Delhi High Court
Surender vs State on 3 July, 2009
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 03.07.2009
+ CRL. A. No. 21/1994
SURENDER ... Appellant
- Versus -
STATE ... Respondent
Advocates who appeared in this case:-
For the Appellant : Mr S.C. Jindal
For the Respondent : Mr M.N. Dudeja
WITH
+ CRL. A. No.31/1994
RAVINDER KUMAR ... Appellant
- Versus -
STATE ... Respondent
Advocates who appeared in this case:-
For the Appellant : Mr Ravinder Chadha with Mr Jagdish Prasad
For the Respondent : Mr M.N. Dudeja
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE P.K. BHASIN
1. Whether Reporters of local papers may be allowed
to see the judgment ? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported in Digest ? Yes
BADAR DURREZ AHMED, J
1. These two appeals arise out of the judgment dated 25.11.1993
delivered by the learned Additional Sessions Judge, Delhi in Sessions
Case 21/1992, which, in turn, arose out of FIR No.89/1990 registered at
P.S. Alipur under Sections 302/411/34 IPC. By virtue of the impugned
judgment, both the appellants were found guilty of having committed
the offence punishable under Sections 302/34 IPC of the Indian Penal
Code (IPC). The appellant Ravinder Kumar @ Gabbu was also
convicted under Section 411 IPC for having been in possession of a
scooter bearing No. DDO 2599 which did not belong to him, but to the
deceased Sanjay @ Gandhi. These appeals are also directed against the
order on sentence dated 25.11.1993 passed by the learned Additional
Sessions Judge, Delhi whereby both the appellants were sentenced to
undergo rigorous imprisonment for life under Section 302/34 IPC and
were also liable to pay a fine of Rs 1,000/- each and in default of
payment thereof, they were to undergo further simple imprisonment for
a period of two years. The appellant Ravinder was also sentenced to
undergo one year‟s rigorous imprisonment under Section 411 IPC
alongwith a fine of Rs 500/-. In default of payment of the same, he was
to undergo further simple imprisonment for three months. All the
sentences were directed to run concurrently.
2. This case rests entirely upon circumstantial evidence. According
to the learned Additional Sessions Judge, the prosecution has been able
to prove the following circumstances against the appellants:-
"(1) Motive;
(2) Last scene (sic: seen);
(3) Extra-judicial confession;
(4) Possession of the scooter by the accused which bore No.
DDO 2599; and
(5) The wrong defence."
3. We shall comment upon each of these circumstances later. For
now, let us see the case of the prosecution. On 13.09.1990, information
was received vide D.D. No.3-A from lady Constable Usha No.2620-
PCR over the telephone that at about 8.00 a.m., one Chaman Singh,
resident of village Bakhtawarpur had made a call from a public booth
to the effect that a dead body was lying near Shobha Ram‟s tubewell
and the police be sent. Inspector B.D. Sharma and his staff reached the
spot on the field of one Tej Ram, son of Shera in the area of village
Bakhtawarpur, Delhi where the dead body of an unknown man was
found lying. On the blood stained dead body, there were injuries
apparently caused by a sharp-edged weapon and at a distance of about
seven paces from the dead body one spring-activated knife, whose
pointed end was bent and the joint of the handle was open, was also
found. Near this knife (Exhibit-P-6), one pair of leather chappals was
also found and dried blood was found in abundance scattered at the
spot. There was no label on the pant and the shirt nor was there any
identification mark present on the dead body. There were no eye
witnesses at the spot. The dead body could not be identified.
4. Thereupon, a case was registered vide FIR No.89/1990 under
Section 302 IPC and investigation was commenced by Inspector B.D.
Sharma. The crime team and dog squad had been called. The scene of
the crime was photographed, a rough site plan was prepared.
Proclamation was made by hue and cry notices for the purposes of
identifying the dead body. Wireless messages were also flashed. But
the dead body could not be identified. The dead body was sent to the
„Dead House‟ (mortuary). The post mortem examination was got
conducted. The dead body was handed over to Seva Samiti. Perhaps,
the dead body was cremated thereafter by the said Seva Samiti. Then,
there is a complete blank as to what happened thereafter with regard to
investigation till 06.04.1991. In the intervening period, Inspector B.D.
