Delhi High Court
Shashi Shekhar @ Neeraj @ Raju vs State on 14 May, 2007
Author: P.K. Bhasin
Bench: R.S. Sodhi, P.K. Bhasin
JUDGMENT
P.K. Bhasin, J Page 1539
1. Conviction of the appellant Shashi Shekhar @ Neeraj @ Raju under Sections 302/392/397 IPC vide judgment dated 23-4-2004 passed by an Additional Sessions Judge, New Delhi in Sessions Case No. 385/96 arising out of FIR No. 76/96 of Chittaranjan Park police station has led to the filing of the present appeal.
2. The appellant - accused was tried for his having committed robbery in the house of the complainant Smt. Daisy Jacob(PW-2) on 5-2-96 and also for his having murdered the complainant's maid servant while committing robbery. As per the prosecution case, the complainant PW-2 Mrs. Daisy Jacob along with her daughter Pamila Jacob(PW-4) was living in flat No. 403, Neelgiri Apartments, Alaknanda, New Delhi. The complainant's sister PW-1 Mrs. Crecll Mascarehans was also living with them in the same flat. They had employed a full time maid servant Hema(hereinafter referred to as 'the deceased'). On 5-2-96 the complainant and her sister had both left the house in the morning for their offices and the complainant's daughter Pamila had gone to her college. The deceased was left alone in the house. When Pamila returned back to her home around 1 p.m. she rang the door bell but for quite sometime the maid servant did not open the door and then Pamila became suspicious and telephoned her mother who then reached the house and since the door was bolted from inside they entered their flat from the terrace of their neighbour's flat and then found their maid servant Hema lying dead with a crepe bandage tied on her neck. The complainant found the almirah in the bedroom lying open and the goods in the room were lying scattered. They raised hue and cry and then somebody telephoned the police. PW-28 Inspector J.K.Sidhu reached the place of occurrence and recorded the statement of the complainant, Ex. PW-2/A. In that statement the complainant narrated the afore-said facts and regarding the details of missing articles of jewellery, cash etc. she stated that she would inform the police after checking about the same. It appears that on the same day the complainant gave two page list (Ex. PW-2/B & C) of missing articles running to the police. On the basis of the aforesaid statement of the complainant FIR No. 76/96 under Sections 302/397 IPC was registered on the same day. PW-28 held inquest proceedings at the spot and sent the dead body of the deceased to the mortuary for post-mortem examination. As per the post-mortem report Ex. PW-13/A of Dr. O.P.Murti the cause of death of the deceased was asphyxia as a result of ligature strangulation.
Page 1540
3. As per the further prosecution case the police on some secret information raided house No. 254-A/3, village Munirka village on 18-3-96. Raid team of police officials was headed by PW-30 Inspector Hawa Singh. The appellant was apprehended from that house and at that time , as per the prosecution case, he was having a blue coloured pouch in his hand. That pouch on being checked by Inspector Hawa Singh was found to contain seven gold bangles, one bracelet of gold, one necklace, two jhumkis, one wrist watch of 'Lustra' make, four coins and one jhumka of white metal. The accused was wearing a ring. All these articles were taken into police possession vide memo Ex. PW-10/B after sealing them. The said house allegedly belonged to one Mohd. Arif and his wife. At the instance of appellant the police also recovered some more articles which included a camera, goggles, 89 foreign currency coins etc. from the same house. Those items were also sealed and seized by PW-30. At the time of the raid Arif Mohd. and his wife Mano Begum @ Manjeet Kaur were also present. They were also arrested by the police for their having harboured the appellant. While in police custody Shashi Shekhar made disclosure statements and confessed having committed robbery and murder of the deceased Hema as well as about his having committed similar offences of robbery and murder in other houses on different dates and pursuant to those disclosure statements he got recovered various articles which were stolen from the other houses. During investigation a test identification parade in respect of the various articles got recovered by the appellant was got arranged by the investigating agency and the same was conducted by PW-27 Shri Ravinder Dudeja, Metropolitan Magistrate on 13th May, 1996 in respect of three FIRs of Chittaranjan Park police station including the FIR of the present case and one FIR of Vasant Kunj police station. The prosecution case is that during that test identification parade the complainant of the present case Smt. Daisy Jacob identified some of the jewellery items to be belonging to her. The complainant's sister Ms. Cecill Mescrahans had also participated in that test identification parade and she also correctly identified the jewellery items which her sister Daisy Jacob had earlier identified. Those articles were then sealed separately as the case property of the present case. Thereafter PW-27 proceeded to conduct the TIP in respect of the remaining recovered articles by the victims of the other three incidents of robbery etc. allegedly committed by appellant.
