Delhi High Court

State (Delhi Admn.) vs Sharad Dogra & Ors. on 2 July, 2010

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           Judgment reserved on: March 15, 2010
                           Judgment delivered on: July 02, 2010


+      CRIMINAL APPEAL NO. 216/1997


       STATE (DELHI ADMN.)                  ....APPELLANT
                    Through: Mr. Pawan Sharma, Standing Counsel

                       Versus


       SHARAD DOGRA & ORS.                       ....RESPONDENTS
                  Through: Nemo


        CORAM:
        HON'BLE MR. JUSTICE A.K. SIKRI
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

AJIT BHARIHOKE, J.

1. The State has preferred this appeal against the impugned

judgment dated 14th August, 1996 in Sessions Case No. 24/92, FIR

No. 225/91, P.S. Hauz Khas acquitting the respondents Sharad

Dogra, Gagan Mahant, Sandeep Kalsan and Pankaj Bhatia of charges

under Sections 392 IPC and 302 IPC both read with Section 34 IPC.

2. Briefly stated, case of the prosecution is that Sh. Prem Gopal

Nair (hereinafter referred to as 'deceased') along with his sisters

Prabha Nair (PW1) and Pushpa Nair (PW8) was living in DDA Flat No.

L-7, Bhim Nagari, Safdarjung Development Area, New Delhi. On

10th June, 1991, Pushpa Nair (PW8) was out of station as she had

gone for trekking with her friends. On that day, at about 03:30 p.m.,

PW1 Prabha Nair also went to her friend's house. She returned back

at 09:50 p.m. When she was climbing the stairs for going to her flat,

which was located at IIIrd Floor, she noticed the four accused

persons (who were not known to her earlier) on the landing of IInd

Floor, coming downstairs.

3. Prabha Nair (PW1) found the door of her flat locked. She

thought that her brother Prem Gopal Nair (deceased) might have

gone to purchase cigarettes and waited for him outside the flat.

When the deceased did not turn up till 12:00 in the mid-night,

Prabha Nair went downstairs and fetched a watchman from the

neighbouring colony and the lock of her flat was broken with his

help.

4. On entering, Prabha Nair found that the flat had been

ransacked and the dead body of her brother was lying in the

bedroom. She intimated Police Station Hauz Khas, which

information was recorded as DD No.19A (PW6/A) dated

10.06.1991. Copy of the DD report was entrusted to SI Suresh

Kumar (PW21) who reached at the spot of occurrence and

inspected the scene of crime. It is claimed that PW1 Prabha Nair

was not in a position to give her statement as she was in a state

of shock. Therefore, the Investigating Officer appended his

endorsement on the copy of DD report and sent the rukka to the

Police Station for the registration of formal FIR. Crime Team and

dog squad were summoned and chance fingerprints were lifted

from the spot of occurrence.

5. On 11.06.1991, Pushpa Nair (PW8) returned back from

trekking. On checking the cupboards and the articles, she found

that one camera make Hanimax, two ladies wrist watches, one

gent's wrist watch and a silver chain were missing. Statements

of Prabha Nair (PW1) and Pushpa Nair (PW8) were recorded.

Inquest proceedings were also conducted on 11.06.91 and the

dead body was sent for post mortem examination along with the

inquest papers.

6. Accused Gagan Mahant was arrested from in front of his

house in Bhim Nagri on 26.06.91. On interrogation, he made a

disclosure statement Ex.PW21/B and pursuant to the said

disclosure statement, he got recovered two wrist watches and a

knife Ex.P25. Ex.P12 is one of those two watches which is

claimed to be the stolen property of this case.

7. It is claimed by the prosecution that accused Gagan Mahant

then led the police party to the house of accused Sharad Dogra at

Malviya Nagar, who was arrested on the pointing out of Gagan

Mahant. Sharad Dogra was also interrogated and he made a

disclosure statement Ex.PW21/F. He got recovered one gents

wrist watch Ex.P10 and a watch mettle chain Ex.P13, which were

seized vide memo Ex.PW21/H. Sharad Dogra also got recovered

a knife Ex.P-1 and a gold chain pertaining to some other case.

8. Thereafter, the police party went to the house of accused

Pankaj Bhatia at Sheikh Sarai from where Pankaj Bhatia and

Sandeep Kalsan were arrested on the pointing of Gagan Mahant.

