Calcutta High Court (Appellete Side)
@ Nikar Yadav @ Nikara Yadav vs The State Of West Bengal on 6 October, 2010
Author: Ashim Kumar Roy
Bench: J. N. Patel, Ashim Kumar Roy
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Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice J. N. Patel, Chief Justice
And
The Hon'ble Justice Ashim Kumar Roy
C.R.A. NO. 639 of 2008
@ Death Reference 2/2008
Nikku Yadav @ Neeku Yadav
@ Nikar Yadav @ Nikara Yadav
Versus
The State of West Bengal
For the Appellant : Mr. Ranjit Kr. Ghoshal
Mr. Jayanta Narayan Chatterjee
For the State : Mr. Ashimesh Goswami
Mr. Swapan Mullick
Heard on : September 14th, September 15th, 2010.
Judgment on: 06-10-2010.
ASHIM KUMAR ROY, J.:
The accused Nikku Yadav @ Neeku Yadav @ Nikar Yadav @ Nikara Yadav was placed on trial before the Learned Additional District & Sessions Judge, 3rd Court, Alipore, 24-Parganas (South) to answer charges under Section 302 of the Indian Penal Code for committing murder by intentionally causing death of one 2 Rovindar Kaur Luthra and under Section 394 of the Indian Penal Code for committing robbery in respect of valuable articles, viz., jewellaries, cash etc. while committing her murder. In the said trial the accused was found guilty on both count and sentenced to death for his conviction under Section 302 of the Indian Penal Code, and no separate sentence was passed against his conviction under Section 394 of the Indian Penal Code.
While the Trial Judge made the statutory reference under Section 366 of the Code of Criminal Procedure to this Court for confirmation of sentence of death, the accused being aggrieved by the order of conviction and sentence filed an independent appeal.
Both the reference and the appeal were taken for hearing together.
2. The very genesis of the prosecution case, which led to the trial of the accused/appellant are as follows;
The deceased Mrs. Rovindar Kaur Luthra along with her husband P.W. 9 Ashit Mohan Luthra were residing in a flat, situated at the 7th floor of Tripura Enclave Apartment, 59, Ballygunge Circular Road Kolkata - 19. The accused Nikku Yadav @ Neeku Yadav @ Nikar Yadav @ Nikara Yadav (for the sake of brevity hereinafter referred to as "Nikku Yadav") was their full time domestic servant and working as such for 6/7 years and used to stay at the servant quarter inside the flat situated at the attached to roof terrace. On February 13, 2007 the P.W. 9 Ashit Mohan Luthra, the husband of the deceased went to Vizag for some business purposes, while his wife Rovindar Kaur Luthra remained there as well as the accused Nikku Yadav. On February 15, 2007 at 3 around 5-30 a.m. in the morning the milkman went to the flat, but in spite of repeated ringing of bell neither the door was opened nor any response was received, when he left the milk packets in front of the door and reported the same to the security guard of the apartment. Thereafter, at around 6 a.m. the said security guard of the apartment found Nikku Yadav was coming out from the lift with a big shopper, a gunny bag, containing some things inside. Subsequently, the newspaper vendor, a porter with vegetables and the maid servant of the family one after another went to the flat but they also in spite of repeated ringing of bell received no response nor the door was opened. At around 9 a.m. the driver of the family Md. Azad @ Ayub came there and also did not get any response in spite of repeated ringing of bell and found the door was bolted from inside. In the meantime the resident of next door flat came there and the husband of the deceased was contacted over phone and many family friends and others arrived there. When the caretaker and the security guard brought the key and opened the lock of the roof door, went to the rear portion of the flat and found the grill gate was locked from inside, then a ladder was brought and with the help of the same the driver of the family landed at the terrace of the flat but accused Nikku was not found there. Then the said grill gate was opened with the keys lying inside and other also entered and found the main door of the flat was locked from inside and the deceased Rovindar Kaur Luthra was lying dead on the floor of her bed room, with multiple marks of injury on her face and neck, and the almirah was lying open and the room was ransacked. Subsequently, it was found a sum of Rs. 3.5 lakhs which Mr. Luthra left in the almirah before he went 4 to Vizag and some dollars kept there and the gold ornaments worn by her and jewellaries kept in almirah were missing. In the post mortem it was found that she was killed by manual strangulation. Meanwhile, the police arrested the Nikku Yadav from Sambhunath Pandit Hospital, where he was admitted after meeting with an alleged road accident. During interrogation the said Nikku Yadav confessed his guilt and led the police party to the residence of one Narendra Kumar Barlia, situated at Alipore Road, where one of his friend Bablu Mondal, was working as a servant in Barlia family and on being asked by the accused, Bablu Mondal brought out a big shopper from his servant quarter and from the said big shopper a locked black leather bag was recovered and after breaking open the chain of the said bag the missing gold ornaments and jewellaries of the deceased and cash, viz., Indian currency and dollars were recovered and were subsequently identified by the family members of the deceased. According to Bablu Mondal the accused left that big shopper in his Jimbba on that day in the morning, without telling what were there and further told him that the accused would take back the same within a day or two. Subsequently, the accused Nikku Yadav again led the police team to the flat where Mrs. Luthra was murdered and brought out a dog belt from a corner of the roof garden of the flat, which was wrapped with a plastic and concealed under a piece of rock.