Sharma, who had taken up the investigation earlier, had been
transferred. PW-25 (Inspector R.P. Singh) took up the investigation of
the case. Inspector R.P. Singh was posted at Police Station Alipur on
20.03.1991 and it is from that date that he took over the investigation
from Inspector B.D. Sharma.
5. The prosecution case goes further that PW-23 (SI Shiv Prasad) of
Police Station Jaffarpur Kalan was investigating the case arising out of
FIR No.70/1990 under Section 365/34 IPC registered at Police Station
Jaffarpur Kalan in respect of the kidnapping of one Sanjay. PW-23 (SI
Shiv Prasad) was allegedly informed by Inder Singh and Ranbir Singh
at about 2.00 p.m. that Gabbu and Bawna, who had murdered Sanjay,
would be coming to the Dhansa bus stand from Chhawla village.
Thereupon, a raiding party was organised at Chhawla bus stand. After
sometime, a two-wheeler scooter bearing No. DDO 2599 approached
from the direction of Chhawla village. It was stopped by PW-23 (SI
Shiv Prasad) on the pointing out of Inder Singh and Ranbir Singh. The
scooter was being driven by the appellant Ravinder Kumar @ Gabbu
and the appellant Surender @ Bawna was sitting on the pillion seat.
Both the appellants were apprehended and the scooter No. DDO 2599
was taken into police custody. PW-25 (Inspector R.P. Singh) received
information on 06.04.1991 itself at about 5.00 p.m. from the Police
Station Jaffarpur Kalan that the accused persons involved in the present
case were arrested by them and that they have made disclosure
statements regarding the murder of Sanjay at village Bakhtawarpur.
PW-25 (Inspector R.P. Singh) went to Police Station Jaffarpur Kalan
and collected the disclosure statements, pointing out memos and a copy
of the seizure memo of the scooter from PW-23 (SI Shiv Prasad). The
present appellants were also interrogated by PW-25 (Inspector R.P.
Singh), who also arrested them in this case.
6. After completion of investigation, the charge-sheet was filed
before the learned Metropolitan Magistrate, who committed the case on
11.07.1991 to the court of Sessions. The charge was framed against the
appellants under Section 302/34 IPC by an order dated 04.03.1992.
The appellant, Ravinder Kumar was also charged under Section 411
IPC for receiving the stolen property, i.e., the scooter No.DDO 2599.
Both the appellants pleaded not guilty to all the charges and claimed
trial. The prosecution produced as many as 25 witnesses. The trial
court, after having considered the evidence led by the prosecution and
the arguments made by the counsel for the parties as well as the Section
313, CrPC statement made by the appellants, came to the conclusion
that the prosecution case stood established.
