Delhi High Court
Avinash Kumar @ Sanjay vs State on 12 July, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Hearing: 2nd June, 2011
Date of Decision: 12th July, 2011
+ CRL.A. No.123/2011
AVINASH KUMAR @ SANJAY ... APPELLANT
Through: Mr. R.K. Singh, Advocate.
Versus
STATE ... RESPONDENT
Through: Mr. Lovkesh Sawhney, APP for the State.
Mr. Sumeet Verma, Advocate for the
Complainant.
AND
+ CRL.A. No.140/2011
PRAKASH KUMAR @ MUNNA ... APPELLANT
Through: Mr. Ajay Verma, Advocate.
Versus
STATE ... RESPONDENT
Through: Mr. Lovkesh Sawhney, APP for the State.
Mr. Sumeet Verma, Advocate for the
Complainant.
AND
+ CRL.A. No.168/2011
PARVESH SHARMA @ SONU ... APPELLANT
Through: Ms. Rekha Aggarwal, Advocate.
Versus
STATE ... RESPONDENT
Through: Mr. Lovkesh Sawhney, APP for the State.
Mr. Sumeet Verma, Advocate for the
Complainant.
AND
+ CRL.A. No.320/2011
NIRMAL KUMAR ... APPELLANT
Through: Mr. Ajay Verma, Advocate.
Versus
Crl. A. No.123/2011 etc. Page 1 of 27
STATE ... RESPONDENT
Through: Mr. Lovkesh Sawhney, APP for the State.
Mr. Sumeet Verma, Advocate for the
Complainant.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
JUDGMENT
G.P. MITTAL, J.
1. The Appellants, Nirmal Kumar, Avinash Kumar @ Sanjay, Prakash Kumar @
Munna and Parvesh Sharma @ Sonu (hereafter referred to by their names) impugn
the judgment dated 24.09.2010 and the order on sentence dated 27.09.2010 in
Sessions Case No.64/08, whereby they were held guilty of the offence punishable
under Sections 302/120-B/ 392/120-B/394/120-B/397/120-B of the Indian Penal
Code (IPC) read with Section 27 of the Arms Act. All the Appellants were
awarded sentences as under:-
"...... Rigorous imprisonment of life imprisonment along with fine
of ` 1,000/- (Rupees One Thousand) each, in default of payment of
fine Simple Imprisonment for 6 (Six) months for offence punishable
under Section 120B IPC. .... Further, Rigorous imprisonment of
life imprisonment along with fine of ` 1,000/- (Rupees One
Thousand) each, in default of payment of fine Simple Imprisonment
for 6 (Six) months for offence punishable under Section 302 IPC
read with Section 120B IPC.
Convict Nirmal Kumar, Avinash Kumar and Prakash @ Munna
further sentenced to undergo Rigorous Imprisonment of 10 (Ten)
years and fine of ` 5,000/- (Rupees Five Thousand) each, in default
of payment of fine, Simple Imprisonment for 01 (One) year
respectively for the offence punishable under Section 392 IPC read
with Section 120B IPC.
All the convicts Nirmal Kumar, Avinash Kumar, Prakash @ Munna
and Parvesh Sharma @ Sonu further sentenced to undergo
Rigorous Imprisonment of 10 (Ten) years and fine of ` 5,000/-
(Rupees Five Thousand) each, in default of payment of fine, Simple
Imprisonment of 01 (One) year respectively for the offence
punishable under Section 394 IPC read with Section 120B IPC.
Convict Parvesh Sharma @ Sonu further sentenced to undergo
Rigorous Imprisonment of 10 (Ten) years and fine of ` 5,000/-
(Rupees Five Thousand), in default of payment of fine, Simple
Imprisonment of 01 (One) year for the offence punishable under
Section 397 IPC read with Section 120B IPC.
Convict Parvesh Sharma @ Sonu further sentenced to undergo
Rigorous Imprisonment of 3 (Three) years and fine of ` 2,000/-
(Rupees Three Thousand), in default of payment of fine, Simple
Imprisonment of 6 (Six) months for the offence punishable under
Section 27 Arms Act".
