Delhi High Court
Vijay Kumar @ Bhushan S/O Pyare Lal vs State Represented By Sho on 23 November, 2006
Author: Madan B. Lokur
Bench: Madan B. Lokur, Aruna Suresh
JUDGMENT Madan B. Lokur, J.
1. These appeals are directed against the judgment and order dated 28th September, 1996 whereby the Appellant was held guilty of an offence punishable under Section 451 of the Indian Penal Code (for short the IPC), an offence punishable under Section 394 of the IPC and an offence punishable under Section 302 of the IPC in Sessions Case No. 122 of 1995. On the same day, the Appellant was heard on the question of sentence and the learned Trial Judge sentenced him to undergo rigorous imprisonment for one year and a fine of Rs. 200/- for the offence punishable under Section 451 of the IPC and in default of payment of fine, to further undergo rigorous imprisonment for one month. For the offence punishable under Section 394 of the IPC, the Appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/- and in default thereof to further undergo rigorous imprisonment for three months. For the offence punishable under Section 302 of the IPC, the Appellant was sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- and in default thereof to undergo rigorous imprisonment for four months. It was directed that all the substantive sentences shall run concurrently. In respect of the offence punishable under Section 302 of the IPC, the learned Trial Judge was of the view that this was not one of the "rarest of rare" cases in which the extreme penalty of death should be awarded.
2. The State has also filed an appeal being Criminal Appeal No. 10 of 1997 contending that the case was one in which a penalty of death should have been awarded. Both the appeals were heard together and are disposed of by a common judgment and order.
3. The facts of the case are not particularly complicated. One Dr. Raktima Anand, a Professor in Anesthesia was working in LNJPN Hospital. She was allotted an official accommodation being Flat No. 4, Type V Quarters in MAM College Campus, New Delhi. The flat allotted to her was located on the third floor of a building. Along with Dr. Raktima Anand, her brother Dr. Arun Dev Anand, who was unmarried, was also residing and it appears that he had his own private practice elsewhere. Their mother Mrs. Mahima Anand (the deceased) resided with them.
4. According to the statement given by the Appellant under Section 313 of the Code of Criminal Procedure (for short the CrPC), his mother had earlier worked in Dr. Raktima Anand's house. The Appellant's wife had thereafter worked with her as a part-time maid. In that sense, it appears that the Appellant was not a stranger to the family. Dr. Raktima Anand employed the Appellant about a month prior to the unnatural death of the deceased. He worked with her for about 15 days and thereafter his services were terminated because he was found to have committed a theft of Rs. 100/- from her flat.
5. On 10th November, 1993, Dr. Raktima Anand left her house at about 9.00 am to attend to her duties in the hospital. Her brother Dr. Arun Dev Anand left the flat a little later at about 9.30 am to attend to his work thereby leaving the deceased and the pet dog in the house. When Dr. Arun Dev Anand returned home at about 5.15 pm that day, he was surprised to find that the main door of the house was open. When he entered the house, he saw the Appellant hurriedly coming from the kitchen side and he ran across Dr. Arun Dev Anand. At that time, the Appellant was carrying a rexine bag with him.
6. Dr. Arun Dev Anand then entered the kitchen and was shocked to find that his mother, the deceased, was lying on the floor of the kitchen and her mouth was gagged with pieces of cloth. He checked her pulse and found that she was dead. He also noted that the jewellery that she was wearing in the morning was missing. He then went to his sister's bedroom and found that it had been ransacked. Several items including a colour TV of Crown make, one steel trunk bearing the name of his father "S. Anand AMC" along with a suitcase and other goods were missing from the house. Thereupon, at about 5.30 pm, he telephoned his sister Dr. Raktima Anand and informed her about the incident. She came rushing to the house and upon seeing her mother lying dead on the floor, she removed the four pieces of cloth from her mouth as a result of which the denture from the lower jaw of the deceased came out. Dr. Raktima Anand tried to revive her mother but could not do so. She also surveyed her house and found several items missing including a mixie, cash of Rs. 4,000/- and some apparel, a set of six glasses, etc.
7. At about 6.30 pm, Dr. Arun Dev Anand went to the police station to lodge an FIR in which he mentioned that he suspected that the Appellant had murdered his mother.
