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CASE NO.:

Appeal (crl.) 481 of 2003

Appeal (crl.) 814 of 2003

PETITIONER:

Kuldip Singh

RESPONDENT:

State of Delhi

DATE OF JUDGMENT: 11/12/2003

BENCH:

N.Santosh Hegde & B.P.Singh

JUDGMENT:

J U D G M E N T

SANTOSH HEGDE,J.

The appellants in these appeals were convicted by the

Additional Sessions Judge, New Delhi, for offences

punishable under section 302 read with 34 IPC and were

sentenced to undergo life imprisonment with a fine of

Rs.500. They were further convicted for offence punishable

under section 460 read with 34 IPC and sentenced to

undergo life imprisonment with a fine of Rs.500 and also

convicted for an offence under section 380 read with 34 IPC

and were sentenced to undergo RI for 7 years; in default of

payment of fine awarded hereinabove, they were directed to

further undergo RI for 3 months on each count. The above

substantive sentences were directed to run concurrently.

However, they were given benefit of Section 428 of the

Code of Criminal Procedure. The appeals filed by the

appellants came to be dismissed by the High Court, hence

the appellants are before us in these appeals.

The prosecution case stated briefly is that one Smt.

Sushma Gulati (the deceased) was a resident of B-69,

Paschim Marg, Vasant Vihar, New Delhi. She was having

export business under the name and style of Maharaja

Exports. She had a factory at Naraina. She was also

constructing another factory in Noida which work was

being supervised by one Ramesh Kumar, PW-6 as a

Manager. On 24.12.1997 in the evening said Sushma Gulati

had left her place of work to her residence at Vasant Vihar

where she was staying alone, being a divorcee. On

26.12.1997 at about 8.30 a.m., PW-6 tried to contact said

Sushma Gulati over phone but could not get any response,

therefore, he visited her house at Vasant Vihar at about 9.45

a.m. when he found the house door open. On entering the

house, he found said Sushma Gulati lying dead in the bed-

room on the first floor of her house. He also noticed that the

said room had been ransacked. He immediately rang up the

deceased's lawyer by name Mr. Baldev Krishan. He also

telephonically informed the brother of the deceased by

name Brig. S.K.Ravikant. On the advice received by them

PW-6 contacted the Police Control Room telephonically.

Said lawyer Mr. Baldev Krishan and the brother Brig.

Ravikant immediately reached the place of incident. The

Police also appeared there soon thereafter. On a preliminary

examination by the investigator it appeared that the

deceased had died due to strangulation. They also found

some blood stains on the pillow, shirt and mattress. They

found one tin box of toffees, a pair of spectacles and some

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left-over tea in a glass tumbler. Said articles were seized.

On an examination of the deceased's car they found certain

papers including 2 complaints addressed to the Police,

Noida. These complaints were made by the deceased in

regard to an incident which took place on 23.12.1997 with

one Gaurav Tyagi with whom she had an altercation. In the

complaint she had stated that said Gaurav Tyagi had

assaulted her causing a fracture of her finger. She also

stated in the said complaint that said Gaurav Tyagi had

threatened to kill her. On post mortem examination of the

body which was done on 28.12.1997 the doctor opined that

the death had occurred about 3 = days prior to the autopsy

due to asphyxia as a result of strangulation.

