Bhawgan Mahalik vs State (Nct Of Delhi)
2012 Latest Caselaw 6806 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 27th SEPTEMBER, 2012
                                 DECIDED ON : 29th November, 2012

+      CRL.A. 326/2011
       BHAWGAN MAHALIK                                   ..... Appellant
                  Through :                 Mr.Sudhakar Mohan Mudgil,
                                            Advocate.
                      versus
       STATE (NCT OF DELHI)                               ..... Respondent
                     Through :              Ms.Richa Kapoor, APP.

+      CRL.A. 327/2011
       BHASKER MAHALIK                                      ..... Appellant
                   Through :                Mr.Joginder Tuli, Advocate with
                                            Mr.Aekansh Shukla, Advocate.
                      versus
       STATE                                              ..... Respondent
                               Through :    Ms.Richa Kapoor, APP.

+      CRL.A. 328/2011
       NIRANJAN MAHALIK                                      ..... Appellant
                   Through :                Mr.Joginder Tuli, Advocate with
                                            Mr.Aekansh Shukla, Advocate.
                      versus
       STATE (NCT OF DELHI)                               ..... Respondent
                     Through :              Ms.Richa Kapoor, APP.

+      CRL.A. 329/2011
       JAGBANDHU DASS                                      ..... Appellant
                   Through :                Mr.Joginder Tuli, Advocate with
                                            Mr.Aekansh Shukla, Advocate.
                      versus
Crl.A.Nos.326/11. 327/11, 328/11 & 329/11                          Page 1 of 35
        STATE (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. Bhagwan Mahalik @ Rajesh @ Babu (A-1), Bhasker

Mahalik (A-2), Niranjan Mahalik @ Jeda (A-3) and Jagbandhu Dass @

Tukku @ Tinku (A-4) impugn the judgment of learned Addl. Sessions

Judge, New Delhi dated 01.12.2010 in Sessions Case No.122/2008 arising

out of FIR No.111/2006 by which they were convicted for committing

offences punishable under Sections 302/394/34 IPC and sentenced to

undergo imprisonment for life with fine.

2. Swarana Mahajan and Anuradha Mahajan, Advocates by

profession (since deceased) lived in House No.256, Sidharth Enclave,

New Delhi. PW-2 (Geeta Chopra), their maid saw them hale and hearty on

11.03.2006 around 07.30 P.M. When she reached the house at about 08.00

A.M. next day on 12.03.2006 and rang the door bell, there was no

response. Finally, both Swarana Mahajan and Anuradha Mahajan were

found lying dead inside the house. The articles were lying scattered. The

assailants had committed murder of both the ladies in the course of

committing robbery. DD No.8 (Ex.PW-25/A) was recorded at police post

Sun Light Colony. SI Karamvir with Const.Sur Gyan and Const.Parveen

reached there. Rukka (Ex.PW-26/A) was prepared and First Information

Report was lodged. Scene of incident was photographed. Inquest

proceedings were conducted and bodies were sent for post-mortem

examination. PW-1 (Dr.B.L.Chaudhary) conducted examination on

14.03.2006. On 15.03.2006, PW-4 (Sanjiv Rai Mahajan), Swarana

Mahajan‟s son submitted a detailed list of missing articles to the police.

Efforts were made to find out the culprits and to recover the robbed

articles but to no effect. PW-20 (SI Naresh Solanki) from Anti Extortion

Cell, Crime Branch, R.K.Puram joined the investigation of this case on

the instruction of DCP and got information that a servant working in the

neighbourhood of the deceased was missing. A raiding party was

organised and they all reached Soro, Orissa on 22.04.2006. A-1 to A-4

were arrested from railway station Soro after joining the local police in

the investigation. Incriminating articles were recovered in the personal

search of the accused. They were interrogated and their disclosure

statements were recorded. In consequence to the disclosure statements A-

1 to A-4 recovered various jewellery articles from their respective houses.

The articles were seized vide seizure memos on 22.04.2006. When the

accused persons were present at the railway station after their transit

remand, A-4 volunteered to recover more jewellery from his house. He

led the police team and recovered jewellery articles from his house

concealed in a chappar. At Delhi, the Investigating Officer of police

station S.N.Puri was informed. They interrogated the accused and

recorded their disclosure statements. During police remand, A-1 and A-4

offered to recover more jewellery articles. It was disclosed by A-1 that he

had sold one gold chain to a jeweller at Soro. Again police of PS S.N.Puri

with A-1 and A-4 reached Soro and recovered the articles with the

assistance of the local police.