8. The police reached the scene of the incident at about 8.00 pm. Photographs of the deceased were taken from different angles. A site plan was also prepared and some of the items such as the denture were taken into possession. It was noted that the right hand of the deceased gripped four strands of hair. These were also taken possession of and sent for examination. The police also went in search of the Appellant.
9. Early next morning between 2.30 am and 3.30 am, the investigating officer received some secret information that the Appellant was in the New Delhi Railway Station at platform No. 2 along with the stolen property. Accordingly, a police party went to the railway station along with the informer and found the Appellant and the stolen goods including a steel trunk containing the words "S. Anand AMC". The Crown TV, clothes, cash etc. were also recovered. The Appellant was arrested and he later pointed out the scene of the crime. He was also sent for a medical examination on 11th November, 1993 when the doctor took some samples of his hair and after sealing the same, sent it to the police for examination.
10. According to the doctor who conducted the post mortem on the body of the deceased, the death was caused due to asphyxia consequent upon suffocation as a result of smothering or closing the mouth and nostrils.
11. On these broad facts arrived at on the conclusion of investigations, a challan was filed and the Appellant was charged with having committed offences punishable under Section 451, 394 and 302 of the IPC.
12. The Appellant pleaded not guilty with the result that the case went to trial in which the prosecution examined 18 witnesses. On his part, the Appellant produced two witnesses. He also gave a statement under Section 313 of the CrPC as well as a written submission.
13. In his rather elaborate judgment, the learned Trial Judge has culled out the broad facts that we have indicated above primarily relying upon the testimony of PW-1 Dr. Arun Dev Anand and PW-2 Dr. Raktima Anand. As regards the recovery of goods in the railway station, he has relied upon the testimony of PW-11 SI Satpal, PW-14 Ct. Rajender Singh and PW-18 Inspector Narender Pal Singh, the investigating officer.
14. We have gone through the entire evidence and the documents placed on record and do not think it necessary to discuss each and every piece of evidence, particularly in the light of the submissions made by Learned Counsel for the Appellant which were essentially a reiteration of the contentions urged before the learned Trial Judge.
15. The first contention urged by Learned Counsel for the Appellant was that there was nothing to show that Dr. Raktima Anand had employed the Appellant or that he had been terminated from service or that he had stolen Rs. 100/- from her house. It is true that there is no documentary evidence to show that she had engaged the Appellant as a domestic servant but that is not unusual. It is common knowledge that there is hardly any instance, if at all, of any written contract being entered into by a domestic servant and an employer. Similarly, there is hardly any written document of termination of services of a domestic servant. Both Dr. Raktima Anand and Dr. Arun Dev Anand entered the witness box and confirmed that the Appellant was engaged as a domestic servant hardly a month before the incident and that he had worked with them for about 15 days after which his services were terminated because he had stolen Rs. 100/- from the house. There is nothing to indicate that these two witnesses had made a false statement before the Court or that they had any reason to do so. There is nothing in their cross-examination to suggest that their testimony in this regard was not truthful. We, therefore, do not find any error in the conclusion arrived at by the learned Trial Judge in holding that the Appellant was employed by Dr. Raktima Anand about a month before the incident and was terminated 15 days thereafter for having committed a theft of Rs. 100/- from the house. We may also note that in his cross-examination, the Appellant gave no suggestion to the contrary. This contention is, therefore, rejected.
16. The next submission of Learned Counsel for the Appellant was that there was a delay in recording the FIR. It was submitted that Dr. Arun Dev Anand had entered the house at about 5.15 pm but it was only at about 6.30 pm that he had lodged an FIR in the police station. We do not find any unusual or unnatural delay in lodging the FIR. It would have been quite natural for Dr. Arun Dev Anand to inform his sister about the murder of their mother and wait for her to arrive at the scene. As the evidence shows, he did inform his sister within a few minutes of his arrival and his sister reached the scene at about 5.30 pm or so. Quite naturally, both Dr. Arun Dev Anand and Dr. Raktima Anand were shocked at finding that their mother had been murdered. In normal circumstances, it would have taken them some time to recover from the shock and thereafter to ascertain any other damage in terms of items missing from the house. Dr. Arun Dev Anand had stated in his examination-in-chief that he tried to contact the police on telephone but there was no clearance from the exchange through which the telephone runs (although this was not stated by him during investigations) and under these circumstances, he personally went to the police post and lodged the FIR.
