Delhi High Court
Sandeep Kumar Sahu vs The State on 16 January, 2013
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 25/2011
Reserved on: 9th October, 2012
% Date of Decision: 16th January, 2013
SANDEEP KUMAR SAHU ..... Appellant
Through Mr. Sunil K. Mittal, Ms. Deepti Gupta,
Mr. Kshitij Mittal, Mr. Saurabh Balwani
and Mr. Anshul Mittal, Advocate.
Versus
THE STATE ..... Respondent
Through Mr. Sanjay Lao, APP for the State.
CRIMINAL APPEAL NO. 243/2011
KAUSHAL @ BABLOO ..... Appellant
Through Mr. Rajesh Tyagi, Advocate.
Versus
THE STATE ..... Respondent
Through Mr. Sanjay Lao, APP for the State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG
SANJIV KHANNA, J:
Sandeep Kumar Sahu and Kaushal @ Babloo impugn their
conviction, under Section 302, 397 and 506-II of the Indian Penal
Code, 1860 (IPC) and the sentences imposed upon them. They have
been sentenced to life imprisonment and fine of Rs.1,000/-, in default
of which they are to undergo simple imprisonment for one month, for
the offence under Section 302 IPC, rigorous imprisonment for seven
years and fine of Rs.1,000/- and in default to undergo simple
imprisonment for one month under Section 397 IPC, and rigorous
imprisonment for three years and a fine of Rs.500/- ,in default to
undergo simple imprisonment for 15 days under Section 506-II IPC.
The prosecution case is that Sandeep and Kaushal contrived and
committed murder of Raj Sahu and injured Radha, the housemaid, for
the purpose of robbery, on 14th June, 2000 in House No. 6, Shankar
Vihar, Vikas Marg, Delhi.
2. It remains undisputed that Raj Sahu had a homicidal death. Post
Mortem Report (Ex. PW15/A) and statement of Dr. Sarvesh Tandon
(PW-15) conclude that the deceased suffered, as many as, 13 injuries
or wounds on her body. This has also been established in the Death
Report (Ex. PW28/B) which was proved by Inspector Niranjan Singh
(PW-28). Radha, maid in the same household, suffered injuries, as
proved by her Medical Report (Ex. PW24/A) which is the MLC
conducted on 14th June, 2000 at 2.50 P.M. It shows, in her X-Ray, that
she suffered, as many as, eight wounds and had fractured parietal bone
and third metacarpal of the left hand. Dr. S. Mehra (PW-24),
Specialist Radiology, RML Hospital, who had examined 13 year old
Radha, proved this and opined that the head injury was possible if a
person had fallen from a height, head down. MLC (Ex.PW-24/A)
delineate various incise wounds inflicted on Radha. In view of the
injuries suffered by Raj Sahu, who was present in the same house at
the same time, and evidence discussed below, it is difficult to sustain
that the injuries on Radha were accidental and not deliberate. Radha,
according to the prosecution, had died and, therefore, could not be
produced as a witness. Radha‟s death has been disputed by the
appellants and the said aspect has been addressed subsequently.
3. Manoj Sahu (PW-2), Monika (PW-5), Janaki (PW-30) and Ram
Kumar (PW-1) have substantiated that the house was robbed and
various articles, including jewellery, were missing. The police officers
Inspt. Niranjan Singh (PW 28) and others confirm that the belongings
were scattered around, when they reached the crime spot.
4. The core issue, in the present case, is whether the two appellants
had committed the said murder, injuries on Radha and the robbery?
5. Appellant Sandeep Sahu is the son of the deceased Raj Sahu‟s
widowed sister and Kaushal is an alleged accomplice, who joined
Sandeep Sahu, on 14th June, 2000, to commit the said offences.
6. In order to appreciate the prosecution version and the
submissions made by the two appellants, it would be first appropriate
to briefly note the statements made by Manoj Sahu (PW-2), Monika
(PW-5), Janki (PW-30), Ram Kumar (PW-1) and Inspector Niranjan
Singh (PW-28), the Investigating Officer. Ram Kumar (PW-1) is the
husband of the deceased and has averred that on 14th June, 2000 he was
at his place of work at Noida with his younger son Sanjeev Kumar.
His other son Manoj Kumar (PW-2) had returned to the house at Vikas
Marg, at about 12.30 noon, to take his wife to a private doctor as she
was pregnant. At about 1.30 P.M., PW-1 received a telephone call
from Manoj (PW2) requiring him to return home immediately. Soon
thereafter, Monika (PW-5) his daughter-in-law asked him to come
back quickly because his wife had been murdered. He rushed back
with his son Sanjeev and saw his wife lying dead on the bed. She was
severely injured and her head was crushed. There were blood stains on
the wall. Radha, the maid servant was bleeding profusely and lying in
the drawing room. They thought Radha was dead but the SHO, who
reached the spot within 2-3 minutes of their arrival, noticed some life
in her and moved her to the hospital. His wife Raj Rani, the deceased
was also taken to the hospital but declared as brought dead. The
almirahs were open and articles were scattered. He was in a state of
shock and could not minutely observe what was missing. Finger prints
and other incriminating material/evidence were lifted and photographs
were taken. At about 8.00 P.M., Monika her daughter-in-law verified
and made a list of missing items which included gold chain, one top
and bangles worn by the deceased. Some silver items like key chain,
artificial jewellery, tikka and mangal sutra were also missing.
Rs.25,000/- in cash, which was kept after the jagran, had been stolen.
Three-four days after the occurrence, appellant-Kaushal had pointed
out the place at Yamuna Pusta where he had concealed his clothes.