During the course of investigation the investigating

agency came to know that the first appellant herein Kuldip

Singh was working with the deceased during November,

1997 but his services were terminated because the deceased

had suspected him of having stolen certain articles in the

house. The investigating agency also came to know that

Kuldip was re-employed by the deceased on 20.12.1997

hence the investigators procured the said appellant for

interrogation. On such interrogation having come to know

the involvement of other 2 appellants, namely, Ram Singh

and Om Prakash they were also apprehended. The

prosecution avers that during the course of investigation

they came to know that these 3 persons had gone to the

house of the deceased on 24.12.1997 with a view to commit

theft of the valuables which appellant Kuldip Singh had

known that the deceased possessed and in the course of said

theft because the deceased woke up, she was strangulated

and the accused had taken jewelleries worn by the deceased

and other valuables possessed by her like gold bangles, gold

kara, lady's ring of gold, gold monks, a camera, a gold

locket etc. It is the prosecution case that the investigating

agency during their visit to the house of the deceased had

also picked up certain chance fingerprints which on an

analysis were found to be that of appellant Kuldip. The

prosecution further alleges that on 1.1.1998 during the

course of interrogation of the accused persons, they

volunteered to make a disclosure statement therefore the

I.O. procured the presence of one Dalip Singh, PW-5 as a

Panch witness for recording the said disclosure memo. It is

the case of the prosecution that all the three accused persons

made disclosure statements that the articles stolen by them

from the house of deceased were shared by the 3 appellants

and each one of them had concealed the said articles in their

respective jhuggis. During the said statement they also

offered to recover the same if they were taken to their

respective jhuggis. It is on this basis sometime around the

afternoon of 1.1.1998 these appellants with PW-5 and other

Police officials were taken to their jhuggi area where these

appellants took them to their respective jhuggis and

recovered the stolen articles which were recovered by the

investigating agency. The jewellery was then weighed,

packed and sealed in different packets and the said articles

were deposited with the Malkhana at Vasant Vihar Police

Station. On completion of the investigation, a charge sheet

was filed against these appellants for which they were

convicted, as stated above.

The prosecution case being based on circumstantial

evidence, it relied on the following circumstances to

establish its case as against the appellants : (i) appellant

Kuldip was in the employment of the deceased as a

domestic servant till about November, 1997 and was

dismissed from service but about 10 days prior to the death

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of the deceased was re-employed hence he had access to the

house as also the knowledge of the valuables owned by the

deceased and also her routine habits. He also knew that the

deceased was staying alone in her house. (ii) appellants

Ram Singh and Om Prakash were known to appellant

Kuldip because they resided in the same jhuggi area and

Om Prakash was known to the appellant as a person who

was unemployed and involved in thefts. (iii) The valuables

stolen from the house of the deceased were recovered from

the houses of the appellants and there was no dispute that

the goods recovered from the houses of the appellants were

those belonging to the deceased. (iv) The fingerprints of

appellant Kuldip were found on the toffee tin found in the

house of the deceased.

The trial court as well as the High Court accepted

these circumstances relied upon by the prosecution and

convicted the appellants as stated above.

In these appeals, Mr. Rajender Kumar, learned

counsel appearing for the appellants, contended that none of

the circumstances relied upon by the courts below have

been proved beyond reasonable doubt and all these

circumstances either cumulatively or individually are

insufficient to establish the guilt of the accused. The courts

below also seriously erred in relying on inadmissible

evidence and basing a conviction on such material which

has not been proved or which are totally inadmissible in

evidence. Learned counsel submitted that the fingerprints

taken as a chance print were not proved to have been taken

from the toffee tin and no evidence as required in law has

been led in regard to this aspect of the prosecution case

hence this circumstance could not have been relied on by

the courts below. He also submitted that the case of the

prosecution that the appellant Kuldip was re-employed has

not been established by the prosecution and this

circumstance on which the prosecution relies to prove its

case of circumstantial evidence has not even been put to the

said accused in his examination under section 313 Cr.P.C.

Most of all the learned counsel very seriously challenged

the alleged recovery made at the instance of the accused. He

submitted that all these accused persons were in police

custody for many days prior to the recording of so called

disclosure memos and the said memos are sham documents

which according to learned counsel is clear from the

evidence of PW-5 who is a public witness to the said

recoveries. He further submitted that the material

contradictions found in the evidence of PW-5 and PW-6,

the I.O. in itself is sufficient in the ordinary course to reject

the so called recoveries made by the investigating agency.

He also pointed out from the evidence of PW-19 the

Officer-in-Charge of the Malkhana that as a matter of fact

the so called recovered property was deposited in the

Malkhana in the morning of 1.1.1998 itself whereas the

recovery memo as also the oral evidence led in support of

these recoveries showed that they were recovered late in the

evening of 1.1.1998 which itself shows that these recoveries

are not genuine and not made at the instance or from the

place or person from whom they were allegedly recovered.

Learned counsel submitted assuming for argument's sake

that the so called recoveries are to be believed then in the

absence of there being other circumstances corroborating

the case of the prosecution such recoveries alone cannot be

the foundation of a conviction for an offence punishable

under Section 302 and at the most it could prove only an

offence of theft or offence of receiving of stolen property

and nothing more. He placed reliance on a large number of

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judgments of this Court. Suffice it to say that it may not be

necessary for us to refer to all the judgments relied on by

the learned counsel on this question except to note the

judgment of this Court in the case of Limbaji & Ors. v.

