Dinesh vs State
2011 Latest Caselaw 670 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Reserved
 

 
Criminal Jail Appeal No 8286 of 2008
 

 

 
Dinesh Harijan................................................Appellant
 

 
Versus
 

 
State of U.P.....................................................Respondents

Hon. F.I. Rebello, CJ

Hon Imtiyaz Murtaza J

(Delivered by Hon Imtiyaz Murtaza J)

Challenge in this appeal preferred from Jail is to the the judgment and order dated 30.9.2008 rendered by the Ist Addl Sessions Judge Meerut (Court no 14) whereby the appellant has been convicted under section 394, and again under section 302/34 IPC and he has been sentenced on each count i.e. under section 394 to suffer imprisonment for 10 years studded with fine of Rs 5000/- and again sentenced under section 302/34 IPC to imprisonment for life studded with fine of Rs 10,000/-. The appellant has further been sentenced under section 411 IPC to undergo imprisonment for three years. The aforesaid sentences of fine are followed by default stipulation and he has been sentenced to undergo six months, one year and 3 months R.I respectively.

The first informant who lodged the FIR at Police Station Kankar Kheda Meerut on 25.6.2004 is Pramod Kumar Sharma resident of Mohalla 20 Ram Nagar Lane No. 1 Kankar Kheda District Meerut. The substance of the written report is that his father namely Ratan Lal Sharma was done to death by unknown miscreants sometime in the intervening night of 24/25.6.2004. It is further mentioned that he has got a grocery shop and adjacent to it, he was getting his house constructed for the last one and half month. He used to sleep at his grocery shop. On the date of occurrence, his father Ratan Lal Sharma (deceased) preferred to sleep at the shop in his place. In the morning when he arrived at the shop, he found his father lying dead on a cot with injuries caused by sharp edged weapon. He also found the door of the shop broken and grocery goods lying pell mell.

The investigation was taken over by Hom Singh Yadav, Station officer P.S. Kankar Kheda Distt Meerut who after registration of the case, left for the place of occurrence and completed all formalities and prepared recovery memos etc with active assistance of SI Rajveer Singh. The charge sheet was submitted after completion of the investigation.

Since FIR was lodged against unknown miscreants, it is mentioned that on 26.6.2004, statement of watchman namely, Udaivir Singh deployed by the Meerut Development Authority was recorded and from which it transpired that Rajesh including the appellant who were residing in Brahmapuri Double Storey were seen roaming at or around the place of occurrence. His statement found, according to the prosecution case, was substantiated by the statement of Watchman Sandeep. The aforesaid watchmen also disclosed that the accused were seen taking away the goods from the shop. The investigating officer again interrogated the complainant and he too disclosed that he was told by the watchmen that the appellant and other accused resident of Double Storey were involved in the commission of the offence. The investigating officer also recorded the statement of Vinod Kumar who too disclosed that the accused persons had met him on the by-pass and confessed to the crime and pleaded with him to save him from the clutches of the police. The accused according to the prosecution case was arrested alongwith stolen goods on 9.7.2004 from Jawahar Nagar while they were bargaining for sale of stolen goods with Anil Gupta Shop-keeper. Thereafter, he prepared inventory of the recovered goods and completed other formalities.

The prosecution in order to substantiate its case, examined in all six witnesses out of which PW 1 is Pramod Kumar Sharma, who lodged the F.I.R, PW 2 is Vinod Kumar Sharma who is a witness to the fact that the accused persons confessed their crime to him, PW 3 is Rajesh Bhalla, an advocate by profession, who at the dictation of PW 2 scribed the report. He is also a witness to the inquest proceeding. PW 4 is Udaiveer who was on duty in the market as watchman. He was declared hostile as having been gained over. PW 5 is SI Rajveer Singh who assisted the Investigating officer in the investigation of the case and had made recoveries of certain articles. PW 6 is SSI Hom Singh who investigated the present case and submitted charge sheet in the court.

The case of the defence was one of denial attended with the version that the appellant was falsely implicated in the case on account of enmity but at the same time, it transpires, he has not adduced any evidence to prove the enmity.

The Sessions Judge relying upon the prosecution evidence, recorded verdict of conviction against the appellant as aforesaid holding that no evidence was adduced to prove enmity by the accused person and further that the FIR was initially lodged against unknown persons and hence the plea of enmity does not hold water for want of any cogent evidence. The learned Sessions Judge also converged to the finding that the murder is stated to have been committed by a sharp edged weapon and recovery of knife is a pointer to the fact that knife was used for commission of the offence and from the report received from the Laboratory at Agra, it stood proved that the knife was stained with human blood. Hence this appeal.