These clothes consisting of one pant, shirt and shoes were taken into
possession. Thereafter, the appellant Kaushal took them to Bapa
Nagar, Karol Bagh from where a pistol was recovered. He identified
the stolen items which were recovered subsequently and were made
subject matter of Test Identification Proceedings (TIP, for short). He
identified the gold bangles, gold chain, mangal sutra, silver coins,
tikka, artificial jewellery, silver key chain, pajeb and other
miscellaneous items. Some currency notes were also recovered. He
identified the recovered jewellery which was also produced in the
court. He also identified one helmet (Exhibit P-25) and stated that the
said helmet was of appellant-Sandeep. He identified Sandeep, who
was present in the court. In the cross-examination, he accepted that he
only knew Sandeep and had seen Kaushal for the first time. Earlier
Kaushal was shown to him in muffled face and then he saw his face in
the court. His wife used to always wear mangal sutra, chain and
bangles which were missing. The helmet of Sandeep was identified by
his brother Deepak and his son Sanjeev and was taken into possession
next day, i.e., on 15th June, 2000 in the morning around 9.00 A.M. In
the cross-examination, he accepted the position that when he reached
back home he doubted Janki‟s involvement. Janki had been working
in their house for about 1 ½ years but her sister Radha had joined only
15-20 days prior to the occurrence. Janki was taken to the police
station for interrogation. There, Janki for the first time had revealed
Sandeep‟s involvement and had stated that Sandeep was accompanied
by another person. As far as he remembered, Janki remained in the
police station through the night. He had told the police that Janki
should be interrogated as he had suspected her involvement in the
occurrence. He could not recollect when Janki returned from the
police station but stated that Janki had told them about Sandeep‟s
involvement with another person. Sandeep was like his own son but
he had no intent of taking him in his own business. He used to
frequently visit their house and even used to spend the night there.
Sandeep had sufficient knowledge about their business and financial
position and used to visit their factory. Normally they used to keep
about Rs.20,000-40,000/- at the home. The house in question had
entrance from the front and back, but the back entrance was always
kept locked. He denied that his son had illicit relations with Janki.
7. Manoj Sahu (PW-2) has deposed on identical lines and has also
averred that they had initially suspected Janki. PW-2 has averred that
he came back from the work at about 12.15 P.M. and, thereafter, had
taken his wife to a doctor. He returned back at about 1.30 P.M. and
rang the bell as he could not open the main door with his key. Janki
opened the door after some time. She was crying and had stated that
Bibiji, i.e., mother of Manoj Sahu and Bahan, i.e., Radha had been
killed. When he entered the house with his wife he saw that the back
door of the house, which normally remained shut, was open. On the
first floor he saw Radha smeared with blood in the drawing room. In
the bed room his mother was lying. She too was smeared with blood.
He informed his father and also made a call at No. 100. SHO, on his
arrival, noticed some life in Radha and she was taken to the hospital in
an ambulance. Incriminating evidence/material, i.e., open bottle, knife,
hammer etc. were seized and sealed. He noticed that the gold chain
worn by his mother was missing but he being in shock did not notice
about other ornaments on her body. On the basis of his statement
Exhibit PW-2/A, FIR was registered. After they came back from
cremation, Janki had disclosed and claimed that Sandeep and his friend
were involved. In the cross-examination, PW-2 had stated as under:-
"I had enquired from Janki as to who had killed my
mother and her sister. I simply asked her as to what
had happened. Again said I did not ask her the name
of the assailant and again said I asked her the name
she said nothing as far as I remember and I rushed in.
After looking at the bodies of mother and her sister I
had enquired from Janki as to who had killed them
but she said that she does not know. We had told the
police that we were suspecting Janki. I do not
remember whether particularly I had told the police or
my father had told the police about this fact. I had
sent my wife to the house of a neighbour. She was
sent to the neighbour‟s house after arrival of my
father. May be my father possibly saw my wife on
his arrival but I am not sure. My wife was earlier
sitting in Snow White Showroom which is in the
neighbourhood. I do not remember whether any other
member of our family was also sitting in that
showroom. Janki had also gone to the showroom
later on."
8. PW-2 averred that after they came back from the cremation
Janki was interrogated in the house by the police and then they came to
know that appellant Sandeep Sahu and his associates were involved.
Janki had told them that she was given threats and because of fear she
had not disclosed Sandeep Sahu‟s name earlier. He further deposed
that Sandeep was like his younger brother and used to visit them
frequently. However, after the incident Sandeep did not visit the
house. So they became suspicious about his involvement. Sandeep‟s
brother Deepak and his mother had come to the house and had pointed
out towards the helmet lying in the hall on the ground floor. Next day
on 15th June, 2000, he along with the police and Janki, went to search
Sandeep in a police jeep. Sandeep was found standing in the corner of
his gali and was apprehended. On his personal search Rs.2,000/- were
found in his pocket. He was interrogated and on the basis of his
disclosure statement one pant and shirt of black colour, which Sandeep
was wearing at the time of the incident, was seized from parchatti of
his house. Rs.3,500/- or Rs.4,000/- were also seized from the pillow.
Sandeep had disclosed that his two associates Sitaram and Kaushal
were involved. Janki had also given the name of Kaushal but Kaushal
had never visited their house before and he did not know him. In
further cross-examination he accepted that Sandeep used to come in
their house every second or third day till two months prior to the
occurrence. On being questioned, Sandeep had then stated that he was
then busy due to some business matters. However, he had not given
any financial help to Sandeep because Sandeep‟s mother was a
working lady. As Sandeep was considered to be a member of the
family, they had told him if he required any help, it would be made
available. The entry to the house was only from the front side and the
rear gate of the house was locked. PW-2 pointed out that the grill of
the boundary wall on the back side was found to be broken and was
seized. He identified the said broken grill which was marked Exhibit
P-12. The list of missing articles was prepared at about 8.00-9.00
P.M. on 14th June, 2000 by his father Ram Kumar (PW-1) and his wife
Monika (PW-5). On the date of occurrence, Janki was taken to the
police station and he saw Janki next day in the afternoon after they
came back from cremation. He accepted that the first doubt of the
entire family was on Janki and to his knowledge he had not named or
expressed any suspicion on any third person or Sandeep initially. The
maid servants were not residing in the house and used to come at 9.00
A.M. and go back at 6.00-7.00 P.M. Police had taken away Janki on
the first day and he saw her, thereafter, on the second day and at that
time Janki had informed them about involvement of Sandeep. Both
Radha and Janki, 2-3 months after the occurrence, had left work and
gone to the native place Nepal. He denied that he had any relations
with Radha or Janki or he had strained relations with his mother.
9. Monika (PW-5) wife of PW-2 had averred that she was taken to
medical check up by her husband at about 12.15 P.M. on 14 th June,
2000. She was taken to Nirman Vihar for medical check-up by her
husband. At that time her mother-in-law, the deceased Raj Rani, maid
servant Radha and her sister Janki were present in the house. They
returned at 1.30 P.M. but her husband was not able to open the door
with his key. He rang the bell and after about 15-20 minutes the maid
servant Janki opened the door. She was crying and was perplexed.
