Delhi District Court
State vs . Ravi Kapoor, Amit Shukla And Baljeet on 22 August, 2016
IN THE COURT OF SHRI SANDEEP YADAV, ADDITIONAL
SESSIONS JUDGE3, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
SC No. 30/14
ID No. 02403R0227502009
FIR No. 69/09
U/s. Vasant Vihar
PS. 302/201/365/394/468/471/482/120B/34 IPC
& 25/54/59 Arms Act.
State
Vs.
1. Ravi Kapoor
S/o. Sh. Pritam Singh
R/o. F1/7677, Madangir
Ambedkar Nagar
New Delhi.
2. Amit Shukla
S/o. Sh. Rama Kant Shukla
R/o. F155, 3rd Floor, Lado Sarai
New Delhi
3. Baljeet @ Poppy
S/o. Sh. Dharambir Malik
R/o. H.No.161, near Post Office Village Massodpur
New Delhi
.... Accused
FIR No. 69/09 Page No.1/116
State Vs. Ravi Kapoor, Amit Shukla and Baljeet
Date of Institution : 20.06.2009
Final arguments heard on : 05.07.2016
Judgment pronounced on : 14.07.2016
Final Order : Convicted
JUDGMENT
Criminal law was set in motion in this case when complaint Ex.PW1/A was given by Mr. J.N. Ghosh to the Police Station Vasant Vihar. The gist of the complaint Ex.PW1/A may be briefly noted down as under:
1. Jigisha Ghosh, daughter of Mr. J.N.Ghosh was working in HEWITT Associate Private Limited as Operation Manager for the last 5 years. The office cab used to pick up and drop Jigisa Ghosh. Jigisha Ghosh, left her house in office cab on 17.03.2009 at about 12 noon and was supposed to return back to house at 4 am on 18.03.2009. However, Jigisha Ghosh did not return home from her office. Mr. J.N.Ghosh (PW1) thought that Jigisha Ghosh has overstayed in her office as she used to do previously. However, when the office cab came to FIR No. 69/09 Page No.2/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet the house of Mr.J.N.Ghosh at about 3 pm on 18.03.2009 to pick up Jigisha Ghosh, PW1 came to know that Jigisha Ghosh has not stayed in the office and the office cab had dropped her for going to house. Mr. J.N. Ghosh conducted inquiry from the office of his daughter but no information was forth coming. Thereafter, Mr. Jerry Joseph (PW5), Senior of Jigisha Ghosh, came to the house of complainant but he also could not give any clue about Jigisha Ghosh. Mr. J.N.Ghosh tried to contact Jigisha Ghosh on phone. However, her mobile phone was switched off. On 19.03.2009, PW1 Mr.J.N. Ghosh made inquiry from HDFC Bank and was informed that from the ATM account of Jigisha Ghosh, a sum of Rs.25,000/ was withdrawn on 18.03.2009 and articles worth Rs.70,000/ were purchased from different places through the debit card of Jigisha Ghosh. The deceased was wearing gold ring in the finger of right hand and was also wearing ring on the finger of left hand. Deceased was wearing a white colour pearl necklace in her neck and was also having a pink colour purse containing some money, ATM Card, PAN Card, book of worship, Ipad and two mobile phone.
2. Mr. J.N. Ghosh expressed suspicion in his complaint that his daughter has been kidnapped by some unknown person. On FIR No. 69/09 Page No.3/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet the complaint Ex.PW1/A, FIR u/s. 365 IPC was registered and the investigation was taken over by SubInspector Neeraj. On the basis of the information provided by HDFC Bank, Sub Inspector Neeraj reached Prem Watch company on 20.03.2009 where Store Manager Krishan Gopal told SubInspector Neeraj that three boys have purchased the wrist watch make Timex for Rs.9,495/ and has made the payment from the debit card of Jigisha Ghosh and one of those boys who was putting on white cap and dark goggles, signed the merchant slip. The Store Manager Krishan Gopal also told SubInspector Neeraj that CCTV recording of all the three persons is with him. Mahesh and Sunita, employees of Krishan Gopal supported the version of Krishan Gopal. SubInspector Neeraj obtained two compact disc's of the CCTV footage, merchant copy and invoice from Krishan Gopal. Thereafter, Sub Inspector Neeraj went to Reebok Store, 62, Sarojini Nagar Market, Delhi and Store Manager Nitin Soni told him that three boys of age group of 2025 years purchased two pair of shoes, one pair of socks and one cap and the payment of Rs.16,500/ was made through debit card of Jigisha Ghosh and one of those boys has signed the merchant copy. Nitin Soni handed over the merchant copy and invoice copy to SubInspector Neeraj. Investigation was FIR No. 69/09 Page No.4/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet also conducted at Aashi Opticals, Sarojini Nagar Market, Delhi and owner of the shop Rajesh Taneja told SubInspector Neeraj that three boys in the age group of 2025 years purchased three goggles from his shop for Rs.450/ and made the payment through debit card of Jigisha Ghosh and one of those boys signed the merchant slip. Rajesh Taneja (PW22) handed over merchant copy and invoice to SubInspector Neeraj. SubInspector Neeraj alongwith staff also visited Amit Traders, Sarojini Nagar Market, Delhi and came to know that three boys had purchased LCD TV from Amit Traders by using the debit card of Jigisha Ghosh and one of those boys signed the merchant copy. Thereafter, SubInspector Neeraj got the information that dead body of a girl resembling with Jigisha Ghosh has been found within the jurisdiction of Police Station Suraj Kund, Faridabad and to verify this information Sub Inspector Upender and SubInspector Mahesh were sent to Police Station Suraj Kund, who confirmed that the dead body is of Jigisha Ghosh. After recovery of dead body, Sub Inspector Neeraj, Inspector Atul alongwith other staff and Mr.J.N.Ghosh, father of the deceased reached Police Station Suraj Kund, where photograph of the dead body was shown to Mr. J.N. Ghosh and he identified the dead body as that of his FIR No. 69/09 Page No.5/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet daughter. Mr. J.N. Ghosh also identified the dead body of deceased in the mortuary of Badshah Khan Hospital. Concerned doctor sent the dead body to Rohtak Medical College for post mortem. Section 302/201 IPC were added in the case and the investigation was assigned to Inspector Atul Kumar (PW48). Postmortem on the body of deceased was conducted at Medical College, Rohtak and the dead body was handed over to Mr. J.N.Ghosh, father of the deceased.
3. On 23.03.2009, Inspector Palwinder Singh Chahal, the then SHO Police Station Vasant Vihar got a secret information that three persons wanted in this case will pass through Nelson Mandela Road in a Santro Car bearing no.HR 18 C 3409 and will go towards Vasant Kunj to commit some crime. The secret information was shared with Investigation Officer Inspector Atul Kumar, SubInspector Neeraj and SubInspector Upender and a raiding party was constituted. Barricades were put on the road leading to Munirka towards Vasant Kunj and the police officials constituting the raiding party, took position near the barricades. At about 4 pm and one Santro car bearing no.HR18C 3409 was seen coming from the side of Munirka and approached the barricades. Secret informer pointed out towards Santro car by saying that information was regarding FIR No. 69/09 Page No.6/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet the said car. The vehicle was stopped and surrounded by the staff in circle. Accused Ravi Kapoor was seen sitting on the driving seat and was overpowered by SubInspector Neeraj and Ct. Dara and accused Amit Shukla was sitting on the left side of the driver seat while accused Baljeet Malik was found sitting on the rear seat of the vehicle. All the three accused persons were identified by the secret informer. Cursory search of all the accused were conducted and from the left side dub of accused Ravi Kapoor, one country made fire arm was recovered and it was checked and found containing a cartridge in the barrel. Other articles were also recovered from accused Ravi Kapoor and they were seized. All the accused persons were apprehended and they disclosed about their involvement in the commission of crime in this case. All the three persons were formally arrested. During the personal search of accused Ravi Kapoor, one black colour mobile phone with two sim, one kara of gold colour (wrist bracelet), two rings, one wrist watch make Titan and one black colour leather purse containing Rs.1,233/ and some other papers were found. From the personal search of accused Amit Shukla, one mobile phone and two rings and Rs.510/ were recovered. After the arrest of the three accused persons, they were kept in muffled face.
FIR No. 69/09 Page No.7/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet Accused Baljeet Malik was wearing a pair of Reebok shoes and was holding a spectacle with cover. Accused Baljeet Malik produced the spectacle with cover by saying that these articles were purchased by him on 18.03.2009 by using the debit card of Jigisha Ghosh. The Santro car bearing no.HR18C 3409 was also seized and the accused Ravi Kapoor disclosed that it is the same vehicle which was used by accused for robbery, abduction and murder of Jigisha Ghosh. Accused Ravi Kapoor produced one RC from the dash board of the said vehicle and the RC was issued in the name of Amit Kumar. This RC was having endorsement from the Transport Authority Lohari and the date of registration was mentioned as 03.07.2006 which was valid upto 03.07.2021. Accused Ravi Kapoor disclosed that after abduction, victim was threatened by showing the fire arm and in the scuffle few hair of deceased fell in the car. On minute inspection of the car some hair of the deceased were found in the car. The site plan of the place where the accused were apprehended was prepared. Accused Ravi Kapoor in pursuance of his disclosure statement took the police party to his house no. F1/7677, Madangir, New Delhi and produced one cap which was lying on the bed saying that it was the same cap which was purchased by him by using the debit card of FIR No. 69/09 Page No.8/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Jigisha Ghosh. Accused Ravi Kapoor also picked up maroon colour case of sun glasses and produced the same by saying that this was purchased on 18.03.2009 from Aashi Opticals, Sarojini Nagar Market by using the debit card of Jigisha Ghosh. Accused Ravi Kapoor also produced a pair of sports shoes and a pair of socks disclosing that these shoes and socks were purchased by using the debit card of Jigisha Ghosh. Accused Ravi Kapoor also took out a small box of green colour and it was found containing a wrist watch and accused Ravi Kapoor disclosed that it was purchased by him by using the debit card of Jigisha Ghosh. Accused Ravi Kapoor also produced one gold ring of the deceased. Accused Ravi Kapoor also produced purse containing cash memo's/invoice's which were issued by the various shops from where the purchases were made by the accused using the debit card of the deceased. Accused Amit Shukla got recovered one LCD TV from his tenanted accommodation saying that it was purchased by using the debit card of Jigisha Ghosh. Accused Amit Shukla also produced a pair of Reebok shoes saying that it was also purchased by using the debit card of Jigisha Ghosh. Accused Amit Shukla also produced one ring having white stone which is the ring of the deceased which came to him as his share.
FIR No. 69/09 Page No.9/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet Other articles purchased by using the debit card of the deceased were produced by accused Amit Shukla. Thereafter, all the accused were produced before the Court with muffled faces for their Test Identification Parade where the accused persons were supposed to be identified by owners/staff of the various shops from where accused persons made purchases through debit card of the deceased and Bhiva Ram. However, accused persons refused to participate in the Test Identification Parade. Santro car bearing number HR18C 3409 was taken to Forensic Science Laboratory, Rohini and was examined by the expert. Specimen handwriting of accused Ravi Kapoor and Amit Shukla were obtained. Accused Ravi Kapoor got recovered clothes from his house which he was wearing at the time of making purchases through the debit card of the deceased and at the time of withdrawal of money from the ATM Card. Inspector Atul Kumar obtained the hard disc from Krishan Gopal, Manager of Prem Watch Company which was containing the CCTV footage. Inspector Atul Kumar also obtained the CCTV footage from the ATM, State Bank of Patiala, Mahipal Pur. Statement of one Bhiva Ram (PW2) was also recorded, who stated that he has seen the deceased with the accused persons in the early hours of 18.03.2009 near FIR No. 69/09 Page No.10/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet ATM, State Bank of Patiala, Mahipal Pur. The articles robbed from the deceased viz. gold chain and two gold rings which were recovered from the accused persons, were identified in the Test Identification Parade by the father of the deceased. The articles purchased by the accused from different shops using the debit card of the deceased which were got recovered by the accused persons, were identified in the Test Identification Parade by the respective shop keepers/shop staff. The postmortem report of the deceased was obtained wherein doctor opined that the cause of death is smothering. The number plate which was affixed by the accused persons on the Santro car was found to be fake. The owner of the vehicle was found to be one Anu Arora whose statement was recorded. The call detail record of the mobile phone of the deceased, Ravi Uniyal (PW11) and all the accused persons were obtained. After completion of investigation, final report u/s.173 Cr.PC was filed in the court and all the accused were chargesheeted u/s. 302/365/397/201/411/403/412/468/471/482/ 120B/34 IPC. Accused Ravi Kapoor was charge sheeted u/s.25 Arms Act as well.
4. Committal proceedings were completed and thereafter, accused Ravi Kapoor, Amit Shukla and Baljeet Malik were FIR No. 69/09 Page No.11/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet charged u/s 365/302/201/394/468/471/482/120B by learned Predecessor. Accused Ravi Kapoor was separately charged u/s 25 of the Arms Act. All the accused persons pleaded not guilty and claimed trial. Although accused persons have been charged u/s.365 IPC apart from other offences but the language used in order on charge makes it clear that accused persons were charged u/s.364 IPC.
5. Trial commenced and prosecution examined 58 witnesses to prove the charges against the accused persons. All the accused persons were examined u/s. 313 Cr.PC wherein the accused persons denied all the incriminating evidence against them and stated that prosecution witnesses have deposed against them at the instance of Investigating Officer. No defence witness was examined.
6. Arguments at length were addressed by Mr.Rajeev Mohan, learned Special Public Prosecutor for the State, Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor and Mr. Amit Kumar, learned counsel for the accused Amit Shukla and Baljeet Malik. Mr. Rajiv Mohan, learned Special Public Prosecutor also filed written submission in addition to oral arguments advanced. I have given my thoughtful consideration to the rival submissions and carefully perused FIR No. 69/09 Page No.12/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet the record.
7. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor relied upon following judgments:
(i) AIR 1996 Supreme Court 607 - Balwinder Singh Vs. State of Punjab.
(ii) 2008 (3) Crimes 418 Mad. Sankar @ Krishan Vs. State.
(iii) AIR 1990 Supreme Court - Padala Veera Reddy Vs. State of Andhra Pradesh & Ors.
(iv) 2004 (1) Crimes 13 (SC) - Kuldip Singh Vs. State of Delhi.
(v) 2007 LawSuit (SC) 455 Hatti Singh Vs. State of Haryana.