On interrogation, accused Sandeep Kalsan and Pankaj Bhatia

made disclosure statements Exhibits PW21/L and PW21/M.

Accused Pankaj Bhatia, pursuant to his disclosure statement, got

recovered from his bedroom stolen Hanimax camera Ex.P9,

besides a gold ring and a knife Ex.P27. Accused Sandeep Kalsan

got recovered a wrist watch Ex.P11 besides one other wrist watch

pertaining to some other case.

9. Sample hairs of the accused persons and their sample

fingerprints were taken with the permission of the court, which

were sent to CFSL for comparison with the chance fingerprints

lifted from the place of occurrence and the strands of hairs found

in the hand of the deceased. Test Identification Parade for

identification of the recovered stolen property was also

conducted in which Prabha Nair (PW1) identified the stolen

articles. Test Identification Parade was held for fixing the identity

of the accused persons and Prabha Nair identified all the four

accused persons as the persons whom she had seen on the

staircase of her building on the relevant night. On completion of

formalities of investigation, respondent accused persons were

challaned and sent for trial.

10. The respondents were charged for the offences punishable

under Section 302 IPC read with Section 34 IPC and Section 394

IPC read with Section 34 IPC. Besides that, respondents Sharad

Dogra, Gagan Mahant and Pankaj Bhatia were also charged for

the offence punishable under Section 397 IPC. Respondents

pleaded not guilty to the respective charges and claimed to be

tried.

11. In order to bring home the guilt of the respondents,

prosecution has examined 22 witnesses in all. None of them,

however, is an eye witness to the occurrence. The respondents

in their statements under Section 313 Cr.P.C. have denied the

prosecution version and have claimed that they are innocent and

they have been falsely implicated by the police in not only in this

case but also in one other case pertaining to P.S. Malviya Nagar

in which they have already been acquitted. In defence, they

have tendered in evidence certified copy of the judgment of

acquittal passed in their favour by the court in Malviya Nagar

case.

12. The learned Additional Sessions Judge, on consideration of

the evidence found that the evidence produced by the

prosecution was deficient to sustain the charges framed against

the respondent accused persons. He, therefore, acquitted the

respondents of all charges, giving them benefit of doubt.

13. On perusal of the record, it transpires that the case of the

prosecution is essentially based upon the last seen evidence, the

recovery of the stolen property at the instance of the respective

respondents and the presence of chance fingerprints of

respondent Gagan Mahant at the place of occurrence. On

perusal of the impugned judgment, it transpires that the learned

Additional Sessions Judge, on consideration of evidence, found

that the prosecution has failed to establish either of the aforesaid

incriminating circumstances and as a consequence, he concluded

that the evidence produced by the prosecution was not sufficient

to bring home the guilt of the respondent accused persons

beyond reasonable doubt and acquitted them, giving them

benefit of doubt.

14. Learned counsel for the State in his challenge to the

impugned judgment has firstly submitted that the learned Trial

Judge has fallen in error in finding the last seen evidence

provided by PW1 Prabha Nair unreliable, ignoring the fact that

Prabha Nair had no reason whatsoever to falsely implicate the

respondent-accused persons or anyone of them.

15. We do not find merit in this contention. It is true that there

is nothing on the record to suggest that PW1 Prabha Nair had any

reason or motive to depose falsely against the respondent

accused persons or anyone of them. This, however, cannot form

reason for accepting the last seen evidence provided by PW1

Prabha Nair without requisite scrutiny. Admittedly, PW1 had lost

her brother in the occurrence. A possibility cannot be ruled out

that if she was convinced by the Investigating Officer that the

respondents were responsible for the death of her brother, she

might have agreed to depose falsely that she saw the

respondents coming downstairs in the building on the fateful

night with a view to ensure punishment to the culprits. Thus, in

our view, the learned Additional Sessions Judge has rightly

undertaken the exercise to analyse the testimony of PW1 to

come to the conclusion whether or not it is reliable.

16. PW1 Prabha Nair, in her examination-in-chief, has stated

that she had left her house on 10.06.91 at 03:30 pm and she

returned back at 09:30 pm. When she was going to her flat,

which was at the fourth floor of the building, she had seen all the

four respondent-accused persons on the landing of the second

floor of the stairs when they were coming down. She also

claimed that on reaching at the fourth floor, she found her flat to

be locked. She waited outside the flat, hoping that her brother

would return shortly and when her brother did not turn up till

12:00 in the night, she got panicky and called a watchman who

broke open the lock at her request. When she entered the house,

she found it ransacked and she also found the dead body of her

brother (deceased) lying in the bedroom.

