R. S. SODHI, J. ( 1 ) CRIMINAL Appeal Nos. 671 of 2002 and 65 of 2002 are filed against common judgment of the Additional Sessions Judge dated 20. 8. 2001 in sessions Case No. 297/1996 holding the appellants guilty of offence under section 302 read with Section 34 IPC for committing the murder of Smt. Kiran jain; as also for offence under Section 397 read with Section 34 IPC and for the offence under Section 323 read with Section 34 IPC. Further by his separate order dated 21. 8. 2001, the learned Judge sentenced the each of the appellants to undergo imprisonment for life under Section 302/34 IPC together with a fine of rs. 5,000/- and, in default, further simple imprisonment of one year. Both the appellants were also sentenced to rigorous imprisonment for seven years for offence under Section 397 read with Section 34 IPC as also a sentence of one year for the offence under Section 323/34 IPC. All the sentences were directed to run concurrently. ( 2 ) BRIEF facts of the case, as noted by the learned Additional Sessions judge in the judgment under challenge, are :"that on the night intervening 5th and 6th July, 1995, Suresh Chand Jain informed Police Control Room and PCR onward informed the Police Station concerned vide DD No. 28a, P. S. Model Town that at A-4, Gujrawala Town near Ashok vihar, Part-I, Smt. Kiran Jain has been murdered by several persons. The aforesaid DD No. 28a was handed over to S. I. Ram Sunder. Inspector Virender singh Chauhan, Additional S. H. O. , P. S. Mukherjee Nagar, recorded the statement of Suresh Chand Jain, complainant. Sh. Suresh Chand Jain stated that he is the husband of the deceased Smt. Kiran Jain residing at A-4, Gujrawala Town, Phase-I, Delhi. One Sh. Parshant Jain, relative was also with him on that night. It was late in the night so Sh. Parshant Jain had to stay at his house at the instance of the complainant Sh. Suresh Chand Jain. Sh. Parshant Jain slept in the room adjoining to the bed room of Sh. Suresh Chand Jain " complainant. The complainant closed the main gate of his Kothi at 10. 00 P. M. of the night. His wife deceased Smt. Kiran Jain went to her bedroom at 11. 00 P. M. to sleep. The door of the bedroom was kept open. Parshant Jain slept in the room adjoining to the bed room of Sh. Suresh Chand Jain " complainant. The complainant closed the main gate of his Kothi at 10. 00 P. M. of the night. His wife deceased Smt. Kiran Jain went to her bedroom at 11. 00 P. M. to sleep. The door of the bedroom was kept open. It was that night intervening 5th/6th July, 1995 at about 1. 00 A. M. that the complainant felt as if somebody had intruded into his bedroom. Provoked by that feeling, the complainant at once switched on the light and in that light the complainant saw two boys present in the room and they were armed with shining knives. Immediately, after the light was on, one of those boys closed the door of the bedroom from inside and the other boy forcibly took down the complainant from the bed. In the light, complainant recognized that the boy who had taken the complainant down from the bed was accused Kundan. Accused Kundan had worked in the Kothi of the complainant as security guard for the last 6/7 months and he had left the job of security guard on the very first day of that month. The accused boy who had closed the door of the bedroom from inside was Raj Kumar, who had also worked as chokidar at the kothi of the complainant for two years about 7/8 years back. Accused Raj Kumar, at the point of knife, made him stand along the wall and accused Kundan strangled the throat of his wife who was lying on the bed. Accused Raj Kumar attacked the wife of the complainant as a result of which she became perturbed and perplexed and became helpless. Thereafter, both the accused advanced towards the complainant. Accused Kundan exhorted that the complainant should be done away with and his valuables should be looted. Both the accused started beating the complainant on his face and forcibly threw the complainant on the floor. Accused Raj Kumar attempted to strangulate the complainant. Complainant played a trick by pretending that he had fallen unconscious and the complainant became quite, lying down on the floor. The accused became sure that the complainant had became unconscious and thereafter, accused took out keys from underneath the pillow. They opened the almirah lying in the bedroom and took out cash, ornaments, silver coins, etc. Complainant played a trick by pretending that he had fallen unconscious and the complainant became quite, lying down on the floor. The accused became sure that