(vi) 2010 (4) CC Cases (SC) 247 - Varun Chaudhary Vs. State of Rajasthan.
(vii) AIR 1976 Supreme Court 917 - Chandmal & Anr. Vs. State of Rajasthan.
(viii) 1998 [1] JCC [Delhi] 94 - Preetam Singh Vs. The State.
(ix) 2009(2) Crimes 337 (SC) - Ramesh Bhai & Anr. Vs. State of Rajathan.
(x) 2013 VIII AD (Delhi) 579 - State Vs. Om Prakash FIR No. 69/09 Page No.13/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet & Ors.
(xi) 2014 (143)DRJ 127 - Chandan @ Babar & Anr. Vs. State Govt of NCT of Delhi.
(xii) 1989 Crl L.J. 127 - Pawan Kumar Vs. The Delhi Administration.
(xiii) 1999 VI AD (Delhi) 569 - Mohd. Hashim Vs. State.
(xiv) 2011 [3] JCC 2256 - Dhananjay Singh Bhadoria Vs. State.
(xv) Ajit Singh Vs. State of Punjab decided by Punjab & Haryana HighCourt in Crl. Rev. No. 125 of 1983. (xvi) 1996 Crl. L.J. 3604 - Prem Singh Vs. State. (xvii) 1996 JCC 497 - Abdul Ghaffar Vs. The State (Delhi Admn.).
(xviii) 2012 [2] JCC 1092 Riaz Ali Vs. The State (Govt. of NCT) Delhi.
(xix) Anvar P.V. Vs. P.K. Basheer & Ors. decided by Supreme Court on 18.09.2014.
(xx) State of Punjab Vs. Sucha Singh & Ors.
8. Following judgments relied upon by learned counsel for accused Ravi Kapoor are on circumstantial evidence :
(i) AIR 1996 Supreme Court 607 - Balwinder Singh FIR No. 69/09 Page No.14/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Vs. State of Punjab.
(ii) 2008 (3) Crimes 418 Mad. Sankar @ Krishan Vs. State.
(iii) AIR 1990 Supreme Court - Padala Veera Reddy Vs. State Andhra Pradesh & Ors.
(iv) 2004 (1) Crimes 13 (SC) - Kuldip Singh Vs. State of Delhi.
(v) 2010 (4) CC Cases (SC) 247 - Varun Chaudhary Vs. State of Rajasthan.
(vi) AIR 1976 Supreme Court 917 - Chandmal and Anr. Vs. State of Rajasthan.
(vii) 1998 (1) JCC (Delhi) 94 - Preetam Singh Vs. The State.
(viii) 2009 (2) Crimes 337 (SC) Ramesh Bhai & Anr.
Vs. State of Rajasthan.
The proposition of law laid down in above mentioned judgment regarding motive of accused on the basis of circumstantial evidence have been discussed by this Court in para 9,10 and 11 of this judgment.
9. A careful analysis of the prosecution evidence adduced by the prosecution in this case leads to the inevitable conclusion that entire prosecution case is based on direct and FIR No. 69/09 Page No.15/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet circumstantial evidence. Principles of law for appreciation of evidence and for reaching a final conclusion in a case based on circumstantial evidence are well settled. In Padala Veera Reddy vs. State of A.P. And Ors. 1989 Supp. (2) SCC 706 it was laid down that in a case of circumstantial evidence, the evidence adduced by the prosecution must satisfy the following conditions:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) 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
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than those 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.
10. In C. Chenga Reddy & Ors. Vs. State of A.P. (1996) FIR No. 69/09 Page No.16/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet 10 SCC 193, it is held in para 21 as under:
21. "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypotheses of the guilt of the accused and totally inconsistent with his innocence".
11. In a recent case reported as 2015 IV AD (SC) Tomaso Bruno & Anr. Vs. State of U.P. Hon'ble Supreme Court held that : "In every case based upon circumstantial evidence, in this case as well, the question that needs to be determined is whether the circumstances relied upon by the prosecution are proved by reliable and cogent evidence and whether all the links in the chain of circumstance are complete so as to rule out the possibility of innocence of the accused".
12. Following circumstances are relied upon by the prosecution to connect the accused with the crime and to prove its case against the accused persons: FIR No. 69/09 Page No.17/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet
(a) Deceased Jigisha Ghosh left her house for office in the office cab at about 12 noon on 17.03.2009 and did not return home on 18.03.2009 at expected time.
(b) Deceased was left by the office cab near her house on 18.03.2009 at about 4 am. However, deceased did not reach her house.
(c) Deceased was seen with the accused persons by PW2 Bhima Ram near ATM, State Bank of Patiala, Mahipal Pur at about 4.45 am on 18.03.2009.
(d) The shop keepers/staff of Time Watch Company saw all the accused persons on the same day i.e. on 18.03.2009 at 1 pm and at that time deceased was not with them.
(e) Dead body was recovered on 20.03.2009.
(f) Accused withdrew money using the debit card of
the deceased from the ATM State Bank of Patiala, Mahipal Pur in the early morning of 18.03.2009.
(g) Accused persons purchased various articles/goods from different shops on 18.03.2009 using the debit card of the deceased.
(h) Articles/goods purchased by the accused persons using the debit card of the deceased were recovered from or at the instance of accused persons. These articles were duly FIR No. 69/09 Page No.18/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet identified in the Test Identification Parade as well as in the court by the respective shop keepers/shop staff and original invoices issued by various shop against the purchase made by the accused persons were recovered from or at the instance of accused persons.
(i) Specimen signatures of the accused Ravi Kapoor matched with the signature on charge slip kept at the shop from where the purchases were made.
(j) Jewelery/ornaments worn by the deceased when she went missing were recovered from the accused persons and were identified in the Test Identification Parade by the father of the deceased.
(k) Accused persons refused to participate in the Test Identification Parade during the investigation and all the accused persons were duly identified in the court by the material witnesses viz. PW2 Bhiva Ram and the witnesses from the shop from where the purchases were made.
(l) Accused have not explained vital recoveries made from them either in cross examination or during their examination u/s. 313 Cr.PC.
13. PW1 Mr. J.N Ghosh is the father of deceased who deposed that his daughter Jigisha Ghosh was working in FIR No. 69/09 Page No.19/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet HEWITT Associate Private Limited as Operation Manager and she used to commute between her office and residence in company cab provided by her employer. Jigisha Ghosh was residing with PW1, on 17.03.2009 at about 12 noon, deceased went to her office in company cab, she was to return home on 18.03.2009 at 4 am in the morning from her office situated at Sector 127, NOIDA, she did not return home on 18.03.2009 till about 4 am, sometime on account of burden of work, she used to overstay in the office. PW1 Mr. J.N. Ghosh further deposed that he waited for deceased upto 3 pm for her return from her office on 18.03.2009 till company cab came for the second shift at 3 pm at his residence as deceased was to join her duty for the second shift also. PW1 Mr. J.N. Ghosh inquired from the cab driver that Jigisha Ghosh has not returned home from her duty at 4 am and the driver informed PW1 that he had dropped her at the dropping point near the residence of PW1 at 4 am. Thereafter, PW1 Mr. J.N. Ghosh telephonically inquired from the office of deceased but no satisfactory reply was received about her. Both mobile phones of deceased were switched off. Mr. Jerry Joseph, immediate boss of deceased, was contacted on phone and Mr.Jerry Joseph came to the house of PW1 and advised PW1 to contact the police.
FIR No. 69/09 Page No.20/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
14. PW1 Mr. J.N. Ghosh made complaint to police Ex. PW 1/A. PW1 Mr. J.N. Ghosh also deposed that Jigisha Ghosh used to carry her ATM card and debit card of HDFC Bank and inquiry from HDFC Bank revealed that from the ATM card of deceased a sum of Rs.25,000/ was withdrawn on 18.03.2009 and articles worth Rs.70,000/ were purchased from different places through debit card of deceased. PW1 Mr. J.N. Ghosh also deposed that his daughter was wearing two gold rings (with stones), one gold chain, two silver rings with stones, wrist watch and was also having pink colour purse in which she used to keep her ATM card, debit card and cash and personal religious book. PW1 Mr. J.N. Ghosh then deposed about the recovery of dead body and identification of dead body by PW1, presence of PW1 at Rohtak Medical College where postmortem on the dead body was conducted and the fact that after postmortem dead body was handed over to PW1. PW1 Mr. J.N. Ghosh also deposed that he participated in test identification parade in the Court of Ms. Veena Rani, the then learned Metropolitan Magistrate and identified one gold chain, two gold rings of his daughter. PW1 Mr. J.N. Ghosh identified his signatures on test identification parade proceedings Ex. PW1/C at point A. PW1 Mr. J.N. Ghosh also identified one FIR No. 69/09 Page No.21/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet gold chain and two gold rings in the Court as belongings to his daughter.
15. Deposition of PW1 Mr. J.N. Ghosh proves that deceased Jigisha Ghosh was working in HEWITT Associate Private Limited as Operation Manager and she left her house for her office in office cab on 17.03.2009 at 12 noon and she did not return home on 18.03.2009 at the expected time.
16. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted that there is discrepancy between complaint Ex. PW1/A given by PW1 Mr. J.N. Ghosh to police and his deposition in the Court. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor, referred to the complaint Ex. PW1/A wherein it is mentioned that no information about deceased could be obtained from the office of deceased. This is no contradiction. PW1 Mr. J.N. Ghosh, in the Court deposed that he telephonically inquired from the office of his daughter but no satisfactory reply was received about her. If, one carefully analyses statement Ex. PW1/A given by PW1 Mr. J.N. Ghosh to police and his deposition in the Court, one does not find any major contradiction or inconsistency. The version given by PW1 in his complaint Ex. PW1/A and in his deposition before the Court is natural version of a concerned father whose FIR No. 69/09 Page No.22/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet daughter went missing and some words missing here and there will not make any difference.
17. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted that colour of clothes of deceased as mentioned in the deposition of PW1 Mr. J.N. Ghosh is different from the colour of deceased given in postmortem report. PW48 Inspector Atul Kumar in his deposition clarified that colour of top and pant of deceased changed because of fluid which came out of body of deceased. This is sufficient explanation to meet the argument of learned defence counsel.
18. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor also submitted that in his complaint Ex.PW1/A, PW1 Mr. J.N. Ghosh has stated that deceased was wearing pearl necklace in the neck while in the Court he deposed that she was wearing one gold chain. One should not forget that PW1 at the time of lodging the complaint Ex. PW1/A was traumatized and was in extreme condition of shock and therefore, he may not have been in good condition to give exact details of particulars of jewelery/ornament worn by deceased when she left home.
19. In the Court, PW1 Mr. J.N. Ghosh, clearly deposed that deceased was wearing one gold chain. In cross examination, FIR No. 69/09 Page No.23/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet PW1 was asked by learned counsel for accused Ravi Kapoor as to how he could identify the chain when there was no special mark on the chain, PW1 was categorical in cross examination while deposing that he identified the chain as he purchased the same for his daughter. When an article is purchased with love and affection by a person for his daughter, it is not difficult for such a person to identify that article in test identification parade proceedings. In cross examination, PW1 Mr. J.N. Ghosh also vehemently denied the suggestion that these articles were shown to him in Police Station.
20. PW2 Bhiva Ram deposed that on 18.03.2009, he was working under Top One Security Company and on behalf of company was deputed as Security Guard in the house of one Rao Sahab whose office is situated opposite State Bank of Patiala, Mahipalpur Branch, duty hours of PW2 were from 8 pm to 8 am. PW2 Bhiva Rao categorically deposed that on 18.03.2009 at about 4.45 or 5 am, one vehicle make Santro car of silver colour came in front of ATM and stopped near ATM, three boys and one girl got down from the Santro Car, out of those three boys, two boys put their hands around the neck of that girl and thereafter, they took the girl to the ATM, third boy remained standing near Santro Car, out of those two boys who FIR No. 69/09 Page No.24/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet went to the ATM, one who was wearing cap first entered the ATM, when he came out of the ATM, second boy entered the ATM and when both boys came out of the ATM, they were holding the girl. Thereafter, all the three boys and girl sat in the Santro car, the vehicle came at high speed and left the ATM with high speed. PW2 Bhiva Ram noticed one sticker of police of blue and red colour affixed near rear side number plate of vehicle. PW2 Bhiva Ram further deposed that on 20.03.2009, police officials came at his work place and inquired the matter from him, police showed one photograph of girl and made inquiry from him. PW2 Bhiva Ram identified the photograph as of that girl who was brought by three boys on 18.03.2009 in Santro Car at the ATM. PW2 Bhiva Ram further deposed that all the three accused persons, present in the Court are the same person who brought the girl at the ATM on 18.03.2009. PW2 Bhiva Ram further deposed that accused Ravi Kapoor present in the Court was on the back seat of Santro car with the girl, he got down from one side and the girl got down from other side, remaining two boys were in front seat of the car. PW2 Bhiva Ram further deposed that accused Amit Shukla and Ravi Kapoor went to ATM along with girl and accused Baljeet remained present near Santro car. PW2 Bhiva Ram further FIR No. 69/09 Page No.25/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet deposed that on 20.03.2009 memo regarding identification of photograph Ex. PW2/A was prepared which bears his signature at point A. PW2 Bhiva Ram also deposed about his statement being recorded u/s.164 Cr.PC. PW2 Bhiva Ram identified the photograph Ex.PX1 in the Court.
21. As can be seen from the deposition of PW2, PW2 Bhiva Ram is the last seen witness. PW2 Bhiva Ram last saw the deceased with accused persons in the early morning of 18.03.2009 i.e. soon after deceased was dropped near her house by office cab. All the three accused persons were clearly identified in the Court by PW2 Bhiva Ram as the same persons who were accompanying the deceased near the ATM on 18.03.2009. Therefore, testimony of PW2 established vital link in the chain of circumstances sought to be proved by prosecution against accused persons.
22. PW2 Bhiva Ram was cross examined at length by accused persons on all the aspects of his examination in chief but his testimony could not be shaken. PW2 was asked as to whether police asked about his appointment letter, attendance register or his identity card and PW2 answered in negative. Similarly, PW2 deposed in cross examination that police did not make any inquiry from his employer. PW2 Bhiva Ram also FIR No. 69/09 Page No.26/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet identified deceased in the photograph Ex. PX1. Last seen witness is a very important witness in a case based on circumstantial evidence.