17. If aforesaid version of PW1 Prabha Nair is to be believed, she

kept on waiting outside her flat during night hours for almost

more than two hours without making an effort to contact any

neighbour. This conduct of Prabha Nair (PW1) appears to be

highly unnatural. It is highly improbable that a young lady, during

night hours, would keep on waiting outside a locked flat without

even making any effort to call the neighbours for help for opening

the lock. Further, PW1 Prabha Nair claims that she had gone to

Hauz Khas P-Block to call a watchman for breaking open the lock.

This conduct of PW1 Prabha Nair is also strange because she has

admitted that there was a 'chowkidar' in Bhim Nagari complex

also. It defies reason as to why Prabha Nair (PW1), instead of

seeking help from the neighbours or the watchman of Bhim Nagari

complex, went to a neighbouring colony to call the watchman for

breaking open the lock. This circumstance raises a doubt that

Prabha Nair is not telling the truth, which doubt is further

compounded by the fact that the said watchman, who purportedly

broke open the lock has not been cited or examined as a witness

to corroborate the version of Prabha Nair (PW1). Further, it is

admitted case of the prosecution that the Investigating Officer SI

Suresh Kumar (PW21) reached at the spot of occurrence in the

night intervening 10th/11th June, 1991 but statement of Prabha

Nair was not recorded by him. Investigating Officer has tried to

explain the delay in recording the statement of Prabha Nair by

stating that she (PW1) was not in a position to make a statement

as she was under a state of shock. This version of Investigating

Officer is belied by the testimony of PW1 Prabha Nair, who has

stated that on the said night, DCP Sh. Neeraj Kumar had visited

the spot and she had a talk regarding the incident with him. Even

PW12 Dr. M. Vijayraghavan, a cousin of Prabha Nair (PW1), who

had reached at the spot in the night, stated that PW1 Prabha Nair

had told her the details about the incident. She also stated that

she stayed with Prabha Nair at the flat in question till about 08:00

am and during the said period, she had been interacting and

talking with Prabha Nair. If this version is to be believed, then the

explanation given by the Investigating Officer for not recording

the statement of PW1 Prabha Nair immediately cannot be true.

Thus, a possibility cannot be ruled out that the statement of

Prabha Nair was fabricated to create last seen evidence against

the respondents. Not only this, perusal of purported statement of

Prabha Nair Ex.PW1/DD reveals that this statement is undated.

Therefore, it cannot be said for sure that this statement was

recorded by the Investigating Officer in the evening of 11.06.1991

as claimed by him and a possibility cannot be ruled out that it has

been introduced subsequently. Another strange feature of this

statement is that as per the FIR No. 225/91 (Ex.PW6/B), it was

registered at P.S. Hauz Khas under Section 460/380 IPC whereas

at the top of the purported statement of PW1 Prabha Nair

Ex.PW1/DD, particulars of the case are mentioned as FIR No.

225/91 under Section 302/394 IPC, P.S. Hauz Khas. It is

unexplained as to how this lapse has occurred and this

circumstance also raises a doubt against the fairness of

investigation and a possibility cannot be ruled out that the story of

last seen has been fabricated by the prosecution after due

deliberation to strengthen the case of the prosecution. Thus,

under the circumstances, we find no infirmity in the conclusion of

the learned Additional Sessions Judge that the prosecution has

failed to establish the last seen circumstance against the accused

persons.

18. Learned counsel for the State has submitted that the

learned Additional Sessions Judge has fallen in error in

disbelieving the prosecution evidence regarding the recovery of

stolen property from the possession of respective respondent

accused persons for the reason that prosecution has failed to

examine the independent witness Parvez Dar, who actually was

won over by the respondents. Learned counsel for the State

submitted that the recovery of stolen goods from the

respondents is amply proved from the testimony of PW22

Inspector Dharampal which finds full corroboration in the

testimony of PW21 SI Suresh Kumar, who was also a witness to

the recoveries.

