Section 420 of ipc, restitution of seized property
Dr.Sai Murali
(Querist) 03 February 2012
This query is : Resolved
Friends, I am a victim of a cheating case and the matter was complained to police. With great efforts the police have arrested the absconder who turned out to be high flying scamster. He was never arrested before though many cases were pending against him.
He was arrested within a month of cheating and absconding from Nellore and cash, gold and jewellary he has taken from me has been seized and produced in the court. Now how do I get back my money from the court? Do I have to wait till the disposal of the case or is there any other recourse?
I want petion for return of property throgh my lawer the following way.
I would like to bring it to your kind notice that the Dr. Sai Murali is reputed eye specialist working in Bollinenei eye hospital & Research Center. His father is also a senior doctor and his wife is a dentist.
He is the victim and complainant in the case Crno:
FIR is enclosed as exhibit no1
The said T.Nageswar Rao alias Rama Krishna Reddy duped my client to the tune of Rs 5 Crores which he has taken in the pretext of buying a land and absconded overnight. Subsequently he was arrested and 1.7 crores of cash and 4kg of gold purchased with the money given by Dr.Sai Murali and gold ornaments and Silver articles given by Dr.Sai Murali and his wife was recovered. The accused himself has confessed and the investigative officer has also mentioned the same in the remand report and mahazarnama and seizure report.
These reports are enclosed as exhibits no 2,3,4,5.
The petioner prays the honorable judge to kindly restitute the property which belongs to him to protect him from from financial hardships and threatening bankruptcy.
The honorable Supreme court has observed that “The principle of restitution is an integral part of virtually every formal system of criminal justice. It holds that, whatever else Court does to punish its wrongdoers, it should also insure that to restore the victim to his or her prior state of well-being.”
The payment of restitution by perpetrators can mark the end of a financial nightmare for fraud victims. It not only serves to right a wrong, it often allows them to return to whatever level of financial security they enjoyed before the crime. The biggest dream for those who have suffered from financial crime is getting some money back, from the people who stole it from them.
As per your instructions we have tried to serve the notice to Mr.T.Nageswar Rao alias Rama Krishna Reddy who is in judicial custody and he refused to accept the summons. This fact has been endorsed by the Jailor. Notice has been served to the Public Prosecutor. His objection that the case is under investigation and accused has not been arrested is not teneable as the main accused has been arrested. And the investigative officer categorically stated in his remand report as to the ownership of the seized property and accused has confessed and is not opposing this petition.
Aa victim of crime my client suffer the loss of property in two ways: by theft and when property is seized and held by this court.
Honorable Supreme court has passed laws outlining procedures for the return of stolen or personal property seized for evidentiary purposes in subsequent criminal proceedings.
In most cases, property may be returned to its owner when it is no longer needed as evidence in a criminal prosecution. Since this often means the victim is deprived of his or her property for months or even years while the case is appealed or retried, we must have to impose specific time requirements for the return of property.
A number of courts have attempted to promote the prompt return of property needed as evidence by authorizing a photograph of the item to be served as evidence.
In this scenario where my client is financially well placed and respectful law abiding citizen of this country has means to furnish adequate sureties and also assures this court that he will produce the returned property as and when required during the course of trial or investigation.
For no fault of my client and being the victim he should not be punished by with holding the property for which he is the rightful owner and as such he should not be allowed to undergo the kind financial crisis he had suffered because of the fraudulent means of the accused.
Hence the honorable judge may be pleased to kindly order for the return of property and save him from his present misery.
Is this appropriate? Any suggestions are welcome. Any judgements in similar cases I would highly appreciate. I am willing to compensate for any help in this regard. You may contact me on 9848017009.Thanks & Regards Dr.Sai Murali
Devajyoti Barman
(Expert) 03 February 2012
The Police has got power to deliver the seized articles to the de facto complainant in the event it is satisfied about its ownership.
If not then the de facto complainant needs to file petition before the concerned Magistrate calling for 'IO Report' whereby the Investigating Officer would submit about the claim of the de facto complainant and the probable owners of the seized articles.
Thereafter the court allows the de facto complainant to take back his artciles seized by the Police on furninshing Bond of some amount of Rupees as the court deems proper.
Raj Kumar Makkad
(Expert) 03 February 2012
As the matter is pending before the court so you should move an application before court seeking release of your entire articles on Sapurdari till the disposal of the case subject to your production of those as and when directed and a surity of like amount.
Court after obtaining the stand of the concerned police station, shall release those articles to you subject to your showing proof of your ownership.
Dr.Sai Murali
(Querist) 04 February 2012
Thanks so much for your kind advice. Can you please provide few judgements in similar cases? The PP is opposing during hearing saying investigation is pending. Since the charge sheet is yet to be filed can IO report be summoned?
Looking forward some more clarifications from learned counsels.