3. The aforesaid order of conviction and sentence has been assailed on behalf of the appellant on the following grounds :-
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(i) Although, inside the flat a closed circuit T.V. was fitted and same was connected by video linkage with the video camera fixed at the reception of the apartment, neither video camera footage, nor the closed circuit T.V. footage were seized by the investigating agency, which would have been the best evidence to unearth the real criminals and their modus operandi.
(ii) According to the prosecution case the accused Nikku was last seen in the apartment on February 15, 2007 at about 6 a.m. while he was coming down from the lift with a loaded bag along with one Krishna Mondal, although the said Krishna Mondal was a very material witness still he was not examined during the trial.
(iii) Allegedly the appellant was found by the security guard carrying a loaded bag and leaving the apartment, still his bag was not searched, although it was the duty of the security guard to search every person who was leaving the apartment with any loaded bag or other articles. Since he was carrying an empty bag the same was not checked.
(iv) The accused/appellant on that day actually came out from the apartment with an empty bag which would be evident from the evidence of traffic constable P.W. 22 Body Roy, who found one empty bag hanging on the handle of the cycle.
(v) The prosecution had not arraigned Bablu Mondal as an accused in this case despite the fact the stolen articles were recovered from his possession but he was cited as a witness.6
(vi) There was no test identification parade of the stolen jewellaries and gold ornaments.
(vii) No independent witness was examined in support of recovery of the stolen articles as well as the dog belt which was allegedly used by the accused/appellant in the commission of the offence.
(viii) The dog belt which was allegedly used in the commission of the offence was recovered long after the alleged incident.
(ix) The dog belt was not sent for forensic examination.
(x) The alleged stolen articles were admittedly handed over to the investigating officer by P.W. 17 Bablu Mondal, therefore, it could not be said that such recovery was admissible under Section 27 of the Evidence Act.
(xi) It was never proved that with the aid of that dog belt the deceased could have been murdered.
(xii) Blood group in the nail cuttings of the appellant was never established.
Furthermore, it is the specific defence that although the accused/appellant used to stay at the servant quarter situated at the terrace attached to the flat of Luthra Family and his movement inside the flat was not restricted, and he had free ingress and egress from the said flat still he had no access to the bedroom of his master. According to the Learned Counsel of the defence on the date of the alleged incident the accused as usual woke up in the early morning and entered into the flat through the kitchen door and after having 7 his tea went out for marketing and had no knowledge as to how the incident happened.
Lastly, it is submitted in any event this is not being a rarest of rare cases imposition of capital sentence does not at all call for.
In support of his contentions the Learned Counsel of the appellant relied on the following decisions, viz., (i) Khashaba Maruti Shelke Vs. The State of Maharashtra, reported in 1973 CRI. L. J. 1607, (ii) B.L. Satish Vs. State of Karnataka, reported in 2001 (3) Crimes 182 (SC), (iii) Tanviben Pankajkumar Divetia Vs. State of Gujarat, reported in 1997 SCC (Cri) 1004, (iv) State of Punjab Vs. Sarup Singh, reported in 1998 SCC (Cri) 711.
4. On the other hand, the Learned Public Prosecutor at the very outset conceded that this is not a case for death penalty but according to him, the circumstances on which the prosecution relied on had unerringly pointed to the guilt of the appellant and as such he has very rightly been convicted for the murder of the victim and robbing of her jewellaries and cash money.
The Learned Public Prosecutor in support of his contention relied on the decisions of the Hon'ble Apex Court in the case of (i) Earabhadrappa @ Krishnappa Vs. State of Karnataka, reported in 1983 SCC (Cri) 447, (ii) Gulab Chand Vs. State of M.P., reported in 1995 SCC (Cri) 552 and (iii) A. Yadav Vs. State of Karnataka, reported in (2009) 3 SCC (Cri) 987.
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5. In absence of any direct evidence, the prosecution case rested entirely on circumstantial evidence and the circumstances, on which the prosecution relied on are enumerated below;
(i) The P.W. 9 Ashit Mohan Luthra and his wife Rovindar Kaur Luthra were residing in a flat situated at the 7th Floor of the Tripura Enclave Apartment, 59, Ballygunge Circular Road, Kolkata - 700 019.
(ii) The accused Nikku Yadav, a whole time domestic servant of the Luthra family, who had been working there for 6/7 years, used to stay with the said family inside the flat, in the servant quarter situated at the attached terrace.
(iii) The main entrance door of the said flat was fitted with a night latch and the door locked automatically by mere pushing. While any person can exit from inside the flat by operating the night latch but nobody could enter from outside without the key. At the other end of the flat, i.e. on rear side of the flat there was one iron grill gate but the same was always kept under lock and key with a padlock from inside and the servant quarter was situated inside the said grill gate.
(iv) On the night of February 14, 2008 the maid servant Radha Patra, P.W. 24 left the flat after her days work at around 8-00 p.m. when the accused Nikku Yadav, Mrs. Luthra and the P.W. 19 Pradip Lal, a family friend were present there.
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(v) The P.W. 19 Pradip Lal, from 7-30 to 9 p.m., when was with Mrs. Luthra in their flat, he found both P.W. 24 Radha Patra and accused Nikku Yadav present there.
(vi) On February 13, 2007 P.W. 9 Ashit Mohan Luthra, had been to Vizag, however Mrs. Luthra remained at Kolkata and was staying at the said flat alone, while the accused Nikku Yadav as usual stayed at his servant quarter.
