P.K. Bhasin, J.
1. The appellant stands convicted for the offences of robbery and murder vide judgment dated 23rd April, 2004 passed by the learned Additional Sessions Judge, New Delhi in Sessions case No. 335/96 arising out of FIR No. 509/95 of Vasant Kunj police station and sentenced to life imprisonment and fine of Rs. 1000/- with default stipulation under Section 302 IPC vide order dated 28th April, 2004. Feeling aggrieved the appellant has preferred this appeal.
2. The appellant, as per the prosecution case, had on 31-10-95 at about 8.45 a.m. entered into the house of the complainant Smt. Kausar Wizarat Hashmi(PW-8) in Vasant Kunj when she was away to her office and her daughter Sara Hashmi had also left for her school while her husband Sushil Hashmi was away to Calcutta. Their maid servant Anita alone was in the house. The appellant first of all raped Anita and then killed her and before leaving took away many valuables from the house including VCR, cameras, jewellery items. As per the further prosecution case the deceased Anita used to go to the school of complainant's daughter to bring her back around 2 p.m. every day. However, on the day of the incident, the maid servant did not go to the school and so the complainant's daughter came to her house of her own and it appears that when she reached home she found the house open and the maid servant lying dead. She raised alarm. It appears that someone from the neighborhood informed the police control room about the incident which in turn passed over the information to the Vasant Kunj police station. Sub-Inspector Sushil Kumar(PW-18) was assigned the investigation and then he reached house No. B-5/6/4232, Vasant Kunj and then he called the complainant who came from her office and got recorded her statement Ex. PW-8/A. SI Sushil Kumar made his endorsement on that statement and got the FIR of this case registered. Crime team was summoned. Some chance prints were lifted from steel glasses and one almirah by PW-9 ASI Chetram. The complainant had found a number of valuable items including one Yashika camera, BPL Sanyo VCR, jewellery items and some cash amount missing. A list of missing articles Ex. PW-8/B was handed over to the police. The dead body of the deceased was sent for post-mortem examination which was conducted by PW-1 Dr. A.K.Sharma on 11-11-95. He gave his report Ex. PW-1/A according to which the cause of death of the deceased Anita was asphyxia as a result of ante-mortem strangulation caused by ligature material. At the time of post-mortem examination vaginal swabs of the deceased were prepared and sent to Central Forensic Scientific Laboratory(CFSL) and based on the CFSL report Dr. Sharma also gave his opinion to the effect that the possibility of the deceased having been raped could not be ruled out.
3. It appears that the investigating agency could not nab the culprit for quite some time. On 18-3-96 the appellant was apprehended by the police officials of Chittaranjan Park police station when they had raided one house in Munirka village on the basis of some secret information in connection with a case of robbery-cum-murder in their area which was registered vide FIR No. 76/96. At the time of apprehension of the appellant the police recovered from him certain jewellery articles kept in a pouch and since he had no explanation for the possession of those articles the police seized the same under Section 102 of the Code of Criminal Procedure vide seizure memo Ex. PW-14/B. The appellant also got recovered some more articles from that house in Munirka village which he claimed to have stolen from different houses where he had committed robbery as well as murders. Those items included one Yashika camera also which, as per prosecution case, belonged to the complainant of this case and the same were seized vide separate seizure memo Ex. PW-14/D. As per the further prosecution case the appellant then got recovered some more valuables from his house in Arjun Nagar on 20-3-96. Those articles were also seized by the police under Section 102 Cr. P.C. While in police custody the appellant had made a confession about his having committed robbery in many houses including the house of the complainant of the present case. That information was passed over to the concerned police stations including Vasant Kunj police station by the Chittaranjan Park police officials who had apprehended the appellant on 18-3-96. On getting that information PW-26 Inspector Lalit Mohan, who had by that time taken over the investigation of the present case, took the copies of the confessional statement made by the appellant on 18-3-96 when he was apprehended by the police officials of Chittaranjan Park police station in case FIR No. 76/96 and also the copies of seizure memos in respect of the recoveries made from the appellant on 18-3-96 from the house in Munirka village and then from his house in Arjun Nagar, from PW-14 Inspector Hawa Singh. Inspector Lalit Mohan also made formal arrest of the appellant in the present case on 28-3-96. As per the further prosecution case before the formal arrest of the appellant in the present case his formal arrest had been made in another case pertaining to FIR No. 538/95 of Vasant Kunj police station and during his interrogation in police custody by the investigating officer of that case (PW-22 Inspector Ishwar Singh) the appellant - accused had made a disclosure statement Ex. PW-22/A pursuant to which he had got recovered some more stolen articles including one VCR Ex.P-1 from the shop of PW-23 Sushil Verma, a jeweller with whom he had kept the stolen articles as security for the loan taken by him from the said Sushil Verma. Those articles were seized vide memo Ex. PW-22/B. PW-22 Sushil Verma had also handed over to the investigating officer one Girwinama which the appellant - accused had executed in his favor in respect of the loan transaction of Rs. 50,000/- against the security of jewellery items and VCR. That Girwinama was also seized vide memo Ex. PW-22/B. Inspector Lalit Mohan got information about that recovery also and he took into possession the copies of the disclosure statement of the appellant - accused as well as the seizure memo Ex. PW-22/B from Inspector Ishwar Singh. As per the prosecution case the VCR got recovered by the appellant from the shop of Soni Jewellers and Yashika camera got recovered by him from the house in Munirka on 18-3-96 were claimed by the complainant of the present case to be belonging to him.
