adam et J. Collyer

Adam, a translation and adaption of System Der Kriminalistik by Dr.

Hans Gross, published by A.Krishnamachari, Egmore, Madras, 1906,

it has been observed that children between the age group of 7-10 years,

in one sense, can be the best witnesses because they are unaware of

ambition, hypocrisy, consideration of religion, rank and social position.

These are great advantages accompanied by some corresponding

drawbacks. The greatest drawback is that we cannot place ourselves at

the point of view of the child. The child perceives things differently

from grown up people. The perfectly indifferent facts to us delight or

terrify the child, and what, for us, is magnificent or touching, does not

affect them in the least. There is another difficulty; the horizon of the

child being much narrower than ours and there are number of

perceptions, which are outside frame, within which the child can

perceive. We, as a rule, should not be distrustful of the capacity of a

child. Some of the observations in the said text are debatable, but the

aforesaid text does bring out certain aspects, which require notice and

due consideration. Care and caution is required before we accept and

rely upon the statement of CW-1. (See observations in Rameshwar v.

State of Rajasthan AIR 1952 SC 54, Mangoo v. State of M.P. AIR

1995 SC 959 and State of M.P. v. Ramesh (2011) 4 SCC 786.) In the

present case, the child witness in question was four years of age and

had undergone a gruesome experience wherein she was strangulated by

someone whom she referred to as uncle. She was incoherent and

shocked with the sense of losing her mother and having been a victim

of violence. She is the sole eye witness who can recognize the culprits.

The prosecution had not cited CW-1 Aastha as a witness, obviously for

the reason that she, in her statement recorded under Section 164

Cr.P.C., did not implicate the other three appellants. In these

circumstances, while evaluating the evidence of Aastha (CW-1), we

have to keep in mind her first deposition, the environment, the

idiosyncrasy and the opinion of the elders, in her family. In the present

case, the appellants are charged with the offence of murder, which

entails minimum sentence of life imprisonment. A pertinent

observation, in the above noted text, i.e., In Criminal Investigation: A

Practical Handbook by Dr. John Adam et J. Collyer Adam, a

translation and adaption of System Der Kriminalistik by Dr. Hans

Gross, published by A.Krishnamachari, Egmore, Madras, 1906,on

page 92 is:-

"How many times do people speak in its presence of things a child is not supposed to understand, only to discover later on that it has not only understood very well, but has combined the information with other things heard before or after. Again it must not be forgotten that a child is peculiarly exposed to external influences, whether designed or accidental. Any one, knowing that a child is to appear as a witness in a court of justice, if he is interested in its statements and has the chance of influencing it himself, will almost certainly exert

that influence. The child, as yet devoid of principles1, places great faith in the words of grown-up people; so if a grown-up person brings influence to bear on it, especially some time after the occurrence, the child will imagine it has really seen what it has been led to believe. This result is obtained with certainty if the man proceeds slowly and by degrees, leading the child to the desired goal by repeated simple questions, as, ' Is it not so?" "It was not so, was it not thus?"

The result is the same, when the influence is undesigned. An important event happens; it is naturally much talked of, all sorts of hypotheses are started, there is gossip of what others have seen or might in certain circumstances have seen. If a child, which has itself seen something of the occurrence, hears these conversations, they become deeply engraved on its young mind, and ultimately it believes it has itself seen what the others have related."

15. A study conducted by Carole R. Beal, Kelly L. Schmitt and

Dawn J. Kekle on 'Eyewitness Identification of Children' reported in

Law and Human Behaviour, Vol.19, No.2, 1995, though not binding or

to be treated as precedent, makes an interesting observation that in case

of recognition of a suspect, by children, with the constructed lineup,

either corporeal or through photographs, which includes the

perpetrator, the percentage of success in cases where identification is

done by the children is the same or similar as in cases of adults. It

observes on page 198:-

Statement regarding lack of principles cannot be accepted as a proposition

"As part of identification process, the witness usually provides a description of the perpetrator to the police, who then construct a lineup that includes the suspect who has been located on the basis of the witness‟s description. The lineup may be either corporeal or an array of photographs. If the witness recognizes the suspect among the other people in the lineup, who also fit the description, a positive identification has been made. Positive lineup identifications by eyewitnesses have been found to be very important influences on jurors‟ decisions about the guilt or innocence of the accused, at times outweighing the impact of other evidence (Wells, 1993).