(vii) On February 15, 2007 at around 5-30 a.m. in the morning, P.W. 6 Hanif Mondal, a security guard of the said apartment was informed by the P.W. 5 Tapan Das, a milkman that in spite of repeated ringing of door bell neither anybody responded from inside nor the door was opened and he left the milk packets on the floor.
(viii) At about 6-00 a.m., P.W. 6 Hanif Mondal, the security guard of the apartment found accused Nikku Yadav was coming out from the lift with a gunny bag in his hand containing some heavy articles.
(ix) Thereafter, a porter, P.W. 37 Haru Khamaru with vegetables went to the flat to deliver the same as per the order placed by Mrs. Luthra on the previous evening and then the newspaper boy, P.W. 4, the maid servant P.W. 24 and the driver P.W. 3, the dog trainer P.W. 7 went to the flat and in spite of repeated knocking of the door and ringing of the bell they received no response.
(x) Since, in spite of repeated knocking of the door and ringing of the door bell of the flat, there was no response and the door was found bolted from inside, the security guard Dipak Das, P.W. 8 and the caretaker, P.W. 15 Swapan Pal opened the padlock of the roof door and then they along with P.W. 3 10 Md. Azad @ Ayub, the driver of the Luthra family, went to the rear side of the flat, and the P.W. 3 Md. Azad @ Ayub scaled down the grill gate with the help of a ladder and landed on the terrace of the flat and then opened that grill gate, locked from inside with the keys lying and having entered the flat with many others they found Rovindar Kaur Luthra lying dead on the floor of her bedroom, with the marks of injuries on her face and forehead and more particularly on the neck and the almirah was lying open and the room was ransacked. When the accused Nikku Yadav was not found there.
(xi) Subsequently, it was found a sum of Rs. 3.5 lakhs which Mr. Luthra left in the almirah before he went to Vizag and some dollars kept there and the gold ornaments worn by deceased and her jewellaries kept in almirah were missing.
(xii) In the post mortem, the Autopsy Surgeon P.W. 40, Dr. Tapash Kumar Bose found several abrasions and bruises all over the body and a ligature marks on the neck of the deceased and according to him her death was caused due to manual strangulation and was homicidal in nature.
(xiii) The accused Nikku Yadav after his arrest accompanied the police party to the house of one Narendra Kumar Barlia situated at 17/1E, Alipore Road, Kolkata where one of his friend P.W. 17 Bablu Mondal was working as a domestic servant and led to discover a big shopper loaded with a locked leather bag from inside the servant quarter of the P.W. 17 Bablu Mondal containing the personal ornaments of the deceased and cash money. According to the witness Bablu Mondal the said bag was handed over to him in the early 11 morning of February 15, 2007 by the accused Nikku Yadav, who told him that he would take back the said bag within a they ought to but he was never told about its content.
(xiv) The P.W. 9 Ashit Mohan Luthra the husband of the deceased, identified the gold ornaments and jewellaries and the cash money and dollars which were recovered being led by the accused Nikku Yadav were that of her deceased wife.
(xv) The accused Nikku Yadav further accompanied the police party to the flat of the deceased situated at 59, Ballygunge Circular Road, Kolkata - 19 led to discover a dog belt (Mat. Ext. - XVI) from the corner of the roof garden of the flat which was wrapped with a plastic and concealed under a piece of rock.
(xvi) The Autopsy Surgeon, P.W. 40 opined that injury no. 29, i.e., the ligature on the neck of the deceased might have been caused by the Material Exhibit - XVI, the dog belt.
6. Heard the Learned Counsels appearing on behalf of the parties. Considered their rival submissions ad the case laws cited by them. Perused the deposition of the witnesses, the examination of the accused person under Section 313 of the Code of Criminal Procedure and other materials on record.
7. The case against the appellant/accused entirely rests of circumstantial evidence. It needs no debate that in order to base the conviction 12 of an accused on circumstantial evidence, the Court must be certain that the circumstances are of such character that the same are only consistent with the guilt of the accused and must be of conclusive nature and should exclude every hypothesis other than that of the guilt of the accused. The circumstances must show that within all reasonable probability the offence must have been committed by the accused and none else. The Court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. The law in this regard is well settled by the several authoritative pronouncements of the Apex Court and it would be sufficient to refer two case laws cited on behalf of the appellant, viz. Khashaba Maruti Shelke Vs. The State of Maharashtra (supra), Tanviben Pankajkumar Divetia Vs. State of Gujarat (supra) and a few others viz. (i) Sharad Bridhichand Sarda Vs. The State of Maharashtra, reported in (1984) 4 SCC 116, (ii) State of Rajasthan Vs. Raja Ram, reported in (2003) 8 SCC 180,
(iii) State of Haryana Vs. Jagbir Singh, reported in (2003) 11 SCC 261, (iv) Kusum Ankana Rao Vs. The State of A.P., reported in (2008) 13 SCC 257, (v) Manivel Vs. The State of T. N., reported in (2008) 12 SCC 748 and a very recent decision of the Supreme Court in the case of Yogesh Narain Saxena Vs. State of Uttaranchal, reported in (2010) 16 SCC 547, where such aspect has been highlighted.
8. This is a case where the post mortem was conducted by the P.W. 40 Dr. Tapash Kumar Bose. The said doctor found several bruises and abrasions including one ligature mark over front of neck and fracture of hyoid bone. The 13 doctor opined that the death was due to the combined effect of manual strangulation and ligature and anti mortem and homicidal in nature. The defence never disputed before us that Mrs. Luthra met a homicidal death nor before the Trial Court. The evidence of the Post Mortem doctor as to the cause of death and the nature of injuries was also not challenged by the defence.
