Satyawan Dalai vs State
2012 Latest Caselaw 5755 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRIMINAL APPEAL No. 357/2011

                                 Reserved on: 11th September, 2012
%                               Date of Decision:25th September, 2012

SATYAWAN DALAI                            ....Appellant
            Through Mr. Suraj Sethi & Mr. Sudeep Sudan,
            Advocates.

                       Versus

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.:

Satyawan Dalai @ Ravinder Nayak has been convicted for

murder of Bansri Lal Dhawan, S.K. Sharma and Rita Sharma arising

out of FIR No. 564/2004, Police Station, Mukherjee Nagar.

2. As per the prosecution version, the appellant was employed as a

servant to look after Bansri Lal Dhawan, an octogenarian who was

physically incapacitated and required help. The appellant had

murdered the above mentioned three persons of the same household, in

the night intervening between 26th and 27th December, 2004 at House

No.648, 2nd Floor, Parmanand Colony, Delhi. As money and valuables

were stolen in pilfering, the motive as alleged was robbery.

3. There is no eye witness and the prosecution relies upon

circumstantial evidence.

4. Regarding homicidal death, we have statements of Dr. K. Goyal

(PW-11) and Dr. Ashok Jaiswal (PW-19), who had conducted the post

mortem of Rita Sharma and Bansri Lal Dhawan/Sudershan Kumar

Sharma, respectively. The Post Mortem Report of Bansri Lal Dhawan,

(Exhibit PW-19/A) states that there were about nine lacerated wounds

on Bansri Lal Dhawan‟s body, including those on the forehead. There

were two lacerated wounds on left side of the forehead and on the

pictorial region, in addition to abrasion over diestrum of the left foot.

All injuries were ante mortem in nature and caused by a hard blunt

object directed upon face or head. The death was caused due to cranio

cerebral injuries, which were sufficient to cause death in ordinary

course of nature. Post Mortem Report of Sudershan Kumar Sharma

(Exhibit PW-19/B) states that he had five lacerated wounds, including

those on the head. All injuries were ante mortem in nature, caused by

some hard blunt object directed upon the head and face. The death was

due to injuries, some of which were sufficient to cause death in

ordinary course of nature. Post Mortem Report of Rita Sharma

(Exhibit PW-11/A) states that she had wounds on the left side of the

head. The wounds had been caused by a blunt object. Dr. K. Goyal

(PW-11) opined that „tawa‟ could be a possible object used for causing

the said injuries. The cause of death was cranio cerebral injuries, as a

result of hard blunt object directed upon the head. The injuries were

ante mortem in nature and were sufficient to cause death in ordinary

course of nature. Post mortem, of the all three bodies, was conducted

on 28th December, 2004 at about 1/2 P.M. Time of death, in all three

cases, as per the post mortem reports, was 34-35 hours before the post

mortem was conducted.

5. There is ample evidence to establish that the appellant was

working as a servant/household help at the residence of the victims.

Meera (PW-2), a maid servant, who used to come to clean the house

and utensils, Manish Mehra (PW-3), a tuition teacher of Pulkit Sharma

son of S.K. Sharma, Pulkit Sharma (PW-4) and Kamal Arora (PW-6)

and Usha Arora (PW-7), brother-in-law and sister-in-law of S.K.

Sharma have affirmed this fact. The appellant has himself admitted

that he was employed at the Sharma‟s residence. In his statement under

Section 313 Cr.P.C., he had stated as under:

"Q1 It is in evidence against you that Meera (PW2) was working as maid servant for cleaning of house and utensils at the house of

deceased at 648 Second Floor, Parmanand Colony you were also engaged for looking after Bansi Lal Dhawan (the deceased), who was paralytic and was unable to look after himself and that you used to live in the house of deceased and you were working in the house of deceased persons for 3/4 months prior to the incident. What you have to say?

A It is correct that I was working as a servant particularly to help Bansari Lal Dhawan aged about 80/85 yrs a paralytic patient, for the last 2/3 months. There was one another servant Rejender in the house for doing routine household work. However, on 26.12.04 I had left the job in the day time with the permission of the house owner SK Sharma and after clearing my dues, I had left the house and boarded a train for going to Orissa. Other servant Rajender was left in the house at that time when I left the job. Thereafter, I never visited the said house.

Q2 It is in evidence against you that two days prior to 27.12.2004 Pulkit Sharma (PW4) son of Sudershan Kumar and Smt Rita Sharma (both the deceased)had gone with his Mausi to her house and on 26.12.2004 when PW2 Meera left the house, you were present in the house and had closed the house after she left the house. What you have to say?