Janki told them that her mother-in-law and her sister had been killed.
They went inside the house and saw the back door of the house open.
They went upstairs and saw Radha lying in injured condition with
blood in the drawing room. In the bed room her mother-in-law was
lying, smeared with blood. She noticed that gold bangles and gold
chain were missing. Household things were lying scattered. A knife
and hammer was lying near the bed. She was taken to a nearby show
room and made to sit there. Janki was also with her in the show room.
In the cross-examination she accepted the position that she did not
make any enquiries from Janki as to who had murdered her mother-in-
law and how the incident happened. She had not seen her husband also
making enquiries from Janki about the occurrence. She denied
knowledge that her husband was having illicit relations with Janki.
She averred that her family was very cordial with Sandeep, who was
like her younger brother. She denied that Sandeep had bad habits.
There were family discussions as Sandeep wanted to go to America for
studies.
10. Janki (PW-30) was produced as a witness towards the end of the
trial. Her statement in chief was recorded on 14th October, 2009 and
she was cross-examined on the same day and on 15th October, 2009.
On the date of her examination in chief her age was recorded as 21
years. On the basis of the said age, she would be about 12/13 years old
on the date of the occurrence. She admitted that she had worked 9
years back at Shankar Vihar in the house of Ram Kumar Sahu for
about 6-7 months. On the said date about 12 noon she had gone to the
roof to wash clothes and at about 1.30 P.M. came down the stairs. She
saw the appellant Sandeep in the room of Raj Rani. Sandeep was
changing clothes. She enquired what Sandeep was doing there as
Sandeep used to come to the house, being a nephew of Raj Rani. She
identified the other appellant Kaushal, as he was present in the court,
as the second person who was present with Sandeep. Raj Rani was
lying on the floor soaked in blood. Sandeep asked Kaushal to finish
her and they were going to kill her when the door bell rang. Sandeep
asked Kaushal to tie her hands and legs and throw her in the street.
Janki was pushed and thrown on the floor by Kaushal. She was
threatened that she will be killed if she disclosed anything to anyone.
The two appellants ran away from the back door of the house. When
Kaushal left the house he had a polythene bag with him in which there
was some stuff. She opened the main door and Manoj and his wife
came in. Her younger sister Radha who used to work as a domestic
help in the same house was found lying unconscious, bleeding, in the
room below the room where Raj Rani was lying. On seeing this, Janki
(PW-30) claims she became unconscious. Later, after she disclosed
about Sandeep, he was arrested on identification made by her at Ram
Nagar. At that time Manoj (PW-2) was with her along with the police
officers. Rs.1,900/- in cash was recovered on personal search of
Sandeep. In the cross-examination she accepted that Sandeep used to
regularly come to the house and she would serve him with tea and
snacks. She came to know that PW-2 and PW-4 had rung the bell
when she opened the door. The keys of the house used to remain with
Raj Rani. She further deposed, in the cross-examination, that she had
seen nothing but the appellants changing their clothes. She
volunteered that she did not know whether there was anything like
knife in their hands. In her presence nothing was put in the polythene
bag. After opening the door she told Manoj (PW-2) and (PW-4) about
the incident as witnessed by her verbatim. The back door was
normally bolted and locked. She denied that the police had made
inquiries from her on the fateful day but subsequently averred that she
did not remember anything what happened after the incident and who
had come and inquired from her, as she was disturbed. She denied that
she had illicit relations with Manoj and the appellant Sandeep was
aware of this. In cross-examination, by the counsel for Kaushal, she
accepted the position that Kaushal did not come to their house and she
had seen him for the first time on the day of the incident. She came to
know about the name Kaushal as Sandeep had called him by his name
and asked him to kill her. PW-30 has stated that she regained
consciousness next day at about 2.00-3.00 P.M. She has further
averred that she did not remember if she had told the entire incident to
PW-2 and PW-4 after opening the door, as she was scared. She
admitted that Radha had gone to Nepal and she died there after about
10 days because of injuries sustained by her in the incident. In the
cross-examination she admitted that she had come to the court after
one Pratap had come to Nepal from Delhi and had asked her to depose.
She was told that R.K. Sahu wanted her to depose in the court. After
the incident Radha had stayed in the house of PW-1 till they left for
Nepal but after coming to Nepal they never contacted PW-1 or his
family members.
11. At this stage, we deem it appropriate to dwell into and examine
the contention of the appellants. It is pointed out by the appellants that
there is a contradiction between what PW-2 has stated in his
examination-in-chief and the cross-examination, viz., the statement
made by Janki when she opened the door at 1.30 P.M. It has been
highlighted that Sandeep Sahu and Kaushal were not named by PW-2
in his initial statement Exhibit PW-2/A (rukka) which formed the basis
of the FIR. It is contended that statement of Janki (PW-30) was
recorded by the police under Section 161 Cr.P.C. only on the next day,
i.e., 15th June, 2000. She was the prime suspect and, therefore, her
statement that she was an eye witness or had seen Sandeep and
Kaushal in the house has to be elided and dis-believed.
12. Statement by PW-2, Rukka (Exhibit PW-2/A) was recorded by
the Investigating Officer at about 5.00 P.M. on 14th June, 2000.
English translation of the relevant portion of the said statement reads as
under:-
"At about 1.30 P.M. I returned home but could not
open the main door with my key. I pressed the door
bell. Janki opened the door shouting and stated that
her sister and Bibiji (Raj Sahu) had been killed. Manoj
Sahu PW-2 noticed that the back door on the ground
floor was open and on the first floor in the drawing
room Radha sister of Janki was lying drenched in
blood. In the bed room her mother was lying on the
bed again smeared in blood. Broken glass were lying
all over. Manoj Sahu made a telephone call on number
100 and the PCR van took his mother to Anand
Hospital. Radha was taken in an ambulance to
hospital. It was learnt that Manoj‟s mother had died.
