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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.