* IN THE HIGH COURT OF DELHI AT NEW DELHI +1. Crl. Appeal No.343/2004 Reserved on: September 26, 2007 Date of Decision: February 04, 2008 Staila Sayyed .... Appellant Through Mr. Bhupesh Narula, Adv. versus State .... Respondent Through Dr. M.P. Singh, APP. 2. Crl.A.342/2004 Sayyed Mirazuddin @ Miraz ....Appellant Through Mr. Bhupesh Narula, Adv. versus State ....Respondent Through Dr. M.P. Singh, APP 3. Crl.A.345/2004 Sayyed Salimuddin @ Salim ...Appellant Through Mr. Bhupesh Narula, Adv. versus Crl.A.343/2004 Page 1 of 34 State ...Respondent Through: Dr. M.P. Singh, APP 4. Crl.A.368/2004 Ajay Singh ....Appellant Through Mr. Bhupesh Narula, Adv. Versus State ...Respondent Through Dr. M.P. Singh, Adv. 5. Crl.A.592/2004 Bhupender Nath ...Appellant Through Mr. Bhupesh Narula, Adv. Versus State ...Respondent Through Dr. M.P. Singh, APP. 6. Crl.A.674/2004 Yuvraj ....Appellant Through Mr. Bhupesh Narula, Adv. Versus State ...Respondent Through Dr. M.P. Singh, Adv. Crl.A.343/2004 Page 2 of 34 CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : MUKUL MUDGAL ,J . 1. These appeals challenge the judgment of the learned Additional Sessions Judge (hereinafter referred to as the “trial court”) dated 13th February 2004 and 19th February 2004 in Session Case No.54/2001 arising out of the FIR No.174/2000 registered at Police Station Vasant Vihar in respect of offences under Sections 395/396/376/411/402 read with Section 120-B of the Indian Penal Code (hereinafter referred to as “IPC”) and Section 25/54/59 of the Arms Act. By the impugned judgment the trial court convicted all the six accused to undergo imprisonment for life and fine. The case of the prosecution is as follows: (a) On 5th June 2000, one Anjali Ghate made a report to the police that her maid servant Chanda Paswan has been murdered. The said Anjali Ghate had only complained about the disarray in the house and had reported that Crl.A.343/2004 Page 3 of 34 she did not think that anything was taken away. However, on the next day, the said complainant Anjali Ghate reported about the missing of her passport, cheque book, some watches, one wrist watch, one pocket watch, one chain, one calculator, one necklace and one purse containing some cash. (b) Sixteen witnesses were examined by the prosecution. The murder was committed on 5th June 2000 and the police went to recover the missing articles upon disclosure statements of the accused persons on 7th June 2000. The entire prosecution case is founded on the recovery pursuant to the disclosure statements of the accused person. The case set up by the prosecution was that the disclosure statements revealed that the accused persons entered into a conspiracy to commit robbery and after committing rape and murder of the deceased Chanda, the accused persons robbed the house and took away valuable items from the said house. In the written submission on behalf of the prosecution/respondent, the learned Additional Public Prosecutor, Dr. M. P. Singh submitted that the present case is based on circumstantial evidence. The basic premise that he dwelt upon was: (i) The appellant had failed to give any explanation, either at the time of Crl.A.343/2004 Page 4 of 34 the recovery of the articles or during the trial with regard to her possession of the stolen properties. (ii) The stolen articles were recovered by the police from the house of the appellants within a short span of the said murder and dacoity. In order to support the above submissions, the learned Additional Public Prosecutor has cited the judgment of the Hon'ble Supreme Court in the case of Sanjay v State, AIR 2001 SC 979, applying the principle that the accused from whom recoveries were made consequent upon their disclosure statement did not offer an explanation regarding their possession of the stolen property and therefore, they were rightly convicted for the offences of murder and dacoity. Dr. M. P. Singh also submitted that the non joining of independent witnesses does not vitiate the recoveries and dismissed it as a minor irregularity. He, however, did not cite any judgment in support of this submission. The depositions of the prosecution witnesses are found in the trial court judgment. In support of its case, prosecution has examined as many as 16 witnesses as follows. (i) PW1 Dr. Joginder Kumar is the Chief Medical Officer of Safdarjung Hospital. He had deposed before the court that on 8th June 2000 he Crl.A.343/2004 Page 5 of 34 medically examined accused Bhupinder Nath, Yuvraj @ Raja, Ajay Singh and these accused