Gold chain which used to be worn by Manoj Sahu‟s
mother was missing. Household articles were lying
scattered all over but Manoj Sahu was not fully aware
and had knowledge about household articles and the
details of the missing articles will be made available
later on. Manoj Sahu‟s mother and household
articles/assets have been stolen and Janki‟s sister
Radha had suffered injuries."
13. The aforesaid statement does not specifically refer to Sandeep or
Kaushal or to Janki‟s statement, when she opened the door, that
Sandeep and Kaushal were the culprits. Manoj (PW-2) in the said
statement did not claim that Janki had given names of Sandeep or
Kaushal when she opened the door. PW-2‟s claim, in the examination
in chief, that Janki had named the appellants when she opened the door
but this as noticed is not factually correct. However this cannot be a
ground to reject and discard his entire testimony as unworthy of
credence and devoid of truth. PW-2, on the said aspect, contradicted
himself in the cross examination. We have also quoted the statement of
PW-2, in his cross-examination, in which PW-2 has not averred that
Janki after opening the door had named Sandeep or Kaushal.
Similarly, Janki (PW-30) in her cross-examination has averred that
when she opened the door she was perplexed and shaken and did not
name Sandeep or Kaushal as the culprits. The aforesaid position
appears to be correct, in view of the fact that Ram Kumar (PW-1) and
Manoj Sahu (PW-2) have categorically stated that they suspected and
believed that Janki was behind or was involved in the said crime. The
fact that Janki had remained quiet and did not name the third person
and their involvement fortifies the said belief and suspicion. PW-1 and
2 have also averred and stated that Janki (PW-30) was thoroughly
interrogated and questioned by the police on 14 th and 15th. This is
correct and gets confirmed from the statement of Inspector Niranjan
Singh (PW-28). The statement made by Janki (PW-30) that she
became unconscious and regained consciousness on the next day, i.e.,
15th June, 2000 at 2.00-3.00 P.M. is not correct. Unconsciousness for
the said long period is implausible and contrary to the statements of
PW-1, PW-2 and PW-28. Possibly Janki (PW-30) did not want to state
that she was a prime suspect and interrogated and kept in police
detention. This contradiction by PW-30 does not merit rejection of her
entire testimony. Thus we disbelieve this part of PW-30 statement but
do not find any reason to discard or ignore the material and relevant
averments made by her. Her statement in the trial Court was recorded
more than nine years after the occurrence on 14th October, 2009.
Minor discrepancies do not doubt or dent her entire statement. PW-30
may not have recalled when and what time police officers had made
inquiries for the first time from her. For the same reasons, the
contentions that PW30 in the cross-examination had stated that it was
winter season when the occurrence had taken place and she and her
sister had taken employment together, cast doubt on veracity of the
deposition of PW30, is without merit. Her averment, that it was
winter, does not carry any weight as the occurrence had taken on 14th
June, 2000, and her presence cannot be doubted. We accept the
testimony of PW1, PW2 and PW5, who have categorically deposed
that Radha was taken in employment and she started working 15-20
days before the occurrence. PW30, in her examination-in-chief had
stated that she had worked for 6-7 months as a maid in the house of
Ram Kumar Sahu. PW30 in her examination in chief had stated that
she had seen Sandeep changing his shirt but had not attributed any
such act to Kaushal. However, in the cross-examination, she had
claimed that she had seen both of them changing their clothes/shirts.
This ambiguity in the statement of PW-30 again does not create any
dent or doubt about her core testimony that both Sandeep and Kaushal
were there and had threatened her and ran away from the back door.
14. Before we examine other contentions of the appellants, it will
be appropriate to refer to the statement of the Investigating Officer.
Inspector Niranjan Singh (PW-28) has stated that DD No. 9A was
marked to him for investigation and when he visited the spot of
occurrence, i.e., House No. 6, Shanker Vihar, Vikas Marg, Delhi, he
saw that blood in the drawing room and in the bed room. Blood stain
was there on the curtains, walls etc. He has further averred that no
witness was present when he reached the spot on the first occasion.
Radha had been taken to RML Hospital and there she was declared
unfit for statement. He reached Anand Hospital and came to know that
Raj Rani Sahu was declared brought dead. He went back and then
spoke to Manoj Kumar Sahu and recorded his statement (Exhibit PW-
2/A). We do not think there was extra ordinary delay in recording the
said statement at 5.00 P.M. As noticed above, Monika (PW-4) was
pregnant and she was shifted from the spot to a nearby show room.
First and foremost duty of the police officers was to try and provide
medical aid and treatment to the injured, i.e., Raj Rani and Radha.
They both were taken to the hospital in the PCR van and in the
ambulance. The Investigating Officer followed them and had gone to
RML Hospital, where Radha was admitted, and then returned to the
spot. Thereafter he collected evidence/material including the broken
iron grill, on the ground floor at the back side boundary wall (seized
vide Exhibit PW-2/O). PW-28 had thereafter interrogated Monika
(PW-4) and Janki (PW-30). The dead body of Raj Sahu was then sent
to the mortuary at Subzi Mandi. He again went to RML Hospital to
record statement of Radha and, after permission was granted by the
doctor, her statement was recorded. PW-28 has stated that on 15th
June, 2000 at 9 A.M. duty officer had informed him that he had
received a telephone message from Ram Kumar Sahu that a helmet
was found on the ground floor of the house and the said helmet did not
belong to him. Thereafter he went to the spot in question, i.e., the
house, and reached Subzi Mandi mortuary where post mortem was
conducted and the dead body was handed over to PW-1 and PW-2.
The family members of the deceased were busy in making arrangement
for performing last rites of Raj Sahu. Between 12.45 to 2.45 P.M. PW-
28 interrogated Janki the maid servant in the house of Ram Kumar
Sahu (PW-1). PW-28 has averred that then Janki disclosed that she
had seen Sandeep and his associate Kaushal committing murder.