4. During investigation specimen finger prints of the appellant were taken and the same were sent to CFSL where on comparison with the chance prints lifted from the complainant's house one of the chance prints had tallied with the specimen print of the right thumb impression of the accused(S-8) and another chance print had matched with the specimen print of right middle finger of the accused. Report to that effect is Ex. PW-11/D. It appears that during the trial the appellant - accused raised an objection regarding the taking of his specimen finger prints at the police station and not in the presence of the Magistrate and, therefore, the prosecution moved an application before the trial Court for taking fresh specimen finger prints of the accused. Although the appellant initially refused to give his finger prints but later on he agreed for that and so his finger prints were taken by the trial Court and when those finger prints were examined and compared with the chance prints lifted from the place of occurrence one of the chance prints(Q-10) matched with the specimen right hand middle finger of the accused(S-9). Report to that effect is Ex. PW-11/C.
5. On completion of investigation the police charge-sheeted the appellant - accused and the trial Court framed charges against him under Sections 302 IPC as well as under Section 376 IPC. Since the appellant - accused had pleaded not guilty to those charges the prosecution was called upon to adduce its evidence in support of its case. The prosecution then examined twenty six witnesses and it also exhibited certain documents. Two finger print experts who had dealt with the chance prints were examined as Court witnesses(CWs 1 & 2). When the appellant - accused was examined under Section 313 Cr.P.C. he denied each and every incriminating circumstance which had been relied upon by the prosecution and pleaded false implication.
6. The learned trial Judge after considering the prosecution evidence and hearing the counsel for the accused and additional public prosecutor for the State gave his judgment holding the accused guilty relying upon the evidence of recovery of stolen articles and that of the finger print expert and gave a finding that "it was the accused and accused alone who committed the murder of the deceased and robbery." He was, however, acquitted of the charge of rape.
7. The appellant felt aggrieved by the impugned judgment rendered by the learned trial Judge and filed the present appeal. The State has, however, not challenged the acquittal of the appellant for the offence of rape nor it is aggrieved by the trial Court not imposing any punishment for the offence of robbery since no charge for that offence had been framed. So, we are now to consider the challenge to the appellant's conviction for the offence of murder. We have heard the learned Counsel for the appellant and learned additional public prosecutor for the State 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-8) who has deposed about the robbery in her house on 31-10-95 when she had gone for her office in the morning at 8.45 a.m. while her husband had gone to Calcutta and her daughter had gone to school. She has also deposed about the fact that when she was in her office around 3/3.45 p.m. she had received a telephone call from Vasant Kunj police station that a theft had taken place in her house on which she came back to her house and saw that the dead body of her maid servant Anita was lying on her bed and the household articles were lying scattered. On checking she found that VCR, cameras etc. were missing from the house. She gave the list of missing articles Ex. PW-8/B to the police. In her cross-examination it was not challenged that no robbery had taken place in her house as claimed by her and also that her maid servant was not murdered. The police officials who had reached the place of occurrence on getting the information about the incident are PW-18 Sub-Inspector Sushil Kumar and PW-5 Ct. Shiv Karan. Both these witnesses have deposed that when they reached the place of occurrence they had noticed a dead body lying in the house which was of the maid servant Anita. Their statement on this aspect has also remained unchallenged in cross-examination. So, we have no hesitation in affirming the findings of the learned trial Court to the effect that there was an incident of robbery and murder in the house of the complainant on 31-10-95. It is also established that both the crimes were part of single transaction. As far as the death of the complainant's maid servant Anita being homicidal is concerned, the same is also established beyond any doubt from the testimony of the autopsy surgeon PW-1 Dr. A.K. Sharma who, as noticed already, had opined the cause of death to be asphyxia following anti-mortem strangulation caused by ligature material.
