Madhup Vashisht vs The State
2008 Latest Caselaw 2245 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+            Crl.M.(Bail) No.1028/2008 in Crl.Appeal No.658/2008

%                             Date of Decision: 15.12.2008

Madhup Vashisht                                              .... Appellant
                             Through Mr.S.C.Buttan and Mr.Purvesh Buttan,
                                     Advocates.

                                           Versus

The State                                                   .... Respondent
                             Through Mr.M.N.Dudeja, APP for the State.

                                             AND

         Crl.M.(Bail) No.1118/2008 in Crl.Appeal No.712/2008

Himanshu Gaur                                                    .... Appellant
                             Through Mr.G.P.Thareja, Advocate.

                                           Versus

State                                                       .... Respondent
                             Through Mr.M.N.Dudeja, APP for the State.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE V.K.SHALI

1.      Whether reporters of Local papers may be                  YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?                     NO
3.      Whether the judgment should be reported in                 NO
        the Digest?


ANIL KUMAR, J.

*

These are the applications of the applicant, Madhup Vashisht, in

Crl.Appeal No.658/2008 and the applicant, Himanshu Gaur, in

Crl.Appeal No.712/2008 for suspension of their sentence and for their

release on bail during the pendency of the appeal.

By a common judgment dated 19th July, 2008 the applicants

Madhup Vashisht and Himanshu Gaur were convicted under Section

302 read with Section 34 of IPC. By order dated 24th July, 2008 the

applicants were sentenced to imprisonment for life and with a fine of

Rs.20,000/- each and in default of payment of fine, further simple

imprisonment of six months.

The case of the prosecution is that both the applicants committed

murder of the deceased, Prem Bahadur, in furtherance of their common

intention by inflicting danda and brick blows on the head of the

deceased and the injuries caused proved to be fatal and were sufficient

in the ordinary course of nature, to cause death of the deceased Prem

Bahadur.

The learned counsel for the applicant, Madhup Vashisht,

Mr.Buttan has very emphatically contended that PW.16 who was cited

as an eye witness had turned hostile. The said witness had categorically

deposed that he does not know anything about the case or the incident

having taken place in his presence. Even from his cross examination

nothing has been elicited to implicate the accused in the murder of

Prem Kumar. The other eye witness Kul Bahadur has not been

produced and in the circumstances there is no evidence against the

applicants to connect them with the murder of the deceased. The

learned counsel has also contended that though two seizure memos,

being exhibit PW.17/E and PW.17/H were prepared in respect of

seizure of two dandas, however, only one danda was sent to the forensic

laboratory. The said danda which is alleged to have been recovered

pursuant to the statement of the applicant Madhup Vashisht also did

not have any blood stains or any other mark to connect him with the

murder of Sh.Prem Bahadur. Relying on the testimony of PW 18 who

has denied his signature on PW.17/H, it has been contended that the

recovery of danda was planted and merely on the basis of the recovery

of a danda, the applicant Madhup Vashisht could not be convicted.

The learned counsel, Mr.Buttan has also contended that the

applicant has one wife and no mother and father and he was a financial

advisor at the time of alleged incident and there is a good prima facie

case in his favour.

The learned counsel for the applicant, Himanshu Gaur, has

contended that no recovery has been made at his instance and he was

related to Sh.Madhup Vashisht who is the son of his mama and he had

come to his house. Merely because Himanshu Gaur was arrested from

the house of Madhup Vashisht, nothing incriminating can be alleged

against him. It is also contended that nothing as contemplated under

Section 34 of Indian Penal Code has been alleged and proved so as to

implicate the applicant/Himanshu Gaur.

Regarding the cited eye witness Kul Bahadur, it is contended that

though an FIR has been registered regarding his disappearance,

however, even the said FIR discloses that Kul Bahadur was allegedly

abducted by 3-4 persons and he gave them a slip and went away and

intimated Sh.Khagander s/o.Sh.Dhan Bahadur on telephone on the

basis of which the FIR was registered. The registration of this FIR does

not implicate both the accused in any manner.

The learned counsel for the State, Sh.Dudeja contends that there

is nothing except the recovery of danda from the applicant Madhup

Vashisht. He has, however, relied on the reasoning of the trial Court

holding that it is an admitted fact that the danda, exhibit P2, belonged

to Kul Bahadur and the said danda was recovered from the house of

accused/applicant Madhup Vashisht. It is also contended that no

explanation has been furnished by Madhup Vashisht as to how the

danda of Sh.Kul Bahadur was lying in the house of the accused

Madhup Vashisht.