3. PW-4 and PW-5 (Pratima Mahajan) participated in the Test

Identification Proceedings conducted by PW-30 (Sh.Sanjay Bansal,

ACMM) and identified the articles. Statements of the witnesses

conversant with the facts were recorded. After completion of the

investigation, a charge-sheet was submitted against the accused for

committing the aforesaid offences. The accused were duly charged and

brought to trial.

4. After appreciating the evidence and documents on record and

considering the rival contentions of the parties, A-1 to A-4 were convicted

for the offences described previously. Being aggrieved, they have directed

the appeals against the impugned judgment.

5. Learned counsel for the appellants while assailing the

impugned judgment strenuously urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and fell into

grave error in relying upon the testimonies of PWs-17, 18, 19, 20 and 26

without ensuring their credibility and reliability. No independent public

witness was associated at the time of alleged recovery of gold and other

ornaments from the houses of the accused persons. The investigation

carried out by SI Naresh Solanki was tainted as he was not the

Investigating Officer and the police of police station S.N.Puri was not

informed about the parallel investigation carried out by him without any

authorization. It is highly unbelievable that after more than one and half

months of the incident, all the accused would retain the huge valuable

jewellery articles in their respective houses without proper security and

would not disposed of the same. Only a gold chain was allegedly

recovered from a jeweller Surender Kumar sold by A-1. The accused who

had apparent motive to robe the victims were not expected to retain the

substantial jewellery articles intact after one and half months of the

incident. The jewellery articles were provided by PW-4 to the police to be

planted upon the accused. It was further contended that there was no

complaint against the conduct and behaviour of the accused from the

previous employers. Chance prints were planted subsequently, and no

permission was taken from the concerned magistrate to obtain the

specimen finger prints of the accused. The accused had no reason to

remain present at the railway station, Soro and no railway ticket was

recovered from their possession. They have been falsely shown arrested at

the railway station Soro. He further argued that the police officials from

different units were eager to get credit for the success of the case and with

that motive, they visited village Soro twice to feign recovery of the

jewellery articles in their investigation.

6. Learned APP for the State urged that the impugned judgment

does not call for any interference. The accused did not offer any

explanation for the huge valuable gold and diamond jewellery recovered

at their instance from their houses. The chance prints matched with the

specimen finger prints of A-1 and A-2. A-1 who worked in the

neighbourhood flat was aware about the valuable articles in possession of

the deceased. Minor discrepancies emerging in the testimonies of the

prosecution witnesses are not fatal. Delhi police took assistance from the

local police and joined them at the time of recovery. After arrest, A-1 to

A-4, were produced before the Court concerned and their transit remand

was taken. PW-4 and PW-5 identified the recovered jewellery in the

judicial Test Identification Proceedings.

7. We have considered the arguments and have examined the

Trial Court records. At the outset, it may be mentioned that the case of the

prosecution is based upon circumstantial evidence alone.

(A) Homicidal death

8. Homicidal death of Swarana Mahajan and Anuradha

Mahajan is not under challenge. Both lived at 256, Sidharth Enclave, New

Delhi. PW-2 (Geeta Chopra) their maid saw them hale and hearty on

11.03.2006 at around 07.30 P.M. On 12.03.2006, their lifeless bodies were

found in the house. PW-1 (Dr.B.L.Chaudhary) conducted post-mortem

examination of the bodies on 14.03.2006 vide reports Ex.PW-1/A and

Ex.PW-1/B. Swarana Mahajan, aged 73 years suffered three ante-mortem

injuries. The cause of death was asphyxia as a result of smothering along

with gagging. Anuradha Mahajan also sustained ante mortem injuries and

the cause of death was asphyxia as a result of smothering along with

gagging. Undoubtedly, it was a case of culpable homicide.

9. The assailants committed lurking house trespass on the night

intervening 11/12.03.2006 with an intention to commit robbery. The entry

to the house was not friendly. PW-26 (SI Karamvir) along with Const.Sur

Gyan and Const.Parveen reached the spot on receipt of DD No.8 (Ex.PW-

25/A). When they entered inside the house, they saw that the two almirahs

in the bed room were open and the articles were scattered on the floor.

The almirahs in the other bed rooms were also lying open and the articles

scattered. The glass windowpane as well as its grill was broken and

removed. One petal of exhaust fan was broken and broken wood-pieces

with broken glass pieces were lying outside the bathroom near the water

tank. Apparently, the assailants had entered after breaking open the

window clandestinely with the motive to commit robbery. In the same

transaction, inmates of the house Swarana Mahajan and Anuradha

Mahajan were done to death. Their hands were tied with the pieces of

clothes. Bunch of tissue papers were used to gag their mouths. They were

no more alive. PW-1 (Dr.B.L.Chaudhary) conducted post-mortem

examination on 14.03.2006 from 11.30 A.M. to 13.30 P.M. and

ascertained that time since death was two and half days. The photographs

demonstrate brutish manner in which the victims were eliminated by the

robbers/assailants. Undoubtedly, it was a case robbery cum murder in one

and the same transaction.