7. The learned counsel for the appellants submitted that the trial
court has completely misdirected itself in considering the evidence on
record. The learned counsel submitted that this was a case which rested
entirely on circumstantial evidence. It was incumbent upon the trial
court to have examined the evidence thoroughly and to have seen as to
whether the chain of circumstances was complete. The learned counsel
for the appellants submitted that there are far too many missing links
and there is just no way in which any court could have convicted the
appellants based on the material on record. The learned counsel for the
appellants submitted that the circumstances relied upon, as indicated
above, have not been established by the prosecution. The so-called
motive based upon the testimony of PW-3 (Sunita) is no motive at all
for committing such a serious crime. The last seen evidence allegedly
to be again of PW-3 (Sunita) cannot be regarded as „last seen evidence‟
and, in any event, is not established and is of a very weak nature. The
so-called extra-judicial confession made to PW-10 (Puran) cannot be
believed by any stretch of imagination and cannot be construed to be a
circumstance leading to the conviction of the appellants. Even the
possession and recovery of the scooter bearing No. DDO 2599 is not
free from doubt and, therefore, such circumstances cannot be used
against the appellants. The trial court has also placed reliance on a
circumstance which it has termed as "wrong defence". According to
the learned counsel for the appellants, a wrong or false defence raised
by the counsel for the accused cannot, in law, be considered to be a
circumstance which can be used against the appellants. It is for the
prosecution and not the defence to establish its case beyond reasonable
doubt. The defence is only to demonstrate improbabilities and
impossibilities in the prosecution case in order to establish that the
prosecution case is not beyond doubt. As a result, the learned counsel
for the appellants submitted that neither is there any evidence on record
to conclusively link the present appellants with the alleged death of
Sanjay @ Gandhi. Nor has the trial court approached the matter in
accordance with the established legal principles. He further submitted
that the trial court has misdirected itself both on appreciation of
evidence as well as on points of law. The trial court has, according to
the learned counsel, admitted hearsay evidence which is clearly
inadmissible by misconstruing the provisions of Section 60 of the
Indian Evidence Act, 1872. The trial court has also relied upon a
portion of the disclosure statement of the accused, which was clearly
inadmissible, in view of the settled principles. It was submitted that for
all these reasons, the impugned judgment and order on sentence are
liable to be set aside and the appellants are entitled to an order of
acquittal.
8. Mr Dudeja, the learned counsel appearing on behalf of the State,
fully supported the impugned judgment and order on sentence. He
submitted that the motive was clearly established and that is that
deceased Sanjay had teased PW-3 (Sunita) in the absence of the
appellants (Ravinder Kumar and Surender Kumar) and when she
informed them about this, they decided to put an end to Sanjay‟s life.
He submitted that the last seen testimony of PW-3 (Sunita) is also a
material circumstance. According to him, Sanjay was last seen alive by
PW-3 (Sunita) in the company of the present appellants when they all
left together from her house. The third circumstance, which is of vital
importance, according to Mr Dudeja, is the possession of the scooter
bearing No. DDO 2599. The appellants were found with the said
scooter on 06.04.1991 on interception by Sub-Inspector Shiv Prasad
(PW-23) on receiving secret information.
9. Mr Dudeja submitted that the cumulative effect of all these
circumstances, which have been established by evidence on record,
clearly points in the direction of the guilt of the appellants. He,
therefore, requested that the appeal be dismissed and the conviction and
sentence be upheld.
10. At the outset, we may note that after considering the evidence on
record and the arguments advanced by the counsel for the parties, this
is a case where the trial court has completely misdirected itself both on
the point of appreciation of evidence as well as on points of law. The
learned counsel for the appellant is correct in submitting that the trial
court has grossly erred in law in treating hearsay evidence of PW-7
(Kalu Ram) as admissible by misinterpreting the provisions of Section
60 of the Indian Evidence Act, 1872. The trial court has also gone
completely wrong in relying on a portion of the disclosure statement,
which shall be pointed out hereinbelow, which was clearly inadmissible
by virtue of the provisions of Sections 25, 26 and 27 of the Indian
Evidence Act, 1872. From a reading of the impugned judgment, we get
the impression that the learned Additional Sessions Judge was bent
upon convicting the appellants and he kept on brushing aside all the
lacunae and shortcomings in the prosecution case which were pointed
out by the defence counsel. A glaring and gross example is the
following observation of the learned Additional Sessions Judge with
regard to the voluntariness of the disclosure statements allegedly made
by the appellants:-
"As far the disclosure statements are concerned only the
courts are to examine whether the disclosure statements
made by the accused is a true and voluntarily made. True it
is that this has been spoken by PW20 that some mild
beatings were given to the accused in order to elicit the
disclosure statements and this does not affect the
prosecution case at all."
It is, indeed, surprising that a court of law, after noting the fact that a
disclosure statement was elicited from an accused after he was beaten
(mildly), could regard such a disclosure statement as being voluntary
and, therefore, having no effect on the prosecution case at all. Nothing
more needs to be said and it is only with wonder and amazement at the
understanding (or lack of it) of the court below that we have to reject its
decision.