17. In Amar Singh v. Balwinder Singh , the Supreme Court referred to and relied upon Tara Singh v. State of Punjab, 1991 Supp (1) SCC 536, Zahoor v. State of U.P. 1991 Supp (1) SCC 372 and Jamna v. State of U.P. 1994 Supp (1) SCC 185 and said that:
There is no hard-and-fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging the FIR.
That it took Dr. Arun Dev Anand and Dr. Raktima Anand about an hour or so to gather their wits and inform the police is nothing extraordinary. We could have understood if the delay in recording the FIR was inordinate or unexplainable but given the circumstances of the case, we are of the view that if there was a delay of about an hour or so in lodging the FIR with the police, that would not be fatal to the case of the prosecution.
18. Learned Counsel for the Appellant contended that the conduct of Dr. Arun Dev Anand was a little odd inasmuch as he did not inform the neighbours about the murder and he did not attempt to stop the Appellant when he was rushing out of the house carrying a rexine bag. It was submitted that given the background facts, namely, that the services of the Appellant were terminated about 15 days earlier on the ground of theft, Dr. Arun Dev Anand could have attempted to apprehend the Appellant or at least make some hue and cry so that the Appellant could be apprehended. The veiled suggestion of Learned Counsel for the Appellant was that it was perhaps Dr. Arun Dev Anand himself who had committed the crime inasmuch as he was the last person to leave the house at 9.30 am and was the first person to see the deceased at 5.15 pm. It was sought to be suggested that the presence of the Appellant was concocted to save his own skin.
19. We find this submission to be rather fanciful. It must be remembered that the Appellant's mother and wife had been employees of Dr. Raktima Anand. As such, it is not as if the Appellant was unknown to Dr. Raktima Anand or Dr. Arun Dev Anand. While we appreciate that some attempt could have been made by Dr. Arun Dev Anand to apprehend the Appellant or raise a hue and cry, but the fact that he did not, does not necessarily lead to the conclusion that the Appellant was not rushing out of the house at about 5.15 pm when Dr. Arun Dev Anand came there. No such suggestion was put to Dr. Arun Dev Anand when he was in the witness box. We also feel that by and large, every person who faces a crisis has a different reaction. No standard reaction can be attributed to anybody. In State of Himachal Pradesh v. Mast Ram the Supreme Court said, There is no set rule that one must react in a particular way. The natural reaction of man is unpredictable. Everyone reacts in his own way. Such natural human behavior is difficult to be proved by credible evidence. It has to be appreciated in the context of the given facts and circumstances of each case.
Similarly, in State of Uttar Pradesh v. Devendra Singh the Supreme Court observed, Human behavior varies from person to person. Different people behave and react differently in different situations. Human behavior depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Some may remain tightlipped, overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon a variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
20. As regards the theory that Dr. Arun Dev Anand himself had murdered his mother, we find that there is absolutely no iota of evidence to even remotely suggest such a theory. There was no dispute between Dr. Arun Dev Anand and his mother or sister nor was there any history of any family dispute in this regard.
21. It was submitted that it is strange that no one saw the Appellant enter and leave the premises while carrying all the stolen items even though there were other residents in that building and there was a hostel opposite the building. Moreover, a scuffle appears to have taken place between the deceased and the Appellant, which is why the deceased had four strands of hair of the Appellant in her right fist, but there were no injury marks on the Appellant as a result of the scuffle.
22. We find no merit in these contentions. It is difficult to say when the crime took place. Clearly, it was between 9.30 am and 5.15 pm. The Appellant could have come at any point of time (or even more than once) during the course of the day to remove the goods and it is not necessary that anyone would have seen him take out the stolen goods. The Appellant was a resident of that area and was aware of the surroundings including the building in which the crime was committed, having worked there for 15 days. Moreover, it is also possible that someone noticed his movements but did not come forward to say that he or she had seen the Appellant during that day.