9. For holding the appellant - accused guilty for the offence of murder the learned trial Judge relied upon the evidence of recovery of one Yashika camera belonging to the complainant from the possession of the appellant on 18-3-96 from the house in Munirka and the recovery of one BPL Sanyo VCR(Ex.P-1) on 27th March, 1996 at the instance of the appellant - accused from a jeweller's shop in Arjun Nagar belonging to PW-22 Sushil Verma. The trial Judge also relied upon the circumstance of appellant's specimen finger prints matching with the chance prints lifted from the place of occurrence by the crime team official PW-9 ASI Chetram.
10. The learned Counsel for the appellant had submitted that the evidence regarding the recovery of VCR and camera at the instance of the appellant is of highly doubtful nature since there is no independent witness to support the recoveries and so should not have been relied upon. There is no doubt that the prosecution is relying upon the evidence of police witnesses only but for that reason the prosecution case cannot be doubted since PW-22 Insp. Ishwar Singh and PW-25 Insp. K.L. Yadav have stated in their cross-examination that they had tried to join pubic witnesses but none had consented. We have no reason to disbelieve them. These days public is not interested in being involved in investigations of heinous crimes. The recovery witnesses in this case are PW-14 Insp. Hawa Singh, PW-19 Ct. Mahavir Singh, PW-22 Insp. Ishwar Singh, PW-24 ASI Hari Kishan and PW-25 SI K.L. Yadav. PW-14 Inspector Hawa Singh deposed that on 18.3.1996 he was posted as SHO, C.R. Park and accused was in custody in case Fir No. 76/96. He further deposed that during the course of interrogation accused made a disclosure statement Ex.PW-14/A admitting the guilt of number of cases including this case and also pointed out the different places where he had committed the crime. He then deposed that when the accused was arrested he was having a pouch in his hand in which eight jewellery articles containing gold articles and coins etc. were recovered which were taken into police possession vide memo Ex.PW-14/B. He thereafter deposed that the accused also got recovered some stolen articles including a camera made of Yashika(which is one of the stolen articles of the present case) which were sealed and taken into police possession vide memo Ex.PW-14/C. He further deposed that on 20.3.1996 the accused was again interrogated pursuant to which he made a disclosure statement Ex.PW-14/D and led the police party to house No. 178, Arjun Nagar where four gold chains, some coins were recovered which were sealed and taken into police possession vide memo Ex.PW-14/E.
11. PW-19 Ct. Mahavir Singh and PW-24 ASI Hari Kishan, who were also the members of the raid team which had raided the house in Munirka on 18-3-96 from where the appellant - accused was apprehended, have also corroborated the version of PW-14 regarding the apprehension of the appellant - accused on 18-3-96 and recovery of stolen articles at his instance. The witness regarding the recovery of stolen VCR of the present case from the shop of Soni jewellers is PW-22 Insp. Ishwar Singh. He has deposed that on 24.3.1996 he was posted in Anti Robbery Section, Crime Branch R.K. Puram and on that day he arrested accused Shashi Shekhar in case FIR No. 538/95. He further deposed that during investigation he had taken the police custody remand of the accused for four days in the said case and recorded his disclosure statement on 25.3.1996 pursuant to which he disclosed about the murder, robberies and regarding disposing of stolen properties to Mr. Sushil Soni resident of Arjun Nagar. He then deposed that on 27-3-96 the accused Shashi Shekhar pointed out the shop of Sushil Soni(PW-23) proprietor of shop No. 114, Arjun Nagar on 27.3.1996 and he produced jewellery, one VCR(Ex. P-1) and one girwinama which were seized vide Ex.PW-22/B. He thereafter deposed that on the same day complainant Sh. Sohail Hashmi identified his VCR(Ex. P-1) in the crime branch office and other case property deposited in the malkhana at P.S. Vasant Kunj. PW-25 Ins. K.L. Yadav is the other witness of recovery of stolen articles from the shop of PW-23 Sushil Verma. He has also deposed about the recovery and supported PW-22.
12. These are the recovery witnesses whose evidence only was read out before us from both the sides for appreciation of the rival contentions. Learned trial Court had after going through their evidence come to the conclusion that none of them could be discredited in cross-examination We have also made an independent analysis of their evidence and we have found that these witnesses of recovery of stolen articles stood the test of cross-examination and nothing could be elicited from them which could make the recoveries spoken to by them doubtful. None of them had any axe to grind against the appellant - accused nor it was even suggested to them in cross-examination that for any particular reason they had implicated him in this case. Just because these witnesses are police officials it cannot be said that their evidence is not of an independent character. They are all 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 provided under Section 114, illustration (e) of the Evidence Act 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 claimed to have performed while discharging their official duties during the investigation of a crime. However, the appellant-accused in the present case has failed in that attempt. In a case of robbery-cum-murder which came up in appeal before the Apex Court and which is reported as , Praveen Kumar v.
