Delhi High Court
State vs Ravi Kapoor & Anr on 4 January, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Death Sentence Reference 01/2016
Reserved on: November 20, 2017
Decision on: January 04, 2018
STATE ..... Appellant
Through: Mr. Rajiv Mohan, SPP for the State
along with Ms. Priyanka Singh and Mr. Tejasva
Mehra, Advocates.
Versus
RAVI KAPOOR & ANR ..... Respondents
Through: Ms. Dimple Vivek, Advocate for R-1
Mr. Amit Kumar with Ms. Meenakshi Dutta,
Advocate for R-2.
With
+ CRL.A.840/2016
BALJEET MALIK @ POPPY ..... Appellant
Through: Mr. Amit Kumar with Ms. Meenakshi
Dutta, Advocates.
Versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Mr. Rajiv Mohan, SPP for the State
along with Ms. Priyanka Singh and Mr. Tejasva
Mehra, Advocates.
With
+ CRL.A.851/2016
DSR 01/2016 & connected matters Page 1 of 41
AMIT SHUKLA ..... Appellant
Through: Mr. Amit Kumar with Ms. Meenakshi
Dutta, Advocate
Versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Mr. Rajiv Mohan, SPP for the State
along with Ms. Priyanka Singh and Mr. Tejasva
Mehra, Advocates.
And
+ CRL.A.911/2016
RAVI KAPOOR ..... Appellant
Through: Ms. Dimple Vivek, Advocate.
Versus
STATE ..... Respondent
Through: Mr. Rajiv Mohan, SPP for the State
along with Ms. Priyanka Singh and Mr. Tejasva
Mehra, Advocates.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S. MEHTA
JUDGMENT
% 04.01.2018
Dr. S. Muralidhar, J.:
Introduction
1.1 Death Sentence Reference No.1/2016 arises out of the judgment dated
14th July, 2016 of the Additional Sessions Judge-05 (South), Saket Courts,
New Delhi in S.C.No.30/2014 arising out of FIR No.69/2009 registered at
P.S. Vasant Vihar convicting three accused, Ravi Kapoor (A-1), Amit
Shukla (A-2) and Baljeet Malik @ Poppy (A-3) for the offences under
Sections 364/302/201/394/468/471/482/34 IPC and convicting A-1
additionally for the offence under Section 25 of the Arms Act. The reference
is consequential upon the order on sentence dated 22nd August, 2016
whereby for the offences under Section 302 IPC both A-1 and A-2 were
sentenced to death.
1.2 The three accused have filed individual appeals questioning their
conviction by the aforementioned judgment for the said offences and the
order on sentence whereby as far as Baljeet @ Poppy (A-3) is concerned, he
was sentenced to life imprisonment for the offence under Section 302 of the
IPC and fine of Rs.10,000/-.
1.3 A-1 was also sentenced to fine of Rs.20,000/- for the offence under
Section 302 IPC and in default to undergo simple imprisonment (SI) for six
months and A-2 to a fine of Rs.1 lakh and in default to undergo SI for six
months.
1.4 For the offence under Section 364 of the IPC all three accused were
sentenced to imprisonment for life; A-1 was sentenced to fine of Rs.10,000,
A-2 to fine of Rs.1 lakh and A-3 to fine of Rs.2 lacs and in default each of
them to undergo SI for six months.
1.5 For the offence under Section 201 IPC all the three accused were
sentenced to 7 years SI and fine of Rs.10,000/- and in default to undergo SI
for 6 months.
1.6 For the offence under Section 394 IPC, all the three accused were
sentenced to imprisonment for life and fine or Rs.50,000/- and in default to
undergo SI for six months.
1.7 For the offence under Section 468 IPC all the three accused were
sentenced to imprisonment for 7 years with the fine of Rs.20,000/- and in
default to undergo SI for six months. For the offence under Section 471 IPC,
all the three accused were sentenced to SI for two years.
1.8 For the offence under Section 482 IPC, all the three accused were
sentenced to imprisonment for one year. For the offence under Section 25 of
the Arms Act, A-1 was sentenced to SI for 2 years and fine of Rs.10,000/-
and in default to undergo SI for 2 months. All sentences were directed to run
concurrently. The sentence awarded to A-1 under Section 25 of the Arms
Act was directed to run consecutively.
Case of the prosecution
2. The case of the prosecution is that Jigisha Ghosh, the deceased, the 28
year old daughter of Mr. J.N. Ghosh (PW-1) was working as Operations
Manager in Hewitt Associates Private Limited for a period of 5 years prior
to her death. An office cab used to pick up and drop the deceased. On 17th
March, 2009 at around 12 noon, the deceased left her house in the office
cab. She was expected to return home at 4 am on 18th March, 2009. When
she failed to return from her office, PW-1 initially presumed that she had
overstayed at the office as she had done on some occasions in the past.
However, when the office cab came to the house of PW-1 the following day
at about 3 pm to pick her up, PW-1 realised that the deceased had not stayed
in the office and in fact the office cab had dropped her back on the previous
night. PW-1 then called the office of the deceased but no information as to
her whereabouts was forthcoming. Mr. Jerry Joseph (PW-5), a senior
colleague of the deceased at her work place, visited the house of PW-1 but
could not provide any clue. When PW-1 called the deceased on her mobile
phone, it was switched off.
3. On 19th March 2009, PW-1 inquired from the HDFC Bank and was
informed that from the ATM account of the deceased, a sum of Rs.25,000/-
was withdrawn on 18th March, 2009. It was further revealed that articles
worth Rs.70,000/- had been purchased from different places using the debit
card of the deceased. PW-1 suspected that the deceased had been kidnapped
by some unknown persons. He, therefore, approached police station (P.S.)
Vasant Vihar and gave a complaint (Ex.PW1/A). This was recorded by Sub-
Inspector Neeraj Chaudhary (PW-47). PW-1 further informed PW-47 that
by making a phone call to HDFC Customer Care, he had found that
Rs.25,000/- had been withdrawn on 18th March, 2009 through the ATM card
of the deceased and heavy shopping had been done by using her debit card.
PW-1 further gave the following details:
"My daughter's height is 5'4", thin built, dark wheatish
complexion, shoulder cut hair, oval face and having an old
mark of burning at her left leg. My daughter was wearing a T-
shirt of light yellow colour having three big buttons on the front
side, a yellow colour striped pants, black coloured high heel
shoes, a wrist watch of "rectangular design and dial frame",
topaz and emerald fitted two gold rings and zircon and sapphire
fitted silver rings on the fingers of left hand, a necklace of white
pearl on her neck, earrings of white coloured pearls and a pink
colour leather purse containing some amounts, ATM card, PAN
card, a book of Arti, I-Pad and two mobile phones make Nokia
of 99106-40120 and 9910736140 numbers. I apprehend that
some unknown person has abducted my daughter Jigisha. My
daughter may be searched and legal action may be initiated. I
have heard the statement and the same is correct."