(B) Recoveries of robbed articles

10. PW-4 (Sanjiv Rai Mahajan), Swarana Mahajan‟s son reached

India from USA on 13.03.2006. On 15.03.2006, he submitted a detailed

list of fifty articles worth approximately `20,58,000/- (Ex.PW-4/J) robbed

from the house with receipts of some articles to prove ownership.

Photographs of the deceased Ex.PW-4/K1 to Ex.PW-4/K13 wearing the

jewellery were also given to the police.

11. PW-20 (SI Naresh Solanki) is a crucial witness as he with his

team was successful to apprehend the culprits and recover substantial

quantity of robbed articles. He deposed that on 21.04.2006, a raiding party

was organised after secret information was received in their office Anti

Extortion Cell, Crime Branch, R.K.Puram that the accused persons

wanted in the case were residing in Orissa. They reached railway station

Soro, Orissa on 22.04.2006. They informed local police and joined four

police officials i.e. one ASI and three constables in the investigation of the

case. On 23.04.2006 at around 04.40 A.M. the raiding team arrested A-1

to A-4 from the railway station Soro. They were interrogated and arrested

vide arrest memos Ex.PW-17/A to Ex.PW-17/D. Their personal searches

were conducted vide memos Ex.PW-17/E to Ex.PW-17/H. They made

disclosure statements (Ex.PW-17/G1 to Ex.PW-17/G4). At around 08.00

A.M. A-3 took the police team to his house at village Dahipur and

recovered a polythene packet from a quilt which contained seventeen

jewellery articles seized vide seizure memo Ex.PW-17/H1. Thereafter, A-

1 recovered a polythene packet from an iron box in his house in the same

village and it contained ten jewellery articles seized vide seizure memo

Ex.PW-17/H2. A-2 pursuant to his disclosure statement recovered a green

colour briefcase from his house and took out a polythene packet

containing seventeen jewellery articles seized vide seizure memo Ex.PW-

17/H3. Thereafter, A-4 took the police to his house in village Mangalpur

and produced one sweet-box which contained twelve jewellery articles

and seized vide seizure memo Ex.PW-17/H4. After effecting the

recoveries, A-1 to A-4 were produced before the Court concerned in

Orissa and three days‟ transit remand was taken. A-4 again made

supplementary disclosure statement on interrogation and offered to

recover more jewellery kept by him inside the „chhappar' of his house.

Around 10.00 P.M., he took the police team from the railway station, Soro

to his house and recovered thirty jewellery articles from a polythene

packet concealed in the „chhappar' of the house seized vide seizure memo

Ex.PW-17/H5. The jewellery articles were deposited in the malkhana in

intact condition on reaching Delhi.

12. PW-19 (ASI Shashadhar Sethi) was posted in PS Soro,

District Baleshwar, Orissa. He joined the investigation with Delhi police.

He testified that after arrest of A-1 to A-4 from the railway station Soro,

they recovered various gold ornaments from their respective houses. A-3

recovered seventeen items from a polythene bag from his house concealed

in a quilt vide seizure memo Ex.PW-17/H1. A-1 pursuant to the disclosure

statement recovered ten ornaments from his house and were seized vide

seizure memo Ex.PW-17/H. Thereafter, A-2 and A-4 took the police team

to their houses in village Manatri and Mangalpur and recovered seventeen

and twelve ornaments seized vide seizure memo Ex.PW-17/H3 and

Ex.PW-17/H4, respectively. He further deposed that all the memos

prepared at the place of recovery were signed by him. He identified the

articles recovered at the instance of the accused persons. PW-17 (HC

Virender Singh), member of the raiding team, also testified about the

recovery of the various ornaments at the instance of the accused persons

from their respective houses. He corroborated the testimony of PW-19 and

PW-20 in toto without variation. The memos prepared at the spot were

signed by him. He also identified the ornaments recovered at the pointing

out of the accused. They all returned to Delhi on 25.04.2006 and the

accused were produced before the Court on 26.04.2006.