23. According to accused persons, PW2 Bhiva Ram is a planted witness and his presence near the ATM, State Bank of Patiala, Mahipalpur could not established during evidence. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor as well as Mr. Amit Kumar, learned counsel for accused Amit Shukla and Baljeet, argued that appointment letter, attendance register or identity card of PW2 Bhiva Ram was not obtained by Investigating Officer nor employer of PW2 or any other guard posted at or around the said ATM were examined.
24. Omission on the part of Investigating Officer to obtain appointment letter, attendance register or his identity card from PW2, does not make the presence of PW2 near ATM, State Bank of Patiala, Mahipalpur Branch, at the relevant time doubtful. Accused persons have not explained in cross examination or in their statement u/s.313 Cr.PC as to why PW 2 Bhiva Ram chose to depose against them, if PW2 has not seen deceased with accused. In any case, prosecution through the deposition of PW2 proved that PW2 Bhiva Ram was present near the ATM, State Bank of Patiala, Mahipalpur, FIR No. 69/09 Page No.27/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet when deceased was taken to the said ATM by accused persons. Once this burden was discharged by prosecution, onus shifted to accused persons to prove through facts elicited from PW2 in cross examination or through defence evidence that PW2 was not present near the ATM, State Bank of Patiala, Mahipalpur at the relevant time. However, accused persons have miserably failed to bring on record any material to prove that PW2 Bhiva Ram was not present near the ATM, State Bank of Patiala, Mahipalpur, at the relevant time.
25. Mr. Rajiv Mohan, learned Special Public Prosecutor, in written submission has stated that apart from last seen evidence being available in the form of PW2 Bhiva Ram, last seen scientific evidence is also available in this record and referred to use of ATM car of deceased at ATM, State Bank of Patiala, Mahipal Pur at 5.12 am on 18.03.2009 and at various shops/establishment around 1 pm on 18.03.2009. According to Mr. Rajiv Mohan, learned Special Public Prosecutor, the fact that PIN code of ATM card of deceased was known to accused persons, strengthens the stand of prosecution that deceased was present with accused persons soon before death. It is also submitted that presence of deceased with accused persons FIR No. 69/09 Page No.28/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet before death cannot be ruled out in view of the fact that PIN code of ATM card of deceased was known to accused at the time of making purchases at various shops/establishment at Saket and Sarojini Nagar Market. The Court see no reason to disagree with this submission of Mr. Rajiv Mohan, learned Special Public Prosecutor. It has come in the evidence that debit card of deceased was used at the ATM, State Bank of Patiala, Mahipal Pur in the early morning of 18.03.2009 and during day time on 18.03.2009 at various shops/establishments. Details of ATM card are confidential and the fact that accused persons were aware of the PIN code of said ATM of deceased, entails to an inference that deceased was present with accused persons soon before her death.
26. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor raised a query as to how PW2 Bhiva Ram identified all the accused persons in the Court by name. Mr. Rajiv Mohan, learned Special Public Prosecutor responded by submitting that accused persons were identified by PW2 in Police Station after they refused to participate in test identification parade. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor, referred to the cross examination of PW 2 where PW2 deposed that he did not go to Police Station FIR No. 69/09 Page No.29/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet after 20.03.2009. Learned counsel for accused Ravi Kapoor argued that PW2 had no opportunity to see accused persons in the Police Station as PW2 has not gone to Police Station after 20.03.2009. Mr. Deepak Sharma,learned counsel for accused Ravi Kapoor, conveniently chose to ignore subsequent deposition of PW2 in cross examination where PW2 deposed that he used to go to Police Station as and when called by police after 20.03.2009. Infact suggestion was put to PW2 by Mr. Amit Kumar, learned counsel for accused Amit Shukla and Baljeet that PW2 had seen the accused persons in Police Station and PW2 answered in affirmative. PW2 Bhiva Ram thereafter, clarified the position that he had gone to Tihar Jail on 27.03.2009 (for TIP), while he had been called to Police Station on 02.04.2009 where he was shown the accused persons. Therefore, PW2 Bhiva Ram was quite capable for identifying accused persons in the Court by name.
27. Another submission of learned defence counsels was that photograph of deceased Ex. PX1 was not with the charge sheet when PW2 Bhiva Ram was initially examined in chief and said photograph was filed with the permission of the Court on 13.09.2010. Be that as it may, photograph came on the record with the permission of the Court vide order dated 13.09.2010 FIR No. 69/09 Page No.30/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet and that order was not challenged by accused persons. In any case, memo Ex.PX1 regarding identification of photograph was prepared and was filed with the charge sheet.
28. It was also submitted on behalf of accused that if PW2 Bhiva Ram noticed something suspicious, he should have immediately informed the police and the fact that PW2 did not inform the police, would show that he was not present near the ATM. PW2 Bhiva Ram did not notice anything suspicious when he saw the deceased with accused persons and hence he did not inform the police. One should not forget that PW2 noticed one sticker of police of red and blue colour affixed on the rear side number plate of vehicle in which accused persons brought the deceased at the ATM. Therefore, PW2 had no reason to suspect accused persons.
29. Mr. Amit Kumar, learned counsel for accused Amit Shukla and Baljeet submitted that as per prosecution case, PW 2 Bhiva Ram met the police on 20.03.2009 and his statement u/s.164 Cr.PC was recorded on 23.04.2009. Mr. Amit Kumar, learned counsel for accused Amit Shukla and Baljeet submitted that prosecution has not explained the delay in getting the statement of PW2 recorded u/s.164 Cr.PC and this unexplained delay further strengthens the case of accused that FIR No. 69/09 Page No.31/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet PW2 is a planted witness. Inspector Atul Kumar (PW48) who is the second Investigating Officer in this case, deposed that application for recording statement of PW2 u/s.164 Cr.PC was moved on 17.04.2009. PW48 Inspector Atul Kumar explained the delay by deposing that statement of PW2 was recorded on 23.04.2009 as he was busy in investigation of present case during this period. If, one carefully analyses the deposition of PW48, it would become clear that from 20.03.2009 till 17.04.2009, PW48 Inspector Atul Kumar was deeply involved in various aspects of investigation of this case and hence, his explanation that statement of PW2 could be recorded u/s.164 Cr.PC on 23.04.2009 as he was busy in investigating of this case can not be discarded.
30. Testimony of PW11 Ravi Uniyal proves that some untoward incident happened with deceased after she was dropped by the cab near her house as PW11 heard suppressed screams during telephonic conversation with deceased and mobile phone of deceased was disconnected after 45 seconds. Testimony of PW11 also proves that deceased was wearing two rings in her both hands and she was also having gold chain around her neck just before she was dropped. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted FIR No. 69/09 Page No.32/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet that conduct of PW11 Ravi Uniyal was unnatural conduct as he should have spoken to the security guard or driver of the cab or his office or police after phone of deceased was disconnected and nobody picked the phone in the house of deceased. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted that foul play on the part of PW11, security guard present in the cab, driver of cab and other co passengers, cannot be ruled out as no investigation in this regard was conducted. No doubt, a person of ordinary prudence placed in identical situation would have tried to contact the cab driver, security guard, copassengers or police but this unnatural conduct on the part of PW11 does not indicate any foul play on his part, on the part of copassengers, driver of cab, or security guard. PW47 Inspector Neeraj who is the first Investigating Officer in this case and PW48 Inspector Atul Kumar who is the second Investigating Officer of this case in their testimony before the Court have clarified that they interrogated PW11 Ravi Uniyal, security guard, driver of cab, copassengers but did not find any foul play on their part.
31. After vital, reliable and cogent evidence was collected against accused persons during investigation, there was not an FIR No. 69/09 Page No.33/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet iota of doubt about involvement of accused in the crime. It was not incumbent upon the Investigating Officer to investigate the possible involvement of PW11 and other in the crime as it would have been a futile exercise.
32. Even otherwise, no suggestion was put by accused persons to PW11 Ravi Uniyal or other prosecution witnesses from the office of deceased about their involvement in the crime. No such plea was putforth by accused persons during their examination u/s.313 Cr.PC.
Evidence collected before arrest of accused persons
33. According to PW47 Inspector Neeraj, after studying details of purchasing made through the ATM of deceased, it was revealed that purchasing were made from different shops establishments viz. Reebok Store, Saket, Planet M4, Saket, Prem Watch Company, Sarojini Nagar, Reebok Store, Sarojini Nagar, Aashi Opticals, Saroniji Nagar and Amit Enterprises, Sarojini Nagar.
34. PW9 Sanjeev Singhal, partner of Amit Enterprises deposed that on 20.03.2009, police officials came to his shop in connection of this case and made inquiry from Md. Ziauddin and PW9 handed over to the police officials the following FIR No. 69/09 Page No.34/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet documents:
(i) Attested copies of Customer Voucher Slip in the name of Jigisha Ghosh dated 18.03.2009 for the sale of LCD TV make LG 22 Inches Rs.16,500/ bearing signature of customer.
(ii) One self attested photocopy of invoice number 13963 dated 18.03.2009 regarding sale of one LCD TV.
(iii) Photocopy of purchase bill of above mentioned TV.
35. PW9 Sanjeev Singhal deposed that these documents were seized vide memo Ex. PW9/A.
36. PW37 Md. Ziauddin deposed that he was working in Amit Enterprises, Sarojini Nagar as Salesman and on 18.03.2009 he was present at the showroom, at around 1.30 pm three persons came to the showroom and they purchased a 22 inch LCD TV make LG for Rs.16,500/, customer gave a card for making the payment. PW37 Md. Ziauddin inquired as to whom this card belongs on which customer replied that this card belonged to him, customer gave the address of Saket for installation. PW37 Md. Ziauddin prepared necessary documents and handed over LCD TV to them. Later it was revealed that address was not correct.
FIR No. 69/09 Page No.35/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
37. PW37 Md.Ziauddin further deposed that after two days, police officials came to his shop and made inquiry and he handed over the charge slip, bill & invoice to police. PW37 Md. Ziabuddin identified all the three accused persons as the same persons who came to his shop on that day and purchased the LCD TV. LCD TV purchased from Amit Enterprises was identified by PW37 in the Court.
38. PW10 Nitin Soni deposed that he was working at Reebok Store, 62, Sarojini Nagar Market as Store Manager and one Dharmender was working as sales staff, on 20.03.2009, police officials came to Reebok Store in connection with this case and made inquiries from him and Dharmender. PW10 Nitin Soni handed over one voucher slip of Reebok Store for the amount of Rs.14,774/ in the name of Jigisha Ghosh and one cash memo of the shop both dated 18.03.2009 and both these documents were seized vide memo Ex. PW1/A.
39. PW12 Yogesh Singh deposed that in March 2009, he was working as Supervisor in Planet M4, Community Centre, PVR Complex, Saket, police officials came to him on 20.03.2009 and upon their asking, PW12 handed over merchant copy and cash memo regarding purchase of compact disc by using one debit card on 18.03.2009 at 10.52 am and FIR No. 69/09 Page No.36/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet these documents were seized vide memo Ex. PW12/A.
40. PW13 Saurabh Dutta deposed that on 20.03.2009, he was working as Store Manager, Reebok Store, Shop No.2, Community Centre, PVR Complex, Saket, on that day, police officials came to his shop and upon their request, PW13 handed over merchant copy of credit/debit card voucher slip of Reebok Store concerning HDFC Bank dated 18.03.2009 and cash memo of Reebok India SS Watch House Pvt. Ltd. These documents were seized vide memo Ex. PW13/A. PW13 Saurabh Dutta deposed that one of the person who made purchases by using debit card also put his signature on merchant copy Ex. PW13/B.
41. PW14 Brijesh Kumar was working as Sales Manager in Reebok Store, Shop No. 2, Community Center, PVR Complex, Saket and deposed that on 18.03.2009, three boys came to his shop and purchased shoes for Rs.4,948/, payment was made by card and one of them signed on the charge slip. PW14 Brijesh Kumar further deposed that merchant copy of debit card Ex. PW13/B and cash memo Ex. PW13/C were handed over to Investigating Officer.
42. Timex Sports Watch was purchased from Prem Watch Company through debit card of card of deceased. Four FIR No. 69/09 Page No.37/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet witnesses namely Sunita (PW4) R.C. Mehta (PW15), Krishan Gopal (PW18) and Mahesh (PW26) were examined from Prem Watch Company.
43. PW4 Sunita inter alia deposed that she was working as Sales girl in Prem Watch Company, 146, Sarojini NAgar Market, in the year 2009, on 18.03.2009 at about 11.15 pm, PW4 was present on the counter of the shop, three boys came there for purchasing a watch, they purchased Timex Watch of SLX Series automatic no. T2 M 515 for Rs.9,495/, payment was made by using debit card which was in the name of Jigisha Ghosh. After taking debit card, it was swiped and one person out of these who purchased the watch, signed the charge slip, PW4 identified accused Amit Shukla, Baljeet and Ravi Kapoor in the Court, as the same boys who had come in her shop. PW4 Sunita identified accused Ravi Kapoor as the same person who purchased the watch and signed the charge slip. PW4 Sunita further deposed that the shop where she was working was having CCTV camera's. PW4 Sunita volunteered to depose that name of the shop was subsequently changed to Time Factory as shop owner had taken the dealership of Timex. PW4 Sunita further deposed that on 20.03.2009, police came to her shop and inquired about the matter and the FIR No. 69/09 Page No.38/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Manager of the shop namely Krishan Gopal in the presence of PW4 handed over two compact discs of video footage, office copy of invoice and merchant copy slip generated after swiping the debit card which was seized vide memo Ex. PW4/A. PW4 Sunita also deposed that on 27.03.2009, she along with other employees of the shop namely Mahesh and Krishan Gopal were summoned at Central Jail, Tihar for the purpose of test identification parade. PW4 Sunita identified the invoice prepared for purchase of watch by accused Ravi Kapoor in the Court as Ex. PW4/C. PW4 Sunita also identified wrist watch make Timex with packing box which was sold to accused Ravi Kapoor from the shop, in the Court as Ex. P1.
44. PW18 Krishan Gopal who was working as Sales Manager at The Time Factory, 146, Sarojini Nagar Markets deposed that on 20.03.2009, police came to his shop and inquired about the purchases made on the debit card in the name of Jigisha Ghosh on 18.03.2009, PW18 verified the record and after verifying PW18 handed over credit card voucher slip dated 18.03.2009 in the sum of Rs.9,495/, copy of invoice dated 18.03.2009 regarding purchase of wrist watch, two compact disc's of CCTV footage for the period of purchasing and those items were seized vide seizure memo Ex.