Investigation
4. On the basis of the above complaint, FIR No.69/2009 dated 19th March,
2009 was registered at P.S. Vasant Vihar under Section 365 IPC. PW-47,
who took over the investigation made inquiries from the shop where the
ATM card was used. He reached Reebok Store, PVR Saket Market. There
the merchant copy and the invoices of the purchases made by the three
persons were obtained. Purchases were made for a sum of Rs.4948 in the
name of the deceased. Purchases had been also made from Planet M, Saket,
Prem Watch Company, Reebok Store, Aashi Opticals and Amit Traders all
at Sarojini Nagar Market. Cash was seen to have been withdrawn from the
ATM of State Bank of Patiala (SBP) installed in the area of Mahipalpur.
5. The merchant copy (Ex.PW-13/B) and copy of the invoice (Ex.PW-13/C)
of Rs.4,948/- was seized vide memo Ex.PW-13/A. This had the signature of
the person who made the purchases. The signature was marked as „Q3‟. One
music CD had been purchased from Planet M-4 Store for a sum of Rs.299/-.
The merchant copy, Ex.PW-12/B and the invoice, Ex.PW-12/C were seized
under memo Ex.PW-12/A. This merchant slip also had an original signature
of the person purchasing the article which was marked as „Q7‟.
6. It was found that from Prem Watch Company, Sarojini Nagar a Timex
Sports Watch for a sum of Rs.9,495/- had been purchased. The merchant slip
Ex.PW-4/B and invoice PW-4/C were seized. There were CCTVs found
installed at Prem Watch Company. PW-47 requested the Store Manager to
provide the recording for the relevant period. The Store Manager, Krishan
Gopal (PW-18) produced 2 CDs containing relevant CCTV footage as well
as 7 photographs of the recording of the relevant period from the hard disc
of the CCTV installation. The merchant slip, invoice, both the CDs as well
as 7 photographs were seized vide memo Ex.PW-4/A. The merchant slip
also bore the signature of the purchaser which was marked as „Q4‟. It also
contained the mobile phone of the purchaser. It is stated that the CDs were
themselves Ex.PW-18/A and Ex.PW-18/B. After the seizure, they were kept
with a seal at the malkhana.
7. From the Reebok Store at Sarojini Nagar Market, merchant slip, Ex.PW-
10/B, copy of the invoice, Ex.PW-10/C were seized vide memo Ex.PW-
10/A. From Aashi Opticals where two sunglasses were purchased by using
the same card and the invoice, Ex.PW-22/B was seized vide memo Ex.PW-
22/A. From Amit Enterprises where one LCD TV was purchased, the
merchant slip, Ex.PW-9/B was seized under memo Ex.PW-9/A.
8. PW-47 then received information that a dead body had been recovered in
the area of Suraj Kund, Faridabad by the local police. PW-47 along with
Inspector Atul (PW-48) and PW-1 then went there. The police officials of
PS Suraj Kund showed them the photographs of the dead body, PW-6/A to
PW-10/A. PW-1 identified the dead body as that of his daughter. It was
revealed that the dead body was already deposited in the mortuary of
Badshah Khan Hospital, Faridabad where the identity of the body was
confirmed.
9. PW-47 then, on the instructions of PW-48, went to the ATM of SBP at
Mahipalpur. He was, at that time, having the photograph of the victim as
provided by her parents (PW-XI). PW-47 found that one Bhiva Ram (PW-2)
was sitting beside the ATM. The photograph of the victim was shown to
him. PW-2 then informed PW-47 that the girl appearing in the photograph
was brought by three persons in a car, they took the girl to the ATM; while
she was made to stand there, one of the three persons entered the ATM and
thereafter all of them left the place together. The statement of PW-2
identifying the photograph was recorded (Ex.PW-2/A).
10. The CDRs of the two mobile phones used by the deceased were
examined. The location as per the Cell ID was found in the area of Harsh
Vihar Colony, Village Indergarhi, Ghaziabad. PW-47 then reached Harsh
Vihar Colony. There one Kapil Sharma was found using the hand set with
Reliance connection having IEMI number on which the SIM of the deceased
was running till she was found missing. Kapil Sharma was examined. He
stated that the mobile come into his possession when he was downloading
the construction material from a truck. This IEMI number with SIM was
seized vide memo Ex.PW-46/A.
11. On the incorporation of Section 302 IPC in the FIR, PW-47 handed over
the file of investigation to PW-48 and joined the latter in the investigation.
On 23rd March 2009, PW-45 received a secret information that the persons
involved in the present case would come to the Nelson Mandela Marg. PW-
48 authorized a raiding party comprising other police officials including
himself, SI Upinder, Inspector Palwinder Chahal (PW-45), S.H.O., P.S.
Vasant Vihar, Constable Dara, Constable Love Kumar, Constable Mahesh,
Constable Satbir, Constable Upender, Constable Jaspal as well as a secret
informer. The informer pointed to a silver grey coloured Santro car coming
from the side of Munirka. When the said vehicle was stopped, A-1 was
driving the car, A-2 was seated on front left side seat and A-3 was sitting in
the rear seat. All three persons were overpowered. PW-45, with the help of
Constable Dara, apprehended A-1. A-2 was apprehended by SI Upinder
Singh (PW-46) and A-3 by Constable Upender.
12. On the search of A-1 by PW-48, one country made fire arm was
recovered from left side dub of his trousers. It was checked and was found
loaded with one live cartridge which was then removed from the barrel.
From the right side pocket of the pant of A-1, three live cartridges and one
fired cartridge case kept in a small cardboard box were recovered. The three
accused were personally searched and thereafter kept with muffled faces.
The vehicle was checked and one Motorola wireless set from the driver seat
between the legs of A-1 was recovered. The wireless set itself was seized.
13. A-1 was found wearing one gold chain. He produced it and said that the
gold chain belonged to the deceased. Further, from the dash board of the car,
10 live cartridges were recovered. From the boot of the car, one grey colour
bag having orange pocket was recovered. It contained one beacon light, one
wireless set, one static wireless set, one Delhi Police Uniform set and a blue
number plate with stars, a few ID cards of Star News in the name of Ravi
Kapoor with his photograph, one ID card of PR Communication in the name
of Ravi Kapoor having his photograph, one PAN card in the name of Nirmal
Awasthi. These were seized. From the same bag, one Chinese pistol loaded
with 8 live cartridges, one dagger with cover and one open knife were
recovered. From another bag, house breaking tools and other tools of the car
including jack, etc., a bunch of keys containing 113 keys of different
vehicles were also recovered. The car had a sticker of "Judge, Punjab &
Haryana High Court" on the front screen. This was peeled off from the
screen and was kept in a separate envelope. The rear seat of the car had a
stain mark spreading over a significant area. The car itself was seized.
14. A-3 was, at the time of his arrest, wearing Reebok shoes. He was also
having sunglasses with cover. These were the very items purchased by the
three accused after the death of the deceased. Disclosures were made by the
accused. A-1 is stated to have taken the police party to his house where the
land lord Charan Singh (PW-17) and neighbour Satish (PW-20) agreed to
join the investigation. A-1 took the police party to the bedroom and from the
bed, he produced one white cap Reebok make and confirmed that he was
wearing the cap at the time when purchases were made while using the debit
card of the deceased.
15. At the instance of A-1, the police recovered one Tavera vehicle and
seized it under a memo Ex.PW-47/C. On the further interrogation of the
three accused, three supplementary disclosure statements were recorded.