2. The Trial Court, relying on Swami Shradhanand v. State of Karnataka, 2008 (13)
SCC 767, further ordered that the imprisonment for life in the case would be
actual sentence of 30 years and grant of remission could not be considered during
that period.
3. According to the prosecution, Ishwar Bansal (the deceased) owned and used to
run a utensil manufacturing unit at premises No.A-73, Group Factory, Wazirpur
Industrial Area, Delhi. The Appellant Nirmal Kumar was working as a Munim in
the employment of the deceased (Ishwar Bansal), who also had a godown at 37,
Suryadeep Building, Wazirpur Community Centre, Delhi.
4. On 09.12.2004 Ishwar Bansal directed Ravi (PW-12) and Nirmal Kumar (the
Appellant) to go to one Subhash in Okhla for delivery of certain utensils the next
day. On 10.12.2004 at about 1:30 P.M. Ravi and Nirmal took a consignment of
utensils to the customer in Okhla. Subhash asked them (Ravi and Nirmal) to get
the consignment weighed. Nirmal, along with Subhash‟s Munim went out for
getting the consignment weighed. The consignment was brought back and
unloaded, after the weighment. It is alleged that thereafter the consignment was
again weighed by Subhash on his own weighing machine. There was some
difference in the weight recorded in the documents carried by Ravi and Nirmal. It
is alleged that after every half an hour Ishwar Bansal made a call on the mobile
phone given by him to Ravi. Subhash also had a word with Ishwar Bansal about
the difference in weight and this took a lot of time.
5. At about 5:00 P.M., Nirmal went outside on the pretext of making a call and
returned after 10-15 minutes. The account was settled and a payment of `
3,20,000/- was made by Subhash as the price of the utensils. After making the
payment, Subhash wanted to talk to Ishwar Bansal on phone but was unsuccessful
as his (Ishwar Bansal‟s) telephone was busy.
6. Ravi and Nirmal left Subhash‟s office. They started looking out for a TSR to
reach the factory in Wazirpur. In the meanwhile, Nirmal asked for his (Ravi‟s)
mobile phone as he wanted to speak to Ishwar Bansal. Ravi handed over his
mobile phone to Nirmal, who placed a telephone call to Ishwar Bansal. Nirmal
continued to utter "Hello-Hello" on the mobile phone and then gave back the
handset back to Ravi saying that the voice on the other side was not audible.
When Ravi tried to speak to Ishwar Bansal, he heard the latter say, "Maar Diya
Maar Diya Chaku Maar Diya." Ravi immediately informed Ishwar Bansal‟s son
Anuj Bansal that Ishwar Bansal was in some trouble and requested him to reach
the factory immediately. Ravi and Nirmal also hired a TSR to reach the factory.
7. At about 6:35 P.M. DD No.21 was recorded at Police Post (PP) Wazirpur
Industrial Area, Police Station (PS) Ashok Vihar that a person had been stabbed
with a knife at A-73, Wazirpur Industrial Area near Pulsar factory in front of
Aggarwal Sweets. PW-9 ASI Rohtash Singh along with Constable Manoj Kumar
reached the spot. They came to know that the injured had been removed to Sunder
Lal Jain Hospital (the hospital) by his family members. No eye witness was found
at the spot. Thus, ASI Rohtash Singh proceeded to the hospital. He (ASI Rohtash
Singh) collected MLC of the injured Ishwar Bansal; the doctor opined the injured
was unfit to make a statement. The injured was kept under observation by the
doctor. Since no eye witness was available, ASI Rohtash Singh made an
endorsement on the DD entry and sent it to the Police Station for registration of a
case under Section 307 IPC. Further investigation of the case was entrusted to SI
Vimal Kumar (PW-24). The crime team was summoned. SI Rajesh Kumar of the
crime team inspected the spot while PW-7 HC Sajjan Kumar took photographs.
