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2004(1) Crimes 13 (SC)
Supreme Court of India
(From Delhi High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Kuldip Singh —Appellant
versus
State of Delhi —Respondent
Criminal Appeal No. 481 of 2003
With
Criminal Appeal No. 814 of 2003
Decided on 11-12-2003
For the Appellants :Rajendra Kumar, Anil Kumar, M.A. Chinnasamy, Dr. Sushil Balwada, Advocates.
For the Respondent:P.P. Malhotra, Sr. Advocate, Ms. Anjani Aiyangari and Ms. Anil Katiyar, Advocates.
Important point
In a murder case based on circumstantial evidence, evidence of fingerprints in the house of deceased would be a natural circumstance if accused was in the employ of the deceased as a domestic help as presence of some fingerprints on household articles would only be common and natural.
Headnote:Indian Penal Code, 1860—Sections 302/34, 460/34 and 380/34—Murder—Appeal against conviction of appellant for offences—Circumstantial evidence—First appellant was working with deceased lady, carrying export business—His services were terminated because deceased had suspected him of having stolen certain articles in the house—Prosecution case that appellant was reemployed by deceased—Further case that 3 persons had gone to house of deceased with a view to commit theft of valuables which appellant had known that deceased possessed—Deceased was allegedly strangulated when she woke up and accused had taken jewelleries worn by deceased and other valuables—Chance fingerprints found to be that of appellant—Recovery of stolen articles on disclosures of appellant found doubtful—Fact of reemployment of appellant not proved—Whether trial Court and High Court were justified in convicting appellant on basis of circumstantial evidence existing—(No).
Held : 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 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. (Para 8)
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 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. (Para 9)
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. (Paras 12 and 13)
Result : Appeals allowed.
Judgment
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.
2. 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 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 ½ days prior to the autopsy due to asphyxia as a result of strangulation.
3. 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