persons were brought by SI Rajesh Kumar. In his opinion all the three accused persons were capable of performing the sexual act. He has further deposed that during his examination he found that Yuvraj had an abrasion of 3 mm x 2 mm on his left hand ring finger. He proved his report as Ex.PW1/A. (ii) PW-2 is HC Sukhbir Singh. He deposed before the court that on 5th June 2000 he was working as Malkhana Moharir. Inspector Suresh Daggar, SHO of PS Vasant Vihar, on the said date deposited nine sealed pulandas and an entry was made in register no 19 at serial no.736 by him that these pulandas related to case FIR No.174/2000. He further deposed that on 7.6.2000 Inspector Mahinder Pal Singh, the then Additional SHO, PS Vasant Vihar, deposited eight sealed pulandas and Inspector Mahinder Pal Singh also deposited one motor cycle bearing no.DL8SCG-1789, make Hero Honda, and the personal search articles of the accused Yuvraj, Sayeed Salim and Sayed Miraj. PW 2 further deposed that he deposited the above said pulandas and the above mentioned case property in the Malkhana after making an entry in register No.19 at serial no.739. Again on 14th June 2000, SI Rajesh Maurya of PS Vasant Vihar deposited five sealed pulandas duly Crl.A.343/2004 Page 6 of 34 sealed with seals intact along with a sample seal of Safdarjung Hospital in the Malkhana after making an entry in register no 19 at serial no.745. Again on 13th June 2000 vide Road Certificate No.135/21 one sealed pulanda alleged to contain knife was handed over to Inspector Mahinder Pal Singh for obtaining opinion from the Safdarjung Hospital by him. On 14th June 2000 the abovesaid knife in sealed parcel with the seal of the Safdarjung Hospital along with sample seal was again deposited back by SI Rajesh Maurya on 14th June 2000. He further deposed that on 18th July 2000 one sealed pulanda alleged to contain cushion with cover was handed over to HC Satbir Singh by him vide road certificate no.147/21 for depositing the same in FSL Malviya Nagar. On 18th July 2000 he also handed over one sealed earth control pulanda to HC Satbir Singh vide road certificate no.147/21 for depositing in FSL Malviya Nagar and on the same day another sealed parcel was given to HC Satbir Singh vide road certificate No.147/21 for depositing in FSL Malviya Nagar. On 13th June 2000 he handed over one sealed pulanda alleged to contain one dagger duly sealed with the seal of MS to Inspector Mahinder Pal vide road cerficiate no.135/21 for obtaining opinion by him from the Safdarjung hospital and on 14th June 2000 SI Rajesh Maurya deposited the said dagger back duly sealed Crl.A.343/2004 Page 7 of 34 with the seal of Safdarjung hospital along with sample seal and on 18th July 2000 he handed over one sealed parcel alleged to contain one katta and two rounds duly sealed with the seal of MS to HC Satbir Singh vide road certificate no.146/21 for sending to the FSL Malviya Nagar and on the same day another sealed pulanda alleged to contain underwear duly sealed was also handed over by him to HC Satbir Singh for depositing in FSL Malviya Nagar. PW 2 further deposed that on 18th July 2000 he also handed over one sealed parcel of this case to HC Satbir Singh for depositing with the FSL, Malviya Nagar. On the same day he made the relevant entry in register no.19 and on 11th September 2000 Exhibits bearing serial no.1 to 10 which were sent to the FSL Malviya Nagar were again deposited in the Malkhana by HC Satbir Singh duly sealed with the seal of DS FSL Delhi along with report. He also made an entry in register no.19 in this regard and proved his copy of register no.19 as Ex.PW2/A. (iii) PW 3 is Dr. Alexander. He has deposed before the Court that on 9th June 2000 he had conducted the post mortem examination on the body of Chanda Paswan. He found three injuries in the abdomen and according to him death in this case was due to shock and hemorrhage caused by multiple injuries and he proved his report as Ex.PW3/A. PW3 further deposed that Crl.A.343/2004 Page 8 of 34 on 13th June 2000 he had received an application from the IO for subsequent opinion in connection with the weapon of offence and the injuries caused on the person of the deceased with the said weapon. He further deposed that he received two parcels, one containing a kitchen knife and the other containing a dagger. According to him injury No.1 might be caused by the knife and injury no.2 might be caused by the dagger. The witness has identified the kitchen knife and dagger before the court as Ex.P2 and P3. His report