19. We are not convinced with this argument. As per the case

of prosecution, the mystery of this case started unfolding with the

arrest and interrogation of the respondent accused Gagan

Mahant on 26.06.1991. Question arises as to what was the

reason which prompted the Investigating Officer to suspect and

arrest the respondent accused Gagan Mahant on 26.06.91.

Inspector Dharampal has tried to explain the reason by deposing

that on 20.06.91 father of Gagan Mahant told him that on the

night of occurrence i.e. the night intervening 10.06.91 and

11.06.91, his son Gagan Mahant returned home at 1:30 am and

he was perplexed at that time. The Investigating Officer also

stated that this fact was reconfirmed by father of respondent

Gagan Mahant on 25.06.91 also. It remains unexplained as to

why the Investigating Officer had questioned the father of Gagan

Mahant on 25.06.91. If this version of Inspector Dharam Pal is to

be believed, then as early as on 10.06.1991, Inspector Dharam

Pal had a reason to suspect the involvement of Gagan Mahant in

the murder of the deceased Prem Gopal Nair. Despite that, he

neither arrested Gagan Mahant nor interrogated him till

26.06.1991. This circumstance puts a question mark on the

fairness of investigation and casts a doubt on the story regarding

arrest of Gagan Mahant. There is no explanation on the record as

to why the Investigating Officer remained inert and did not take

any steps to arrest respondent accused Gagan Mahant from

20.06.1991 till 26.06.1991. Further, on perusal of the respective

disclosure statements of the respondents Gagan Mahant, Sharad

Dogra, Sandeep Kalsan and Pankaj Bhatia Exhibits PW21/B,

PW21/F, PW21/M and PW21/N as well as the relevant recovery

memos relating to the purported recovery of the stolen property

and the recovery of knife Exhibits PW21/C, PW21/D, PW21/H,

PW21/K, PW21/P, PW21/Q, PW21/R and PW21/S, it transpires that

all these memos are purported to have been witnessed by SI

Suresh Kumar and an independent witness Parvez Dar. The

prosecution has failed to examine the independent witness

Parvez Dar to support the evidence of the recovery of stolen

property as well as the knives from the possession of or at the

instance of the respective accused persons. According to the

Investigating Officer Inspector Dharam Pal, aforesaid Parvez Dar

was also a suspect in this case and even his chance prints were

sent to CFSL for comparison. Despite of that, the Investigating

Officer, in preference to the independent witnesses from the

neighbourhood of places of respective recoveries, preferred to

join Parvez Dar as a witness to recovery of stolen articles. This

circumstance casts a strong doubt against the bona fide of the

Investigating Officer. Otherwise also, said Parvez Dar has not

been examined as a witness in this case. The explanation given

for his non-examination is that he has been won over by the

respondents. This explanation does not appear to be correct

because of the reason that PW20 Rohit Bhatia, who admittedly is

the friend of the deceased, has stated in his cross-examination

that after 11.06.1991, he had never visited sisters of the

deceased at their house but he had been meeting them off and

on in the house of Parvez Dar and other common friends, which

version gives an impression that Parvez Dar still has good

relations with the sister of the deceased and, therefore, the

possibility of his being won over by the respondents, as claimed

by the Investigating Officer is oblique. Further, as per the case of

prosecution, the motive for the crime was robbery. According to

PW1 Prabha Nair and PW8 Pushpa Nair, only three wrist watches

Exhibits P10 to P12, one Hanimax Camera Ex.P9 and a silver

chain Ex.P13 were found missing from the house. PW1 Prabha

Nair admitted in her cross-examination that the wrist watches

Ex.P11 and P12 were not in working order and the glass of the

wrist watch Ex.P10 was cracked and it was fixed with a

transparent tape. She also stated that when she identified these

wrist watches before the Magistrate, the wrist watches were in

same condition. She further stated that even the lens of camera

Ex.P9 was broken and it was in same condition when she

identified it before the Magistrate on 24.06.1991. Regarding the

silver chain Ex.P13, the witness could not deny that she might

have purchased that silver chain for about Rs. 100/-. From the

aforesaid evidence, it is apparent that value of the purported

robbed articles was negligible. It has come in testimony of PW1

Prabha Nair that there were more valuable articles such as

Television, VCR, a food processor worth Rs.2,800/-, video

cassettes costing about Rs.200/- each and music system in their

house. It is unfathomable that if the four respondents had visited

the house of the deceased to commit robbery, they would

commit theft of minor articles in preference to costly items

referred to above. Therefore, even the story of robbery appears

to be improbable and a possibility cannot be ruled out that the

aforesaid three wrist watches, a silver chain and camera have

been planted by the police to create evidence against the

respondents. In view of the circumstances, we find that the

learned Trial Judge has rightly concluded that the recovery of

stolen property at the instance of the respondent accused

persons has not been firmly established.

