Delhi District Court
Sc No 5709 State vs Bharat Bhandari & Anr on 2 February, 2010
SC No 5709 State Vs Bharat Bhandari & Anr
IN THE COURT OF MS. POONAM A. BAMBA
ADDITIONAL SESSIONS JUDGE - 02 (SOUTH)
PATIALA HOUSE COURTS : NEW DELHI
SC No. 57/09
State Vs. 1. Bharat Bhandari,
S/o Top Bahadur
R/o Ward No. 6,
Butwel Rupendehi distt.,
Anchal Lumbaini, Nepal.
Present Address:
H. No. 60,
C/o Pt. Chander Pal,
Basant Gaon, New Delhi.
2.Pradeep Dutta @
Bappi Dutta @ Bangali
S/o Dilip Dutta,
R/o 28/1, Pramod Dass
Gupta Colony,
Murari Pukar Road,
Kolkatta, W.B.
FIR No. : 226/04
PS : Vasant Vihar
u/S : 302/392/411/34 IPC
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Date of Institution : 15.09.2004
Arguments Concluded on: 19.01.2010
Date of Decision: 28.01.2010
JUDGMENT.
1.0 On 20/6/04 at about 11:10am DD No. 11A was got
recorded through wireless message to the effect that the
occupants of Flat No. 272, Vasant Enclave have been found dead
by HC Dharam Raj; on receipt of the said DD ASI Ram Nath
alongwith Ct. Ram Kesh reached the spot; Addl. SHO, PS Vasant
Vihar and Inspt Narayan Singh also left for the spot alongwith Ct.
Shish Ram, Ct. Krishan Kumar, Ct. Jai Bhagwan, Ct. Raj Singh
and Ct. Naresh Kumar; they found two dead bodies (one of female
and the other of male) on the double bed in the bed room of Flat
No. 272, Vasant Enclave, Vasant Vihar. The names of the dead
bodies were revealed as Harnam Singh Seth and Smt Roop Seth.
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Hands and legs of the dead bodies were tied with a nylon rope
and cello tape ; the mouth and nose of the dead bodies were also
taped. The dead bodies were having injuries on their head due to
which the double bed was soaked in blood. The household articles
and bangles were found scattered in the room / on the double bed;
two blood stained elephant teeth were found lying near the door of
the room and blood was also found scattered on the wall near the
double bed. On further inspection of the spot, Addl. SHO found
that the door of the room above the bed room was found to be
open forcefully; on investigation, it was found that one maid had
come to the aforesaid house in the morning and after seeing the
dead bodies informed Chottey Lal (Dhobi) about the same and
had left the spot. No eye witness was found at the spot and at the
instructions of Addl. SHO case u/Ss 302/392 IPC was registered.
Crime team and dog squad were summoned to the spot. In the
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meantime, senior officers also visited the spot and Amrita,
daughterinlaw of the deceased persons also reached the spot
along with other relatives. Crime team and dog squad inspected
the spot, photographs of the spot were taken, chance prints were
lifted and foot mould were also developed and separate reports
were prepared and handed over to SHO. Addl. SHO recorded
statement of the Crime Team Incharge. Special Report was sent
to Senior officers as well as Ld. MM. Addl. SHO left the staff to
guard the spot and thereafter, took the dead body to the mortuary,
Safdarjang Hospital, got the postmortem conducted and
thereafter, handed over the dead body of the deceased to its
relatives. Vide separate memos Addl. SHO seized 1) two
elephant tusks, 2) two blood stained printed green colour
mattresses, 3) blood stained double bed sheet of white and blue
colour stripes, 4) two blood stained pillows, 5) two wooden stands
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meant for keeping elephant teeth / tusks, 6) pieces of glass
bangles, 7) one shampoo bottle containing chance prints, 8) one
brick lying near the stairs of first floor, 9) one iron churi (knife) lying
on the second floor, 10) one two feet long iron sariya lying near
the door of the balcony, 11) one four feet long iron angle having
cement and 'rori' mixture stuck on it, 12) hawai chappal lying near
the double bed at room at second floor and 13) Foot mould and
deposited the same in the malkhana. Addl SHO recorded
statement of witnesses u/S 161 Cr.PC and also recorded a
detailed statement of Amrita Seth and thereafter, searched for the
accused persons. Thereafter, IO made enquiries from the servants
of the house and deceased's earlier servant Bharat Bhandari who
was earlier convicted for theft, was suspected. Enquiry was made
from the family members of Bharat Bhandari; his (accused's) sister
and brother in law disclosed that Bharat Bhandari alongwith his
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accomplice Pradeep Dutta @ Bengali @ Bapi Dutta were missing
from their house since the night of 1920/6/04 and thereafter, on
the mention of the murder of deceased persons in the morning,
both the accused suddenly left their home saying that they were
going to Howrah. On 21/6/04, after receipt of call from Bharat
Bhandari by his brother in law Sohan it was revealed that accused
Bharat Bhandari was at Gorakhpur and was going to Nepal. On
which, IO after informing the senior officers, sent fax message to
SSP Gorakhpur regarding the full details of Bharat Bhandari and
Pradeep Dutta alongwith their photographs and sent a team under
SI BS Gulia to Gorakhpur. On 21/6/04, an information was
received from UP Police that accused Bharat Bhandari was
arrested by PS Purunder Pur, Distt. Maharaj Ganj, UP, u/S 41.1
Cr.PC & 411 IPC from a bus going to Nepal, who has disclosed
about committing the murder of Harnam Singh and his wife and
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about committing robbery alongwith his accomplice Bengali. The
said information was sent to SI BS Gulia. Thereafter, a team under
Addl. SHO went to Kolkatta on 22/6/04 in search of accused
Pradeep Dutta.
On 22/6/04, SI Om Prakash had collected the exhibits of
the deceased persons after postmortem, the tape, clothes and
rope and deposited the same in the malkhana and thereafter sent
the same to Finger Print Bureau alongwith weapon of offence.
SI BS Gulia recorded statement of witnesses regarding
arrest of accused Bharat Bhandari and thereafter, after obtaining
transit remand brought the accused to Delhi and produced him
before the court on 25/6/04. Thereafter, accused was arrested in
the present case u/S 302/392/411/34 IPC by the IO. During
investigation, accused Bharat Bhandari got recovered the clothes
worn by him during the incident - blue colour jeans and white &
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blue Tshirt; He also got recovered his share of looted amount
i.e., Rs. 6,000/. These were seized by the IO vide separate
seizure memos. It was also revealed that the chappals which
Bharat Bhandari was wearing were that of one Michael Wilson,
which he (accused) had intentionally changed and left at the spot.
In the meantime, on 24/6/04, Addl SHO arrested
accused Pradeep Dutta from Pargana South, West Bengal and
brought him to Delhi on 26/6/04, who was then arrested in the
present case by the IO. During the course of investigation,
accused Pradeep got recovered 1) the clothes worn by him during
the incident - dark grey pant, white banyan, a tshirt having red,
black and blue strips, 2) five watches, 3) two jhumkis, 4) one silver
coin, 5) one plastic box, 6) one small plastic plate of statue of God,
7) One Rs.100/ note bearing No. JBU865198. The items from S.
No. 2 to 7 were the share of the accused in the abovesaid
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incident.
IO recorded statement of witnesses, got prepared
siteplan at the instance of Addl. SHO, got the TIP of the recovered
articles conducted from the relatives of the deceased and Michael
Wilson, sent the exhibits of the case to FSL Rohini, collected the
finger print report from crime team wherein the finger prints of the
accused were found identical to the chance prints lifted from the
spot. After complete investigation, the chargesheet against the
accused persons was filed in the court.
2.0 Charge u/S 302/392/411/34 IPC was framed against the
accused persons to which they pleaded not guilty and claimed
trial.
3.0 Prosecution in support of its case has examined thirty
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eight (38) witnesses.
3.1 PW1 Amrita Seth is the daughter in law of the deceased
persons.
3.2 PW2 Gaurav Seth is the son of the deceased persons.
3.3 PW3 Naresh Chand is the neighbour of the deceased
persons who had informed the police at 100 number.
3.4 PW4 Inder Dutt Salwan is the brother in law of Nikhil
Seth (son of the deceased persons).
3.5 PW5 Chhotey Lal is the dhobi who was informed by the
maid of the deceased persons that the dead bodies of the
deceased were lying in their bed rooms; he informed about the
same to PW3.
3.6 PW6 Kartar Singh is the person who had rented out a
room to accused Pradeep Dutta and his mother. He is a witness to
the recovery of clothes of accused Pradeep Dutta vide memo
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Ex.PW6/A and to the recovery of five wrist watches Ex.P3 to
Ex.P6 and Ex.P18, one Rs. 100 note Ex.P14, a pair of jhumkis
Ex.P15, one silver coin Ex.P16, a silver idol of goddess Ex.P17,
which were seized vide memo Ex.PW6/B.
3.7 PW7 Sohan Singh is the brother in law of accused
Bharat Bhandari and a witness to the recovery of Icard Ex.PW7/B
of Pradeep Dutt from his house vide memo Ex.PW7/A. He is also
a witness to the seizure of clothes of accused Bharat Bhandari
and currency notes of Rs. 6,000/ from the pocket of the jeans
pant of the accused, vide memo Ex.PW7/C.
3.8 PW8 Michael Wilson is a witness to the identification of
the chappals Ex.P9 seized vide identification memo Ex.PW8/A,
from the spot which belonged to him and were taken by the
accused persons from him on 19/6/04 in the night.
3.9 PW9 Madhu Seth is the daughter in law of the
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deceased persons and proved the TIP proceedings Ex.PW9/A of
the jhumkis Ex.P20.
3.10 PW10 Nikhil Seth is the son of the deceased persons.
He had participated in the TIP proceedings Ex.PW10/A and
identified the wrist watches Ex.P3 to P6 and Ex.P21 and the purse
Ex.P7.
3.11 PW11 Praveen Tokas is also a witness to the recovery
of clothes of accused Bharat Bhandari Ex.P22 and Ex.P23 and
Rs. 6000/ Ex.P19 and its seizure vide memo Ex.PW7/C.
3.12 PW12 Chetram, Finger Print Expert examined the
chance prints lifted from the spot, compared the same with
specimen finger prints of accused Bharat Bhandari and accused
Pradeep Dutta and furnished his report, which he proved as
Ex.PW12/A.
3.13 PW13 HC Ghasiram is the duty officer who proved the
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registration of FIR Ex.PW13/A and his endorsement thereon as
Ex.PW13/B. He also proved DD No. 11A recorded by him as
Ex.PW13/C.
3.14 PW14 SI Raj Kumar remained associated with the
investigations of this case. He is a witness to seizure of elephant
tusk, blood stained beddings, blood stained bedsheet, two blood
stained pillows, two wooden stands for keeping elephant tusk,
broken bangle pieces of red and black colour, one bottle of
shampoo, one brick with LBF1 engraved on it, one knife, iron rod,
one iron angle, hawai chappal and mould of foot prints. He is also
a witness to the recovery effected from accused Bharat Bhandari
i.e., of jeans Ex.P22, tshirt Ex.P23, currency note Ex.P19.
3.15 PW15 Ct. Subhash had taken a sealed parcel from the
MHC(M) and deposited the same at Finger Print Bureau, Malviya
Nagar against proper receipt which was handed over by him to the
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MHC(M).
3.16 PW16 Ct. Naresh Kumar is a witness to seizure of
sealed parcel sealed with the seal of SI KP Singh of UPT (UP
Police) vide Ex.PW16/A which was handed over to him by HC
Shyam of PS Purandarpur, UP.
3.17 PW17 Ct. Ramkesh had removed the dead bodies to
mortuary of Safdarjang Hospital, alongwith SI Ram Nath for
postmortem and thereafter, the dead bodies were handed over to
the relatives of the deceased. He proved the seizure of exhibits
after postmortem as Ex.PW17/A and Ex.PW17/B.
3.18 PW18 ASI Ram Nath deposed on the same lines as
that of PW17.
3.19 PW19 SI Sharad Kumar had taken the specimen
signatures of both the accused Ex.PW12/D and Ex.PW14/F and
thereafter, deposited both the specimens at Finger Print Bureau,
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FSL, Malviya Nagar.
3.20 PW20 Ct. Jai Bhagwan is a witness to seizure of
articles from the spot vide memo Ex.PW4/A to F.
3.21 PW21 Ct. Anil Kumar is a witness to the recovery
effected from accused Bharat Bhandari vide memo Ex.PW7/C.
3.22 PW22 ASI Sumit is a member of the Crime Team; he
alongwith other team members lifted chance prints from the spot;
he developed 6 chance prints from the blood stained tusks.
3.23 PW23 SI Rajender Singh inspected the spot and
directed PW22 to develop chance prints and thereafter prepared
report Ex.PW23/A. He proved the seizure memo of the foot print of
accused Bharat Bhandari as Ex.PW23/B and the mould of his foot
as Ex.PW23/X.
3.24 PW24 Ct. Praveer Singh took photographs of the spot
and proved the same as Ex.PW24/B1 to B8 and the negatives as
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Ex.PW24/A1 to A8.
3.25 PW25 SI Madan Pal had prepared scaled siteplan
Ex.PW25/A of the spot.
3.26 PW26 SI Alok Chaudhary from PS Ultudenga, Kolkatta
is a witness to the arrest of accused Pradeep Dutta vide arrest
memo Ex.PW26/A, seizure of his purse Ex.P7containing Rs.409/,
two tickets of train and one slip on which Anil Kumar, 143, Basant
Gaon and phone number was written, vide memo Ex.PW26/B,
seizure of R.2600/ Ex.P25 from an iron box vide memo
Ex.PW26/C.