Manoj Kumar Sahu also made enquiries. Thereupon, PW-28 along
with Manoj Sahu and Janki went to Chander Nagar area and accused
Sandeep was identified by Janki and Manoj Sahu. On his personal
search Rs.1,900/- was found in his nicker and was seized. He was
interrogated. Thereafter, Janki was asked to leave the place and
allowed to meet her injured sister Radha. On the basis of disclosure
made by Sandeep, the police team searched the room on the ground
floor of his house and, from the miyani, Sandeep took out the pant and
shirt which he was wearing at the time of offence. Sandeep was also
taken for medical examination and MLC marked Exhibit PW-28/A was
recorded. Two wheeler scooter bearing registration No. DEU 1733
belonging to Nand Kishore Sahu, maternal grandfather (nana of
Sandeep) was seized. Search was made to find and interrogate
Kaushal and Sitaram but without success. Sitaram was ultimately
arrested on 18th June, 2000 near Karol Bagh and was interrogated. He
disclosed the address and location of Kaushal, his cousin. Kaushal
could not be located at his residential house. Police remand of Sitaram
was allowed and on 19th June, 2000 they went to village
[email protected] and, in the intervening night of 20th/21st June,
2000 appellant Kaushal was arrested from his house in the said village
vide memo Exhibit PW-8/B. His disclosure statement (Exhibit PW-
19/C) was recorded. Appellant Kaushal produced his uncle‟s bag from
his room which contained pant, shirt, towel, etc. Kaushal disclosed
that the looted property was lying in the house of his uncle Baijnath, in
village Rasoolpur. On the basis of disclosure, they reached village
Rasoolpur in the early morning of 21st June, 2000 and, from the
chapper of the house, appellant Kaushal produced a bag containing
jewellery made of gold, silver, etc. Rs.6,490/- were also seized vide
seizure memo Exhibit PW-13/E. The said jewellery items in question
were 14 in number and collectively marked Exhibit PW-28/P-3.
Rs.6,490/- were also included and marked Exhibit PW-28/P-3. In his
cross-examination PW-28 had stated as under:-
"...I had come to know after recording statement of
the complainant that he is not the eye-witness but the
complainant had told that when he reached to the
house in question Ms. Janki, the maidservant had
opened the door and she was crying that somebody
had killed Mrs. Raj Sahu. The complainant entered
into the house and saw that one maidservant Kumari
Radha is in injured condition and his mother Mrs. Raj
Sahu is also badly injured therefore he made call to
PCR.
The complainant had told me that he had tried
to know from both the injured persons as to who and
how injuries have been received to them but the
injured persons were not able to tell the same. I had
not recorded the same in the statement of complainant
Sh. Manoj Sahu. After that I had made enquiries for
about 40-45 minutes from other family members and
Ms. Janki, the maidservant also but none told me
about any person who has seen the incident."
He had further stated:-
"...I had enquired from Ms. Janki as to why she has
not gone with her injured sister in the hospital. She
was perplexed and was not able to give her statement
on that day. She was not aware in which hospital her
sister was taken. She could not have taken her sister
to hospital because she was not well known with the
area.
...On 14.06.2000, I had made inquiries from Janki but
did not record her statement. Vol. It was recorded by
15.06.2000. On 14.06.2000, Janki did not disclose
the name of any of the culprits as she was nervous.
Janki did not disclosed that murder was committed in
her presence and that she was witness to murder.
Janki had told me on 14.06.2000, that at about
12.00pm she was working on 2nd floor of the house.
Janki had told me on 14th that after washing of the
clothes as she came down to the bedroom of the
deceased she witnessed that "Biwi ji was killed on
14th and her sister namely Radha was also injured and
was lying unconscious. I had inquired from Janki as
to the identity of the culprits who had committed the
murder. Janki told me that she did not see as to who
has committed the murder on 14.06.2000. Janki was
nervous and she was not in a position to answer my
queries. Nothing else was disclosed by Janki at that
time about the incident. Neither Ram Kumar Sahu
nor Manoj Sahu expressed any suspicion about the
identity of the murderers on 14.06.2000. Janki did
not disclose me if she had also sustained injuries in
the incident nor she was injured at that time.
....I had recorded the 1st statement of Janki at
Chander Nagar where she had led the police party to
identify the culprit Sandeep Kr. Sahu on 15.06.2000.
I had gone to the house of Manoj Sahu to make
inquiries in this case where Janki had met me and she
was thoroughly interrogated upon which she
disclosed the identity of culprits."
15. PW-28 had stated that there was no evidence of forced entry to
the house. This statement was made in the cross-examination and it is
not the case of any party that there was forced trespass into the house.
Thus it transpires from the statement of PW-28 that PW-30, in the
initial stage on 14th June, 2000, had remained quiet and did not
implicate anyone. However, we do not agree that the appellants are
entitled to acquittal for the said reason. The delay in recording her
statement and her naming the appellants has been explained and should
be accepted for several reasons elucidated hereafter.
16. PW-30 is a truthful, credible and honest witness. She had been
working as a domestic help at Sahu residence. Her presence, in the
house, at the said time is natural and normal and has been proved from
the statements of Ram Kumar (PW1), Manoj Sahu (PW-2) and Monika
(PW-5). She has very transparently stated the actual occurrence as
what she had seen. She had not seen Sandeep Sahu and Kaushal
actually killing or giving injuries to Radha or the deceased Raj Rani.
When she came down from the terrace, she saw Sandeep Sahu and
Kaushal. Sandeep Sahu was changing his shirt. She saw that Raj Rani
was lying injured and smeared in blood. The door bell rang and PW-
30 some how was saved. She was warned and threatened by the
appellants before they escaped. Subsequently, when interrogated, she
gave the names of the perpetrators, including the name of accomplish
of Sandeep as Kaushal which she came to know because Sandeep had
addressed the second person as Kaushal.
17. PW-30 was a small girl, at that time, aged between 12-14 years.
Apprehension, trepidation and timorousness felt by her in the said
situation can be easily understood and should be accepted. She had
seen the horrific incident in which her sister Radha was injured and her
employer Raj Rani was murdered, in a brutal manner. She was shaken
up, nervous and gripped by fear as she was treated as a prime suspect
by the employers, who were well off, rich and powerful. She was a
villager from Nepal who had moved to the big city of Delhi, only 5-6
months back, and had taken employment in the house. The prime
culprit was a close relative of the employers and was treated by them
as a family member. He was young, city bread, aggressive and worldly
wise. Her word and allegations against the appellant Sandeep Sahu
possibly would not have merited approval and acceptance. She was
threatened by the culprits/perpetrators and was being blamed and
suspected by the employers, who would have displayed their angst and
anger. Her silence, fright and hopelessness, keeping in view her social
and economic background, her tender age of 12-14 years and other
factors should be respected and given due cognizance. The possibility
that she would be an easy target and could be framed for murder
despite her innocence must have troubled her. The difficulty in
naming a family member as the perpetrator concerned and that she
would be disbelieved, was a real possibility to her. We cannot
discount the threats which had been given by the appellants Sandeep
and Kaushal. Injuries caused to Raj Rani and Radha were in her
knowledge. It was only after thorough interrogation that she spoke out
but it appears that neither the Investigating Officer nor the deceased‟s
family were initially ready and willing to accept the said statement.