According to PW-47 all the three accused on 2nd April, 2009 pointed to the
places of occurrence and the ATM and other shops from where they made
purchases and they also pointed to the place where they had disposed of the
dead body. A-1 led the police party to his residence and produced one pant
of brown colour, one striped shirt and one T-Shirt. He disclosed that he was
wearing those clothes on the day of incident and while making purchases
thereafter. On the same day, A-3 led the police party to the shop of R.K.
Communication in the area of Masoodpur, Kishan Garh. He produced two
Nokia mobile phones. The items recovered were got identified through a
TIP.
16. On 1st May, 2009, the statement of Mr. Abhijeet Singh (PW-40),
neighbour of the deceased was recorded under Section 164 Cr PC. On 18th
May, 2009, the police visited SBP, Mahipal Pur wherefrom a CD containing
footage of the CCTV recording dated 18th March, 2009 of the ATM of the
bank installed in the area of Mahipal Pur was collected.
17. On 14th June, 2009, the police recorded the statement of Ms. Anu Arora
(PW-38) who came to the PS and identified the Santro car of which she was
the registered owner and which had been stolen on the intervening night of
19th/20th February 2009.
Charges
18. At the conclusion of the investigation on 5th December, 2009 a charge
sheet was filed. Thereafter charges were framed against the three accused by
the trial Court. The first charge was that of criminal conspiracy entered into
between three accused during the period from 18 th to 23rd March, 2009 to
abduct the deceased, rob and murder her, dispose of the robbed articles and
dead body. Thus, they committed an offence under Section 120B IPC. The
second charge was that of abduction of the deceased punishable under
Section 365 read with Section 120B IPC. The third charge was committing
the murder of the deceased and disposing of the body in the bushes near
Suraj Kund, Faridabad thereby committing offences under Section 302/201
read with Section 120B IPC. The fourth charge was that of robbery of gold
chain, two mobile phones, two rings and credit and debit card after causing
injury to the deceased thereby committing an offence punishable under
Section 394 read with Section 120B. The fifth charge was that A-1
committed forgery for the purpose of cheating of signing on the charge slip
and other documents prepared by using credit card of the deceased, thereby
committing an offence under Sections 468 and 471 IPC read with Section
120B IPC. The sixth charge was that the accused were found in possession
of different property marks including different number plates of vehicles,
sticker of judiciary, revolving light etc. which was kept dishonestly for the
purpose of deceiving the authorities, thereby committed an offence
punishable under Section 482 IPC read with Section 120B IPC.
19. A-1 was separately charged for the offence under Section 25 of the Arms
Act for being found in possession of fire arms and ammunition, i.e., two
country made pistols, 13 live cartridges and one empty cartridge without
licence as well as a dagger and knife.
Statements of the accused under Section 313 Cr PC
20. The prosecution examined as many as 58 witnesses. In their respective
statements under Section 313 Cr.P.C., the stands taken by the three accused
were as under:
21. A-1 claimed that he has been falsely implicated in the case by one
Constable Prakash Chand Meena who was attached with Special Staff,
South-East Madangir who had been demanding money from him and had
also been making threatening calls. He asked for the call details of the
mobile of the said constable to be analysed and also stated that in this
connection he had already filed a complaint against the said constable at P.S.
Sarita Vihar. A-1 also claimed that the photographs generated from the
CCTV footages of Prem Watch Company were false and fabricated. He
denied the statement of the Branch Manager of the HDFC and record
provided by him to be false and fabricated. A-1 maintained that he had
refused to participate in TIP as during custody, he was shown to the
witnesses in Police Station.
22. As far as A-2 is concerned, he too maintained that he had refused to
participate in the TIP proceedings as he was shown to the witnesses in the
police station during custody. He claimed to have been falsely implicated in
the case. A-3 too maintained that he was totally innocent. No defence
witnesses were examined.
Impugned judgment of the trial Court
23. The trial Court has in the impugned judgment, after analysing the
evidence, come to the following conclusions:
(i) The contention of the accused that Bhiva Ram (PW-2) is a planted
witness is without merit. The omission on the part of the Investigating
Officer (IO) to obtain the appointment letter of PW-2, the attendance
register or an identity card did not make the presence of PW-2 near
the ATM at Mahipalpur at the relevant time doubtful. PW-2 had no
occasion to falsely implicate the accused. Once the prosecution had
discharged the burden of showing that PW-2 was present near the
ATM, then the onus shifted to the accused to prove that he was not
present there.
(ii) PW-2 had clarified that he had gone to Tihar Jail on 27 th March
2009 for the test identification parade (TIP) in which the accused
refused to participate. PW-2 was called to the PS on 2nd April 2009
where he was shown to the accused. Therefore, his identification of
the accused thereafter in the Court was not vitiated.
(iii) The order of the trial Court dated 13th September 2010 whereby
the photograph of the deceased (Ex.PX-1) was permitted to be placed
on record by the prosecution was not challenged by the accused. In
any event the memo regarding identification of photograph was
prepared and filed with the chargesheet.
(iv) PW-2 did not notice anything suspicious when he saw the
deceased with the accused persons and therefore, he did not inform
the police. PW-2 in fact noticed that one sticker of police of red and
blue colour affixed on the rear side number plate of vehicle in which
the accused brought the deceased at the ATM.
(v) From the deposition of Inspector Atul Kumar (PW-48), the
explanation offered for putting off the recording of the statement of
PW-2 under Section 164 CrPC till 23rd April 2009 stood satisfactorily
explained.
(vi) The conduct of PW-11 in not immediately speaking to the
security guard or driver of the cab or his office or the police after his
call to the deceased was suddenly disconnected and he heard her
scream did not indicate any foul play on his part. PW-47 and 48 also
stated that they interrogated PW-11, the security guard and driver of
the cab as well as the co-passengers but did not find any foul play on
their part. Even otherwise no suggestion was made by the accused
about PW-11 or the other PWs from the office of the deceased being
involved in the crime.
(vii) The purchases made by the accused at various stores using the
debit card of the deceased stood fully proved. The further fact that the
goods/articles purchased in the shop were recovered from the one or
the other accused satisfactorily proved the case of the prosecution in
this regard.
(viii) The delay in obtaining the hard disc of the CCTV footage from
Prem Watch Company (till 8th April 2010) would not ipso facto lead
to the conclusion that the hard disc was tampered. Even when the hard
disc was played in the Court, it did not reveal any tampering. Since
the primary evidence in the form of hard disc was produced there was
no need for a certificate under Section 65B of the Indian Evidence Act
1872 (IEA). The hard disc clearly showed all three accused were seen
entering the shop. The witnesses from the Prem Watch Company also
identified the accused in the Court. The voucher and charge slips
obtained from the shop mentioning the name of the deceased. The
articles purchased were duly identified in the TIP by PWs.
(ix) Electronic data capture machine was not a computer and hence
for the merchant copy/purchase/voucher slip generated by such
machine, certificate under Section 65-B of the Evidence Act was not
required. Further, all the evidence from the shop were collected
before the arrest of the accused and therefore, there was no possibility
of the accused being falsely connected with the purchases. The
recovery of various articles from the accused stood proved. The
accused failed to give any satisfactory explanation for being in
possession of the stolen articles. This was a matter exclusively within
their knowledge.