is Ex.PW3/A. (iv) PW 4 is Anjali Ghate. She has deposed before the court that she was living at the H.No.D-1/25, Second Floor, Vasant Vihar, New Delhi, since 1995 and on 5th June 2000 as usual she had left her house at about 8.10 am for her job in J.R. Narang Deepalia School at B-64, Panchsheel Vihar, New Delhi. She has further deposed that she had one maid servant and in her absence she used to remain in the house and there was no other family member living with her in that house. She further deposed that she returned back to her house on 5th June 2000 at about 8.15. pm, and on reaching she rang the door bell, but the door was not opened by her maid servant. However, she opened the door with the duplicate key of her house, and after entering the house, she saw lot of broken glasses inside the kitchen and in Crl.A.343/2004 Page 9 of 34 the bathroom also, and she also saw one chappal lying in the lobby and one chappal in the bathroom. PW4 further deposed that after entering the house she had switched on the light and when she entered inside the kitchen, she saw that the electric press had fallen on the floor. She saw her maid servant Chanda lying on the floor of the kitchen and at that time she was not wearing salwar. Her face was covered with a cushion. She also noticed some blood on the middle part of her body. Her bra was also lying on her thighs. PW 4 further deposed that she removed the cushion from her face thinking that she might breathe and she then touched her face and cheek and found that she was cold. Then PW 3 realised that she had expired and thereafter she called Swaminath, a mali who told her that around 1.00 am. he had rung the door bell but at that time nobody had opened the door from inside. PW 4 further deposed that she then called the police. Police came to her house and recorded her report Ex.PW4/A. She also got the spot photographed. She further deposed that she had entered her house and found the book shelf disturbed from its actual position and she also found that some articles were missing from her house and she had given a list of those articles to the police. She further deposed that she signed all the memos at the sport. The witness identified all the articles which were Crl.A.343/2004 Page 10 of 34 shown to her before the court which were stolen from the house. (v) PW 5 is Ram Ashish Paswan. He has identified the dead body of Chanda Paswan who was the wife of his brother-in-law Jaswant Paswan. (vi) PW 6 is Constable Arvind Kumar. He has deposed that on 5th June 2000 he took the dead body of Chanda to the Mortuary of Safdarjung Hospital. He is a formal witness. (vii) PW 7 is HC Md. Rashid. He is too formal witness. (viii) PW 8 is Ankruz. He has also identified the dead body of Chanda Paswan. He is a formal witness. (ix) PW 9 is ASI Chet Ram. He has deposed before the court that on 5th June 2000 he visited the spot and lifted the chance prints and proved his report as Ex.PW9/A. (x) PW10 is ASI Lala Ram. He has deposed before the court that on 5th June 2000 he was posted as duty officer in PS Vasant Vihar and on that day he recorded FIR No.174/2000 on the basis of the rukka brought by Constable Narain Pati and proved the copy of the same as Ex.PW10/A. (xi) PW 11 is HC Satbir Singh. He has deposed that on 18.7.2000 he was posted in PS Vasant Vihar and on that day he took one sealed pulanda from the malkhana and deposited the same with FSL Malviya Nagar vide RC and Crl.A.343/2004 Page 11 of 34 deposited back the acknowledgment with the malkhana. He is a formal witness. (xii) PW 12 is SI Madan Pal. He is a formal witness. (xiii) PW 13 is SI Rajesh Dogra. He has joined the investigation alongwith the Inspector Mahinder Pal and supported the prosecution case. (xiv) PW-14 is Inspt. Suresh Daggar. He has deposed before the court that on 5.6.2000 he was posted as SHO with the Police Station Vasant Vihar and on receipt on DD No. 34A, he along with SI Rajesh and Constable Narain Pati reached D-1/25 Vasant Vihar, where he found the dead body of the maid servant Chanda lying on the second floor. He recorded the statements of Miss Anjali Ghate Ex. PW4-A and made endorsement Ex.PW14/A thereon and got the FIR lodged through Ct. Narain Pati. He also prepared the site plan Ex.PW14/B and summoned the crime team which inspected the spot. The dog squad was also called. PW- 14 further deposed that he had also seized one kitchen knife vide memo Ex. PW-D, earth control vide memo Ex PW4/E, one cushion cover with cushion vide memo Ex PW4/F, a glass vide memo Ex