State of Maharashtra (2001 10 SCC 340).

Mr. P.P. Malhotra, learned senior counsel appearing

for the respondent-State countered the arguments of learned

counsel for the appellants by stating that the prosecution in

this case has proved beyond all reasonable doubt that the

huge quantity of jewellery belonging to the deceased was

recovered from the jhuggis of these appellants at their

instance which fact has been established beyond all

reasonable doubt by the prosecution through the evidence of

PWs.5, 11 and 26. He submitted that even though PW-5 has

not supported the prosecution case in its entirety during his

evidence in the court, his evidence so far as it is consistent

with the prosecution case, establishes the recovery of the

goods from the possession of these appellants at their

instance. Therefore, the fact that PW-5 is a hostile witness

would not by itself take away the effect of his evidence and

the courts below have rightly considered this evidence in

the proper legal perspective and have come to the

conclusion that the prosecution case as to the recovery of

the stolen goods from the house of the appellants stands

established more so when the same is fully supported by the

evidence of PWs. 11 and 26. The learned counsel pointed

out that minor discrepancies in the evidence of PW-19 as to

the time and date of deposit of the recovered goods in the

Malkhana is not so material as to demolish the prosecution

case of recovery. Learned counsel further argued that

assuming for argument's sake that the prosecution in this

case has established only one circumstance against the

appellants namely the recovery of the goods belonging to

the deceased soon after her murder, that itself is sufficient to

base a conviction even for an offence under section 302

because of the Explanation to Section 114(a) of the

Evidence Act. For this proposition he placed reliance on a

judgment of this Court in the case of Gulab Chand vs. State

of M.P. (1995 3 SCC 574). He also submitted that apart

from the factum of recovery of the stolen goods the

prosecution has also established the other circumstances

like the appellant Kuldip's employment with the deceased

which establishes that he had the necessary information and

knowledge as to the possession of the valuables by the

deceased and the place where the same were kept. Learned

counsel fairly submitted that the existence of the

fingerprints on the toffee box found in the house of the

deceased may not be an incriminating piece of evidence

since it is the case of the prosecution that the said appellant

was employed by the deceased immediately before her

death, therefore, it is possible that such fingerprints might

have been found due to the nature of his employment on the

articles kept in the house of the deceased. Learned counsel

then submitted the fact that a specific question in regard to

the re-employment of the appellant Kuldip by the deceased

is not put under section 313 Cr.P.C. would not by itself

make that circumstance unavailable to the prosecution

unless the appellant establishes prejudice in this regard

which he has not done therefore he submitted that this is not

a case in which our interference is called for in a case

involving concurrent findings of two courts of fact.

Having heard learned counsel for the parties and

having perused the records we notice that actually if the

existence of fingerprints is eschewed from consideration

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only two circumstances remain to establish the prosecution

case against the appellants. They are the employment and

re-employment of appellant Kuldip and recovery of the

property belonging to the deceased which includes huge

quantity of gold jewellery. So far as the fingerprints are

concerned, as stated above, learned counsel for the

respondent himself has rightly said that would be a neutral

circumstance and in our opinion there can be no doubt as to

this case if really appellant Kuldip was in the employ of the

deceased as a domestic help then presence of some

fingerprints on the household articles would only be

common and natural and therefore this cannot be a

circumstance to establish the guilt of the appellant therefore

we think the courts below were not justified in relying on

this circumstance as a link in the chain of circumstances.

We will now consider whether the employment and

re-employment of appellant Kuldip can also be a

circumstance which can be considered implicating the

appellants in the crime. In regard to the factual aspect of

this matter we notice from evidence of PW-6 that Kuldip

was once engaged as a servant by the deceased but his

services were terminated on the ground that he had stolen

some time-pieces from her house. This witness does not say

that Kuldip was re-employed. For the purpose of

establishing that Kuldip was re-employed prosecution relies

on the evidence of PW-2 who was then working as a

security personnel in the factory of the deceased at Noida.