Regards
Sai Murali
Raj Kumar Makkad
(Expert) 04 February 2012
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : INDIAN PENAL CODE
CRIMINAL APPEAL NO. 327/2002
Date of Decision: 23rd May, 2007
SHASHI SHEKHAR @ NEERAJ @ RAJU .... Appellant
Through Mr. Bhupesh Narula, Advocate
versus
STATE .... Respondent
Through Mr. Ravinder Chadha, APP for the
State with Mr. Jagdish Prasad, Advocate
CORAM:
HON'BLE MR. JUSTICE R.S.SODHI
HON'BLE MR. JUSTICE P.K.BHASIN
P.K.BHASIN, J:
1.This appeal arises out of the judgment dated 25-02-2002 rendered by learned
Additional Sessions Judge, New Delhi in Sessions case No. 35/01 in respect of FIR No.
538/95 registered at Vasant Kunj police station whereby the appellant has been held
guilty for having committed robbery and murder of two persons while committing
robbery on the night of 16/17-11-95 at house no. B- 1/1088, Vasant Kunj, New Delhi.
The appellant felt that he has been wrongly convicted and so he has preferred this appeal.
2. The relevant facts leading to the conviction of the appellant are that the complainant
Rakesh Khanna(PW-1) was residing with his wife and two children at house No. B-
1/1088, Vasant Kunj, New Delhi. On 16-11-95 the complainant along with his wife
Laveena(PW-2) had gone to attend some wedding leaving behind at their house their nine
years old daughter Prachi and four months old daughter Niharika in the company of their
maid servant Lalita. When the complainant and his wife returned back to their home at
about 12.10 a.m. they found the door of their house open and when they entered their
house they found their maid servant Lalita as well as their nine years old daughter Prachi
lying dead. They also noticed that their house had been ransacked and a lot of valuables
and cash of Rs. 1,60,000/- were missing. The police was informed of the incident. PW-27
Sub-Inspector P.S.Rana from Vasant Kunj police station reached the place of occurrence
and recorded the statement (Ex. PW-1/A) of the complainant Rakesh Khanna. On the
basis of what was narrated by the complainant in his statement and what PW-27 observed
at the place of occurrence he made his endorsement on the complainant's statement and
got the FIR(Ex.PW-26/1) registered under Sections 302/392 IPC. Inquest proceedings
were conducted by the investigating officer. The crime team was also summoned and
from place of occurrence some chance prints were lifted. The dead bodies of the two
deceased were then sent for post-mortem examination. PW-3 Dr. A.K.Sharma conducted
the autopsy in respect of complainant”s daughter Prachi and PW-4 Dr. Chanderkant
conducted post-mortem examination on the dead body of Lalita. They gave their reports
Ex.PW-3/A and Ex. PW-4/A, respectively, according to which the cause of death of both
the victims was asphyxia following strangulation caused by ligature.
3. The police started the hunt for the culprit and it appears that for quite some time after
the incident nobody could be apprehended. It so happened that on 18-3-96 some secret
information was received by the police officials at Chittaranjan Park police station that
the person involved in some cases of robbery and murders within their jurisdiction would
be present at house No. 254- A/3, Munirka Village. Accordingly, a raid team headed by
PW-23 Inspector Hawa Singh went to that house and there the appellant was found. At
that time he was found to be in possession of valuables including jewellery articles kept
in a pouch which was tied around his waist. He could not give any explanation for being
in possession of those articles and so those items were seized by the police under Section
102 Cr.P.C. The appellant was arrested and as per the prosecution case he during his
interrogation while in police custody made a confession about his involvement in the
present incident of robbery and two murders in the house of the complainant Rakesh
Khanna as also about some other similar incidents committed by him at other places.
From that house some more jewellery and other articles were also got recovered by the
appellant and the same were also seized under Section 102 Cr.P.C. Pursuant to his
disclosure statement the appellant got more stolen articles recovered from his house No.
178, Arjun Nagar also and the same were also seized by the investigating officer vide
memo Ex. PW-19/D. As per the further prosecution case the appellant- accused while in
police custody took the police to the house of the complainant Rakesh Khanna where he
had committed robbery and murders. Pointing out memo to that effect was prepared by
PW-19 SI Hari Kishan and the same is Ex. PW-1/E. The information about the appellant
having made the said confession about his involvement in the present incident was given
to Vasant Kunj police station upon which the appellant was formally arrested for the
present case also by PW-24 Inspector Ishwar Singh on 24-3-96.
4. After the formal arrest of the appellant “ accused in the present case he was
interrogated by the investigating officer of the present case PW-24 Inspector Ishwar
Singh and then he had made a disclosure statement Ex. PW-24/1 to the effect that he had
sold for Rs. 50,000/- the stolen jewellery to PW-10 Shri Sushil Verma. Pursuant to that
disclosure statement the appellant “ accused had taken the police to the shop of PW-10 in
Arjun Nagar which was by the name of Soni Jewellers and from there the police seized
some of the stolen articles which included one VCR and some jewellery items which
were produced by PW-10 Sushil Verma. PW-10 also handed over one Girawinama Ex.