11. Another example is that when the defence counsel argued that in
the absence of disclosing the secret informant, the circumstance of the
interception of the appellants at the Dhansa bus stand on 06.04.1991
and the consequent alleged recovery of the scooter bearing No. DDO
2599, cannot be considered against the appellants, the learned
Additional Sessions Judge felt that this argument had no force because,
according to him, it was "not necessary to disclose who supplied the
secret information". The court observed that the fact that the man who
gave the information has not been disclosed or examined as a
prosecution witness will not affect the prosecution case. The law with
regard to secret information being used as a circumstance is entirely
different. As indicated in Kanhai Mishra alias Kanhaiya Misar v.
State of Bihar: 2001 (3) SCC 451, secret information alleged to have
been received by an investigating officer without disclosing its source
cannot be made the basis to prove a circumstance. In Bhugdomal
Gangaram and Others, etc. v. The State of Gujarat: 1983 Cril. L.J.
1276, the Supreme Court with regard to information, which the
prosecution had received, observed as under:-
"But since the informant has not been examined as a
witness, the evidence of P.W. 12 that he was informed that
accused Nos. 3 and 4 would be coming behind the truck in
a taxi is not admissible."
Furthermore, the fact that the secret informer has not been produced
before court also creates doubts about the recovery of the scooter No.
DDO 2599 from the appellants on 06.04.1991 as indicated by the
prosecution.
12. PW-7 (Kalu Ram) stated that on 03.04.1991, he had gone to his
village Gumman Hera where he met one Raghunath Singh. They both
drank liquor. The said Raghunath Singh is said to be his co-brother-in-
law. As per PW-7 (Kalu Ram), Raghunath Singh told him that Sanjay
was murdered by Ravinder Kumar and Surender Kumar. According to
PW-7 (Kalu Ram) on 04.04.1991, he told PW-8 (Jai Chand) that his
son had been murdered by the accused persons. Jai Chand asked Kalu
Ram as to who told him about it, to which he replied that his co-
brother-in-law Raghunath Singh told him about the murder of Sanjay
by the accused persons. When the defence counsel objected to this
portion of the testimony of PW-7 (Kalu Ram) as being hearsay and,
therefore, could not be taken into account, the learned Additional
Sessions Judge had this to say:-
"No doubt the evidence of PW7 Kallu Ram is hear-say
evidence but he is the first man to hear it and the statement
of PW7 is admissible under S. 60 of the Evidence Act
where it is provided that "Hear-say evidence is admissible
if the man who heard says that he heard", so the argument
of the ld. defence counsel is devoid of force."
The learned Additional Sessions Judge has completely misdirected
himself and has misconstrued Section 60 of the Indian Evidence Act,
1872. Section 60, on the contrary, stipulates that oral evidence must, in
all cases, be direct. In other words, if oral evidence refers to a fact
which could be heard, it must be the evidence of a witness who says he
heard it. This cannot, by any stretch of imagination, be extended to
mean that direct evidence of hearsay evidence would be admissible as a
circumstance to establish a fact. The Section refers to a case with
regard to a fact which could be heard in a manner that if „A‟ hears
something, then it is „A‟ who should come and give evidence of what
he heard. In the present case, what PW-7 (Kalu Ram) has stated in his
testimony is that Raghunath Singh told him that Sanjay was murdered
by Ravinder Kumar and Surender Kumar. The allegation is that Sanjay
was murdered by Ravinder Kumar and Surender Kumar. Even
Raghunath Singh does not claim to be an eye witness and, in any event,
from where he acquired this knowledge is not clear as Raghunath Singh
himself has not been produced as a witness. If what the learned
Additional Sessions Judge has observed is to be taken as the true state
of affairs in law, then, in a case where „A‟ says that „B‟ told him that he
had come to know from „C‟ that „X‟ had murdered „Y‟, then „A‟s‟
testimony to this effect would amount to direct evidence of „X‟ having
murdered „Y‟. Direct evidence with regard to hearsay evidence would
not convert the hearsay evidence into direct evidence and would remain
to be hearsay. Therefore, no reliance whatsoever ought to have been
placed on the hearsay evidence of PW-7 (Kalu Ram) and in doing so,
the court below has clearly erred in law.