FIR No. 69/09 Page No.39/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet PW4/A. Both compact disc's were identified by PW18 in the Court as Ex. PW18/A and Ex. PW18/B. PW18 Krishan Gopal further deposed that he also handed over hard disc of the CCTV footage of relevant period to Investigating Officer which was taken into possession by him. PW18 Krishan Gopal identified the hard disc containing the footage of relevant time when three accused persons made the purchases by using the card of Jigisha Ghosh as Ex. PW18/C.
45. PW26 Mahesh Kumar is another witness from Prem Watch Company who deposed about the purchase of Timex Watch on 18.03.2009 through the debit card of deceased. PW 26 Mahesh Kumar identified all the three accused persons in the Court and specifically identified accused Ravi Kapoor in the Court as the person who used the debit card and signed the purchase slip. PW26 Mahesh Kumar further deposed that on 20.03.2009, two compact disc's prepared from hard disc were handed over to Investigating Officer. PW26 Mahesh Kumar further deposed that photographs from the system were also obtained of that day. PW26 Mahesh Kumar identified photographs in the Court as Ex. PW26/A1 to A7.
46. PW15 R.C. Mehta is the fourth witness from Prem Watch Company who deposed on similar lines.
FIR No. 69/09 Page No.40/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
47. PW22 Rajesh Taneja deposed that he is running a shop in the name of Aashi Opticals, on 18.03.2009, two sun glasses were purchased by three persons by using a credit card, one of them signed the charge ship, on 20.03.2009, police officials came to the shop of PW22 and he handed over invoice and charge ship of Axis Bank for Rs.450/ and same were seized vide seizure memo Ex. PW22/A.
48. It is, therefore, obvious that various articles/goods were purchased from six different shops/establishments on 18.03.2009, by using debit card of deceased. In all the merchant copy/voucher/charge ship/purchase slip obtained from these shops/establishments by the police, name of Jigisha Ghosh is mentioned. Goods/articles purchased from these shops were recovered from one or other accused. LCD TV purchased from Amit Enterprises, Sarojini Nagar and Reebok shoes were recovered at the instance of accused Amit Shukla at 115, Lado Sarai. The particulars mentioned on the said LCD TV and Reebok shoes matched with the particulars mentioned in the copy of invoice and other documents obtained from respective shops. Recoveries were effected in the presence of public witnesses.
49. Similarly, pair of Reebok Shoes and spectacles with FIR No. 69/09 Page No.41/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet cover were recovered from accused Baljeet at the time of his arrest. These articles were purchased by using the debit card of deceased as particulars mentioned on these items matched with the invoice obtained from concerned shop.
50. Following recoveries were effected at the instance of accused Ravi Kapoor from his house at F1/7677, Madangir :
(i) one white colour cap.
(ii) case of sun glasses containing dark colour sung glasses.
(iii) pair of sport shoes and socks.
(iv) wrist watch sports model.
(v) one gold ring belonging to deceased
(vi) cash memo no. 3615 of Reebok India Ltd. Shop No. 62, Sarojini Nagar Market.
(v) invoice dated 18.03.2009 in the name of deceased from Prem Watch Company.
(vi) one warranty card dated 18.03.2009 of Timex Watch.
51. All these articles were purchased using the debit card of deceased as particulars like name of manufacturing company, etc. mentioned on the articles recovered at the instance of accused Ravi Kapoor matched with the particulars mentioned FIR No. 69/09 Page No.42/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet on the invoice and other documents obtained from respective shops. The goods/articles recovered from accused persons were duly identified in the test identification parade as well as in the Court by witness namely PW4 Sunita, PW18, PW26 and PW37. These recoveries were effected in the presence of public witnesses.
52. It therefore, stands proved from the deposition of various witnesses from aforesaid shops and establishments and recovery of articles purchased from those shops at the instance of accused persons that accused persons purchased those items using debit card of deceased.
53. All these articles were purchased on 18.03.2009 and deceased went missing in the early morning of 18.03.2009. From aforesaid circumstances, it can be safely inferred that accused persons robbed the deceased of debit card and made purchases as aforesaid.
Hard disc and compact disc containing CCTV footage and six photographs obtained from Prem Watch Company.
54. As per the deposition of PW4 Sunita, PW18 Krishan Gopal and PW26 Mahesh Kumar that CCTV camera's were installed in their shop and the acts of accused persons entering FIR No. 69/09 Page No.43/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Prem Watch Company, making purchases of watch and making payment for same was captured on the CCTV camera. Two compact discs from the hard disc containing CCTV footage were prepared. Seven photographs as per the deposition of PW26 were also obtained from the system and those photographs were taken on record as Ex. PW26/A1 to A7. All the accused persons are clearly visible in the photographs Ex. PW26/A1 to A7.
55. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor as well as Mr. Amit Kumar, learned counsel for accused Amit Shukla and Baljeet, submitted that person who prepared compact disc from the hard disc of CCTV camera did not give certificate u/s.65A Evidence Act and hence, evidence that has come on record through the photograph Ex. PW26/A 1 to A7, compact disc and hard disc is inadmissible in evidence. Learned counsels for accused persons further submitted that person i.e. computer engineer, who took out hard disc from the system and handed over the same to Investigating Officer was not examined.
56. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor and Mr. Amit Kumar, learned counsel for accused Amit Shukla and Baljeet, submitted that possibility of hard FIR No. 69/09 Page No.44/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet disc being tampered with cannot be ruled out as compact disc containing CCTV footage was obtained by Investigating officer from Prem Watch Company on 20.03.2009 while hard disc was obtained by Investigating Officer on 08.04.2009. Delay in obtaining hard disc will not ipso facto lead to the conclusion that contents of hard disc have been tampered with. Even when hard disc was played in the Court, one does not got the impression that it has been tampered with. Even otherwise, no specific suggestion was put by accused persons either to PW 47 Inspector Neeraj or by PW48 Inspector Atul Kumar that contents of hard disc have been tampered with.
57. In Kishan Tripathi @ Kishan Painter Vs. The State decided by Hon'ble Delhi High Court on 12.02.2016, it was observed that examination of police case file had revealed that the CD was created at the behest of the public prosecutor, before the charge sheet was filed. This was certainly a lapse and the hard disc sealed and deposited in the malkhana should not have been opened, even for the purpose of making copies of video filed.
In Krishan Tripathi (supra) it was further observed as under:
FIR No. 69/09 Page No.45/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet However, in the facts of the present case, this transgression and deviation would not unsettle and nullify the authenticity of the CCTV footage for there is no evidence or even a suggestion that the appellant Kishan Tripathi was at any time under compulsion or force, was asked to enact the crime at the place of occurrence.
58. Present case is on better footing as no effort was made by anyone to obtain data from the hard disc once after it was deposited in the malkhana. Therefore, the possibility of hard disc being tampered with is definitely ruled out.
59. Mr. Rajiv Mohan, learned Special Public Prosecutor submitted that certificate u/s.65B Evidence Act was not required when primary evidence in the form of hard disc of CCTV camera was seized and produced before the Court. Learned Special Public Prosecutor in this regard relied upon judgment given by Hon'ble Delhi High Court on 12.02.2016 in Kishan Tripathi's case (supra). In this case conviction of appellant was primarily predicated on the electronic evidence in the form of CCTV footage recorded on the hard disc. In this case, it was observed in para 13 as under :
" The CCTV footage, which was directly and FIR No. 69/09 Page No.46/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet immediately stored in the hard drive of the computer is the original media, that was self generated and created without any human intervention. This CCTV footage is not secondary evidence and does not require certification under Section 65B of the Evidence Act. This issue is no longer res integra and is settled in the decision of the Supreme Court in Anwar P.V. (S) versus P.K. Basir, (2014), 10 SCC 473 which hold : '24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made there from which were produced in court, without due certification.FIR No. 69/09 Page No.47/116
State Vs. Ravi Kapoor, Amit Shukla and Baljeet Those CDs cannot be admitted in evidence since the mandatory requirements of Section65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.' The aforesaid paragraph elucidates difference between primary and secondary evidence. When primary or direct evidence in form of original data be it a CD, hard driver or any other electronic record is produced, the same is admissible and taken on record. This takes care of the contention of appellant that the CCTV footage should be discarded and not read in evidence in the absence of a certificate under Section 65B of the Evidence Act."
It was further observed in para 14 as under :
" The CCTV footage is captured by the cameras and FIR No. 69/09 Page No.48/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet can be stored in the computer where files are created with serial numbers, date, time and identification marks. These identification marks/details are self generated and recorded, as a result of preexisting software commands. The capture of visual images on the hard disc is automatic in the sense that the video images get stored and recorded suomoto when the CCTV camera is on and is properly connected with the hard disc installed in the computer. It is apparent in the present case from the evidence led that no one was watching the CCTV footage when it was being stored and recorded. The recording was as a result of commands or instructions, which had already been given and programmed. The original hard disc, therefore, could be the primary and the direct evidence. Such primary or direct evidence would enjoy a unique position for anyone who watches the said evidence would be directly viewing the primary evidence. Section 60 of the Evidence Act states that oral evidence must be direct, i.e., with reference to the fact which can be seen, it must be the evidence of the witness, who had seen it, with reference to the fact, which could be heard, it must be evidence of the witness, FIR No. 69/09 Page No.49/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet who had heard it and if it relates to the fact, which could be perceived by any other sense or any other manner, then it must be the evidence of the witness, who says who had perceived it by that sense or by that manner. Read in this light, when we see the CCTV footage, we are in the same position as that of a witness, who had seen the occurrence, though crime had not occurred at that time when the recording was played, but earlier."
60. In the present case also, hard disc of CCTV camera was seized and was kept in malkhana. During the course of arguments hard disc was summoned from the malkhana and was played and viewed in Video Conferencing Room No.16, Saket Courts, in the presence of Mr. Rajiv Mohan, learned Special Public Prosecutor, Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor, Mr. Amit Kumar, learned counsel for accused Amit Shukla and Baljeet, accused persons and other persons present in the Court. Hard disc being primarily evidence in view of law laid down in the aforesaid case, certificate u/s.65B Evidence Act is not required.
61. When hard disc was played in Video Conferencing Room, all the three accused persons were clearly seen entering FIR No. 69/09 Page No.50/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet the shop, looking for watch to be purchased, purchasing the watch and making payment for the same. One should also not forget that CCTV footage contained in the hard disc was not the only evidence collected by police from Prem Watch Company. Witnesses from Prem Watch Company also identified accused persons in the Court. Voucher slip obtained from the said shop mentioning the name of deceased and articles purchased from the said shop were recovered from accused persons and were duly identified by witnesses in test identification parade and in the Court proceedings.
62. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted that no certificate u/s.65B Indian Evidence Act was produced in support of transaction through debit card. Ld. counsel for accused Ravi Kapoor in this regard relied upon on Anvar P.V. Vs. P.K. Basheer & Ors. decided by Hon'ble Supreme Court of India on 18.09.2014.
63. Merchant copy/voucher/charge ship/purchase slip, after purchase being made through the debit card is generated by a machine which is popularly known as Electronic Data Capture machine (EDC machine). The said machine is not a computer and hence, for merchant copy/voucher/charge ship/purchase FIR No. 69/09 Page No.51/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet slip generated by such machine, certificate u/s.65B Evidence Act is not required. One should also not forget that all the evidence from various shops/establishments were collected/generated before the arrest of accused persons. Therefore, there is no possibility of accused being falsely connected with aforesaid purchasing.
64. Mr. Amit Kumar, learned counsel for accused Amit Shukla and Baljeet, submitted that no evidence has been adduced by prosecution to the effect that deceased was carrying debit card on the date when she went missing. PW1 Mr. J.N. Ghosh, father of deceased, has deposed that deceased was having pink colour purse in which she used to keep her ATM card, debit card, cash and personal religious book. This part of the deposition of PW1 meets the argument of learned defence counsel that deceased was not carrying debit card on the fateful day.
65. PW47 Inspector Neeraj deposed that on 20.03.2009, on the basis of details of HDFC Bank, PW47 made inquiry from the shops where ATM card of deceased was used.
66. Objection was raised by learned defence counsel to the effect that PW47 Inspector Neeraj has not clarified as to how he obtained details from HDFC Bank. This objection is FIR No. 69/09 Page No.52/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet without basis as the source of obtaining details from HDFC bank by PW47 is not relevant. What is relevant is that details obtained from HDFC Bank gave indication to Investigating Officer that purchases were made from various shops and establishments through the ATM card of deceased. PW47 Inspector Neeraj identified all the accused persons in photographs Ex. PW26/A1 to Ex. PW26/A7, obtained from CCTV camera installed at Prem Watch Company, during his deposition before the Court.
67. I find substance in the contention of Mr. Rajiv Mohan, learned Special Public Prosecutor that prosecution is required to prove charge against accused beyond all reasonable doubts but not beyond all doubts.
Recovery of jewelery/ornaments worn by deceased when she went missing
68. It has come in the deposition of PW1 Mr. J.N. Ghosh that deceased was wearing two gold rings, one gold chain, two silver rings with stone, wrist watch and was also having pink purse in which she used to keep her ATM card, debit card, cash and personal religious books. The gold chain which was worn by deceased was produced by accused Ravi Kapoor at the time FIR No. 69/09 Page No.53/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet of his arrest. One gold ring of deceases was recovered at the instance of accused Ravi Kapoor from his tenanted accommodation bearing house no. F1/7677, Madangir, New Delhi, in the presence of PW20 Satish. Another gold ring belonging to deceased was recovered at the instance of accused Amit Shukla from his tenanted accommodation bearing house no. F155, 3rd Floor, Lado Sarai, New Delhi, in the presence of Rajender Singh and Vinay Kumar Walia. Accused persons failed to explain satisfactorily in their statement u/s. 313 Cr.PC as to how these articles of deceased were found in their possession. The gold ring of deceased and other articles purchased through the use of debit card of deceased were recovered from the tenanted accommodation of accused Amit Shukla at the instance of accused Amit Shukla in the presence of two independent witnesses namely PW21 Rajender Singh and PW23 Vinay Kumar Walia. These articles were seized vide seizure memo Ex.PW21/A which was signed by PW21 Rajender Singh. Accused Amit Shukla either in cross examination or in statement u/s.313 Cr.PC failed to explain as to why PW21 Rajender Singh and PW23 Vinay Kumar Walia will depose falsely against him. PW21 Rajender Singh and PW23 Vinay Kumar Walia, are independent witnesses as FIR No. 69/09 Page No.54/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet mentioned above. Recoveries made at the instance of accused Amit Shukla in the presence of PW21 Rajender Singh and PW23 Vinay Kumar Walia, inspire confidence of Court. Presence of PW21 Rajender Singh and PW23 Vinay Kumar Walia at the time of recovery at the instance of accused Amit Shukla has lent credence to the recoveries effected from the tenanted accommodation of accused Amit Shukla. It has also come in the deposition of PW21 Rajender Singh and PW23 Vinay Kumar Walia that accused Amit Shukla was tenant of PW21 Rajender Singh who was present when police went to the tenanted accommodation being led by accused Amit Shukla.