the complainant had became unconscious and thereafter, accused took out keys from underneath the pillow. They opened the almirah lying in the bedroom and took out cash, ornaments, silver coins, etc. , and started putting them in a gunny bag and ran away outside the room from the back door. The complainant immediately woke up his relative Sh. Parshant Jain and immediately telephoned the Control Room and raised alarm and chased the accused persons. Upon hearing the alarm, the chokidars over powered accused Kundan and raj Kumar with the looted property in the service lane at some distance from the house of the complainant. In the meantime, the police reached and his wife was removed to Sunder Lal Jain Hospital in the P. C. R. Van. Inspector Virender Singh Chauhan obtained the M. L. C. No. 2086 of Smt. Kiran Jain, wife of the complainant, on which the doctor concerned had declared Smt. Kiran jain as brought dead. The investigating officer reached A-4, Gujrawala Town. On the ground floor of the said Kothi, in the bedroom, the almirah were found open and the goods were found scattered. After this much of investigation and on the basis of the above statement, the I. O. recommended registration of the case for the offence under sections 394/397/302 read with Section 34 of the I. P. C. Case was accordingly registered in the Police Station Model Town. The investigation was taken up by inspector Virender Singh Chauhan. The looted goods and property were seized by seizure memo from the possession of the accused persons. The looted property was identified by Sh. Suresh Chand Jain on the spot. The looted property was put into the sealed parcel. The personal search of the accused persons was effected and the personal search memos were prepared. From the personal search of the accused persons, one knife from each of the accused was recovered; rough sketch of the knives were prepared and knives were taken into possession vide seizure memos after sealing the same. The spot was got photographed from the official photographer. The spot was also got inspected from the Crime Team. Site plan was prepared. Statement of the witnesses were recorded. Accused were arrested vide personal search memos. The spot was got photographed from the official photographer. The spot was also got inspected from the Crime Team. Site plan was prepared. Statement of the witnesses were recorded. Accused were arrested vide personal search memos. The postmortem of Smt. Kiran Jain was got conduced from Civil Hospital, Delhi. Exhibits were taken into possession from the spot. Postmortem report of the deceased was collected. The injuries were opined as anti-mortem in nature caused by manual strangulation, pressure to the neck and sufficient to cause death in ordinary course of nature. Death was declared as due to asphyxia resulting from manual strangulation. The investigating officer also collected the blood stained clothes of the deceased and blood samples. Exhibits were sent to C. F. S. L. After completion of the investigation report under Section 173 of the Cr. P. C. against both the accused for the offence under Sections 394/397/302 read with Section 34 of the I. P. C. was submitted. Since the offence under Sections 397/302 read with Section 34 of the I. P. C. was exclusively triable by the Court of Sessions, so the case was committed to the learned District and Sessions Judge, Delhi, which onwards came to this Court for trial. Both the accused were charged for the offence under Section 397 read with section 34 of the I. P. C. ; for the offence under Section 302 read with Section 34 of the I. P. C. ; and thirdly, for the offence under Section 307 read with Section 34 of the I. P. C. (for causing injury on the person of Sh. Suresh Chand Jain ). Accused pleaded not guilty and claimed trial. " ( 3 ) THE Prosecution, in order to establish its case, examined PW-1, suresh Chand Jain, the injured complainant, who states that he along with his wife was residing at A-4, Gujarawalan Town, Phase-I, Delhi and on 5. 7. 1995 his nephew, Prashant Jain (PW-3), had come to visit them. He stayed overnight and slept in the adjoining room. At about 10. 00 p. m. in the night, after locking the main gate of the kothi, he along with his wife went to sleep in their bed room at about 11. 00 p. m. The door of the bed room was not bolted from within. At about 1. 00 a. m. on 6. 7. At about 10. 00 p. m. in the night, after locking the main gate of the kothi, he along with his wife went to sleep in their bed room at about 11. 00 p. m. The door of the bed room was not bolted from within. At about 1. 