3.27 PW27 SI Gopal Chandra Mandal deposed on the
same lines as that of PW26.
3.28 PW28 SI Om Prakash had seized the postmortem
exhibits vide memo Ex.PW17/A and deposited the same in the
malkhana and thereafter, had deposited the same at FSL, Finger
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Print Bureau, Malviya Nagar vide RC No. 10/21.
3.29 PW29 SI Balram is also a witness to the arrest of
accused Pradeep Dutta and the seizures effected from him. He
also proved the disclosure statements of the accused as
Ex.PW29/A and PW29/B.
3.30 PW30 Ct. Janardhan Yadav is a witness to the seizure
of stolen articles from accused Bharat Bhandari as Ex.PW30/A.
3.31 PW31 Ct. Ram Sarik Yadav deposed on the same lines
as that of PW30.
3.32 PW32 HC Shyam Dev is the MHC(M). On 21/6/04, he
had entered in his register at S. No 36, articles seized from
accused Bharat Bhandari ie Rs.8600, a mobile phone of Motorolla,
a Rado Watch, two shields and other articles and thereafter, on
23/6/04, he handed over the aforesaid articles to SI Bahadur singh
vide memo Ex.PW16/A.
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3.33 PW33 SI Durga Dutt, SHO, PS Goraknath,
Gorakhpur, UP, is a witness to arrest of accused Bharat Bhandari
and seizure of stolen articles from him. He proved the registration
of FIR 0/04 u/S 41/411 Cr.PC as Ex.PW33/A which was in the
hand of Ct. Mahesh and he identified the signature and
handwriting of Ct.Mahesh.
3.34 PW34 Sh. AK Sarpal, the then Ld. MM had conducted
the TIP proceedings on application of IO Ex.PW34/A; TIP of watch
make Rado was conducted vide Ex.PW2/A. He proved the TIP
proceedings of case property conducted on 1/7/04 as Ex.PW34/B
and the certificate of correctness as Ex.PW34/C.
3.35 PW35 SI BS Gulia had gone to PS Purender Pur,
Maharaj Ganj UP, recorded statement of concerned police officials
who had arrested accused Bharat Bhandari u/S 41.1 Cr.PC and
411 IPC; he obtained transit remand of accused Bharat Bhandari
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and of case property seized from him. He is a witness to the arrest
of accused Bharat Bhandari vide memo Ex.PW35/A, disclosure
statement as Ex.PW35/B, pointing out memo of place of
occurrence as Ex.PW35/C. He also identified the articles seized
from accused Pradeep Dutta Ex.P3 to Ex.P6 and Ex.P18, Ex.P14
to P17. He proved the clothes of the accused seized from him i.e.,
pant as Ex.PW35/D, banyan Ex.PW35/E and tshirt Ex.PW35/F.
He is also a witness to the seizure of foot mould of both accused.
3.36 PW36 Inspt Narayan Singh is the IO of the case. He
proved the DD No. 12A as Ex.PW36/A, rukka as Ex.PW36/B,
siteplan Ex.PW36/C and Ex.PW36/D, application for conducting
postmortem as Ex.PW36/E, brief facts as Ex.PW36/F, death
report of Harnam Singh Seth as Ex.PW36/G, brief facts and death
report of deceased Roop Seth as Ex.PW36/H1 and Ex.PW36/H2,
respectively.
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3.37 PW37 Dr. Chandra Kant had conducted the
postmortem of deceased Harnam Seth and Roop Seth and gave
his report Ex.PW37/A and Ex.PW37/B.
3.38 PW38 Inspt Beer Singh is the IO of the case. He
proved the pointing out memo of accused Pradeep Dutta as
Ex.PW38/A, FSL reports as Ex.PW38/B to E. He proved the
clothes of the accused seized from him i.e., pant as Ex.PW38/PX1
(already exhibited as Ex.PW35/D), banyan Ex.PW38/PX2 (already
exhibited as PW35/E) and tshirt Ex.PW38/PX3 (already exhibited
as Ex.PW35/F).
4.0 Statements of both the accused u/S 313 Cr.PC were
recorded wherein they denied the incriminating evidence against
them and stated that they are innocent and have been falsely
implicated. Accused Bharat Bhandari however, admitted that he
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used to go to the house of deceased when he was a child.
Accused Pradeep Dutta has admitted that he was
arrested in this case but denied that any recovery was effected
from him. He has also stated that the witnesses have deposed
against him due to enmity.
5.0 I have heard Sh. Manoj Chaudhary, Ld Addl. PP for
State as well as Sh Neearj Bansal, adv for accused Bharat
Bhandari and Sh. RC Tiwari, adv for accused Pradeep Dutta and
have gone through the record carefully.
6.0 Ld. Defence counsel for accused Bharat Bhandari
argued that accused had never worked as a servant in the
deceased's house and has nothing to do with the case. He has
been falsely framed by the police who could not solve this case.
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PW1 Amrita Seth and PW2 Gaurav Seth, daughterinlaw and
son of deceased, respectively, have themselves stated that
accused never worked as a servant in the deceased's house; and
that he used to visit their house to pick up his wife and mother
when they worked at the deceaseds' house. PW38 IO Inspector
Beer Singh also admitted in his cross examination that the
accused never worked as a domestic help with the deceased
persons and that the accused along with his family members had
left about 2 years prior to the murder. PW38 did not investigate
the antecedents of servants who were working with the deceased
persons at the time of incident nor did he record statement of any
servant.
Ld. counsel further submitted that no credible evidence
has come on record against accused Bharat Bhandari. PW7
Sohan Singh, brotherinlaw of accused deposed that accused
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Bharat Bhandari called him up from Anand Vihar to tell that the
accused persons were going to Nepal. But no details of such a
phone call have been placed on record. Recovery of currency
notes is alleged to have been made from PW7's house at the
instance of the accused. But the said currency notes do not bear
signatures of PW7 or that of any other witness. Further, although
Sohan Singh's wife was allegedly present at the time when the
accused visited their house but no statement of Sohan Singh's
wife has been recorded u/S. 161 Cr.PC.
6.1 Ld. defence counsel also contended that there are
number of contradictions / discrepancies in the testimony of
prosecution witnesses, viz.:
i) PW11 Praveen Tokas, neighbour of Sohan Singh
(PW7) in his cross examination stated that for the
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purpose of recovery from Sohan Singh's house, he
was called from his STD booth (which is in his house).
Whereas, PW21 Ct. Anil Kumar testified that PW11
Praveen had himself come to the house of PW7. PW
11's testimony is also contradicted by the testimony of
PW14 SI Raj Kumar who said that PW11 Praveen
met them at a distance of 100 yds. from the house of
PW7. Further, the fact that no signatures were put on
the currency notes allegedly recovered from PW7's
house make PW11's testimony shaky. Even PW38
was allegedly present at the time of seizure of
currency notes but even his signatures are not there
on the said notes. PW38 does not even mention
presence of public witness PW11 Praveen Tokas at
that time. Further, PW14 stated that he joined
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investigation at 8 pm on 25.06.04 but PW11 says that
PW14 came to his house at 6:30 pm or 6:45 pm on
25.06.04. Whereas, PW21 Ct. Anil Kumar in his cross
examination stated that he reached PW7's house at
4:15 pm. This contradicts the testimony of PW11, who
stated that police reached at about 6:30 pm;
ii) As per PW31 Ct. Ram Sarik Yadav, of UP Police he
had received an information on wireless on 21.06.04
that one Nepali national would be traveling to Nepal by
roadway bus from Gorakhpur after having committed a
murder at Delhi. PW31 and PW33 allegedly arrested
the accused while he was traveling in bus No. UP 53 T
- 2187 but no statement of driver or conductor or of
any passenger or any public witness was recorded.
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Allegedly, there was even a dhaba and a petrol pump
nearby but no person even from there was joined as
public witness. Although, the accused is stated to
have been traveling by the bus but no bus ticket has
been recovered from the accused in his personal
search ; the accused could not have been traveling
without any bus ticket. Non seizure of the bus ticket
also exposes the false story of the prosecution;
iii) PW33 (who allegedly accompanied PW31) has
mentioned in his testimony that there were two doors
in the bus. Fact remains that there is only one door in
UP State Roadway buses. This shows that testimony
of this witness is also false and fabricated;
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iv) PW35 SI BS Gulia can also be hardly believed as
although he stated that the accused was arrested on
25.06.04 whereas, he could not tell who were the other
members of the arresting party. He could not tell the
driver's name and did not even give the registration
number of or the name of the owner of the Qualis, by
which they went. Whereas, PW38 has stated that
police party went to Gorakhpur by car. He also could
not give details of registration number of the car /
name of its owner / driver etc.
6.2 Ld. defence counsel for accused Pradeep Dutta also
contended that the accused has been falsely implicated;
prosecution has failed to link him to the crime. The accused was
arrested on the disclosure of the coaccused, which is not
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admissible in evidence. The other evidence placed on record
against the accused is recovery of articles allegedly stolen from
the deceased's house. The said recovery is planted.
Ld. defence counsel further argued that main witness
against the accused is PW6 Kartar Singh. PW6 has stated that he
had let out one room to accused Pradeep Dutta and his mother.
He also stated that accused Pradeep Dutta had pointed out and
got recovered two bundles from the said room. PW6 however,
could not produce any rent receipt to show that the house was let
out to the accused or that the accused was living there. PW6 has
also deposed that the said house belonged to his friend Suresh
Sharma. Prosecution has failed to produce said Suresh Sharma,
the alleged owner of the said house. Prosecution has thus,
miserably failed to prove that the said room was in the occupation
of the accused. Actually, PW6 is a planted witness and that is
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why, he could not place on record any document to show that said
room was in occupation of the accused. The fact that no other
public witness was joined makes the recovery further doubtful.
6.3 On the other hand, Ld. Addl. PP submitted that the
prosecution has proved its case beyond reasonable doubt. He
submitted that all the previous servants of the deceased couple
were traced and interrogated. During investigation it was revealed
that mother / wife of accused Bharat Bhandari had also worked
with deceased couple. Both the accused persons were arrested
after the information provided by brotherinlaw of accused Bharat
Bhandari namely, Sohan Singh. Personal articles belonging to
deceased persons were recovered from / at the instance of
accused persons. Ld. Addl. PP further argued that the articles
recovered from accused persons are not easily available in the
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market and the accused persons could not explain possession of
the same. Accused Bharat Bhandari's own jija - PW7 has
deposed against the accused. He is the witness to seizure of
clothes and currency notes of Rs.6,000/ from the pocket of Jeans
pant of the accused, which was recovered at the instance of
accused Bharat Bhandari.
Ld. Addl. PP further submitted that the accused Bharat
Bhandari was nabbed with the help of UP Police while he was
trying to cross over to Nepal. When nabbed he was found in
possession of deceased couple's expensive articles, as has come
in the testimony of PW30, PW31 and PW33. The ld. defence
counsel's argument of planting of deceased person's personal
belongings is baseless as no such articles could have been
planted by UP police. Accused Bharat Bhandari in his disclosure
statement spilled the beans, which led the police to solving the
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case. Then accused Pradeep Dutta was arrested from West
Bengal and was brought to Delhi; he also got recovered the
clothes, which were worn by him at the time of murder and also
his share of booty i.e. five watches, two jhumkis, one silver coin,
one plastic box, one small plastic plate of statue of God, one
Rs.100/ note bearing No. JBU865198 etc.
Ld. Addl. PP also submitted that even the articles
recovered from both the accused persons were put up for TIP and
were identified by the deceaseds' son and daughterinlaw.
Ld. Addl. PP further submitted that chance prints (finger
prints / foot prints) lifted from the spot matched with that of the
specimen finger prints / foot prints of accused persons, which
have been duly proved by PW12 Chet Ram.
7.0 It may be mentioned that there is no direct evidence in
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this case in as much there is no eye witness and the case is
purely based on circumstantial evidence. It is a settled position of
law that where a case squarely rests upon circumstantial
evidence, the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any
other person, which was reiterated by the Hon'ble Supreme Court
in its recent judgment namely Azad @ Samin (Mohd.) Vs. State
of West Bengal 2008 XII AD (S.C.) 53. The Hon'ble Supreme
Court in that case made reference to the earlier judgment of the
Supreme Court in Padala Veera Reddy Vs. State of A.P. And
Ors. (AIR 1990 SC 79), wherein it was held that in case of
circumstantial evidence:
"1. The circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established;
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2. those circumstance should be of a definite tendency
unerringly pointing towards guilt of the accused;
3. the circumstances, taken cumulatively should form a chain
so complete that there is no `escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and
4. the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypotheses than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence".
7.1 Let me now examine the evidence which has been
placed on record by the prosecution, in the light of above
principles of law.
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8.0 Prosecution case is that accused Bharat Bhandari was
conversant with deceaseds' household; he alongwith his co
accused Pradeep Dutta murdered the Seth couple while executing
their plan to rob the household. They were found in possession of
stolen articles.
Familiarity with deceaseds' household
9.0 PW38 IO / Inspt Beer Singh deposed that on 21/6/04,
the investigation of this case was taken over by him. During
investigation, the old servants of the deceased were suspected to
be involved in the crime. On enquiry, it was revealed that one of
the servants of the deceased namely Bharat Bhandari had a
criminal record and was convicted in a theft case.
