Shashi Shekhar @ Neeraj @ Raju vs State on 29 May, 2007
Delhi High Court
Shashi Shekhar @ Neeraj @ Raju vs State on 29 May, 2007
Equivalent citations: 2007 CriLJ 4193
Author: P Bhasin
Bench: R Sodhi, P Bhasin
JUDGMENT 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
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Shashi Shekhar @ Neeraj @ Raju vs State on 29 May, 2007
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
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Shashi Shekhar @ Neeraj @ Raju vs State on 29 May, 2007
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
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Shashi Shekhar @ Neeraj @ Raju vs State on 29 May, 2007
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.
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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
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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
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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.
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