23. As regards the scuffle between the Appellant and the deceased, it must be remembered that the Appellant was a young man of about 30 years of age while the deceased was about 67/68 years of age. The only resistance that she could have put up was with regard to saving her life and certainly not with a view to beat up the Appellant. In the process, it is not at all unusual that the deceased was unable to inflict any injuries on the Appellant but she did manage to get hold of his hair, some of which remained in her right fist. The absence of any injuries on the Appellant does not cast any doubt on the version of the prosecution.
24. It has also been contended by Learned Counsel for the Appellant that even though some photographs were taken of the deceased, there was no photograph of her right fist which would show that she held his hair in her fist. We have seen the photographs that were taken and while it is true that there is no photograph of the right fist of the deceased, the absence of any such photograph really does not lead us anywhere. It is not as if the photographer was called to take a photograph of every piece of evidence. He was called only to take photographs of the scene, which he did.
25. It was submitted that though fingerprints were taken at the scene of the crime, no fingerprint of the Appellant was found, suggesting thereby that the Appellant had not entered the house at all. We are of the view that this would not be the correct inference to draw as it would imply that if the fingerprints of the Appellant were found then he is guilty of the crime committed by him. We have already concluded from the evidence that the Appellant had worked in the household. While, in the normal course, his fingerprints should have been present, that they were not lifted would not suggest that the Appellant had not visited the household at all.
26. Learned Counsel also contended that some documents were not supplied to the Appellant. This contention was raised in the context of the fact that the jhuggi of the Appellant was searched by the police, as also the jhuggi of his other relatives such as his mother and brother. It has come on record that no recoveries were made from any of these jhuggis and this is clear from the search memos which were placed on record as Exh.PW-18/B, C and D. In the absence of any recovery having been made from these jhuggis, it cannot be said that non-supply of these documents at any relevant point of time by the prosecution prejudiced the Appellant in his trial. In the context of recoveries having been made, it was submitted that the rexine bag, which the Appellant was seen to be going out with from the scene of the crime, was not recovered. We find from the evidence on record that PW-18 Inspector Narender Pal Singh has referred to the recovery of "thaila momi" as Exh.P-44 as the rexine bag but no question was put to this witness to suggest that it was not a rexine bag. In any case, we are of the view that taking the entire circumstances of the case into consideration, even if the rexine bag was not recovered from the Appellant, it would not cause any substantial damage to the case of the prosecution.
27. It was contended that several of the witnesses have said that there were no injuries on the deceased but the post mortem report Exh.PW-7/A submitted by PW-7 Dr. Sirohiwal shows that the deceased had as many as 10 injuries on and around her face. We have gone through the nature of the injuries and find that apart from one swelling on the left upper aspect of the occipital region and on the back of the right elbow, all other injuries are minor abrasions, which should have been noticed by Dr. Arun Dev Anand and Dr. Raktima Anand but were perhaps not noticed by them or other witnesses. The failure of some witnesses to notice the injuries does not lead to any conclusion, one way or the other. In any case, there is no doubt, from a reading of the post mortem report, that these injuries were ante mortem. No suggestion was put to the witnesses that these injuries were not ante mortem.
28. In so far as other incriminating material against the Appellant is concerned, the strands of hair recovered from the fist of the deceased were compared with the sample of the hair taken by PW-6 Dr. K.L. Sharma. PW-17 Suresh Babu from the CFSL in his report Exh.PW-17/A compared the two samples and came to the conclusion that they were human scalp hair and were similar but no conclusive evidence could be given as to the common source. Learned Counsel for the Appellant contended that under these circumstances, it must be held that the hair recovered from the fist of the deceased were not those of the Appellant. We are of the view that the evidence given by PW-17 Suresh Babu does not conclusively show that the hair in the right fist of the deceased were those of the Appellant.
29. One of the earliest cases from which we can draw some guidance is the decision of the Supreme Court in Kanbi Karsan Jadav v. State of Gujarat . In that case, the dead body was recovered from a pit along with a scarf that had the hair of both the deceased as well as the accused. The Supreme Court relied upon the examination of hair, which showed a resemblance between the hair on the scarf and the hair of the accused and other circumstances to connect the accused with the crime. The Supreme Court noted as follows:
The writers of medical jurisprudence, however, have stated that from the microscopic examination of the hair it is possible to say whether they are of the same or of different colours or sizes and from the examination it may help in deciding where the hair come from. In Taylor's Medical Jurisprudence (1956 Edn.) Vol. 1, at p. 122, some cases are given showing that hair were identified as belonging to particular persons.