It is not disputed that accused Bharat Bhandari's mother
/ wife worked with Seths. It has also come in PW7 accused
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Bharat Bhandari's jija Sohan Singh's testimony that parents of
accused Bharat Bhandari and his (PW7's) wife had worked at the
house of the deceased. Accused Bharat Bhandari himself has not
denied that he used to visit Seths' house, although in his
statement u/S.313 Cr.PC he has stated that he used to visit their
(Seths') house when he was a child. The fact that accused Bharat
Bhandari used to visit deceased couple's house has also come on
record in the testimony of PW1 Amrita Seth, daughter in law and
PW2 Gaurav Seth, son of the deceased. PW1 in her cross
examination by Ld. counsel for accused Pradeep Dutta stated that
initially parents of accused Bharat Bhandari worked with her in
laws (deceased persons) and thereafter, his (accused's) sister had
worked as servant with her in laws and then accused Bharat
Bhandari's wife worked with her in laws as a servant. She has also
stated that the accused Bharat Bhandari did not himself work as
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servant with her in laws . However, when he was a child he used
to visit her in laws' house with his mother and after his marriage,
he used to come to pick up his wife. PW2 also reiterated the
same. PW2 has testified that accused Bharat Bhandari used to
come to his house when he was a child and his parents were
working as servant at his house; after parents of Bharat Bhandari,
his sister had worked there and thereafter, his wife had also
worked there as a servant and accused Bharat Bhandari used to
come to pick up his wife. The fact that the accused's wife was also
working with the deceased persons was put by Ld. defence
counsel in cross examination to PW9, Madhu Seth, daughterin
law of deceased persons. PW9 in response stated in her cross
examination that accused Bharat Bhandari's wife was working as
a servant in her in laws' house. PW9 in response to a court
question stated that wife of Bharat Bhandari was even given a
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SC No 5709 State Vs Bharat Bhandari & Anr
mangalsutra by her when she was working with her in laws.
Thus, no doubt accused Bharat Bhandari himself did not
work as a servant in deceased persons house, but it is established
that accused used to visit deceaseds' house and was familiar with
that household.
Both the accused were in Delhi on the date of incident:
10.0 PW38 further deposed that accordingly they visited
Sohan Singh, the brother in law of accused Bharat Bhandari, who
on interrogation disclosed that on 20/6/04 accused Bharat
Bhandari had visited his house alongwith accused Bengali @
Datta Bapi and they told him (Sohan Singh) that they were going
to Howrah; Sohan Singh handed over one voter ICard of Datta
Bapi (accused Pradeep Dutta) Ex.PW7/B vide memo Ex.PW7/A
and told that it was the same person who was being called Bengali
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by all persons.
10.1 PW7 Sohan Singh the brother in law (jija) of accused
Bharat Bhandari deposed that initially accused Bharat Bhandari
was living with his parents but after some altercation with them he
started living with him (PW7) at his house (251, Village Munirka,
Delhi). On 20/6/04, accused Bharat Bhandari alongwith his friend
known as Bengali came to his house in the morning, took meals
and thereafter, told him that they had got some contract and
advance payment from a party and hence, they are going to
Howrah; they also showed him two tickets of Howrah. PW7
identified accused Pradeep Dutta as Bengali. PW7 further
deposed that thereafter, he (PW7) left for Yusuf Sarai Market for
shopping for his cousin's engagement and while he was returning
by bus, he heard about the double murder having been committed
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at Vasant Enclave. After reaching home, he found that accused
persons had taken drinks and meals. PW7 further deposed that
parents of accused Bharat Bhandari and his (PW7's) wife also had
been to the house of the deceased and knew Seth couple; his
wife asked Bharat Bhandari if he was involved in the murder, to
which he (accused Bharat Bhandari) refused and within 57
minutes he (Bharat Bhandari) and his friend (accused Pradeep
Dutta) left the house. PW7 also deposed that in the evening
accused Bharat Bhandari gave a telephone call informing that he
was not going to Howrah but was going to Nepal. Next day on
21/6/04, police came to their house in the morning and he handed
over to police one ICard of Pradeep Dutta Ex.PW7/B lying at his
house which was seized by the police vide memo Ex.PW7/A.
PW7 stood by his above testimony in his cross
examination and reiterated that accused Bharat Bhandari was
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SC No 5709 State Vs Bharat Bhandari & Anr
living with him since two months prior to this incident. He stated
that the phone call was made by accused Bharat Bhandari
between 3pm and 4pm that he was going to Nepal and not to
Howrah. He further deposed that he had told about this phone call
to the police. He also stated in his cross examination that accused
Pradeep Dutta had come to his house 34 days prior to 25th June,
2004 and on that day accused Pradeep had enquired about
accused Bharat Bhandari and he did not stay at his house. He
further deposed that accused Pradeep had visited their house
prior to that day also but he did not remember that day. PW7
further stated in his cross examination that on 20th June accused
Pradeep did not have any conversation with him. Prior to that
when accused Pradeep Dutta had come to his house in May 2004
alongwith accused Bharat Bhandari, he had asked him (PW7) to
look for some job for him. PW7 had then asked him about his
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particulars, on which, accused Pradeep gave his ICard, which he
kept. The said Voter Icard was handed over by him to police and
the same was seized by the police vide memo Ex.PW7/A.
10.2 The fact that both the accused were together on 19/6/04
is also corroborated by Michael Wilson, who appeared as PW8.
PW8 deposed that accused persons were known to him as they
used to come to his place in Shamshan Ghat. On 19/6/04, it was
raining when both the accused visited him in the night; accused
then smoked smack etc with him. PW8 identified Ex.P9 as
chappals (which were found at the spot i.e., the deceaseds'
house) which belonged to him and were taken by accused
persons while leaving from his place on 19th June and deposed
that the accused had left their chappals. He identified his signature
on Ex.PW8/A, proceedings of TIP of chappals. No suggestion was
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put to PW8 in his cross examination that PW8 did not know the
accused persons or that the accused persons did not visit him
(PW8) on the night of 19/06/04. Further, PW8 in his cross
examination by Ld. counsel for accused Bharat Bhandari
reiterated that accused had left his place on 19th June in night.
It may also be mentioned that during TIP proceedings,
pulanda sealed with the seal of NS was opened and TIP w.r. t.
said chappals was conducted on 1/7/04 by PW34 Sh. AK Sarpal,
the then Ld. MM; PW8 identified chappals Ex.P9, as his chappals,
and identified his signatures at point A on TIP proceedings
Ex.PW8/A. PW34 Sh. AK Sarpal, Ld. MM was not cross examined
with respect to TIP proceedings conducted by him.
The Chappals of PW8 borrowed by accused persons were
found at the spot - 272, Vasant Enclave:
10.3 PW36 Inspt Narayan Singh deposed that on 20/6/04, on
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SC No 5709 State Vs Bharat Bhandari & Anr
receipt of DD No. 11A he alongwith SI Raj Kumar, Ct Shish Ram,
Ct. Krishan, Ct. Jai Bhagwan reached Flat No. 272, Vasant
Enclave, Vasant Vihar in government gypsy after making
departure entry vide DD No. 12A Ex.PW36/A; ASI Ram Nath
alongwith Ct. Ramkesh were already present at the spot. He
further deposed that from the spot he took into possession one
pair of chappals Ex.P9, vide memo Ex.PW4/E. PW36 was not
cross examined in this regard.
Testimony of PW36 is corroborated by DD No.12A
Ex.PW36/A which records departure of PW36 at 11:15am
alongwith above officials for the spot - 272, Vasant Enclave on
Gypsy DLC40312.
10.3.1 PW14 SI Raj Kumar also deposed that on 20/6/04, at
11:15am, he accompanied Inspt Narayan Singh to 272, Vasant
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SC No 5709 State Vs Bharat Bhandari & Anr
Enclave, since a report of murder had been received. He also
deposed that pair of chappals Ex.P9 was recovered from the spot.
In his cross examination PW14 denied that he had not gone to
spot or that no recovery was effected in his presence or that all
recoveries were planted and that he signed the memo at PS.
10.3.2 PW20 Ct. Jai Bhagwan also deposed that on 20/6/04,
he joined the investigation of this case alongwith IO Inspt Narayan
Singh, SI Rajkumar and other staff and went to 272, Vasant
Enclave. He corroborated the testimony of PW36 & PW14 and
deposed that IO seized a pair of chappal vide memo Ex.PW4/E. In
his cross examination by counsel for accused Bharat Bhandari,
PW20 denied that all memos were prepared at PS and were
signed by him at PS and that the sealing was not done at the spot.
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SC No 5709 State Vs Bharat Bhandari & Anr
10.4 In view of the above, it is established that the accused
persons visited PW8 in the night on 19/06/04 and had left after
smoking smack etc. and while leaving accused borrowed PW8's
chappals ; said chappals were recovered from the spot. No
explanation has come from the side of accused persons about
presence on the spot, of the chappals which they had borrowed
from PW8.
Accused Persons Left Delhi Soon After The Incident:
11.0 As discussed above, in para 10 (supra) and may be
mentioned at the cost of repetition that it has come in the
testimony of PW7, jija of the accused Bharat Bhandari that on
20/6/04, accused Bharat Bhandari alongwith his friend Bengali
accused Pradeep Dutta came to his house in the morning, took
drinks and meals and thereafter, told him that they had got some
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contract and advance payment from a party and hence, they were
going to Howrah; they also showed him two tickets of Howrah. He
further deposed that at about 2 - 2:30pm , when he and his wife
returned from market, and his wife enquired from Bharat
Bhandari, whether he has anything to do with murder of Seth
couple, accused Bharat Bhandari and his friend had left their
house within 5 7 minutes. In the evening, accused Bharat
Bhandari gave a telephone call to PW7 informing that he was not
going to Howrah but was now going to Nepal.
Accused Bharat Bhandari nabbed while travelling from
Gorakhpur to Nepal and articles belonging to deceased
persons recovered from him:
12.0 As mentioned above, it has already come on record
that PW7 informed police that accused Bharat Bhandari had
initially told that they were going to Howrah but then called up that
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SC No 5709 State Vs Bharat Bhandari & Anr
he was going to Nepal and not Howrah. PW38 Inspt Beer Singh
has testified that when Sohan Singh received a call from accused
Bharat Bhandari, they came to know that accused Bharat
Bhandari was somewhere in Gorakhpur, as the number from
which accused Bharat Bhandari had made a call was traced to be
that of a STD Booth in Gorakhpur. PW38 further deposed that he
sent a fax message alongwith photograph of accused Bharat
Bhandari and Datta Bapi (accused Pradeep Dutta) to SSP
Gorakhpur. Copies of the same are placed on record (although,
the same have not been exhibited); On the same night he
received a message from Maharajganj of PS Purandar Pur
disclosing that accused Bharat Bhandari has been arrested u/S 41
Cr.PC and that some medals including other articles were
recovered from his possession belonging to deceased of this
case. He further deposed that police team was sent to Gorakhpur
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in the supervision of SI BS Gulia (PW35). Bharat Bhandari was
then brought to Delhi on 25/6/04. PW38 was not cross examined
in this regard.
12.1 The testimony of PW38 about arrest of accused Bharat
Bhandari from UP and recovery of items of deceased's household
from him is corroborated by officials of UP Police PW33 SI
Durga Dutt, PW30 Ct. Janardhan Yadav and PW31 Ct. Ram Sarik
Yadav. PW33 SI Durga Dutt deposed that on 21/6/04 on receipt of
information that one criminal was coming from Delhi and was
going towards Sanoli, he alongwith Ct. Ram Sarik Yadav (PW31),
Ct. Janardhan Yadav (PW30) and other staff members started
checking the vehicles at roadways near Lalayan, Tesia, Petrol
Pump. While checking, they stopped a bus bearing No. UP 53 T
2187 of UP Roadways at about 10pm. They saw a person running
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towards east with an attache, who was chased and apprehended
whose name was revealed as Bharat Bhandari. PW33 further
deposed that accused was searched and from his pant's back
pocket a purse was recovered containing Rs. 1600 Ex.P1 and
from his right side pant pocket Rs. 4500/ Ex.P26 was recovered;
one motorola mobile phone, two medals Ex.P28 & P29 - one of
gold with the 'King George Medical College' inscribed on it and
other of silver with Harnam Singh inscribed on it, were recovered.
PW33 further deposed that from the left side pocket of the pant of
accused Bharat Bhandari, two cuff links of gold colour with stone
Ex.P1 was recovered alongwith some bichuas Ex.P2. Accused's
attachee Ex.P30 was opened and found containing Rs. 2500/
Ex.P31 in a polythene and a receipt of purchase of motorola
mobile. PW33 further deposed that accused was found wearing a
Rado watch Ex.P32. He further deposed that on interrogation,
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accused Bharat Bhandari disclosed that he alongwith Pradeep
Dutta and Raju committed murder of General Harnam Singh and
his wife and that he had given Rs.5000/ to his sister. PW33
further deposed that a case FIR No. 0/04 Ex.PW33/A u/S 41/411
was registered in the hand of Ct. Mahesh. He identified his
signatures on the arrest memo and seizure memo Ex.PW30/A,
vide which above items were seized.
In his cross examination, PW33 stood by his testimony
and stated that they apprehended the accused on the driver's side
at about 1015 paces away and that he did not note down the
names of conductor and driver of the bus. He also stated in his
cross examination that he had asked the persons working at the
Dhaba to become a witness but they refused.
