Punjab-Haryana High Court
Sumit Chopra And Another vs The State Of Punjab ...Resondent on 17 February, 2012
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
Crl. Appeal No.399-DB of 2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) Crl. Appeal No.399-DB of 2005 (O&M)
Date of Decision: 17th February, 2012
Sumit Chopra and another ...Appellants
Versus
The State of Punjab ...Resondent
(2) Crl. Appeal No.411-DB of 2005
Nitin Kataria ...Appellant
Versus
The State of Punjab ...Respondent
(3) Criminal Revision No.1207 of 2006
Ashok Kumar Chopra ...Petitioner
Versus
The State of Punjab and others. ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI.
Present: Mr. R.S.Cheema, Senior Advocate with
Mr. Arshdeep S. Cheema, Advocate
for the appellants in Crl. Appeal No.399-DB of 2005.
Mr. Arun Takhi, Advocate
for the appellant in Crl. Appeal No.411-DB of 2005
Mr. H.S.Gill, Senior Advocate with
Mr. R.K.Dhiman, Advocate
for the revisionist.
Mr. P.S.Dhaliwal, Additional Advocate General, Punjab
for the State.
Crl. Appeal No.399-DB of 2005 -2-
RAJIVE BHALLA, J.
Criminal Appeal No.399-DB of 2005 has been filed by Sumit Chopra and Vikramjit Singh, whereas Criminal Appeal No.411-DB of 2005 has been filed by Nitin Kataria.
The appellants impugn judgment dated 12.04.2005, passed by the Sessions Judge, Jalandhar, convicting them under Section 302 read with Section 34 of the Indian Penal Code for the murders of Bimla Devi and Bholi, under Section 392 of the Indian Penal Code for robbery and under Section 394 of the Indian Penal Code for causing injuries to Bimla Devi and Bholi, while committing robbery. The appellants have also been convicted under Section 201 of the Indian Penal Code.
The appellants also impugn order dated 19.04.2005, passed by the Sessions Judge, Jalandhar, sentencing them to undergo imprisonment for rest of their lives without commutation of sentence or pre-mature release, under Section 401 of the Indian Penal Code, and to pay a fine of Rs.5000/- each and in default of payment of fine to further undergo R.I. for a period of one year under Section 302 read with Section 34 of the Indian Penal Code, and a sentence of 7(seven) years rigorous imprisonment with a fine of Rs.2000/- each and in default of payment of fine to further undergo R.I. for a period of 4 (four) months under Section 392 of the Indian Penal Code. The sentence of rigorous imprisonment for a period of 10(ten) years and a fine of Rs.5000/- each and in Crl. Appeal No.399-DB of 2005 -3- default of payment of fine to further undergo R.I. for a period of one year each under Section 394 of the Indian Penal Code. The sentence of rigorous imprisonment of 5 (five) years and a fine of Rs.1000/- each and in default of payment of fine to further under R.I for a period of 2 (two) months under Section 201 of the Indian Penal Code. It has also been ordered that the sentences shall not run concurrently but shall be conjective and shall run one after the other and the appellants shall remain in jail for the rest of their lives.
The prosecution case, briefly put, is that on 10.08.2011, Sabina @ Manna (PW5) returned from school at about 2.00 PM, and after leaving her books, proceeded to her maternal grandmother's house. As she approached near her maternal grandmother's house, she saw Sumit Chopra, a relative, Nitin Kataria, a neighbour and Vikramjit Singh @ Vicky, a student of her school, rushing out of her maternal grand mother's house, boarding a Vespa scooter bearing registration No.PB-08P-9471 and speeding away. She also noticed that their clothes were blood stained and Sumit Chopra was not wearing a shirt. She entered the house and saw the dead bodies of her maternal grand mother Smt. Bimla Devi and the maid servant, lying in the lobby. She came out of the house and met Kamaljit, son of Bholi, who was standing outside. She immediately telephoned, her maternal uncle Ashok Kumar Chopra, PW6, son of Smt. Bimla Crl. Appeal No.399-DB of 2005 -4- Devi, the deceased, who resides with her grandmother, and informed him that Smt. Bimla Devi, aged about 70 years and, her maid servant, Smt. Bholi, have been murdered. PW6-Ashok Kumar Chopra, accompanied by his servant, Parmodh Kumar, rushed to his house. He entered the house and was confronted with two blood smeared dead bodies one of his mother and the other of her maid servant, lying in the lobby. Ashok Kumar Chopra, immediately informed the police control room, on telephone. Inspector Daljinder Singh Dhillon, SHO, Police Station Division No.6, Jalandhar, arrived with a police party, recorded the statement of Ashok Kumar Chopra, Ex.PG, made an endorsement Ex.PG/1 and forwarded it to Police Station Division No.6, Jalandhar, through Constable Devinder Kumar, No.2384 at 4.30 PM where formal FIR No.193, dated 10.08.2001 was recorded at 4.45/5.20 PM. A special report was forwarded to the Judicial Magistrate Ist Class, Jalandhar which was received at 5.30 PM on 10.08.2001.
As per his statement, Ex.PG, Ashok Kumar Chopra, saw the dead bodies lying in the lobby. A gold bangle and one gold ear ring were missing from the arm and ear of his mother. A photographer, finger print experts and a dog squad were summoned to the place of occurrence. The spot was inspected, a rough site plan Ex.PR was prepared and two separate inquest reports, Ex.PC and Ex.PF, relating to Smt. Bimla Devi and Smt. Crl. Appeal No.399-DB of 2005 -5- Bholi, respectively, were prepared. Injury reports/memos Ex.PS and Ex.PS/1 recording injuries on the dead bodies of Bimla Devi and Bholi, respectively, were also prepared. Applications Ex.PA and Ex.PD for conducting post mortem, on the bodies of Bimla Devi and Bholi, were drafted and both dead bodies were handed over to Constable Som Parkash and SPO Chanchal Singh. The Investigating Officer retrieved a blood stained blade cutter and blood soaked earth, vide memos Ex.PS and Ex.PT, respectively. Blood from the site was taken into possession vide memo Ex.PU. A blood stained piece of blade was taken into possession vide memo Ex.PU/I. A blood stained vest was taken into possession vide memo Ex.PU/2. A broken bone china cup was taken into possession vide memo Ex.PU/3. A mirror and a tumbler, which appeared to have blood stained finger prints were taken into possession by memo Ex.PU/4.
Sabina @ Manna, PW5, who discovered the dead bodies, made a statement, to Inspector Daljinder Singh Dhillon, PW15, at about 5.00 PM on the same day i.e. 10.08.2001 that Smt. Bimla Devi, deceased, is her maternal grand mother. On 10.08.2001, she returned from college and after leaving her books at her house, proceeded towards the house of her maternal grand mother. At a distance of about 10-15 yards, from her maternal grand mother's house, she saw Sumit Chopra, a relative, Nitin Kataria, a neighbour and Vikramjit Singh @ Vicky, a student in her Crl. Appeal No.399-DB of 2005 -6- college, coming out of her maternal grand mother's house, boarding a Vespa scooter bearing registration No.PB-08P-9471 and speeding away. She has also noticed that their clothes were blood stained and Sumit Chopra was not wearing a shirt. She entered the house and saw the dead bodies of her maternal grand mother and the maid servant Bholi, lying in the lobby. She came out of the house and met her uncle, Kamaljit, son of Bholi, standing outside. She immediately telephoned her maternal uncle about the murders. The police recorded the statements of Ashok Kumar Chopra, Om Parkash, Balbir Sanan and other witnesses on 11.08.2001 and deposited the case property with MHC Police Station, Division No.6, Jalandhar. The post mortem examination of the dead bodies was conducted at Civil Hospital, Jalandhar, on 11.08.2001.
