- (1.) The accused Nikku Yadav @ Neeku Yadav @ Nikar Yadav @ Nikara Yadav was placed on trial before the Learned Additional District & Sessions Judge, 3rd Court, Alipore, 24-Parganas (South) to answer charges under Section 302 of the Indian Penal Code for committing murder by intentionally causing death of one Rovindar Kaur Luthra and under Section 394 of the Indian Penal Code for committing robbery in respect of valuable articles, viz., jewellaries, cash etc. while committing her murder. In the said trial the accused was found guilty on both count and sentenced to death for his conviction under Section 302 of the Indian Penal Code, and no separate sentence was passed against his conviction under Section 394 of the Indian Penal Code. While the Trial Judge made the statutory reference under Section 366 of the Code of Criminal Procedure to this Court for confirmation of sentence of death, the accused being aggrieved by the order of conviction and sentence filed an independent appeal. Both the reference and the appeal were taken for hearing together.
(2.) The very genesis of the prosecution case, which led to the trial of the accused/appellant are as follows; The deceased Mrs. Rovindar Kaur Luthra along with her husband P.W. 9 Ashit Mohan Luthra were residing in a flat, situated at the 7th floor of Tripura Enclave Apartment, 59, Ballygunge Circular Road Kolkata 19. The accused Nikku Yadav @ Neeku Yadav @ Nikar Yadav @ Nikara Yadav (for the sake of brevity hereinafter referred to as "Nikku Yadav") was their full time domestic servant and working as such for 6/7 years and used to stay at the servant quarter inside the flat situated at the attached to roof terrace. On February 13, 2007 the P.W. 9 Ashit Mohan Luthra, the husband of the deceased went to Vizag for some business purposes, while his wife Rovindar Kaur Luthra remained there as well as the accused Nikku Yadav. On February 15, 2007 at around 5-30 a.m. in the morning the milkman went to the flat, but in spite of repeated ringing of bell neither the door was opened nor any response was received, when he left the milk packets in front of the door and reported the same to the security guard of the apartment. Thereafter, at around 6 a.m. the said security guard of the apartment found Nikku Yadav was coming out from the lift with a big shopper, a gunny bag, containing some things inside. Subsequently, the newspaper vendor, a porter with vegetables and the maid servant of the family one after another went to the flat but they also in spite of repeated ringing of bell received no response nor the door was opened. At around 9 a.m. the driver of the family Md. Azad @ Ayub came there and also did not get any response in spite of repeated ringing of bell and found the door was bolted from inside. In the meantime the resident of next door flat came there and the husband of the deceased was contacted over phone and many family friends and others arrived there. When the caretaker and the security guard brought the key and opened the lock of the roof door, went to the rear portion of the flat and found the grill gate was locked from inside, then a ladder was brought and with the help of the same the driver of the family landed at the terrace of the flat but accused Nikku was not found there. Then the said grill gate was opened with the keys lying inside and other also entered and found the main door of the flat was locked from inside and the deceased Rovindar Kaur Luthra was lying dead on the floor of her bed room, with multiple marks of injury on her face and neck, and the almirah was lying open and the room was ransacked. Subsequently, it was found a sum of Rs. 3.5 lakhs which Mr. Luthra left in the almirah before he went to Vizag and some dollars kept there and the gold ornaments worn by her and jewellaries kept in almirah were missing. In the post mortem it was found that she was killed by manual strangulation. Meanwhile, the police arrested the Nikku Yadav from Sambhunath Pandit Hospital, where he was admitted after meeting with an alleged road accident. During interrogation the said Nikku Yadav confessed his guilt and led the police party to the residence of one Narendra Kumar Barlia, situated at Alipore Road, where one of his friend Bablu Mondal, was working as a servant in Barlia family and on being asked by the accused, Bablu Mondal brought out a big shopper from his servant quarter and from the said big shopper a locked black leather bag was recovered and after breaking open the chain of the said bag the missing gold ornaments and jewellaries of the deceased and cash, viz., Indian currency and dollars were recovered and were subsequently identified by the family members of the deceased. According to Bablu Mondal the accused left that big shopper in his Jimbba on that day in the morning, without telling what were there and further told him that the accused would take back the same within a day or two. Subsequently, the accused Nikku Yadav again led the police team to the flat where Mrs. Luthra was murdered and brought out a dog belt from a corner of the roof garden of the flat, which was wrapped with a plastic and concealed under a piece of rock.
(3.) The aforesaid order of conviction and sentence has been assailed on behalf of the appellant on the following grounds :- (i) Although, inside the flat a closed circuit T.V. was fitted and same was connected by video linkage with the video camera fixed at the reception of the apartment, neither video camera footage, nor the closed circuit T.V. footage were seized by the investigating agency, which would have been the best evidence to unearth the real criminals and their modus operandi. (ii) According to the prosecution case the accused Nikku was last seen in the apartment on February 15, 2007 at about 6 a.m. while he was coming down from the lift with a loaded bag along with one Krishna Mondal, although the said Krishna Mondal was a very material witness still he was not examined during the trial. (iii) Allegedly the appellant was found by the security guard carrying a loaded bag and leaving the apartment, still his bag was not searched, although it was the duty of the security guard to search every person who was leaving the apartment with any loaded bag or other articles. Since he was carrying an empty bag the same was not checked. (iv) The accused/appellant on that day actually came out from the apartment with an empty bag which would be evident from the evidence of traffic constable P.W. 22 Body Roy, who found one empty bag hanging on the handle of the cycle. (v) The prosecution had not arraigned Bablu Mondal as an accused in this case despite the fact the stolen articles were recovered from his possession but he was cited as a witness. (vi) There was no test identification parade of the stolen jewellaries and gold ornaments. (vii) No independent witness was examined in support of recovery of the stolen articles as well as the dog belt which was allegedly used by the accused/appellant in the commission of the offence. (viii) The dog belt which was allegedly used in the commission of the offence was recovered long after the alleged incident. (ix) The dog belt was not sent for forensic examination. (x) The alleged stolen articles were admittedly handed over to the investigating officer by P.W. 17 Bablu Mondal, therefore, it could not be said that such recovery was admissible under Section 27 of the Evidence Act. (xi) It was never proved that with the aid of that dog belt the deceased could have been murdered. (xii) Blood group in the nail cuttings of the appellant was never established. Furthermore, it is the specific defence that although the accused/appellant used to stay at the servant quarter situated at the terrace attached to the flat of Luthra Family and his movement inside the flat was not restricted, and he had free ingress and egress from the said flat still he had no access to the bedroom of his master. According to the Learned Counsel of the defence on the date of the alleged incident the accused as usual woke up in the early morning and entered into the flat through the kitchen door and after having his tea went out for marketing and had no knowledge as to how the incident happened. Lastly, it is submitted in any event this is not being a rarest of rare cases imposition of capital sentence does not at all call for. In support of his contentions the Learned Counsel of the appellant relied on the following decisions, viz., (i) Khashaba Maruti Shelke Vs. The State of Maharashtra, 1973 CRLJ 1607, (ii) B.L. Satish Vs. State of Karnataka,2001 3 Crimes 182, (iii) Tanviben Pankajkumar Divetia Vs. State of Gujarat, 1997 SCC(Cri) 1004, (iv) State of Punjab Vs. Sarup Singh, 1998 SCC(Cri) 711.;