00 a. m. on 6. 7. 1995 he was woken up by a feeling of someone being in the room. Consequently, he saw accused Raj Kumar and Kundan Singh in the room. Accused Raj Kumar immediately bolted the door from within while accused Kundan singh forced this witness on the floor. Raj Kumar stood beside him with knife. He thereafter he pushed this witness towards the wall while accused Kundan went over to his wife, Kiran Jain, and strangulated her on the bed. Raj Kumar joined kundan Singh and struck Kiran with a fist blow as a result she fell unconscious. Raj Kumar and Kundan were previously known to this witness as both of them had worked as security guards of this witness. Thereafter Kundan threw the witness on the ground and Raj Kumar began hitting him with his fist and also tried to strangulate him. Apprehending that he would be killed, the witness pretended to have become unconscious. Kundan Singh took out keys from under the pillow and thereafter opened their almirah and took out cash and jewellery, both of silver and gold, and other articles. These articles were put into a gunny bag which was lying in the room and the accused escaped from the rear door. The witness goes on to say that he raised alarm, woke up Prashant Jain and dialed No. 100 to the Police. He along with Prashant Jain raised alarm on which the patrolling chowkidars, Ram Bahadur and Ram Singh Bahadur, apprehended the accused persons. In the meantime, Police arrived and took charge of the gunny bag as also the accused persons. The Police recorded his statement, Ex. PW-1/a, and his wife was removed to Sunder Lal Hospital by the Police vehicle. He goes on to state the names of the Chowkidars who apprehended the accused with gunny bag, as Ram singh Bahadur and Ram Bahadur. Thereafter, the witness deposes in detail to the recovered articles which were then given to him on superdari. The articles were produced in court and identified and exhibited. He goes on to state the names of the Chowkidars who apprehended the accused with gunny bag, as Ram singh Bahadur and Ram Bahadur. Thereafter, the witness deposes in detail to the recovered articles which were then given to him on superdari. The articles were produced in court and identified and exhibited. He thereafter narrates the procedure that was adopted by the Police. ( 4 ) IN cross-examination, this witness states that at the time the Police arrived, the accused persons were at the spot itself where they were apprehended. He admits that no persons from the locality were associated as witness to the recoveries. He further states that the gunny bag was lying in the room and was used for bringing ration. He denied the suggestion that he had deposed falsely. ( 5 ) PW-3, Prashant Jain, is also an eye witness. He deposes to the effect that in the night intervening 5/6th July, 1995, he had gone to meet suresh Chand Jain and decided to stay with him at night. At about 11. 00 p. m. , he had gone to sleep. At about 1. 15 a. m. on 6. 7. 1995, Suresh Chand woke him up. Suresh Chand Jain was bleeding from his mouth. He informed him that Raj Kumar and Kundan, who had earlier worked for him as security guards, had broke into the house and gave beating to Kiran. He also informed him that Kiran was lying unconscious and that Raj Kumar and Kundan had taken away the jewellery from the almirah. Prashant Jain joined in raising of the alarm and ran in order to catch the culprits. He found that Ram Singh Bahadur and Ram Bahadur, who were chowkidars, had caught hold of Raj Kumar and Kundan. The jewellery and cash which had been stolen was also recovered from them. After some time, Police arrived. Suresh Chand Jain identified the accused persons as the same persons who had worked in his house. The gunny bag was taken into possession which was held by Raj Kumar. From it, the looted articles were recovered. The witness suggests that what was recovered, Suresh Chand Jain identified as the articles belonging to him and his wife. This witness also witnessed the seizure memo. In court, the witness identified the stolen property. The gunny bag was taken into possession which was held by Raj Kumar. From it, the looted articles were recovered. The witness suggests that what was recovered, Suresh Chand Jain identified as the articles belonging to him and his wife. This witness also witnessed the seizure memo. In court, the witness identified the stolen property. He states that on search of each of the accused one knife each was recovered from Raj Kumar and Kundan singh. He identified the knives recovered on their production in court as being the