PW-24/2 to the investigating officer which was also seized vide memo Ex. PW-10/A.
The appellant also got recovered one screw driver(Ex. P-15) and it is the prosecution case
that when that screw driver was got examined from an expert at the CFSL the opinion
given was that the steel cupboard in the house of the complainant from which valuables
had been removed could be opened with the said screw driver and further that the tip of
the screw driver was found to be having some paint material which matched with the
paint on that steel cupboard. The appellant “ accused had also got recovered one wrist
watch(P-7) (SWATCH) from his house in Arjun Nagar on 27-3-96 when the screw driver
was also got recovered. During the investigation the entire articles which the police had
recovered from the appellant's possession on 18-3-96 and then from his house in Arjun
Nagar on 20th March, 1996 were put up for test identification parade and for that purpose
the victims of the robbery in respect of three FIRs including that of the present case were
asked to participate in the test identification parade which was conducted on 13-5-96 by
PW-16 Shri Ravinder Dudeja, Metropolitan Magistrate. During that test identification
parade the complainant of this case PW-1 Rakesh Khanna identified some of the stolen
articles and thereafter those articles were separately sealed by the Magistrate as case
property of the present case. The articles identified by the complainant had been earlier
mentioned in the list of stolen articles(Ex. PW-1/B) which he had handed over to the
police. A separate test identification parade was got conducted in respect of the articles
which were recovered from the jeweller”s shop on 27-3-96 as also the watch recovered
on the same day from the appellant”s house in Arjun Nagar. That TIP was conducted by
Shri M.K.Gupta, Metropolitan Magistrate(PW-24) vide TIP proceedings Ex. PW-22/A.
During that Test Identification Parade the complainant”s wife Mrs. Laveena Khanna
(PW-2) had participated and had identified the wrist watch (SWATCH)(Ex. P-7), two
gold kadas(Ex. P-8/1-2), one gold chain(Ex. P-9), two gold rings(Ex. P-10 and 11), one
pair of jhumkas(bundas)(Ex.P-12) and two pairs of ear tops(Ex. P-13 and 14) which were
got recovered by the appellant from the shop of PW-10. These articles had also been
shown by the complainant in the list of stolen articles Ex. PW-1/B which he had handed
over to the police after the incident.
5. As per the further prosecution case after the arrest of the appellant the police had
obtained his specimen finger prints and when the same were examined by the finger print
expert and compared with the chance prints lifted from the place of occurrence, the
expert gave his report Ex. PW-7/A to the effect that one of the chance prints matched
with the specimen print of right index finger of the appellant. The chance prints had been
lifted from two china clay cups, 12 glasses and one steel pot lying at the place of
occurrence.
6. On the completion of investigation a charge-sheet was filed in Court against the
appellant and in due course the case was committed to Court of Session. The learned
Additional Sessions Judge framed charges under Sections 302/392/397/411 IPC against
the appellant and since he had pleaded not guilty the prosecution was called upon to
adduce its evidence which it did by examining as many as twenty seven witnesses. It also
relied upon some documentary evidence. When the appellant “ accused was examined
under Section 313 Cr.P.C. after the completion of prosecution evidence he denied the
prosecution allegations in toto and pleaded false implication. However, he did not adduce
any evidence in defence. After examining the prosecution evidence and considering the
submissions made by counsel for the accused and additional public prosecutor for the
State the learned trial Court vide his impugned judgment convicted the appellant under
Sections 397/302/411 IPC and vide his order dated 27-02-2002 awarded life
imprisonment to the appellant for his conviction under Section 302 IPC and he was also
directed to pay a fine of Rs. 100/-, in default of payment to undergo rigorous
imprisonment for one day, rigorous imprisonment for ten years under Section 392/397
IPC and rigorous imprisonment for three years for his conviction under Section 411 IPC.
7. We have heard the learned counsel for the appellant Shri Bhupesh Narula and Shri
Ravinder Chadha, learned additional public prosecutor for the State who was also
assisted by the learned counsel for the complainant and with their assistance have also
examined the evidence of material witnesses which only was referred to from both the
sides during the course of arguments.