Numerous studies of children‟s eyewitness testimony have shown that children are often able to recognize the perpetrator from a lineup at a rate comparable to that of adults (Davies, 1993; Davies, Stevenson-Robb, & Fline, 1988; Dekle, Beal, Elliott, & Huneycutt, 1993; chance & Goldstein, 1984; Goodman & reed, 1986; King & Yuille, 1987; Marin, Holmes, Guth, & Kovac, 1979; Parker & Carranza, 1989; Parker, Haverfiled & Baker- Thomas, 1986; Parler & Ryan, 1993; Peters, 1991). Children are particularly likely to show good recognition when they have interacted with or had an extended view of the perpetrator. This conclusion is reinforced by case studies in the field. In some instances, child crime victims as young as 3 years old have made convincing and consistent identifications that were eventually substantiated by other evidence (Jones & Krugman, 1986; Perrry & Wrightman, 1991)."

16. The said article, however, states that the children seem to act

differently when the lineup does not include perpetrator i.e. when the

children are presented with a target-absent lineup. The study indicates

that when children are shown a lineup that does not contain

perpetrator, they are more likely than adults to make a false positive

identification. This is reflected in the several studies conducted, namely,

Davies et al., 1988; Parker & Goodman & Reed, 1986; King & Yuille,

1987; Parker & Carranza, 1989; Parker & Ryan, 1993; Peters, 1987,

1991; Yarmey, 1988. Children‟s propensity to identify an innocent

person has even been found in tasks even when they had been warned

explicitly that the perpetrator might not be in the lineup and that they do

not have to choose anyone (Goodman, Bottoms, Schwartz-Kenney &

Rudy, 1991; Parker & Carranza, 1989). The said studies reflect upon the

causes why children may have a tendency to make false positive

identification. They have stated that children do not have any intention to

make false identification and enforce false conviction; though, it cannot

be stated that the errors made were entirely harmless. Some researches

have suggested that one of the factors, which contribute to children

identification errors, is that they are simply impulsive in their responses.

Another possibility suggested is that young children treat the

identification as a mere guess work and they think that their failure to

identify reflects his or her faults or ability. Lastly, a child witness may

not be guided and fully aware and conscious of the adverse consequences

and the effect of making a false positive identification.

17. In view of the aforesaid discussion and after examining the

evidence on record, we feel that the testimony of Aastha (CW-1)

cannot be relied upon to implicate that she had seen Dharmender,

Aditya Gupta and Babu Hassan. The observation made above must not

be read in a manner that the evidence of child witness is stigmatized or

not per se reliable. There is no principle of law that states that a child

of tender age cannot recapitulate the facts/occurence or is incapable of

being receptive towards events. It will be wrong to state that the

deposition of a child must be always corroborated. Law postulates and

judgements do, however, require an indepth scrutiny, greater

circumspection and caution when we consider deposition of a child.

Caution is required before we accept or reject the statement of a child

witness. The evaluation has to be done with due care as to whether he

or she has fully understood the implication. The credibility and

truthfulness of the statement has to be established.

18. Learned counsel for the State is right that, in all probabilities, the

offence in question could not have been committed by a single person

and, at least, presence of one more person, along with Shyam, is

clearly established and beyond doubt. However, in the present case, the

argument obfuscates whether the other three accused (individually or

together) were with the accused Shyam. The identity of the second

person or others, who partook in the commission of said offence, is not

clear and established beyond doubt.

19. At this juncture, the other evidence, that is, the recovery of the

stolen articles from the four appellants, needs to be examined.

20. With regard to recoveries, as per the endorsement made in the

rukka, four articles, worn by the deceased, were found to be missing,

namely, gold bangles, gold chain, gold tops and nose ring. However,

PW-1, in his statement in the court, has stated that cash of about

Rs.26,000-27000/-, silver coins, three-four silver statues (murtis) of

God and Goddesses, rings, three-four pair of tops, three silver anklets,

one heart shaped plate and other jewellery were found to be missing,

from the cupboard. These details were mentioned in subsequent

statement of Naveen Kumar (PW-1), recorded under Section 161

Cr.P.C. The Investigating Officer Dig Vijay Singh (PW-22) has stated

that when they made inquiries about accused Shyam, the carpenter, he

was found to be absconding from his house RZ-B38, Bindapur

Extension and was untraceable. On 25th April, 2008, he received

information that Shyam was spotted around Janakpuri area and was

arrested at around 2.00 P.M. He was identified by the informer and

arrested vide arrest memo (Exhibit PW-16/A). The arrest memo

mentions and has thumb impression of Krishna Devi, i.e., mother of

accused Shambhu Nath (Shyam). The alleged disclosure statement of

Shambhu Nath (Exhibit PW-16/C) was recorded on the day of his

arrest itself. In the said disclosure statement, it is alleged that he had

revealed the name of his associates as Aditya, Dharmender and Babu

Hasan. To this extent, the disclosure statement would be inadmissible.