same. ( 6 ) IN cross-examination, he states that his room was adjacent to that of his uncle and that he had closed the door of his room before going to sleep. He also states that the Police arrived within twenty minutes of the incident. At that time they were in service lane. Further that his aunt was removed to the Hospital by the Policemen. He did not accompany his aunt to the hospital. Nothing meaningful was elicited from this witness. ( 7 ) PW-4 is HC Rattan Lal who was the Duty Officer, Police Station model Town, Delhi. He received rukka sent by Inspector Virender Singh Chauhan through SI Ram Chander and recorded FIR No. 284/1995 under Section 394/397/302/34 IPC. ( 8 ) PW-5 is Het Ram, retired ACP, who states that the night intervening 5/6th July, 1995 he was posted in the North West District as ACP crime Against Women Cell. He states that he was the night Gazetted Officer on that date. At about 1. 30 a. m. , he received a message that an incident had taken place in the house of Suresh Chand Jain, Gujarawalan Town, Delhi. He immediately reached the spot along with his staff. There he found the accused persons in the back lane. They had been caught by the two Chowkidars, namely, ram Singh Bahadur and Ram Bahadur. Suresh Chand Jain and Prashant Jain were also present there. Accused Raj Kumar was having a gunny bag in his hand. This witness flashed a message on wireless to Inspector Virender Singh Chauhan who arrived at the spot and took charge of the situation. The gunny bag, which the witness had taken from Raj Kumar and Kundan Singh was handed over to Inspector virender Singh. In his presence the contents of the bag were noted and seized vide seizure Memo Ex. This witness flashed a message on wireless to Inspector Virender Singh Chauhan who arrived at the spot and took charge of the situation. The gunny bag, which the witness had taken from Raj Kumar and Kundan Singh was handed over to Inspector virender Singh. In his presence the contents of the bag were noted and seized vide seizure Memo Ex. PW-1/b. ( 9 ) IN cross-examination, this witness states that the seizure Memo was prepared of the articles which were recovered from the gunny bag. Statements of Suresh Chand Jain, Prashant Jain and the chowkidars, Ram Singh bahadur and Ram Bahadur, were recorded in his presence. He goes on to state that he had no idea as to when the injured lady was removed to the hosptial. ( 10 ) PW-6 is Constable Bir Singh who obtained exhibits of the case from Mohrrar Malkhana and took them to CFSL, Malviya Nagar. PW-7, is Dr. Rekha, medical Officer, Hindu Rao Hospital, Delhi who deposes that Suresh Chand Jain was examined by Dr. Beena on 6. 7. 1995. Dr. Beena had left the services of the hospital but she can identify the writing of Dr. Beenaon the MLC Ex. PW-7/c. ( 11 ) PW-8, HC Rajesh Kumar, deposes to having received and registered the wireless message. Inspector Subhash Tandon is PW-11. He states that in the night intervening 5/6th July, 1995 he was posted in Special Investigation Unit north West District, Delhi. He received an information and reached Gujarawalan town. ACP Het Ram was already there. Accused Raj Kumar and Kundan Singh were in custody of ACP Het Ram. The gunny bag had also been taken into possession from raj Kumar Singh. On checking, it was found to contain the following articles :"cash Rs. 19,593/- (Ex. P-2), Silver coins (Ex. P-3) (247 in number; 4 big coins of silver (Ex. P-4) out of which three were having idol of Mahatama Budh and one of Laxmi Ganesh; 18 silver coins gold plated (P-5), one rectangular momento gold plated (P-6), one wrist watch make Citizen (P-7), one watch lighter make Japan (P-8), six golden metallic bangles (P-9), pair of pajeb (P-10), 3 key rings (P-11), one neckless broken (P-12), one mangal suter with pendent (P-13), one gold plated rakhi (P-14), one broken haar (P-15), two gold rings, oen gold ring with green stone and one another silver ring with green stone (collectively Ex. P-16) (4 in number) and one pouch polythene containing golden red/white moties and golden daane in a thread (P-17), the said exhibits were identified by Suresh chand, who was present there and claimed to belonging to his wife. Articles were kept in a bag (Ex. P-1) and sealed with the seal of ST and taken into possession vide memo Ex. PW 1/b. Seal was given to Parshant Jain. "he also states that he took into possession one knife recovered from Raj Kumar as also one knife recovered from Kundan Singh. In cross-examination, he states that when he reached the spot, the injured-deceased was not present, she had already been