The learned counsel for the State is unable to show as to how it

has been established that the danda recovered from the house of

accused Madhup Vashisht belonged to Sh.Kul Bahadur. It has also not

been established prima facie that the danda allegedly recovered from

the house of accused Madhup Vashisht was used for the crime. The

learned counsel for the applicant Madhup Vashisht has also relied on

1987 Crl.L.J.1512, Dadasaheb Patalu Misal and Ors v. State of

Maharashtra; AIR 1997 SC 3954, Rambilas & Ors v. State of Madhya

Pradesh; 1986 (3) Crimes 249, Prabhubhai Sengabhai Vasava v. State

of Gujarat; 1999 Crl.L.J.2393, Hari Shankar v. State of U.P and 1995

Crl.L.J.248, Niranjan Lal v. State of Haryana to contend that the danda

allegedly recovered from the house of the applicant Madhup Vashisht

could not be the sole basis for conviction of the applicants especially

since there is a doubt about its recovery. In Dadasaheb Patalu Misal

(Supra) it was held that mere recovery of weapon of offence will not

attract Section 27 of the Evidence Act and independent evidence to

connect the weapon with the crime e.g blood stains on weapons must

be present. In this case a Division Bench of the Bombay High Court had

disbelieved the recoveries of axes or sticks which were claimed to had

been recovered at the instance of some of the accused persons and

conviction on the basis of same was set aside as no blood stains or any

other marks were found on the axes or sticks which were allegedly used

for the offence. In Rambilas and Ors (Supra) the Supreme Court had

held that recovery of certain incriminating articles at the instance of the

accused under Section 27 of the Evidence Act cannot form the sole

basis of conviction. The Apex Court had set aside the orders of the

Sessions Court as well as the High Court in convicting the accused on

the sole basis of recoveries made under Section 27 of the Evidence Act

and.

A Division Bench of Gujarat High Court in Prabhubhai Sengabhai

(Supra) had held that the evidence of the eye witnesses did not inspire

confidence and besides the uninspiring evidence of the eye witness, the

other evidence was only a dharia which was allegedly recovered at the

instance of one of the accused but no blood was detected on that

dharia. It was held that since there was no blood on the dharia, the

recovery of dharia did not assume any importance and in the

circumstances in absence of any reliable evidence, the conviction of the

accused by the Sessions Court was set aside and the accused were

acquitted. Another Division Bench of Allahabad High Court in Hari

Shankar (Supra) had held that the recovery of kulhari and Gandasa

which did not have human blood could not be relied on and it was held

that the circumstantial evidence does not have the requisite credible

links to connect the accused with the crime and, therefore, their appeal

was allowed. The Division Bench of Punjab & Haryana High Court in

Niranjan Lal (Supra) held that a recovery of one knife without any blood

stains and recovery of another knife on which the blood had

disintegrated, was found to be of no significance and it was held that

the conviction on the basis of the recovery of two knives in that case

could not be sustained.

The learned Public Prosecutor has not been able to challenge the

ratio of the judgments cited by and on behalf of the applicants. It is also

contended that there does not seem to be any other evidence except the

recovery of danda alleged to be of Sh.Kul Bahadur from the house of the

applicant Madhup Vashisht. There is no recovery of the brick allegedly

used for the offence, pursuant to any disclosure statement made by the

applicant, Himanshu Gaur.

Considering the totality of facts and circumstances, there seems

to be a prima facie case in favour of the appellants/applicants and,

therefore, their sentence during the pendency of the appeal are

suspended. The above noted appellants/applicants Sh.Madhup

Vashisht in Crl.Appeal No.658/2008 and Sh.Himanshu Gaur in

Crl.Appeal No.712/2008 be, therefore, released on bail on their

furnishing personal bonds for a sum of Rs.25,000/- each with two

sureties each of like amount to the satisfaction of the trial Court. The

appellants/applicants shall surrender their passport, if any, and shall

not go abroad without permission of this Court. The

appellants/applicants shall also appear on the dates the appeals shall

be taken up for hearing. It is also clarified that anything stated

hereinabove is not a final expression on the merits of the appeal.

Copy of this order be given dasti under the signatures of the

Court Master.

ANIL KUMAR, J.

December 15, 2008                                       V.K.SHALI, J.
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