30. It may be mentioned, en passant, that in the 1956 edition of Taylor's Principles and Practice of Medical Jurisprudence, it has been categorically stated that:
Examination of hair may enable the observer to diagnose the origin of a hair, or at least the group of animals from which a hair has been derived, but it is never possible to state that a hair belongs to a particular individual or animal. No one is entitled to say more than that the hair appears to be identical in all aspects that the hair from a particular source.
It is for this reason that the Supreme Court did not rely solely upon the presence of "similar" hair, but also took into account other evidence to connect the accused with the crime.
31. A decade later in Maghar Singh v. State of Punjab the Supreme Court again used the presence of hair, not as the primary evidence, but as a part of the chain to connect the accused with the crime. This is what was said, Apart from this circumstantial evidence which conclusively connects the two accused with the murder of the deceased, namely, recovery of the weapon of offence, the false explanation given by Surjit Kaur, the recovery of the clothes from the person of the accused, there is another important circumstance which almost clinches the issue and completes the link in the chain of circumstantial evidence and this is that the kirpan recovered from the possession of the appellant Maghar Singh contained blades of hair of the deceased stuck to it and on scientific examination the blades were found to be identical with the hair of the deceased. This, therefore, completely establishes that it was the accused Maghar Singh alone who had caused the death of the deceased with the kirpan and this circumstance is not explainable on any other hypothesis except that the accused was guilty of the offence of murder.
32. In a later edition of Taylor's Principles and Practice of Medical Jurisprudence (13th Edn.), 1984, it has been stated (page 177) that, In view of its importance as trace evidence much research has been carried out in an attempt to positively identify hair as having come from one individual. In fact, it was hoped at one time that hair would have the specificity of fingerprints. This is not so, but nevertheless the examination of hair has advanced sufficiently in recent years for the forensic scientist to provide a great deal of information from his examination.
Subsequently at page 178 of the book, it has been stated as follows:
The identity of the origin of hairs becomes more specific the greater the number available for examination.
The questions that the scientist must attempt to answer are:
1.Is the material hair or some other fibre?
2. If a fibre, what is it?
3. If hair, is it human or animal?
4. If human, from what part of the body did it originate?
5. If human, is it male or female?
6. If human, what is the blood group?
7. Are the hairs identical with those of the victim or suspect?
8. Are there any special features?
a. ethnic, b. how and when cut, c. presence of dyes, etc., d. any adherent foreign material.
The position may have changed now with more advances in science but we cannot say for sure.
33. In State of Kerala v. Baby Joseph 1992 Cri.LJ 2257 four strands of hair were found in between the fingers of the deceased. These were similar to the hair from the scalp of the accused. The Kerala High Court described that circumstance as a strong one that went a long way in pointing an accusing finger towards the accused. The Court found the report of the expert on the analysis of hair as an acceptable form of evidence and in conjunction with other evidence, it was sufficient to clinch the issue.
34. The Calcutta High Court noted, in Himangshu Pahari v. The State 1986 Cri.LJ 622, that the science of comparison of hairs has not yet reached perfection like the science of comparison of fingerprints. Where, therefore, all tests are not meticulously carried out, it would be unsafe to rely upon the report of any examination of the hair. Such examination may relate to the diameter of the shaft of the hair, or its length, impression of the cuticles of the hairs, shape, appearance and colour, etc.
35. In Ashok Kumar v. State of M.P. 1998 Cri.LJ 4103, in a somewhat similar circumstance, hair seized from the fist of the deceased and the hair of the accused were sent for Chemical examination and in the report that was submitted, it was opined that the hair were similar in morphological and microscopic character. Nevertheless, the Division Bench relied upon other testimonial evidence, apart from the Chemical examiner's report to affirm the trial court finding about the guilt of the accused.