8. The learned counsel for the appellant did not dispute the fact that there was an incident
of robbery and murder in the house of the complainant. This part of the prosecution case
even otherwise is fully established from the evidence of the complainant(PW-1) and his
wife Laveena(PW-2) both of whom have deposed about the robbery in their house on the
night of 16/17-11-95 when they were away to attend a marriage function. They have also
deposed about the fact that when they came back after attending the marriage they had
found the door of their house open and when they entered inside the house they found
their daughter Prachi and their maid servant Lalita lying dead and also that they found lot
of valuable items including jewellery, foreign coins etc. as well as cash of Rs. 1,60,000/-
missing. The complainant has deposed that he had given a list of missing articles to the
police and that list is Ex. PW-1/B. In the cross-examination of PWs 1 and 2 it was not
challenged that no robbery had taken place in their house as claimed by them and also
that their daughter and maid servant were not murdered. The police officials who had
reached the place of occurrence on getting the information about the incident are PW-27
Sub-Inspector P.S.Rana and PW-13 Ct. Surender. Both these witnesses have deposed that
when they reached the place of occurrence they had noticed two dead bodies lying in the
house which were of Prachi Khanna and maid servant Lalita and they also found the
almirah in the bedroom lying open and the articles were lying scattered and that the flat
had been ransacked. Their statement on this aspect has also remained unchallenged in
cross-examination. So, the prosecution case that there was an incident of robbery and
murder in the house of the complainant as also the fact that both these crimes were a part
of the same transaction stood fully established and we have no hesitation in affirming the
findings of the trial Court to the same effect.
9. As far as the death of the complainant's daughter and the maid servant Lalita being
homicidal is concerned, the same is also established beyond any doubt from the
testimony of the autopsy surgeons PW-3 Dr. A.K. Sharma and PW-4 Dr. Chandrakant,
who, as noticed already, had opined the cause of death to be asphyxia following
strangulation caused by ligature.
10. For holding the appellant “ accused guilty for the offences of robbery as well as
murder of the complainant”s daughter and his maid servant the learned trial Judge relied
upon the evidence of recovery of stolen articles belonging to the complainant from the
possession of the appellant firstly on 18-3-96 from the house in Munirka and then on 27th
March, 1996 at his instance from a jeweller”s shop belonging to PW-10 where he had
kept the jewellery items as a security for the amount of Rs. 50,000/- which the jeweller
gave to him and in respect of which transaction the appellant “ accused had signed one
Girvinama Ex. PW-24/2. The trial Judge also relied upon the circumstance of appellant”s
finger print matching with one of the chance prints lifted from the place of occurrence by
the crime team officials. Although the prosecution had also relied upon the evidence of
an expert who had given a report that on the tip of the screw driver Ex. P-15 got
recovered by the appellant “ accused the paint material detected matched with the paint
scratched from the steel cupboard in the complainant”s house from which articles were
stolen but the learned trial Judge did not give any importance to this circumstance
although the recovery of the screw driver at the instance of the appellant “ accused was
accepted. The learned trial Judge while refraining from giving any opinion on the expert
evidence of PW-5 Dr. Rajinder Singh in this regard observed that even if this piece of
evidence is kept out of consideration there was still sufficient evidence against the
accused and further that even if this circumstance is taken into consideration it was not
going to make much difference. Learned counsel for the appellant had strongly
challenged the findings of the learned trial Court holding the appellant guilty on the basis
of recoveries of stolen articles from the appellant as well as the report of finger print
expert. Before we take up the grounds of challenge to the evidence about recovery of
stolen articles we feel it necessary to narrate the evidence of the recovery witnesses.
11. PW-19 ASI Hari Krishan, who is one of the witnesses of recovery from the
possession of the appellant “ accused while they were investigating a case of robberycum-
murder in the area of Chittaranjan Park police station, deposed that on 18-3-96 when
he was posted in police station Chittaranjan Park he had joined the investigation of the
case FIR No. 76/96 and on that day accused Shashi Shekhar was arrested in his presence
from house no. 254-A, Munirka. He was in possession of some jewellery articles kept in
a blue coloured pouch which were seized vide memo Ex. PW-19/B. PW-19 then deposed
that accused had made disclosure statement that those jewellery articles had been stolen
by him and also about his involvement in the present case and pursuant to that disclosure
statement Ex. PW-19/A he had got recovered more articles from a box lying in a room in
that house in Munirka and the same were seized under Section 102 Cr.P.C. vide seizure
memo Ex. PW-19/C. The recovered articles included coins Ex. PW- 19/C-1 to C-95. He
further claimed that besides the recoveries from accused Shashi Shekhar on 18-3-96 he
had got recovered more articles on 20th March, 1996 which were seized vide memo Ex.
PW-19/D. In cross-examination PW-19 stated that when they had gone to the house in
Munirka one Mohd. Yunis and one Manno Begum were present in that house and also
that both of them were also arrested. He further stated in cross-examination that the
recovery at the instance of the accused on 20th March, 1996 was from his house at Arjun
Nagar. The witnesse also stated that accused Shashi Shekhar was sharing the room in the
house in Munirka with Manno Begum and Mohd. Yunis.