12.2 PW30 Ct. Janardhan Yadav and PW31 Ct. Ram Sarik
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Yadav corroborated the testimony of PW33 about apprehension of
the accused and recovery of aforesaid articles. PW30 deposed on
the same lines as that of PW33 and stated that on 21/6/04, he
alongwith SI Dugra Dutt and Ct. Ram Sarik Yadav were patrolling
on govt jeep with driver and SSP Gorakhpur when they received
information that culprit from Delhi is going to Sanoli on roadways
bus; description of the person was also given to them. Thereafter,
they started checking roadways buses near the Lalayan Tesia
Petrol Pump; while checking bus bearing No. UP53T2187 at
about 10pm they saw a person of the same description getting
down from the bus carrying an attachi case who was apprehended
at a distance of 15 paces from the road where the bus was
parked. He stated that on interrogation, the nabbed person
revealed his name as Bharat Bhandari. On suspicion, the person
was searched. PW30 also gave similar details of recovery made
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SC No 5709 State Vs Bharat Bhandari & Anr
from accused Bharat Bhandari and stated that all the articles were
kept in the attachi and were sealed with the seal of KP Singh and
were taken into possession vide memo Ex.PW30/A, prepared by
SI Durga Dutt Singh. He further deposed that on interrogation,
accused Bharat Bhandari disclosed that he alongwith Raju Bengali
and one other committed murder of Lt. General Harnam Singh and
his wife; and that out of the stolen money, he purchased Motorola
phone and had given Rs.5000/ to his sister.
Except for minor discrepancies, PW30 stood by his
testimony in material particulars, in his cross examination. PW 30
categorically denied the suggestion that nothing was recovered
from the accused. PW30 also explained that people from the
dhaba had come after the accused was apprehended, and were
asked to join the investigation but they refused without giving their
names.
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SC No 5709 State Vs Bharat Bhandari & Anr
12.3 PW31 Ct. Ram Sarik Yadav of UP Police, also deposed
on same lines.
12.4 PW32 HC Shyam Dev from PS Purandpur, Maharaj
Ganj, UP, deposed that on 21/6/04 he was working as MHC(M),
PS Purandarpur. On that day, SI Durga Dutt Singh PW33
deposited with him a parcel sealed with the seal of SI KP Singh,
UPP said to be containing Rs. 8600/, a mobile phone of Motorola,
a Rado Watch, two shields and other articles alleged to have been
recovered from accused Bharat Bhandari alongwith sample seal of
SI KP Singh, UPP as case property of case FIR No. 0/04 u/S 41
Cr.PC / 411 IPC, which was entered in the MHC(M) register at S.
No. 36. PW 32 further deposed that on 23/6/04, SI Bahadur Singh
(BS Gulia PW35) from PS Vasant Vihar, Delhi came and by the
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order of the Court, he handed over the aforesaid sealed parcels
containing the articles duly sealed alongwith the sample seal to SI
Bahadur, which was seized vide memo Ex.PW16/A and identified
his signatures on seizure memo Ex.PW16/A. PW32 was not cross
examined.
Accused Bharat Bhandari was then brought to Delhi:
12.5 The testimony of PW38 and that of above officials of UP
Police is further corroborated by PW35 SI BS Gulia. PW35
testified that on 21/6/04, the investigation of this case was handed
over to him and he alongwith other staff went to Gorakhpur for
investigation. On 23/6/04, he reached PS Purandarpur, Maharaj
Ganj, UP and recorded statement of all the concerned police
officials of PS Purandarpur, who had arrested accused Bharat
Bhandari. PW35 further deposed that he moved an application in
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the court of Farinda of Dist Maharaj Ganj and obtained the
permission from the concerned court for transit remand of accused
Bharat Bhandari and to take the case property seized by the
police of PS Purandapur (copy of application and order of the
court are on record, but are not exhibited). Thereafter, he went to
PS Purandarpur and collected the case property from the MHC(M)
and also took the custody of accused Bharat Bhandari from
Gorakhpur Jail. Thereafter, accused alongwith the case property
was brought to PS Vasant Vihar and further investigation was
taken over by the SHO.
PW35 further deposed that on 25/6/04, accused Bharat
Bhandari was arrested at the direction of the Court (at Delhi) and
arrest memo Ex.PW35/A was prepared, disclosure statement
Ex.PW35/B was recorded. On 26/6/04, accused Bharat Bhandari
pointed out the place of incident vide memo Ex.PW35/C.
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In his cross examination PW35 has stated that he
received information about the arrest of accused Bharat Bhandari
by UP police from SHO PS Vasant Vihar on his mobile phone.
Nothing came out in his cross examination so as to unsettle his
testimony.
12.6 PW35's testimony is corroborated by PW16 Ct. Naresh
Kumar of Delhi Police who deposed that on 21/6/04 he joined the
investigation of this case; he alongwith SI DS Gulia, SI Charanjit
Singh, Ct. Santlal of Special Staff, South West Distt went to the
Court at Frinda Gorakhpur , UP where they met Inspt Om Prakash
of PS RK Puram ; thereafter, they came back to PS Purandarpur
where on 23/6/04, HC Shyam (PW32) of PS Purandarpur
produced sealed parcel which was sealed with the seal of SI KP
Singh of UP Police and also gave a sample seal of KP Singh UPP.
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Both the sealed parcels and sample seal were taken into
possession vide memo Ex.PW16/A, by SI Gulia. PW16 identified
his signatures at point A on Ex.PW16/A. This corroborates the
testimony of PW32, HC Shyam Dev MNC(M). PW16 further stated
that thereafter, they came back to Delhi and deposited the sealed
parcel and sample seal with the MHC(M) PS Vasant Vihar. So
long as the parcel remained in his custody nobody tampered with
the same. PW16 was not cross examined by the accused
persons.
Further recovery from Delhi at the instance of accused Bharat
Bhandari persuant to his disclosure:
12.7 Accused Bharat Bhandari in his disclosure statement
made to the police on 25/6/04 which is Ex.PW35/B stated that he
can get recovered from his sister's house, jeans pant and tshirt,
which he was wearing at the time of commission of crime and an
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amount of Rs.6000/ which he had stealthily kept in pant pocket,
without the knowledge of accused Pradeep Dutta. He also stated
that other articles / his share of booty has already been seized by
UP Police, when he was going to Nepal. Persuant to his
disclosure statement Ex.PW35/B, accused Bharat Bhandari was
taken to his sisters' house at Munirka. PW21 Ct. Amit Kumar has
deposed that on 25/6/04 he joined the investigation of this case
and was having custody of accused Bharat Bhandari and as per
the disclosure statement of accused Bharat Bhandari, he
(accused) was taken to Munirka at H. No. 251A, 2nd floor, where
PW7 / Sohan Singh, brother in law of accused Bharat Bhandari
was living . The land lord of the house Mr. Praveen Kumar (PW11)
was joined in the investigation. Accused went to the 'taand' of the
room and brought a polythene bag containing some articles. He
further deposed that the said bag was lying behind a cardboard
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carton on the taand. On opening of the same, it was found
containing one blue colour jeans pant Ex.P22 and one nylon tshirt
Ex.P23. The pant was found containing Rs. 6000/ Ex.P19 which
was sealed in a separate envelop with the seal of DS and pant
and tshirt were sealed separately with the seal of DS and seal
was handed over to SI Raj Kumar. The said articles were seized
vide memo Ex.PW7/C. In his cross examination, PW21 stated that
the brother in law of accused had met them at house No. 251A.
Praveen landlord had himself come to the house on seeing the
police. PW23 even gave description of clothes which were seized;
he also told that pant was having whitewash stains and the said
clothes were used clothes. He further testified that the clothes
were put in the same polythene and then sealed. He denied the
suggestion that he had not gone to Munirka alongwith IO and that
no recovery was made in his presence or that all articles were
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planted.
12.7.1 Testimony of PW21 is corroborated by PW38 Inspt Beer
Singh. PW38 also testified that on 25/6/04 accused Bharat
Bhandari was brought to Delhi and police remand was obtained
from the court. One jeans pant Ex.P22, tshirt Ex.P23 and Rs.
6000/ collectively Ex.P19 were got recovered by accused Bharat
Bhandari from H. No. 251A, Munirka, 2nd Floor,where his brother
in law Sohan Singh was residing as a tenant , which were seized
vide memo Ex.PW7/C.
12.7.2 PW7 Sohan Singh and PW11 Praveen Tokas, landlord
of Sohan Singh, the independent witnesses also corroborated
recovery of clothes and cash by the police at the instance of
accused Bharat Bhandari, in their presence. PW7 testified that on
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25.06.04, when accused Bharat Bhandari was in custody of the
police, he (accused) got recovered from their (PW7's) house, the
clothes which he had put in their Taand in a cardboard carton -
which consisted of one jeans pant, one Tshirt and that Rs.6,000/
(10 X 500 and 10 X 100) collectively Ex.P19, were found in the
pocket of the said jeans pant. The currency notes were seized
after sealing the same with the seal of BS, vide memo Ex.PW7/C.
PW7 stood by the same in his cross examination.
12.7.3 PW11 Praveen Tokas also deposed on similar lines. He
also gave details of articles recovered at the instance of accused
Bharat Bhandari from taand of the house. He also deposed that
the aforesaid articles were seized vide memo Ex.PW7/C
(inadvertently mentioned as Ex.PW10/C in his testimony; there is
no document exhibited as Ex.PW10/C). He identified the said
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clothes and currency notes.
12.8 In view of the above evidence, it is established that
accused Bharat Bhandari left Delhi soon after the incident and
was apprehended, while he was trying to cross over to Nepal. Not
only that, he was found in possession of certain articles which
belonged to the deceased persons. He was brought to Delhi,
where he got recovered his clothes, worn at the time of incident
and stolen cash.
Accused Pradeep Dutta apprehended from Calcutta and
recovery made from him and at his instance pursuant to
disclosure:
12.9 Ld. Addl. PP submitted that accused Bharat Bhandari
was arrested by UP Police on 21/6/04. On interrogation, accused
Bharat Bhandari spilled the beans. On the said information, a
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team of officials left for Kolkatta on 22/6/04, in search of accused
Pradeep Dutta, where he was traced and arrested; made
disclosure and recovery was made from him; he also got further
recovery made from his premises at Delhi, persuant to his
disclosure statement. The relevant witnesses of these facts are
PW29 SI Balram, PW36 Inspt Narayan Singh, PW38 IO Inspt Beer
Singh, of Delhi Police; and SI Alok Chaudhary PW26 and SI Gopal
Chandra Mandal PW27, of Calcutta Police.
12.9.1 PW26 SI Alok Chaudhary, PS Uttudenga, Kolkatta
deposed that on 24/6/04, he was posted at PS Manak Talla, when
a team of Delhi Police reached there and on the direction of
Deputy Commissioner of Police, Eastern Subrum Division, he
alongwith Ct. Ravinder assisted the Delhi Police team in the
investigation of the case; He further deposed that they alongwith
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the Delhi Police went to PS Canning where Inspt Narayan Singh
of Delhi Police made requisition for local police assistance, on
which the mobile van was directed by the Duty Officer of the said
PS to assist the Delhi Police. PW26 further stated that SI Gopal
Mandal alongwith four constables went to Village Nagartala in
government vehicle and thereafter, he alongwith other staff also
went to Village Nagartala. On the basis of a source information
they went to a hut in Village Nagartala and found one boy
sleeping; Chobi (sister of accused Pradeep Dutta) and her
husband Vikas Pal identified the person sleeping as Pradeep
Dutta @ Bhapi Dutt @ Bengali and stated that he (Pradeep) was
working in Delhi. Accused Pradeep Dutta was arrested vide memo
Ex.PW26/A. During his personal search, from his pocket a brown
colour purse was recovered, on which Dutta and Dutta was
written, which also contained Rs.409/, two tickets of train - one
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from New Delhi to Howrah and other from Siyaldah to Taldi, and
one slip on which Anil Kumar, 143, Basant Gaon and phone
number was written. The purse alongwith the aforesaid articles
were sealed in a parcel with the seal of NS and seized vide memo
Ex.PW26/B; PW26 identified his signatures on the said memo at
point A. PW26 further deposed that the accused Pradeep Dutta
then pointed out an iron box lying in a corner of the hut from which
Rs.2600/ Ex.P25 were recovered which were sealed with the seal
of NS and seized vide memo Ex.PW26/C; Seal after use was
handed over to SI Balram. PW26 identified his signature on the
said memo at point A. PW26 further testified that accused
Pradeep Dutta disclosed that four days before, he alongwith one
Bharat Nepali had committed murder of old person at Vasant
Enclave and looted their property. The said disclosure was
reduced into writing by Inspt Narain Singh. PW26, on seeing a
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brown colour purse Ex.P7 on which Dutta and Dutta was written
containing the aforesaid articles (cash, tickets and a slip),
identified the same as recovered from accused Pradeep Dutta. In
his cross examination, PW26 stated that it was 2am in the night
when he left alongwith Delhi Police in a Sumo private vehicle. He
further stated that he reached PS Canning at about 3:35am and
his departure from his PS was recorded before leaving the PS. He
however, stated that he had not given the copy of that DD to Delhi
Police. He also stated that Inspt Narain Singh had requisitioned
police assistance from the Duty Officer of PS Canning; Chabi
sister of accused Pradeep and her husband Vikas Pal who were
brought by Delhi Police to PS Makik Tala, had accompanied them
from the PS in the Tata Sumo, which was recorded in GD
Register. PW26 further stated in his cross examination that they
reached Village Nagartala , PS Canning at about 4:20am. Delhi
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police arrested Pradeep Dutta and the signatures of his sister
were obtained on his arrest memo Ex.PW26/A. Same is supported
by Ex.PW26/A, the arrest memo, which mentions the time of
arrest of accused Pradeep Dutta as 4:40am on 26/6/04. PW26
categorically denied the suggestion that nothing was recovered
from accused as alleged and that accused has been falsely
implicated in this case.