69. Similarly, recovery of gold ring and other articles purchased through the use of debit card of deceased were recovered at the instance of accused Ravi Kapoor from house no. F1/7677, Madangir, Delhi, in the presence of PW20 Satish who is the soninlaw of landlord of accused Ravi Kapoor. Accused Ravi Kapoor has likewise failed to explain as to why PW20 Satish will depose against him if no recovery was effected at his instance. Accused Ravi Kapoor has not indicated any previous enmity between him and PW20 Satish.
70. Recovery of ornaments/jewelery being worn by deceased FIR No. 69/09 Page No.55/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet from or at the instance of accused persons furnished vital link in the chain of circumstances sought to be proved against accused persons. Purchases were made by accused persons using debit card of deceased on 18.03.2009 around 1 pm. PW2 Bhiva Ram saw the deceased with accused persons at about 4.45 am on 18.03.2009. Dead body was found on 20.03.2009. Postmortem on the body of deceased was conducted on 22.03.209 and as per the postmortem report, probable time elapsed between death and postmortem examination is 34 days. In other words, deceased in all probability was killed on 18.03.2009. Natural inference that can be drawn from the time of death mentioned in postmortem report and date of time of purchase of various goods/articles by accused persons using the debit card of deceased is that accused persons after robbing the deceased of her debit card, jewelery and other articles, murdered the deceased, dumped the body near Surajkund and thereafter, accused persons came to various shops/establishments for making purchases through debit card of deceased.
71. Mr. Rajiv Mohan, learned Special Public Prosecutor relied upon (1983) 2 SCC 330 - Earabhadrappa Vs. State of FIR No. 69/09 Page No.56/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Karnataka wherein it was held in para 13 as under :
" This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore, the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of PW3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by PW36 at village Hosahally on March 29,1980, taken with the circumstance that he made the statement Ex. P35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of deceased and FIR No. 69/09 Page No.57/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to Section 114, must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen articles is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property."
72. In 2007 LawSuit (SC) 455 Hatti Singh Vs. State of Haryana - it was held that a presumption may be in respect of FIR No. 69/09 Page No.58/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt.
In the present case, none of the accused persons has been given benefit of doubt and hence, facts of this case are clearly distinguishable.
73. In Manu/SC/0694/2001 - Ganesh Lal Vs. State of Rajasthan it was held whether offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction.
74. In Ganesh Lal's case (supra) it was held that when the case rests on circumstances evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an FIR No. 69/09 Page No.59/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet incriminating circumstance by itself would yet enable an inference being raised against him because the face being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do. Identification of accused persons and case properties in the Court
75. During investigation, an application was filed by Investigating Officer before concerned Metropolitan Magistrate for identification of accused Ravi Kapoor, Amit Shukla and Baljeet, by seven witnesses namely Bhiva Ram (PW2), Sunita (PW4), Mahesh (PW26), Dharmender, Md. Ziauddin (PW37), Krishan Gopal (PW18), Rajesh Taneja (PW22). However, all the accused persons refused to participate in the test identification parade/proceedings without giving any solid reason. Accused persons were identified in the Court by PW2 Bhiva Ram, PW4 Sunita, PW26 Mahesh and PW37 Md. Ziauddin. As discussed above, PW2 Bhiva Ram identified accused persons as the same persons who were accompanying the deceased in early morning to the ATM, State Bank of Patiala, Mahipalpur, on 18.03.2009. PW4 Sunita and PW26 Mahesh identified accused persons as the same FIR No. 69/09 Page No.60/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet persons who purchased Timex watch from Prem Watch Company and these witnesses specifically identified accused Ravi Kapoor as the person who signed voucher slip. PW37 Md. Ziauddin identified all the accused persons as same persons who came to Amit Enterprises for purchase of LCD TV. Dharmender, from Reebok Store, 62, Sarojini Nagar Market, identified Reebok shoes in judicial test identification parade conducted by PW22 Sh. Pritam Singh, the then Metropolitan Magistrate. PW14 Brijesh Kumar from Reebok Store, Shop No. 2, Community Centre, PVR Complex, Saket, identified one pair of Reebok Shoes in the judicial test identification parade conducted by PW58 Ms. Veena Rani, the then learned Metropolitan Magistrate (name of learned Metropolitan Magistrate wrongly mentioned as Ms. Veena Birbal during recording of examination). Witness from Prem Watch Company identified Timex Watch in the judicial test identification parade conducted by PW58 Ms. Veena Rani, the then learned Metropolitan Magistrate. Refusal of accused persons to participate in judicial test identification parade proceedings, identification of accused persons in the Court by material witnesses and identification of various goods/articles recovered from accused persons by witnesses from the FIR No. 69/09 Page No.61/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet concerned shops/establishments further strengthens the case of prosecution and definitely points towards the involvement of accused in the crime.
76. Prosecution also examined PW41 Abhijeet who was residing in the neighbourhood of deceased and who saw through window of his house that one girl was talking on mobile phone at about 4 am on 18.03.2009. PW40 Abhijeet also heard noise of cry and shout of the girl and the vehicle moving from the spot in a high speed. However, PW40 Abhijeet could not say with certainty that the girl whom he saw through the window of his house in the early morning of 18.03.2009 was deceased Jigisha Ghosh and therefore, testimony of PW40 does not help the prosecution. Scientific Investigation
77. PW19 Dr. Jitender Kumar Jakhar, Demonstrator, Forensic Medicine Department, PGIMS, Rohtak, conducted postmortem on the body of deceased on 22.03.2009 and found following injuries :
(i) A reddish contusion of size 6x3 cms present over the lower lip middle part. On dissection underlying tissues were found ecchymosed.FIR No. 69/09 Page No.62/116
State Vs. Ravi Kapoor, Amit Shukla and Baljeet
(ii) A reddish contusion of size 2x2 cms, present over the right side of the upper lip. On dissection underlying tissues were found congested.
(iii) A reddish contusion of size 3.5x1 cms present over the dorsal surface of terminal part of nostrial. On dissection underlying tissues were found ecchymosed.
78. PW19 Dr. Jitender Kumar Jhakar, gave his final opinion regarding cause of death Ex. PW19/C and as per his opinion, cause of death was smothering. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted that if cause of death was smothering, as per the opinion of doctor who conducted postmortem, it was incumbent upon the Investigating Officer to lift finger prints from the neck of dead body and to get the same compared with the finger prints of accused persons. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted that no such finger prints were lifted from the neck of deceased.
79. Although prosecution has not explained the reason for not lifting finger prints from the dead body, it is common knowledge that finger prints could not be lifted from dead body when the dead body was recovered two days after the murder FIR No. 69/09 Page No.63/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet as by that time process of decomposition would have started. Secondly, before postmortem report, Investigating Officer was unaware of the cause of death and hence he was not expected to lift finger prints from the neck of deceased.
80. After it was revealed by witnesses that during investigation that accused Ravi Kapoor and accused Amit Shukla have signed voucher slip/customer slip, while using debit card of deceased, hand writing/specimen signatures of accused Ravi Kapoor mark S1 to S71 and specimen handwriting of accused Amit Shukla Mark S72 to S91 were taken and same were sent to Hand Writing Expert, Forensic Science Laboratory, Rohini, for comparison with signatures of accused persons with the signatures appearing on the charge slip/customer slip/voucher, obtained from various shops/establishments. PW57 Mr. Devak Ram, Assistant Director (Documents), Forensic Scicence Laboratory, Rohini, examined the questioned document mark Q1 to Q16, Q4/1 and specimen writing and signature marked S1 to S71 of accused Ravi Kapoor and S72 to S91 of Amit Shukla. PW57 Devak Ram gave the opinion that the person who had wrote red enclosed writing/signature stamped and marked S1 to S71 also wrote the red enclosed questioned writing and signature FIR No. 69/09 Page No.64/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet similarly stamped and marked Q1 to Q5, Q7, Q8, Q10, Q 11, Q13 and Q15. In other words, specimen writing/signature of accused Ravi Kapoor matched with the signature appearing on various voucher slips issued by various shops/establishments. PW57 Devak Ram also opined that the person who wrote red enclosed signatures (writings) stamped and marked S74 to S91 also wrote the red enclosed signatures (writings) similarly stamped and marked Q16. Thus, signature of accused Amit Shukla also matched with the signatures appearing on voucher slip issued by one of the shops/establishment from where purchasing was made.
Therefore, scientific evidence in the form of opinion of PW57 Devak Ram is also a vital incriminating circumstance against accused persons.
81. PW27 Chandra Bali Chaudhary, Branch Manager, HDFC Bank, Vasant Vihar, New Delhi, deposed that in March 2009 she was posted as Branch Manager in Deer Park Branch, Safdarjung Enclave, HDFC Bank, in May 2009 on the asking of police, PW27 submitted saving bank account no.05031140000057 attached to the ATM of deceased Jigisha Ghosh. PW27 also brought the certified copy of relevant statement of account of Jigisha Ghosh and a certificate u/s.2A FIR No. 69/09 Page No.65/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet of Banker's Book Evidence Act issued by the Branch Manager Mr. Dhruv Mathur. PW27 Chandra Bali Chaudhary identified signature of Mr. Dhruv Mathur on the certificate and proved the certificate as Ex. PW27/A. PW27 Chandra Bali Chaudhary also brought copy of bank statement of deceased Ex. PW27/B bearing signatures of Mr. Dhruv Mathur at point A. PW27 Chandra Bali Chaudhary further deposed that along with her reply to the notice to police date 23.05.2009, PW27 also submitted certified copy of bank statement of Jigisha Ghosh Ex. PW27/D. PW27 Chandra Bali Chaudhary further deposed that as per bank's statement of deceased Ex. PW27/B and Ex. PW27/D, a sum of Rs.20,000/ was withdrawn on 18.03.2009 through ATM, thereafter, on 18.03.2009, amount of Rs.5,000/ was withdrawn through the debit card of Jigisha Ghosh, on 18.03.2009 from the debit card itself purchases were made from PlanetM retail of Rs.299/ through the ATM/debit card, purchase of Rs.4,948/ was made from Reebok POS DEBI, on 18.03.2009 itself purchases were made from Aashi Opticals for a sum of Rs.450/ through the ATM/debit card, on 18.03.2009 further purchases were made from Reebok Store, DEBI for a sum of Rs.14,774/ from the ATM cum debit card, on 18.03.2009 further purchases were made from Prem Watch FIR No. 69/09 Page No.66/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Company for a sum of Rs.9,495/ through ATM/Debit card, on 18.03.2009. Again on 18.03.2009, purchases were made from Amit Enterprises for a sum of Rs.16,500/ through ATM/Debit card of deceased.
82. Deposition of PW27 Chandra Bali Chaudhary and the documents produced by her viz. certified copy of bank account of deceased, corroborated the version of witnesses from different shops/establishments about purchases being made by accused persons on 18.03.2009 using the debit card of deceased.
83. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted that PW27 Chandra Bali Chaudhary did not bring any certificate u/s.65B of Indian Evidence Act and hence the documents produced by PW27 are inadmissible in evidence.
84. Mr. Rajiv Mohan, learned Special Public Prosecutor countered this arguments of Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitting that PW27 brought certificate Ex.PW27/A issued by the Branch Manager u/s.2A of Bankers Book Evidence Act. Mr. Rajiv Mohan, learned Special Public Prosecutor, submitted that Banker's Book Evidence Act is a special legislation and will prevail over FIR No. 69/09 Page No.67/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Indian Evidence Act which is general law. Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor submitted that a careful reading of Section 65B Evidence Act would show that Section 65B of Indian Evidence Act has an over riding effect over other provisions contained in Evidence Act but Section 65B of Indian Evidence Act has not been given over riding effect over other legislations particularly special legislation like Bankers Book's Evidence Act.
85. Section 4 of Bankers' Books Evidence Act provides that subject to the provisions of this Act, a certified copy of any entry in a banker's books shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.
86. Therefore, the record produced by PW27 Chandra Bali Chaudhary is admissible u/s.4 of Banker's Books Evidence Act as same is accompanied by certificate issued u/s.2A of Banker's Books Evidence Act.
87. Learned counsel for accused persons relied upon 2014 FIR No. 69/09 Page No.68/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet (143) DRJ 127 - Chandan @ Babar & Anr. Vs. State Govt. of NCT of Delhi. In this case it was held that the manner of arrest of accused and recovery from them of katta and laptop without associating any public person does not inspire confidence.
On the same facts, learned defence counsel relied upon 1989 Crl L.J. 127 - Pawan Kumar Vs. The Delhi Administration.
88. In 2013 VIII AD (Delhi) 579 - State Vs. Om Prakash & Ors., Hon'ble High Court stressed on the need of inclusion of independent witnesses in investigation at the time of recovery.
89. In the present case, at the time of arrest of accused, vital recoveries were effected from accused including belongings of deceased and on the basis of all those recoveries, involvement of accused in other case was also disclosed. Therefore, arrest and recovery from accused persons at the time of their arrest cannot be doubted on the ground that public witnesses were not associated with investigation.
90. PW48 Inspector Atul Kumar (2nd Investigating Officer of this case) deposed in detail about arrest of accused and the recoveries effected from accused at the time of arrest. As per FIR No. 69/09 Page No.69/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet the deposition of PW48 Inspector Atul Kumar, accused Ravi Kapoor, Amit Shukla and Baljeet, were arrested from Nelson Mandela Marg, in pursuance of secret information. After their arrest, search of accused Ravi Kapoor was conducted and a country made fire arm containing cartridge in barrel, three live cartridges and one empty cell of fire arm, were found in his possession. PW48 Inspector Atul Kumar prepared sketch of country made fire arm and cartridges and seized the same vide seizure memo Ex. PW47/J. Some of the recoveries effected from accused Ravi Kapoor has already been discussed in earlier part of this judgment. PW48 Inspector Atul Kumar further deposed that after arrest, accused Ravi Kapoor produced one motorola wireless set MTX 960 on which one small stripe of red tape was affixed. Accused Ravi Kapoor also produced white colour polythene from the dash board of Santro Car which was found containing 10 live cartridges. As per the deposition of PW48 Inspector Atul Kumar, accused Ravi Kapoor after opening the dicky of above mentioned Santro car produced two bags, one was of grey colour and was of larger size where the other was of black colour and was of smaller size. Accused Ravi Kapoor after opening the grey colour bag produced the following items :
FIR No. 69/09 Page No.70/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
(i) one red becon light having the words WILLWIN written on it. One black colour motorola wireless set MTX 960 having a small stripe of red colour wrapped around whole of the body just below the body. This set was also not having any programming. When it was switched on, the words 'PRComm 1' were displayed on the screen. One static wireless set along with microphone on which motorola matrix 888 was written.