12. PW-23 Inspector Hawa Singh is the other recovery witness. He has deposed that on
18-3-96 he was the SHO of Chittaranjan Park police station and was investigating the
case of FIR No. 76/96 under Section 302 IPC. On that day he had arrested accused Shashi
Shekhar @ Neeraj @ Raju(who is the appellant herein) in case FIR no. 76/96 and
recorded his disclosure statement Ex. PW-19/A wherein he admitted his involvement in
the present incident also and pursuant to that disclosure statement he had got recovered
jewellery articles, 18 foreign coins, five Indian coins and two silver coins of wedding
which were seized vide seizure memos Ex. PW-19B C. At that time the ring which the
accused was wearing was also seized. He further deposed that the accused also got
recovered a camera, coins, calculator, jewellery items etc. from a bed box and those items
were seized vide memo Ex. PW-19/C. He thereafter deposed that on 20-3-96 accused
made another disclosure statement pursuant to which he also got recovered coins, chain,
bangles, mangal sutra etc. from house no. 178, Arjun Nagar and the same were seized
vide memo Ex. PW-19/D. In cross-examination PW- 23 admitted that at the time of their
visit to the house in Munirka from where accused Shashi Shekhar was apprehended
Mohd. Arif and his wife Manno Begum were also present and when he had asked Mohd.
Arif and his wife whether the articles belonged to them or not they had told him that
those articles did not belong to them but were of accused Shashi Shekhar. When asked as
to whether he had joined public witnesses at the time of recoveries this witness had stated
that he had asked 3/4 persons from the public to join the proceedings but none had agreed
but he had not initiated any proceedings against those persons for their refusal to join the
investigation. When asked in cross-examination to tell the number of articles recovered
from the accused the witness stated that as far as he could recollect those articles included
one Yashika camera, one casio calculator, 89 foreign currency coins, five Indian currency
coins, three perfume containers, two goggles and one box(dibba) containing artificial
jewellery.
\13. On an independent analysis of the evidence of these two recovery witnesses we have
no manner of doubt that their evidence cannot be viewed with suspicion. They had no axe
to grind against the appellant nor any motive was attributed to them in their respective
cross-examination on behalf of the accused. None of them could be dis-credited in crossexamination.
As noticed already, PW-23 Inspector Hawa Singh had stated in his crossexamination
that he had tried to join public witnesses at the time of recoveries but none
had agreed. We have no reason to disbelieve him. Therefore, the evidence of these two
witnesses cannot be discarded for the reason that no public witness was joined at the time
of recoveries. In any case even if the police officials had not made any attempt to join
public witnesses whose presence, as was rightly submitted by the learned prosecutor, is
even otherwise very difficult to be ensured in these kind of cases where the police is
investigating a case of an accused who is allegedly involved in many cases of robbery
and murder, the evidence of police witnesses could still be relied upon if no serious
infirmity is pointed out in their evidence on behalf of the accused. In the present case no
such infirmity in the evidence of PWs 19 and 23 could be pointed out by the learned
counsel for the appellant during the course of arguments before us. Just because these
two witnesses are police officials it cannot be said that their evidence is not of an
independent character. Both are Government servants and there is a presumption under
Section 114, illustration (e) of the Evidence Act regarding the fact that all official acts by
Government servants were regularly performed. If an accused wants to rebut this
presumption he can do so by bringing on record relevant material either by producing his
own evidence or during the cross-examination of the witnesses from which a doubt may
enter the judicial mind regarding the genuineness of the acts which the police witnesses
claim to have performed while discharging their official duties during the investigation of
a crime. In a case of robbery-cum-murder which came up in appeal before the Apex
Court and which is reported as (2003) 12 SCC 199, “Praveen Kumar Vs. State of
Karnataka” evidence of police witnesses examined by the prosecution in support of the
recoveries of stolen articles at the instance of the accused was attacked on the ground of
non-examination of independent witnesses at the time of making of the disclosure
statement by the accused. It was observed by the Hon”ble Supreme Court that where the
Court is satisfied that the evidence of the police officials can be independently relied
upon then there is no prohibition in law that the same cannot be accepted without
independent corroboration. The appellant-accused in the present case has failed in his
attempt to create suspicion in the mind of the Court about the veracity of the testimony of
the police witnesses of recovery, namely, PW-19 ASI Hari Kishan and PW-23 Inspector
Hawa Singh whose evidence we find to be wholly reliable. In view of the reliable
evidence of PW-19 ASI Hari Kishan and PW-23 Inspector Hawa Singh we are not
inclined to accept the bare denial of the accused regarding the recovery of stolen articles
from his possession and to reject the evidence on oath of these recovery witnesses. As
noticed already, a suggestion was put in cross-examination to PW-23 that when the police
had visited the house in Munirka he had asked Mohd. Arif and his wife whether the
recovered articles belonged to them or not to which they had told him that those articles
did not belong to them but were of accused Shashi Shekhar. This suggestion put to the
recovery witness on behalf of the accused clearly is an admission of the appellant “
accused himself that recoveries from a pouch in his possession at the time of his
apprehension and at his instance from a bed box in the same house in Munirka Village
were, in fact, made, as was being claimed by this witness. This admission on the part of
the accused also rules out the possibility of planting of the stolen articles, as was also the
submission of the learned counsel for the appellant. We are, therefore, of the view that
from the evidence of PWs 19 and 23 it stands established beyond any doubt that from the
possession of the appellant “ accused valuable articles, as shown in seizure memo Ex.