(x) As regards the medical evidence, it was clear that the death was
homicidal. The non-lifting of finger print from the dead body, which
was recovered two days after the death, was not fatal to the case of the
prosecution. Prior to the post-mortem report, Investigating Officer
(IO) was not unaware of the cause of death and therefore, he was not
expected to lift finger prints from the neck of the deceased.
(xi) The questioned signatures of A-1 and A-2 on the voucher slips
and customer slips while using the debit card of the deceased tallied
with their respective specimen signatures. Devak Ram (PW-57), the
handwriting expert proved this vital incriminating circumstance
against the accused.
(xii) The record produced by Chandra Bali Chaudhary (PW-27) of
HDFC Bank, Vasant Vihar, New Delhi was admissible under Section
4 of the Banker‟s Books Evidence Act and was accompanied by
certificate issued under Section 2A thereof.
(xiii) The arrest and recovery of articles at the instance of and
pursuant to disclosures made by the accused persons could not be
doubted only because the public witnesses were not associated.
(xiv) The recoveries from the Santro car in which they were travelling
were also proved. These included 10 live cartridges, name tags meant
for officers of the particular rank in the armed forces, khaki uniforms,
dagger, pen knife and a loaded pistol. That the Santro car was a stolen
vehicle was proved by Anu Arora (PW-38).
(xv) Thus, the circumstances from the conclusion of guilt of the
accused could be drawn, were fully proved. The chain of
circumstances was complete. There was no escape from the
conclusion that it was the accused persons and none else who had
committed the crime.
(xvi) However, the charge of conspiracy under Section 120B IPC was
not proved. Accordingly, all of the three accused were convicted for
the offences under Sections 364/302/201/394/468/471/482 read with
Section 34 IPC. Additionally, A-1 was convicted for the offence
under Section 25 of the Arms Act.
24. By a separate order on sentence dated 22nd August 2016, the trial Court
awarded the accused the sentences as noticed hereinbefore. By the same
order dated 14th July 2016, the trial Court called for a pre-sentence report
(PSR) from the Probation Officer (PO) in respect of the three accused. The
trial Court also asked the IO to inquire into the financial condition of the
three accused and the impact of the crime on the family of the victim. The
PSR submitted by the PO inter alia referred to the conduct of A-1 and A-2
in jail being unsatisfactory and the fact that they were also involve in other
criminal cases. The IO filed a report on the financial condition of the three
accused. After examining the two reports, the trial Court came to the
conclusion that while A-1 and A-2 were incapable of being reformed, A-3
was capable of reform and rehabilitation. Accordingly, for the offence under
Section 302 read with Section 34 IPC, the trial Court recommended award
of death penalty to A-1 and A-2 and imprisonment for life to A-3. It also
awarded compensation to the family of the victim.
25. The submissions of Mr. Amit Kumar, learned counsel for Accused Nos.
2 and 3 as well as Ms. Dimple Vivek, learned counsel for Accused No. 1
have been heard. Mr. Rajiv Mohan, learned Special Public Prosecutor (SPP)
for the State has also been heard.
In Re PW-2: Submissions of the accused
26. The submissions on behalf of the three accused in regard to the star
witness Bhiva Ram ({PW-2) can be summarized as under:
(i) PW-2 was an untrustworthy witness. His identification of the accused in
the Court was to no avail as he had seen the three accused in the PS. Even
the vehicle in which they were supposed to have brought the deceased to the
ATM at Mahipalpur was not shown to him. There was no way that PW-2
could have identified the deceased on 20th March 2009 as no photographs of
the deceased were available on that date and if the photograph was not
shown to him on the date, how could he have identified the deceased as
being the same person who had come to the ATM?
(ii) The statement of PW-2 regarding the photograph as well as
identification of the accused was recorded on 2nd April 2009. Therefore, the
theory of last seen put forth by the prosecution was full of blemishes and
doubtful and could not be relied upon to convict the accused. No efforts
were made to collect the identity card of employment, job card; employment
details of PW-2 nor any witnesses were examined to ascertain the presence
of PW-2 at the ATM of SBP at Mahipalpur at 5 am on 18th March 2009.
(iii) In all probability, Ex.PW-2/A was not prepared on 20th March 2009 and
the photograph was not shown to him on 20 th March 2009. It had been
incorporated to complete the chain of circumstances and developed the
theory of last seen. Reliance is placed on the decisions in Mahavir Singh v.
State of Madhya Pradesh AIR 2016 SC 5231, Mohd. Abdul Hafeez v. State
of Andhra Pradesh AIR 1983 SC 367, Joseph v. State of Kerala AIR 2003
SC 507 and Ganpat Singh v. State of Madhya Pradesh (decision dated 19th
September 2017 in Criminal Appeal No. 630/2009).
PW-2: Submissions of the SPP
27. Mr. Rajiv Mohan, learned SPP, on the other hand submitted that PW-2
was a natural witness and he was unable to be shaken in his cross-
examination. Mr. Mohan pointed out that there was no need for prosecution
to have examined any other person to establish that PW-2 was employed as
security guard by the owner of the office in front of which he was seated
which was situated opposite to the ATM of State Bank of Patiala, Mahipal
Pur. This was an informal engagement which need not have any written
contract to prove employment. Further, the statement of PW-2 was recorded
under Section 164 Cr PC. This was consistent with what he had stated to the
police earlier. The fact remains that the three accused refused the TIP which
was organized on 27th March 2009. Learned SPP further pointed out that
after Bhiva Rao saw the three accused taking the deceased at around 5 am
on 18th March 2009, she was not thereafter seen alive. The conduct of the
accused thereafter, as is evidenced by the purchases made by them at
different stores and withdrawal of money using the ATM card was
consistent with the theory of last seen as put forth by the prosecution.
PW-2: The Court's conclusions
28. The Court has again carefully perused the evidence of PW-2. Indeed, he
appears to be a natural witness. Although it is argued that memo (Ex.PW-
2/A) was not signed by him on 20 th March 2009, it appears to be an
allegation made without anything to back it.
29. As far as PW-1 giving the photograph to the police is concerned, there
was no specific query put to him that he gave the photograph only on 20 th
March 2009. In the considered view of the Court, nothing much turns on this
fact in the very minimal cross-examination of witness. In fact, there is no
question put to him at all about handing over the photograph of the deceased
to the police. While it may be that PW-1 did not hand over a photograph of
the deceased to the police on 18th March 2009, PWs 47 and 48 do say that it
was handed over with the rukka on 19th March 2009. PW-1 did not have to
go to the PS to hand over the photograph.
30. It is, therefore, not improbable that the police was able to show PW-2 the
photograph on 20th March 2009. Ex. PW-2/A is the memo wherein he
identifies the deceased on being shown her photograph. When a specific
suggestion was put to him by the accused in his cross-examination that he
was not shown the photograph on 20th March 2009, he denied it. The
subsequent answer that his statement was recorded in April does not detract
from his standing by his version that he did identify the deceased through
the photograph on 20th March 2009 which is the date of Ex PW-2/A.