On 12.08.2001, Balbir Sanan, PW7 (son-in-law of the deceased) made a statement before Inspector Daljinder Singh Dhillon, that on 12.08.2001, Nitin Kataria, his neighbour, accompanied by his mother, Sumit Chopra and Vikramjit Singh @ Vicky had come to his house. Nitin Kataria confessed before him about the crime and stated that he along with Sumit Chopra and Vikramjit Singh @ Vicky entered the house of Bimla Devi, to commit robbery but as they faced resistance from Bholi, they killed the ladies. While leaving the house, Sabina @ Manna had seen them. The appellants made a request that the matter be Crl. Appeal No.399-DB of 2005 -7- settled. Balbir Sanan stated that he told them as dead bodies have not been so far cremated, circumstances are not favourable and they should meet him later.
Sumit Chopra and Vikramjit Singh @ Vicky were arrested on 13.08.2001, by Inspector Daljinder Singh Dhillon, from the house of Vikramjit Singh. Nitin Kataria, the appellant, was arrested by Daljinder Singh Dhillon from a park behind New Jawahar Nagar Market, Jalandhar. The parcels, containing the the sealed tumbler and the mirror, were sent to the Finger Print Bureau, Phillaur on 13.08.2001 through Constable Lachhman Singh, who returned with the articles, as the office of Forensic Print Bureau had shut for the day. The articles were deposited at the Finger Print Bureau on 14.08.2001. The appellants were produced before the Illaqa Magistrate on 14.08.2001. The police filed an application Ex.PX/4 on 14.08.2001 for obtaining their finger prints. The Judicial Magistrate Ist Class, Jalandhar, recorded the statements of Sumit Chopra, Vikramjit Singh @ Vicky and Nitin Kataria, Ex.PX/1, PX/2 and Ex.PX/3 respectively, that they have no objection, if their finger prints are taken. The Judicial Magistrate Ist Class, Jalandhar, passed an order Ex.PX, allowing the prosecution to take finger prints of the appellants. The Finger prints Ex.PQ/1 to PQ/12 were taken and sent for analysis and comparison to the Finger Print Bureau, Phillaur.
On 16.08.2001, Sumit Chopra made a disclosure statement Crl. Appeal No.399-DB of 2005 -8- Ex.PBB that they had burnt his blood stained shirt and the blood stained shirt worn by Vikramjit Singh but can get the ashes recovered. Nitin Kataria also made a disclosure statement Ex. PCC that he had taken of his blood stained shirt in the house of Vicky Marwaha and put on a shirt belonging to Vicky Marwaha. The blood stained shirt was burnt. He could get the ashes recovered.
Vikramjit Singh, suffered a similar disclosure statement Ex.PDD but added that they had sprinkled petrol on two helmets, burnt the articles and can get the ashes recovered. The appellants thereafter led the police party and got recovered ashes of helmets and shirts. Vide recovery memo Ex.PEE, the police took into possession the ashes and two buckles.
Sumit Chopra made a disclosure statement Ex.PS, on 18.08.2001 about concealment of ear rings, Koka (nose pin), removed after the murder of Bholi Devi, one light green half sleeve shirt, one tape recorder (Videocon) and Vespa scooter No.PB-08-P- 9479, which was used in the occurrence. Pursuant to the disclosure statement, Sumit Chopra got recovered a shirt, one blade cutter (front portion of which is broken), a half sleeve light green shirt lifted from the bed room, ear rings, koka (nose pin), allegedly belonging to Bholi Devi, a tape recorder (Videocon), one Vespa Scooter No. PB-08-P-9479. The recovery memo Ex. PS/1 records that the blade cutter was not blood stained. The disclosure statement Ex.PS was signed by Sumit Chopra and the witnesses. On the same day, Vikramjit Singh @ Vicky Crl. Appeal No.399-DB of 2005 -9- another accused suffered a disclosure statement Ex.PT that he had concealed a dagger after washing it with water and a gold karra in a wooden cupboard in his bed room. Nitin Kataria made a disclosure statement that he had concealed a "khukhri" and gold tops after wrapping them in a glazed envelope, tied it with a green string in a bag in a cupboard in his room. The articles were taken into possession from the place pointed out by Vikramjit Singh @ Vicky, vide memo, Ex.PU. Sumit Chopra, led the policy party and got recovered articles viz. ear rings Ex.P14 and Ex.P15, a gold nose pin Ex.P16, a shirt Ex.P17, a tape recorder Ex.P18 and scooter Ex.P19. The recovered articles were placed in a sealed parcel with seal bearing impression DS. The articles were taken into possession vide recovery memo Ex.PS/1. A rough sketch of blade (cutter) Ex.PS/2 was prepared. The accused Vikramjit Singh @ Vicky led the policy party and got recovered a dagger Ex.P19/A, gold kara Ex.P10, which were taken into possession, vide memo Ex.PT/1, placed in a parcel and sealed with a seal bearing impression 'DS'. A rough sketch of the dagger, Ex.PT/2, was prepared with respect to dragon knife, a rough site plan of place of recovery Ex.PGG was also prepared. Nitin Kataria led the policy party to the recovery of a black bag Ex.P20, containing a knife, Ex.P21, tops of gold Ex.P11 and P12 and nylon rope Ex.P22. The 'tops' were placed in a parcel and sealed with a seal bearing impression 'DS'. The sketch of the knife Ex.PU/2 was Crl. Appeal No.399-DB of 2005 -10- prepared at the spot and these articles were taken into possession vide memo Ex.P4/1. The rough site plan Ex.PHH depicting the place of recovery was also prepared.
Nitin Kataria led the police party to a place near DAV College where the shoes were thrown in the canal. Photographs of the place near the DAV College were taken and the memo Ex.PV was prepared. Ashok Kumar Chopra, PW6, identified the shirt recovered from Sumit Chopra, accused and memo Ex.PJJ was prepared.
Amit Chopra, an accused, (acquitted by trial court), was arrested on 21.08.2001. Amit Chopra made a disclosure statement Ex.PKK that he had thrown the blood stained shoes, which were handed over to him by Sumit Chopra into a canal near DAV College. Amit Chopra led the police party to the exact spot where memo Ex.PKK/1 was prepared.
Upon receipt of a report from the Chemical Examiner Ex.PNN and report of the finger print expert Ex.PQQ and on completion of investigation, final report under Section 173 Cr.P.C. was prepared and filed before the Illaqa Magistrate. Copies of the report and documents were supplied to all the accused and the matter was eventually committed to the Court of Sessions, vide order dated 20.11.2001.