13. PW-17, PW-19 and PW-20 were cross-examined at length.

However, no material discrepancies or inconsistencies have been elicited

to disbelieve their version. Testimony of PW-17, on material facts i.e.

apprehension of the accused and recoveries at their instance remained

unchallenged in the cross-examination. PW-19 (ASI Shashadhar Sethi)

elaborated that the distance between the place of arrest and house of A-3

was 3-4 kilometres. A-3‟s wife was present inside the house at the time of

recovery of the gold ornaments. Memo Ex.PW-17/H1 was signed by A-3.

It was a single room. He further disclosed the time of reaching the houses

of accused persons and duration they remained present to effect recoveries

and also which family member was present at that time. In the personal

search of A-4, one mobile make Samsung and other articles were

recovered. They returned to the police station at about 02.10 P.M. The

deposition of this witness inspires implicit confidence as he had no

connection with Delhi police to make false statement. He was not

interested in the outcome of the case registered at Delhi. He assisted Delhi

police in effecting recoveries in the discharge of his official duties. He had

no animosity against the accused to rope them falsely in this case. PW-20

(SI Naresh Solanki) stood the test of cross-examination and explained that

the accused were arrested on 23.04.2006 after ASI Shashadar and three

constables from the local police station in Soro were joined in the raiding

team. The house of all the accused were raided and searched the same day

i.e. 23.04.2006. House of A-3 was raided around 08.30 A.M., that of A-1,

A-2 and A-4 at around 09.20 A.M., 10.50 A.M. and at 12.40 P.M.,

respectively. 5th raid/search at the house of A-4 was conducted at 11.20

P.M. (night) and no police official from local police had accompanied

them. Supplementary disclosure statement was made at the railway station

Soro by A-4 after the transit remand. He fairly admitted that no railway

journey ticket was found in possession of the accused at the time of their

arrest. He denied the suggestion that no article was recovered at the

instance of the accused. No suggestion was put to any witness that the

ornaments recovered were planted by the police in connivance with the

family members of the deceased. The accused did not attribute any ill-will

or motive to the witnesses to falsely show recovery at their instance. None

of the accused claimed ownership of any gold or other ornament.

14. At Delhi, the accused were taken on police remand. A-1 and

A-4 were interrogated by Insp.Mahender Singh. A-4 disclosed that he had

concealed one gold bracelet (Kara) in his jhuggi at his native village. A-1

also made disclosure statement and informed that a stolen gold chain in

three pieces was sold by him to a jeweller and volunteered to recover it.

The confession statements are Ex.PW-26/C1 and Ex.PW-26/C4 and

supplementary disclosure statements are Ex.PW-26/D2 and Ex.PW-

26/D1. On 28.04.2006, PW-26 (SI Karamvir) and his team reached police

station Soro with A-1 and A-4. ASI Kamal Kant Dass from police station

Soro joined the investigation. A-4 led the police team to his house and

after digging some earth from the corner of his jhuggi recovered a gold

„kara‟ and a gold bracelet seized vide seizure memo Ex.PW-18/A.

Thereafter, A-1 took the police team to the shop of a jeweller "Jagannath

Jewellers" at Soro. Surender Pal (since acquitted) was present in the shop.

On interrogation, he admitted that A-1 had sold him a gold chain in three

pieces and produced the said gold chain in three pieces and seized vide

seizure memo Ex.PW-18/B. A-1 and A-4 were brought to Delhi after

seeking transit remand.

15. PW-18 (ASI Kamal Kant Dass) posted at PS Soro joined the

investigation with Delhi police on 29.04.2006 and in his presence, A-4

recovered the gold kara and bracelet (Ex.PW-18/A) from his house from

beneath the ground. A-1 then led the police team to the shop of Jagannath

Jewellers and Surender Kumar present there produced a gold chain

(broken in three pieces) sold by A-1 to him. Testimony of PW-29 (HC

Harender Kumar), member of raiding team, on 28/29.04.2006 is in

consonance with the testimonies of PW-18 and PW-26 on all material

aspects. Despite searching cross-examination of PWs-18, 29 and 26

nothing material emerged to discard their version. PW-18 (ASI Kamal

Kant Dass) from police station Soro had no axe to grind to make false

statement. Surender Pal was arrayed an accused being receiver of the

stolen/robbed jewellery. However, for the reasons detailed in the

judgment, he was acquitted. In the statement recorded under Section 313

Cr.P.C., he admitted that the gold chain in three broken pieces was handed

over by him to Delhi police and it was pledged by A-1 with him for

`800/-. A-1 did not claim ownership of the gold chain Ex.PW-4/6 or that

he had pledged it with Surender Pal to arrange `800/- for the treatment of

his child.