31. While it is true that photograph was brought on record in the trial Court
subsequent to its order dated 13th September 2010, as pointed out by the trial
Court that order was not challenged by any of the accused. In his cross-
examination, PW-47 admitted that he had been summoned by the trial Court
during the examination of PW-2 since at that time, the photograph of the
deceased was not in the court file.
32. Turning to the cross-examination of PW-2, he clearly states that on 20th
March 2009 the police came to his workplace and they showed him one
photograph of the girl whom he had identified. He further states that on 20th
March 2009 itself the memo regarding identification of the photograph was
prepared and the police had obtained his signatures. What PW-2 also clearly
states in his cross-examination is that he told the IO about the two boys
"having put their arms around the neck of a girl" and that "the girl was
scared". When he was repeatedly asked why he did not report to the police
about it, PW-2 stated that "I would have done so, if there was any scuffle or
beating." In the circumstances, this too is not unnatural.
33. The fact that PW-2 was not given any letter of employment or no
attendance register was maintained for his reporting for duty are not matters
which should throw doubt on the veracity of his testimony. It is not the case
of the accused that this was a formal employment where the strict statutory
norms of labour are observed. The employment of security guards on verbal
contract basis is not unusual. The fact that he did not recall immediately the
names of other the offices in the same area is also not something unusual.
There was a good reason for PW-2 to identify the Santro car used by the
accused. He had noted the police sticker on it on the rear number plate.
34. As regards his visit to the PS, PW-2 clearly stated that he saw the
accused in the police station after TIP and not before. He volunteered: "I had
gone to Tihar on 27th March, while I had been called to the PS where I was
shown the accused in PS on 2nd April".
35. As regards CCTV footage of the ATM of SBP at Mahipalpur, the
prosecution did not rely on it and therefore, it did not form part of the
documents tendered along with the chargesheet. This Court nevertheless
viewed it only to satisfy itself that it did not contain anything that could be
stated to be in favour of the accused.
36. The Court is unable to discern any inconsistency in the various
statements of PW-2 including the one made by him under Section 164 Cr
PC. His evidence to the effect that he saw the deceased in the company of
the accused at around 5 am outside the ATM of SBP at Mahipalpur has been
unable to be shaken by the accused. It is indeed a formidable piece of
circumstantial evidence to prove that the deceased was 'last seen' with the
accused as she was not seen alive thereafter. The Court is satisfied that the
evidence of PW-2 is convincing and trustworthy and is sufficient by itself to
prove that the deceased was last seen with the accused person at 5 am on
20th March 2009.
Other evidence of last seen
37. The above evidence also ties in with the evidence in the form of the
depositions of (i) Babu Lal (PW-8), the security guard of Hewitt Associates
who was in the cab that dropped off the deceased on 18th March 2009 at
around 3.20 am outside the CPWD Colony in Vasant Vihar; (ii) Ravi Uniyal
(PW-11) a colleague of the deceased who was also present in the cab which
carried him , the deceased and other employees and who was dropped at his
house prior to the deceased getting dropped off and (iii) Abhijeet Singh
(PW-40), a resident of the CPWD Colony who noticed at around 4 am the
deceased talking on her mobile outside the CPWD compound. Thus the
sequence of the deceased leaving her office in the cab at around 3 am and
being dropped outside her house at around 4 am has been proved by the
prosecution.
38. It was submitted on behalf of A-2 and A-3 that the unusual conduct of
Ravi Uniyal (PW-11) on the date of incident was not probed by the police.
In the past, PW-11 had gone on an official trip to USA with the deceased for
two months. He was the last person to call the deceased on her mobile. He
heard her screaming after which the line was cut. However PW-11 did not
immediately contact her parents or even his office or call the police.
39. Human behaviour in certain circumstances does not have a rational
explanation. Why PW-11 did not immediately get in touch with the parents
of the deceased is a question that probably does not have an easy and ready
answer. Nevertheless when the entire evidence is perused and the complete
chain of circumstances developed and established by the prosecution is
viewed from an overall prospective, the failure to probe this peculiar
conduct of PW-11 can at best be said to be an oversight. It does not appear
to make much difference to the conclusions that are inevitable from a
reading of the entire evidence.
Homicidal death
40. The next circumstance is that death of the deceased was homicidal. The
first person to reach the spot was Mr. Hakim (PW-35) whose statement was
recorded by ASI Badan Singh (PW-41) under general diary (GD) No. 28A
dated 20th March 2009 at PS Suraj Kund. The said GD was assigned to SI
Raj Singh (PW-42) who identified the photograph, proved the inquest
proceedings and collected the post-mortem report. Later, all these exhibits
were deposited in the malkhana.
41. The opinion of Dr. Jitender Kumar Jhakar (PW-19) on the cause of death
was deferred till the receipt of chemical analysis of viscera. HIs opinion that
time that had elapsed between the death and the time of post-mortem was 3
to 5 days remained unchallenged. So was the evidence of Ravi (PW-6) the
photographer who was asked by the Haryana police to photograph the body
of the deceased found on 20th March 2009 to be lying in the bushes 2-3 kms
ahead of Suraj Kund.
Recovery of articles
42. The next circumstance which has been proved by the prosecution is that
the accused were found in possession of the items robbed from the deceased.
To recapitulate, the police were informed by PW-1 that Rs. 25,000 has been
withdrawn from the account retained by the deceased with the HDFC bank
on 18th March 2009. He further learnt from the bank that using the debit card
of his daughter, articles worth Rs. 70,000 were purchased. This fact was
mentioned in his complaint (PW-1/A). The above facts have been
completely established by the police visiting the various stores where the
articles were purchased and after having examined the relevant persons
employed at those stores.
43. At the Planet-M Store, Saket, Mr. Yogesh Singh (PW-12) was examined
and he confirmed that the CD have been purchased by using debit card at
10.52 am on 18th March 2009. Nothing much came from his cross-
examination which could favour the accused.
44. At the Reebok Store, PVR Complex, Saket Mr. Saurabh Dutta (PW-13)
was able to produce a copy of the credit/debit card, voucher slip as well as
the cash memo (PW-13/A). He also produced the merchant copy (PW-13/B)
and cash memo (Ex.PW-13/C). He also identified the signature on merchant
copy.
45. Mr. Brijesh Kumar (PW-14) was a salesman in Reebok Store,
Community Centre, PVR Complex, Saket from which shop the three
accused had purchased shoes worth Rs. 4,949. Here again, a merchant copy
of credit/debit card voucher (Ex.PW-13/B) and cash memo (PW-13/C) were
produced to prove the purchases made.
46. Mr. Rajesh Taneja (PW-22) of Aashi Opticals proved the purchases
made from that store on 18th March 2009. Two pairs of sun glasses had been
purchased by the accused from the said shop. By the time the accused went
back to Reebok Store at Sarojini Nagar it was already 1.15 pm. The minor
discrepancy as regards the time, if any, does not in any manner dilute the
probative nature of the evidence in this regard.