However, on examination of the police diary, we find that on the date

of occurrence, i.e., 16th April, 2008 itself the police had carried out

investigation to find out the address of Shambhu Nath and they had

been apprised of the fact that Dharmender was working and residing

with Shambhu Nath. They had tried to locate the residential house

number of Shambhu Nath but they could not locate it, though they had

come to know that appellant Shambhu Nath was close to the three

other accused and several other persons, whose names were mentioned.

The police diary does not record that they had visited the residential

house of Shambhu @ Shyam or he was absconding. On the other

hand, it is recorded that the two police parties had gone to the village

of Shambhu Nath in Bihar. The relevant portion of the disclosure

statement Ex.PW-16/C by Shyam, relied upon by the prosecution,

admissible in evidence under Section 27 thereof, reads as under:

"....................After that we four went to my house and divided the looted money and jewellery among us. One gold bangle and one chain was taken by Babu. One ear ring and silver coins were taken by Bablu and balance jewellery was kept by me and Dharmender in my room. It was agreed that we shall sell the jewellery and divide the proceeds."

21. As per the prosecution version, the actual recovery made at the

instance of Shyam was Kada, two silver coins, Rs.3,500/-, gold

necklace and one pair of ear tops. On the same day itself, as per the

police version, Dharmender was arrested from RZB-59, Bindapur

Extension and had made a disclosure statement, that he had kept one

silver murti, one necklace (artificial) and one pajeb. On this basis,

from premises No. RZB-38, Bindapur Extension one necklace

(artificial), one top, silver like metal-idol of Durga, silver coin,

Rs.2,000/- were recovered below the clothes from a rexine attache.

Thus, the place of recovery in the case of Shyam and Dharmender is

the same room RZB-38, Bindapur Extension. The relevant portion of

the disclosure statement of Shyam (Exhibit PW-16/C) has been quoted

above. In his disclosure statement, he has stated that the stolen articles

retained by them, i.e., Shyam and Dharmender had been kept in the

same place. He did not talk of any bifurcation or division between him

and Dharmender.

22. Aditya Gupta is alleged to have also made disclosure statement

on 25th April, 2008 vide Exhibit PW-16/J and on the basis of the

disclosure statement one pair of gold tops, three silver coins and

Rs.9,000/- in cash were recovered. Learned counsel for the State has

drawn our attention to the fact that the articles, in question, were put to

test identification and were recognized by PW-1. This is correct but

surprisingly PW-1 also recognized in the court the currency notes of

Rs.9,000/-, Rs.2,000/-, Rs.3,500/-, which were in different

denominations of Rs.500/-, Rs.100/- and Rs.10/-. There were no

special marks on the currency notes and it is not indicated that there

was any identification mark put on these currency notes, to distinguish

them from others. The said TIP proceedings did not relate to the

currency notes. The TIP with regard to articles will show that the

recovered article belong to or were stolen from the house. However,

the pertinent question is slightly different, as to whether the recoveries

made by the police were pursuant to the disclosure statements and from

the custody of Dharmender and Aditya Gupta. Having carefully

examined the said aspect, there is a strong element of doubt whether

the aforesaid recoveries were in fact made from the accused

Dharmender and Aditya Gupta, as alleged by the prosecution. Our

reasons are as under:

(i) The first disclosure statement (Exhibit PW-16/C) is that of

Shyam, which must be after 2 P.M. on 25th April, 2008.

(ii) As per the said disclosure statement, he has not stated that

there was any division of articles between him and

Dharmender.

(iii) On the basis of disclosure statement made by Shyam

(Exhibit PW-16/C), articles were recovered from premises

RZB-38, Bindapur Extension, which is a one-room house.

These recoveries have been attributed to the disclosure

made by Shyam. From the same room and on the same

day itself, later on recoveries were attributed to

Dharmender on the basis of subsequent disclosure

statement made by Dharmender marked Exhibit PW-

16/K. Dharmender was not found at RZB-38, Bindapur

Extension but in a nearby property RZB-59, Bindapur

Extension with Aditya Gupta on 25th April, 2008. Aditya

Gupta also made a disclosure statement vide Exhibit PW-

16/J, and from the same premises recoveries were again

made.