PW-19/B, were recovered on 18-3-96 when he was apprehended from the house in
Munirka Village . These items were found in a pouch which the appellant “ accused was
carrying with him at that time. It also stands established that at the instance of the
appellant “ accused more valuable articles including jewellery were recovered from the
house in Munirka Village on the same day and those items are shown in seizure memo
Ex. PW-19/C. Further recoveries were also got effected by the appellant “ accused on
20th March, 1996 from his house in Arjun Nagar and those recovered articles are
mentioned in seizure memo Ex. PW-19/D. The appellant has not offered any explanation
for being found in possession of the afore-said recovered articles which the police had
seized under Section 102 Cr.P.C. In these circumstances it can be said and as has been
rightly concluded even by the learned trial Court that those articles were stolen articles.
14. As noticed already, when the appellant “ accused was interrogated after his arrest on
18-3-96 he had made a confessional statement admitting his involvement in many crimes
including the present one. A joint test identification parade was conducted in respect of
the afore-said articles which the appellant “ accused had got recovered on 18-3-96 and
20-3-96. Test identification parade was conducted by PW-16 Shri Ravinder Dudeja,
Metropolitan Magistrate, who has proved the TIP proceedings as Ex. PW-16/A. The
evidence of the Metropolitan Magistrate and a perusal of TIP proceedings conducted by
him show that on 13-5-96 the complainants of different cases including the present
one(PW-1 Rakesh Khanna) had participated in the test identification parade one by one
and all of them had identified some of the articles which the police had seized on 18-3-96
and 20-3-96 to be belonging to them and after those articles had been identified by them
they were separately sealed by the Magistrate as case properties of individual cases in
respect of which TIP was conducted. The complainant of the present case PW-1 Rakesh
Khanna had identified the following articles: 1. Two silver coins (Ex. P-1 and P-2). 2.
Five silver coins bearing the picture of Lakshmi “ Ganesh and word “Bango” written on
all of them.(Ex. P-3/1 to 5). 3. Seven small bangles of some white metal(Ex. P-4/1 to 7).
4. 87 coins of foreign currency(Ex. P-5/1 to 87). 5. One silver coin on which “Shree” was
written on one side and Lakshmi- Ganesh picture was on other side(Ex. P-6). These
articles were separately sealed with the seal of the Magistrate and were then got deposited
in the malkhana at the police station Vasant Kunj. All these articles were produced in
Court also when the complainant Rakesh Khanna had come for his evidence and in Court
also he had claimed that these articles which he had identified during the test
identification parade belonged to him. He had also deposed that the wedding coins he had
received at Nainital at the time of marriages. He also claimed that the silver coins had
been received as Diwali gifs from friends etc. and that the silver kadas had been received
on the occasion of the birth of his daughter Niharika on 13-7-95. Regarding the foreign
currency coins he had stated that those coins he had brought from abroad whenever he
used to go abroad and that his daughter used to collect the same as her hobby. As noticed
already, the appellant “ accused has not claimed these articles to be belonging to him and
in the cross-examination of the complainant the ownership of the same was not
challenged.
15. As noticed already, the prosecution had also relied upon the recovery of one wrist
watch(SWATCH) at the instance of the appellant on 27-3-96. The complainant had
mentioned about the theft of this watch also in the list of stolen articles Ex.PW-1/B. That
watch was also put up for test identification parade which was conducted by PW-24 Shri
M.K.Gupta, Metropolitan Magistrate who has proved his TIP proceedings as Ex. PW-
2/A. In that test identification parade the complainant”s wife Mrs. Laveena Khanna had
participated and had correctly identified the afore-said SWATCH watch Ex.P-7. She had
also deposed during her evidence regarding her having identified the said watch in the
test identification parade. During that test identification parade the jewellery articles
which the appellant “ accused had got recovered from the shop of Soni Jewellers owned
by PW-10 Sushil Verma and which were seized vide memo Ex. PW- 10/A were also put
up for identification and PW-2 Mrs. Laveena Khanna had identified two gold kadas Ex.
P-8/1 “ 2, one gold chain Ex. P-9, two gold rings Ex. P-10 “ 11, one pair of
bundas(jhumki) Ex. P-12 and two pairs of ear tops Ex. P-13 and 14. All these articles had
been got released on superdari and PW-2 had produced the same in Court at the time of
her evidence. The appellant “ accused did not claim the same to be belonging to him.