This witness in his evidence states that on 20/21.12.1997

Kuldip and deceased met him in the factory at Noida as they

came together in a car and this witness asked Kuldip

regarding his re-employment with the deceased for which

the appellant told this witness that he had again joined

service of the deceased. In the very next sentence this

witness states that around 20th to 24th Dec., 1997 Kuldip did

not turn up in the factory at Noida for joining his duty. A

reading of the evidence of this witness gives us the

impression that he states that Kuldip was engaged by the

deceased in the factory at Noida and not in her house. No

other witness examined by the prosecution has stated as to

the re-employment of this accused in her house and PW-2's

evidence being the only evidence in this regard which as

observed by us hereinabove gives us an impression that the

re-employment of Kuldip was in the Noida factory, it runs

counter to the prosecution case as to the re-employment of

Kuldip in the house of the deceased. That apart as rightly

pointed out by learned counsel for the appellants if this

piece of evidence as to re-employment of Kuldip was true

then it becomes a material piece of evidence as a link in the

chain of circumstances relied on by the prosecution

therefore this link evidence which indicates the likely

involvement of the appellant in the crime ought to have

been put to the accused while he was being examined under

section 313 Cr.P.C. which was admittedly not done. That

being the case the prosecution has disentitled itself from

placing reliance on this piece of evidence. We do not agree

with the learned counsel for the respondent that either it is

not necessary for the prosecution to have put this

circumstance to the accused in his examination under

Section 313 Cr.P.C. or that he should plead and establish a

prejudice caused to him by such default on the part of the

prosecution. As stated above this is an incriminating

circumstance upon which, in our opinion, the prosecution is

relying to indicate the involvement of the appellant.

Therefore, the question of establishing prejudice does not

arise as that is quite apparent, apart from the fact that the

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prosecution has not proved the fact that Kuldip was re-

employed to work in the house of the deceased. If this

circumstance is also to be excluded from consideration then

what remains as to the employment of Kuldip with the

deceased is only his past employment. Prosecution has not

relied on his past employment solely or independent of his

re-employment to establish appellant Kuldip's knowledge

as to the valuables owned by the deceased as also the

knowledge where the same were kept. The prosecution

relies upon this circumstance of re-employment of appellant

Kuldip with the deceased for not only proving the factum of

knowledge of the valuables but also to prove the factum of

his access to the house of the deceased since he was in her

employment at the time of her death. If this proximity in the

employment goes because of the failure of the prosecution

to prove the re-employment of appellant Kuldip then in our

opinion his previous employment will not be of any

assistance to the prosecution; more so in the background of

the admitted fact as is apparent from the evidence of PW-6

that the deceased was in the habit of employing domestic

servants for a few days at a time and terminating their

services. From the evidence of PW-6 it is also noticed that

she used to employ and dismiss domestic servants very

frequently and many such servants had complained to PW-6

about the non-payment of their salaries. Therefore, in this

background the mere fact that appellant Kuldip was once

engaged by the deceased would not be a circumstance at all

indicating the involvement of Kuldip because he was not

the only person employed and terminated by the deceased

just prior to her death.

This leaves us to consider the only other circumstance

available to the prosecution to establish its case as against

the appellants that is the factum of recovery of huge

quantity of gold jewellery and other articles belonging to

the deceased from the house of the appellants at their

instance. There seems to be divergence of opinion of this

Court in regard to the legal position whether a conviction

can solely be based for a larger offence than theft or for

receiving stolen property in case where the prosecution

relies solely on the recovery made. From a perusal of the

judgments cited before us it is seen that this Court has in

some cases on being fully satisfied as to the proof of

recovery and on the facts of particular cases has held that a

conviction for a larger offence can also be based solely on

such recoveries. But there are also a line of judgments relied

on by learned counsel for the appellants especially in the

case of Limbaji (supra) this Court has held that it may not

be safe to place reliance on the sole evidence of recovery to

base a conviction for a larger offence. In this line of

judgments this Court has held that it would be safer to look

for corroboration from other sources to establish the larger

guilt of the accused rather than proceed to convict for such

larger offence solely based on a recovery.

In this case we are spared of that problem of deciding

whether we could uphold the conviction of the appellants

for offences punishable under section 302 or 460 both read

with 34 IPC solely on the basis of the recovery made in this

case because for the reasons hereinafter to be discussed by

us we think the prosecution in this case has not established

the recovery of the gold ornaments and other objects from

the houses of the appellants at the instance of the appellants,

for more than one reason, at least beyond all reasonable

doubt.