PW-30 was taken to the house of Sandeep, who was found in the gali,
and he was interrogated. Money was found, after personal search of
the appellant, and only then PW-30 was permitted to see her sister.
The fact that she and her sister Radha left Delhi and India and went
back to the village in Nepal, in spite of the fact that her sister Radha
was still under treatment and subsequently died, shows the trauma and
the loss they suffered.
18. One cannot be oblivious to the fact that Radha was Janki‟s sister,
who was brutally injured on 14th June, 2000. Radha had suffered a
fracture on parietal bone of the skull as per the MLC (Exhibit PW-
24/A) and X-Ray plates (Exhibit PW-24/ B1 to B4). Dr. S. Mehra
(PW-24), Specialist Radiology, RML Hospital‟s statement is clear and
categorical. PW-30 has averred that Radha died after about 10 days in
Nepal. Though no death certificate of Radha was produced yet there is
no reason to not accept the statement of PW-30, viz. death of Radha.
19. The contention of the appellants that Janki (PW-30) who had
appeared as a witness was not Janki who had worked in the house is an
argument of desperation and should be outrightly rejected. No such
suggestion was put to PW-30 in her cross-examination. PW-30 in her
statement in the court says that she was Janki who had seen the
incident and not a person impersonating Janki.
20. Sandeep was arrested on 15th June, 2000 and thereafter was
medically examined. His MLC Exhibit PW-28/A recorded in SDN
Hospital, Shahdara shows that on his right palm there were injuries.
There were also abrasions on his body. These are specifically
indicated and mentioned in the said MLC. As per PW-30 Janki,
Sandeep Sahu had escaped from the back door climbing over the back
wall and after removing the sharp iron grill. Sandeep Sahu in his
statement under Section 313 Cr.P.C. had not explained or stated how
the said injuries on his palm and abrasions were caused. He admitted
that he was taken for MLC but claimed there were no bruises and the
MLC was manipulated. The said claim has to be rejected as not
correct. Doctor recording the MLC Ex.PW-28 had no reason to make
the drawing of the hand indicating the abrasions.
21. We will now deal with the judgments referred to and relied upon
by the appellants. In State of Orissa Vs. Brahmananda Nanda AIR
1976 SC 2488, the acquittal of the accused in the first appeal by the
High Court was confirmed by the Supreme Court noticing that the
name of the accused was not mentioned by the material witness for a
day and a half. The explanation given for the said delay by the
prosecution was without merit and not satisfactory. However, in the
present case, we have noticed that the delay has been reasonably and
satisfactorily explained.
22. In Maruti Ram Nayak versus State of Maharashtra, (2003) 10
SCC 670, the Supreme Court disbelieved the testimony of PW-3.
Discrepancies in the statement of the said witness recorded by the
police were noticed, as at the first instance he had not named or stated
that the two accused had attacked the deceased. For this there was no
explanation. There was also unwarranted delay on the part of the
Investigating Officer in recording his statement. In these
circumstances, evidence of the PW-3 was held to be insufficient to
prove the offences against the accused without there being any material
corroboration from other independent acceptable source.
23. In Jagjit Singh Vs. State of Punjab, AIR 2005 SC 913, the
Supreme Court accepted the contention of the accused that there was
no explanation why there was delay of 3 days in recording of statement
under Section 161 Cr.P.C., when the Investigating Officer knew that
the statement of the said witness had already been recorded by the
doctor earlier. The said witness was a girl of 7 years and there was
possibility she might have been tutored. The Supreme Court rejected
the contention that PW-6 was in shock and was not in a position to
make a statement. The PW-6 had given explanation that the accused
earlier was known. This was disbelieved observing that there was no
evidence that PW-6 had ever seen the accused and in her earlier
statement she had not named the father of the accused. Another factor
noticed by the Supreme Court was that motive to commit the heinous
offence against the relative was not established.
24. Similarly, in Chander Shekhar @ Shekhar Vs. State of NCT of
Delhi, 2011 [3] JCC 2053, a Division Bench of the High Court did
not accept the testimony of a witness for various reasons including that
the witness herself was the prime suspect. The said witness had,
however, claimed that she was not at the place of occurrence as she
had gone to see a movie. The investigating officer had not conducted
any investigation on the said aspect and in the absence of
corroboration, her statement was held to be debatable. In the said
decision, on the question of last seen, it was noticed that there was time
gap as per the post mortem and when the accused was last seen with
the deceased.
25. In Abdul Sattar vs. State 2009 (4) JCC 3179, statement of two
alleged eye-witnesses were recorded after substantial delay. This it
was held was abnormal. PW13 therein, brother of the deceased, one of
the alleged eye-witnesses, made a statement implicating the accused on
the next day. This was disbelieved as PW13 had stated that he had
after seeing the occurrence gone to his house but fell unconscious in
front of his mother and two sisters. He regained consciousness after
about half an hour and again went to the spot, but did not see any
family member there. It was observed that family members would not
have left PW13 unattended in case he had become unconscious.
26. In Shankar & Anr. Vs. State (NCT of Delhi) 2010 (3) JCC
2067, the accused was acquitted giving benefit of doubt in view of
unnatural conduct of the so-called eye-witnesses, who did not raise any
alarm or take the deceased to the Doctor or report the matter to the
police or neighbours though they were close relatives i.e. the mother
and wife of the deceased. In these circumstances, it was held that their
testimony did not aspire confidence on which implicit reliance could
be placed.