20. Learned counsel for the State has further submitted that

from the testimony of PW17 Head Constable Khem Bahadur and

PW18 Head Constable Ram Niwas, chance fingerprints were lifted

by them from the spot of occurrence. PW13 SI Amarpal Verma

compared those chance fingerprints with the specimen

fingerprints of the respondents and as per his report Ex.PW13/A,

two of the chance fingerprints matched with the specimen

fingerprints of the respondent Gagan Mahant. From this, learned

counsel for the State has submitted that the presence of

respondent Gagan Mahant at the time of occurrence is firmly

established and this circumstance by itself, in absence of any

explanation by the respondent Gagan Mahant, is sufficient to

establish his complicity in the crime.

21. This argument was also advanced before the learned Trial

Judge and did not find favour with him. He has dealt with the

argument in Para 19 of impugned judgment in following manner:

".....PW22 Inspt. Dharampal in his statement has stated that he moved application on 5.8.91 for taking finger prints of the accused persons and the court allowed the said application and permitted to take the specimen finger prints of the accused persons. There is nothing on the record to suggest as to who took the finger prints of accused Gagan Mahant and when and where the same were taken. In the absence thereof it cannot be said that the finger prints of accused Gagan Mahant were ever taken or sent for comparisons to the finger print bureau. Moreover, PW13 SI Amarpal Singh Verma has admitted that in the report Ex.PW13/A it has nowhere been stated that the same has been prepared by him or with his assistance. He further admitted that the said report is not even signed by him and that the same has been signed by the Director of the bureau. The said director, who has signed the report has not been produced as a witness in this case. In view of the statement of PW13 himself, I am of the view that it cannot be said that PW13 has compared the chance prints and the finger prints or has prepared the report Ex. PW13/A. Moreover, according to PW13 the chance print Ex. PW13/C-1 was only 10% of the whole finger print. For that reason also I am of the view that the said chance print could not have been properly or effectively compared with the specimen finger prints of the accused and the finger prints expert report could not be perfect, definite or conclusive. The alleged finger print was otherwise sent to the finger print bureau on 4.9.91 whereas according to the investigating officer the finger prints were allowed to be taken on 5.8.91 and the said delay in sending the finger prints for comparison has not been explained in any manner. Moreover, according to PW13 the said finger prints were received by him in unsealed condition. The said fact also makes the evidence of the comparison of chance prints and the alleged finger prints to be doubtful. From the evidence it is also not clear as to who has lifted the chance prints from the spot as PW17 HC Khem

Bahadur has stated that he has lifted the chance prints from the spot and PW18 HC Ram Niwas has stated that the he has lifted the chance prints from the spot. Moreover, PW18 HC Ram Niwas, who is alleged to have lifted the chance prints from the spot has stated that he cannot say as to from which place the chance/finger prints Ex. PW 13/C-1 was lifted. The said fact also makes the story of the prosecution as put forward by it of lifting the said chance print from the spot to be doubtful. According to PW17 there was rubbing on the right side of the chance print Ex PW13/C-1 . In view of this statement of PW17, I am of the view that the alleged chance print Ex. PW 13/C-1 could not be properly compared with the specimen finger prints. For the reasons recorded above, I am of the view that the prosecution has also failed to prove this circumstance that chance prints lifted from the spot were found to be identical with the finger print impression of accused Gagan Mahant".

22. We find no infirmity or illegality in the above approach

adopted by the learned Additional Sessions Judge while

appreciating the evidence relating to the comparison of

fingerprints. Learned counsel for the State has also not come out

with any cogent argument to counter the reasoning given by the

learned Trial Judge. Therefore, we find no reason to interfere

with the conclusion that the prosecution has failed to prove that

the chance fingerprints lifted from the spot of occurrence belong

to the respondent Gagan Mahant.

23. In view of the above, we find that the learned trial Judge has

rightly concluded that the evidence adduced by the prosecution

falls short of forming a complete chain of incriminating