9. Now, having regards to the trend of cross-examination of the prosecution witnesses by the defence and the answers given by the accused/appellant to the questions put to him during his examination under Section 313 Cr.P.C. on various incriminating circumstances which the prosecution relied against him, we find, the defence never controverted the correctness of the circumstances referred to in Paragraph 3 hereinabove, viz. those referred in Paragraphs 3 (i), 3 (ii), 3 (iii), 3 (iv), 3 (v), 3 (vi), 3 (vii), 3 (viii), 3
(ix), 3 (x) and 3 (xi). It was not disputed that at the flat of the Luthra family situated at the 7th floor of Tripura Enclave Apartment, 59, Ballygunge Circular Road, Kolkata - 700 019, where the deceased Rovindar Kaur Luthra and her husband P.W. 9 Ashit Mohan Luthra were residing, the accused/appellant Nikku Yadav was working as full time domestic servant for 6/7 years and used to reside at the servant quarter situated at the terrace attached to their flat and through the kitchen had direct and free access to the flat from his servant quarter. The accused Nikku Yadav also had a free access inside the flat as well as the free egress and ingress to the flat through the main door which was fitted with a night latch. The main door of the flat can be opened from inside by turning the knob of the latch but cannot be opened from outside without the key. On February 13, 14 2007, Mr. Luthra went to Vizag and in between the night and morning of February 14, 2007 and February 15, 2007 inside the flat only the deceased Mrs. Luthra and the accused were present. In the morning of February 15, 2007 at about 5-30 a.m. the milkman went to the flat but in spite of repeated ringing of bell, the door was not opened nor there was any response. Subsequently, the news paper vendor, the maid servant and a porter with vegetables went to the said flats one after another and they also did not received any response in spite of repeated knocking of door. Thereafter, the driver of the family Md. Azad @ Ayub came and many friends of the Luthra family reached there, when with the help of the security guard the roof door was opened and the said driver scaled down the grill gate with a ladder and landed on the terrace of the flat and opened the grill gate locked from the inside with the keys lying inside and entering the flat they found Mrs. Luthra was lying dead on the floor of the her bedroom with the marks of injuries over her face and neck. The almirah was lying opened and the room was ransacked. At that time the accused Nikku Yadav was not found there. It further appeared when the accused/appellant was examined under Section 313 of the Code and those circumstances were put to him he took a specific stand that on February 15, 2007 in the morning he went to the market and the story of murder by him was false.
That apart, amongst other it was also put to the accused that according to the P.W. 6 Hanif Mondal, the security supervisor of Tripura Enclave apartment, on February 15, 2007 at around 5-30 a.m., the milkman P.W. 5 Tapan Das went to the said flat and after sometime came down and reported to 15 him that in spite of repeated ringing of the door bell and knocking neither the door was opened nor anybody responded from the inside. After about half an hour at around 6 a.m. Hanif Mondal, P.W. 6 found the accused and one Krishna, a servant working in another flat were coming down from the lift and the accused had a big shopper, gunny bag in his hand containing something inside and his face was covered with a muffler and the witness noticed marks of injury on his face. In reply to that the accused stated "The aforesaid story is false. The supervisor used to check all loaded bags, if any, I had an empty bag." Therefore, from this answer of the accused/appellant that he had an empty bag in his hand, the evidence of the P.W. 6, the security supervisor that at about 6-30 a.m. on February 15, 2007 the accused/appellant was found coming down from the lift stands conceded and thus it can very safely be concluded without any shadow of doubt that the accused/appellant was inside the flat soon before such time and in between the night of February 14, 2007 and 6 a.m. in the morning of February 15, 2007 and during such period the accused/appellant and the deceased Mrs. Luthra were the only person inside the flat. We have very carefully scrutinized the evidence of both the witnesses viz. the P.W. 5 Tapan Das, the milkman and the P.W. 6 Hanif Mondal, the security supervisor and found not only they corroborated each other but in their lengthy cross-examination nothing could be brought out to shatter their credibility. We also do not find any reason to disbelieve the evidence of the P.W. 5 Tapan Das that on February 15, 2007, at about 5-30 a.m., much before the accused/appellant admittedly left the 16 apartment, he went to the flat of Luthra family to deliver milk packets and in spite of repeated ringing of bell and knocking of door received no response.
Before us, for the first time it was vehemently argued on behalf of the appellant, that while working in the flat and staying at the servant's quarter, although the accused/appellant had free access to everywhere inside the flat but not permitted to enter the bedroom of his master, even to peep inside, where Mrs. Luthra was found lying murdered and thus it was impossible for him to commit the crime. Even assuming, the appellant was not permitted to enter the bedroom of his master, nevertheless, that would not rule out his forced entry there and to commit the offence, taking advantage of absence of the only male member of the family, Mr. Luthra and her helpless condition. Furthermore, this was never the defence case during the trial and no suggestion to that effect was given to the inmates of the house the P.W. 9 Mr. Ashit Mohan Luthra or his son Kabir Luthra the P.W. 11 and to the maid servant P.W. 24 Radha Patra nor in the examination under Section 313 of the Code of Criminal Procedure the accused took such a plea. In our opinion this belated plea of the defence is not only without any foundation but also an after thought and merits no consideration.