A It is correct that 2/3 days prior to 27.12.2004, Pulkit Sharma had gone to his mausi‟s (ie Smt Usha Arora, PW7) house. It is correct that in the morning hours I was present in the house but during the day time I had left the job with the permission of SK Sharma and after clearing my dues, left the house. Another servant Rajender was in the house. Thereafter, I did not visit the said house.

Q3 It is in evidence against you that on 27.12.2004 at about 10.30 am when PW2 Meera went to the house of deceased person, she found

deceased Bansi Lal Dhawan lying half on bed and half on the ground and his hands were smeared with blood and blood was lying scattered and on seeing this she went down and told this fact to neighbours and you were not found present in the house and that when neighbours went upstairs they also found dead bodies of deceased Sudarshan Lal Sharma and Rita Sharma. What you have to say?

A I do not know. However, I had left the job in the day time on 26.12.04 with the permission of SK Sharma and after clearing my dues I had left the job. Another servant Rajender was at that time in the house. Thereafter, I did not visit the said house."

6. It can be discerned from the aforesaid, that the appellant clearly

accepts working as a servant with the victims and, in particular, his job

was to help and assist Bansri Lal Dhawan, who was a paralytic patient.

However, he claims that, on 26th December, 2004, he had left the job

during the day time with the permission of S.K. Sharma and after

clearing his dues, he had left the house and boarded a train for Orissa.

7. The aforesaid stance taken by the appellant appears to be

concocted. Several witnesses have deposed to the contrary.

Evidence/material, specially, the recoveries established, by the

prosecution is to the contrary.

8. Meera (PW-2), the maid has stated that the appellant used to

reside in the house. When she left the house, on 26th December, 2004,

the appellant had closed the door after her and was, therefore, present

in the house. She was the first person to see the dead bodies, at about

10.30 A.M. on 27th December, 2004. In her cross-examination, she

had stated that she used to come twice daily, in the morning and

evening, for around 30-40 minutes. In the cross-examination, she

affirmed that she had gone to the residence of the victims on 26 th

December, 2004. However, learned counsel for the appellant

submitted and relied upon the cross-examination of PW-2, where she

stated that she could not say that on 26th December, 2004, the appellant

had left the job after getting his dues/salary. There is no substratum in

the said contention. PW-2 is clear and forthright in her statement that

she had visited Sharma‟s residence on 26th December, 2004 at 10.30/11

A.M. and had left the same at 11.30/ 11.45 A.M. In the evening, she

had gone to Sharma residence again. When she left the house on 26th

December, 2004, the appellant was present in the house and had closed

the door after she had finished the work. However, she may not be

aware whether appellant had left the house, after getting his salary and

settling his dues, subsequent to her visit. Pulkit Sharma (PW-4) is son

of S.K. Sharma. As it were winter vacations, he had gone to his aunt‟s

house at South Moti Bagh. He has stated that, on 26th December, 2004,

he had called at the residence and the appellant was present in the

house. On 27th December, 2004, he came to his residence along with

his uncle and aunt and other relatives. The articles of the house were

scattered all over and several items like jewellery, important

documents, medals etc. were missing. Cash was also missing. The

appellant was not present in the house and had run away. In case the

appellant had been turned out, and had left the job after settlement of

accounts, Pulkit Sharma would have known about the same. In the

cross-examination, he denied the suggestion that the appellant had left

the job on 26th December, 2004, after clearing his account and

obtaining his salary.

9. After the robbery, police tried to search and locate the appellant.

Manish Mehra (PW-3), the tutor of the child Pulkit Sharma, had

accompanied the Investigating Officer P.C. Maan to Orissa but they

could not locate the appellant. They had gone to Balasore and had

searched him in some villages.

10. SI Chander Bhan (PW-21) had stated that on 23rd April, 2005 he

was posted in Police Station, Mukherjee Nagar as Sub Inspector. He

had gone to Balasore, Orissa in search of Ajay Behra, as they had come

to know that Ajay Behra was a friend of the accused. Ajay Behra was

finally traced on 27th April, 2005. SHO, P.C. Maan was informed and

he reached Balasore, Orissa on 28th April, 2005. A raiding party was

constituted which reached village Govindpur, Mukhra, where Ajay

Behra identified the house of the appellant. Appellant was present there

and was arrested at the spot (vide Exhibit PW-9/A). He made a

disclosure statement (Exhibit PW-9/C) and on the basis of this

disclosure statement robbed articles, consisting of Rs.72,450/- in cash

and gold karas, bangles, necklace, chain, ear rings, rings etc. and four

army medals, electric shaver, diary, cards etc., were recovered from his

house. ASI Gagan Bihari Bandhar, and other police officers from

Police Station Ramuna, had joined the raid team. On 29th April, 2005

the appellant was produced in the Court and transit remand was

obtained.