12.9.2 PW27 SI Gopal Chandra Mandal, PS Canning, Kolkatta
also deposed on the same lines. He deposed that on 24/6/04, he
alongwith four constables were patrolling on a police van fitted
with wireless. At about 3:40am Duty Officer informed him on
wireless that a team from Delhi Police has come for investigation
of a case and would conduct a raid at village Nagartala and asked
them to reach outside Village Nagartala. Accordingly, they
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reached Village Nagartala, where Delhi Police also reached
alongwith Calcutta Police. He corroborated that accused Pradeep
Dutta was arrested vide memo Ex.PW26/A from Pramod Das
Gupta Colony, Village Nagartalla at the pointing of sister of the
accused. PW27 identified his signatures at point 'C' on arrest
memo Ex.PW26/A. He also corroborated the recovery made from
accused Pradeep Dutta and seizure of the same vide memo
Ex.PW26/B. PW27 identified his signatures at point B on personal
search memo Ex.PW26/B. He further testified that thereafter, on
pointing out of accused Pradeep Rs.2600/ Ex.P25 were
recovered from an iron box lying at the corner of the jhuggi, which
were seized and sealed in a parcel with the seal of NS and the
same was seized vide memo Ex.PW26/C which was signed by
him at point B. PW27 stood by his deposition during his cross
examination also.
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12.9.3 Testimony of above witnesses is further corroborated by
PW29 SI Balram and PW36 SI Narayan Singh of Delhi Police who
were deputed to Calcutta. PW29 deposed that on 22/6/04, he
joined investigation with Inspt Narain Singh of PS Vasant Vihar
and went to Calcutta alongwith Inspt Narain Singh and HC Akbar
Khan. In the intervening night of 2324/6/04 at about 2:30am, they
were at PS Manik Tall, Calcutta where they received a secret
information that accused Pradeep Dutta @ Buppy Datta was at his
relative's house in village Nagartala, PS Canning, Distt. 24
Pargana, West Bengal. On the said information, he alongwith
Inspt Narain Singh, SI Alok Chaudhary of PS Manak Talla, Chabi
sister of accused Pradeep Dutta and Vikas Pal brother in law of
accused Pradeep Dutta, left PS Manak Talla in Tata Sumo and
reached PS Canning where they made a request to Duty Officer
for police assistance. Duty Officer, PS Canning informed SI G
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Mandal on wireless to join the investigation with them at village
Nagartala, who met us outside the Village Nagartalla alongwith his
staff. Thereafter, they all went to the jhuggi of Bahadur Vaid and at
the pointing of the informer and sister of accused Pradeep Dutta,
accused Pradeep Dutta was apprehended. Accused Pradeep
Dutta on interrogation disclosed that he had committed murder of
old aged couple at Vasant Enclave. Accused Pradeep Dutta was
arrested vide memo Ex.PW26/A. He also corroborated the
recovery made from accused Pradeep during his personal search
and seizure of those items vide memo Ex.PW26/B. PW29 also
testified that Bahadur Vaid from whose house the accused was
apprehended was also made a witness to the aforesaid
proceedings. He identified his signatures on the personal search
memo Ex.PW26/B, at point C. Ex.PW/26B corroborates the
version of PW29, as it bears thumb impression of Bahadur Vaidya.
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PW29 also corroborated the testimony of PW26 and PW27 about
accused Pradeep Dutta disclosing that remaining looted money
was kept in an iron box lying in the corner of the jhuggi, and
seizure of Rs. 2600/ Ex.P25, from the trunk vide memo
Ex.PW26/C. He further testified that Inspt Narain Singh
interrogated the accused and recorded his statement Ex.PW29/A;
and thereafter, he was produced in Court at Alipur, Calcutta and
his transit remand was obtained and thereafter, he was brought to
Delhi. PW29 further deposed that on 25/6/04, accused Pradeep
Dutta was further interrogated at PS Vasant Vihar and he made
disclosure statement Ex.PW29/B.
PW29 stood by his testimony and denied the suggestion
that nothing was recovered from accused Pradeep Dutta or that
case property had been planted on him.
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12.9.4 PW36, SI Narayan Singh also deposed on similar lines.
He also corroborated the fact of arrest of accused Pradeep Dutta
and his search and recovery of above said documents and cash
from / at the instance of the accused. Nothing could be extracted
in PW36's cross examination so as to discredit his testimony.
12.9.5 PW34 Sh. AK Sarpal, Ld. MM, in his testimony proved
the application for TIP (Ex.PW34/A) and TIP proceedings
conducted on 1/7/04, 3/7/04 and 8/7/04 and the same are
Ex.PW34/B & C, Ex.PW1/F and Ex.PW2/A, respectively. TIP
proceedings Ex.PW34/B mention about the brown purse being
taken out of a sealed pulanda and mentions inter alia, the
presence of two railway tickets in the said purse (i) New Delhi to
Howrah Junction (20/6/04) bearing No. C 11785823; (ii) Sealdah
to Taldi (22/6/04) bearing No. H77286111. It may be mentioned
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that PW10 Nikhil Seth, son of the deceased couple, identified the
said purse to be that of his father vide his statement Ex.PW10/A
(as part of the TIP proceedings Ex.PW34/B).
Recovery made at the instance of accused Pradeep Dutta at
Delhi
12.9.6 PW 38 Inspt Beer Singh deposed that accused Pradeep
Datta @ Bengali was brought to Delhi on 26/6/04 by police team
which had gone to Calcutta in his search. On 26/6/04, accused
Pradeep Datta @ Bappi Dutta @ Bengali pointed out place of
incident vide memo Ex.PW38/A and also got recovered from H.
No. 146B Basant Gaon one silver colour wrist watch Ex.P3, and
other articles Ex.P4 to 6, Ex.P14, P15, P17, P18 & P20, as
mentioned at Sl. nos. 1 to 10 in seizure memo Ex.PW6/B; he also
got recovered from the taand of the room which was opened at the
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instance of accused Pradeep one pant Ex.PW38/PX1, banyan
Ex.PW38/PX2 and one tshirt Ex.PW38/PX3 having red and black
spots which were seized by him (PW38) vide memo Ex.PW6/A.
12.9.7 Deposition of PW38 is corroborated by PW6 a public
witness / landlord Kartar Singh. PW6 deposed that his friend
Suresh Sharma has a house in Vasant Gaon, which is near his
(PW6's) house and Suresh had entrusted him the job of letting it
out. He had let out one room to accused Pradeep Dutta and his
mother. PW6 further deposed that police had come to the room of
accused Pradeep Dutta on 26/6/04, which was lying locked at that
time and accused was in police custody. The room was opened
and accused Pradeep Dutta pointed out to the place behind the
trunk on the Taand and took out one bundle of clothes which
contained one pant and one shirt having red and black spot; police
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also seized after squeezing, one vest which was kept in the bucket
with water, vide memo Ex.PW6/A, in his presence. PW6 identified
his signature at point 'A' on the said memo. PW6 further testified
that accused Pradeep then pointed out to a bundle under the bed
and then he went beneath the bed and brought out that bundle. It
was opened and it was found to contain 5 wrist watches Ex.P3 to
P6 and Ex.P18, one 100 rupee note Ex.P14, pair of jhumkies
Ex.P15, one silver coin Ex.P16 and a silver idol of goddess
Ex.P17, which were seized vide memo Ex.PW6/B. PW6 identified
his signatures on the said memo. PW6 stood by his testimony in
his cross examination. He stated that mother of the accused who
was living in the same village in an other house needed a room ;
and since this room was lying vacant, he (PW6) let the room to her
and no rent receipt was given. The room was given on rent to
mother of accused and the accused had also started living
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thereafter. He also stated that the accused had taken room on rent
w.e .f 1/6/04 at a monthly rent of Rs.1000/ but no receipt was
executed. He also stated that mother of accused had told him that
she used to do cooking in kothis. PW6 however, could not
recollect the name of mother of accused. PW6 denied the
suggestion that no recovery was made in his presence.
12.9.8 In view of the above evidence, it is established that
accused Pradeep Dutta left Delhi on 20/6/04, i.e. soon after the
incident; he was apprehended from Calcutta, which fact is
admitted by the accused in his statement (question No. 22) ; on
his personal search, he was found in possession of a purse
containing cash and above said railway tickets etc. The said purse
was identified in TIP proceedings by PW10, to be that of the
deceased, as would be discussed in paras infra. Accused got
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recovered his share of booty and his clothes, which he was
wearing at the time of incident from his room, at Delhi.
Articles recovered from accused persons were identified to
be that of deceased couple:
13.0 It is worthwhile to note that PW1 Amrita Seth, daughter
in law of deceased after checking the household had given to the
police a list of missing articles, as far as she could recollect. The
said list is Ex.PW1/E. As per Ex.PW1/E, following articles were
assessed to be missing:
(i) some medals
(ii) cash about Rs.20,000/
(iii) father in law's wallets
(iv) 3 diamond rings (lady's)
(v) one gold chain.
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(vi) Some silver ornaments.
(vii)Some gent's wrist watches which included a Titan, Rado and
an old Omega.
(viii) Two lady's wrist watches which included a Titan.
13.1 The TIP proceedings of case property / the articles
recovered from / at the instance of accused persons was
conducted by the Ld. MM on 1/7/04, 3/7/04 and 8/7/04. On 3/7/04,
Amrita Seth / PW1 had participated in TIP of articles recovered
from the accused persons, in which the said articles were put to
her (PW1). Gaurav Seth (PW2), son of the deceased also
participated in the said proceedings on 3/7/04, which are upon
Ex.PW1/F. The said proceedings were duly proved by PW34 / Ld.
MM Sh. AK Sarpal. In Ex.PW1/F, the Ld. MM has recorded
"The result of the TIP is that witness Amrita Seth has correctly
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identified one pair of foot rings (bichuas) only. The witness
Gaurav Seth also identified one pair of cliff (cuff links)
correctly....."
Both of these articles were recovered from accused
Bharat Bhandari, on his personal search.
It may be mentioned that two medals were also
recovered from accused Bharat Bhandari on his personal search
by UP Police, as has come in the testimony of PW30, PW31 &
PW33. It is pertinent to mention here that Ld. MM has recorded in
TIP proceedings Ex.PW34/B and Ex.PW1/F, about presence of
these medals in the pulanda. Ex.PW1/F records description of the
above said medals which were found in the pulanda opened
during TIP proceedings conducted on 3/7/04. It mentions that one
medal with words "King George's Medical College, Lucknow" with
picture of one building engraved on one side and 1943 batch
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Golden Jubilee Lt. Col. HS Singh engraved on the other side was
found in the pulanda; the other medal bearing the symbol of some
association namely "International association of KGMC Alumini
Friendship Brotherhood" written on one side and IGM 93 Lt. Gen.
Harnam Singh Seth 1942 engraved on the other side was found in
the pulanda opened during TIP proceedings conducted on 3/7/04.
It may also be mentioned that PW30 Ct. Janardhan
Yadav, PW31 Ct. Ram Sarik Yadav and PW33 SI Durga Dutt of
UP Police, who apprehended accused Bharat Bhandari have also
testified about recovery of these medals from the pocket of
accused Bharat Bhandari's pant. These witnesses have also
deposed that on one gold medal "King George Medical College,
Lucknow" was inscribed and on other white medal Lt. General
Harnam Singh and some other words were inscribed which were
not clearly visible. These witnesses identified these medals
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(Ex.P28 and P29) as the same which were recovered from
accused Bharat Bhandari. It appears that these medals Ex.P28 &
Ex.P29 were not put in TIP, as these bore the name of deceased
Harnam Singh Seth and did not need any identification.
13.2 Gaurav Seth (PW2) also participated in the TIP
proceedings of the missing articles of his parents held on 8/7/04
which are Ex.PW2/A. PW2 identified case property - one Rado
watch of his father (recovered from accused Bharat Bhandari) and
his statement recorded by Ld. MM reads as under:
"On SA
I have identified one watch from
small crack on the glass and also from the
condition of the strap of the watch.
RO &AC MM/8/7/04"
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13.3 TIP proceedings of case property conducted on 1/7/04
have been proved by Ld. MM Sh. AK Sarpal PW34 as
Ex.PW34/B. In the said proceedings, PW10 Nikhil Seth (son of
deceased) and PW9 Madhu Seth (daughterinlaw of deceased),
identified following items recovered from accused Pradeep Dutta:
1)brown colour purse (recovered on personal search of accused
Pradeep Dutta at Calcutta)
2) silver jhumki.
(recovered at his instance from Delhi.
3) Five watches.
13.3.1 PW10 Nikhil Seth, vide his statement Ex.PW10/A
recorded during said TIP proceedings stated that:
"I have seen watches and purses
kept on table and picked up four watches
which I can identify. I have also picked up two
purses, one is brown colour which is 100%
belonging to my father whereas black colour
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purse may be of my father but I am not fully
sure."
13.3.2 PW9 Madhu Seth identified a pair of jhumki in the TIP.
She vide her statement Ex.PW9/A made during abovesaid TIP
proceedings has stated that:
"mere ek jhumke par lal rang ka kuch
lag gaya tha, isliye maine jhumke ka jode ko
pehchan kiya hain. Yeh jhumke main pehna bhi
karti thi."
13.3.3 In the said proceedings, the Ld. MM has observed that
witness Nikhil Seth (PW10) identified correctly four watches out of
the five watches and also identified case property purse correctly;
and the jhumki is identified correctly by Madhu Seth.