36. Finally, in State of Kerala v. Rajan alias Nasam 2004 Cri.LJ 715, the hair collected from the scene of occurrence was said to be "similar" to that of the accused. The trial court did not place any reliance on the scientific evidence that was produced and the Division Bench noted that, The science of hair identification is a fast advancing science and even if it is assumed that individualization is not possible the results of scientific examination of hair can be relied upon along with other circumstances connecting the accused with the crime.
A reference was made by the Division Bench to Kanbi Karsan Jadav and also another decision of the Division Bench of the Kerala High Court in Mohanan Kani v. State of Kerala 2nd (1989) 2 Ker LT 839 in which case the scalp hair recovered from the dead body were similar to the scalp hair of the accused in all the parameters chosen for comparison. It was held that Chemical examination of scalp hair could be considered as an acceptable piece of evidence to connect the accused. The Division Bench took note of a decision taken by another Division Bench of the Kerala High Court in Fr. George Cherian v. State of Kerala 2nd (1989) 2 Ker LT 95 in which it was noted that apart from the similarity in hair, there was no other circumstance pointing to the guilt of the accused and, therefore, it was safe to base the conviction only on that circumstance.
37. On a consideration of all these decisions, it appears to us that even though the science of hair identification may be quite an advanced science and it may be possible to determine the source, it would not be safe to solely rely upon the similarity of hair to convict an accused person - there must be some other connecting evidence to link the accused person with the crime, although the analysis of hair would be an important piece of evidence. For this reason, we cannot definitely say that the four strands of hair in the right fist of the deceased, which are apparently similar to the hair of the Appellant, are the hair of the Appellant. Even the expert witness could not say that. But what is the position if we take other relevant evidence into consideration?
38. The present case is one that is based entirely upon circumstantial evidence. We have recently discussed the law with regard to circumstantial evidence in Prem Chand v. The State Criminal Appeal No. 302 of 2000, decided on 29th September, 2006. We have noted in that decision the five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence, as laid down by the Supreme Court in Hanumant v. State of Madhya Pradesh . We may note that recently, the Supreme Court in K.R. Purushothaman v. State of Kerala held as follows:
Circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn, and no other hypothesis against the guilt is possible.
Similarly, in Reddy Sampath Kumar v. State of Andhra Pradesh , it was stated as follows:
It is a well settled principle of law that in order to sustain conviction, the circumstantial evidence must be complete and incapable of explanation of any other hypothesis except that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
39. Looked at in the above light, we find that the following facts cannot be disputed:
(a) The Appellant worked in the household of Dr. Raktima Anand till about 15 days prior to the incident. His services were terminated on account of an allegation of theft.
(b) Mrs. Mahima Anand (the deceased) was all alone in the house on the day of the incident, that is, 10th November, 1993.
(c) The Appellant was seen rushing out of the house of Dr. Raktima Anand and soon thereafter the corpse of Mrs. Mahima Anand was discovered.
(d) The deceased and the Appellant had a scuffle in which she apparently managed to grab four strands of the hair of the Appellant in her right fist.
(e) Mrs. Mahima Anand (the deceased) had died due to asphyxia and there was no evidence to show that anybody else apart from the Appellant had entered the household.
40. We find from the above facts that there is a chain of events which leads to the inevitable conclusion that the Appellant had committed the murder and that there is no other possible hypothesis that can be advanced for the cause of the death of Mrs. Mahima Anand other than at the hands of the Appellant. It is under these circumstances that the presence of the hair of the Appellant in the fist of the deceased clinches the issue in favor of the prosecution on this aspect of the case.
41. Learned Counsel for the Appellant has, however, raised a more substantial contention relating to the recovery of the goods from the possession of the Appellant in the railway station. It was submitted that the recovery was made under highly suspicious circumstances. It was contended that there was a material discrepancy in the timing when the police received the secret information. While it is stated by PW-11 SI Satpal that the secret information was received at 2.30 am, it is stated by PW-14 Ct. Rajender Singh that the secret information was received at 3.00 am and PW-18 Inspector Narender Pal Singh stated that the secret information was received at 3.30 am. In addition to this, the secret information was received when the police were near the Ranjit Singh flyover, which is barely about half a kilometer from the railway station, and yet the police party reached the railway station only at 4.00 am. It was also submitted that no public witness was joined in the recovery proceedings nor were any independent police personnel present at the railway station joined in the recovery proceedings. It was contended that in fact there was no recovery from the Appellant and the goods were planted on him.