SI Vimal Kumar came to know that the deceased Ishwar Bansal used to run the
utensils factory and had an office in the basement in the shape of a cabin. On
inspection of the office, SI Vimal Kumar noticed several articles strewn around,
with bloodstains on some of them. SI Vimal Kumar took into possession blood,
blood stained earth, earth control and sealed them at the spot.
8. On the same day at about 9:45 P.M. Ishwar Bansal succumbed to the injuries
suffered by him and the case was converted from Section 307 IPC to one under
Section 302 IPC. Further investigation was taken over by Inspector P.L. Kheda,
SHO, PS Ashok Vihar.
9. On 11.12.2004, the postmortem examination on Ishwar Bansal‟s dead body was
conducted by PW-1 Dr. B.N. Acharya at Babu Jagjivan Ram Memorial Hospital.
PW-1 noticed the following external injuries:-
"1. Incised stab wound on right 1imber region lateral to
umbilicus 4.5 cm lateral to mid limb and 22 cm below right nibble
size 2.5 cm x 0.7 cm x abdominal cavity deep. Small intestine is
protruding out on cut section total length is 14 cm.
2. Linear abrasion on Lt. Arm - 3 in number of size 8.5 cm, 5
cm and 3 cm on middle and lateral aspect."
10. Some abrasions were also noticed, which indicated marks of struggle by the
deceased. PW-1 Dr. B.N. Acharya opined, "death is due to hemorrhagic shock
consequent to injury to abdominal structure and vessels as described. Injury No.1
is sufficient to cause death in ordinary course of nature."
11. The relations of the deceased were unhappy with the progress of the investigation.
Certain representations were made to senior police officers including the
Commissioner of Police.
12. On 19.01.2005 further investigation in the case was entrusted to Inspector Pankaj
Sood of Crime Branch. He went to the spot and summoned Ishwar Bansal‟s son
Anuj Bansal (PW-10) and elder brother Dr. Suresh Bansal (PW-19). On inquiry,
Inspector Pankaj Sood learnt that at the time of the incident, the deceased was
wearing a gold chain and one gold ring, which were not traceable.
13. PW-10 Anuj Bansal informed Inspector Pankaj Sood that in November, 2004 one
of his father‟s mobile phone was stolen from the factory. PW-1 further disclosed
(to Inspector Pankaj Sood) that on the morning of the incident a wrist watch was
handed over by Dr. Suresh Bansal (PW-19) to his father for repair. According to
Anuj Bansal, on 09.12.2004 Dr. Bimla Bansal (PW-8) wife of Dr. Suresh Bansal,
had also handed over a cheque for an amount of ` 50,000/- to deceased Ishwar
Bansal. All these articles were found missing.
14. According to the prosecution, Aunj Bansal informed the IO that Ravi and Nirmal
used to collect payment from the parties and his father used to sit in the office till
5:30 P.M. to tally the accounts. Anuj Bansal stated to the IO that on the day of the
incident Ravi informed him (on his phone), that there was some trouble with
Ishwar Bansal (the deceased) and that he should immediately reach the factory.
Anuj Bansal called up his aunt Bimla Bansal and, thereafter, both of them reached
the factory, where they found Ishwar Bansal in an injured condition and removed
him to the hospital.
15. After recording statement of Anuj Bansal, Inspector Pankaj Sood made inquiries
from Ravi who disclosed about the facts as to what had happened. Ravi also
informed Inspector Pankaj Sood that on 18.01.2005 Nirmal met him on the road
near PP Wazirpur Industrial area at about 5:00 P.M. He (Nirmal) took him to his
house and disclosed to him that he (Nirmal) along with his associates Avinash,
Parvesh and Prakash had conspired to rob Ishwar Bansal. Nirmal further
informed Ravi that he tried to contact Prakash (the Appellant) from PCO booth
Okhla, but, he could not succeed and in the meanwhile other accused persons,
namely, Prakash, Avinash and Parvesh committed the crime.