In this case, since the appellant has filed the appeal from Jail, he was unrepresented and hence Sri Rahul Chaturvedi was appointed as Amicus Curiae who argued the case at prolix length. We have also heard Sri D.R Chaudhary, Government Advocate assisted by a bevy of Addl Government Advocates.

Learned counsel for the appellant assailed the prosecution case and the finding of conviction contending that there is no ocular evidence on record and the entire case hinges on circumstantial evidence and is based on recovery and alleged confession to the son of the deceased. It is further contended that no recovery was made on the pointing out of the appellant and the recovery has been planted on them to prop up the case. He also contended that the appellant has been falsely implicated in the case on account of enmity.

PW 1 Pramod Kumar Sharma reiterated his version as spelt out in the FIR. His version supported the prosecution case to the effect that in the intervening night of 24/25.6.2004, the deceased had slept at the house under construction and when he went to the shop/house next morning, his father was found murdered. In the cross examination, he denied the suggestion that the recovered goods did not belong to him. He reiterated that the Watchmen of Meerut Development Authority had divulged the fact to him that certain boys of shady characters were seen roaming about in the area. He however denied the suggestion that the accused have been falsely implicated in the case.

In cross examination made by the lawyer appearing for accused Dinesh, he stated that the night watchmen were deployed by the Meerut Development Authority and house under construction being nearby, it was within the full view of the watchman. He also stated that the watchmen had disclosed the names of accused next day. He denied the suggestion that there was any enmity with any of the accused persons.

In cross examination by the lawyer of accused Vinod, he stated that the FIR does not contain details of recovered goods. He denied that he maintained a list of articles stored in the shop. He reiterated that the goods in the shop were found pell mell.

P W 2 Vinod Kumar Sharma is brother of informant and son of the deceased. His testimony is to the effect that on 25.6.2004, he got the information about the murder from his wife when he was on duty at Saket. He propped up the prosecution case ostensibly in all material aspects. His deposition further revolvers round the confession made by the accused on 26.6.2004 when he was on way to the shop. The story set up by him runs to the effect that on 26.6.2004 when he was on way to the shop, he came across the accused persons on the by-pass road, who confessed to him that they had gone to commit the theft in the shop but, unfortunately, the deceased woke up and recognised them and therefore, they had to commit his murder. He pinpointed that accused Rajesh had confessed that he had inflicted knife injuries on the deceased while other accused persons accompanying him had caught hold of the deceased. The accused is also stated to have confessed that thereafter, they had collected the goods in a plastic bag/sack and when they were escaping with goods, they were confronted by the watchmen of Meerut Development Authority. The witness also stated that the accused persons also confessed to him that he was seeking pardon from him further stating that they feared reprisal from PW1 and hence they were seeking pardon from PW 2. He also stated that thereafter, he left for his house assuring the accused to do the needful in the matter and informed the police. On being further confronted by the counsel for the accused, he could not tell when he came across the accused. He explained that he was on a cycle. He reiterated that all the accused persons had gone to commit theft and that when they broke open the lock, the deceased woke up and recognised them upon which they had to commit the murder of the deceased attended with the statement that the accused spoke to them fearing that the police would deal with them harshly and that the witness would do something to soften up the harsh treatment by the police. He further stated that thereafter, Udaivir Watchman also disclosed the names of the accused to the witness. He also stated that this fact was told to the investigating officer at the time when his statement was recorded. He also explained that he disclosed the confession given by the accused without naming anyone of the accused for the reason that all the accused persons had met him together. He also explained that he had a talk with the accused persons for about 15 minutes. He also stated that he did not raise any hue and cry that the accused were the same persons who had committed murder of his father. He also stated that the accused had also assured him that they would return the stolen goods if they were pardoned. He also explained that the accused persons were residing in M.D.A colony and he recognised them from before as they were quite often seen by him on way to shop from his house. He also stated that one of the accused Dinesh was known to him as he worked as Beldar in the vicinity of the shop and also used to purchase sanitary wares from the shop. He also explained that his brother used to deal in grocery as well as in sanitary wares. He also explained that he did not know the names of father of accused and he could not explain how investigating officer mentioned names of father of the accused in his statement. He also explained that on way from his house to the shop he used to take the route via MDA colony or Defence Colony and in between this route, police station did not fall. He also explained that he did not take short route as he was to attend to other works on way. He denied the suggestion that none of the accused met him or made confession to him and further that he was deposing falsely in the case.