PW14/G, broken glasses vide memo Ex PW4/H, a liquor bottle vide memo Ex. PW4/J, a pair of chappels vide memo Ex PW4/K and clothes vide memo Ex. PW4/ and he had also Crl.A.343/2004 Page 12 of 34 seized a mangalsutra and koka of the deceased vide memo Ex PW4/C. PW- 14 also recorded the statements of the relevant witnesses at that time and he further deposed that further investigation was taken over by Inspector Mahinder Pal Singh. (xv) PW-15 is Ct. Ashok. He has deposed before the court that on 5.6.2000 he was posted with police Station Vasant Vihar and upon the call of the IO he visited the second floor of the house no . D-1/25 Vasant Vihar, where he took the photographs of the spot, including the dead body lying there, and proved the same photographs as Ex. PW15/1 to 16 and negatives as Ex PW15/17 (colly.). (xvi) PW-16 is Insp. Mahinder Pal. He has deposed before court that on 7.6.2000 he was posted as Addl. SHO police station Vasant Vihar and he received the investigation of this case. On that day he arrested accused Salimuddin and Miraj from near the Vasant Vihar Club, their mother Steila from her house, Ajay Singh and Yuvraj from their respective homes and accused Bhupinder was arrested from India Gate and the arrest memos of these accused persons prepared by him are on the record as Ex. PW16/A,B,C,D,E, and F, which their personal search memos are Ex. PW16/G,H,I,J,K and L respectively. PW-16 also recorded their disclosures Crl.A.343/2004 Page 13 of 34 vide memos Ex. PW13/A,B,E,G,N and C respectively. In pursuance of the disclosure of statement Steila one passport, wrist watch and locket were recovered vide memo Ex PW13/F as stolen property. He has further deposed that in pursuance of disclosure statement of accused Salim one laisel Ex PWP-24 was recovered from a box lying at his house vide memo Ex PW13/C, and in pursuance of disclosure made by Miraj cheque Ex P-19 was recovered from an iron almirah lying in his room vide memo Ex PW13/D, and in pursuance of the disclosure made by accused Ajay one dagger and a pocket watch were recovered from an iron box lying in his room and a memo to this effect Ex PW13/M was prepared. He further deposed that articles which were recovered by him were sealed with the seal of 'MS' and that recovery memo pertaining to dagger and pocket watch is Ex PW13/M, and he also prepared the sketch of the dagger, which is Ex PW16/N, the dagger is Ex. PZ while the pocket watch is Ex. P-25. PW-16 further deposed that in pursuance of the disclosure made by Bhupinder, one pocket watch was recovered vide memo Ex. PW13/O which is Ex P-23 from accused Bhupinder, one kitchen knife was also recovered again said it was recovered by the previous Investigating Officer from the spot, and in pursuance of disclosure made by accused Yuvraj one katta and two Crl.A.343/2004 Page 14 of 34 cartridges were recovered from his house and 5 pieces of hand gloves and blood stained clothes were recovered vide separate memos Ex PW13/H and 13/U. PW-16 further deposed that accused Yuvraj also got recovered one calculator Ex P-18 and cigarette packet Ex P-16 and P-17 vide recovery memos Ex PW13/J from accused Salimuddin, motor cycle Ex A-8 was recovered vide memo Ex PW13/Q at the time of his arrest and one underwear of accused Bhupinder Singh was also seized vide memo Ex PW13/P and the same is Ex A7. All the five male accused persons were also sent for medical examination and all were found competent to perform sexual intercourse. PW-16 also collected subsequent opinion of the doctor on the weapon of offence i.e. the daggar. The exhibits were also sent to the FSL and he collected the relevant FSL reports which are Ex PW16/P, and also prepared inquest documents Ex PW16/Q, Ex PW16/R and request for post mortem which is Ex PW16/S. After the post mortem the dead body was handed over to Anuj Kumar, vide receipt Ex PW16/T and after collection of the relevant documents and recording of the statements of witnesses, the charge sheet was filed through the SHO. (c) The counsel for the appellants have preferred the appeal on the following grounds: Crl.A.343/2004 Page 15 of 34 (i) It was submitted by the counsel for the appellants that neither the fingerprints taken from the spot were ever matched with the fingerprints of the appellants nor was the blood on the knife and dagger found to match with that of the appellants. Besides, according to PW3 Dr. Alexander, he could not detect the presence of any material such as blood on the two weapons examined by him. Although semen was found on