(iv) No public witnesses were joined in the said recovery

proceedings.

(v) Interestingly, Raj Kumar, owner of RZB-34, Bindapur

Extension was examined as PW-14. He has stated that

Shyam Sharma along with his father, mother and brother

was residing on the second floor, which is given on rent to

them. He did not know the name of any other person

residing with the family of Shyam Sharma. He denied

that Dharmender was residing with Shyam Sharma and

stated that he had seen appellant-Dharmender visiting the

family of Shyam Sharma but he was not residing with

them.

23. The aforesaid weaknesses and doubts about the recovery from

the appellants Aditya Gupta and Dharmender are equally applicable to

the recovery allegedly attributed to the two disclosure statements made

by Babu Hasan vide Exhibits PW-22/A and PW-21/C made on 30th

April, 2008 and 1st May, 2008. As per the disclosure statement, one

gold chain, one nose pin, one silver idol and silver plate were lying at

his residence house No. C-112, Pocket-4, JJ Colony, first floor room.

We may note that Babu Hasan was not arrested. Babu Hasan had

surrendered before the Court on 30th April, 2008 at 2.30 P.M. It is

clear from the Court records that from the beginning itself the police

had suspected involvement of Babu Hasan as the fourth person. In the

application requesting for three days‟ police custody of Shyam dated

26th April, 2008 it was stated that the one accused Babul, i.e., Babu

Hasan was absconding and case property had to be recovered from

him. The said police custody was allowed vide order dated 26 th April,

2008 for a period of three days after medical. It may be relevant to

state here that Babu Hasan had filed an application dated 26 th June,

2008 and asked for conducting Test Identification Parade by the eye

witness. This application was opposed by the prosecution/Investigating

Officer on the ground that there were no eye witnesses. Accordingly,

no TIP was conducted as the Investigating Officer did not want to get it

conducted.

24. Sanjay Mishra v. State CrlA.367/1999, decided on 22nd May,

2012, by the Delhi High Court, makes pertinent observation regarding

scant recoveries:

"40. Thus, there is a serious problem with reference to the gold ring, the two gold chains and the wrist watch being linked to the deceased.

41. Way back in the year 1943, Justice Muneer, in the decision reported as AIR 1943 Null 5 Shera v. Emperor had cautioned Courts to be vigilant against the known practice of the police to plant ordinary objects on the accused persons to prove their guilt.

42. That apart, as held by the Supreme Court in the decision reported as JT 2008 (1) SC 191 Mani v. State of Tamil Nadu, circumstance of recovery of ordinary articles at the instance of the accused person is wholly insufficient to sustain the charge of murder against the accused, in a case of circumstantial evidence.

43. Against appellants Kuldeep, Pramod, Sanjay and Dalip, the incriminating evidence sought to be produced is the stated recoveries, one article belonging to the deceased, and they having, in conjunction with accused Sachin and Prem Pal getting recovered the body of the deceased pursuant to disclosure statements made by them.

44. We have already commented upon the weak evidence pertaining to the recovery of one article each by them and it being linked to the deceased.

45. It is settled legal position that Section 27 of the Evidence Act, 1872 cannot be used to "rediscover‟ a discovered fact. (See the decisions of the Supreme Court CRL.A. 367/1999 Page 25 of 30 reported as (1994) 5 SCC 152 Sukhvinder Singh v State of Punjab and (1997) 6 SCC 171) Vijender v State of Delhi."

25. Presence of Shyam, however, has been clearly established by

CW-1. No evidence has been put forth to establish that there was

forceful entry in the house. Neither were questions put, on this aspect,

to PW-1, PW- 2 and PW-7. The police officers, PW-8 and PW-21, who

had visited the site of occurrence, were not cross-examined and no

question was put to them. Shyam Sharma, is a Carpenter, and there is

evidence to show that he had worked at the residence of PW-1 and the

deceased. Learned counsel, appearing for Shyam Sharma, has relied

upon the report of the Crime Team that had visited the place of

occurrence. In the said report (Ex. PW-6/A), in Col. No. 8., it was

recorded that electrician‟s involvement was suspected. We do not find

any merit in the said contention. Rukka (Ex.PW-7/A) was sent to the