The Sessions Judge, Jalandhar, framed charges under Sections 302/ 397/ 382/ 210/ 34 of the Indian Penal Code, vide Crl. Appeal No.399-DB of 2005 -11- order dated 04.01.2002 and as the appellants pleaded not guilty, the prosecution was asked to lead its evidence. After prosecution concluded its evidence, the Sessions Judge, Jalandhar, vide order dated 09.12.2003, held that as charges relating to both murders have been framed under one head, it would be necessary to frame separate charges. The charges framed were, accordingly amended.
After amendment of charges, the Additional Public Prosecutor made a statement that he does not wish to examine any witness but the defence prayed that Dr. Naresh Kumar, PW1, Sabina Sanan, PW5, Ashok Kumar Chopra, PW6 and Balbir Sanand, PW7 be re-called for cross-examination. An order was passed re-calling these witnesses and the defence was allowed to cross-examine them once again.
After considering the evidence produced by the prosecution and the defence, statements made by the appellants under Section 313 of the Code of Criminal Procedure and arguments addressed by both sides, the Sessions Judge, Jalandhar, held the appellants guilty, for the murders of Bimla Devi and Bholi, of robbery, inflicting injuries while committing robbery and destruction of evidence. Amit Chopra, was, however, acquitted. The appellants were convicted and sentenced in the manner referred to in detail in the opening paragraph of the judgment.
Mr. R.S.Cheema, Senior Advocate, counsel for the appellants Crl. Appeal No.399-DB of 2005 -12- has taken us, through the oral and documentary evidence with painstaking care and as his first argument urges that as the case against the appellants is based upon circumstantial evidence, the prosecution is required to establish each link in the chain of the circumstances by clear, cogent, and reliable evidence. Failure of the prosecution to prove any link would require rejection of the prosecution case. The evidence adduced against the appellants, falls into the four major categories:-
(a) the identity of the assailants;
(b) the motive;
(c) the extra-judicial confessions;
(d) the disclosures and the recoveries on their basis; and
(e) the report of the finger print expert.
Counsel for the appellants contends that the evidence adduced by the prosecution discloses a degree of manipulation so brazen and blatant as to destroy its credibility. The evidence is replete with contradictions, antedating of documents, introduction of false witnesses, failure to explain material errors and an attempt to foist a false case upon the appellants. The prosecution has in its enthusiasm to complete the chain of circumstances, set up a motive of a robbery of Rs.11 lacs, from the house of the deceased. The prosecution has failed to establish, by way of any evidence, much less credible evidence that any such amount was lying in Crl. Appeal No.399-DB of 2005 -13- the house of the deceased or that any of the appellants had knowledge that such an amount was lying in the house. Ashok Kumar Chopra, PW6, son of the deceased, who resided with the deceased, has not deposed that any such amount was lying in the house. The alleged motive is derived from the disclosure statements, forcibly extracted from the appellants, which are even otherwise inadmissible to prove motive and the statement of Balbir Sanan, PW7. The absence of any other evidence as to the motive, in essence, breaks the chain of circumstances and entitles the appellants to acquittal.
As regards the evidence, by which the identity of the perpetrators of this crime, is sought to be established, counsel for the appellants submits that this evidence is based upon the statement of Sabina Sanan @ Manna, PW5, a grand daughter of the deceased, the recoveries from the crime scene, the extra judicial confessions of the appellants before Balbir Sanan, PW7, the disclosure statements, the recoveries and the report of the Finger Print Expert. PW5 has deposed that as she approached her maternal grand mother's house, she saw the appellants coming out of the house, getting on to a vespa scooter and driving away but strangely enough, admits that she did not disclose these crucial facts to her uncle, Ashok Kumar Chopra, PW6, when she telephoned immediately, after discovering the dead bodies. This apart Sabina remained silent after the arrival of the police and Crl. Appeal No.399-DB of 2005 -14- allegedly disclosed these facts, after her father Balbir Sanan, PW7, brought her back and got her statement Ex. DA recorded before the police at 5.45 PM on 10.08.2001. It is vehemently argued that the statement Ex.DA, has been ante dated. If the statement was recorded at 5.45 PM on 10.08.2001, it would have been found mention in the zimnis recorded, by the Investigating Officer, on 10.08.2001 or in documents prepared on 10.08.2001, or in memos for autopsy etc. It is further pointed out that the statement of Balbir Sanan, PW7, her father, recorded by the police on 10.08.2001, does not name the appellants. The statements recorded during inquest proceedings on 10.08.2001 do not contain the names of the appellants. The first application for remand, dated 14.08.2001, does not refer to any statement by PW5 Sabina, but surprisingly avers that the accused have been named by Kamaljit Singh son of Bholi, who, for reasons best known to the police, was given up as won over. The second remand application, dated 28.08.2001, however, refers to the statement of PW5 Sabina as having identified the appellants. It is, therefore, apparent that the statement of Sabina was recorded after the first remand application and before 28.08.2001, clearly establishing that her statement Ex.DA has been manufactured as the police did not have any eye witness. The story as set up by the prosecution, based upon the statement of Sabina, is unnatural, unbelievable and clearly establishes that the appellants have been convicted Crl. Appeal No.399-DB of 2005 -15- and sentenced on false and tainted evidence.
It is further argued that, though, the statement made by Ashok Kumar Chopra, that led to registration of the FIR, states that he received information from his niece "Manna" but the witnesses produced by the prosecution is Balbir Sanan. Sabina, is the elder daughter and has been produced by assigning alias Manna with her name, so as to fill this significant gap in the prosecution case.
Counsel for the appellants further submits that the so called extra judicial confession before PW7 Balbir Sanan, does not contain the particulars of the crime and, therefore, cannot be considered as an extra judicial confession. Even if it is presumed, though not admitted, that the appellants approached PW7 Balbir Sanan, it is rather surprising that he did not approach the police immediately, or inform any other member of the family but instead asked them to come later. PW7 Balbir Sanan is the son-in-law of the deceased and, therefore, could not be expected to behave in this manner. During his cross-examination Balbir Sanan has made a statement that though Nitin Kataria is a neighbour, he does not know the name of Nitin Kataria's mother. It is also argued that during his cross-examination Balbir Sanan, could not identify articles of jewellery, allegedly, purchased from his shop and is in fact guilty of perjury. His deposition should, therefore, be discarded in its entirety.
As far as the finger prints, alleged to have been lifted from the scene of crime and got matched with the appellants' finger prints, counsel for the appellants submits that the appellants were Crl. Appeal No.399-DB of 2005 -16- arrested on 13.08.2001. The alleged articles bearing their finger prints were taken into possession on 10.08.2001 but for reasons that have not been explained, were sent, to the Finger Print Bureau for the first time on 13.08.2001. The story recorded in report no.30, dated 13.08.2001 that Lachman Dass, Constable No.334 returned as the office of the Finger Print Bureau had shut down for the day, is patently false as the record has been manipulated. The appellants were arrested on 13.08.2001. An application for obtaining their finger prints was filed on 13.08.2001 and the story of the Finger Print Bureau being closed was cooked up so as to show that the case property were sent before the appellants were arrested. It is further pointed out that report no.21 dated 13.08.2001 records the words "foot prints" instead of "finger prints". The initial documents prepared during investigation, particularly the statement of Ashok Kumar Chopra, make a reference to a cup but this cup has not been taken into possession. It is further stated that the memo Ex.PU/4, dated 10.08.2011, prepared before the appellants were arrested, uses the word "of the accused" (as translated) thereby clearly establishing that documents have been ante dated. It is further submitted that as all documents were ante dated, the police could not join any independent witness.