16. PW-30 (Sh.Sanjay Bansal), ACMM-02, North, Tis Hazari

Courts, Delhi conducted Test Identification Proceedings (TIP for short) on

16.05.2006. PW-4 (Sanjiv Rai Mahajan) and PW-5 (Pratima Mahajan)

participated in the TIP and identified the articles. The detailed TIP,

Ex.PW-4/L, details the articles which were identified and also those which

could not be identified. PW-4 (Sanjiv Rai Mahajan) testified that on

16.05.2006, he identified silver coins mentioned at Sl.No.1, 4 and 9 in the

TIP and it belonged to his mother and sister. He identified watch at

Sl.No.2 and the items at Sl.No.4 in the TIP. In the Court, he identified the

articles recovered by the police collectively exhibited as Ex.PW-4/1 to

Ex.PW-4/8 taken out of eight parcels. He elaborated that he had seen his

mother and sister wearing and using these articles. The articles also

appeared in the photographs produced before the police. He further

explained that one gold „Mata‟ locket identified by him was visible in the

photographs bearing Sl.No.20, 21, 22 and 24 of deceased Anuradha

Mahajan and it was purchased vide bill No.1655 on 10.11.2004 from M/s.

M.B.Jewellers and sons. The photocopy of the same is Ex.PW-4/A4. The

photographs are Ex.PW-4/A5 to Ex.PW-4/A8. The Mata locket is Ex.PW-

4/A9. The witness identified a pair of diamond tops Ex.PW-4/A10 and

produced the photographs bearing Sl.Nos.1, 2, 3, 4, 5 and 11 where her

mother is visible wearing the diamond tops and the photographs are

Ex.PW-4/A11 to Ex.PW-4/A16. Photocopy of the bill of the diamond tops

Ex.PW-4/A17 is dated 19.09.2001 issued in the name of Swarana

Mahajan by M/s.M.B.Jewellers and Sons, Calcutta Wala. He identified

„three pieces of gold chain‟ collectively as Ex.PW-4/6 belonging to his

sister and mother. He identified the smallest piece of gold chain as

Ex.PW-4/A42. He also identified the full chain in the neck of his sister in

photograph at Sl.Nos.18 and 19 as Ex.PW-4/A43 and Ex.PW-4/A44

respectively. He identified the biggest piece as Ex.PW-4/A45 and also

identified the full chain in photographs at Sl.Nos.21, 22, 23 and 24 of his

sister as Ex.PW-4/A6, Ex.PW-4/A7, Ex.PW-4/A46 and Ex.PW-4/A8. He

further deposed that on 16.05.2006, he with his wife went to Patiala

House Court and participated in the TIP in the chamber of Sh.Sanjay

Bansal, Ld.Magistrate. Jewellery belonged to his mother and sister, and

they used to wear it. Only main items were shown to them for the

identification and were mixed with similar articles. He fairly admitted that

all the articles were not shown to them as the Investigating Officer was

unable to arrange similar articles like the case properties. On 25.05.2006,

he identified Timex Quartz Vista gold frame wrist watch kept in the

malkhana recovered in the personal search of A-3. Her mother Swarana

Mahajan used to wear the watch regularly and it also appeared in the

photos bearing Nos.6 and 8. He also identified one white dial Quartz New

York and Company (NY&C), the strap of which was black and of leather

and it belonged to his sister Anuradha. It was recovered in the personal

search of A-4. This watch was purchased by him for his sister for 34.50

US dollars and he had presented it to her in January, 2006. On the same

day, he also identified Anuradha‟s mobile make Samsung R-220

recovered from A-4 in his personal search. It was purchased for `9,000/-

in July 2002 and its IMEI number was 350624/08/54857918. PW-5

(Pratima Mahajan) also identified the articles in the TIP. She explained

that her husband prepared list of missing articles Ex.PW-4/J at their

residence and it was typed by him. He prepared the list with memory.

Item No.22 i.e. several gold coins purity 0.999 purchased from MMTC

were seen by her with her mother-in-law. She denied that the jewellery

was provided by them to plant upon the accused after their arrest.

17. We have no reasons to discredit the testimonies of PW-4 and

PW-5 who are close family members of the deceased. The assailants had

committed lurking house trespass with an intention to rob the inmates and

the articles in the almirah were found scattered. Detailed list of missing

articles Ex.PW-4/J was handed over to the police soon after the

occurrence when the accused were not suspects. PW-4 and PW-5 were not

members of the raiding team when the robbed articles were recovered

from far off places at the instance of the accused. PW-4 and PW-5 were

even not residing in India and had no animosity with the accused to

falsely plant the valuable jewellery upon them. The accused were

completely strangers for them. They had no ulterior motive to falsely

identify the articles recovered in the case. The fact that both the ladies

were smothered and gagged in the same transaction lends credence that

the only object of the intruders was to rob and steal.