11. Ajay Kumar Behra (PW-9) was appellant‟s friend. He averred,

in his statement, that he used to work in Delhi. After marriage he went

back and started working as a hawker at Ramuna Bazar. Therefore, he

had settled permanently in Orissa. He knew the appellant because they

both used to work for caterers in Delhi. On 28th April, 2005, Delhi

Police had come to his rehri and made inquiries about Ravinder Nayak.

He disclosed that the real name of Ravinder Nayak was Satyawan,

which was also tattooed on his hand. He led the police party to village

Govindpur, Balasore and the appellant was arrested from his residence.

He affirmed the disclosure statement and the recoveries, which were

made pursuant to the disclosure.

12. Gagan Bihari Bandhar, ASI Orissa Police, who was a part of

the raid team, had appeared and his statement was recorded as PW-26.

He was along with the Delhi Police staff from Police Station,

Mukherjee Nagar, when the appellant was arrested from his village

Govindpur Mukhra. The disclosure statement (Exhibit PW-9/C) was

recorded and recoveries were made. He identified the recoveries as

Exhibits P-1 to P-14. He also identified the attaché in which the said

articles were kept as Exhibit P-15.

13. Inspector P.C. Maan (PW-35) was the Investigating Officer. He

had stated that Police came to know about the murder of the three

victims at their residence on 27th December, 2004, at about 11.05 A.M.

On the basis of information, DD entry No. 21B (Exhibit PW-35/A) was

registered. On his arrival, he found that the almirah was in a broken

condition and ransacked. Articles were scattered. On the basis of

clues given by the PW-2 to PW-7, they tried to search for the appellant.

They had also gone to Global Placement Agency and collected

photograph of the appellant, which was affixed on the form Exhibit

PW-35/F. He had stated that Delhi Police staff had earlier gone to

village Govindpur in Orissa on 29th December, 2004. However, they

had come back after searching for the accused for fifteen days, without

any success. The accused could not be traced and it was learnt that the

accused was not a resident of the said village. Photograph of the

appellant was published in the newspapers vide Exhibit PW-31/B and

C, and pamphlets (Exhibit PW-35/C) were also distributed.

Subsequently, they learned that the appellant also used to work in

marriage parties and had worked at International Hostel,

Chanakyapuri. During investigation they came to know that one Ajay,

who was earlier booked in a gambling case at PS DBG Road, knew

Ravinder and was in touch with him. Through PS DBG Road, they

came to know that Ajay was from Balasore, Orissa. Thus, PW-21 was

sent to Orissa to verify the address. He was able to trace out Ajay

Kumar Behra (PW-9) and through him they ultimately came to arrest

the appellant. He also proved the disclosure statement and the

recoveries which had been made.

14. The articles, recovered in the present case, not only include

substantial amount of cash (Rs.72,450/-) but also personal jewellery

items and medals (Exhibits P-1 to 4). These medals were identified by

Usha Arora (PW-7), daughter of Bansri Lal Dhawan, one of the

victims, who was the recipient of these medals. Bansri Lal Dhawan

was a retired army personnel. The medals in question were issued on

India‟s independence, on 15th August, 1947, and had specific

engravings. Apart from the medals, she also identified the jewellery,

watches and other articles. The recovery in the present case is

substantial and specific in form of four pairs of tops, two rings, two

bangles, one mangal sutra, one necklace etc. Four watches were

recovered. In addition, there were two karas, one necklace, two pairs

of tops, one chain, and a locket etc. which PW-7 had stated belonged to

her and were lying in the residence of her sister. (Question of

ownership is not an issue in this appeal.) In the present case, we do not

think there is a possibility or a chance that the aforesaid articles and

recoveries (Exhibits P-1 to P-14) could have been planted on the

appellant. We notice that not only Delhi police staff but police officers

from Police Station Ramuna, district Balasore, Orissa were part of the

team and had gone to village Govindpur Mukhra. Ajay Kumar Behra

(PW-9) had also joined. He is an independent person and a public

witness. In the present case, the recoveries read with other

circumstances, including statement of witnesses that the appellant was

working in the house of the victims i.e. the Sharmas, according to us

clearly establish and prove, beyond any doubt, the appellant as the

perpetrator of the said crime. Thus, recovery read with other

circumstances of last seen and abscondence completes the chain, in the

present case. It rules out possibility of any other person being involved

in commission of the said offence.