It is further submitted that it is impossible that a blood stained palm print would appear on a mirror, or that print of a single finger, Crl. Appeal No.399-DB of 2005 -17- of Sumit Chopra, would appear on the glass tumbler. The manner in which the palm and finger prints appear on the mirror and glass tumbler suggests a degree of manipulation to falsely implicate the appellants. The cross-examination of the investigating officer and the photographer clearly establishes that photographs do not reveal any finger print or palm print, on the mirror. As regards recoveries and disclosures, it is submitted that as PW15, the Investigating Officer, has admitted in his cross-examination that zimnis recorded regarding raids conducted to arrest the appellants do not contain their names, it is clear that the police was not aware of the identity of the perpetrators of this crime and have, therefore, set up this elaborate web of tainted evidence to falsely implicate the appellants. It is further submitted that recoveries effected by the police, of weapons of offence, articles allegedly bearing finger prints of the appellants, i.e. the mirror (Ex.P24), glass tumbler (Ex.P25), a blade cutter (Ex.P28) and a broken bone china cup (Ex.P30), all containing blood stained finger prints and articles of jewellery have not been proved in accordance with law. The recoveries were allegedly effected pursuant to disclosure statements made by the appellants while in police custody. The prosecution has failed to establish by clear and cogent evidence the ownership of jewellery items, allegedly recovered from the appellants. Balbir Sanan, PW7, who also happens to be a jeweller has failed to identify the jewellery items though he has deposed Crl. Appeal No.399-DB of 2005 -18- that they were prepared by him and bear his shop's stamp. The jewellery does not bear the stamp of the shop of Balbir Sanan, but in fact bears two other stamps. It is further submitted that the attendance register produced from the college, showing that appellants were absent on the date of occurrence or that they were not serious students is inadmissible in evidence as it has not been produced by the persons who recorded the entries. The last argument addressed by counsel for the appellants is that two sentences for life without remission or parole means that the appellants would spend their entire life in jail, without commutation. Such a harsh sentence is not warranted in the facts and circumstances of the present case. The appellants are young students in their early twenties. The sentence of imprisonment for the rest of their lives is too harsh, unwarranted in law and beyond the jurisdiction of the learned Sessions Judge. It is prayed that as the prosecution has failed to complete the chain of circumstances, the appellants are entitled to acquittal.
Counsel for the State of Punjab, on the other hand, submits that the prosecution has adduced clear and cogent evidence to establish the chain of circumstances and as held by the learned Sessions Judge, has proved that the appellants are guilty. The appellants were seen by PW5 Sabina Sanan, soon after the murders, while they were fleeing from the house of the deceased. The extra judicial confession made before Balbir Sanan is natural Crl. Appeal No.399-DB of 2005 -19- as one of the appellants is a relative and the other is a neighbour. The mere fact that Balbir Sanan did not inform the police or that he took some time in informing the police is immaterial. The criticism of the deposition of PW5 Sabina on the ground that she did not disclose the identity of the accused in the first instance or that their names are not mentioned in the documents prepared on 10.08.2001 does not detract from the truth. PW5 Sabina, a 16 years old girl was petrified after she saw the dead bodies and, therefore, took some time to become normal and speak out. The errors in the investigation regarding the names of the appellants are not sufficient to doubt the prosecution version, which stands proved by the recovery of stolen articles, by the finger prints on the weapons of offence and articles found in the house and by a positive identification of the accused by Sabina, PW5. It is further submitted that arguments advanced by counsel for the appellants that finger prints were taken later, is belied by the fact that when an application was filed before the learned Magistrate to direct the appellants to give their finger prints, the appellants did not raise any objection, or point out that they have been made to hold the recovered articles. The appellants were aware of the facts and could have easily made a statement before the learned Magistrate. It is further submitted that the fact that samples of articles recovered from the house were sent for analysis after the appellants were arrested, cannot by itself raise an inference that Crl. Appeal No.399-DB of 2005 -20- these articles were sent after the appellants were forced to hold these articles. The articles were sealed in separate parcels at the time of recovery on 10.08.2001 and duly deposited in the Malkhana. The parcels could not be delivered, to the Finger Print Bureau as by the time the police constable reached Phillaur, the Bureau was closed for receipt of articles. The parcels were , therefore, deposited on the next day. It is argued that apart from pointing out irrelevant and unnecessary errors or discrepancies in the procedural aspects of the investigation, the appellants have not been able to establish an infirmity in the prosecution story.
Counsel for the complainant/revision-petitioner prays that in view of the nature of the crime, the respondents should be directed to pay compensation, for the death of two ladies.
Before proceeding to consider the arguments addressed by counsel for the parties and appraise the evidence, it would be appropriate to briefly set out the facts and refer to the deposition of both prosecution and defence witnesses.
The case as set up by the prosecution is that the appellants, in furtherance to their common intention, committed the murder, caused injuries to Bimla Devi and Bholi, and committed robbery of gold ornaments worn by the deceased Bimla Devi and Bholi. The prosecution has examined 17 witnesses in all.
PW1 Dr. Naresh Kumar, Medical Officer, Civil Hospital, Jalandhar, conducted the post mortem examination of dead bodies Crl. Appeal No.399-DB of 2005 -21- on 11.08.2001 at 10.30 AM and proved his reports, Ex.PB and Ex.PC. The following injuries were found on the person of Bimla Devi.
"1. An incised wound of 8x2 cm on the ventral surface of right wrist joint. Wound was muscle deep.
2. An incised of 4x1-1/2 cm on the left side of chin, just below it, wound was muscle deep.
3. An incised wound on the lateral surface of elbow joint, 7x1-1/2 cm wound was muscle deep.
4. An incised wound of 9x1-1/2 cm on the left of forearm on its posterior lateral part. Wound was muscle deep.
5. An incised wound of 10/1-1/2 cm on the left forearm 4 cm below of injury no.4, Wound was muscle deep.
6. An incised wound of 9x1-1/2 cm on the ventral surface left wrist joint, underlying muscle and tendons were cut.
7. An incised wound on the left side of neck on its lateral part, wound was 9x1-1/2 cm. Underlying muscle blood vessels and nerves were cut.
8. An incised penetrating wound of 8x4 cm on the antero lateral part of left abdomen, 18 cm from Crl. Appeal No.399-DB of 2005 -22- umbilicus and 26 cm from left nipple, on opening the wound, underlying part small intestines were coming out with blood present around the wound.