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13.4 The above witnesses identified the said articles before
this court also. PW9 Madhu Seth, daughter in law of deceased in
her testimony before this Court has stated that about a year before
murder of her parents in law, she had visited them at their house
and had given some earrings and other things to them for giving to
the domestic servants as she was not using them. After murder of
her in laws, these items were found missing. She identified the
pair of jhumka which she had left with her in laws because of the
peculiar red mark on it. PW 9 further deposed that she had
participated in the TIP and had identified jhumkas Ex.P20. In her
cross examination, PW9 stood by her testimony and denied the
suggestion that police had told her about jhumkas recovered from
accused persons before TIP and that jhumkas which were given
by her to her in laws had already been given to the servants.
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13.4.1 PW1, Ms. Amrita Seth in her testimony has also
deposed that the TIP proceedings in which she had participated
are Ex.PW1/F. On seeing the case property, she identified the pair
of cuff links and the bichuas as belonging to her parents in law
and stated that she had earlier identified Bichuas and cuff links.
13.4.2 PW2 Gaurav Seth also deposed that he had
participated in the TIP proceedings and had identified one watch
before the Ld. MM. He also identified other watches (which were
recovered at the instance of accused Pradeep Dutta) and even
explained that watch Ex.P4 was lying with his parents, which
belonged to his brother and that watch Ex.P5 also belonged to his
father and told that Ex.P6 was the watch which his brother had
presented to his father. PW2 also identified the black & brown
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colour wallets belonging to his father. In his cross examination,
PW2 stated that he could identify the purse / wallet as he had
seen the same with his father for long time. He also stated that as
56 pairs of cuff links of same colour were placed before him at the
time of TIP he became little unsure about the cuff links. PW2
categorically denied in his cross examination that police had
shown the recovered articles to him and further stated that he had
seen the said articles only during TIP before the Ld. MM. He
denied the suggestion that articles recovered did not belong to his
parents.
13.4.3 PW10 Nikhil Seth, son of deceased persons, deposed
before this Court that on 1/7/04 he had participated in the TIP
proceedings Ex.PW10/A (which is actually PW10's statement in
TIP proceedings Ex.PW34/B) of the stolen articles recovered,
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wherein he had identified four wrist watches and one purse and
that he was uncertain about another purse. He again identified the
said wrist watches and the purse, confirming to be the same
which were identified by him before the Ld. MM. He further
explained that HMT watch was the first watch given to him by his
father in school in 1969. The Omega watch was brought by his
father from USA in 1964, so he knew about it. Swiss watch was
given by him to his father which he purchased from Geneva. Titan
Watch was also given by him to his father. In his cross
examination, PW10 even clarified that the list of missing articles
which was prepared by his sister in law was a list of articles which
to her knowledge were found missing. It was a preliminary list and
did not contain all the articles and his sister in law did not know
about all the missing articles. He further stated that he was not
called at PS for identification of wrist watches. He denied the
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suggestion that he was shown the watches at the PS.
PW26, SI Alok Chaudhary of Calcutta Police, identified
brown colour purse (on which Dutta and Dutta was written), as
the same purse which was recovered from accused Pradeep
Dutta. PW35 SI BS Gulia also identified before the Court the
above said watches, besides, one silver coin, idol of god, one
Rs.100 note, to be the same as were seized from accused
Pradeep Dutta. These articles also find mention in the TIP
proceedings Ex.PW34/B, (w.r.t pulanda containing articles / case
property recovered at the instance of accused Pradeep Dutta)
wherein these are described as a silver coin bearing photo of one
goddess sitting on lion embossed on one side and the words "50th
marriage anniversay - Smt. Usha Dutta & Sh. Sant Kumar Dutta,
2nd August 1950, engraved on the other side, one plastic round
shaped figure of two Gods, one Rs. 100 currency note JBU
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865198, one pair of silver colour jhumka.
13.5 In view of the above evidence on record, it is
established that soon after the commission of the crime, accused
persons on being apprehended, were found in possession of
personal articles belonging to the deceased persons. Accused
Bharat Bhandari, when apprehended, besides other things, was
also found possessing two medals (Ex.P28 & 29) in left side
pocket of his pant which he was wearing, with the name of
deceased Harnam Singh, inscribed on them. These are the
articles which would not have been available in the market. Not
only this, some of the articles recovered from the accused persons
were duly identified by the deceased's sons and daughter in law
i.e., PW1, PW2, PW9 & PW10. No explanation has come forth
from the accused persons as to how they came into possession of
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the said articles. It is also worthwhile to note that the articles
recovered from the accused persons also matched with the list of
missing articles (Ex.PW1/E) provided by PW1 Amrita Seth to the
police soon after crime, viz., medals, deceased's wallets, wrist
watches etc.
14.0 Ld. defence counsel argued that the manner of arrest of
the accused persons and recovery shown to have been made
from them, is doubtful as no public person was joined.
It may be mentioned that both the accused persons
were arrested from out of Delhi. With respect to accused Bharat
Bhandari, PW30 in his cross examination has explained that
people from the dhabha who were present when accused Bharat
Bhandari was apprehended were asked to join the investigation
but they refused and did not give their names. PW33 corroborated
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the version of PW30, in his cross examination. Recovery made at
the instance of accused Bharat Bhandari from the house of his
sister was witnessed by his Jija Sohan Singh, who has stepped
into the witness box as PW7 and has testified that on 25.06.04,
when accused Bharat Bhandari was in custody of the police, he
got recovered from their (PW7's) house, the clothes which he had
put in their Taand in a cardboard carton and the same consisted of
one jeans pant, one Tshirt and that Rs.6,000/ (10 X 500 and 10
X 100) which were found in the pocket of the said jeans pant.
So far as accused Pradeep Dutta is concerned, he was
arrested from West Bengal; PW26 & PW27 of Calcutta Police
proved arrest and recovery of cash, brown purse, tickets, a paper
chit from the accused and also stated that accused was arrested
in his sister's presence and that Bahadur Vaidya, from whose
house the accused was arrested, is witness to the personal search
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of the accused.
In view of the above evidence, I find no force in ld.
defence counsel's argument. Further, it would not be out of place
to mention here that in Abdul Mursalin's case 123 (2005) DLT 73
(DB), Hon'ble Delhi High Court held that "the mere fact of non
joining a public witness, to our mind, will not ipso facto make
the evidence of the police witnesses suspect, unreliable or
untrustworthy...". Thus, in view of settled position of law, mere
nonjoining of public witnesses doesn't discredit the testimony of
above witnesses and recovery made from and at the instance of
accused person. More so, in the specific facts and circumstances
of this case, where the police witnesses have explained that the
public witness though asked to join, but did not join.
14.1 Ld. defence counsel also argued that discrepancies in
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the statements of PW11 Praveen Tokas, PW14 SI Raj Kumar and
PW21 Ct. Anil Kumar, make their testimony doubtful; PW11 stated
that he was called from his STD booth for the purpose of recovery
from Sohan Singh's house. Whereas, PW14 stated that PW11 met
them at a distance of 100 yds. from PW7's house; PW21 stated
that PW11 himself came to the house of Sohan Singh. It was also
argued that PW14 stated that he joined investigation at 8 pm on
25.06.04 but PW11 says that PW14 came to his house at 6:30
pm or 6:45 pm on 25.06.04. Whereas, PW21 Ct. Anil Kumar in
his cross examination stated that he reached PW7's house at
4:15 pm. Needless to mention here that these discrepancies are
not of such a nature so as to discredit the testimony of these
witnesses. Variation of 30 minutes - 1 hour is not such a
discrepancy so as to raise doubt in judicial mind about the very
fact of the witness's visit, more so, in view of the evidence which
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SC No 5709 State Vs Bharat Bhandari & Anr
has come on record. While appreciating evidence, it has to be
kept in mind that discrepancies in details and contradictions in
narrations cannot militate against the veracity of the core of the
testimony, provided it has a ring of truth in the material particulars.
A reference with benefit may be made here to the judgment of
Division Bench of Hon'ble Delhi High Court in case of Gorey
Lal V/s State, Crl. A. 392/2001 dated 29.05.2009.
14.2 Ld. defence counsel also contended that as no
signatures were put on the currency notes allegedly recovered
from PW7's house make PW11's testimony shaky. This
argument lacks any merit. The recovery has been duly proved by
PW7 & PW11. Merely, because the signatures were not put by
these witnesses on currency notes does not in any manner affect
the credibility of these witnesses.
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14.3 The contention of Ld. defence counsel that testimony of
PW33 is false and fabricated is evident from the fact that he stated
that there were two doors in the bus, from which accused Bharat
Bhandari was getting down; because, UP State Roadways Buses
have only one door. This argument also lacks any merit. It is a
matter of common knowledge that earlier some State Roadways
buses used to have one door but that does not necessarily mean
that the bus in which accused Bharat Bhandari was travelling had
only one door. Even otherwise, it is not such a fact which would
discredit the testimony of this witness, in view of other material
which has come on record.
14.4 For the same reason, Ld. defence counsel's contention
that PW35 cannot be believed as he could not tell the names of
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SC No 5709 State Vs Bharat Bhandari & Anr
the officials who were members of the arresting party, which
arrested accused Bharat Bhandari, is also rejected.
15.0 Recovery of personal articles of deceased persons from
/ at the instance of accused persons is gravely incriminating
circumstance. It would be pertinent to mention here that the
Hon'ble Delhi High court in a recent judgment dated
10.02.2009 in Crl. Appeal No.836/2004 titled as Satpal Singh
Bedi V/s. State, where there was no last seen evidence, upheld
the conviction on the basis that deceased's blood stained bag, his
identity card, spectacles and a tiffin box etc was recovered at the
instance of the appellant from his house, which was the only
evidence against the appellant. The appellant could not give any
explanation of the above objects in his house. This was so, when
the public prosecutor was even negligent in not getting identified
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SC No 5709 State Vs Bharat Bhandari & Anr
the said bag, tiffin box and other articles recovered from the house
of the appellant as belonging to the deceased. The Hon'ble High
Court while upholding the conviction observed as under:
"27. ... However, with respect to the recovery of
bag of the deceased, the spectacles of the
deceased, the identity card of the deceased and
other papers of the deceased from the bag which
was recoverd from the house of the appellant and
since the appellant gave no explanation as to how
the same reached his house, the learned Trial
Judge has held that the same was sufficient evidence
to connect the appellant with the offence and hence
the appellant has been convicted for the offence of
murdering Jarnail Singh.
...
29. Pertaining to the appellant, the only evidence was of the recovery of the belongings of the deceased from his house.
30. Where a person is found in possession of the fruits of a crime and unless he explains as Page 97 of 6 SC No 5709 State Vs Bharat Bhandari & Anr to how he came into possession thereof, two inferences can be drawn by the court. Firstly that somebody sold or gave the same to him and secondly he removed them while committing the crime. Both would be and indeed are within the personal knowledge of the possessor. The prosecution has no means to ascertain his knowledge. To break the impasse, based on prudence, the test evolved by the Courts is that if the objects/articles are recovered soon after the crime is committed and the nature of the object/article is not such which is expected to be purchased and sold freely in the market or the value thereof is such that the person from whom it is recovered has no means to purchase the same, an inference can be drawn that he is the author of the crime and that the articles recovered are the fruits of the crime committed by him.
31. In the instant case, as noted above, the public prosecutor was negligent in not getting identified the objects recovered from the house of Page 98 of 6 SC No 5709 State Vs Bharat Bhandari & Anr the appellant as belonging to the deceased; in that, neither the wife nor the brother of the appellant were questioned regarding the identity of the said objects. But, what has proved fatal for the appellant, indeed is highly fatal, that the identity card which has been recovered is proof of the fact that the same belonged to the deceased. An identity card speaks for itself. It contains the photograph of the person whose identity it is supposed to identify. Add thereon the medical prescriptions in the name of the deceased. The same evidence, that they belonged to the deceased. Now, an identity card and medical prescriptions are not bought and sold in the market. Thus, in the absence of the appellant explaining as to how the identity card of the deceased and the medical prescriptions of the deceased reached his house, the irresistible conclusion would be that they fell into the hands of the appellant when he robbed the deceased who had been rendered helpless when fatally stabbed in the chest.
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SC No 5709 State Vs Bharat Bhandari & Anr
32. A feverish attempt was made by urging that the same could be planted.
33. If the police had wanted to plant something on the appellant, the golden opportunity for the police was to remove the watch of the deceased when they recovered the dead body and plant the same upon the appellant. The argument made by learned counsel for the appellant is based on the assumption that the police had recovered the identity card of the deceased and the medical prescriptions of the deceased from the spot or the person of the deceased ; had not entered the same in a recovery memo and thereafter had planted the same on the appellant. Indeed, had the police been thinking of planting something, what better thing other than the watch was with the police for being planted.
34. We note that PW4 has withstood the test of cross examination and has proved the recovery/seizure memo Ex.PW4/C.
35. We find no merit in the appeal."
Page 100 of 6
SC No 5709 State Vs Bharat Bhandari & Anr Similarly, in the instant case, medals, silver coin with specific inscriptions are the articles, which could not be bought and sold in the market.
Chance Prints lifted from the spot matched with the specimen prints of accused persons.
