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2007 (1) Crimes 192
DELHI HIGH COURT
Madan B. Lokur & Aruna Suresh, JJ.
Vijay Kumar @ Bhusan — Appellant .
versus
State — Respondent
Crl. Appeal No. 35 of 1998 with Crl. Appeal No. 10 of 1997
Decided on 23-11-2006
Counsel for the Parties:
For the Appellant: Mr. Roopesh Kumar Sharma, Amicus Curiae.
For the Respondent: Mr. Sunil Sharma, Addl. PP.
IMPORTANT POINT
In a case based on circumstantial evidence, circumstances, proved must form a chain of events from which the only irresistible conclusion is about guilt of accused which can be safely drawn and no other hypothesis against guilt is possible.
Headnote:(i) Indian Penal Code, 1860 — Sections 451, 394, 302 — Offences of house trespass, robbery and murder — Prosecution of appellant for trespassing into house of deceased, for committing robbery and for murdering deceased by gagging her mouth — Conviction by Trial Court — Appeal against conviction — Case based on circumstantial evidence — Evidence to show that appellant had worked in household of deceased till about 15 days prior to incident — Services of appellant had been terminated on account of an allegation of theft — Deceased was all alone in house on date of occurrence — Appellant was seen rushing out of house of deceased by son of deceased and soon thereafter corpse of deceased was discovered — Deceased and appellant had a scuffle in which she apparently managed to grab four strands of hair of appellant in her right fist — Deceased died due to asphyxia and there was no evidence to show that anybody else apart from appellant had entered household of deceased — Delay of about an hour or so in lodging FIR with police not fatal to prosecution case as it was quite natural for son of deceased to inform his sister about murder of their mother and wait for her to arrive at scene — No iota of evidence to even remotely suggest that deceased was murdered by her own son — Chain of events led to inevitable conclusion that appellant and appellant alone committed murder of deceased — Conviction of appellant u/s 451 and 302 held not liable to be interferred with.
(Paras 16, 17, 18, 19, 20, 39, 40
and 48)
(ii) Indian Penal Code, 1860 — Section 394 — Offence of robbery — Prosecution of appellant for trespassing into house of deceased, for committing robbery and for murdering deceased by gagging her mouth — Prosecution case that stolen goods were recovered from appellant at railway station — Conviction by Trial Court — Appeal against conviction — Far too many gaps in story of prosecution with regards to recovery of stolen goods — Huge variation in respect of time when secret information was received by police — Even though railway station only half a kilometer away from where secret information was received, no reason assigned by prosecution as to why it took police party about half an hour to one and a half hours to reach railway station — No attempt made by police party to join any independent person in recovery proceedings — No reason given as to why appellant wanted to go to Jhansi when all his family members were in Delhi — Prosecution not able to prove beyond doubt that goods were recovered from appellant at railway station — Conviction of appellant u/s 394 IPC could not be sustained. (Paras 42 to 46 and 48)
(iii) Indian Penal Code, 1860 — Section 302 — Offence of murder — Award of imprisonment for life to appellant — State appeal on plea that it was an appropriate case in which extreme penalty of death ought to have been awarded to appellant — Held case not one falling in category of rarest of rare cases so as to award extreme penalty of death — State Appeal dismissed. (Para 49)
Facts of the Case:
1. The Appellant herein in the instant case was convicted u/s 451, 394, 302 IPC for trespassing into house of deceased, for committing robbery and for murdering deceased by gagging her mouth.
2. Aggrieved by said order of conviction and sentence, appellant has preferred present appeal.
3. Findings of the Court: The Court held that there was evidence to show that appellant had worked in household of deceased till about 15 days prior to incident. Services of appellant had been terminated on account of an allegation of theft. Deceased was all alone in house on date of occurrence. Appellant was seen rushing out of house of deceased by son of deceased and soon thereafter corpse of deceased was discovered. Deceased and appellant had a scuffle in which she apparently managed to grab four strands of hair of appellant in her right fist. Deceased died due to asphyxia and there was no evidence to show that anybody else apart from appellant had entered household of deceased. Delay of about an hour or so in lodging FIR with police held not fatal to prosecution case as it was quite natural for son of deceased to inform his sister about murder of their mother and wait for her to arrive at scene. There was no iota of evidence to even remotely suggest that deceased was murdered by her own son. Chain of events led to inevitable conclusion that appellant and appellant alone committed murder of deceased. Conviction of appellant u/s 451 and 302 held not liable to be interferred with. However there were far too many gaps in story of prosecution with regards to recovery of stolen goods. There was huge variation in respect of time when secret information was received by police. Even though railway station was only half a kilometer away from where secret information was received, no reason was assigned by prosecution as to why it took police party about half an hour to one and a half hours to reach railway station. No attempt was made by police party to join any independent person in recovery proceedings. No reason given as to why appellant wanted to go to Jhansi when all his family members were in Delhi. Prosecution was not able to prove beyond doubt that goods were recovered from appellant at railway station. Hence Conviction of appellant u\s 394 IPC could not be sustained.
Result: Appeal partly allowed.
JUDGMENT
Madan B. Lokur, J. — 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 Anaesthesia 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 Cr.P.C.), 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 a.m. to attend to her duties in the hospital. Her brother Dr. Arun Dev Anand left the flat a little later at about 9.30 a.m. 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 p.m. 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 a