4. On the completion of the investigation the police filed a charge-sheet in Court against the appellant and two other accused, namely, Mohd. Arif and Mano Begum @ Manjeet Kaur from whose house the appellant was apprehended and stolen articles were recovered. In due course the case was committed to the Court of Sessions where accused Shashi Shekhar was charged under Section 302 and also under Section 392 read with 397 IPC while the other two accused were charged under Section 216-A IPC. All the three accused had pleaded not guilty and accordingly the prosecution was called upon to adduce evidence in support of its case against the three accused persons. The prosecution then examined 30 witnesses and one witness was examined as a Court witness. When examined under Section 313 Cr.P.C. after the conclusion of prosecution evidence all the three accused denied the prosecution allegations against them in toto and pleaded false implication Page 1541 by the police. Accused Shashi Shekhar also took a plea that he was involved in a case of Kalkaji police station in which he was acquitted due to which PW-30 Inspector Hawa Singh used to call him to the police station and harass him by asking for conveyance and when he could not provide him conveyance Hawa Singh became angry with him and wanted to implicate him in some case. In the month of March he had gone to Vaishno Devi and when he came back he came to know that his brother had been lifted by the police of Chittaranjan Park police station and when his family members enquired from the police about the reason for taking away his brother the police came to his residence in Arjun Nagar on the night of 15/16-3-96 and picked him up also and falsely implicated in this case about which his father had sent a telegram also. The accused further pleaded that Inspector Hawa Singh was asking for illegal gratification for his release as well as of his brother and that thereafter a sum of Rs. 40,000/- was paid to Inspector Hawa Singh for the release of his brother.
5. No evidence was adduced in defense by any of the three accused persons and after hearing the arguments from both the sides and examining the prosecution evidence the learned trial Judge vide his judgment under challenge convicted the appellant - accused Shashi Shekhar under Sections 302 and 392 read with 397 IPC and vide order dated 28/04/004 sentenced him to undergo life imprisonment and also to pay fine of Rs. 1000/- with a default stipulation under Section 302 IPC and to ten years rigorous imprisonment and fine of Rs. 1000/- under Section 397 IPC. Substantive sentences were ordered to run concurrently. The other two accused were, however, acquitted. Feeling aggrieved by his conviction ordered by the trial Court the appellant preferred this appeal and has challenged the judgment of conviction and the order on sentence.