Foot Prints 15.0 PW23 SI Rajender Singh deposed that on 20/6/04 he alongwith his team and dog squad reached the spot 272, Vasant Enclave . He inspected the spot, asked photographer to take photographs and asked Inspt Sumit Kumar to develop chance prints. He (PW23) found one foot print on the spot. With the help of PUP , he prepared a mould of foot print on the spot and gave it to the IO. PW20 Ct. Jai Bhagwan corroborated the version of PW23; he also deposed that one foot print was found at the spot, crime team was called and it prepared mould of foot print and Page 101 of 6 SC No 5709 State Vs Bharat Bhandari & Anr mould was seized vide memo Ex.PW4/F. PW23 has further deposed that on 26/6/04, when accused Bharat Bhandari was in police custody, he was called at PS to prepare a mould of his (accused Bharat's) foot and he prepared the mould Ex.PW23/X of accused's foot and gave it to IO who seized the same vide memo Ex.PW23/B. Seizure memo of accused Bharat Bhandari's specimen foot mould (Ex.PW23/B) is witnessed by PW23 SI Rajender Singh and PW35 BS Gulia.
PW35 SI BS Gulia has further corroborated the same. He has deposed that on 26/6/04, specimen foot mould of accused Bharat Bhandari and that of accused Pradeep Dutta were taken and seized vide memos Ex.PW23/X (PW23/X is actually the foot mould and its seizure memo is Ex.PW23/B), and Ex.PW34/G. Seizure memo PW34/G is witnessed by SI Rajender Singh and SI BS Gulia.
Page 102 of 6
SC No 5709 State Vs Bharat Bhandari & Anr 15.1 PW38 has deposed that he sent the exhibits to FSL for examination and reports Ex.PW38/B, PW38/C, PW38/D and PW38/E were collected. Letter dated 20/7/04, vide which exhibits were sent to FSL although not exhibited, but is referred to, as same has not been disputed. It mentions : ".....
Description of How when & Source of
the exhibits by whom found the Exhibits
1. One Pulanda of cardboard IO recovered from Place of
box containing foot mould the place of occurrence.
taken from place of occurrence.
occurrence, sealed with the
seal of NS.
2. One pulanda of cardboard IO has got done Accused Bharat
box containing foot mould during custody of Bhandari
specimen of accused Bharat accused.
Bhandari sealed with the seal
of BS.
3. One pulanda of cardboard do Accused Pradeep
box containing foot mould Dutta @ Bappi
specimen of accused Pradeep Dutta.
Dutta @ Bappi Dutta.
...."
Page 103 of 6
SC No 5709 State Vs Bharat Bhandari & Anr 15.2 Report of Senior Scientific Asstt. (Physics), FSL - Ex.PW38/B reads DESCRIPTION OF ARTICLES CONTAINED IN THE PARCELS Parcel No.1 : One sealed cardboard box sealed with the seal of "NS"
containing Exhibit 1.
Exhibit - 1 : One cast of right foot impression described as "foot mould taken from place of occurrence."
Parcel No. 2 : One sealed cardboard box sealed with the seal of "BS"
containing Exhibit - 2.
Exhibit - 2 : One cast of right foot impression described as "Foot mould specimen of accused Bharat Bhandari".
Parcel No. 3 : One sealed cardboard box sealed with the seal of "BS"
containing Exhibit3.
Exhibit - 3 : One cast of right foot impression described as "Foot mould specimen of accused Pradeep Datta @ Bappi Datta.
RESULT OF EXAMINATION Examined the Exhibit1, Exhibit2, and Exhibit3 physically and under magnification and the following observations were made:
1. Exhibit - 2 was found to be different when compared with Exhibit1.
2. Exhibit 3 was found to be similar when compared with Exhibit1.
Note : Exhibits sent to this division for examination have been sealed with the seal of "PSFSLDELHI".
Page 104 of 6
SC No 5709 State Vs Bharat Bhandari & Anr 15.2.1 Thus, specimen foot print of accused Pradeep Dutta (which is Exhibit 3) was found similar to foot mould taken from the place of occurrence (Exhibit 1). PW38 was not cross examined in this regard. Thus, these facts / report remained undisputed.
Finger Prints 15.3 PW23 SI Rajender Singh's deposition that on 20/6/04 on reaching the spot Inspt Sumit Kumar was asked to develop chance prints, is corroborated by PW22 ASI Sumit. PW22 deposed that on 20/6/04, he alongwith Ct. Praveer, Incharge Crime Team SI Rajender Singh and Dog squad went to 272, Vasant Enclave where Addl. SHO Inspt Narain Singh was already there alongwith his staff. He (PW22) developed following chance Page 105 of 6 SC No 5709 State Vs Bharat Bhandari & Anr prints from the scene of crime:
(i) 6 chance prints from the blood stained tusk (Ex.P24) were given nos. Q1 to Q4, Q8 and Q15;
(ii) four chance prints on outer side of main door of room where dead bodies were lying, which were given nos. Q5, to Q7 and Q12;
(iii) two chance prints no. Q9 and Q10 on inner side of main door of room and;
(iv) two chance prints no. Q11 and Q13 on the shampoo bottle found at the spot;
(v) chance prints on the netted door of balcony upstairs and on cello tape and marked the same as Q14 and Q16, respectively.
15.3.1 PW22 further deposed that his report regarding developing of chance prints is upon Ex.PW22/A. He also testified Page 106 of 6 SC No 5709 State Vs Bharat Bhandari & Anr that IO had sent chance prints to lab for lab photography. Photographs of:
(a) Q.9 and Q10, (inner side of main door) are ExPW12/G.
(b) Q4 (from blood stained tusk) is Ex.PW12/E.
(c) Q10 (developed from inner side of main door) is Ex.PW12/G and its enlarged photograph is Ex.PW12/H. 15.4 PW19 SI Sharad Kumar deposed that on 28/6/04, both the accused persons were in custody and on the directions of SHO, he took both the accused persons to Distt. Dossier Cell Dhaula Kuan where in his presence the expert Head Proficient took specimen signature (finger prints) of accused Bharat Bhandari on sheet Ex.PW12/D and of accused Pradeep Dutta on sheet Ex.PW14/F. On 29/6/04, he took both the slips Ex.PW12/D and Ex.PW14/F to Finger Print Bureau, FSL Malviya Nagar and Page 107 of 6 SC No 5709 State Vs Bharat Bhandari & Anr deposited them there. He further deposed that as long as same remained with him, it was not tampered with.
15.5 PW12 Chetram, Finger Print Expert, who examined / compared the specimen prints with chance prints deposed that on 22/6/04, case file containing specimen finger prints of suspects Chanda w/o Bablu Mandal, Samool Mandal, Babloo Mandal, Miss Renu, Smt Rani, Dukhi Ram, Suresh Kuar, Sanku Saddar, Juvel Sheikh, Rintu Sheikh and Savitri were sent to him alongwith scene of crime from Distt. Crime Team for comparison with the finger prints / chance prints lifted from the spot of crime. On 29/6/04, he received specimen finger prints of two accused Bharat Bhandari and Pradeep Dutta. He also received photographs and negative of chance prints lifted from the scene of crime. PW12 further deposed that he examined the chance prints lifted from the scene Page 108 of 6 SC No 5709 State Vs Bharat Bhandari & Anr of crime and compared with the finger prints of different persons sent to him. Chance Print / Question print - Q14 finger prints mark is Ex.PW12/E (its enlarged version is Ex.PW12/B). On comparison he prepared a report Ex.PW12/A. As per scientific examination done by PW12 Chetram:
(i) chance print Mark Q14 (Ex.PW12/B) (lifted from netted door of balcony upstairs) is identical with specimen right little finger mark S1 (Ex.PW12/C) on specimen finger slip of Bharat Bhandari. PW12 proved the result of comparison as Ex.PW12/L.
(ii) chance prints mark Q9 and Q10 (lifted from inner side of the door to the room where dead bodies were lying, which are Ex.PW12/G and the enlargement of Q10 is Ex.PW12/H) were found identical with specimen right middle and right ring finger marked S2 and S3 respectively, (enlargement of S3 is Page 109 of 6 SC No 5709 State Vs Bharat Bhandari & Anr Ex.PW12/J), of specimen finger prints of accused Pradeep Dutta Ex.PW14/F. He proved his result in this regard as Ex.PW12/K. 15.5.1 PW12 in his cross examination explained that he made comparison on the basis of 8 points which is minimum requirement for comparison of finger prints. He also stated that he did not find any points of difference between specimen and chance prints. He also denied the suggestion that the chance prints lifted from the spot did not match with the specimen finger of accused Pradeep Dutta and Bharat Bhandari and that he gave fabricated report at the instance of IO or that his report is not based on scientific examination and is based on hunches.
15.6 From the above evidence, it is established that chance Page 110 of 6 SC No 5709 State Vs Bharat Bhandari & Anr prints Q9 and Q10 lifted from the inner side of the door of room where dead bodies were lying, matched with specimen finger prints - S2 & S3 of accused Pradeep Dutta. Chance prints Q14 lifted from netted door of balcony outside the room upstairs from where the accused persons allegedly made entry, were found to be identical with specimen finger impression of accused Bharat Bhandari.
Blood on accused persons' clothes matched with that of blood group of deceased:
16.0 Following articles / exhibits inter alia, were sent to FSL for examination vide letter dtd 20/7/04:
"Description of How when & Source of
the exhibits by whom found the exhibits
1. One pullinda containing IO recovered from Deceased
tusk sealed with the seal the place of House (Place of
of Finger Print Bureau occurrence Occurrence)
2. ...
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SC No 5709 State Vs Bharat Bhandari & Anr
3. One pullinda containing IO recovered from Accused Bharat clothes of accused Bharat the house of the Bhandari Bhandari sealed with the sister of accused in seal of (BS) his presence
4. One pullinda containing IO recovered from Accused clothes of accused Pradeep the house of accused Pradeep Dutta Dutta @ Bappi Dutta sealed on his instance @ Bappi Dutta". with the seal of (BS) 16.1 PW38/C, PW38/D and PW38/E, are the reports received from FSL, which are undisputed. PW38/C details the parcels received at FSL for examination, which inter alia, reads as under :
"...
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL ...
Parcel '3' : One sealed cloth parcel sealed with the seal of 'B.S.' containing exhibits '3a', '3b'. Exhibit '3a' : One Tshirt.
Exhibit '3b': One jeans pants having darker stains. Parcel '4' : One sealed cloth parcel sealed with the seal of 'B.S.' containing exhibits '4a', '4b' & '4c'. Exhibit '4a': One pants having darker stains. Exhibit '4b' : One Tshirt.
Page 112 of 6
SC No 5709 State Vs Bharat Bhandari & Anr Exhibit '4c' : One banian having dirty stains. ..."
16.2 On the above, report of Analysis of Biology Division of FSL was received, which is Ex.PW38/D and reads as under :
" FORENSIC SCIENCE LABORATORY
...
BIOLOGY DIVISION
Report No.FSL 2004/B1542 Bio No.445/2004 Dated 20/10/04
...
Portion of exhibits as detailed in the main Biology Report have been examined using various serological techniques. The results obtained have been analysed as given below :
Exhibits Species of Origin ABO Group / Remarks ...
'2a' Pillow with cover Human 'AB' Group '2b' Pillow with cover Human 'A' Group ...
'3b' Jeans pants Human 'A' Group
'4a' Pants Human 'AB' Group
'4c' Banian Human No Reaction
Page 113 of 6
SC No 5709 State Vs Bharat Bhandari & Anr Exhibits Species of Origin ABO Group / Remarks ...
'10a' Banian Human 'AB' Group
'10b' Pyjama Human 'AB' Group
'11a' Petticoat Human 'A' Group
'11b' Tshirt Human 'A' Group
...
16.3 Result of Analysis is at Ex.PW38/E, which reads as
under :
"...
RESULT OF ANALYSIS
1. Blood was detected on exhibits '1a', '1b', '2a', '2b', '2c', '2d', '2f', '2g', '3b', '4a', '4c', '5a', '5b', '6', '8', '9', '10a', '10b', '11a', '11b', '12', '14', '15a', '15b', '16a', '16c', '17' & 18.
2. Blood could not be detected on exhibits '2e', '3a', '4b', '7', '13' & '16b'.
3. ..."
16.4 As is evident from forwarding letter on record dated 20.07.04 (vide which various articles / exhibits were sent to FSL) Page 114 of 6 SC No 5709 State Vs Bharat Bhandari & Anr Parcel No.3 contained clothes of accused Bharat Bhandari, recovered at his instance from his sister's house. Parcel No.4 contained clothes of accused Pradeep Dutta @ Bappi Datta, which were recovered from his house at his instance. As per FSL report, Ex.PW38/D human blood of Group 'A' was detected on accused Bharat Bhandari's jeans pant. On accused Pradeep Dutta's pants, human blood of Group 'AB' was detected. From this report, it is also evident that blood group of deceased Harnam Singh Seth was "AB" and that of Mrs. Roop Seth was "Group A".
No doubt that prosecution has not placed on record blood group of accused persons. But, at the same time it is observed that the accused persons have stated in their disclosure statements that their clothes got blood stained at the time of crime and that they had hidden the said clothes; accused got recovered the same from the respective places. Thus, recovery of blood stained Page 115 of 6 SC No 5709 State Vs Bharat Bhandari & Anr clothes persuant to their disclosures is admissible in evidence. Even otherwise, the accused persons failed to explain the presence of blood on their clothes. Further, it is not the accused's case that they had suffered some injury. Thus, the presence of the blood of the same groups as that of deceased persons, on the clothes of the accused persons, is another incriminating circumstance which goes against them.