47. The recovery of the above articles from the three accused has been
satisfactorily proved by the prosecution. In a judicial TIP conducted on 24th
April 2009 one gold chain belonging to the deceased, recovered from the
accused, was correctly identified by the father of the deceased as well as
witnesses. It is not at all possible to plant all of these articles on the accused
as alleged by their counsel. The recoveries have been rightly believed by the
trial Court. Its analysis of the evidence in this regard has not been shown to
be erroneous.
Presence of the accused at Prem Watch Co.
48. Turning to the Prem Watch Company, we have four witnesses including
the store owner Mr. Krishan Gopal (PW-18) speaking about the purchases
made by the three Appellants using the debit card of the deceased and
signing the slips. The depositions of Smt. Sunita Chaudhary (PW-4) and
Mahesh Kumar (PW-26),with of them being employees of the said store and
Mr. R.C. Mehta (PW-15) were cross-examined at length but the accused
were unable to elicit anything useful in their favour.
49. In this regard it must be mentioned that the CCTV footage which
showed the presence of the three accused at the store corroborates the direct
evidence of the above witnesses. This is perhaps one of the clinching pieces
of evidence as far as the prosecution is concerned. The conduct of the
accused after killing the deceased by using her debit card to make the above
purchases is sufficient to provide the motive for the crime and the
culpability of each of them not being limited to merely an offence under
Section 394 IPC. There has been no credible alternative theory of the
defence on this crucial circumstance.
50. Importantly, while PW-47 stated that he did not analyse the CCTV
footage obtained from the ATM of SBP at Mahipalpur, he confirmed that
the CCTV footage obtained from Prem Watch Company was shown to the
persons who were at the sales counter at Prem Watch Company at the
relevant time. These were Mahesh (PW-26), Krishan Gopal (PW-18) and
Sunita.
51. It was contended by the counsel for the accused that the hard disk
containing the CCTV footage was itself tampered and that the photographs
therefrom were printed after it was sealed. This argument requires to be
rejected since the witnesses have spoken to the fact that the photographs
were developed even before the CCTV footage was handed over by the store
owner to the IO in a CD.
52. It was then sought to be contended that only the photographs and not the
hard disk were not part of the charge sheet. It was further contended that the
hard disc was played in the trial Court only at the end of the trial and
therefore the accused had no opportunity to counter it. The above objections
do not appear to have been taken before the trial Court at any time during
the course of the trial. Moreover the same hard disc was again played before
this Court in the presence of counsel. The footage was clear and
unmistakably showed the presence of the three accused at the above shop. It
is indeed a clinching piece of corroborative evidence.
53. A further objection is that the photographs available to the prosecution
developed from the CCTV footage were not put to PW-2 (Bhiva Rao)
whereas the photograph of the deceased was shown to him. The above
submission in any event could not detract from the fact that even the
photographs developed from the CCTV footage unmistakeably fixed the
identity of the three Appellants. They appeared to have no explanation at all
for their presence at the shop making the purchases and signing the slips. In
fact the CCTV footage and the photographs also captured this aspect. It
must be recalled that the electronic evidence in the form of the above CCTV
footage is a corroborative piece of evidence. It corroborates what the
aforementioned four witnesses have said about the presence of the three
accused in the Prem Watch Co making the purchases using the debit card of
the deceased.
Arrest of the accused
54. Counsel for the accused submitted that it was highly improbable that the
accused persons would remain present in the area within the range of 1 to
1.5 km from the scene of crime; that they would be wearing some of the
articles stolen from the deceased and carrying the mobile and making
purchases using her debit card.
55. One answer to the above contention is available in the list of articles that
were seized from the Santro car in which the three accused were travelling at
the time of offence. The accused were using a police sticker on the car at a
prominent place. This was in fact noticed by PW-2 as well. This was
perhaps done to avoid questions being asked at the barriers erected on the
roads by the traffic police. Secondly, the forged/fabricated stickers of a
Judge of Punjab and Haryana High Court, police uniforms and car number
plates with stars were all being used by these accused at various points in
time only to avoid any suspicion being raised. It appears that the accused did
expect to get away and were, therefore, in the same area with a certain
degree of impunity. They were hoping not to be noticed much less,
apprehended.
56. As regards the arrest of the accused, we have the evidence of PW-45
who states that on 23rd March 2009 at around 12.30 pm a secret informer
disclosed that the three accused would come from Vasant Vihar side and go
towards Vasant Kunj side in a Santro car bearing No. HR-18C- 3409. The
information was recorded by DD No. 13A and conveyed to the IO (PW-48).
A team comprising the following persons was constituted:
(i) PW-48 IO/Inspector Atul Kumar
(ii) PW-47 SI Neeraj
(iii) PW-46 SI Upender
(iv) Eight constables, namely, Jaspal, Mahesh, Love Kumar,
Rajender, Dara Singh, Raj Kumar, Satveer, Upender
(v) PW-45 Inspector Palvinder Singh Chahal.
57. They reached Nelson Mandela Marg. The barricades were erected on the
road near the Power House. According to the prosecution, at 4 pm a Santro
car with the aforementioned description of grey colour with tinted glass
identified by the secret informer was spotted. It was being driven by A-1
with A-2 sitting in the front seat and A-3 in the rear side.
58. It was submitted by counsel for the accused that neither DD No. 13A nor
14A was made part of the charge sheet and therefore, it is not possible to
ascertain whether such information was ever received at the PS or any
raiding party was constituted to arrest the accused. A further contention on
behalf of Ravi Kapoor is that the arrest did not take place at the time as
alleged by the prosecution. Even the recovery thereafter of articles at the
instance of the accused did not happen in the manner alleged by the
prosecution. It is pointed out that while the prosecution states that the
accused were arrested between 5 and 5.30 pm and thereafter Ravi Kapoor
(A-1) got recovered some of the stolen articles/proceeds of crime, the
witness to the recovery, Satish Sharma (PW-20) who was a neighbour of A-
1 stated that he had joined the investigation of the case on the same date, i.e,
23rd March 2009 in the noon hours and recoveries were made in his
presence.
59. As far as the last submission is concerned, the expression „noon hours‟
does not specifically indicate any time. The Court is of the considered view
that this is not such a material discrepancy so as to cast a serious doubt on
the arrest of the accused or the recoveries made at their instance. As regards
the DD entries, the evidence of the IO and the other police officials involved
lends sufficient assurance to the Court that the arrest did take place in the
manner stated by the prosecution. The failure by the prosecution to show
how the car actually reached the PS the failure to make DD Nos. 13 A and
14 A about the secret information not being made part of the case record the
failure to indicate in the site plan the exact location of the policemen
gathered to arrest the accused are not material omissions that weakens the
case of the prosecution. Also, the mere fact that no chance prints were lifted
from the car would not by itself lead to the entire prosecution case being
disbelieved.
Specimen writings of the accused
60. An important piece of evidence to which the accused appeared to have
no reply whatsoever, is the proof of handwriting on the merchant copy slips
which confirmed that the writings were of either Ravi Kapoor (A-1) or Amit
Shukla (A-2). As far as ATM withdrawal is concerned, notice under Section
91/160 CrPC was sent to the bank concerned. A reply thereto was furnished
by PW-27 (Manager of the HDFC Bank) who issued a certificate under
Section 2A of the Banker‟s Book of Evidence Act, 1891 and a copy of the
bank statement (Ex.PW-27/B) of the deceased by which the account was
shown belonging to the deceased and debit card recovered is linked to bank
account of the deceased. As rightly pointed out by Mr. Mohan, this obviated
the need of furnishing a certificate under Section 65B of the Evidence Act.