6. Learned counsel for the appellant did not raise any dispute about the incident of robbery in the house of the complainant and the murder of her maid servant during the commission of robbery by the robber, whosoever he was. Even otherwise the fact that on 5-2-9 robbery and murder took place in the house of the complainant is fully established from the evidence of the complainant PW-2 Daisy Jacob, her daughter PW-4 Pamila and her sister PW-1 Crecil Mascrahans all of whom have deposed about the happenings on 5-2-96. We need not refer to the evidence of all three of them and suffice it would be to notice the relevant part of the evidence of the complainant. PW-2 Mrs. Daisy Jacob deposed that on 05.02.1996 she was away to her office and her daughters have gone to attend their college and her younger sister had also gone to attend her office at Faridabad. She further deposed that her maid servant Hema used to be alone in the house in the day time and at about 1.00 p.m. her daughter Pamila called her in her office on telephone saying that Hema was not opening the door in spite of giving continuous bells and main door was lying open but the other door was closed. She thereafter deposed that on receipt of this information she along with her colleague Mr. Basant(PW-19) reached at the residence and tried to push the bell but the same was not working. They were residing at the first floor of the premises at that time and with the permission of the owner of flat No. 396, which was adjacent to their house, they came to their terrace Page 1542 with the help of a ladder and found the door of their terrace was lying open and when they entered in the lobby of the flat they noticed that all the things were lying scattered on the floor of the bed room and the doors of the bed rooms were lying open. She also deposed that in one of the bed rooms they found body of Hema lying on the floor and she was dead. The neighbours called the police and police reached at the spot within 5-7 minutes and on enquiry she informed the police that they had not touched anything inside the flat by that time. She thereafter deposed that on checking she found that number of jewellery articles and cash belonging to her, her daughters and sister were stolen and that she had submitted lists Ex. PW-2/B & C, of stolen articles to the police and also that her statement Ex.PW-2/A was recorded by the police. She further deposed that during the test identification parade she had identified seven gold bangles, Ex. P-1/1-7, two wrist watches Ex. P-2/1-2, one gold chain Ex. P-3, one gold necklace set with two ear ring tops and one finger ring, Ex. P-4/1-4, two bracelets Ex. P-5/1-2, two pearl ear tops and one pearl ear ring, Ex. P-6/1-3, one pair of gold jhumka Ex. P-8/1-2, one gold chain Ex.P-7, two gold coins Ex. P-9/1-2 and then she had taken the same on superdari. During her evidence she produced in Court all these articles and also stated that in the test identification parade these articles were identified by her sister Mrs. Crecil Mescrahans also.
7. PW-4 Pamila Jacob, daughter of the complainant and PW-1 Crecil Mascrahans, sister of the complainant, have also corroborated the version of the complainant regarding the incident of robbery and murder in their house. Thus, from the evidence of the complainant, her daughter and sister it stood established beyond any doubt that on 5-2-96 robbery took place in the house of the complainant and in the process of commission of robbery the robber also killed the maid servant who was alone in the house at that time. It also stood established that the articles which the complainant claims to have gone missing from her house were stolen on 5-2-96 itself. As far as the nature of death of the deceased Hema being homicidal is concerned it also gets established from the evidence of the autopsy surgeon PW-13 Dr. O.P. Murti and which fact learned Counsel for the appellant did not even dispute before us nor was it disputed before the trial Court.
8. Learned counsel for the appellant, however, very strongly challenged the sustainability of the trial Court's findings holding the appellant guilty for the offences of robbery and murder. The case of the prosecution regarding the involvement of the appellant in the robbery and murder rests primarily on the recoveries of stolen articles from his possession. In this regard the submission of learned Counsel for the appellant was that the alleged recoveries of the so-called stolen articles from the appellant from the house in Munirka from where he was allegedly arrested are not at all proved by any reliable and independent evidence and based on the evidence of police witnesses only the learned trial Judge was not justified in convicting the appellant.