13. PW-3 (Sunita) is a key witness insofar as the prosecution case is
concerned. It is as per her testimony that the trial court has concluded
that the motive stands established. Her testimony has also been
construed as the last seen evidence. PW-3 (Sunita) came to depose as a
prosecution witness on 09.04.1992. It is also extremely relevant to
point out that her examination-in-chief is in two parts. One before
lunch and the other after the lunch break. This is a very material
circumstance because her testimony prior to the lunch break is
completely different from what she stated in her examination-in-chief
after the lunch break.
14. Let us see what she stated in the pre-lunch session. She stated
that about 5-6 years back, she was married to one Dharam Pal, resident
of village Khaira, P.S. Jaffarpur. She knew both the accused persons
present in court and disclosed their names as Surender and Ravinder.
She stated that about a year and six months back, both the accused
persons came on a scooter at about 9.00 a.m. She served the accused
persons with food and tea. She did not know whether anybody else
was with the accused persons or not. She again said that a third man
was also there. All the three enjoyed their food at her residence. At the
time of eating food, she had no occasion to talk with any of the three
persons. The third man did not tease her or do anything objectionable
which she did not approve of. After having food, all the three persons
left. She did not know where they went.
15. This was the story given by her in her examination-in-chief in
the pre-lunch session. There is nothing in this part of the testimony
which implicates any of the persons. In fact, she negates the theory of
the third man teasing her or doing anything objectionable. It is also
significant to note that in this pre-lunch portion of her examination-in-
chief, she does not name the third person. It is also significant to note
that she was giving her testimony on 09.04.1992 and she stated that
about one year and six months back, the appellants had come to visit
her. This would fix the date of their visit to be sometime in October,
1990. She did not give the exact date on which the said visit was made
by the accused persons. It must be remembered that the unidentified
body was found on 13.09.1990. From her testimony, it cannot be said
that the alleged visit by these persons was made on 12.09.1990 as
alleged by the prosecution.
16. Anyhow, after lunch, when PW-3 (Sunita) continued with her
deposition, she changed the story. She stated that Ravinder and
Surender left her house for some time and that the third person, who
had accompanied them, remained with her at her house. Ravinder and
Surender returned to her house after about 45 minutes. The third
person, whom she now named as Sanjay, remained at her house and
teased her in the absence of Ravinder and Surender. She further stated
that on the return of Ravinder and Surender, she told them that in their
absence, the third person Sanjay had teased her. After that, Ravinder,
Surender and Sanjay left her house.
17. From this two-faced testimony of PW-3 (Sunita), the prosecution
has tried to set up a case of a motive for the murder and the last seen
evidence. Insofar as the question of motive is concerned, we find that
even if what PW-3 (Sunita) stated in the post-lunch session of her
examination-in-chief were to be true, it would not result in such an
aggravating circumstance that Ravinder and Surender would decide to
kill Sanjay. In fact, as disclosed by PW-16 (Dr L.K. Baruah), who
conducted the post mortem examination, the dead body examined by
him had 8 stab wounds and also other blunt injuries which could have
been caused by fist blows and kicks. This demonstrates that if the dead
body was that of Sanjay, he was brutally beaten up and then stabbed 8
times. We do not think that even if what PW-3 (Sunita) has stated is
taken to be true, the mere teasing by Sanjay would have resulted in
such a brutal murder at the hands of Ravinder and Surender. However,
the testimony of PW-3 (Sunita) cannot be believed because she has
clearly contradicted herself in the two parts of her examination-in-
chief. It is more than obvious that something happened during the
luncheon interval which caused PW-3 (Sunita) to change her testimony
altogether. Apart from that, in cross-examination, PW-3 (Sunita)
admitted that when the three persons had gone to her house, her mother
and two brothers were present. It would be highly unlikely that in the
presence of her mother and two brothers, a third person would have
teased her and she would not have raised any objection or alarm. After
having named the third person as Sanjay in the second part of her
examination-in-chief, in her cross-examination, PW-3 (Sunita) goes on
to say that she did not know the third person who accompanied the
accused persons. It is also to be noted that if Ravinder and Surender
had been also angered by the said third person‟s conduct, they would
have started to remonstrate Sanjay there and then even before they left
PW-3 (Sunita‟s) house. For all these reasons, the testimony of PW-3
(Sunita) cannot be relied upon at all. The implication of this is clear
and that is that the prosecution‟s case with regard to motive and last
seen evidence goes out of the window.