Cause of Death - Injury by blunt force by blunt object: 17.0 As per the postmortem report Ex.PW37/A of deceased Harnam Seth conducted from 2:35pm to 3:40pm on 20/6/04, following ante mortem injuries were found on his body:
(i) Contusion left eye.
(ii)Contused, lacerated wounds middle of right ear (pilna), size 3.1cm x 1cm x cartilage fracture.
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SC No 5709 State Vs Bharat Bhandari & Anr
(iii) Contused lacerated wounds on right fronto parietal region, size 6.5cm x 2.5cm bone deep.
(iv) Contusion (bluish in colour) on dorsum of right hand , size 4cm x 2.5 cm
(v) Contused, lacerated wound right temporal region 5cm x 1cm x bone deep.
(vi) Contusion right shoulder region (bluish in colour) size 4cm x 3.6cm.
Internal examination:
(i) There was extravasation of blood under scalp in right temporal region 4cm x 5.1cm, right parieto temporal regard. 6Cm x 5.4cm. There was depressed fracture of right temporal bone.
Contusion superior surface of right temporal lobe 4.1cm x 3.8 cm. Contusion on base of left frontal lobe 3.1cm x 2.1cm. Brain was congested oedematus with peteachael haemorrhage. Page 117 of 6
SC No 5709 State Vs Bharat Bhandari & Anr
(ii) Both lungs were congested and oedematus.
(iii) Stomach contained semi liquid digested food contents with healthy mucosa.
(iv) Heart was showing the features of by pass heart surgery.
(v) Liver, spleen and kidneys were congested.
As per the postmortem report approximate time since death is 12 hours and cause of death as shock and head injury which were ante mortem in nature, caused by application of blunt force from blunt object and collectively and injury No. 3 individually sufficient to cause death in ordinary course of nature.
17.1 On the same day PW37 also conducted the postmortem on the body of deceased Roop Seth from 3:50pm to 5:05pm on 20/6/04 and as per postmortem report Ex.PW37/B the following Page 118 of 6 SC No 5709 State Vs Bharat Bhandari & Anr ante mortem external injuries were found on the person of the deceased:
(i) contusion in the middle and anterior aspect of left forearm in an area of 14cm x 8.3cm underneath shaft of left radius and ulna fractured bluish in colour.
(ii) Contusion (bluish red in colour) left shoulder superior aspect, left shoulder size 11cm x 5cm.
(iii) Contusion left eye.
(iv) Contused lacerated wound on left eye brow extended lower part of forehead left side size 6.3cm x 3cm x bone deep.
(v) Contused lacerated wound middle of left ear (left pinna) size 3cm x 1cm x fracture of cartilage.
(vi) Contused lacerated wound outer aspect of left eye towards medial size 2cm x 1cm.
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SC No 5709 State Vs Bharat Bhandari & Anr
(vii) Contused lacerated wound on left temporal region size 4.3cm x 2.8cm x bone deep.
(viii) Linear abrasions on the anterior and middle part of left thigh size 7.3cm x 0.5cm.
Internal examination:
(i) there was extravasation of blood under scalp left fronto temporal region 10cm x 8.5cm. Depressed fracture of left temporal bone. Contusion and laceration of under surface of right frontal lobe. Contusion - superior surface of left temporal lobe. Brain was congested, oedematus with petechael haemorrhages with intra medullary haemorrhage.
(ii) Both lungs were congested and oedematus.
(iii) Stomach was empty.
(iv) Liver, kidneys and spleen were congested.
The approximate time since death is given as 12 Page 120 of 6 SC No 5709 State Vs Bharat Bhandari & Anr hours and cause of death is mentioned as shock and head injury which were ante mortem in nature, caused by application of blunt force from blunt object and collectively and injury No.7 individually sufficient to cause death in ordinary course of nature.
17.2 From postmortem reports of deceased persons, it is evident that the accused persons died at about approx. between 2:30 am - 5am on the night intervening 19/6/04 - 20/6/04. It has come in the testimony of PW8 Michael Wilson that the accused persons had visited him at night on 19/6/04, had smoked smack etc and had then left. It is also testified by PW7, accused Bharat Bhandari's own brother in law that the accused Bharat Bhandari had come to his house alongwith his friend Bengali/ accused Pradeep Dutta in the morning of 20/6/04 and after having meals Page 121 of 6 SC No 5709 State Vs Bharat Bhandari & Anr told him that they were leaving for Howrah. The accused persons have not explained where they were in the night intervening 19/6/04 - 20/6/04. Thus, the accused persons were away from home around the time, the incident took place. Further, accused persons made disclosure that they had hit the Seth couple with elephant tusks (blunt objects) lying in their house. Even the cause of death as per postmortem reports Ex.PW37/A and PW37/B, is found to be the head injury caused by application of blunt force from blunt object, and the said injuries were sufficient to cause death in the ordinary course of nature.
Conduct of the accused persons - absconding soon after the crime:
18.0 It has been established that both the accused persons were in Delhi on 19/6/04 and left Delhi on 20/6/04, i.e., soon after Page 122 of 6 SC No 5709 State Vs Bharat Bhandari & Anr the commission of crime. Accused Bharat Bhandari rather, changed his plan and instead of going to Howrah, as earlier told to his sister, was on his way to Nepal. In terms of Section 8 Indian Evidence Act, the abscondence of the accused persons from Delhi soon after the incident, is relevant. The fact of abscondence lends weight to other evidence. This conduct coupled with other evidence which has come on record, points towards their guilt. The Hon'ble Orissa High Court in Panchu @ Panchanan Mohapatra Vs State of Orissa, 2003(1) Crimes 252, observed that:
"7. ...... Abscondence itself would not be, however, a ground to raise a presumption of his implication in the crime without any further materials. ...... The very absconding may lend some weight to the other evidence establishing the guilt of the accused. ...... the conduct of one making himself scarce Page 123 of 6 SC No 5709 State Vs Bharat Bhandari & Anr for some days is relevant under Section 8 of the Evidence Act and might be indicative to some extent of a guilty mind, but it is not the only conclusion which must lead the Court to hold a person guilty."
19.0 Let me now examine the incriminating facts which have been proved against the accused persons: ● Accused Bharat Bhandari was familiar with Seth household and knew that the old couple was living alone; ● On the date of incident 19/6/04 - 20/6/04, both the accused persons were in Delhi;
● On news of murder of Seth couple being spread, accused persons suddenly left Delhi on 20/6/04, within 5 - 7 minutes of accused Bharat Bhandari's sister asking him, if he was involved in the offence;
Page 124 of 6
SC No 5709 State Vs Bharat Bhandari & Anr ● Accused Bharat Bhandari nabbed from on his way from Gorakhpur to Nepal. Accused Pradeep Dutta nabbed from Kolkatta. The fact that accused Pradeep Dutta left for Howrah is corroborated by two tickets one from Delhi to Howrah (20/6/04); another from Sealdah to Taldi (22/6/04); ● When apprehended, accused Bharat Bhandari was found in possession of personal articles of deceased persons and cash; he also got recovered his clothes worn at the time of incident and further cash from his jija's house at Delhi. Accused Pradeep Dutta when nabbed was having deceased's purse and cash. Pursuant to disclosure, further recovery of his clothes which were worn at the time of incident and watches, a pair of jhumki, silver coin etc belonging to the deceased, was made from his Delhi house;
● Chappals borrowed by accused persons from Michael Wilson (PW8) recovered from the spot;
● Accused deliberately left borrowed chappals at the spot to Page 125 of 6 SC No 5709 State Vs Bharat Bhandari & Anr deflect suspicion to Michael Wilson;
● Chance Prints / Finger Prints / Foot Prints lifted from the spot matched with specimen prints of accused persons; ● Blood on accused persons' clothes matched with blood group of deceased persons;
● Accused persons disclosed that they hit the Seth couple with elephant tusks lying in their house; cause of death in post mortem report has been proved to be head injury caused by application of blunt force from blunt object, and said injuries were sufficient to cause death in the ordinary course of nature. 20.0 The above circumstances collectively form a complete chain leading to a conclusion that in all human probability, the deceased persons were robbed and murdered by the accused persons only. These circumstances are absolutely incompatible Page 126 of 6 SC No 5709 State Vs Bharat Bhandari & Anr with the innocence of accused persons and unerringly point towards the guilt of accused persons.
21.0 In view of the above findings, it is proved beyond reasonable doubt that the accused persons namely Bharat Bhandari and Pradeep Dutta robbed and killed the deceased persons in furtherance of their common intention. Hence, they are guilty of the offences punishable u/Ss 302/392/34 IPC. 22.0 Accused persons have also been charged u/S 411 r/w section 34 IPC. It may be mentioned that when the chief offence charged and proved by the evidence are murder and theft / robbery, the factum of recovery of stolen property from the offender has to be considered as a part of evidence by which the chief offence is proved. Therefore, a person cannot be charged / Page 127 of 6 SC No 5709 State Vs Bharat Bhandari & Anr convicted under section 411 IPC in respect of the property for which he is convicted of the principle offence i.e., robbery. In view of the same, as the accused persons are found guilty of main offences punishable u/Ss 302/392 IPC for committing murder and robbing the deceased persons of their valuables etc., they cannot at the same time be convicted u/S 411 IPC with respect to the said articles.
23.0 Accused Bharat Bhandari and Pradeep Dutta are therefore, convicted for the offences punishable u/Ss 302/392/34 IPC in case FIR No. 226/04, PS Vasant Vihar.
However, both the accused persons are acquitted of the offence punishable u/S 411 IPC.
Announced in Open Court (Poonam A. Bamba) Dated: 28/01/2010 ASJ02/South/N.Delhi. Page 128 of 6
SC No 5709 State Vs Bharat Bhandari & Anr IN THE COURT OF MS. POONAM A. BAMBA ADDITIONAL SESSIONS JUDGE - 02 (SOUTH) PATIALA HOUSE COURTS : NEW DELHI SC No. 57/09 State Vs. 1. Bharat Bhandari, S/o Top Bahadur R/o Ward No. 6, Butwel Rupendehi distt., Anchal Lumbaini, Nepal.
Present Address:
H. No. 60, C/o Pt. Chander Pal, Basant Gaon, New Delhi.
2.Pradeep Dutta @ Bappi Dutta @ Bangali S/o Dilip Dutta, R/o 28/1, Pramod Dass Gupta Colony, Murari Pukar Road, Kolkatta, W.B. FIR No. : 226/04 PS : Vasant Vihar u/S : 302/392/34 IPC Page 129 of 6 SC No 5709 State Vs Bharat Bhandari & Anr Date of Judgment: 28.01.2010 Date of order on sentence : 02.02.2010 ORDER ON SENTENCE Present: Sh.Manoj Chaudhary, Addl. PP for State.
Both the convicts produced from JC alongwith Sh. Rahul Thukral, Advocate 1.0 I have heard both the sides on the point of sentence. 2.0 The defence counsel has submitted that it is not the case which falls in the category of "rarest of rare cases". Therefore, the maximum sentence which can be awarded is life. Ld. defence counsel further submitted that so far as conviction of the accused persons u/S 392/34 IPC is concerned, Section 392 Page 130 of 6 SC No 5709 State Vs Bharat Bhandari & Anr IPC prescribes the maximum punishment of 10 years imprisonment and fine. The accused persons have already undergone imprisonment for more than 5½ years with a good conduct ; Thus, qua this offence they be sentenced for the period already undergone.
3.0 Ld. Addl. PP for State on the other hand has argued that taking into account the facts and circumstances of the case, the accused deserve maximum punishment prescribed under law.
Ld. Addl. PP has also submitted that accused Bharat Bhandari even has a criminal record. He has been previously convicted in FIR No. 248/98, PS Vasant Vihar u/Ss 454/380 IPC vide judgment / order dated 24/8/94.
4.0 I have duly considered the submissions made by both Page 131 of 6 SC No 5709 State Vs Bharat Bhandari & Anr the sides. A test to determine "rarest of rare cases" in which the death sentence can be inflicted is:
a) Is there something uncommon about the crime which renders the sentence of imprisonment of life inadequate and calls for death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence after according maximum weightage to the mitigating circumstances, which speak in favour of the offender?
4.1 I have duly considered the submissions made by both the sides as well as the facts and circumstances of the case. Answer to both the above questions would be in negative, in the instant case. I do not find the circumstances of the present case of such a nature that there is no alternative but to impose death Page 132 of 6 SC No 5709 State Vs Bharat Bhandari & Anr sentence on accused persons. Thus, I am of the considered opinion that for offence u/S.302/34 IPC, the imprisonment for life would meet the ends of justice.
4.2 In view of the above, I sentence both the convicts to rigorous imprisonment for life and to pay a fine in the sum of Rs.10,000/ each for the offence punishable u/Ss. 302/34 IPC. In default of payment of fine, both the convicts shall further undergo RI for 6 months.
4.3 Considering the facts and circumstances of the case and also taking into account the previous conviction of accused Bharat Bhandari, I further sentence both the convicts to RI for ten years and to pay a fine in the sum of Rs.5,000/ each u/Ss 392/34 IPC, and in default of payment of fine both the convicts Page 133 of 6 SC No 5709 State Vs Bharat Bhandari & Anr shall undergo SI for 6 months.
Both the sentences shall run concurrently. Convicts shall be entitled to benefit of Section 428 Cr.P.C. with respect to conviction u/Ss.392/34 IPC.
5.0 Copy of this order be supplied free of cost to both the convicts. The sentence warrants be prepared. 6.0 File be consigned to RR.
Announced in Open Court (Poonam A. Bamba) Dated: 02.02.2010 ASJ02/South Distt.
Patiala House Courts, New Delhi.
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