9. An incised penetrating wound 16x8 cm just below injury no.8. 8 cm from umbilicus and 28 cm below nipple through this wound, part of small intestine, were coming out. After opening wound, peritoneal cavity contained 750 ml of blood stained fluid."
The following injuries were found on the person of Bholi, deceased:-
"1. An incised wound on the left side of neck, 15x3 cm, wound was deep upto neck vessels, underlying neck muscles, nerves and vessels were cut.
2. An incised wound of 6x2 cm just anterior to injury No.1, on lateral part and front, underlying blood vessels, nerves and muscles were cut.
3. An incised wound of 12x3 cm on front and right side of neck with muscles tracheal rings blood vessels and nerves cut.
4. Incised wounds on the right breast, 1-1/2x2cm, 3x1-1/2 cm were present. Wound were muscle deep.Crl. Appeal No.399-DB of 2005 -23-
5. Superficial multiple incised wounds 5 in number on the front of abdomen, just above the umbilicus, were present measuring 1.5x1cm, 1.5x2cm, 1.5x1.5cm, 2x1.5cm, 2.5x1 cm.
6. Penetrating incised wound of 2x1.5 cm just below left side of the chest (below ribs).
7. Incised penetrating wound on the left front of abdomen, at the level of umbilicus, 3x1-1/2 cm, on dissection underlying wounds of intestine were perforated.
8. Incised wound of 9x3 cm on the left lateral part of elbow were present, underlying bone and mussels were cut.
9. 2 incised wounds parallel to each other, 5x1- 1/2cm and 7x2 cm on the dorsal surface of right forearm, 4 cm above the wrist joint, both wound were muscle deep.
10. Incised wound on the vertral surface of left wrist joint 4x1-1/2 cm.
11. On the left lateral side of thigh, 9x1/2 cm, 5-1/2 cm. leaner superficial wound were present.
12. Incised wound of 1/2x1cm on the lateral left knee joint was present. It was muscle deep.
13. Incised wound of 4x1 cm on the left lower leg, 6 Crl. Appeal No.399-DB of 2005 -24- cm above the left ankle.
14. Incised wound of 3x1/2 cm on the front left lower leg, 4 cm above the ankle joint."
As per the doctor's opinion, injuries on the person of Bimla Devi and Bholi were ante mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was within half an hour.
PW2 Constable Ram Lubhaya, tendered his affidavit Ex.PH, into evidence regarding handing over of the special report to the Magistrate at 6.00 P.M. on 10.08.2011 PW3, HC Balwant Singh, has tendered his affidavit Ex.PJ, into evidence and deposed that on 18.09.2001, Harbhajan Singh, Head Constable handed over three parcels to him i.e. parcel containing a piece of a blade, parcel containing a cutter blade and parcel containing a vest smeared with blood for depositing in the office of Forensic Science Laboratory, Chandigarh. The witness has also deposed that he deposited the parcels with the Forensic Science Laboratory, Chandigarh, on 18.09.2001 and returned on the same day.
PW4 Constable Daljit Singh, tendered his affidavit Ex.PK, into evidence and deposed therein that on 31.08.2001, MHC Harbhajan Singh handed over a sealed envelope bearing the seal 'DS' containing finger prints of Sumit Chopra, Nitin Kataria and Vikramjit Singh and another envelope, which was delivered to the Crl. Appeal No.399-DB of 2005 -25- office of Finger Print Bureau, Phillaur, on 31.08.2001.
PW5 Sabina Sanan @ Manna daughter of Balbir Sanan (PW7), aged 16 years, has deposed that on 10.08.2001, she returned from school at 2.45 PM and after leaving her books at her house, proceeded towards the house of her maternal grand mother, Bimla Devi. At a little distance away from the house of Bimla Devi, she saw Sumit Chopra, a relative, Nitin Kataria, her neighbour and Vikramjit Singh @ Vicky, a student in her college, rushing out of the house. Sumit was not wearing a shirt and the clothes of other two were blood stained. They boarded a Vespa scooter and drove towards Green Park. She entered the house, saw the dead bodies of her maternal grand mother and her maid Bholi and informed Ashok Kumar Chopra, her maternal uncle, of the occurrence. She was cross-examined by the defence and despite a detailed cross-examination, the defence was unable to elicit any contradiction or circumstance that they could be of any use to them. She was recalled for cross-examination after amendment of charges and a suggestion was put to her that she is not known by the nick name of Manna. She has categorically denied this suggestion. Her statement is the linchpin of the prosecution case.
PW6-Ashok Kumar Chopra, son of deceased (Bimla Devi), and resident of the same house where murders were committed is the first informant. Ashok Kumar Chopra has deposed that he Crl. Appeal No.399-DB of 2005 -26- received a telephone call from his niece Manna, about the murders and he rushed to his house along with his servant Parmodh Kumar. He saw the dead bodies of Bimla Devi and Bholi, lying in the lobby, saw a blade, a paper cutter, both were blood stained and noticed sharp edged injuries on the bodies. He informed the police control room about the incident. He has deposed that he was present during inquest proceedings and also told the police that a gold kara and tops belonging to his mother were missing. The police collected blood stains from the spot, broken blood stained mirror and a broken tea cup from the site. He has further deposed that on the next day he informed the police that his light green coloured shirt and one Videocon tape recorder are also missing. He was also recalled for further cross-examination after amendment of charges but was stead fast, in his deposition.
PW7-Balbir Sanan son of Kundan Lal, son-in-law of Bimla Devi has deposed that the appellants came to his house on 12.08.2001 and confessed that they had committed the murder of Bimla Devi and Bholi for greed of money. He has also deposed that his daughter Sabina Sanan, PW5, informed him that she had seen the accused fleeing from the house. He has also identified the gold kara Ex.P10, two ear tops Ex.P11 and Ex.P12 by the initial "B" and stated that he runs a jewellery shop, but in his cross- examination could not satisfactorily explain the other initials on the jewellery items.
Crl. Appeal No.399-DB of 2005 -27-
PW8-Dalip Singh, Draftsman, prepared the scaled map Ex.PK relating to the place of occurrence.
PW9-HC Harbhajan Singh tendered his affidavit Ex.PL into evidence, wherein he has deposed that he delivered the parcel containing the looking glass mirror and a separate parcel containing the glass tumbler and one container with blood stained earth, one parcel containing a vest, a parcel containing a broken cup of bone china clay and the handing over to another constable for sending them, for analysis, to the Finger Print Bureau, Phillaur and the Forensic Science Laboratory, Chandigarh.
PW10-Inspector Bal Krishan, Finger Print Bureau, Phillaur, has proved his report Ex.PM with respect to the finger prints lifted from various articles.
PW11-Jaswinder Singh, Superintendent, APJ, College of Fine Arts, Jalandhar, has deposed from the attendance register maintained by the college and that the appellants were not present in the college on the date of occurrence.
PW12-Pawan Kumar son of Shadi Lal, is a witness of the recoveries got effected by Sumit Chopra, Amit Chopra, Vikramjit Singh @ Vicky and Nitin Kataria.
PW13-HC Charan Singh has deposed with respect to obtaining of finger prints of appellants.