Learned counsel for the appellant, however, had contended before us that the recoveries
from the shop of the jeweller at the instance of the appellant cannot be relied upon since
PW-10 Sushil Verma had not supported the prosecution when he was examined in Court.
There is no doubt that PW-10 Sushil Verma has not supported the prosecution case
regarding his having handed over to the police the afore-said articles along with one
Girwinama allegedly executed by the appellant while pledging the jewellery items with
him as security for the amount of Rs. 50,000/- given by him to the appellant as mentioned
in the said Girwinama. However, in our view this witness turning hostile does not affect
the prosecution case in view of the evidence of the investigating officer PW-24 Inspector
Ishwar Singh who has deposed about these recoveries from the shop of PW-10 at the
instance of the appellant-accused. PW-10 has clearly made a false statement in Court
when he denied these recoveries from his shop and that is evident from the fact that he
admitted his signatures on the seizure memo Ex. PW-10/A in respect of the recoveries
from his shop. PW-10 has not claimed that the police had forced him to sign the seizure
memo Ex. PW-10/A which clearly records that he had produced the jewellery items when
the police team had gone to his shop. In these circumstances we are inclined to place full
reliance on the evidence of the investigating officer PW-24 Inspector Ishwar Singh who
has deposed about the production of jewellery items by PW-10 from his shop when the
police team along with the appellant “ accused had gone there on 27-3-96. We are,
therefore, of the view that the prosecution has successfully established that incident of
robbery took place in the house of the complainant on the night of 16/17-11-95 and lot of
valuable items including jewellery, foreign currency coins etc. were stolen at that time
and that between 18-3-96 and 27-3-96 some of the stolen items were recovered from the
possession of the appellant “ accused and some were recovered at his instance pursuant to
his disclosure statements.
16. It was contended by the learned counsel for the appellant that even if it is accepted by
this Court that some of the stolen articles were recovered from the possession of the
appellant “ accused still his conviction for the offences of robbery and murder cannot be
sustained since the incident of robbery and murder took place in November, 1995 while
the recoveries of stolen articles from the appellant “ accused were effected after four
months and, therefore, the presumption under Section 114, illustration(e) of the Evidence
Act cannot be invoked against the appellant “ accused and at the most he can be
convicted under Section 411 IPC for having been found in possession of stolen articles.
We, however, are unable to persuade ourselves to accept this argument of the learned
counsel for the appellant. Recovery in the facts of this case and particularly the nature
and quantity of jewellery recovered can be said to be soon after the incident of robbery
and murder in the complainant”s house on 16/17-11-95. The appellant “ accused was not
affluent enough to possess the amount of jewellery items which had been recovered from
him or at his instance. The jewellery items and foreign currency coins etc. were quite
difficult to be passed over to somebody quickly. So, it cannot be said that the recovery of
stolen articles from appellant “ accused in March, 1996 was not soon after the incident, as
was the submission of the learned counsel for the appellant. We have cases of robberycum-
murder which have been decided by the Apex Court in which the recoveries were
effected after more than a year of the incident of robbery and murder and still the accused
was convicted both for robbery and murder. Those cases are reported in 2001 (2)
Judgments Today, “Sanjay @ Kaka etc. Vs. The State” and AIR 1995 SC 1598, “Gulab
Chand Vs. State of Madhya Pradesh”.
17. We, therefore, have, no hesitation in coming to the conclusion that the recovery of
huge amount of stolen articles from the appellant”accused makes the appellant “ accused
not only the robber but also the murderer of the two deceased. For this view we find full
support from a decision of the Hon”ble Supreme Court in “Mukund @ Kundu Mishra Vs.
State of Madhya Pradesh”, AIR 1997 SC 2622, wherein it was held that when the
prosecution successfully proves that the offences of robbery and murder were committed
in one and the same transaction and soon thereafter the stolen properties were recovered
from some person the Court may legitimately draw a presumption not only of the fact
that the person in whose possession the stolen articles were found committed the robbery
but also that he committed the murder. In this regard an earlier judgment on the same
point reported in (1995) 3 SCC 574, “Gulab Chand Vs. State of Madhya Pradesh” was
also relied upon. The judgment in Gulab Chand”s case was relied upon for the same
proposition in a subsequent judgment also by the Hon”ble Supreme Court in “Praveen
Kumar Vs. State of Karnataka”, (2003) 12 SCC 199. We have already observed that in
the present case it is established that robbery and murder were a part of the same
transaction and so the learned trial Court did not commit any mistake in holding the
appellant-accused guilty both for robbery and murder.