(ii) One gullel having yellow colour rubber string and one black colour tape was wrapped around the handle. One polythene pouch containing small iron balls.
(iii) Two plates of blue colour, one was having three stars and other one was having one star which are meant for making the government vehicle as the flag car of the officers of a particular rang of armed forces.
(iv) One khakhi colour uniform, the shirt of which was having a monogram of Delhi Police on left shoulder. This shirt was also having one badge on each should on which the words 'Di Pu' (in Hindi) were written. Accused Ravi Kapoor also produced one black colour belt.
(v) I card of PR communication in the name of Ravi Kapoor, driving licence in the name of Ravi Kapoor, one electoral card in the name of Ravi Kapoor, one I card in the FIR No. 69/09 Page No.71/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet name of Ravi Kapoor of free lance camera man and two I cards of Star News, one PAN card in the name of Nirmal Awasthi.
(vi) From the orange colour pocket of bag, accused Ravi Kapoor took out one dagger with black leather cover, one open knife and one loaded pistol.
(vii) The pistol was checked. It was found containing the magazine having 8 live cartridges of 9 mm.
From the black colour small bag, accused Ravi Kapoor produced one iron plucker (jamoor), four 'plaas', four hammers, three large sharpeners and other iron instruments/implements meant for house breaking, etc. It has come in the deposition of PW48 Inspector Atul Kumar that one sticker of 'Judge Punjab & Haryana High Court HC No.22HC089' was found affixed by cellotape on the front wind screen of Santro car and in this sticker in the column of vehicle no. HR18C 3409 was written by inkpen.
91. PW51 Mr. Vijay Singh deposed that on 25.05.2010, he was posted as Additional DCP1, South District and on that day, file of case FIR No. 69/2009 PS Vasant Vihar was put up before him for grant of sanction for prosecution as required u/s.39 Arms Act. According to PW51, facts of case and documents were indicating recovery of fire arm and FIR No. 69/09 Page No.72/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet ammunition from accused Ravi Kapoor, Amit Shukla and Baljeet and after going through the complete record and after due application of mind, PW51 accorded sanction for prosecution u/s.39 Arms Act against all the accused persons as they have violated the provision of Section 3 of Arms Act.
92. One of the submissions of Mr. Deepak Sharma, learned counsel for accused Ravi Kapoor was that prosecution failed to prove that accused Ravi Kapoor was arrested and charged in FIR No. 104/09 PS Sector24, Noida. Learned counsel for accused Ravi Kapoor further submitted that custody of accused Ravi Kapoor was not transferred to Sector24, Noida. The question as to why accused Ravi Kapoor was arrested, charged and tried in case FIR No. 104/09 PS Sector24, became irrelevant when PW38 Anu Arora owner of Santro car bearing no.DL3C AJ 7347 which was found from the possession of accused, came in the witness box and deposed about theft of her above mentioned vehicle and lodging of FIR No. 104/09. PW38 Anu Arora also identified car in Police Station and in the Court as well through photograph Ex. PW38/A1 to A5. Deposition of PW38 that she cannot make out from photograph Ex. PW38/A5 whether engine number and chasis number were clicked from her stolen car or other car, will not FIR No. 69/09 Page No.73/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet help the accused in view of guidelines/law laid down by Hon'ble Delhi High Court in Manjeet Singh Vs. State, decided on 10.09.2014.
93. PW53 Puneet Puri, Assistant Director, Ballistics, FSL, Rohini, examined one improvised pistol of 9 mm bore Mark F 1 and eight 9 mm cartridges mark A1 to A8 , ten .32 inch cartridges which were recovered from accused Ravi Kapoor. After examination, PW53 gave his report Ex. PW53/A stating therein that improvised pistol Mark F1 was a fire arm and the cartridges Mark A1 to A18 and ten .32 inch cartridges Mark A9 to A18, were ammunition as defined in Arms Act.
94. Charge u/s.25 Arms Act against accused Ravi Kapoor is duly proved through the deposition of PW53 Puneet Puri, PW 51 Mr. Vijay Singh as well as PW48 Inspector Atul Kumar.
95. It has come in the deposition of PW48 Inspector Atul Kumar and other police witnesses that accused persons came in Santro car on which number plate with number HR18C 3409 of silver colour was affixed. Investigating Officer got the number plate affixed on Santro car bearing no. HR18C 3409, verified from concerned transport authority.
96. PW36 Ram Kumar, Clerk from Sub Divisional FIR No. 69/09 Page No.74/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet registration authority, Loharu, Distt. Bhiwani, brought the summoned record regarding registration of vehicle no. HR18C 3409 and deposed that as per records, this vehicle was not registered in the office of RTO Loharu, Bhiwani. Report brought by PW36 was taken on record as Ex. PW36/A. It is clear from the deposition of PW36 Ram Kumar, Clerk from Sub Divisional registration authority, that number plate which was affixed on Santro car in which accused persons came at the time of their arrest was fake number plate and has been forged by accused persons.
97. In 2011 [3] JCC 2256 - Dhananjay Singh Bhadoria Vs. State, it was held that prosecution can succeed by substantially proving the very story it alleges and that prosecution must stand on its own legs and it cannot take advantage of the weakness of the defence.
In the present case, prosecution has substantially proved all the circumstances against accused persons. Prosecution is not relying upon of any weakness of defence of accused. Prosecution merely highlighted the failure of accused to explain incriminating evidence available against them during their examination u/s.313 Cr.PC and which has been discussed FIR No. 69/09 Page No.75/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet by the Court in foregoing para's of this judgment.
98. In Ajit Singh Vs. The State of Punjab decided by Punjab & Haryana High Court on 29.03.1984, it was observed that seal was not given to independent witness and there could be no difficulty in tampering with the sample.
99. In the present case, recoveries were effected from the tenanted accommodations of accused Amit Shukla and Ravi Kapoor in the presence of public witnesses. As regard to the samples which were sent to Forensic Science Laboratory, no circumstance or material could be highlighted by accused persons to indicate tampering.
100. In 2012 [2] JCC 1092 - Riaz Ali Vs. State (Govt. of NCT), it was held that dispatch of seized exhibits for the forensic examination has been effected almost two months after the seizure casting a doubt. It is always open to the accused persons to challenge the same to support a plea of lack of credibility. In case in hand, there is no undue delay in dispatch of seized exhibits for forensic examination.
101. All the accused persons have been charged u/s.120B IPC. However, prosecution failed to prove that accused persons entered into any conspiracy to abduct, rob and murder the FIR No. 69/09 Page No.76/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet deceased. No inference of any conspiracy between accused persons to commit robbery and murder can be drawn from the circumstances proved in this case. Hence, the charge of criminal conspiracy could not be proved against accused persons.
102. Motive is very essential factor in a case based on circumstances. In the present case, accused persons had two fold motive to commit the crime. First, to commit robbery after abduction and secondly, to ensure that crime of robbery and abduction is not reported by the victim to police or other authority.
103. It is abundantly clear from the evidence adduced by prosecution that circumstances from which conclusion of guilt of accused is drawn have been fully proved. Chain of circumstances proved in this case is complete and there is no escape from the conclusion that within all human probability, crimes which which accused persons have been charged with were committed by accused persons and none else. There is no missing link or gap left in the chain of circumstance and hence, possibility of innocence of accused is ruled out.
104. It stands proved on record on the basis of direct and FIR No. 69/09 Page No.77/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet circumstantial evidence that deceased Jigisha Ghosh left her house on 17.03.2009 at 12 noon for going to her office but she did not return home at the expected time. It also stands proved on record that deceased was dropped by her office cab near her residence on 18.03.2009 at 4 am. It has also been proved on record that accused Amit Shukla, Ravi Kapoor and Baljeet, in furtherance of their common intention abducted Jigisha Ghosh for the purpose of committing her murder. It also stands proved on record that accused persons after abducting the Jigisha Ghosh, robbed her of gold chain, two mobile phones, two rings and credit and debit card after causing injury to victim.
105. It also stands proved on the basis of circumstantial evidence that accused Ravi Kapoor, Amit Shukla and Baljeet, in furtherance of their common intention committed murder of Jigisha Ghosh, disposed of her body in bushes near Faridabad, Surajkund.
106. Prosecution has also proved beyond reasonable doubt that accused Ravi Kapoor, Amit Shukla and Baljeet, in furtherance of their common intention committed forgery for the purpose of cheating by signing on charge slip/voucher and other documents by using debit card of Jigisha Ghosh. It also stands proved on record that accused Ravi Kapoor, Amit Shukla and FIR No. 69/09 Page No.78/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Baljeet, were found in possession of different properties/articles including number plate of vehicle, sticker of judiciary, etc. which they kept dishonestly for the purpose of deceiving authorities. In other words, prosecution has proved charges u/s.364/302/201/394/468/471/482/34 IPC against accused Ravi Kapoor, Amit Shukla and Baljeet, beyond all reasonable doubts.
107. Accordingly, accused Ravi Kapoor, Amit Shukla and Baljeet are convicted for the offence u/s.
364/302/201/394/468/471/482/34 IPC.
108. Prosecution has also proved charge u/s.25 Arms Act against accused Ravi Kapoor as he was found in possession of fire arm and ammunition, one dagger and knife. Accordingly, accused Ravi Kapoor is also convicted for the offence u/s.25 Arms Act.
Announced in open Court (Sandeep Yadav) Additional Sessions Judge3 (South) Saket Courts/New Delhi/14.07.2016 FIR No. 69/09 Page No.79/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet IN THE COURT OF SHRI SANDEEP YADAV, ADDITIONAL SESSIONS JUDGE3, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No. 30/14 ID No. 02403R0227502009 FIR No. 69/09 U/s. Vasant Vihar PS. 302/201/365/394/468/471/482/120B/34 IPC & 25/54/59 Arms Act.
State Vs.
1. Ravi Kapoor S/o. Sh. Pritam Singh R/o. F1/7677, Madangir Ambedkar Nagar New Delhi.
2. Amit Shukla S/o. Sh. Rama Kant Shukla R/o. F155, 3rd Floor, Lado Sarai New Delhi
3. Baljeet @ Poppy S/o. Sh. Dharambir Malik R/o. H.No.161, near Post Office Village Massodpur New Delhi FIR No. 69/09 Page No.80/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet .... Convicts ORDER ON SENTENCE 22.08.2016 Pr. Ms. Priyanka Singh proxy counsel for Mr. Rajiv Mohan, Special Public Prosecutor for State with Mr. Abhishek Shrivastava, Mr. Abhimanyu Kampani, Mr. Swapnil Krishna Tripathi and Mr. Satbir Singh Gill, Advocates. Mr. H.R. Khan Suhel with Mr. Sanan Khan, Md.
Mohammad Bilal, Mr. Mustafa Mumtaz and Mr. Anil Thomas, counsels for complainant Investigating Officer Inspector Atul Kumar Parents of deceased Mr. Deepak Sharma with Md. Irfan, Mr.Sandeep Kumar, Mr. Ankit Tyagi, and Mr. Ravish Dedha, counsels for convict Ravi Kapoor Mr. Amit Kumar with Mr. Manish Kumar and Mr. Anand Ranjan, counsels for convict Amit Shukla and Baljeet Malik Convict Ravi Kapoor produced from j/c.
Convict Amit Shukla produced from j/c.
Convict Baljeet Malik @ Poppy produced from j/c.
1. Convict Ravi Kapoor, Amit Shukla and Baljeet Malik have been held guilty for the offences under sections 201/364/302/394/468/471/482/34 vide judgment dated 14.07.2016. Arguments on quantum of sentence from both sides were heard on 20.08.2016.
FIR No. 69/09 Page No.81/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
2. This Court had called for Pre Sentence Report from Probation Officer in respect of all the three convicts i.e. Ravi Kapoor, Amit Shukla and Baljeet Malik, vide order dated 14.07.2016. The Probation Officer has filed Pre Sentence Report (hereinafter referred to as "PSR"). Copies of same were supplied to learned counsels for convicts as well as learned Special Public Prosecutor for State.
3. Mr. Rajiv Mohan, learned Special Public Prosecutor submitted that death penalty is the main punishment provided under section 302 IPC while life imprisonment is an alternative punishment. Mr. Rajiv Mohan, learned Special Public Prosecutor further submitted that CCTV footage of convicts making purchasing at particular shop in Sarojini Nagar Market was viewed during final arguments and there was no remorse on the faces of victims as shown in the CCTV footage. Mr. Rajiv Mohan, learned Special Public Prosecutor further submitted that in this case murder was committed for pleasure in a cold blooded manner and hence, convicts deserve maximum punishment provided under the law i.e. death penalty. Mr. Rajiv Mohan, learned Special Public Prosecutor, also referred FIR No. 69/09 Page No.82/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet to the previous involvement of convicts and submitted that it was not the first murder committed by convicts and these three convicts are also involved in the murder case bearing FIR No. 481/08, PS Vasant Kunj. According to the prosecution, convict Ravi Kapoor is also involved in case FIR No. 8/09, PS Vasant Kunj, under section 302/364/397/411/34 IPC. It was submitted that all these offences were committed within a short period of time.
4. On the other hand, learned counsels for convicts during the course of arguments raised following points/contentions :
(i) Convict Ravi Kapoor has one son and one daughter who are totally dependent on him.
(ii) Mother of convict Ravi Kapoor is a heart patient and his father is bed ridden because of fracture in a road accident.
(iii) Convict Ravi Kapoor was 27 years of age when the offence was committed and is suffering from life threatening disease as mentioned in PSR.
(iv) As per the PSR, convict Ravi Kapoor worked in Ward as Shayak Munsi for about 14 months and convict could not have been assigned the work in the ward as Sahayak Munshi if his FIR No. 69/09 Page No.83/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet conduct was not satisfactory. Convict Ravi Kapoor is in jail for the last seven years and neither he nor his family members are in position to pay any compensation.