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 whose evidence we find to be wholly reliable and in view of the reliable evidence of these police officials we are not inclined to accept the bare denial of the accused regarding the recovery of stolen articles from his possession or at his instance and to reject the evidence on oath of these recovery witnesses. We are, therefore, of the view that it stands established beyond any doubt that from the possession of the appellant - accused valuable articles, as shown in seizure memos Ex. PW-14/C & D, were recovered on 18-3-96 when he was apprehended from the house in Munirka Village. Those items included one Yashika camera which is the stolen property of the present case and has been claimed by the complainant's husband(PW-6) to be his. On 27-3-96 the appellant had got recovered more stolen articles from a jeweller's(PW-23) shop. Those items seized vide memo Ex. PW-22/B included one BPL Sanyo VCR(Ex. P-1) which belonged to the complainant of this case who in his testimony in Court claimed VCR also to be belonging to him. The complainant also claimed it to be thiers. The appellant has not offered any explanation for being found in possession of the afore-said recovered articles. He has not claimed their ownership. In these circumstances it can be said that VCR and camera recovered at his instance are the stolen items of the present case. The complainant and her husband(PW-6) have claimed their ownership and in her cross-examination that fact was not challenged. These articles were mentioned in the list of stolen articles also given by the complainant to the police. Regarding the recovery of VCR from the shop of PW-23 Sushil Verma counsel for the appellant had argued that this recovery should be discarded since PW-23 has not supported the prosecution. However, we do not find any force in this contention. PW-23 has while turning hostile admitted his signature on the seizure memo Ex. PW-22/B which recites that VCR Ex. P-1 was produced by him. So, it is clear that he has tried to help the accused out of fear or otherwise. Police witnesses' evidence is reliable and can be accepted despite the fact that PW-23 has not supported the prosecution. As per PWs 22 and 25 PW-23 had produced one girvinama also executed by the appellant - accused the appellant has admitted having written that girvinama but has claimed that he was asked by the police to write the same. We are not inclined to accept this plea in the absence of any material from which it could be inferred that the police could do so to falsely implicate the accused.
13. 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 or at his instance still his conviction for the offence of murder cannot be sustained since the incident of robbery and murder took place in October, 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 relied upon by the trial Court 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 considering the nature and quantity of jewellery recovered can be said to be soon after the incident of robbery and murder. The appellant - accused was not affluent enough to possess the valuable items which had been recovered from him or at his instance. The stolen items 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 robbery-cum-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 for robbery as well as murder. Those cases are reported in 2001 (2) Judgments Today, Sanjay @ Kaka etc. v. The State and , Gulab Chand v. State of Madhya Pradesh.
14. We, therefore, have, no hesitation in coming to the conclusion that the recovery of stolen articles belonging to the complainant from the appellant-accused establishes that the appellant - accused was the murderer of the deceased. For this view we find full support from a decision of the Hon'ble Supreme Court in Mukund @ Kundu Mishra v. State of Madhya Pradesh , 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 , Gulab Chand
v. 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 v. State of Karnataka . 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 for the offence of murder. Since the State has not filed any appeal we are not making any comment about the trial Court not finding the appellant guilty of the offences of robbery and rape.
15. 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 print 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-9 ASI Chetram has deposed that on 31-10-95 he had examined the scene of crime thoroughly and he had found fourteen chance prints and in that regard he had given his report Ex. PW-5/A. PW-11 is the handwriting expert who gave his report Ex. PW-11/D to the effect that chance print Q-10 was identitical with the specimen finger impression(S-9) of Shashi Shekhar @ Neeraj. He had also found chance print(Q-12B) matching with appellant's specimen impression of right thumb. His opinion could not be shattered in cross-examination. No infirmity in this evidence adduced by the prosecution could be pointed out by the learned Counsel for the appellant and in our view the expert's evidence also clearly establishes the presence of the appellant - accused at the scene of occurrence and that is also a strong circumstance showing his involvement in the incident of robbery-cum-murder. The prosecution case about the presence of the appellant at the scene of occurrence gets further substantiated from the pattern of cross-examination of the complainant(PW-8) and her husband(PW-6) which shows that the appellant - accused was very much familiar with the activities in the complainant's house and he was also having some kind of acquaintance with the deceased maid servant of the complainant. That is evident from the suggestions put to the complainant and her husband in cross-examination to the effect that the servants of other persons in their neighborhood used to visit their maid servant Anita and that a day before the incident the complainant's husband had snubbed the deceased Anita because of outsiders visiting her and having relations with her. These suggestions clearly show that the appellant - accused must be knowing the movements of the complainant and her husband and taking advantage of that he came to their house when he knew that only the deceased would be present and then he committed robbery and murder of the maid servant.
16. We have, therefore, no hesitation in affirming findings of the trial Court holding the appellant guilty for the offences of robbery as well as murder and this appeal is liable to be dismissed. The same is accordingly dismissed.