It is the case of the prosecution that these accused

persons were arrested at about 2 p.m. on 1.1.1998. At that

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time these appellants volunteered to make a disclosure

statement. To evidence the said statement PW-5 who

happened to be at the bus-stand nearby the Police Station

was summoned. According to prosecution the statement so

made by the appellants was recorded in the presence of PW-

5 and thereafter Police Officers along with PW-5 took the

appellants to their jhuggi area which took an hour's drive

from the Police Station and there they were led by the

appellants to their respective jhuggis and the articles were

recovered at their instance which were packed and sealed in

separate packets containing the goods seized from each of

the appellants. The articles so seized, sealed and packed

were kept in the Malkhana at Vasant Vihar Police Station to

which PW-19 is a witness. If there was no challenge or

doubt in regard to this factum pleaded by the prosecution as

to the recovery of goods then there would be no difficulty in

accepting the prosecution case as to the recovery. But what

has happened in this case is that the only PW examined by

the prosecution has not fully supported the prosecution case

as to the recovery at its vital stage. That apart there is a

serious contradiction between the evidence of PWs.5 and 26

the IO as to the manner and time at which the recovery took

place. PW-5 in his statement clearly stated that though he

went with the Police and the accused persons to the jhuggi

area he did not enter any of the jhuggis and it is the Police

with the 3 accused persons who entered the jhuggis and

they came out from each of the jhuggi with a bundle

purported to contain the articles seized from the respective

jhuggis. Therefore, as per his evidence this witness has not

seen the actual recovery and also not seen whether inside

the jhuggi it was the concerned appellant who pointed to the

place where the articles were hidden. Therefore, this part of

the evidence of PW-5 does not support the prosecution case

on the contrary, if this piece of evidence is true then the

recovery cannot be accepted both in fact and in law. But the

argument of learned counsel for the respondent in this

regard is that this witness was making a false statement with

a view to help the appellants therefore this part of his

evidence should not be accepted. He further submitted that

this witness having admitted the fact that he was called as a

Panch witness for the recovery proceedings the later part as

to the recovery as spoken by PWs. 11 and 26 who were part

of the investigating team and were present at the time of

recovery should be accepted as proving the prosecution

case. May be if all other factors being acceptable we might

have acceded to this request of learned counsel for the

respondent but this is not the only deficiency we find in the

procedure of recovery. It is seen from the evidence of PW-1

the disclosure statement was made around 2 p.m. and they

proceeded to the jhuggi area and reached there around 4.30

p.m. and returned back to the Crime Office from there

around 7 p.m. from where he went home; whereas from the

evidence of PW-26 it is seen that after recording the

disclosure statement they went to the jhuggi area around 7

p.m. and the recovery proceedings went on till 10 p.m. and

after completing the same he and his party returned to his

office in Adarsh Nagar around mid-night. According to this

witness PW-5 was relieved from the jhuggi area itself which

as could be seen from his evidence can be only at about 10

p.m. or sometime thereafter. The difference in the time

between the evidence of these two witnesses is not

something that could be ignored as also the fact whether

PW-5 went home from the jhuggi or after he came to the

crime office. In the background of the fact that PW-5 has

not fully supported the fact of recovery this difference in the

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timing of the recovery proceedings between the evidence of

PWs.5 and 26 becomes very material throwing substantial

doubt in our minds as to the actual recovery. This doubt of

ours gets further compounded by the evidence of PW-19

who in specific terms has stated that the goods recovered

from the appellants' houses were deposited by the I.O. in

the Malkhana on 1.1.1998 in the morning. This indicates

that the recovered goods were deposited in the Malkhana

even before the recovery proceedings started. This evidence

of PW-19 as stated by us hereinabove also makes the

recovery suspect. More so because this statement of PW-19

is also not clarified in re-examination.

In the above assessment of the prosecution case we

are left with only one circumstance namely the recovery of

the property belonging to the deceased and that recovery for

the reasons stated hereinabove being not beyond reasonable

doubt, in our opinion, it is not at all safe or sufficient to

base a conviction not only under Sections 302 read with 34

and 460 read with 34 IPC, but even for an offence under

section 380 read with 34 IPC. In this background we are of

the considered opinion that both the courts below fell in

error in coming to the conclusion that the prosecution has

established its case based on circumstantial evidence

beyond all reasonable doubt. Therefore, the appellants in

these appeals are entitled to succeed. Consequently these

appeals are allowed, the impugned judgment and conviction

imposed by the courts below are set aside. The appellants

are set at liberty and they shall be released forthwith, if not

wanted in any other case.