15. Learned counsel for the appellant submitted that there was no

list of missing articles and only general statement was made by PW-7,

daughter of Bansri Lal Dhawan and sister of Rita Sharma, the second

wife of S.K. Sharma. We do not agree. Pulkit Sharma (PW-4), a

teenager, had stated that the attaché used by his grandfather for

keeping personal belongings was missing. Medals belonging to his

grandfather and gold jewellery of like rings, karas, chains, tops, ear

rings were missing. He did not remember whether he had given list of

missing articles to the police or whether it was given by PW-6 or PW-

7. PW-6 had stated that in addition to cash of Rs.1 lac, jewellery

articles and other valuables were found to be missing. In the present

case, three elder family members were murdered. For the witnesses to

recollect and give exact details of jewellery was difficult. This is

understandable. The medals, which were found, are specific and are

not available in the market and, as noted above, the recoveries made

are substantial. Recoveries were made from a remote village in Orissa.

16. In Earabhadrappa v. State of Karnataka 1 (1983) 2 SCC 330,

the deceased was throttled to death and the appellant was taken into

custody and gold ornaments and other articles were recovered at his

instance. The Supreme Court observed that:

"13. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of PW 3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by PW 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to Section 114 must depend upon the nature of the 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. There was no lapse of time between the date of his arrest and the recovery of the stolen property."

17. Similarly, in case of Mukund v. State of M.P. 2 (1997) 10 SCC

130 the prosecution case was that in the night intervening 17-1-1994

and 18-1-1994, the appellant had trespassed into the residential house,

committed murder of the wife and two children and looted the

ornaments and other valuable articles. On the next night, the appellants

were arrested and interrogated. Pursuant to the statement made by one

of the appellants, gold and silver ornaments and other articles were

recovered. This Court reiterated that:

"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."

18. Learned counsel for the appellant submitted that in the DD

entry, rukka, FIR Exhibits PW-14/A, PW-35/A and PW-10/B, name of

missing servant has been described as one Rajender and not Ravinder

Nayak, i.e., appellant. It is submitted that one Rajender was employed

as a servant and house help by the victims, i.e., the Sharmas. In his

view, this also shows that the appellant had left the job and he has been

wrongly implicated. In this case, the rukka was prepared and

dispatched at about 12.15 P.M. on 27th December, 2004. It records the

scene at the spot- the three dead bodies having wounds, the ransacked

house and broken almirahs/lockers. It mentions that on inquiry it was

learnt that the house servant Rajender, who used to stay there, was

missing. ASI Roshan Lal (PW-18) has stated that there was a house

servant and he was missing and, as per the relatives, his name was

Rajender but when Inspector P.C. Maan interrogated the house maid

she had given the name of the servant as Ravinder Nayak. The said

rukka was recorded by Inspector P.C. Maan (PW-35). It was not

recorded on the basis of statements made by PW-4, PW-2, PW-6 or

PW-7. Their statements under Section 161 Cr.P.C. were recorded

subsequently after the rukka. In their statements they had clearly

named the house help as Ravinder Nayak and not Rajinder. It is to be

noted, the words „Rajender‟ and „Ravinder‟ are phonetically similar. It

has come on record that the appellant had started working with the

Sharmas only about 2-4 months back. The name Rajinder may have

been given by the neighbours and accordingly recorded. It is a

possibility that neighbours might not have known the servant well

enough to register his proper name. We may also note that Constable

Nirmal Tamang (PW-15) had stated that they had reached the spot and

started the investigation by seizing the relevant material. Rukka was

prepared and handed over to him, to be given to the duty officer Police

Station, Mukherjee Nagar. He had not stated and it was not suggested

that the name of the servant given by the relatives was Rajinder. We

do not think the description given in the rukka/FIR exonerates the

appellant or casts doubt about involvement of a third person called

Rajender, who was allegedly working as a servant.

19. Other points raised by the learned counsel for the appellant may

be noticed.

(i) The recovery is of only Rs.72,490/- whereas the witness

PW-6 had stated that Rs.1 lac in cash were missing.

Sudhir Kumar (PW-5), a property dealer, had stated that,

one day prior to the murder, he had delivered Rs.4.5 lacs

to S.K. Sharma, for a deal.

(ii) PW-18 had stated that chance finger prints were lifted.

However, PW-35 had admitted that chance finger prints

were not sent for examination by the expert.