PW 3 is Rajesh Bhalla. He is advocate by profession. According to his deposition, informant Pramod Kumar Sharma was known to him and he wrote down the report on the dictation of the informant. He also deposed that inquest was conducted in his presence and he was one of the witnesses of inquest.

In cross examination, he stated that the report was scribed by him in the police station itself. He also stated that nephew of Pramod Kumar had come to call him and Pramod Kumar had also phoned him.

He denied the suggestion that the FIR was prepared by the witness and it was anti-timed.

PW 4 is Udaiveer. He deposed that he was watchman and was present on duty on the day of occurrence. He also deposed that he knew deceased from before and had a talk with the deceased at about 12.30 in the night and he was on duty alongwith Sandeep Watchman. He denied that he had noticed the accused persons on the day of occurrence or they had come across or that they were known to him. He also deposed that next day he came to know that Ratan Lal had been murdered and his shop had also been burgled.

The witness was declared hostile as having been gained over and he was cross examined extensively and at prolix length by the State Counsel. In cross examination, he denied that the accused were known to him as they resided in double storey Phase II Brahmapuri and that they used to pull Rickshaws. He also denied the suggestion that the accused were seen roaming by the witness and on being challenged, they had explained that they had been there for some work. He denied that he ever suggested to the investigating officer that if the accused persons were interrogated, they would shed some light on the murder theory. He also denied that his statement was recorded by the investigating officer. When he was confronted with the statement recorded under section 161 Cr.PC, he repudiated having given any such statement to the police. He also denied that he has been gained over by the accused persons. He also denied that the accused had committed theft in the shop and thereafter murdered the deceased. He stated that Sandeep who was serving as watchman had abandoned the job and had left for Bihar. He denied any knowledge of his whereabouts. He also stated that he too had abandoned the job and at present he was looking after his agricultural land.

On being cross examined by the defence lawyer, he stated that in the intervening night of 24/25.6.2004, he had not had any talk with the deceased. He also stated that at that time, he was asleep in his room under the Tank and at about 5 am, he had left for his house and he had not heard anything about murder by that time. He also stated that when he came to resume duty next day, he came to know of the murder. He denied to have known the accused persons and also that the police had recorded any statement or interrogated him. He also stated that he did not have any talk with Vinod nor he disclosed the names of any of the accused to him. He also stated that Sandeep was not on the rolls of the M.D.A and that he had left for Bihar after one or two days of the incident. He also stated that he did not have any talk with Sandeep in regard to murder.

PW 5 is Rajveer Singh, who was then posted as S.I at police station Kankar Kheda. He deposed that the accused persons were interrogated in the police station by him and investigating officer and they had confessed to the commission of offence and on their pointing out, certain recoveries were made. He also stated that the accused were taken in police jeep and on their pointing out, gas cylinder was recovered from the house of Rajesh accused. Again on pointing out of Rajesh, knife used in the commission of murder was also recovered. Again accused Vinod led to recovery of knife and on recovery of knife the accused had told that it was the same knife with which the deceased was murdered with full complicity of the other accused persons. He also deposed that attempt was made to secure independent witness to attest to the recoveries but no independent witness was agreeable to be witness of recoveries. He also disclosed details of recovery proceeding.

On being cross examined, he reiterated his version about recovery on the pointing out of the accused persons. He could not tell the house number of accused Rajesh, but he stated that it was situated on the ground floor. At the time, he stated, the house was locked. The accused Rajesh took out keys from the lattice (small barred window). He also gave details about house hold articles in the house. He also stated that knife was placed under a sack and the sack was empty. He also stated that at the time of recovery, certain people had collected but any one of them was not agreeable to be witness of recovery. Thereafter, he stated that the accused were taken to the place on the pointing out of accused Vinod where-from they recovered knife. He also stated that dimension of knife was mentioned according to a guess. He also stated that the house of Vinod was situated in another block at a distance of 20-25 steps from the house of Rajesh. He also mentioned the dimension and its features. He denied the suggestion that the knife which was opened in the court did not tally with the details mentioned in the record. He denied the suggestion that no recovery was made and also that the police has falsely implicated the accused in the case.

The next witness is PW 6 Hom Singh Yadav, the investigating officer of the case. He gave all details relating to the investigation of the case.