(v) Prosecution has not proved or shown any aggravating circumstances against convict Ravi Kapoor and there are no special reasons for death penalty.
(vi) As per PSR, mental and physical condition of convict Ravi Kapoor is such that he is not in a fit condition to understand the consequences of his act.
(v) Convict Baljeet Malik was 20 years of age at the time of crime. PSR has mentioned that convict Baljeet Malik has studied upto 10 standard and there is no criminal antecedents.
(vi) Jail authorities have given satisfactory report about the conduct of convict Baljeet Malik.
(vii) Convict Baljeet Malik was the only accused who was granted interim bail during trial and he has not misused the liberty.
(viii) Reformation is very important part of sentencing policy.
(ix) PSR nowhere says as to how convict Amit Shukla could be reformed.
FIR No. 69/09 Page No.84/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
(x) PSR does not mention that convict Amit Shukla was brutally beaten inside the jail and FIR in this regard was registered and case against officials of Tihar Jail is still pending.
(xi) There is no complaint of misconduct on the part of convict Amit Shukla in jail before 2015.
(xii) There is a deliberate attempt on the part of jail authorities to malign the conduct of convict Amit Shukla.
(xiii) Convict Amit Shukla is in jail for last seven years and has not earned a single penny during this period.
(xiv) Family members of convict Amit Shukla should not be punished for the fact that convict Amit Shukla is in custody or for any act on the part of convict Amit Shukla.
5. Mr. Rajiv Mohan, learned Special Public Prosecutor with the assistance of learned counsel for complainant relied upon following judgments :
(i) AIR 1987 SCR (2) 722 Asharfi Lal & Sons Vs. State of U.P.
(ii) Purushottam Dashrath Borate & Anr. Vs. State of Maharashtra decided by Hon'ble Supreme Court on 08.05.2015.
(iii) Bantu Vs. The State of U.P. decided by Hon'ble Supreme Court on 23.07.2008 in Crl. Appeal No. 117 of 2007.FIR No. 69/09 Page No.85/116
State Vs. Ravi Kapoor, Amit Shukla and Baljeet
(iv) (2003) 12 Supreme Court Cases 199 - Praveen Kumar Vs. State of Karnataka.
6. Mr. Deepak Sharma, learned counsel for convict relied upon following judgments :
(i) Sandesh @ Sainath Kailash Abhang Vs. State of Mahrashtra decided by Hon'ble Supreme Court on 13.12.2012 in Crl. Appeal No. 1973 of 2011.
(ii) Gurvail Singh @ Gala & Anr. Vs. State of Punjab
- decided by Hon'ble Supreme Court on 07.02.2013 in Crl. Appeal No. 1055 of 2006
(iii) Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra decided by Hon'ble Supreme Court on 13.05.2009 in Crl. Appeal No. 1478 of 2005
(iv) Sanaullah Khan Vs. State of Bihar decided by Hon'ble Supreme Court on 15.02.2013 in Crl. Appeal No. 9495 of 2011.
7. The common message running through this judgments is to the effect that aggravating circumstances have to be fully satisfied and if there are no mitigating circumstances then the Court has to apply Rarest of Rare test to find out whether case falls within such category.
FIR No. 69/09 Page No.86/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
8. Rule 1 Chapter 19 Volume III of Delhi High Court Rules gives some guidelines in in determining the sentence to the offenders. Same are being reproduced herein as under :
" The award of suitable sentence depends on a variety of considerations - The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstance, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."FIR No. 69/09 Page No.87/116
State Vs. Ravi Kapoor, Amit Shukla and Baljeet
9. Hon'ble Supreme Court in Bachan Singh Vs. State of Punjab AIR 1980 SC 898 - laid down the aggravating as well as mitigating circumstances, to be weighed by the Court, while determining as to whether case under consideration requires extreme penalty of death. Same are being reproduced herein as under :
Aggravating Circumstances :
(a) if the murder has been committed after previous planning and involves extreme brutality. or
(b) if the murder involves exceptional depravity, or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force of any public servant and was committed:
(i) while such member or public servant was on duty, or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member of public servant, as the case may be, or had ceased to be such member or public servant, or FIR No. 69/09 Page No.88/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973 or who had rendered assistance to a Magistrate or a police officer after demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
Mitigating Circumstances :
(i) that the offence was committed under the influence of extreme mental or emotional disturbance.
(ii) the age of the accused. If the accused is young or old, he shall not be sentenced to death,
(iii) the probability that the accused would not commit acts of criminal acts of violence as would constitute a continuing threat to society.
(iv) the probability that the accused can be reformed and rehabilitated, the State shall by evidence prove that the accused does not satisfy the conditions (3) & (4) above.
(v) that in the facts and circumstances of the case, the accused believed that he was morally justifying in committing the offence.
(vi) that the accused acted under the duress or domination of another person.FIR No. 69/09 Page No.89/116
State Vs. Ravi Kapoor, Amit Shukla and Baljeet
(vii) that the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
In this case it was further held in para 207 as under :
" There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. 'We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society'. Nonetheless, it cannot be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be a bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, FIR No. 69/09 Page No.90/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz, that the person convicted of murder, life imprisonment, is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rear cases when the alternative option is unquestionably foreclosed."
10. Further in Machhi Singh Vs. State of Punjab (1983) 3 SCC 470, Hon'ble Supreme Court held that :
"In the first place, the very humanistic edifice is constructed on the foundation of 'reverence for life' principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it."FIR No. 69/09 Page No.91/116
State Vs. Ravi Kapoor, Amit Shukla and Baljeet It was further observed that :
" When the community feels, that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the antisocial or abhorrent nature of the crime, such as for instance :
(i) manner of commission of Murder i.e., when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community;
(ii) whether the victim is subjected to inhuman acts of torture of cruelty in order to bring about his or her death.
11. In Ram Singh Vs. Sonia & Ors. (2007) 3 SCC 1, FIR No. 69/09 Page No.92/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Hon'ble Supreme Court once again held that :
" It would be a failure of justice not to award the death sentence in a case where the crime was executed in the most grotesque and revolting manner."
12. The distinction between ordinary murder and brutal murder was highlighted by Hon'ble Supreme Court in Ajit Singh Harnam Singh Gujral Vs. State of Maharashtra (2011) 14 SCC 401, wherein it was held as under :
"The distinction has to be drawn between ordinary murders and murders which are gruesome, ghastly or horrendous. While life sentence should be given in the former, the latter belongs to the category of the rarest of rare cases, and hence, death sentence should be given. "
13. In Gurvail Singh @ Gala & Anr. Vs. State of Punjab - AIR 2013 SC 1177 - relied upon by Mr. Deepak Sharma, learned counsel for convict Ravi Kapoor, it was held that :
" to award the death sentence, the aggravating circumstances (crime test) have to be fully satisfied and there FIR No. 69/09 Page No.93/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet should be no mitigating circumstance (criminal test) favouring the accused. Even if both the tests are satisfied as against he accused, then the Court has to finally apply the Rarest of Rare Cases test (R R Test), which depends on the perception of society and not 'judgescentric', this is whether the society will approve the awarding of death sentence to certain types of crime or not. While applying this test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls and the court award death sentence, because situation demands, due to constitutional compulsion, reflected by the will of the people."
14. In the light of these judgments, it has to be found as to what are the aggravating circumstances and mitigating circumstances in the present case.
Mitigating Circumstances
15. So far as convicts Ravi Kapoor and Amit Shukla are concerned, one hardly finds any mitigating circumstance. Age of convicts at the time of commission of crime and the fact that convict Ravi Kapoor and Amit Shukla are suffering FIR No. 69/09 Page No.94/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet from some diseases will not constitute mitigating circumstance. Other mitigating circumstances contended on behalf of convict Ravi Kapoor are that he has one son and one daughter, his mother is a heart patient and father is bed ridden.
Aggravating Circumstances
16. Deleterious impact of the crime on social order and human psyche adds to the list of aggravating circumstances. Unbearable miseries inflicted by convicts do constitute aggravating circumstance. Nature of offence and manner of committing the crime aroused extreme indignation to the society. Thus, aggravating circumstances outweight the mitigating circumstances.
17. Now as per the mandate in Gurvail Singh @ Gala's case (supra), it has to be seen whether case falls within the category of Rarest of Rare Case.
18. Offence in the presence case was committed in cold blooded, inhuman and cruel manner. Innocent, helpless and vulnerable victim remained in the captivity of convicts for hours. Victim pleaded to convicts not to take her life and FIR No. 69/09 Page No.95/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet to save herself, victim handed over her debit card and other belongings to convicts. Victim also disclosed the PIN number of the said debit card to convicts. However, convicts were satisfied only by brutally mauling her to death. In other words, convicts behaved in uncivilized and barbaric manner against a helpless girl.
19. Some cruelty and brutality is involved in every crime against human body. It is the level, magnitude and degree of brutality, attitude and mindset of wrongdoer behind the crime along with other factors which makes it a rarest of rare case. The magnitude and brutality exhibited by convicts while committing the crime brings this case with the category of Rarest of Rare case.
20. Crime in the present case was committed against a woman. Gruesome crimes against women are on the rise in recent years. Any leniency in such cases will send very wrong message in the society and will encourage the criminals like convicts. Passing appropriate sentence in such cases will go a long way in arresting the increasing trend of crime against women.
21. Protection of society and deterring the criminals FIR No. 69/09 Page No.96/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet is the avowed object of law and that is required to be achieved by imposing an appropriate sentence.
22. As discussed above, the Court after convicting Ravi Kapoor, Amit Shukla and Baljeet Malik, asked the Probation Officer to give PSR mainly on two points i.e.
(i) Is there a probability that in future, convict Ravi Kapoor, Amit Shukla and Baljeet Malik, would constitute a continuing thread to society ?
(ii) Is there a probability that convict Ravi Kapoor, Amit Shukla and Baljeet Malik, can be reformed and rehabilitated ?
23. The PSR was prepared by Probation Officer after getting information/inputs from jail authorities, opinion of Clinical Psychologist and opinion of Sociologist, information from Home Surrounding and General Out Look. As per jail conduct report contained in the PSR, conduct and behaviour of convict Ravi Kapoor appeared to be unsatisfactory. Convict Ravi Kapoor is involved in misconduct, misbehaviour and other violations of jail rules and there are so many complaints against him in jail and he has been punished according to jail rules. It is also mentioned in PSR FIR No. 69/09 Page No.97/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet that total eight criminal cases are pending against convict Ravi Kapoor including two murder cases and in one case being FIR No. 24/09, u/s.224/186/353/332 IPC, PS Safdarjung Enclave, he has been convicted and sentenced to imprisonment for 3650 days on 24.06.2014.
24. Probation Officer in PSR concluded that according to his observations and the facts which came to his knowledge, convict Ravi Kapoor could not be reformed and it could not be said that convict Ravi Kapoor may be rehabilitated/reformed himself.
25. PSR further concluded that convict Ravi Kapoor would be a threat to the society in future. PSR is annexed with documents which appears to have been collected from Jail Authorities showing misbehavior/disorderly behaviour of convict Ravi Kapoor in jail. Since, there is no possibility of reformation and rehabilitation of convict Ravi Kapoor and there is apprehension that convict Ravi Kapoor would constitute a continuing threat to the society, convict Ravi Kapoor deserves death penalty under section 302 of the Indian Penal Code.
26. It is mentioned in PSR that conduct and FIR No. 69/09 Page No.98/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet behaviour of convict Amit Shukla in the jail was unsatisfactory as per jail conduct report. It is mentioned in the PSR that convict Amit Shukla is notorious prisoner as many complaints of misconduct and other violations of jail rules have been filed against him during his confinement in jail and his overall conduct is unsatisfactory. It is also mentioned in the report that extortion case was also registered against convict Amit Shukla while he was in jail. As per the data collected by Probation Officer, convict Amit Shukla is involved in atleast seven criminal cases which includes one murder case. A per the information contained in PSR, convict Amit Shukla has been convicted in two cases being FIR No. 118/11, under section 307/332/353/186/149/349/441/120B/34 of Indian Penal Code, Police Station Subzi Mandi, in which he has been sentenced to rigorous imprisonment for five years and FIR No. 63/2009, under section 394/34 of the Indian Penal Code, Police Station Delhi Cantt, in which he has been convicted for simple imprisonment for three years from 10.06.2009 to 14.03.2012. It is also stated that another case is pending against him in Pune, Maharashtra.
FIR No. 69/09 Page No.99/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
27. Probation Officer in PSR has opined that on the basis of personal interview of convict Amit Shukla and observations of Probation Officer and the facts which came to his knowledge, convict Amit Shukla could not be reformed and rehabilitated. Probation Officer further concluded in PSR that if convict Amit Shukla could not reform himself, then he would be threat to the society. PSR also contains information collected from jail authorities showing that punishment tickets of various dates have been given to convict Amit Shukla for misbehavior and misconduct in jail.
28. In the case of convict Amit Shukla also, there is no possibility of his reformation or rehabilitation. Convict Amit Shukla as per PSR is a continuing threat to the society. Accordingly, convict Amit Shukla also deserves death penalty.
29. Contention of convict Ravi Kapoor that he does not know the consequence of his act as per PSR and therefore, lenient view should be taken towards him cannot be accepted. In PSR, it is mentioned that convict Ravi Kapoor after loosing his temper does not think about consequence of his action. Therefore, it is not a normal insanity which FIR No. 69/09 Page No.100/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet convict Ravi Kapoor is suffering from. Rather, it is bad temper which sometimes makes him unable to understand the consequence of his action. In any case, convict Ravi Kapoor never took the plea of insanity during trial and he committed the crime knowing fully well the consequence thereof.
30. Mr. Amit Kumar, learned counsel for convict Amit Shukla and Baljeet Malik, challenged the PSR in respect of convict Amit Shukla stating that there is no incident of misbehavior against convict Amit Shukla before 2015. Mr. Amit Kumar, learned counsel for convict Amit Shukla, sought to emphasis that jail authorities became biased against convict Amit Shukla from March 2015 when trial was coming to an end.
31. First of all, perusal of record would show that end of trial was nowhere in sight in March 2015. It cannot be believed that jail authorities were expecting that trial would end by May 2016 and report would be called about the conduct of convict Amit Shukla in jail and for this reason, jail authorities have fabricated the incident of misconduct on the part of convict Amit Shukla. It is relevant to mention here that report of one incident of misconduct reported against FIR No. 69/09 Page No.101/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet convict Amit Shukla on 20.07.2016 i.e. after judgment dated 14.07.2016, holding convict Amit Shukla guilty, was received. The report was sent by Jail authorities to the Court. Jail authorities could not file a false report before the Court knowing fully well that it can jeopardize their career.