PW14-Shri D.K.Mittal, Judicial Magistrate Ist Class, Jalandhar, has deposed that finger prints were taken in his Crl. Appeal No.399-DB of 2005 -28- presence and he attested the same.
PW15-Inspector Daljinder Singh Dhillon, is the Investigating Officer.
PW16-ASI Mohinder Singh, Photographer, CIA staff, Jalandhar, has proved photographs Ex.PW16/6 to 15 and memo Ex.PAA.
PW17-Constable Lachman Dass, has deposed regarding delivery of two parcels containing a glass (tumbler) and the mirror to the Finger Print Bureau, Phillaur.
It would be necessary to mention here that Kamaljit Singh son of Bholi was given up as won over.
The appellants, on the other hand, examined DW1-Inspector Sartaj Singh, Finger Print Bureau, Phillaur, who has been produced so as to cast a doubt on the finger prints forwarded to the Finger Print Bureau, Phillaur.
DW2-Supreet Talwar, Lecturer, Department of Economics, A.P.J. College of Fine Arts, Jalandhar, who has produced the attendance register relating to Vikramjit Singh, appellant.
DW3-Amarjit Kaur, Lecturer, Department of English, A.P.J. College of Fine Arts, Jalandhar, who has produced the attendance register relating to Vikramjit Singh, appellant.
DW4-Sushma Shair, Lecturer, Punjabi, A.P.J. College of Fine Arts, Jalandhar, who has produced the attendance register relating to Vikramjit Singh, appellant.
Crl. Appeal No.399-DB of 2005 -29-
DW5-Meera Aggarwal, Lecturer, Mathematics, A.P.J. College of Fine Arts, Jalandhar, who has produced the attendance register relating to Vikramjit Singh, appellant.
DW7-Dr. Sucharit, Principal,A.P.J. College of Fine Arts, Jalandhar, who has deposed that as per record, Vikramjit Singh never attended the class.
DW6-Niti Soni, Lecturer Management, A.P.J. College of Fine Arts, Jalandhar, who has produced the attendance register relating to Vikramjit Singh, appellant.
DW8-Nitu Narang, Lecturer in Commerce, A.P.J. College of Fine Arts, Jalandhar.
Statements of DW9-Constable Suraj Bhan, DW10-Krishan Murari, PPA, Phillaur, DW11-Rahul Mittal, Administrative Officer, Dainik Jagaran, Jalandhar, DW12-Indu Chopra wife of Balbir Kumar, mother of Sumit Chopra and Amit Chopra, have also been recorded in defence.
The appellants, are three young men in their early twenties, who have been convicted and sentenced for the murder of two ladies, Smt. Bimla Devi, aged 70 years and her maid Smt. Bholi, aged 45 years. The absence of an eye witness makes the task of the prosecution onerous as proving a crime by circumstantial evidence is always fraught with uncertainty. A case based upon circumstantial evidence requires the prosecution to put together pieces of a jigsaw puzzle, and ensure that these pieces fit to form an identifiable face as the preparator of a crime. The evidence adduced must point unerringly to Crl. Appeal No.399-DB of 2005 -30- the guilt of an accused and should rule out any other possibility.
The appellants are Sumit Chopra, admittedly a close relative of deceased Bimla Devi and of the main witnesses PW6 Ashok Kumar Chopra, PW7-Balbir Sanan, and PW5-Sabina @ Manna. The appellant Nitin Kataria is a neighbur of Balbir Sanan, and Sabina @ Manna, whereas Vikramjit Singh @ Vicky is a student in the college attended by Sabina @ Manna. The fourth accused, namely Amit Chopra, was acquitted.
The first piece in this jigsaw puzzle is the identity of the accused, based primarily on the deposition of PW5-Sabina Sanan @ Manna, the finger prints on the weapons of offence and articles recovered from the crime scene and the disclosure statements and recoveries got effected by the appellants.
PW5 Sabina @ Manna stated before the police at 5.00 PM on 10.08.2001 and deposed on oath, that on 10.08.2001, she returned from her college and after leaving her books at her home proceeded to her grand mother's house. She was about 10-15 yards from her grand mother's house, when she saw Sumit Chopra, Nitin Kataria and Vikramjit Singh @ Vicky, emerge from her maternal grand mother's house, board a Vespa scooter and drive away towards Green Park. She noticed that Sumit was not wearing a shirt and the clothes of others were blood stained. She entered the house and saw the dead bodies of her maternal grand mother and Bholi, the maid servant lying in the lobby. She came out of the house and found Kamaljit Singh son Bholi, standing outside. Kamaljit Singh has been given up as won over. She immediately telephoned her uncle Ashok Kumar Chopra, PW6 Crl. Appeal No.399-DB of 2005 -31- about the murders and narrated the scene inside the house. Sabina @ Manna's deposition is sought to be discredited on the following grounds:-
(a) When she is allegedly informed Ashok Kumar Chopra about the murders, she did not inform him that she had seen the appellants, fleeing the house;
(b) she did not divulge any information to the police but made a statement at 5.45 PM on 10.08.2001 only after her father brought her back.
(c) the fact that her statement, was recorded at 5.45 PM on 10.08.2001 is not recorded in the zimnis recorded by the Investigating Officer on 10.08.2001 or in the first application for remand filed before the Magistrate.
(d) Ashok Kumar Chopra, PW6, has stated before the police that he received a telephone call from his niece Manna. There is no evidence on record to prove that Sabina is also known as Manna;
We have considered these arguments, perused her statement before the police and her deposition in Court with a great degree of care. Conscious as we are of her significance as a key witness and our responsibility to ensure that innocent men are not unfairly convicted, proceed to record our opinion.
A 16 years old girl, noticed three persons, who she recognises, one a cousin, the second a neighbour and the third a student in her college, fleeing from her maternal grand mother's house. She notices Crl. Appeal No.399-DB of 2005 -32- that her cousin is not wearing a shirt and the clothes of others are blood stained. She proceeds to enter the house and stumbles upon a horrific scene: two dead bodies, soaked in blood, one of her grand mother and the other of her grand mother's maid, lying on the floor of the lobby. An emotion of revulsion, horror and shock must necessarily have engulfed this 16 years old child. She may have, therefore, while informing her uncle about the murders forgotten, to inform him that she had seen the appellants fleeing her grand mother's house. To doubt her deposition merely on the ground that while informing her maternal uncle of the murders, she did not inform him that she had seen the accused fleeing from the house, would be a traversity of justice. Even otherwise her statement was recorded at 5.45 PM on 10.08.2011, i.e., within three hours of the discovery of the murders. The time between the discovery of the murders and the recording of her statement was too short for the police to introduce her as a false witness. In addition, her presence at the crime scene, is corroborated by the statement made by Ashok Kumar Chopra, the first informant, to the police. If she was a false witness, her name, as the person, who informed Ashok Kumar of the murders would not have been recorded in his statement that led to the registration of the FIR. The deposition by Sabina @ Manna, PW5, in our considered opinion establishes with a great degree of certainty that she saw the appellants coming out of Kothi No.101, boarding the vespa scooter and driving towards Green Park, a few moments before she discovered the dead bodies. She also noticed that their clothes were blood stained and Crl. Appeal No.399-DB of 2005 -33- Sumit Chopra was not wearing a shirt. The fact that she has recorded a statement before the police and has deposed as a prosecution witness, faced a searing cross-examination without any contradiction or exaggeration, in our considered opinion establishes the truth of her deposition. We find no reason to hold that she did not witness the appellants fleeing from her grand mother's house. It would also be appropriate to record that PW5, would not falsely implicate a close relative, Nitin Kataria, if she had not seen him. At this stage, it would be appropriate to reproduce a relevant extract from the deposition of PW5 Sabina:-
"On 10.08.2011, at about 2.45 PM, I was returning from my school, when I reached near the residence of my uncle Ashok Kumar, when I was at a short of distance of 10/15 yards from Kothi No.101, I saw Sumit Chopra, Nitin Kataria, Vikramjit @ Vicky who are studying in my college. Nitin Kataria, accused is my neighbour and Sumit Schopra is my relative. All the three accused are now present in the Court."