Much have been argued before us against non-seizure of closed- circuit T.V. footage as well as video camera footage. We feel in this connection it would be very relevant to refer the evidence of security guard of the said apartment as well as the evidence of P.W. 9 Ashit Mohan Luthra. According to P.W. 6 Hanif Mondal the video cameras were fitted at the reception counter of 17 both the blocks of the said apartment, while the closed circuit T.Vs. were fitted inside each flat and all the flats were connected with the reception by intercom. According to the said witness whenever any outsider came to the reception counter and disclosed his intention to visit any particular flat, immediately the security guards used to contact the flat owner over intercom and in turn having seen the image of such visitor in the screen of the T.V. the flat owner used to intimate the reception whether such person be permitted to go to their flat or not. Such evidence of P.W. 6 was fully corroborated by the P.W. 9 Ashit Mohan Luthra. It is an admitted position in this case that in the flat in question the closed-circuit T.V. was fitted in the kitchen. Therefore, when the camera was installed at the reception counter and not inside the flat there was no scope for recording and then reproducing what was happened inside the flat at any particular time, from the video footage or from the footage of closed circuit T.V. Thus, the non-seizure of video camera footage or the closed circuit T.V footage is not at all fatal to the prosecution case.
In a case where an incident of murder took place inside a flat and when the prosecution has been able to establish satisfactorily that the accused and the deceased were the only persons, were inside, at or about the time of occurrence then in that case, the accused being the only person having special knowledge as to how such incident happened, under Section 106 of the Evidence Act, the onus is on him to explain the occurrence. In this case at hand, we have found, having regards to the evidence on record, the prosecution has been able to satisfactorily establish, on or about the time when Mrs. Luthra was murdered, 18 inside the flat, except the deceased the only other person who was inside, was the accused/appellant thus his failure to explain the occurrence is an extremely relevant circumstances pointing the involvement of the accused/appellant in the commission of the offence.
10. The next circumstance against the accused/appellant strongly relied upon by the prosecution was the evidence of the P.W. 6, Hanif Mondal, who found him and one Krishna Mondal, a servant of one Om Prakash Agarwal another flat owner on February 15, 2007 at about 6 a.m. coming out from the lift with a loaded big shopper, a gunny bag in his hand and his face was partly covered with a muffler, having marks of injuries on his face. On behalf of the appellant the prosecution case was strongly criticized for non-examination of said Krishna, who was found along with the accused/appellant Nikku Yadav on February 15, 2007 coming down from the lift. It was submitted at the time the Nikku was carrying an empty bag and not any loaded bag as alleged by P.W. 6 Hanif Mondal. According to the learned advocate of the appellant this is a serious infirmity in the prosecution case. We have given our anxious consideration to such submissions made on behalf of the appellant. According to the provisions of Section 134 of the Evidence Act, no particular number of witnesses shall in any case be required for the proof of any fact. This Section has enshrined the well-recognized maxim that "evidence has to be weighed and not counted". The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. In this case we have already very carefully scrutinized the entire evidence of the P.W. 6 Hanif Mondal. 19 We do not find any reason to disbelieve the said witness. As already observed the said witness P.W. 6, Hanif Mondal was cross-examined at length but except suggesting him that his evidence that the accused was carrying a loaded bag was false nothing has been elicited from him to create any doubt as to his credibility. As a general rule a court can always act on the testimony of a single witness though uncorroborated, if such testimony is found to be reliable. Another important aspect of this case cannot be overlooked if according to the accused/appellant, the said Krishna Mondal was a very vital and material witness to prove his innocence nothing prevented him from making a proper application to the trial Court for his examination as a defence witness. Thus, the submission of the learned counsel of the appellant cannot prevail.
It is also pertinent to note the accused/appellant in his examination under Section 313 of the Code took a specific plea whenever any person used to come out from the said apartment with any loaded bag or any other article, the security guards used to search such bag and since the accused/appellant was carrying an empty bag he was allowed to go by the P.W. 6, but the very fact that the accused/appellant was found by the P.W. 6 at that time was not disputed. During the cross-examination of the P.W. 6 Hanif Mondal or the P.W. 8 Dipak Das, the security guards of the apartment or the P.W. 15, Swapan Pal, caretaker nothing to that effect was suggested to them nor to the milkman P.W. 5, newspaper vendor P.W. 4, dog trainer P.W. 7, the maid servant P.W. 24 and the driver P.W. 3 who were the regular visitor to the said apartment. In our considered opinion the prosecution has aptly succeeded to prove the said 20 circumstance against the accused/appellant and the plea of the accused/appellant cannot be sustained.