18. There is another aspect of the matter with regard to the testimony
of PW-3 (Sunita) which has escaped the attention of the court below.
How do we know that the dead body that was found on 13.09.1990 was
that of the third person who is said to have accompanied Surender and
Ravinder to PW-3 (Sunita‟s) house? Neither the photograph of the
dead body nor the clothes, which were allegedly on the dead body, nor
the scooter bearing No. DDO 2599 was shown to PW-3 (Sunita) for the
purposes of identifying the same. Merely because she named the third
person as one Sanjay in the post-lunch session of her examination-in-
chief, it cannot be inferred that the third person, whose name was
Sanjay, was the one whose dead body was recovered on 13.09.1990.
The present case relates to the murder in respect of the dead body
which was found on 13.09.1990 and does not, in any way, concern any
other person who may be named Sanjay and who may have visited PW-
3 (Sunita). For this reason also, the testimony of PW-3 (Sunita) is
absolutely useless insofar as the prosecution case is concerned.
19. This takes us to consider yet another important aspect of the case.
This is an aspect which has again been completely overlooked. While
it is true that a dead body was recovered on 13.09.1990, where has this
body been identified to be that of Sanjay son of PW-8 (Jai Chand). The
first person who ought to have identified the dead body as being that of
Sanjay would be his father PW-8 (Jai Chand). Unfortunately, from the
testimony of PW-8 (Jai Chand), it does not appear that the body that
was found on 13.09.1990 was that of his son Sanjay. What is strange is
that two post mortem witnesses PW-20 (Inder Singh) and PW-9
(Ranbir Singh) were said to be present when the appellants were shown
photographs of the dead body and the clothes that were on the dead
body and it is the appellants who identified the dead body as being that
of Sanjay. Why were the photographs of the dead body and the clothes
that were on the dead body not shown to PW-8 (Jai Chand) ?
Normally, it is only the next of kin who are asked to identify dead
bodies. In these circumstances, we cannot even be sure as to whether
PW-8 (Jai Chand‟s) son Sanjay is dead or alive. We must remember
that the present case is with regard to the murder of Sanjay, son of Jai
Chand, and not of anybody else. When we are unsure of whether the
dead body was that of Sanjay, where does the question arise, at all, of
convicting the present appellants for the murder of Sanjay ?
20. We have indicated that about seven paces away from the
discovery of the dead body, a knife being Exhibit P-6, was also
recovered. The said knife is said to be the murder weapon. PW-16 (Dr
L.K. Baruah) had stated in his cross-examination that the incised
wound mentioned in his report has been caused by a sharp-edged
weapon. He further stated:-
"The injuries on the person of deceased were possible by
the knife Ex. P6 if it was not bent, but at present this is in
bent position and the injuries are not possible."
(underlining added)
It is obvious that when the knife was found, it was in a bent position.
PW-16 (Dr L.K. Baruah) has clearly opined that in the present
condition, this could not have caused the injuries found on the dead
body. This is a clear circumstance which goes against the prosecution.
Unfortunately, this has been swept under the carpet by the learned
Additional Sessions Judge in the following manner:-
"As the knife is found in a bent position from near the dead
body it is not strange that the accused might have bent it
after causing injures to the deceased only to create an
evidence otherwise."
We do not agree with these observations as they are in the realm of
conjecture. The condition in which the knife was retrieved being
incompatible with the nature of injuries caused on the dead body is
certainly a circumstance which runs counter to the prosecution case and
cannot be brushed aside by imaginative conjecture.