61. Mr. Devak Ram, Assistant Director, FSL Rohini (PW-57) proved the
FSL report dated 2nd July 2010 (Ex.PW-57/A) which clearly showed the
writing on the six merchant copy slips matched the specimen writings of
both A-1 and A-2. With there being absolutely no doubt created by the
accused as regards the gathered evidence, the circumstances stood proved
beyond reasonable doubt. It also formed a continuous chain of
circumstances leading to abduction of the deceased and pointed to the
criminal culpability of each of the accused.
62. It was contended by Ms. Dimple, learned counsel for A-1 that the
collection of hand writing samples of A-1 by the IO on 1st April 2009 during
the investigation and without the prior permission of the Court was
impermissible in law. It was in violation of Section 311-A Cr PC which
came into effect on 23rd June 2006 and on a collective reading of Article
20(3) of Constitution of India, Section 73 IEA and Sections 4 and 5 of
Identification of the Prisoners Act (ITP Act). Hence the handwriting match
of the accused Ravi Kapoor with the cash voucher receipts could not be held
as admissible in evidence against him. Reliance is placed on the decisions in
Kamam Nagaraju @ Snathakumar v. State of Andhra Pradesh (decision
dated 30th June 2017 of the High Court of Telengana and Andhra Pradesh in
Crl A 1586 of 2010), State of Bombay v. Kathi Kalu Oghad AIR 1961 SC
1808; Tarini Kumar v. State AIR 1960 Cal 318; Sapan Haldar v. State 181
(2012) DLT 225and Selvi v. State of Karnataka AIR 2010 SC 1974.
63. In reply it is pointed out by Mr. Mohan, the SPP that such an objection
was never taken by the accused at any stage of the proceedings before the
trial Court. It is not even urged as a ground of appeal here. He relied on the
decisions in State of Bombay v. Kathi Kalu Oghad (supra) and Rabindra
Kumar Pal @ Dara Singh v. Republic of India (2011) 2 SCC 490 to urge
that the giving of a handwriting specimen sample will not amount to a
person being a witness against himself. He submitted that the decision in
Sapan Haldar v. State (supra) was not applicable as in the present case the
provisions of the ITP Act would not apply.
64. The above submissions have been considered. In the first place, there is
no satisfactory explanation on the part of the accused as to why this plea was
not urged first before the trial Court. Secondly, the offence being one
punishable with life imprisonment or death sentence, the provisions of the
ITP Act as discussed in Sapan Haldar v. State (supra) will not apply.
Thirdly, in any event, the said decision does not account for the following
observation of the Supreme Court in the two concurring judgment of Sinha
CJI and Das Gupta J. in State of Bombay v. Kathi Kalu Oghad (supra).:
"Giving thumb impressions or impressions of foot or palm or fingers
or specimen writings or showing parts of the body by way of
identification were not included in the expression to be a witness.
"The question that arises therefore is: Is an accused person furnishing
evidence against himself, when he gives his specimen handwriting, or
impressions of his fingers, palm or foot. The answer to this must, in
our opinion, be in the negative. The matter becomes clear, when we
contrast the giving of such handwriting or impressions, with say, the
production of a letter admissible in evidence under s. 10, or the
production of the plan of a burgled house. In either of these two latter
cases, the evidence given tends by itself to incriminate the accused
person. But the evidence of specimen handwriting or the impressions
of the accused person's fingers, palm or foot, will incriminate him,
only if on comparison of these with certain other handwritings or
certain other impressions, identity between the two sets is established.
By themselves, these impressions or the handwritings do not
incriminate the accused person, or even tend to do so. That is why it
must be held that by giving these impressions or specimen
handwriting, the accused person does not furnish evidence against
himself. So when an accused person is compelled to give a specimen
handwriting or impressions of his finger, palm or foot, it may be said
that he has been compelled to be a witness; it cannot however be said
that he has been compelled to be a witness against himself."
65. Again in Rabindra Kumar Pal @ Dara Singh v. Republic of India
(supra), the Supreme Court reiterated:
"Giving thumb impressions or impressions of foot or palm or fingers
or specimen writings or showing parts of the body by way of
identification are not included in the expression 'to be a witness'."
66. For all of the above reasons, this Court negatives the plea of the accused
that the failure to take prior permission of the Court for collecting the
specimen hand writing of the accused would render the specimen
handwriting inadmissible in evidence.
Section 34 IPC
67. A common argument on behalf of the three accused was that although
they were initially charged for the offence under Section 120B IPC, they
were ultimately convicted with the aid of Section 34 IPC. It is contended
that this has caused severe prejudice as they were not aware that they had to
defend themselves for the commission of offence with the aid of Section 34
IPC.
68. As is rightly pointed out by Mr. Mohan, Section 34 IPC is a rule of
evidence and not a substantive offence. If the trial Court finds the element of
common intention it can proceed to convict with the aid of Section 34 IPC
notwithstanding that no specific charge as such has been framed against the
accused. Further, the decisions in Willie (William) Slaney v. The State of
M.P. AIR 1956 SC 116, Anil Sharma v. State of Jharkand (2004) 5 SCC
679 and Vijay v. State (GNCTD) 2014 (4) JCC 2494 support the contention
of learned SPP that even the charges framed under Section 120B IPC the
Court can proceed to convict an accused for the offence with the aid of
Section 34 IPC. The element of common intention is at large in the
voluminous evidence placed on record by the prosecution.
Summation of proved circumstances
69. This Court is satisfied that the prosecution has been able to successfully
prove the following circumstances which conclusively point to the guilt of
each of the accused for the offences with which they were charged:
(i) The deceased was alive at about 4 or 5 am on 18th March 2009. She was
dropped outside the CPWD Colony by the office cab and abducted from
there. In this regard, the evidence of Abhijeet (PW-40) Ravi Uniyal (PW-
11) and Babu Lal (PW-9) are relevant. .
(ii) The deceased was last seen in the custody of the Appellants outside the
ATM of SBP at Mahipalpur at around 5 am on 18 th March 2009. She was
brought there by the accused in the Santro car and taken away from there by
them. The evidence of PW-2 in this regard is trustworthy, reliable and
consistent and sufficient to prove the circumstance of „last seen‟.
(iii) There was at this very time a withdrawal of Rs 25,000 from the bank
account of the deceased maintained with HDFC Bank.
(iv) The deceased was last seen with the accused. Thereafter only her dead
body was first spotted by Hakim (PW 35) on 20th March 2009. The evidence
of ASI Badan Singh (PW 41) and SI Raj Singh (PW 42) of PS Suraj Kund
are relevant in this context. The evidence of PW-1 identifying the dead body
to be that of his daughter and pointing out what was missing from her person
is also relevant. Their evidence has been convincing and unshaken in cross-
examination.
(v) The post mortem conducted by Dr Jitender Jhakar (PW 19) confirmed
that the death was homicidal and was caused by smothering. Gayatri Sen
(PW-29), an expert from the FSL, Haryana who proved the FSL report
which in turn confirmed the samples recovered from the death body matched
biological samples of the deceased.