11. The next circumstance highlighted by the prosecution against the accused/appellant were the recovery of the stolen articles and the dog belt allegedly used by the accused/appellant to commit the crime. According to the prosecution case after the arrest of accused/appellant Nikku Yadav on the self- same day on being interrogated by Sub-Inspector Bireswar Chatterjee the P.W. 50, who partly investigated the case the accused/appellant gave information disclosing the person and place where he kept concealed the robbed jewellaries and money. Such statement of the accused, containing his signature during trial was marked as Exhibit - 56. Thereafter, following such statement the accused led the police party to Flat No. 4C, Anant Apartment, 17/1E Alipore Road, Kolkata - 700 027. After arriving at that place police party met Narendra Kumar Barlia, P.W. 21 the owner of the flat when his driver Nawal Kishor Yadava, P.W. 18 was also present there. Then the police party being accompanied by the accused/appellant, P.W. 21 and P.W. 18 had been to the servant quarter of P.W. 17 Bablu Mondal and the door was found bolted from inside. On being knocked by the police party, the P.W. 17 Bablu Mondal the servant of P.W. 21 Narendra Kumar Barlia and one of the friend of accused Nikku Yadav, opened the door. When the accused asked him to bring the big shopper, the gunny bag which he handed over to him in the morning and on being so asked the P.W. 17 Bablu Mondal brought out the said gunny bag and handed over the same to the accused/appellant, who in turn gave it to the investigating officer of the case. 21 The said gunny bag was found loaded with a black colour leather bag which was locked and as the key was not available the chain of the bag was torn and from there the stolen jewellaries of the deceased Mrs. Luthra and a huge Indian currencies and some dollars were found. The police party seized the said articles under a proper seizure list which was duly signed by the seizure witnesses viz. P.W. 21 Narendra Kumar Barlia, P.W. 17 Bablu Mondal and P.W. 18 Nawal Kishor Yadav as well as by the accused Nikku Yadav. During the trial the relevant portion of the statement of the accused Nikku Yadav which led to the discovery of the stolen articles was marked as Ext. - 56, containing the signature of the accused/appellant. Similarly, the seizure list of those stolen articles was marked as Exhibit - 15, the said seizure list was duly proved by the seizure witnesses viz. P.W. 17, P.W. 18 and P.W. 21. The P.W. 9 Ashit Mohan Luthra identified those jewellaries as that of his deceased wife as well as the stolen money and the same were exhibited and marked as Mat. Ext. - XIX and Mat. Ext.
- XX. The seizure witnesses P.W. 17, P.W. 18 and P.W. 21 were cross-examined at length, but from such cross-examinations nothing divulged which may casts doubt as to the authenticity of such recovery and seizure. In fact except suggesting that recovery of those articles at the instance of the accused/appellant was not true there was no cross-examination of the said witnesses on this aspect. Although, it was suggested to the P.W. 50 Sub- Inspector Bireswar Chatterjee, the first Investigating Officer of the case that at the night of February 15, 2007 the police never visited the flat of Narendra Kumar Barlia, P.W. 21 led by the accused/appellant Nikku Yadav and he 22 obtained the signature of the witnesses, viz., the P.W. 17, the P.W. 18 and the P.W. 21 in the seizure list at Lalbazar and forcibly obtained the signature of the accused/appellant on the same. At the same time it was suggested to the P.W. 17 that the gunny bag was in open condition and the leather bag was not under lock and key and to the P.W. 18 that leather bag was not under lock and key and chain was not broken by the police and when seizure list was prepared the Nikku was inside the police van, this suggestion to the said witnesses runs counter to the defence case that actually nothing was recovered from the flat of Narendra Kumar Barlia, the P.W. 21 on being led by the accused/appellant Nikku Yadav. Both the P.W. 17 and the P.W. 18 flatly denied the suggestion that no such recovery was made by the police and they singed on the seizure list at the police station and at the instance of the police. So far as Narendra Kumar Barlia, the P.W. 21 is concerned it was only suggested that no article was recovered in his presence and he put his signature on the seizure list at the police station, which he also categorically denied. Besides above, nothing could be elicited from the cross-examination of the said witnesses to suspect their evidence and that being so we are not inclined to disbelieve the factum of recovery of the robbed articles on being led by the accused/appellant.
In this connection it was strenuously contended on behalf of the appellant the incriminating article namely the stolen jewellaries seized under Ext.
- 15 is not at all relevant under the provision of Section 27 of the Evidence Act inasmuch as the same were handed over to the investigating officer by the P.W. 17 Bablu Mondal. In our opinion, such submissions of the learned counsel of 23 the appellant is without any force. In the case of Prasad Ramakant Khade Vs. State of Maharashtra, reported in AIR 2000 SC 138, before a three Judges Bench of the Hon'ble Supreme Court a similar stand was taken on behalf of the appellant and such contention was dispelled by the Apex Court with the following observations made in paragraph 11 of the said decision, "It was then contended that the incriminating articles seized memo (Ex. - 10-A) were handed over to the investigating officer by Pravin Gawand and, therefore, it could not be said that the said seizure was at the instance of the appellant. This submission has again no substance because it is the appellant who pursuant to his confessional statement (Ex. 10) led the investigating party and the panch witnesses pointing out the place where he had kept the incriminating articles. It was the appellant who asked Pravin Gawand when he opened the door, to hand over the incriminating articles to the investigating officer. In view of this positive evidence on record, it would be a futile attempt on the part of the learned Advocate for the appellant to contend that the weapon and other articles were not seized at his instance."
In this connection the learned counsel of the appellant relied on a decision of a two judges bench of the Hon'ble Supreme Court in the case of B. L. Satish Vs. State of Karnataka, reported in 2001 (3) Crimes 182 (SC). In the said case the Hon'ble Apex Court held the only circumstances pitted by prosecution against accused was that the stolen articles were recovered pursuant to a statement made by the accused and according to the Apex Court single circumstance of such recovery was hardly sufficient for criminal court to reach conclusion that the appellant committed the murder. But in the case of Prasad Ramakant Khade Vs. State of Maharashtra (supra), a three judges bench of the Hon'ble Supreme Court upheld the conviction of the accused under the TADA (P) 24 Act, 1987 solely on the basis of recovery of the offending weapon. However, this is not a case where the prosecution relied on a single circumstance of recovery of stolen articles to sustain the guilt of the accused. There are quite a few other incriminating circumstances on which prosecution rested to prove the guilt of the accused/appellant.