18. Huge valuable jewellery articles having specific features and

mark of identification were recovered at the instance of the accused

persons from their respective houses. The accused did not claim

ownership of any article. They did not offer explanation how and under

what circumstances they received or retained the jewellery articles

belonging to the deceased and robbed from their house. Looking at the

quantum and nature of articles recovered, manner and place/location of

recovery, the possibility and probability of planting the articles is safely

ruled out. The Delhi Police was able to recover a gold chain in three

broken pieces from Surender Pal (since acquitted) and he admitted in

statement under Section 313 Cr.P.C. that A-1 had handed over the said

gold chain for `800/- on the pretext to get treatment for his son. Surender

Pal is resident of Soro and Delhi police was not aware about his name and

address prior to the arrest of the accused. Only in the disclosure statement

of A-1, the police discovered that Surender Pal was running a jewellery

shop at Soro and A-1 had sold the robbed gold chain to him. A-1

thereafter, led the police to his shop and recovered the gold chain

identified by PW-4 and PW-5 to be that of the deceased. All these facts

were not in the knowledge of the police prior to the arrest and disclosure

statements of the accused. Their disclosure statements leading to the

recovery of the gold and other ornaments substantial in number and value

is vital piece of evidence under Section 27 of the Evidence Act against

them.

19. The incident occurred in the night intervening 11/12.03.2006.

The robbed articles were recovered from the possession of the accused on

23.04.2006 and 29.04.2006 from their respective villages in Orissa. PW-

20 (SI Naresh Solanki) joined the investigation on the instructions of DCP

Crime Branch as it was a sensational case of the murder of two lady

lawyers of the Delhi High Court. He visited the place of occurrence and

interrogated servants employed in different houses in the locality. On

07.04.2006, he came to know that the servant who was earlier employed

in the flat above the premises in question, was missing since 12.03.2006

from Panchsheel Enclave where he used to work in the house of

Mr.Arjun. After completing the investigation by interrogation of servants

working in the locality, PW-20 (SI Naresh Solanki) with his team was

able to apprehend the culprits and effect recovery of robbed articles on

23.04.2006. There was no substantial time gap between the occurrence

and the recovery of robbed articles from the possession of the accused.

Sale and disposal of large number of valuable and expensive jewellery

would have been a cause of grave suspicion. The appellants after the

occurrence had moved to their villages. They were cautious and careful

not to raise suspicion. Recoveries cannot be discounted and disregarded

in the present case. Under Section 114 A of Evidence Act, it can

reasonably be presumed that A-1 to A-4 not only robbed the articles but in

the course of robbery committed murder of the two ladies.

(C) Finger Prints

20. On 12.03.2006, PW-10 (Narender Singh), Finger Prints

Expert lifted/developed twenty seven chance prints (Q-1 to Q-27) from

various articles from the place of occurrence. The detailed report Ex.PW-

10/A was handed over to the Investigating Officer. PW-20 (SI Naresh

Solanki) obtained specimen finger prints of all the accused. PW-3

(Const.Sovir Singh) deposited the prints on 01.05.2006 with Finger Prints

Bureau. PW-9 (Sanjay Kumar) examined the specimen prints with the

chance prints. Twelve chance prints were unfit for comparison. Fifteen

chance prints were compared with the specimen prints of

inmates/deceased and suspects. On comparison, it was found that eight

chance prints were identical with the specimen prints of A-2 (Bhaskar

Mahalik) and one chance print was identical with specimen prints of A-1

(Bhagwan Mahalik). Six chance prints were identical with the chance

prints of inmates/deceased. PW-9 (Sanjay Kumar) proved the detailed

comparison report Ex.PW-9/A. He denied that the chance prints were

planted upon the accused. Nothing was suggested when the chance prints

were planted and by whom. No such suggestion was put in the cross-

examination of the Investigating Officer.

21. It is true that specimen finger prints of the accused were not

obtained with the prior permission of the Court and were not taken in the

presence of the Magistrate. It was desirable but not mandatory to obtain

the specimen prints after seeking permission of the Court to dispel any

suspicion as to its bonafide or to eliminate the possibility of fabrication of

evidence. Under Section 4 of Identification of Prisoners Act, the police is

competent to take finger prints of the accused and no such prior

permission of the concerned Magistrate is compulsory. Lifting of the

chance prints in the present case was several days before the arrest of the

appellants.