9. Learned counsel also submitted that even the evidence of police witnesses is discrepant on material particulars inasmuch as PW-10 Head Constable Ashok Kumar has claimed that accused Shashi Shekhar was apprehended when he was coming out of the house in Munirka Village and at that time he Page 1543 was carrying with him a pouch from which certain stolen articles were recovered while PW-11 Const. Jaivir Singh and PW-18 ASI Hari Kishan have claimed that all the recoveries were made from inside the house No. 254-A/3, Munirka and that Shashi Shekhar had met them inside the house. PW-6 Const. Mahavir Singh had claimed that Shashi Shekhar was having blue coloured plastic packet in his left hand while PW-18 has claimed that canvas pouch from which jewellery was recovered had been tied around the waist of the accused. It was further contended that as far as PW-11 is concerned he having admitted in his cross-examination that he had not signed the recovery memos, his evidence even otherwise becomes highly doubtful. Learned counsel also submitted that even if this Court accepts the prosecution's case regarding the recovery of stolen property from the appellant-accused he can still not be said to be guilty of the offence of murder of the complainant's maid Hema because the alleged recoveries were not effected soon after the incident inasmuch as robbery and murder took place on 5th February, 1996 while recoveries were effected from the appellant-accused 40 days thereafter and, therefore, the benefit of the presumption against the accused available to the prosecution under Section 114, illustration (a) of the Evidence Act cannot be pressed into service in the facts of the present case and at the most the appellant-accused could be convicted under Section 411 IPC. Learned counsel also contended that it was the prosecution's case itself that the recoveries of stolen articles were made from the house of the other two accused Mohd. Arif and Mano Begum both of whom were allegedly present also in their house at that time but both of them were not even charged for the offence of robbery and murder and if they could not be held guilty for these offences on the basis of recovery of stolen articles from their house by no stretch of imagination the appellant-accused could be convicted on the basis of recoveries made from their house by invoking the presumption under Section 114, illustration(a), of the Evidence Act. Learned counsel for the appellant also argued that even though the investigating agency had during the course of trial obtained finger prints of the appellant-accused for comparison with some chance prints and prosecution is relying upon the circumstance of his finger printer matching with one chance print, as deposed to by the expert PW-21 but that evidence is of no use since there is no evidence to show as to from where chance prints were lifted and who had lifted them. No witness has been examined to that effect and so the trial Court was not justified in relying upon that circumstance .
10. On the other hand, the learned Additional Public Prosecutor representing the State fully supported the trial court's judgment and submitted that there was no infirmity whatsoever in any of the findings of the learned trial judge and there is no scope of interference in this Appeal with those findings.
11. In order to appreciate the rival submissions in respect of the evidence about the recovery of stolen articles at the instance of the appellant - accused we will have to examine the evidence of the recovery witnesses all of whom admittedly are police officials. We start with the evidence of PW-30 Inspector Hawa Singh, who was the SHO of Chitaranjan Park police station those days and, as noticed already, had taken over the investigation from the initial investigating officer PW-28 Inspector J.K.Sidhu on the day of arrest of the Page 1544 appellant and the two acquitted accused. PW-30 Inspector Hawa Singh has deposed that 18.3.1996 he along with ASI Hari Kishan and 3-4 constables laid a trap in house No. 254-A/3 and arrested accused Shashi Shekhar with one blue pouch in his hand. On checking of the pouch seven gold bangles, one bracelet of gold and one necklace, two jhumkis, one wrist watch and one jhumka of white metal were recovered. The same were sealed and seized vide memo Ex.PW-10/B He thereafter deposed that accused was arrested from the house at Munirka belonging to Mohd. Arif and Babli and also that on the pointing out of the accused(appellant herein) one camera, 89 foreign currency coins, five Indian coins, three perfume containers, two goggles, one magnate, one calculator and some artificial jewellery were recovered from a bed box in the same house and those articles were also sealed and seized vide memo Ex.PW-18/A. He further deposed that accused Mohd. Arif and Mano Begum were arrested on 19.03.1996 and their personal search was conducted and their disclosure statements were recorded. He then deposed that during the investigation the accused persons Mohd. Arif and Mano Begum were taken to their house at Munirka where accused Mohd. Arif handed over a driving license of accused Shashi Shekhar. He then went on to depose about the appellant-accused having pointed out the place of incident of the present case as also the other places where he had committed similar offences and also got recovered various stolen articles from his house in Arjun Nagar. He further deposed that he obtained finger prints of accused Shashi Shekhar for comparison and chance prints of Shashi Shekhar were found positive. He then deposed that on 13.5.1996 the TIP of the case property was conducted by the complainant.