12. Next circumstance pitted against the accused/appellant by the prosecution is the recovery of the dog belt from the flat of the deceased on being led by him. According to the prosecution case, the accused/appellant on being closely interrogated by the Investigating Officer the P.W. 54 he made a disclosure statement that the dog belt which was used in the commission of the offence was kept in a plastic packet and concealed under a rock at the roof garden of the flat and he would be able to bring out the same if he was taken there. After making such statement (Ext. - 60) before the P.W. 54, the Investigating Officer of the case, the accused/appellant led the police party to the aforesaid place when the accused/appellant in presence of Ashit Mohan Luthra, the P.W. 9, Nagendra Chowdhury, P.W. 27 and one Surendra Prasad Gupta brought out one polythene packet containing one red colour dog belt concealed under a piece of rock at the South-East corner of the roof garden of the flat. When the said dog belt was seized by the police under a seizure list (Ext. - 4). The said seizure list was signed by the seizure witnesses as well as the accused/appellant. It is true during the trial the prosecution has not examined Surendra Prasad Gupta, but examined the other two seizure witnesses. We have carefully scrutinized the evidence the said two witnesses but do not find that the defence has been able to 25 impeach their credit as regards to such recovery of the dog belt. The said dog belt was thereafter sent to the P.W. 40 Dr. Tapash Kumar Bose for his opinion whether such belt could be used for causing death of the deceased by strangulation. The opinion of the said doctor has been marked (Ext. - 47/1). In the report the said doctor opined that injury no. 29 that is the ligature injury on the neck of the deceased was not inconsistent with the injury that might have been produced by the forceful application of the said dog belt (Mat. Ext. - XVI). The P.W. 40 Dr. Tapash Kumar Bose during his examination in court further stated as follows;
"Injury no. 29 was noted in the P.M. report is consistent with the injuries that might have been produced by the exhibit given to me by Mat. Ext. XVI)."
We are of the clear opinion, the recovery of the stolen articles as well as the dog belt pursuant to the statement of the accused/appellant and on being led by him is clearly admissible in evidence under Section 27 of the Evidence Act and is an another very strong relevant circumstance pointing his involvement in the commission of the crime. We do not find any lapse of time between the date of arrest of the accused/appellant and the recovery of the stolen articles. The statement of the accused which led to the discovery of such articles must follow the accused/appellant having the control over those stolen articles and the dog belt and none else.
13. The Learned Counsel of the appellant vehemently urged before us that no T.I. Parade of the stolen articles were held during investigation. In the 26 case at hand, the P.W. 9 Ashit Mohan Luthra identified the seized ornaments and jewellaries as that of his deceased wife and such evidence of P.W. 9 was never challenged by the defence during the trial. The seized ornaments were regularly used by the deceased and as such when the same were identified by her husband we have no reason to doubt such identification. In the case of Earabhadrappa @ Krishnappa Vs. State of Karnataka, reported in (1983) 2 SCC 330 at paragraph 12 the Apex Court held as follows;
"...There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement."
The contention carries no force and, therefore, has to be rejected.
14. It may not out of place to note that the nail cuttings of the accused was sent to the forensic expert and according to the report of the Senior Scientific Officer, Biology, Forensic Science Laboratory, Government of West Bengal the same contained blood, it was found such nail cuttings contained human blood might be that blood group was not determined (Ext. - 61). In this case the accused was physically examined by the P.W. 40 T. K. Bose and the said injury report was marked as Ext. - 48. From perusal of Ext. - 48, we find according to the said doctor the injuries were of recent origin and might have been produced by blunt trauma and nails scratch and possible during scuffling. According to the doctor one of the injury found being the injury no. 6 in the person of the accused/appellant might have been caused by fist having ring in a finger. Except suggesting to the witness that Ext. - 47/1 was manufactured at the instant of 27 the Investigating Officer and not genuine the same could not have been otherwise shown to be baseless.
15. In this case the accused Nikku Yadav had not offered any explanation as to how the occurrence took place inside the flat, when the prosecution has satisfactorily established from the night of February 14, 2007 till 6 a.m. in the morning of February 15, 2007, the appellant/accused and the deceased were the only person inside the flat. The accused/appellant came out with a plea of alibi that in the morning he went to the market and did not know anything about the incident. So far as his plea that he went to the market as usual stand falsified from the cross-examination of the P.W. 3 Md. Azad @ Ayub the full time driver of the Luthra family. The said witness in his cross- examination by the defence disclosed that he never saw the accused/appellant to go for marketing and categorically denied that his job was mainly outside work and marketing. In addition to that we find the prosecution examined one Madan Maity as P.W. 31, who happened to be a vegetable vendor having his shop at Jadu Babur Bazar and according to the said witness deceased Mrs. Luthra, during her lifetime used to personally come to the market for marketing and sometime also used to place orders over phone. On February 14, 2007 at about 8/8-30 p.m. she placed an order for supply of vegetables on the next morning and pursuant to such order on the next day vegetables were sent to her flat through the P.W. 37 Haru Khamaru. Thus, there is no question of the accused/appellant to go to the market in the early morning when order for supply of vegetables has already been placed. Although, the accused/appellant 28 claimed that he went to the market but it was never disclosed by the defence as to what he was supposed to market. Moreover, accused has taken a plea that on his way to market he was knocked by a four wheeler and lost his sense, but no material was forthcoming to show that actually he met with such a serious road accident. In our opinion, such plea of the accused is completely false. It is true the falsity of the defence cannot take place the proof of facts in a trial of a criminal case and the prosecution has to establish its case in order to succeed. However, a false plea may be considered as an additional circumstances pointing towards the guilt of the accused, if the other circumstances proved and established by the prosecution point out the guilt of the accused. In this connection it would be most worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Tanviben Pankajkumar Divetia Vs. State of Gujarat (supra) followed by the decision of a three judges bench of the Hon'ble Supreme Court in the case of Shankarlal Gyarasilal Dixit Vs. State of Maharahtra, reported in (1981) 2 SCC 35.