27. We do not agree that the decision of the Division Bench of this
Court in Crl. Appeal No. 84/2001 titled Ravinder Rathi vs. State of
Delhi decided on 13th April, 2012, is applicable. In the said decision, it
was noticed that there were omissions in the investigation which had
created doubt about the role of the accused. There was no
corroboration to the statement and the statement of the eye-witness was
recorded after considerable delay and explanation given for the
unwarranted delay was unacceptable. The said judgment quotes from
Maruti Rama Naik (supra). In Pintoo vs. State 2010 (2) JCC 1286,
the contention that the witness was petrified and scared, was rejected
as he had claimed that he had chased the accused but did not report the
matter to the police who were available merely at the distance of 500
mtrs.
28. In Vijay Kumar & Anr. Vs. State, 60 (1995) DLT 261 (DB), a
Division Bench of this court came to the conclusion that a false eye-
witness had been introduced. In the said case, there were repeated and
significant lapses on the part of the prosuection/investigation which
had dented the core case. Various contradictions have also been
pointed out.
29. In Durga Prasad vs. State 2009(4) JCC 2533, delay of six days
in recording of the statement when the witness belonged to the same
locality and had met the police on the same day, was one of the factors
taken into consideration by the court to disbelieve the witness. It was
held that the unwarranted and unexplained delay in recording the
statement of purported witness made the evidence unreliable. We
have in the present case examined the reasons and the cause for the
delay in recording the statement of PW-30 and held that the delay has
been satisfactorily explained. Delay in examination of witnesses when
satisfactorily and cogently explained and understandable is not fatal
when otherwise the testimony of witnesses is credible and trustworthy.
[see Prithvi (minor) Vs. Mam Raj & Ors, (2004) 13 SCC 279].
30. Reliance placed on the statement of Nand Kishore Sahu
(PW-4), grandfather of Sandeep Sahu to the effect that Sandeep Sahu
was arrested at about 3 A.M. in the intervening night of 14 and 15th
June, 2000, does not aspire confidence. PW-4 was admittedly the
„Nana‟ of Sandeep Sahu and was close to him. He has deposed that
Sandeep Sahu had come and slept in his house on 14 th June, 2000 at
about 10.00-10.30 P.M. They had already locked the doors when
Sandeep Sahu rang the bell and was permitted to come in. At that
time, Sandeep Sahu appeared puzzled/perplexed. PW-4 also agrees
that Sandeep Sahu did not go to the house of Ram Kumar (PW-1) in
spite of the fact that his Mausi-Aunty was killed/murdered. Neither
did he take dinner. This by itself is rather strange and corroborates the
case of the prosecution against Sandeep Sahu. This conduct was
unnatural and not normal. Sandeep Sahu, PW-4 claimed that he did
not want to go to the Sahu house immediately and had requested Nand
Kishore Sahu (PW-4) to let him sleep there and had stated he would go
next day there with him. We reject the contention that Sandeep Sahu
was arrested on the same night and feel that the said averment by PW-4
was because of his emotional attachment to Sandeep Sahu. The said
fact has not been borne out from any record and is contrary to the
arrest memo and statements of witnesses PW-2, PW-30 and PW-28.
31. Regarding seizure of scooter bearing number DEU 1733, again
PW-4 has tried to protect Sandeep Sahu. He accepts that on 14 th June,
2000 at about 8.00-8.15 A.M., Sandeep Sahu had come to his house for
taking his scooter. PW-4 states that on 16th June, 2000, he came to
know that that Sandeep Sahu had returned the scooter at 1.30 P.M. on
14th June, 2000 to a boy. The name of the boy was not indicated and
the said statement itself is hearsay and is contradicted by the statement
made by Jaipal (PW-6), who was working in the shop of Nand Kishore
Sahu. PW-6 has deposed that on 14th June, 2000 at about 8.00 A.M.,
Sandeep Sahu had come and taken the scooter of Nand Kishore Sahu.
He returned the scooter on the same day at about 2.00 P.M. At that
time, Sandeep Sahu was perplexed and after delivering the key, he left
the place. Sandeep Sahu was not carrying helmet with him at that
time.
32. On the basis of Sandeep‟s interrogation and clues given, the
police went to the house of Kaushal but it was locked. Neighbours
informed that Kaushal had not come to the house since previous day.
After Sita Ram, cousin of Kaushal, was apprehended, the police along
with Sita Ram went to Kaushal‟s village. On 20 th June, 2000, they
reached P.S. Karari, Allahabad, U.P and from there they were taken to
village Bazakhurampur @ Purva, at 2.45 A.M. on the night intervening
of 20th and 21st June, 2000. Kaushal was caught sleeping, in front of
his house and was identified by Sita Ram. His disclosure statement
(Ex. PW19/C and 13/D) was recorded and, thereafter, he took the
police team to village Rasoolpur where his uncle „Phoopha‟ Baijnath‟s
house was situated. A polythene bag was recovered, from a corner of
chhappar, which had jewellery and Rs.6490/-, and was seized vide Ex.
PW3/E. Accused Kaushal was produced in the court of Chief Judicial
Magistrate, Allahabad, and transit remand was obtained, after moving
an application (Ex. PW28/G). Accused Kaushal was directed to cover
his face and then was taken from lock up, P.S. PreetVihar to Yamuna
Pushta where he took out one shirt, pant and one pair of shoes which
he was wearing, at the time of committing the offence. Insp. Niranjan
Singh (PW-28) had moved an application for TIP proceedings of
Kaushal, which was marked to the Metropolitan Magistrate Kawaljeet
Arora, who conducted the proceedings on 27th June, 2000.
Metropolitan Magistrate D.K. Sharma (PW-31) had conducted TIP of
the case property.
33. According to Janaki (PW-30), Sandeep had addressed the
second person, with him, as Kaushal. On that basis, Kaushal was
implicated, otherwise, PW-30, PW-2, PW-5 or other family members
were not aware of Kaushal.
34. Accused Kaushal‟s involvement is further established on two
grounds: first, fourteen jewellery items were recovered from him, on
17th June, 2000 at his instance from village at from his uncle‟s house in
Village Rasoolpur, U.P. after the disclosure statement; second, Kaushal
was identified by PW-30 in the court. Kaushal had refused to
participate in test identification proceedings. Identity, particulars and
details of Kaushal came to the knowledge of police, on interrogation of
the appellant Sandeep Sahu, and, to this limited extent involvement of
Sandeep Sahu is corroborated under Section 8 of the Evidence Act.