22. Chance prints Q9, Q10, Q11, Q14, Q15 and Q16 matched

with the specimen finger prints of Bhaskar Mahalik. Chance prints Q22

matched with the specimen palm impression slip of Bhagwan Mahalik.

Other chance prints matched with the finger print impression of Anuradha

Mahajan and her maid Geeta. This shows that the chance prints were not

planted. The expert witness fairly opined that chance prints lifted did not

match with the finger prints of other suspects Niranjan Mahalik and

accused Jagbandhu Dass. This also shows that the report was truthful,

genuine and free from prejudice. A-1 and A-2 were not employed in the

deceased‟s house and had no obvious purpose to visit the house. It was in

their special knowledge how and why they visited the house and to offer

explanation how their finger prints appeared on various articles in the

house. The accused did not offer justification for their presence in the

house on the day of occurrence.

23. 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).

24. In the absence of infirmity in comparison, the matching of

the finger prints of the two accused with the finger prints collected from

the different articles at the scene of crime is a vital incriminating

circumstance against them to prove their presence in the house at the time

of occurrence.

(D) Conduct

25. A-1 to A-4 worked in Delhi prior to the incident. A-3 left the

job on 03.03.2006 after working as a domestic servant with PW-6 (Rinki

Bhasin) since 28.10.2005. He requested PW-6 not to employ any other

permanent servant as he would return from his village after Holi. A-1

was domestic servant with PW-7 (Rajinder Singh) for about two and a

half months and left the job on 28.02.2006 on the pretext to go to his

village in Orissa. A-1 worked as domestic servant for about two and a half

years in the absence of regular servant with PW-12 (Arjun Dev) at Flat

No.257, Sidharth Enclave till November, 2004. When PW-12 vacated the

said flat in 2004, A-1 went to his native village to attend some marriage.

PW-12 further deposed that when A-1 was brought in police custody at

his flat, he confessed the crime of murder. A-4 worked for four years as

domestic servant with PW-13 (Ms.Annu Puri) and his services were

terminated. On 07.03.2006 after settling dispute over accounts, A-4 left

on 10.03.2006 with assurance to join after Holi on return from the village

and requested her not to employ other servant. A-2 worked with PW-14

(Siri Kant Mahalik) at a juice shop.

26. A-1 to A-4 were found present at Soro, Orissa on 22.04.2006.

In their statements under Section 313 Cr.P.C. they did not clarify when

they all had gone to their respective villages in Orissa from Delhi. Their

leaving Delhi at or about the same time is indicative of their involvement.

They did not offer any explanation why they did not return to Delhi where

they were gainfully employed. There was no plausible reason for the

accused to stay in their respective villages without any gainful

employment for so long. It is apparent that after the incident on

11.03.2006 they absconded with the robbed articles.

(E) Other criminating facts and contentions of the Accused

27. Testimony of PW-21 (Shambhu Pandey) points an accusing

figure against A-2. Shambhu Pandey was a security guard in Sidharth

Enclave in 2006. He deposed that he was on duty from 08:00 P.M.

onwards on the night intervening 11th and 12th March 2006 and it was

raining that day. A-2 worked in House No.257, Sidharth Enclave on the

first floor. The occupant of Flat No.257 had shifted residence about a

year and the flat was used as a store. At about 9:00 or 09:30 P.M., he saw

A-2 with his associate entering the colony through gate No.1. He

identified A-2 to whom he had seen entering inside the colony on

11.03.2006. In the absence of any material discrepancy, we have no

reason to discard the statement of this independent witness. A-2 did not

explain the purpose of his visit to the said colony soon prior to the

incident. The accused persons did not adduce any evidence to establish

their presence on the night intervening 11/12 th March, 2006 at any other

specific place in Delhi or in Orissa.

28. Learned defence counsel vehemently criticized the

investigation conducted by PW-20 (SI Naresh Solanki) who was not the

investigating officer. It is true that the case was registered at police

station S.N.Puri and initial investigation from 12.03.2006 onwards was

conducted by Investigating Officer PW-26 (SI Karamvir) but PW-20 (SI

Naresh Solanki) of Crime Branch R.K.Puram has testified that he joined

the investigation on the instruction of DCP, Crime Branch. We find no

illegality or irregularity in the investigation carried out by him under

directions from DCP, Crime Branch. Delhi police is one unit. Even if

there was any irregularity, it will not bar or prohibit the prosecution from

relying upon the evidence/material collected. In „Pooran Mal Vs.

Director of Inspection (Investigation), New Delhi and Ors.' AIR 1974 SC

348, it was held that:-

"It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the

Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out."