(vi) Each of the accused was found in possession of the items that were
either taken from the deceased or purchased using her debit card. The
testimonies of the sales personnel at the various shops visited by the accused
proved the identity and presence of the accused at the shops making
purchases using the debit card of the deceased. The charge slips signed by
A-1 and A-2, the matching of the handwriting thereon with the specimen
writings of A-1 and A-2 and CCTV footage of Prem Watch Co. all
corroborated the eye witness testimonies. The articles were identified in a
TIP by PW-1.
(vii) No credible explanation was offered by the accused for being found in
possession of stolen articles or articles purchased using the debit card of the
deceased after her death. The presumption under Section 114 of the
Evidence Act stood attracted. The decisions in Ganesh Lal v. State of
Rajasthan (2002) 1 SCC 731 and Earabhadrappa v. State of Karnataka
(1983) 2 SCC 330 support the contention of learned SPP, based on
illustration (a) under Section 114 of the Evidence Act that where the accused
failed to account for the stolen goods found in their possession.
(viii) Although the offence under Section 120 B IPC may not have been
proved, there was sufficient evidence for the common intention shared by
the accused in committing the offences and therefore their conviction for
those offences with the aid of section 34 IPC was fully justified.
70. The Court is satisfied that when the above proved circumstances are
viewed collectively they point unerringly to the guilt of the accused and are
inconsistent with their innocence. The Court affirms the conviction of the
accused for the offences under Sections 364/302/201/394/468/471/482/34
IPC and the further conviction of A-1 under Section 25 Arms Act.
Sentence
71. Now turning to the question of sentence, the Court finds that the trial
Court relied upon the PSR of the PO in relation to A-1 andA-2 and
concluded that neither A-1 nor A-2 were capable of reform or rehabilitation.
Their conduct in jail as under trials was a major factor that weighed with the
trial Court.
72. At this juncture, it is necessary to observe that as long as the trial is
underway, the prisoner is an „under trial‟ and is not given the same tasks as a
convict might be. Further, the under trial wards in Tihar Jail are usually
overcrowded by well over a 100%. It is mentioned in the written
submissions of the learned SPP that A-1 was a „sahayak munshi' for about
14 months by the time of sentencing and during that period his conduct was
satisfactory. I any event the behaviour of a prisoner during his term as an
under trial cannot be a sufficient marker for his potential for reform and
rehabilitation. Likewise with A-1 whose jail conduct was found during his
under trial stint to be unsatisfactory. It might be unsafe to conclusively
determine, even while the prisoner is an under trial, that his conduct in
prison can indicate his capacity for reformation. Such a determination would
require observing the prisoner over some periods of time separated
sufficiently in time and circumstance.
73. In any event, the exercise of calling for a PSR from the PO has to be
preceded by a firm determination that the nature of the crime is such that it
calls for the award of the extreme penalty. The Court has to be satisfied that
the nature of the crime is such that can be characterised as „rarest of rare‟.
The jurisprudence that has developed around the award of the death sentence
need not be discussed in detail. A reference only may be made to the
decision in Gurvail Singh v. State of Punjab (2013) 2 SCC 713 where the
Supreme Court observed:
"To award death sentence, the aggravating circumstances (crime test)
have to be fully satisfied and there should be no mitigating
circumstance (criminal test) favouring the accused. Even if both the
tests are satisfied as against the accused, even then the Court has to
finally apply the Rarest of Rare Cases test (R-R Test), which depends
on the perception of the society and not "judge-centric", that is
whether the society will approve the awarding of death sentence to
certain types of crime or not. While applying this test, the Court has to
look into variety of factors like society‟s abhorrence, extreme
indignation and antipathy to certain types of crimes like rape and
murder of minor girls, especially intellectually challenged minor girls,
minor girls with physical disability, old and infirm women with those
disabilities etc. examples are only illustrative and not exhaustive.
Courts award death sentence, because situation demands, due to
constitutional compulsion, reflected by the will of the people, and not
Judge centric."
74. In the present case, it is not clear as to which of the three accused -
whether all of them or only some of them - actually committed the murder
of the deceased. What is proved beyond doubt is that all of them were
involved in the crime. Therefore, to differentiate, as the trial Court has done,
between the accused by awarding the death penalty to two of them may also
not be justified.
75. Homicidal killings are deeply troubling. They are reflective of the base
instincts of human behaviour. Some homicidal killings are in degree more
diabolical, repulsive and shocking than others. Section 302 IPC offers only
two choices for punishment. Life imprisonment or the death penalty. It is
this limited option that has driven the Supreme Court to devise the „rarest of
rare‟ test. The decisions from Bachan Singh v. State of Punjab AIR 1980
SC 898 onwards underscored that life sentence is the rule and death sentence
the exception. In Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC
230 it was observed that though the offence was gruesome, namely killing of
his own brother for money, the case was not one which could be termed as
„rarest of rare‟. In Mohinder Singh v. State of Punjab AIR 2013 SC 3622
the Supreme Court observed:
"16) The doctrine of "rarest of rare" confines two aspects and when
both the aspects are satisfied only then the death penalty can be
imposed. Firstly, the case must clearly fall within the ambit of "rarest
of rare" and secondly, when the alternative option is unquestionably
foreclosed. Bachan Singh (supra) suggested selection of death
punishment as the penalty of last resort when, alternative punishment
of life imprisonment will be futile and serves no purpose.
17) In life sentence, there is a possibility of achieving deterrence,
rehabilitation and retribution in different degrees. But the same does
not hold true for the death penalty. It is unique in its absolute rejection
of the potential of convict to rehabilitate and reform. It extinguishes
life and thereby terminates the being, therefore, puts an end anything
to do with the life. This is the big difference between two
punishments. Thus, before imposing death penalty, it is imperative to
consider the same.
18) "Rarest of rare" dictum, as discussed above, hints at this
difference between death punishment and the alternative punishment
of life imprisonment. The relevant question here would be to
determine whether life imprisonment as a punishment would be
pointless and completely devoid of any reason in the facts and
circumstances of the case. As discussed above, life imprisonment can
be said to be completely futile, only when the sentencing aim of
reformation can be said to be unachievable. Therefore, for satisfying
the second aspect to the "rarest of rare" doctrine, the court will have
to provide clear evidence as to why the convict is not fit for any kind
of reformatory and rehabilitation scheme.
76. Having carefully considered the entire case from all perspectives, the
Court is not satisfied that the crime here can be characterised as „rarest of
rare‟ that warrants the award of the death penalty for A-1 and A-2. The
Court accordingly modifies the sentence awarded to A-1 and A-2 for the
offence under section 302/34 IPC to one of imprisonment for life.
77. The fine amounts awarded by the trial Court for the offence under
Section 302/34 IPC and the sentences and fine amounts awarded to the
accused in respect of the other offences by the impugned judgment and
order on sentence of the trial Court are hereby affirmed.
78. The reference and the appeals are disposed of in the above terms.
S. MURALIDHAR, J.
I.S. MEHTA, J.
JANUARY 04, 2018
Rm