18. Besides placing reliance on the recovery of stolen articles from the appellant the
prosecution had also sought to strengthen its case on the basis of the evidence of finger
prints expert who had examined the specimen finger print of the appellant “ accused and
the chance prints lifted from the place of occurrence and had found one of those chance
prints matching with the specimen finger print of the appellant. PW-7 ASI Chetram has
deposed that on 17-11-95 he had examined the scene of crime thoroughly and he had
found fifteen chance prints out of which two (Q-1 and Q-2) were on a cup, twelve (Q-3 to
Q-14) were lifted from three glass tumblers and one (Q-15) was lifted from a steel pot
and in that regard he had given his report Ex. PW-7/A. This witness was not crossexamined
on behalf of the accused. PW-8 SI P.K.Bawa is the other finger print expert
who had examined and compared the specimen finger print/palm print of accused Shashi
Shekhar with the chance prints marked Q-6B and Q-11. This witness has deposed that on
examination he had found the chance print marked as Q-6B to be identical with the right
index finger print of Shashi Shekhar marked as S-1A. He had given his report to that
effect and the same is Ex. PW-8/A. This witness was also not cross-examined on behalf
of the accused. Since both these witnesses were not cross-examined on behalf of the
accused their testimony also establishes the presence of the appellant “ accused at the
place of occurrence and this circumstance also adds more strength to the prosecution case
which, as we have held already, is even otherwise proved on the basis of recovery of
stolen articles from the possession of the appellant from the house in Munirka village on
18-3-96 and then from his house in Arjun Nagar on 20-3-96. We, therefore, have no
hesitation in upholding the judgment of conviction passed by the learned trial Court.
19. On the point of sentence awarded to the appellant on different counts nothing was
argued by the counsel for the appellant. However, on behalf of the State the learned
public prosecutor on the persuasion and prompting of counsel for the complainant made
an oral prayer before us for enhancing the sentence awarded to the appellant for the
offence of murder from life imprisonment to death penalty and urged that even though
the State has not come up in appeal for the enhancement of the sentence but considering
the fact that the appellant had committed two murders in the present case. This Court
should act suo moto and issue notice to the appellant to show cause as to why he should
not be awarded death sentence. In support of the submission that this Court can enhance
the sentence even in the absence of an appeal by the State two judgments of the Hon”ble
Supreme Court reported as (1975) 2 SCC 406, “Nadir Khan Vs. The State (Delhi
Admn.)” and (1990) 2 SCC 385, “Sahab Singh And Others Vs. State of Haryana” were
also cited before us.
20. We have given our consideration to the oral request made on behalf of the State for
issuing notice to the appellant for enhancement of the sentence by exercising suo moto
power in this regard under Section 401 of the Code of Criminal Procedure. There is no
dispute about the proposition that even in the absence of an appeal by the State for
enhancement of sentence the High Court can invoke its revisional jurisdiction and act suo
moto where it considers the punishment awarded by the trial Court to be inadequate.
While considering this aspect of the matter we came across one judgment of the Hon”ble
Supreme Court in “Mukund @ Kundu Mishra and Anr. Vs. State of Madhya Pradesh,
AIR 1997 SC 2622 wherein while committing robbery the accused had killed the wife of
the complainant and their two children. The accused was awarded death sentence by the
trial Court which was confirmed by the High Court but when the matter reached the
Supreme Court in appeal it was held by the Supreme Court that even though the murders
were ghastly and in committing them the accused, who was a frequent visitor to the house
of the complainant even in his absence being related to the complainant”s son-in-law, had
betrayed the trust reposed in him by the complainant but still it could not be said to be a
“rarest of rare cases” as exemplified in Bachan Singh”s case (AIR 1980 SC 898) and in
Machchi Singh”s case (AIR 1983 SC 957). Consequently, the death sentence was set
aside and life imprisonment was given to the convicted accused. Taking into
consideration this view of the Hon”ble Supreme Court in a robbery-cum-murder case as
also the fact that there is no appeal for enhancement of the sentence filed by the State we
are not inclined to issue notice to the appellant for enhancement of the sentence.
21. In the result, while rejecting the oral request made on behalf of the State for awarding
death penalty to the appellant in place of the sentence of life imprisonment awarded to
him by the trial Court we dismiss the appellant”s appeal and affirm his conviction as
recorded by the trial Court in the impugned judgment as also the sentences awarded to
him.
Sd/-
P.K.BHASIN, J
Sd/-
R.S.SODHI,J
M/s. Y-not legal services
(Expert) 04 February 2012
mr.sai murali, without seeing this query i saw your multi posted query regard this same..
this is too much..
-tom-
Dr.Sai Murali
(Querist) 04 February 2012
Mr.Tom,
I did apolozize for my mistake. It was an error on my part. One post has appeared as anonymous. And the other one did not appear at first. I am a first timer here and thaught it will be moderated before being posted only once. So I reposted. I value and respect your time. I am sorry again to everybody. Would appreciate an advice.
Regards
Sai Murali
Advocate. Arunagiri
(Expert) 04 February 2012
I suggest you to file a petition for return of property to the lower court or you can approach the HC as the charge sheet was not yet filed.
I/O report can be called for by the court, at any point of time before the charge sheet is filed.