After apprehending the culprits with the robbed articles, SI Naresh

Solanki, Crime Branch, informed Inspector Mahender Singh, SHO,

S.N.Puri on 26.04.2006 and further investigation was carried out by them.

No prejudice was caused to the accused due to the investigation carried

out by SI Naresh Solanki. In a serious case, assistance is often taken from

different units and police stations. SI Naresh Solanki with his team

worked under the directions of DCP, Crime Branch and duly recorded

their presence at the concerned police station, Soro. There was no

question of parallel investigation. The Trial Court has dealt with this

contention in detail in paras Nos. 22 and 23 of the impugned judgment

and we have no reasons to deviate from it.

29. It was further pointed out that there were certain

discrepancies in identification of the articles allegedly recovered at the

instance of the accused. Our attention was drawn to the deposition of PW-

17 (HC Virender Singh), where the description of the case property given

by him did not tally with the case property produced in the Court. We do

not think any major contradiction in this regard. PW-4 and PW-5, close

relatives of the deceased were not cross-examined regarding the

description of the articles recovered and identified. Discrepancy in the

description of one or two articles in the testimony of a witness does not

affect the prosecution case as a whole. Other contentions assailing

recoveries pursuant to the disclosure statements of the accused were

suitably dealt with by the Trial Court in the impugned judgment. We do

not find major lapse in the investigation to discredit the testimonies of the

material witnesses. Huge quantity of various valuable gold and diamond

ornaments was recovered from the respective houses of the accused at

their instance. Some of these ornaments were having specific mark of

identification/features and were not easily available commodities in the

market. PW-4 and PW-5 identified the articles in the TIP. They also

produced bills of purchase of the articles. Photographs of the deceased

wearing some of the jewelry articles were also recognized. The accused, it

is apparent had no means to procure or own costly gold and diamond

ornaments. In the personal search of A-3, 73 US dollars were recovered.

PW-4 in the list Ex.PW-4/J informed the police about the loss of some

foreign currency. A-3 had no reason to be in possession of the foreign

currency. The prosecution witnesses were having no animosity with the

accused. PW-4 and PW-5 did not nurse grudge against the accused and

were not acquainted with them. A-2 who used to work as a domestic

servant in the neighbourhood of the deceased had familiarity with the

deceased and was aware that they were a soft target. He was aware about

the status of the deceased. The deceased used to wear valuable gold

ornaments/jewelry. They used to live alone in the flat. The entry inside

the house was not friendly.

30. The circumstances discussed above establish beyond doubt

that A-1 to A-4 in further of common intention committed the crime and

were the perpetrators. They did not examine any witness in defence to

demolish the prosecution case. No plausible explanation to the

incriminating circumstances appearing against them was given in their

statements under Section 313 Cr.P.C.

(F) Conclusion

31. The robbery and the murder have been proved beyond any

reasonable doubt. The circumstantial evidence discussed above

categorically establishes involvement of all 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 instance 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.

32. 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 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.

33. In another case of „Mukund vs. State of M.P‟ (1997) 2 SCC

130, the prosecution case was that in the night intervening 17.01.1994 and

18.01.1994, the appellants trespassed into the residential house of one

Anuj Prasad Dubey, committed murder of his wife and their two children

and looted their ornaments and other valuable articles. On the next night,

the appellants were arrested and interrogated. Pursuant to the statement

made by one of the accused, gold and silver ornaments and other articles

were recovered. This Court, relying on an earlier decision reported in

„Gulab Chand vs. State of M.P.‟ (1995) 3 SCR 27, observed :

"If in a given case--as the present one--the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a Court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder."

34. In the said case, the appellant could not give an explanation

as to how he came into possession of various gold ornaments and other

articles belonging to deceased and the members of his family. The

appellant also could not give any reasonable explanation how he sustained

injuries on hail body and how his shirt became blood-stained. Thus the

presumption under illustration (a) to Section 114 of the Evidence Act was

drawn that the appellant therein had committed the murders and the

robbery.

35. In „Shri Bhagwan vs. State of Rajasthan' (2001) 6 SCC 296,

the following observations of the Supreme Court are relevant:-

"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. "

36. 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. "

37. 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. "

38. In the light of above discussion, we find no illegality or

material irregularity in the impugned judgment. The appeals filed by the

appellants are without merits and are dismissed. The impugned judgment

of the Trial Court is upheld. The conviction under Sections 394/302/34

IPC and order on sentence are maintained.

39. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE

(SANJIV KHANNA) JUDGE

NOVEMBER 29, 2012 tr/sa