XX XX XX XX XX
XX XX XX XX
XX
It is incorrect to suggest that I was never known as Manna, and that I have made false statement to the above fact. I have great love and affection in my grand-mother."
A submission that PW6 Ashok Kumar Chopra, has deposed that Crl. Appeal No.399-DB of 2005 -34- he received a telephonic call from his niece Manna but there is no evidence that PW5 Sabina is also known as Manna, cannot be accepted. During her initial cross-examination, no suggestion was put either to PW5 or her father PW7 or her uncle Ashok Kumar Chopra, PW6 that she is not known by the nick name of Manna. When these witnesses were re-called for further cross-examination, after charge was amended, a suggestion to that effect was put to PW5. She has empathetically denied the suggestion that she is not known as Manna, thereby putting paid to this attempt to raise a doubt about her identity and her having seen the appellants fleeing the house of her grandmother.
Another ground urged by learned counsel for the appellants is that the statement of PW5, before the police has been antedated. If her statement was actually recorded, by the Investigating Officer, at 5.45 PM on 10.08.2001, it should have found mention in the zimnis recorded on that date but instead finds mention in the zimnis of 11.08.2001. It is also pointed out that documents forwarded after the statement of PW5- Sabina @ Manna do not refer to the identity of the assailants. A related argument is that Sabina's deposition, regarding her having seen the appellants leaving her grand mother's house is falsified by the application for remand filed on 14.08.2002 as this application clearly states that the accused were named in the statement of Kamaljit son of Bholi. The argument is sought to be fortified by a judgmet of the Hon'ble Supreme Court AIR 1982 SC, 1595 Haramba Brahma vs. State of Assam, wherein, it was held that if the application for remand refers to the wrong person as having identified the Crl. Appeal No.399-DB of 2005 -35- accused, it would cast a doubt upon the prosecution version.
We have considered the argument, perused the relevant zimnis and the applications for remand. It is true that zimnis recorded, by the Investigating Officer, on 10.08.2011 do not refer to any statement by Sabina @ Manna, the documents for autopsy do not refer to the appellants and the first remand application does not state that Sabina has identified the appellants. These discrepancies, in our considered opinion, do not raise an inference that Sabina, did not see the appellants fleeing from her grandmother's house or that her statement was antedated or that she has been introduced as a false witness. A significant fact that persuades us to hold as above is that Ashok Kumar Chopra, has stated before the police that he was informed of the murders by Sabina @ Manna. Ashok Kumar Chopra's statement, led to the registration of the FIR. If Sabina @ Manna was not present, as deposed, her name would not have found mention in Ashok Kumar Chopra's statement to the police, within an hour of the discovery of the murders. We, therefore, find no reason to doubt the correctness of her statement or the fact that she saw the appellants fleeing from her grand mother's house. The absence of the name of Sabina as @ Manna in the application for remand, in our considered opinion, does not raise any doubt. The first informant has clearly stated that he has informed about the murders by Sabina @ Manna, who has no reason to falsely implicate the appellants one of whom is a close relative and the other is a neighbour. A careless Investigating Officer may have committed errors in recording proceedings, but this alone cannot raise any doubt about the truth of her deposition.
Crl. Appeal No.399-DB of 2005 -36-
The argument that she did not inform the police immediately and waited for her father before making a statement to the police, in our opinion, is natural for a child of 16 years. As referred to in the preceding part of the judgment, one of the appellant is a relative, other is neighbour and third is a student studying in Sabina's school. She has no reason, much less suggested by the prosecution to falsely name the appellants as the persons who she saw fleeing the house of her grandmother a little while before she discovered the murders. Even otherwise her statement was recorded at 5.45 PM, within three hours of discovery of the murder.
The next point that requires consideration is the extra-judicial confession suffered by the appellants before Balbir Sanan, PW7, who is the son-in-law of Bimla Devi, deceased. Balbir Sanan, has deposed as PW7 that on 12.08.2011, Nitin Kataria, his neighbour, along with his mother, accompanied by Sumit Chopra and Vikramjit Singh @ Vicky came to his house. Nitin Kataria, admitted that he had committed a blunder and murdered Bimla Devi and Bholi along with Sumit Chopra and Vikramjit Singh @ Vicky. They confessed their guilt and also stated that they had gone to commit a robbery of 10-12 lacs but were not aware that Bholi was present in the house. They also admitted before Balbir Sanan, PW7, that his daughter had seen them while they were coming out of Kothi No.101 and requested Balbir Sanan that as one of them is a relative, the matter may be compromised and they would settle the matter with the police. Balbir Sanan, has deposed that he told the appellants that they should talk to the complainant party after the cremation but after 12.08.2011 they did not return. Crl. Appeal No.399-DB of 2005 -37-
Counsel for the appellants asserts that this statement is false to the knowledge of Balbir Sanan and even if accepted it does not disclose the particulars of the crime and does not meet the parameters of an extra-judicial confession. It is further submitted that Balbir Sanan, who is the son-in-law of the deceased did not inform the police or any member of the family but instead asked them to come after cremation. A considered appraisal of the statement of Balbir Sanan, PW7, and arguments addressed by counsel for the appellants, lead us to hold that though particulars of the commission of offence were not divulged to Balbir Sanan, the respondents did indeed admit to the commission of murders before him. The argument that Balbir Sanan, did not report the matter to the police immediately, is incorrect as the confessions were made before him on 12.08.2011 and his statement was recorded on the same day.