21. We now come to the so-called extra-judicial confession
supposedly made by the appellant Ravinder to PW-10 (Puran). As per
the testimony of PW-10 (Puran), which was recorded on 30.07.1992,
about two years prior to that, appellant Ravinder had come to his house
on a scooter which had the number DDO 2599. He said that the
appellant Ravinder stayed with him for two or three days and one day
he told him that he killed one boy. The witness again said that he told
him that he and Surender killed the boy. According to PW-10 (Puran),
the appellant Ravinder also told him that the scooter belonged to the
deceased whom they had murdered. PW-10 (Puran) further stated that
upon hearing this, he asked Ravinder to leave his house, but in the same
breath, PW-10 (Puran) says that he never stated this fact to anybody
else. There are several difficulties with this testimony. The first being
that there is only reference to "one boy". He has not been named. The
second and more important difficulty is that after PW-10 (Puran) came
to know of such a serious crime having been committed, it is not
believable that if he, in fact, had come to know of such a fact, he would
not have told anybody else about it, leave alone the police. Therefore,
not much reliance can be placed on the testimony of PW-10 (Puran), if
at all.
22. With regard to the recovery of the scooter No. DDO 2599 from
the possession of the appellant Ravinder, we have already indicated that
the entire episode is suspect. The secret informer has not been
produced in court and, therefore, the secret information which forms
the basis of such seizure is not admissible. In any event, the recovery
of the scooter from the possession of the appellant Ravinder has been
used as a circumstance to convict him for the offence under Section
411 IPC. A reference ought to be made to Section 114 of the Indian
Evidence Act, 1872 which deals with presumptions. The presumption
that can be raised with regard to stolen property having been found in
the possession of a third person is qualified by the expression "soon
after". That presumption cannot be raised in the present case. The
prosecution‟s case is that Sanjay was murdered on 12.09.1990 and his
scooter bearing No. DDO 2599 was taken away / stolen by the
appellant Ravinder on that date itself. However, the scooter was found
to be in the possession of the appellant Ravinder much later, on
06.04.1991. The period of time between 13.09.1990 and 06.04.1991
cannot be construed to be falling within the expression "soon after"
employed in Section 114 of the Indian Evidence Act, 1872. Therefore,
the presumption cannot be raised against him that he dishonestly
received the stolen property. The prosecution would, therefore, have to
prove that the appellant Ravinder did, in fact, dishonestly receive the
stolen property. That proof is not forthcoming.
23. For all these reasons, the impugned judgment and order on
sentence are liable to be set aside and the appellants are entitled to be
acquitted of all charges.
24. Before we part with this case, we would also like to point out the
manner in which the learned Additional Sessions Judge has completely
gone wrong with regard to how much of a disclosure statement is
admissible and how much is not. According to the learned Additional
Sessions Judge, the following portion of the disclosure statement is
entirely admissible:-
"Main oos jagah ki nishan dehi kar sakta hun jahan par
Sanjay alias Gandhi ko maine tatha Surinder ney mil kar
maara tha aur jahan par maney bad men chhaku ko faika
thaa."
We do not agree with this. In fact, the only portion out of the above
extract which could be admissible would be:-
"Main oos jagah ki nishan dehi kar sakta hun ... jahan par
maney .... chhaku ko faika thaa. ... "
This aspect of the matter has been amply demonstrated by the Privy
Council decision in Pulukari Kottaya v. Emperor: AIR 1947 PC 67
and other decisions following the same, including the decision of this
court in the case of Mahender & Another v. State (Crl. A. 25/1993,
decided on 12.02.2009).
25. Consequently, the impugned judgment and order on sentence are
set aside. The appellants are acquitted of all charges in this case. The
appellants are on bail. Their bail bonds stand cancelled and the sureties
stand discharged. The appeals are allowed.
BADAR DURREZ AHMED, J
P.K. BHASIN, J
July 03, 2009
dutt
