Delhi High Court
Imran @ Pappu & Anr. vs State on 6 November, 2009
Author: Pradeep Nandrajog
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 06.11.2009
+ CRL. A. No.698/2001
IMRAN @ PAPPU & ANR. ..... Appellants
Through: Mr.Sumit Verma, Advocate.
versus
STATE ..... Respondent
Through: Mr.M.N.Dudeja, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J. (ORAL)
1. Charge sheet was filed in the Court against six
persons; namely, Mahender @ Lambu, Imran @ Pappu, Pahlad,
Jitender, Vijender @ Lala and Man Singh. They were put up for
trial for the offence punishable under Sections 302/324/34 of
the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'),
pertaining to a stabbing incident which took place on a bus No.
DL-1P-3370 enroute from Peeragarhi to Daya Basti on
25.03.1999 at around 10.00 PM. In the incident in question,
the deceased Radhey Shyam was murdered and three others;
namely, Kuldeep, Naresh and Laxman were injured.
2. Two of the six accused, namely, Vijender @ Lala and
Man Singh were discharged vide order dated 06.11.1999.
Thus, four remained at the trial to defend themselves.
3. Vide the impugned judgment and order dated
15.09.2001, Pahlad and Jitender have been acquitted in the
absence of any incriminating evidence against them.
Appellants Mahender and Imran have been convicted for the
offence of murder relatable to the death of Radhey Shyam.
They have been acquitted for the offence punishable under
Section 324 IPC. Both have been convicted for the offence
punishable under Section 25 of the Arms Act, 1959; substratum
of which offence was the recovery of a button operated knife
when appellant Imran was apprehended and a knife which was
got recovered by appellant Mahender pursuant to his
disclosure statement.
4. We may note that all eye-witnesses including the
three persons who received injuries on 25.03.1999 did not
support the case of the prosecution as regards the identity of
the persons who had inflicted injuries to Kuldeep, Naresh and
Laxman as also who stabbed the deceased.
5. From a perusal of the impugned decision, it is
apparent that the learned trial Judge has convicted appellants
Mahender and Imran for the reason from Imran a button
actuated knife was recovered at the time of his arrest as
recorded in the memo Ex.PW-13/M; which knife, as per the FSL
Report Ex.PY, was found to be contaminated with human blood,
group whereof could not be ascertained. The other
incriminating circumstance used against Imran of his refusing
to participate in the test identification proceedings. Qua
appellant Mahender, the recovery of the knife pursuant to his
disclosure statement Ex.PW-13/A; as reflected in the memo
Ex.PW-13/K, which knife was also found to be contaminated
with human blood, group whereof could not be ascertained as
per FSL Report Ex.PY and Mahender's refusal to participate in
the TIP has been used as incriminating evidence.
6. We may note that the two knives, as per the doctor
who conducted the post-mortem on the deceased, were opined
to be the possible weapons of offence.
7. Surprisingly enough, with respect to the recovery of
the two knives, the entire confessional statement by the two
appellants pertaining to their participation in the offence has
been used by the learned trial Judge in returning a finding of
guilt.
8. Suffice would it be to state that confessional
statement made to the police is wholly inadmissible in
evidence, save and except what is protected and made
admissible under Section 27 of the Indian Evidence Act, 1872.
9. Pursuant to an object recovered on the disclosure
statement of an accused, the relatable discovery of a fact and
no more, becomes admissible under Section 27 of the Indian
Evidence Act, 1872. Other linkages of the case have to be
proved by evidence allundi. Surely not by placing any reliance
on the confessional/disclosure statement.
10. With respect to the apprehension of the appellants
and the recovery of a button actuated knife from the
possession of Imran and the recovery of a knife pursuant to the
disclosure statement of Mahender, it may be noted that the
two alongwith other two co-accused, who have been acquitted,
were apprehended on 23.04.199. As noted above, the date of
the incident is 25.03.1999.
11. It is surprising that a knife in the pocket of appellant
Imran which was recovered on 23.04.1999 i.e. after 29 days of
the offence was still stained with human blood.
12. Pertaining to the knife which was recovered
pursuant to the disclosure statement Ex.PW-13/A by Mahender,
we note that in the disclosure statement he has stated that the
knife used by him in the commission of crime was handed over
to him by one Rakesh to whom the knife belonged.
Surprisingly enough, the recovery memo Ex.PW-13/K records
that Mahender voluntarily and happily led the police to H.No.A-
4/237, Ground Floor, Sultanpuri and got recovered the knife
from a lot.
13. We find that neither was Rakesh made an accused
nor was any attempt made as to how the knife which was
ostensibly handed over to Rakesh reached the place wherefrom
Mahender got it recovered.
14. Recoveries of common objects have been held to be
a very weak piece of evidence. It was so held in the decisions
reported as JT 2008 (1) SC 191 Mani Vs. State of Tamil Nadu,
1999 Cri.L.J. 265 Deva Singh Vs. State of Rajasthan, AIR 1994
SC 110 Surjit Singh Vs. State of Punjab AIR 1977 SC 1753,
Narsinbhai Haribhai Prajapati Vs. Chhatrasinh & Ors., and AIR
1963 SC 1113 Prabhoo Vs. State of U.P.,
15. As noted above, only two pieces of admissible
incriminating evidence against the appellants exist. The first is
the recovery of the knife from Imran when he was
apprehended after 29 days of the incident, and the recovery of
the knife pursuant to the disclosure statement of Mahender.
The two knives, being contaminated with human blood, group
whereof could not be discovered. The second of the two not
participating at the TIP.
17. The taint in the presence of the blood in the two
knives as also the recovery of the knife at the instance of
Mahender has been noted by us hereinabove.
18. The second piece of incriminating evidence is the
appellant's refusal to participate in the test identification
proceedings.
19. Treating the two to be incriminating evidence, the
incriminating nature of the two being weak; noting that no eye-
witness has identified the appellants as the boys who had
assaulted the passengers in the bus, we are left with no option
but to hold that the chain of incriminating circumstances
established against the appellants is too weak to sustain their
conviction.
20. The appeal filed by the appellants pertaining to their
conviction for the offence of murder is accordingly allowed.
21. Pertaining to the offence under the Arms Act by
appellant Mahender at whose instance a knife was got
recovered, noting the taint in the manner in which the recovery
has been effected, the appeal filed by him pertaining to his
conviction for the offence punishable under Section 25 of the
Arms Act, 1959 is also allowed.
22. The appeal filed by appellant Imran pertaining to his
conviction for the offence punishable under Section 25 of the
Arms Act, 1959 is rejected.
26. Noting that for the offence punishable under Section
25 of the Arms Act, 1959, Imran has been sentenced to
undergo imprisonment for one year, which period of
imprisonment he has already undergone; noting further that
both appellants are on bail, we dispose of the appeals
discharging the bail bonds and surety bonds furnished by the
appellants.
PRADEEP NANDRAJOG
(JUDGE)
SURESH KAIT
(JUDGE)
NOVEMBER 06, 2009
sb