In cross examination, on a pointed query whether the name of the informant on the sack containing recovered goods could be written subsequently, he stated that name of Pramod Sharma was written at the time of recovery itself. On a further query, he stated that the recovered goods belonged to the shop of informant. He also stated that the goods were the same as recovered from the accused and it belonged to the informant and each good contained product mark. On a further query, he stated that 80% of goods contained product marks. He also explained that at that time, Pramod Kumar Sharma was wearing white slippers and the same did not contain any blood stains. At the same time, he explained that the slippers seemed to contain some stain ostensibly of a paint. He also stated that if it was so written in G.D, it is wrongly written. He clarified that the slippers were not sent for forensic examination. He denied the suggestion that the murder was committed by Pramod Kumar, the own son of the deceased and that for this reason, his slippers were stained with blood and that the police in league with Pramod Kumar enacted recovery and falsely implicated the accused. He also denied the suggestion that no recovery of knife as alleged was made on the pointing out of the accused. He denied that the murder was committed by Pramod Kumar explaining further that during investigation, no clue could be detected pointing to the guilt of Pramod Kumar attended with statement that the recovery was natural.

The entire case, we may mention, hinges on circumstantial evidence and there is no direct evidence of commission of the crime. The learned Sessions Judge for converging to the conclusion culminating in the finding of conviction, has set great store by the following incriminating points.

(i) Confession of accused persons to the PW 2 Vinod Kumar Sharma, son of the deceased.

(ii) Recoveries of stolen articles from the shop

(iii) Recovery of blood stained knife and a gas cylinder on the pointing out of the accused persons.

In the instant case, PW 2 Vinod Kumar Sharma has been examined by the prosecution to prop up th confession made by the accused. As a prelude, it may be noticed here that this witness is the son of the deceased and the brother of First Informant namely, Pramod Kumar Sharma. The quintessence of deposition of this witness is that on 26.6.2004, he was on way to his shop from his house when he was accosted by Dinesh Harijan, Rajnish alias Raj Kappor, Vinod Jogi and Dinesh near by-pass crossing. The aforesaid accused, it is deposed, beckoned him to stop and made confession to him that in the intervening night of 24/25.6.2004, they had committed burglary in the shop of Pramod Kumar Sharma and his father was asleep there. The confession further was that after scaling the gate, they had broken open the door of the shop but his father in the meantime woke up and identified them and therefore, they had committed the murder of his father by inflicting knife injuries. He further deposed that Rajesh accused had also confessed that he had inflicted knife injury while other accused persons had caught hold of the deceased. In cross-examination, he admitted that only Dinesh had confessed to the commission of offence while other accused persons were with him and it was for this reason that he did not specify to the investigating officer that it was only Dinesh amongst the accused, who had made confession. The learned Sessions Judge gave much weight to the evidence of confession.

Having scrutinized the evidence, it is notice worthy that the statement of Vinod Kumar Sharma is replete with contradictions. He initially deposed that all the four accused persons had confessed to the crime but in cross examination, he took a somersault attributing role of making confession to Dinesh only. The statement of this witness was recorded on 28.9.2004. On the date of recording of statement, it would be eloquent from a perusal of the order sheet, both the accused bearing the name of Dinesh were present in court but he could not identify as to which of the accused had confessed to the crime before him. Here it is worthy of notice that if his case is that all the accused persons had confessed to the crime, it would fall in the category of confession "in chorus" but the fact remains that in his cross examination, he has vaguely mentioned that only accused of the name of Dinesh had confessed to the crime and therefore, it is not clear as to which of the accused of the name of Dinesh had confessed to the crime.

It is also noticeable that in the statement under section 313 Cr.P.C of the accused, the question was put to the accused that on 26.6.2004, all the accused persons had confessed to have committed murder of the father of Vinod Kumar Sharma, the reply to which was in denial. In our considered view, it is highly improbable that the accused would make confession to the son of the deceased that too, on a road after committing such a heinous crime.

The another feature which appears to be improbable to us is that when the accused had confessed their crime to the witness by stopping him, the witness inexplicably kept quiet and rather assured the accused with all possible help instead of reacting, fully knowing that the accused persons were the killer of his father.

Having considered the matter in entirety, we are of the opinion that the learned Sessions Judge erred in placing reliance on confession when it was shrouded in mystery as to which of the accused had confessed to the crime.

The next incriminating circumstance relied upon by the learned Sessions Judge is recovery of burgled articles. We also feel called to advert to the deposition of PW 6, Hom Singh Yadav. According to this witness, the accused persons were arrested on 9.7.2004 and the stolen articles were recovered from the joint possession of the accused persons. What is striking here is the fact that there is no evidence available on record pointing to the fact that the recovered articles were the stolen property belonging to the shop. In the circumstances, it would suffice to mention here that neither PW 1 nor PW 2 had identified the articles recovered by the investigating officer to be the articles stolen from their shop during the heist. By this reckoning, it cannot be said that the articles recovered were connected with the crime.