The only other case law relied upon by the defence, viz., State of Punjab Vs. Sarup Singh, reported in 1998 SCC (Cri) 711 to argue that no reliance can be placed on a recovery evidence unless such recovery is made in presence of independent witnesses. However, in the case at hand recovery of both the stolen articles and the dog belt being made in presence of independent witnesses the ratio of such decision would be of no help to the defence. 29
16. Now, having examined in depth the circumstances relied on by the prosecution against the appellant and assessing the cumulative effect of such circumstances we are of the opinion the charge against the accused/appellant has been proved beyond all shadow of doubt and the same are of such nature that negate the innocence of the accused, therefore, in our opinion the accused/appellant has been very rightly convicted by the Trial Court and the same needs no interference. in this case every link in the chain of circumstances has been proved beyond any reasonable doubt and chain is complete pointing towards the guilt of the accused in the commission of the offence for which he has been charged in the trial.
17. This is a case where the Trial Court found the accused/appellant guilty for committing murder of Mrs. Luthra by intentionally causing her death by strangulation and for committing robbery in respect of her ornaments and money and convicted him under Section 302 of the Indian Penal Code and under Section 394 of the Indian Penal Code and sentenced him to death. We have already found that the accused/appellant has been very rightly convicted by the Trial Court for the aforesaid offences and have accordingly uphold his conviction, nevertheless, we are still posing the question as to whether the sentence of death be maintained or not. In this connection it may be noted at the very outset the Learned Public Prosecutor submitted before us, the facts and circumstances of the case does not warrant imposition of sentence of death. 30
Be that as it may, still we are to decide independently whether it is a fit case, which warrants death sentence or not. In the case of Bachan Singh Vs. State of Punjab, reported in (1980) 2 SCC 580, the Apex Court while upholding the constitutional validity of death sentence, indicated guidelines to be followed in a case where the question of imposing death sentence arises. Subsequently in the case of Machhi Singh & Ors. Vs. State of Punjab, reported in (1983) 3 SCC 470 in paragraph 38 the Apex Court culled out the propositions which emerged from Bachan Singh Vs. State of Punjab (supra) and held as follows;
"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception.
In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
31In the very next paragraph the Apex Court further held in order to apply this guidelines inter alia the following questions may be asked and answered;
"(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?"
This is a case where Mrs. Luthra was strangulated to death by the accused/appellant Nikku Yadav, who was working with her family as a domestic servant for 6/7 years, by betraying the trust reposed on him by Luthra family. The accused/appellant taking advantage of the absence of his master P.W. 9 Ashit Mohan Luthra, who was the only other member of the family and was out of station at that time committed the offence. This was a pre-planned, cold- blooded murder for greed of the gold ornaments on her person and those other jewellaries and gold ornaments and huge amount of money which were lying in the almirah kept in her bedroom, the almirah as well as the bedroom was ransacked. We have no doubt that the nature of crime is extremely heinous.
At the same time, we have come across with the decision of the Hon'ble Supreme Court in the case of Earabhabrappa @ Krishnappa Vs. State of Karnataka (supra) referred by the State. We find that the facts and 32 circumstances in which the offence was committed by the accused in that case is quite similar to that of the present case, however, the Hon'ble Apex Court commuted the sentence of death into one for imprisonment for life.
"Finally, there remains the question of sentence. It was cruel hand of destiny that the deceased Smt. Bachamma met a violent end by being strangulated to death by the appellant who betrayed the trust of his master PW 3 and committed her pre-planned cold-blooded murder for greed in achieving his object of committing robbery of the gold ornaments on her person and in ransacking the iron safe and the almirah kept in her bedroom on the fateful night. The appellant was guilty of a heinous crime and deserves the extreme penalty. But we are bound by the rule laid down in Bachan Singh V. State of Punjab where the Court moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the 'rarest of the rare' cases. The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks the judicial conscience. A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society - particularly in cases of murders committed with extreme brutality - will bring to naught the sentence of death provided by Section 302 of the Indian Penal Code. The test laid down in Bachan Singh case, is unfortunately not fulfilled in the instant case. Left with no other alternative, we are constrained to commute the sentence of death passed on the appellant into one for imprisonment for life."
Accordingly, while affirming the Judgement and order of conviction passed against the accused/appellant by the Trial Court, we commute the sentence of death imposed on him to imprisonment for life. The death reference is thus rejected. The appeal is disposed of accordingly.
33
Let the Lower Court Records be sent down to the Court below forthwith.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
I agree
(J. N. Patel, C.J.) (Ashim Kumar Roy, J.)