32. In Sandesh Alias Sainath Kailash Abhang Vs. State of Maharashtra, relied upon by Mr. Deepak Sharma, learned counsel for convict Ravi Kapoor, it was held that Trial Court as well as High Court has not considered, in its correct perspective, the state of mind of the accused at the relevant time, his capacity to realize the consequences of the crime he was committing and the lack of intent on his part to commit the murder.
33. In Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, relied upon by Mr. Deepak Sharma, learned counsel for convict Ravi Kapoor, it was held that while imposing any sentence on the accused the court must also keep in mind the doctrine of rehabilitation. In the present case, there is no possibility of rehabilitation of convict Ravi Kapoor as has been concluded above.
34. The Probation Officer in the PSR as stated that FIR No. 69/09 Page No.102/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet conduct and behaviour of convict Baljeet Malik appears to be normal as there is no complaint against him in jail conduct report. The Probation Officer also visited the house of convict Baljeet Malik and met the neighbourers of convict Baljeet Malik and obtained version of some of the neighbourers. For the purpose of identification, copy of photo identity card of neighbourers of convict Baljeet Malik have been annexed with PSR. All the neighbourers of convict Baljeet Malik, have stated that convict Baljeet Malik was well nurtured boy and used to give respect to old persons and women. It was also found that convict Baljeet Malik has won Delhi Body Building Competition and he was respected in his village for his achievement. Neighbourers have also reported that convict Baljeet Malik never fought with any person in the village. As per the PSR given by Probation Officer, convict Baljeet Malik may be a given chance for reformation and rehabilitation and if he is able to reform, he will not be a threat to the society in future. Even the Sociologist whose views were obtained by Probation Officer, opined that there is some scope of improvement so far as convict Baljeet Malik is concerned. Regarding the behaviour FIR No. 69/09 Page No.103/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet and habit of convict Baljeet Malik, PSR states that convict Baljeet Malik is an introvert person with less interaction with other coinmates and he used to read novels and other books regularly. Convict Baljeet Malik during his interview with Probation Officer stated that if, he is released, he will become a gym trainer to support his family.
35. It is obvious from the PSR that there is possibility of reformation and rehabilitation of convict Baljeet Malik. Convict Baljeet Malik has been will behaved boy in his village. He was 20 years of age at the time of commission of crime. It appears that he got involved in the crime because of his association with bad elements and hence he should be given a chance to reform and rehabilitate himself.
36. Accordingly, following punishments are awarded to convict Ravi Kapoor, Amit Shukla and Baljeet Malik :
(a) Convict Ravi Kapoor is sentenced to death for the offence punishable under section 302 of the Indian Penal Code and fine of Rs.20,000/. Convict Ravi Kapoor be hanged by neck till he is dead. In default of payment of fine, convict Ravi Kapoor shall undergo simple imprisonment for six months (6 months).
Convict Amit Shukla is sentenced to death for the FIR No. 69/09 Page No.104/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet offence punishable under section 302 of the Indian Penal Code and fine of Rs.1 lac. Convict Amit Shukla be hanged by neck till he is dead. In default of payment of fine, convict Amit Shukla shall undergo simple imprisonment for six months (6 months).
Convict Baljeet Malik is sentenced to life imprisonment for the offence punishable under section 302 of the Indian Penal Code and fine of Rs.3 lacs. In default of payment of fine, convict Baljeet Malik shall undergo simple imprisonment for six months (6 months).
(b) Convict Ravi Kapoor is sentenced to life imprisonment for the offence punishable under section 364 of the Indian Penal Code and fine of Rs.10,000/. In default of payment of fine, convict Ravi Kapoor shall undergo simple imprisonment for six months (6 months).
Convict Amit Shukla is sentenced to life imprisonment for the offence punishable under section 364 of the Indian Penal Code and fine of Rs.1 lac. In default of payment of fine, convict Amit Shukla shall undergo simple imprisonment for six months (6 months).
Convict Baljeet Malik is sentenced to life imprisonment for the offence punishable under section 364 of the FIR No. 69/09 Page No.105/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Indian Penal Code and fine of Rs.2 lacs. In default of payment of fine, convict Baljeet Malik shall undergo simple imprisonment for six months (6 months).
(c) Convict Ravi Kapoor is sentenced to simple imprisonment for seven years (7 years) for the offence punishable under section 201 of the Indian Penal Code and fine of Rs.10,000/. In default of payment of fine, convict Ravi Kapoor shall undergo simple imprisonment for six months (6 months). Convict Amit Shukla is sentenced to simple imprisonment for seven years (7 years) for the offence punishable under section 201 of the Indian Penal Code and fine of Rs.10,000/. In default of payment of fine, convict Amit Shukla shall undergo simple imprisonment for six months (6 months). Convict Baljeet Malik is sentenced to simple imprisonment for seven years (7 years) for the offence punishable under section 201 of the Indian Penal Code and fine of Rs.10,000/. In default of payment of fine, convict Baljeet Malik shall undergo simple imprisonment for six months (6 months).
(d) Convict Ravi Kapoor is sentenced to imprisonment for life for the offence punishable under section 394 of the Indian Penal Code and fine of Rs.50,000/. In default of FIR No. 69/09 Page No.106/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet payment of fine, convict Ravi Kapoor shall undergo simple imprisonment for six months (6 months).
Convict Amit Shukla is sentenced to imprisonment for life for the offence punishable under section 394 of the Indian Penal Code and fine of Rs.50,000/. In default of payment of fine, convict Amit Shukla shall undergo simple imprisonment for six months (6 months).
Convict Baljeet Malik is sentenced to imprisonment for life for the offence punishable under section 394 of the Indian Penal Code and fine of Rs.50,000/. In default of payment of fine, convict Baljeet Malik shall undergo simple imprisonment for six months (6 months).
(e) Convict Ravi Kapoor is sentenced to simple imprisonment for seven years (7 years) for the offence punishable under section 468 of the Indian Penal Code and fine of Rs.20,000/. In default of payment of fine, convict Ravi Kapoor shall undergo simple imprisonment for six months (6 months).
Convict Amit Shukla is sentenced to simple imprisonment for seven years (7 years) for the offence punishable under section 468 of the Indian Penal Code and fine of Rs.20,000/. In default of payment of fine, convict Amit Shukla shall undergo FIR No. 69/09 Page No.107/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet simple imprisonment for six months (6 months). Convict Baljeet Malik is sentenced to simple imprisonment for seven years (7 years) for the offence punishable under section 468 of the Indian Penal Code and fine of Rs.20,000/. In default of payment of fine, convict Baljeet Malik shall undergo simple imprisonment for six months (6 months).
(f) Convict Ravi Kapoor is sentenced to simple imprisonment for two years (2 years) for the offence punishable under section 471 of the Indian Penal Code.
Convict Amit Shukla is sentenced to simple imprisonment for two years (2 years) for the offence punishable under section 471 of the Indian Penal Code.
Convict Baljeet Malik is sentenced to simple imprisonment for two years (2 years) for the offence punishable under section 471 of the Indian Penal Code.
(g) Convict Ravi Kapoor is sentenced to simple imprisonment for one years (1 year) for the offence punishable under section 482 of the Indian Penal Code.
Convict Amit Shukla is sentenced to simple imprisonment for one years (1 year) for the offence punishable under section 482 of the Indian Penal Code.
FIR No. 69/09 Page No.108/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet Convict Baljeet Malik is sentenced to simple imprisonment for one years (1 year) for the offence punishable under section 482 of the Indian Penal Code.
(h) Convict Ravi Kapoor is sentenced to simple imprisonment for three years (3 years) for the offence punishable under section 25 of Arms Act and fine of Rs.10,000/. In default of payment of fine, convict Ravi Kapoor shall undergo simple imprisonment for two months (2 months).
37. The sentences awarded above under section 364/394 of The Indian Penal Code shall run concurrently, while the sentence awarded to convicts under sections 201/468/471/482 The Indian Penal Code and under section 25 Arms Act shall run consecutively. Benefit of section 428 Cr.PC is extended to convicts wherever applicable.
Compensation to the parents of victim
38. Now the question arises as to whether it is a fit case for award of compensation to the dependents/parents of victim
39. In Ankush Shivaji Gaikwad vs. State of Maharashtra in AIR 2013 SC 2014 decided by Hon'ble FIR No. 69/09 Page No.109/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet Supreme Court, it was held that, " While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order Under Section 357 Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and FIR No. 69/09 Page No.110/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet compensation that it may in its wisdom decide to award to the victim or his/her family."
40. In Vikas Yadav Vs. State of U.P. 2015 (218) DLT (CN) 1 - detailed guidelines have been given by Hon'ble Delhi High Court as regard the procedure to be followed and principles for fixation of fine and compensation. It was held in this case that it is obligatory on every criminal court to consider the case from the prospective whether order under section 357 Cr.PC is called for or not.
It was further held that Courts must conduct an inquiry, even a summary one into, fitness of the case for award of fine and compensation, persons entitled to compensation, paying capacity of the accused and any other relevant factor.
It was further held in para 344 of this judgment that summary enquiry ought to include into the conditions of the victims and the impact of the crime on them. It would also be essential to enquire into and obtain relevant material regarding the other components of Section 357 (1) to enable the court to pass a truly meaningful order.
41. In the celebrated judgment of B.K. Basu Vs. State FIR No. 69/09 Page No.111/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet of West Bengal 1997 1 SCC 416, it was held that to repair wrong done and to give judicial redress for legal injury is compensation of judicial conscious.
42. This Court vide order dated 14.07.2016, directed the Investigating Officer Inspector Atul Kumar to conduct an inquiry to ascertain the financial condition of convicts namely Ravi Kapoor, Amit Shukla and Baljeet Malik and their families and assess their capacity to pay compensation. The enquiry to be conducted by Investigating Officer was also directed to focus on the impact of crime, committed in this case, on the parents of victim, so that the Court can arrive at a just conclusion on the question of compensation. Investigating Officer was further directed to include any other aspect or factor in the scope of inquiry which could facilitate the award of just compensation in this case.
43. Investigating Officer after conducting inquiry has filed in terms of order dated 14.07.2016. As per the report of Investigating Officer, financial condition of accused Ravi Kapoor is very weak as his father is unemployed because of some fracture for one year and parents of convict Ravi Kapoor are living in a tenanted accommodation. However, as FIR No. 69/09 Page No.112/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet per the report filed by Investigating Officer, financial condition of families of convict Amit Shukla and Baljeet Malik is quite strong as they are having movable and immovable properties. Report of Investigating Officer says that father of convict Baljeet Malik is drawing rent of Rs. 40,000/ per month from one property owned by him.
44. As regard to the impact of crime on the parents of victim, the report filed by Investigating Officer states that victim is survived by her father (74 years old) and mother (58 years old). Report further states that deceased Jigisha Ghosh was the only bread earner in the family and at the time of her murder, she was earning Rs. 45,000/ per month and was employed as Operational Manager and in the normal course of things, by now, she would have been at a much higher position in her career. Mother of victim is suffering from very high diabetes for that last 12 years, arthritis, minor Thalessimia, Hypo Thyrodism, Hyper Tension and a serious Neurological ailment. Father of victim has retired from Health Ministry from the post of Deputy Director in the year 2006 and was passing life with the assistance from victim's earning.
FIR No. 69/09 Page No.113/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet
45. No amount of compensation can alleviate the agony, pain and trauma of parents of victim, resulting from the crime committing in this case. However, monetary compensation would provide some solace and would apply balm to the wound of parents of victim.
46. It is, therefore, clear from the report filed by Investigating Officer that convict Amit Shukla and Baljeet Malik are quite capable of paying compensation to the parents of victim.
47. In these facts and circumstances of the case and in view of inquiry conducted by Investigating Officer, it is concluded that it is a fit case for award of compensation and that parents of victims are entitled to compensation.
48. Convicts particularly, convict Amit Shukla and Baljeet Malik have capacity to pay compensation.
Accordingly, out of the fine of Rs.1,20,000/ imposed on convict Ravi Kapoor, a sum of Rs.1 lacs be released as compensation to father and mother of victim in equal share.
Out of the fine of Rs. 2,80,000/ imposed on convict Amit Shukla, a sum of Rs. 2 lacs, be released as compensation to father and mother of victim in equal share.
FIR No. 69/09 Page No.114/116State Vs. Ravi Kapoor, Amit Shukla and Baljeet Out of the fine of Rs.5,80,000/ imposed on convict Baljeet Malik, a sum of Rs. 3 lacs be released as compensation to father and mother of victim in equal share.
49. However, this Court is satisfied that compensation awarded to the parents of victim u/s.357 Code of Criminal Procedure is not adequate. Accordingly, a recommendation is made to District Legal Service Authority, Delhi, (South), u/s. 357A Cr.PC, for awarding adequate and proper compensation to the parents of deceased.
50. Convicts are informed that they can file appeal against judgment dated 14.07.2016 and order on sentence within a period of 30 days as per Article 115 of the Limitation Act 1963.
51. Attested copy of judgment, order on sentence, copy of charge, evidence, statement under section 313 Cr.PC, exhibited documents, be given to convicts, free of cost.
52. The exhibits be preserved till the confirmation of death penalty by Hon'ble High Court. The death penalty reference is being sent to Hon'ble High Court of Delhi for the confirmation of same. The file be prepared as per Rule 34 of Chapter 24 Part B Vol. III of Delhi High Court Rules and be FIR No. 69/09 Page No.115/116 State Vs. Ravi Kapoor, Amit Shukla and Baljeet sent to Hon'ble High Court as per rules. Death sentence shall not be executed unless it is confirmed by Hon'ble High Court.
53. Before parting, let me place on record my appreciation for the Probation Officer, for filing a detailed, comprehensive and meaningful PSR which assisted the Court in arriving at a just conclusion as to the quantum of sentence. Report filed by Probation Officer and copies thereof be kept in sealed cover.
Copy of this order be sent to concerned Superintendents, Jail, Tihar.
Copy of this order be sent to District Legal Service Authority, Delhi (South).
Announced in open Court (Sandeep Yadav)
on 22.08.2016 Additional Sessions Judge3 (South)
Saket Courts, New Delhi
FIR No. 69/09 Page No.116/116
State Vs. Ravi Kapoor, Amit Shukla and Baljeet