the genital swab taken from the deceased, but no comparison was done with the semen of the accused persons though such semen samples were taken from the five male accused persons. The prosecution story regarding the school teacher having lakhs of dollars at home is also disbelievable according to the learned counsel for the appellant. (ii) The alleged recoveries made allegedly at the instance of the appellants, are doubtful since the police did not join independent public witnesses at the time of recovery. There is no other evidence at all against the appellants. It is extremely strange that the recoveries were witnessed only by the policemen and it was not deposed that police witnesses were necessitated due to the non-cooperation of the nearby members of public. The learned counsel for the appellant submitted that since no public person Crl.A.343/2004 Page 16 of 34 was joined at the time of arrest of the accused persons and the recovery of the incriminating articles from them took place only before police witnesses no reliance can be placed on them as they are bound to be interested in the conviction of accused persons. (iii) The learned counsel for the appellants also submitted at the time of lodging of the FIR the complaint was given in writing, in which the complainant stated that: “One room has been ransacked but I do not think anything was taken.” However, on the next day she reported to the police that several items including passport, cheque book, some watches including one wrist watch, some watches, one pocket watch, one chain, one calculator, one necklace and cash of Rs.1000/- were missing from her house and handed over a list of these items to the police. (iv) The learned counsel for the appellants further submitted that since the investigation was being carried out by the SHO Suresh Daggar from 5th June 2000 and the same was transferred to Inspector Mahender Pal on 7th June 2000, it is not clear as to which police official was the abovementioned list handed over to. According to PW 4 Anjali Ghate, she handed over the list Ex.PW4/B to the police on the next day of the incident in the late afternoon but she did not remember the designation and name of the police official. Crl.A.343/2004 Page 17 of 34 PW 14 Inspector Suresh Daggar on the contrary stated “.....We collected the list of stolen articles on the next day from complainant at about early morning but I cannot give the exact time.” Therefore, there are glaring contradictions between the statements of the two PWs. (v) The learned counsel for the appellant also submitted that there are serious doubts regarding the veracity of the testimonies of PW4 Anjali Ghate, PW14 Inspector Suresh Daggar and PW 16 Inspector Mahender Pal Singh, which are contradictory with regard to the timings of arrest and the recovery of articles. Further, according to ExPW13/F the recovered articles were seized and sealed with the seal of 'MS' and the seal was handed over to SI Rajesh Dogra. But PW 4 Anjali Ghate stated that after the recovery of various articles the police called her at the police station, where she was shown those recovered articles by the police. However, PW 13 SI Rajesh Dogra stated that these articles were never shown to the complainant. PW 16 Inspector Mahender Pal Singh also stated that no TIP of the articles was conducted and that they had not shown the recovered articles to the complainant. Therefore, according to the counsel for the appellants the recovery itself is rendered doubtful, particularly because according to the prosecution Crl.A.343/2004 Page 18 of 34 the alleged articles were sealed and deposited in the malkhana, and there was no entry in the malkhana register of the release of the articles thereafter from the malkhana for showing them to the complainant. (d) The learned counsel for the accused had argued before the trial court that no finger prints of the accused persons were found on glass tumbler, on the floor and on the pieces of glass and the door which were lifted by the police from the spot and accordingly, the accused were entitled to be acquitted. The aforesaid argument has been rejected by the learned Sessions Judge by relying upon the statement of the PW 9 ASI Chet Ram, whose testimony was, however, only to the effect that he visited the spot and lifted the chance prints. According to the testimony of the PW 9, the said finger prints were forwarded to the Bureau for further comparison. The aforesaid plea was rejected by the trial court on the ground that finger prints of none of