        (iii)    Bank officials, from where Rs.1 lac in cash were

                 withdrawn, were not produced.          PW-11, who had

conducted the post mortem of Rita Sharma, was not

shown the weapon of offence, i.e., tawa.

(iv) The seizure memo (Exhibit PW-35/F), i.e., the application

form of the appellant with Global Placement Service, was

seized by PW-35. The owner of the said placement

service, Amit Jaiswal, was not produced and his statement

was recorded after the arrest of the accused.

(v) FIR was initially registered under Section 302 and not

under Section 394 IPC. Section 394 IPC was added on

29th December, 2004.

(vi) Statement of Ajay Kumar Behra (PW-9) is full of

contradictions. Ajay Kumar Behra contradicts statements

of PW-21 and PW-35 regarding travel to Balasore and

thereafter arrest of the appellant in April, 2005.

(vii) There were two weapons of offence but only one weapon

was allegedly recovered.

(viii) SI Anuj Nautiyal (PW-31), who had gone to village

Gopalpur district Balasore, Orissa on 27th December, 2004

was not again associated with the second trip to District

Balasore, Orissa in April, 2005.

(ix) At the time of arrest, sister, brother and father of the

appellant were present, as per the statement of PW-9, but

they were not made parties to the recovery. This is

affirmed by the statement of PW-35, who had stated that

father, brother and an old lady were present.

(x) The Inquest papers were received by the doctors, PW-11 and PW-19, on 28th December, 2004 after a long delay. In the inquest papers, the weapon of offence was not mentioned.

(xi) No site plan of the place of recovery was prepared. The

house of the appellant was not photographed.

20. The contentions (i) and (iii) have no relevance and have to be

rejected. Rs.72,490/- was recovered after nearly four months. It is

reasonable to assume that some amount may have been expended by

the appellant. Failure to produce the bank officials is not relevant. As

noticed above, three of the elder family members have died. PW6, and

others, may not be fully aware of the cash which was lying at home.

PW-5, the property dealer, stated that he delivered Rs.4.5 lakhs to S.K.

Sharma, one day prior to the murder. It is clear from the statement of

the said witness that there was some cash available in the house.

Similarly, the contentions at (ii), (iv), (v), (vii) and (x) do not destroy

the core or main case of the prosecution. Recovery of alleged weapon

of offence in this case is not a circumstance/factor relied upon by us.

Chance prints were lifted but it appears that finger prints of the

appellant were not taken and, therefore, the chance prints and finger

prints of the appellant were not sent for examination by the expert.

This may be a lapse on the part of the investigating officer but not a

fatal one. The conviction of the appellant can be based on ample

evidence and material already on the record. Appellant has admitted

that he was working in the house of Sharmas, hence, non-production of

Amit Jaiswal in such circumstances is inconsequential and has not

caused miscarriage of justice. Failure of mentioning of Section 394 in

the FIR was an error. The rukka etc. fairly demonstrate that the house

was ransacked and almirah was broken/open and it was the case of

robbery. Initially details of missing items were not available. We do

not find any material contradiction in the statements of PW-9 and PW-

21 or PW-35 relating to travel to Balasore and thereafter arrest of

appellant in April, 2005. Failure to associate PW-31, when the second

trip was made to District Balasore and arrest of appellant does not dent

or negate the prosecution‟s case whatsoever. It is not mandatory that

the same police officer who had gone to Balasore once, should have

been associated when the second trip was undertaken in April, 2005.

Similarly, it was not necessary that the sister, brother and father of the

appellant should have been made parties to the recovery. PW-9, who

is an independent person, was made a witness to the recovery. The

inquest papers were received by PW-11 and PW-19 on 28th December,

2004 and, on the same day itself, the post mortems were carried out.

The murder was committed on 27th December, 2004. We do not think

there is any substance or cause to suspect that the inquest papers were

manipulated and did not reflect correct position. Site plan of the place

where the occurrence had taken place was duly prepared and has been

marked Ex.PW-30/A. We do not think that failure of the prosecution

to prepare site plan of the place of recovery, or failure to get the

recovery photographed, has caused or created doubts. The appellant

was arrested from his village. It is quite probable that no professional

photographer would be available in the village. Getting a photographer

from outside would have caused unnecessary anxiety and may have

even alarmed or warned the person concerned. Secrecy had to be

maintained.

21. In view of the aforesaid position, we do not find any merit in the

present appeal. The appeal is thus dismissed. The conviction and

sentence of the appellant are upheld.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(S. P. GARG) JUDGE September 25, 2012 VKR