12. The next recovery witness is PW-18 ASI Hari Kishan who deposed that on 18.3.1996 he remained with the IO Hawa Singh and reached at the house of Mohd. Arif at No. 254 A/3, Munirka from where accused Shashi Shekhar was apprehended and his personal search was conducted vide memo Ex.PW-10/A. He further deposed that his disclosure statement Ex.PW-11/A was recorded by Inspector Hawa Singh and one canvas pouch tied with his waist was got recovered from which the jewellery was also recovered which was seized vide memo Ex.PW-10/B. Accused Shashi was wearing a gold chain which was also seized. He then deposed that some more jewellery items from a wooden box lying a room were also got recovered by accused Shashi. He thereafter deposed that on 19.3.1996 accused Mohd. Arif and Manu Begum were also arrested vide memo Ex.PW-10/C and Ex.PW-6/A and their disclosure statements were also recorded vide memo Ex.PW10/D and Ex.PW-6/B. He also deposed that on 19.3.1996 driving license of accused Mohd. Arif was also seized vide memo Ex.PW-10/E. He then deposed that on 20.3.1996 accused made another disclosure statement pursuant to which he got recovered some articles from house No. 178 Arjun Nagar which were seized vide memo Ex.PW-18/F.
13. PW-26 Ct. Mahavir Singh was also a part of the raiding party on 18-3-96. He has deposed that on 18.3.1996 when he was posted in police station C.R. Park he along with SHO, ASI Hari Kishan, constable Jaivir and constable Ashok Kumar had gone to house No. 254/A-3, Munirka and apprehended accused Shashi Shekhar @ Neeraj with a blue Page 1545 colour cloth pouch. He further deposed that seven gold bangles, one gold bracelet, one gold necklace, one pair gold jhumki, one wrist watch, some coins were recovered from the accused. He also deposed that accused made disclosure statement and he also led the police party up to the car which was parked near the park of said house. He then deposed that SHO Hawa Singh also checked the bed box which was lying in the room from which one camera, two pairs of goggles, one calculator, three bottles of perfume, one magnet, some foreign coins and some Indian coins were recovered which were seized vide memo Ex.PW-18/A. He thereafter deposed that on 20.3.1996 he along with the investigating officer had gone to the house of accused Shashi Shekhar in Arjun Nagar where he had got recovered some jewellery from the bed box consisting four gold chains, 11 karas of small size and one container containing some gold jhumki, bundas and necklace were recovered. He also deposed that one another container was also recovered which contained one pair of gold bundas, one pair of jhumki, one gold chain, mangalsutra.
14. These are the recovery witnesses whose evidence only was read out before us from both the sides for appreciation of the rival contentions. Learned trial Court had after going through their evidence come to the conclusion that none of them could be discredited in cross-examination We have also made an independent analysis of their evidence and we have found that these three witnesses of recovery of stolen articles stood the test of cross-examination and nothing could be elicited from them which could make the recoveries spoken to by them doubtful. None of them had any axe to grind against the appellant - accused nor it was even suggested to them in cross-examination that for any particular reason they had implicated him in this case. Their evidence cannot be discredited for the reason that no public witness has been produced by the prosecution in support of the recovery of stolen articles from the appellant-accused at the time of his arrest from the house in Munirka village. Just because these three witnesses are police officials it cannot be said that their evidence is not of an independent character. They are all Government servants and there is a presumption under Section 114, illustration (e) of the Evidence Act regarding the fact that all official acts by Government servants were regularly performed. If an accused wants to rebut this presumption provided under Section 114, illustration (e) of the Evidence Act he can do so by bringing on record relevant material either by producing his own evidence or during the cross-examination of the witnesses from which a doubt may enter the judicial mind regarding the genuineness of the acts which the police witnesses claimed to have performed while discharging their official duties during the investigation of a crime. However, the appellant-accused in the present case has failed in that attempt. The inconsistencies in their evidence highlighted by the counsel for the appellant are not at all material. All of them have corroborated each other regarding the recovery of huge quantity of jewellery items from the possession the appellant-accused. In view of the reliable evidence of PW-30 Inspector Hawa Singh, PW-26 Ct. Mahavir Singh and PW-18 ASI Hari Kishan we are not inclined to accept the bare denial of the accused