Yet another aspect worthy of notice is that in the examination of the accused under section 313 Cr. P.C, no question was put to the accused calling upon them to explain the recovery of stolen articles. In connection with it, we may refer to the decision of the Apex Court in Lallu Manjhi v State of Jharkhand (2003) 2 SCC 401. Para 14 of this decision being germane, is excerpted below.

"14. Incidentally, it may also be stated that the manner in which the Trial Court has recorded the statements of the accused persons u/S. 313, Cr. P.C. is far from satisfactory. The entire prosecution case running into very many details has been summed up into just 5 questions asked to each of the accused persons. It is obligatory on the part of the trial Court to examine the accused for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording conviction of the accused persons."

Another incriminating circumstance which crops up for consideration is recovery of knife and a cylinder from the house of one co-accused Rajesh. PW 6, investigating officer and PW 5 Rajveer Singh, who assisted the investigating officer in the investigation had deposed that the accused persons were taken into custody for the recovery of knife and from the house of Rajesh alias Raj Kapoor, cylinder was recovered after entering into the gate of his house and one knife was recovered from under a sack. The witnesses further deposed that the knife was recovered on the pointing out of accused Vinod. In the set of facts and circumstances, we feel compelled to say that the recovery cannot be read in evidence against the appellant for the reason that it was recovered from the house of Rajesh alias Raj Kapoor and that no recovery has been alleged to have been made on the pointing out of the appellant.

In the case of Lachhman Singh v The State AIR 1952 SC 167, paragraph 11 being relevant is quoted below.

"11. The learned counsel for the appellants cited a number of rulings in which S. 27 has been construed to mean that it is only the information which is first given that is admissible and once a fact has been discovered in consequence of information received from a person accused of an offence, it cannot be said to be rediscovered in consequence of information received from another accused person. It was urged before us that the prosecution was bound to adduce evidence to prove as to which of the three accused gave the information find. The head constable, who recorded the statements of the three accused, has not stated which of them gave the information first to him but Bahadur Singh, one of the witnesses who attested the recovery memos, was specifically asked in cross examination about it and stated:

"I cannot say from whom information was got first". In the circumstances, it was contended that since it cannot be ascertained which of the accused first gave the information, the alleged discoveries cannot be proved against any of the accused persons.

It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar confessional statements relating to facts discovered to different accused persons, in order to create evidence against all of them, the case undoubtedly demands a most cautious approach. But, as to what should be the rule when there is clear unimpeachable evidence as to independent and authentic statements of the nature referred to in S. 27, Evidence Act, having been made by several accused persons, either simultaneously or otherwise, all that we wish to say is that as at present advised we are inclined to think that some of the cases relied upon by the learned counsel for the appellants have perhaps gone farther than in warranted by the language of S. 27, and it may be that on a suitable occasion in future those cases may have to be reviewed.

For the purpose of this appeal, however it is sufficient to state that even if the argument put forward on behalf of the appellants, which apparently found favour with the High Court, is correct, the discoveries made at the instance of Swaran Singh cannot be ruled out of consideration. It may be that several of the accused gave information to the police that the dead bodies could be recovered in the Sakinala, which is a stream running over several miles, but such an indefinite information could not lead to any discovery unless the accused followed it up by conducting the police to the actual spot where parts of the two bodies were recovered. From the evidence of the head constable as well as that of Bahadur Singh, it is quite clear that Swaran Singh led the police via Salimpura to a particular spot on Sakinala, and it was at his instance that bloodstained earth was recovered from a place outside the village, and be also pointed out the trunk of the body of Durshan Singh. The learned judges of the High Court were satisfied, as appears from their judgment, that his was "the initial pointing out" and therefore the case was covered even by the rule which, according to the counsel for the appellants, is the rule to be applied in the present case."

It would thus transpire that once a fact has been discovered in consequence of information received from an accused of an offence, it cannot be said to be rediscovered in consequence of information received from another accused person.

In the totality of the circumstances, we are of the irresistible view that the conviction and sentences recorded against the appellant cannot be sustained.

The appeal filed on behalf of Dinesh Harijan is allowed. He is in jail. He shall be released forthwith from jail if not wanted in any other case.

Office is directed to send a copy of this judgment to the court concerned within two weeks for compliance.

MH

March 31,.2011