The next question relates to the efficacy of the recoveries effected from the house of the deceased and finger prints appearing on the articles recovered from the crime scene. The police took into possession, vide memo Ex.PU/3, a broken china cup, a tumbler Ex.PU/4, a mirror stained with finger prints and another glass, which were lying on a table. The prosecution deposited these articles in the malkhana. The articles were forwarded to the Forensic Print Bureau, Phillaur, along with a blade cutter through constable Lachman Dass, No.3329 as recorded in entry no.21, dated 13.08.2001. Vide Entry No.30, dated 13.08.2011, Lachman Dass reported that he could not deposit the articles as the Finger Print Bureau, closed at 5.00 PM but he deposited them on the morning of 14.08.2011. On 14.08.2011, the Crl. Appeal No.399-DB of 2005 -38- police filed an application before the JMIC, Jalandhar, requesting that the appellants be directed to furnish their finger prints. The appellants made a positive statement that they have no objection if their finger prints are taken for the purpose of investigation. Accordingly their finger prints were taken and forwarded to the Finger Print Bureau, Phillaur. PW17-Constable Lachman Dass has deposed that he deposited the parcels with a Finger Print Bureau, Phillaur and handed over the report prepared by the Forensic Print Bureau, Phillaur, along with the parcels at Police Station Division No.6, Jalandhar, on 16.08.2011. It is not denied by counsel for the appellants that the finger prints sent to the Finger Print Bureau have matched the finger prints of the appellants. It is, however, suggested that the appellants were arrested on 13.08.2011, made to hold the articles, so as to obtain their finger prints and it was only thereafter that articles were delivered to the Finger Print Bureau, for comparison. It is further stated that articles were brought back on 13.08.2011 but were only delivered on 14.08.2011 after the appellants were made to hold these articles.
We have examined the record carefully and do not find any reason to accept these submissions. From the site of the occurrence, the police recovered a piece of a blade cutter (blood stained), which was taken into possession vide Ex.PL. Blood from the site was taken into possession vide memo Ex.PU. The blood stained paper cutter was put in a parcel, which was sealed with the seal DS and taken into possession vide memo Ex.PU/1. A blood stained vest was put in a parcel, sealed with the seal DS and taken into possession vide memo Ex.PU/2. A broken bone china cup was taken into possession vide Crl. Appeal No.399-DB of 2005 -39- memo Ex.PU/3, a glass tumbler with finger prints was taken into possession vide memo Ex.PU/4, a mirror with blood stained finger prints and another glass, which was lying on a table were put in a separate parcels and sealed with the seal DS and taken into possession vide memo Ex.PU/4. A mirror with blood stained finger prints was taken from the bathroom. The recovery memos are signed by Vijay Kumar Chopra and SI Davinderjit Singh. The sketch of the blade was prepared and is exhibited as Ex.PS/2. PW16 ASI Mohinder Singh was called to the place of occurrence and took photographs Ex.P16/6 to P16/15 and their negatives Ex.PW16/1 to PW16/5. PW10- Inspector Bal Krishan, Forensic Print Bureau, Phillaur, prepared a report Ex.PM, which matches the finger prints on these articles with the finger prints of the appellants. It would, however, be appropriate to mention that the finger prints appearing on the glass tumbler and the other articles were found unfit for comparison. It is true that there is a proximity of the time between forwarding samples and taking of finger prints but in case the appellants were made to forcibly affix their finger prints on the recovered articles they could have pointed this out to the learned Magistrate or refused to give their finger prints. The appellants did not raise any objection to the taking of finger prints before the Magistrate and, therefore, cannot urge that proximity in time in forwarding the samples raises any doubt that the story of return of the constable on 13.08.2011 is concocted. A feeble argument that the appellants could not bring this fact to the notice of the JMIC, Jalandhar, as they did not have the assistance of an advocate, in our considered opinion, does not entitle them to any benefit much less cast a doubt on Crl. Appeal No.399-DB of 2005 -40- their voluntary statements made before the JMIC, Jalandhar, agreeing to furnish their finger prints.
The next argument relates to the motive for commission of the offence. As per the prosecution, the motive was robbery, as admitted by the appellants before Balbir Sanan, PW7. The appellants admitted before Balbir Sanan, PW7, that they wanted to steal Rs.10-11 lacs from the house of Bimla Devi, deceased. It is true that the prosecution has not been able to establish the presence of money, in the house of Bimla Devi, deceased, but this alone does not adversely affect the prosecution version. It is true that motive is an important factor but if motive is not fully established but other ingredients point unerringly to the guilt of an accused, this lapse on the part of the prosecution would not entitle an accused to acquittal.
An argument, upon which much stress was laid, is the mode and manner of the alleged disclosure statements suffered by the appellants and the recoveries effected thereon. Ashok Kumar Chopra, PW6, informed the police that a golden "kara" and ear "tops" worn by his deceased mother were found missing. On the next day, he made a statement that his shirt and tape-recorder were also missing. Sumit Chopra, appellant suffered a statement Ex.PE before the police that the videocon tape-recorder and a shirt removed by him from the house of the deceased was concealed along with other articles, in a bed box lying in his room. He led the police party and got recovered the shirt Ex.P-17 and tape-recorder, Ex.P18, along with other articles, which were taken into possession vide memo Ex.PS/1.
Crl. Appeal No.399-DB of 2005 -41-
Nitin Kataria, the other appellant, made a disclosure statement Ex.PU that the "Jhumka type tops" removed by him from the ears of Bimla Devi after a murder were kept concealed by him in his cup board in his bed room. He led the police party and got recovered the tops Ex.P11 and Ex.P12 along with other articles, which were taken into possession vide memo Ex.PU/1.
Vikramjit Singh @ Vicky, the third appellant, suffered a disclosure statement Ex.PT, about concealing a "Khukhri" and a "Kara" , in a wooden almirah in his house. He got the "kara" Ex.P-10 and the Khukhri vide memo Ex.PT/1.
Balbir Sanan, PW7, a son-in-law of the deceased Bimla Devi is a goldsmith by profession. The articles, namely, "tops and Kara" were shown to him during his deposition before the trial. He has deposed that he prepared these articles and sold them to his mother-in-law Bimla Devi. He proved receipt Ex.PL to establish the sale of these articles.
The argument that the jewellery, allegedly, stolen by the appellants has not been identified as the witness produced to identify the jewellery, Balbir Sanan, could not identify them satisfactorily, is partially true, but in our considered opinion, does not detract from the essence of the offence, which in our opinion is proved from the statement of PW6, finger prints on articles recovered from the house and the weapons of offence etc. We would now like to examine the legality of the sentences imposed upon the appellants. The learned trial court, has while sentencing the appellants, awarded two life imprisonment one for Crl. Appeal No.399-DB of 2005 -42- each murder and ordered that they would remain in prison for the rest of the lives without a right to commutation of sentence or pre- mature release. The appellants have also been sentenced to a period of 7 years rigorous imprisonment each with a fine of Rs.2000/- each under Section 392 of the Indian Penal Code. The trial court has ordered that these sentences shall run consecutively and not concurrently.
A sentence is imposed as measure of retribution but must not reek of vengeance. The question that stares us is whether the trial court was justified in imposing such a severe sentences on the appellants who are young men on the threshold of their lives. It is true that the offence of murder of two women does not entitle them to any sympathy but to direct that sentences would run consecutively, without a right to parole or remission of sentence, in our considered opinion, would, in essence, be, as harsh as a death sentence. We, therefore, direct that all the substantive sentences awarded to the appellants shall run concurrently. With this modification in the order of sentence, we dismiss the appeals.
(RAJIVE BHALLA)
JUDGE
February , 2012 (NARESH KUMAR SANGHI)
nt JUDGE