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 defense. 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 robbery-cum-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 cross-examination. As noticed already, PW-23 Inspector Hawa Singh had stated in his cross-examination 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 , 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, 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 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 both for robbery and murder. Those cases are reported in 2001 (2) Judgments Today, Sanjay @ Kaka etc. v. The State and , Gulab Chand v. State of Madhya
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 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 . 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 cross- examined 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 , Nadir Khan v. The State (Delhi Admn.) and
, Sahab Singh and Ors. v. 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. v. State of Madhya Pradesh 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.