removed to the hospital. ( 12 ) PW-13, Dr. Paramjit Singh, Assistant Medical Superintendent, sunder Lal Jain Hospital, states that he had seen the MLC of Kiran Jain prepared by Dr. Kishore Singh who had left the services of the Hospital. He identified the writing of Dr. Kishjore Singh on the MLC, Ex. PW-13/a. ( 13 ) PW-14, Dr. L. T. Ramani, conducted the postmortem on the body of kiran Jain and found on her body the following injuries : external injuries :-1. multiple abrasion scattered on the lower part, front of neck, one inch above the supra sternal notch, abrasions were irregular and small except two large ones (one inch x 3/4 inch and 3/4 inch x 1/2 inch) involving 3 " x 2 inch area. 2. abrasion 1/4 inch x 2/10 inch from the right side lower front of neck. 3. linear abrasion 3/4 inch long on the left side lower neck fold. 4. finger nail abrasion 1/4 inch long on the left side of chin. 5. finger nail like mark seen on the front of left shoulder which was 1/4 inch long and was crescentic. There was no obvious ligature mark around neck. On internal examination :- There was haematoma in the scalp over 1 " x 1 inch area on the left frontal region above the orbital margin, scull bones were intact and brain was congested. Neck tissues showed extra vasation of blood in subcutaneous layers on the front and sides. Hyoid bone and thyroid cartilage were intact. Laryngeal mucosa showed sub-mucus palichial. Ribs were intact. Lungs showed congestion and sub-plural haemaridoic spot. Heart was normal. Stomach contained 30 ml fluid mixed with blood. No abnormal smell was detected in the stomach contents. Neck tissues showed extra vasation of blood in subcutaneous layers on the front and sides. Hyoid bone and thyroid cartilage were intact. Laryngeal mucosa showed sub-mucus palichial. Ribs were intact. Lungs showed congestion and sub-plural haemaridoic spot. Heart was normal. Stomach contained 30 ml fluid mixed with blood. No abnormal smell was detected in the stomach contents. All other abdominal organs were normal. In my opinion:- Injuries were ante-mortem caused by manual strangulation. Pressure to the neck structure was sufficient in normal course of nature to cause death. Death was due to asphyxia resulting from manual strangulation. Time since death was about 12 hours. ( 14 ) PW-16, Inspector Virender Singh Chauhan is the Investigating officer who has deposed to the investigation conducted by him. In his statement under Section 313 Cr. P. C. , the accused denied the occurrence and pleaded that they had been falsely implicated. Both the accused took up the plea that they had been lifted by the Police from their jhuggi from Okhla and then falsely implicated. ( 15 ) HAVING heard learned counsel, we have carefully examined the material on record. We find from the statements of PW-1 and PW-3, coupled with the medical evidence as also the recoveries made at the spot, that the prosecution has been able to bring home the guilt of the accused. The accused were caught red handed at the spot while making good their escape from the house of PW-1 when they were apprehended and the stolen articles recovered. The criticism that the Chowkidars, who had caught hold of the accused, had not been examined is of no avail since the Prosecution's several attempts made to get them served failed as their whereabouts were not known. This would hardly dilute the case of the Prosecution. Police witnesses, Pws. 5 and 11, had no reason to falsely implicate the accused. Even against the complainant no motive for falsely implicating the accused has been alleged. The accused have not been able to show that they were picked up from Okhla. Their getting apprehended outside the house of the complainant in the middle of the night along with the looted money and other articles is also a strong circumstance against them. The reasoning of the learned Additional Sessions Judge and appreciation of the evidence, to our mind, cannot be faulted with. Their getting apprehended outside the house of the complainant in the middle of the night along with the looted money and other articles is also a strong circumstance against them. The reasoning of the learned Additional Sessions Judge and appreciation of the evidence, to our mind, cannot be faulted with. We, on our own, having reappraised the evidence on record, find that the Prosecution has been able to bring home their case. ( 16 ) ACCORDINGLY, the judgment and order under challenge are upheld and Criminal Appeal Nos. 671 of 2002 and 65 of 2002 are dismissed. The appellants, if on bail, shall be taken into custody forthwith.