regarding the recovery of stolen articles from his possession and to reject the evidence on oath of these recovery witnesses. The amount of jewellery articles recovered Page 1546 from the appellant - accused cannot be expected to be planted one, as was also the submission of learned Counsel for the appellant. There is nothing on record from which it could be inferred that the complainant would have given that much jewellery to the police to be shown as recovered from the appellant in order to falsely implicate him. The appellant-accused not claimed ownership of the jewellery etc. recovered from his possession at the time his arrest from Munirka house on 18/03/96. At that time those articles were seized under Section 102 Cr.P.C. and later on some of them were identified by the complainant in the test identification parade before the Magistrate(PW-27). Some of the other jewellery got recovered by the appellant-accused from his house in Arjun Nagar was also identified by the complainant during the test identification parade to be belonging to her and then in Court also during the trial she claimed ownership of those articles. The appellant has not disputed the complainant's ownership of those articles which she had identified in test identification parade. In these circumstances, it is clearly established that the appellant-accused was found to be in possession of stolen articles on 18/03/96 which recovery in the facts of this case and particularly the nature and quantity of jewellery recovered can be said to be soon after the incident of robbery and murder in the complainant's house on 5/02/96.
15. Having reached the afore-said conclusion, we have no hesitation in coming to the further conclusion that the recovery of huge amount of stolen articles from the appellant-accused, which in the facts and circumstances of this case can be said to be soon after the incident of robbery and murder, makes the appellant - accused not only the robber but also the murderer of the deceased. In this view we find full support from a decision of the Hon'ble Supreme Court in "Mukund @ Kundu Mishra v. State of Madhya Pradesh" , wherein it was held that when the prosecution successfully proves that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered from some person the Court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In this regard an earlier judgment on the same point , "Gulab Chand v. State of Madhya Pradesh" was also relied upon. In the present case also it is clearly established that robbery and murder were a part of the same transaction and so the learned trial Court did not commit any mistake in holding the appellant-accused guilty both for robbery and murder based on the evidence of recovery of stolen articles. There is no doubt that the trial Court has also taken into consideration the fact that specimen finger prints of the appellant-accused had matched with a chance print as deposed to by the finger print expert PW-21 Avdesh Kumar but at the same time it had also been observed that even if that circumstance is not taken into consideration Page 1547 in view of the point raised by the accused that no witness who had lifted the chance prints had been examined still the prosecution would succeed on the basis of evidence of recovery of stolen articles from the accused. In our view, the objection raised on behalf of the appellant-accused regarding this piece of evidence relied upon by the prosecution was justified. Since there is no evidence adduced to show as to from where and from which articles chance prints were lifted and by whom. However, we agree with the view taken by the learned trial Judge that the prosecution case against the appellant-accused stood established beyond any shadow of doubt even after excluding the finger print expert's evidence.
16. There is no doubt that some of the stolen articles of the present case were recovered from the house of the two acquitted accused and they were charged only for harbouring the appellant but since the State had not challenged their being charged only under Section 216-A IPC and there is no appeal also filed against their acquittal we need not express any opinion regarding their acquittal. The appellant-accused can certainly not claim acquittal for the reason that he also could not be charged and tried for the graver offences of robbery and murder because the other two accused were not charged and tried for those offences, as was also the submission of the counsel for the appellant.
17. No other point was raised for our consideration from the side of the appellant nor any other evidence except which we have already noticed and dealt with was referred to from both the sides.
18. We, therefore, do not find any infirmity in the judgment of the trial Court holding the appellant guilty for the offence of robbery as well as murder and this appeal being devoid of any merit is liable to be dismissed and resultantly we dismiss Criminal Appeal No. 473 of 2004.