42. We find that there are far too many gaps in the story of the prosecution with regard to the recovery of stolen goods. For one, there is a huge variation in respect of the time when the secret information was received. Three different versions have come on record and it is not clear when the secret information was received. It is also correct that the railway station was barely half a kilometer away from the spot from where the secret information was received. Since it was early morning with hardly any traffic on the roads, it would not have taken the police party more than five minutes or so to reach the railway station, as contended by Learned Counsel for the Appellant. Yet, for some inexplicable reason, it took the police party about half an hour (minimum) to one and a half hours (maximum) to reach the railway station. Why is this so?
43. Moreover, we find that if the intention of the Appellant was to run away (as it appears to be), the police would have acted with alacrity so that the Appellant does not get on to a train and leave Delhi. From the facts that have been placed before us, it appears that the police did not show the necessary promptitude. While it may be that alerting the police staff at the railway station may have raised the suspicion of the Appellant and that is why police personnel at the railway station were not informed, but this is all the more reason that the police should have promptly gone to the railway station and yet they took anything from half an hour to one and a half hours to reach the railway station and cover the distance of half a kilometer.
44. We also find it a little odd that absolutely no attempt was made to join any independent person in the recovery proceedings. It is not as if the railway station was deserted. Some attempt could have been made to involve some independent person in the recovery proceedings and if that independent person had refused, as it often happens, then the police could also have taken the help of other personnel who were available in the police booth which was barely about 50 feet away from where the Appellant was apprehended. It appears that absolutely no steps were taken to either involve any public witness or to take the assistance of any police personnel at the railway station.
45. There is also no reason given why the Appellant wanted to go to Jhansi particularly when his family, that is, his wife, mother, brother and sister were all in Delhi. Taking the recovery of goods in the overall context, we find that the prosecution has not been able to prove beyond a reasonable doubt that the goods were recovered from the Appellant at the railway station. There are some inexplicable loopholes in the story put forward and the gaps have not been adequately filled up. Under the circumstances, we have no option but to hold that the conviction of the Appellant for an offence under Section 394 of the IPC has not been made out.
46. We are of the view that the recovery of the stolen goods from the Appellant can be completely separated and kept apart from the murder committed by him. The fact that the prosecution has not been able to prove the recovery from the Appellant at the railway station cannot lead to the conclusion that he did not kill Mrs. Mahima Anand - a crime may be committed without any motive being proved by the prosecution. This is what has happened in the present case. The prosecution has been able to complete a chain, based on circumstantial evidence, regarding the murder of Mrs. Mahima Anand, but it has not been able to complete the chain regarding the stolen goods and their recovery.
47. The Appellant produced two witnesses in his defense but the learned Trial Judge did not believe them for the simple reason that they had stated that the police party had carried out a search of Kothi No. 38 in the campus premises at about 4.30 pm on 10th November, 1993. This, on the face of it, was found to be improbable because the FIR was lodged with the police only at 6.30 pm on that date and in fact the body of the deceased was discovered only at about 5.15 pm on that date. Clearly, there is no possibility of the goods being recovered from Kothi No. 38 at 4.30 pm on 10th November, 1993. Both the defense witnesses are untrustworthy.
48. Under the circumstances, we partly allow the appeal filed by the Appellant. We uphold the conviction of the Appellant for an offence punishable under Section 451 of the IPC and for an offence punishable under Section 302 of the IPC. We, however, set aside his conviction for the offence punishable under Section 394 of the IPC. We maintain the sentence awarded by the learned Trial Judge in respect of the offence punishable under Section 302 of the IPC and for the offence under Section 451 of the IPC.
49. Learned Counsel for the State had contended that this was an appropriate case in which the extreme penalty of death should be awarded against the Appellant. On the facts, we do not find that the case is one, which falls in the category of "rarest of rare" cases, and we decline to award the extreme penalty of death. The appeal filed by the State is, accordingly, dismissed.
50. In view of the efforts put in by the learned amices Curiae, we direct the State to pay him one set of fees of Rs. 5,500/- in respect of both the appeals. The fees shall be paid within a period of six weeks from today.