35. Recoveries, made from Kaushal, further corroborate PW-30‟s
statement and are substantial in question, consisting of 14 articles, that
too found from a remote village in Allahabad. As is clear, accused
Kaushal was found first in his house, at village Purva, and then, on the
basis of his disclosure statement, recoveries, including jewellery, were
made from the house of Bajinath. The aforesaid position is established
from the statement of Constable Ramesh Kumar (PW-29) and Insp.
Niranjan Singh (PW-28). No doubt Suraj Pal (PW-16) and Ram Het
(PW-17), the private witnesses to the recovery of jewellery, have
turned partly hostile but statement of PW-16, that the police had come
to the house of Baijnath, is relevant and important. PW-16 and PW-17
had admitted their signatures in Ex. PW3/E but stated that it was a
blank page, at the time of signature. Both of them signed in Hindi.
Ram Lal Choudhary (PW-8), resident of village Purva, Distt.
Kaushambi U.P., has stated that he knew the appellant Kaushal and
Delhi Police had come to their village, to interrogate Kaushal, but he
was not aware of other facts. He admitted that he had signed some
documents. When he was cross-examined, by Additional Public
Prosecutor, he admitted that Sita Ram was present when the police
visited the village and, at his instance, appellant Kaushal was arrested.
Kaushal was his uncle‟s son and his relative. He admitted his
signatures on the recovery memo of bag Ex. PW8/A.
36. The position that PW16/17 have not supported recovery of
jewellery etc is inconsequential in view of the contemporaneous
records, i.e., Ex. PW28/G. In these circumstances, the evidence of
Investigating Officer can be accepted and need not be rejected on the
ground that the seizure witnesses had not supported the prosecution
version (see Antar Singh vs. State of Rajasthan, (2004)10SCC657;
2004 Cri LJ 1380 and Modan Singh vs. State of Rajasthan 1978 Crl
LJ 1531)
37. PW29, Constable Ramesh Kumar, Civil Police, U.P., was posted
at Police Station Kaushambhi, U.P. was not a witness to the disclosure
statements Ex. 19/C/13/D, made by Kaushal. Thus, the contention
that he has not uttered anything about the disclosure made by Kaushal
is irrelevant and meaningless. He is a witness to the recoveries made.
After the disclosure was made and recoveries were effected at Village
Kaushambi, PW28 Inspector Niranjan Singh had moved an application
before the Chief Metropolitan Magistrate, Allahabad, Ex. PW28/G.
The application specifically mentioned that recoveries of the looted
articles had been made and Kaushal was to be taken to Delhi. The
factum of recovery of the looted articles and the arrest of Kaushal was
also mentioned in the order passed by the Chief Metropolitan
Magistrate, dated 26.1.2000, also marked Ex. PW28/G.
38. We do not doubt the TIP proceedings and the identification
made by PW1, of the jewellery. Identification does not become
debatable merely because PW1 did not produce proof of ownership or
in the TIP proceedings description or identification marks of the
jewellery had not been elaborated and stated. Substantial jewellery, in
number and quantity was recovered. Jewellery found to be missing
from the body and the almirah was found to be broken. The factum
that seizure memo Ex. PW28/P-3 refers and states that some of the
items were artificial, reflect the observation of the officer making the
seizure but does not dent the recovery.
39. The revolver was recovered. It‟s relevance to the crime was not
explained and adverted to by the witnesses. However, this does not
mean that these testimonies of the witnesses or the prosecution version
should be disbelieved. Similarly, the house may be having a CCTV,
but it has not been alleged that there was a recording facility. The
location of the CCTV camera was also not alleged or stated. Chance
finger prints were lifted but they could not be connected to the
appellants. We cannot forget that the chance finger prints were lifted
from the house, where there was substantial foot falls and large family
was in occupation. Even the appellant Sandeep was a frequent visitor
to the house. In Ashok Kumar vs. State (Govt. of NCT of Delhi) 2007
(93) DRJ 463 (DB), several factors had resulted in acquittal. Important
eye-witnesses were not even questioned by the Investigating Officer,
and the manner of entry in the house remained unexplained. It cannot
be said that mere failure of the Investigating Officer to get the lifted
finger prints compared by itself had resulted in acquittal.
40. The FSL report states hair found in the hand of the deceased
were of human origin but were not similar with the sample hairs taken
from the two appellants in most of their morphological and
microscopical characteristics. This, however, is not a ground to
disbelieve the clinching evidence in form of the ocular statements,
recovery, etc. In Modi‟s Medical Jurisprudence and Toxicology, 23 rd
Edition, under the sub-heading „Hair and Fibres‟ it has been observed
that macroscopic and microscopic examinations are unpredictable as
the original qualities of hairs often get affected by the loss or gain due
to contact with atmosphere, cleansing agents, cosmetics and even food
intake. Thus, their forensic importance for individualization becomes
unreliable to be relied upon in crime cases (see page 526). Further
careful collection of the specimens of questioned and controlled hair is
a very important pre-requisite for comparative examinations.
Controlled samples to be meaningful for comparison must be full hair
with root and tip intact and also be a representative of the body part/s
concerned. Unless adequate number of hair are obtained as
questioned hairs, and sophisticated and very highly sensitive methods
like neutron activation analysis is made such comparisons would
generally be scientifically unconvincing and unsuitable as per Modi
(see pages 527-528). Therefore, on the basis of the said FSL report,
we are not inclined to disbelieve the ocular testimony of PW30 and the
other material which corroborates the said testimony.
41. We do not think that decision in Ram Kishore vs. State, 41
(1990) DLT 86, is applicable. It is again a case of circumstantial
evidence and the court on the basis of the evidence did not feel that the
complete chain of evidence proved or was sufficient to come to the
conclusion that the accused was guilty or excluded reasonable
hypothesis consistent with his innocence. In the facts of the present
case, considering and analyzing the evidence we hold that the
prosecution has been able to establish and prove beyond doubt that the
two appellants are the perpetrators of the crime.
42. The appeals are accordingly dismissed. Conviction and
sentences awarded are upheld and maintained.
-sd-
(SANJIV KHANNA)
JUDGE
-sd-
( S. P. GARG)
JUDGE
JANUARY 16, 2013
VKR/kkb