16. It is alleged that on 31.01.2005 Nirmal was arrested from his house. On
interrogation, he made a disclosure statement Ex.PW-28/A. At his instance co-
accused Prakash @ Munna and Avinash were arrested from the Central Market,
Ashok Vihar while standing near the egg rehri. They also made disclosure
statements Ex.PW-28/E and Ex.PW-28/D respectively. The Appellant Prakash‟s
disclosure led to recovery of one mobile phone having SIM Card No.9818127376
and IMEI No.351479600619374 from a rented room in village Wazirpur. Dr.
Suresh Bansal identified the mobile phone (handset) as belonging to the deceased
that had been stolen from the factory in November, 2004. Similarly, Avinash (the
Appellant) got recovered one gold ring belonging to the deceased. Later, on
31.01.2005, Nirmal got recovered a golden chain from a glass under the cot in his
room. It was identified by Dr. Suresh Bansal as belonging to the deceased.
17. It is alleged that on 03.02.2005 Parvesh @ Sonu (the Appellant) was found in his
house near Ram Lila Ground. He was interrogated in presence of Avinash (the
Appellant) in the Crime Branch‟s office. He was wearing a wrist watch belonging
to the deceased (which was pointed out by the Appellant Avinash). The Appellant
Parvesh was arrested. He made a disclosure statement Ex.PW-28/P and helped in
getting two knives recovered from Sharma Studio that belonged to Manoj Sharma
(PW-13), one of which was a dagger shaped knife and the other, a button actuated
knife wrapped in a polythene bag. It is the prosecution case that Ravi‟s statement
under Section 164 Cr.P.C. was recorded. A TIP of the recovered goods was
conducted. The opinion of the autopsy surgeon in respect of the knives, recovered
at the instance of Parvesh @ Sonu, was obtained. The IO collected call details in
respect of mobile phone No. 9891203018, which was stolen in November, 2004.
18. The IO collected the call details of mobile phone (SIM) number 9891203018
belonging to the deceased Ishwar Bansal and mobile phone (SIM) number
9818127376 belonging to the Appellant Prakash @ Munna. IMEI numbers of
both the handsets and calls made from them were analysed. The IO noticed the
pattern of phone calls made from the factory/godown to the mobile phone (SIM)
number 9818127376 belonging to Prakash. The handset Nokia 3315 belonging to
the deceased, IMEI No.351479600619374/0 was used by Appellant Prakash. The
SIM (number) 9891203018 was also discovered to be used by the Appellant
Prakash on his handset IMEI number 520424806094410. The prosecution on the
basis of the material collected during investigation concluded that all Appellants
entered into a criminal conspiracy and in pursuance of the said criminal
conspiracy had committed robbery in the factory of deceased Ishwar Bansal using
deadly weapons. The Appellants, pursuant to the criminal conspiracy committed
Ishwar Bansal‟s murder. Thus, a report under Section 173 Cr.P.C. was filed
against the Appellants. They entered the plea of not guilty, and claimed trial.
19. In order to establish its case, the prosecution examined 29 witnesses. PW-6
Constable Manoj, PW-8 Dr. Mrs. Bimla Bansal, PW-9 ASI Rohtas Singh, PW-10
Anuj Bansal, PW-12 Ravi, PW-13 Manoj Sharma, PW-14 R.K. Singh, Nodal
Officer, Bharti Airtel Ltd., PW-15 Subhash Kumar, Purchase Officer in
Dimension Overseas Pvt. Ltd. (Dimension Overseas), PW-16 Anil Kumar, who
runs the PCO Booth at Okhla, Phase-I, PW-17 SI Rajesh Singh, Incharge Crime
Team, PW-19 Dr. Suresh Bansal, deceased‟s brother and a witness to various
recoveries at the instance of the Appellants, PW-24 SI Vimal Kumar, initial IO,
PW-25 Ms. Seema Nair, Nodal Officer, Idea Cellular Ltd., PW-26 ACP Prakash
Khera, second IO of the case, PW-28 ASI Dharamvir Singh, who reached the spot
along with the first IO on the day of the incident and PW-29 Inspector Pankaj
Sood, main IO, are material witnesses.
20. PW-6 Constable Manoj testified that on 10.12.2004 he was posted at Police Post
(PP) Wazirpur Industrial Area, Police Station (PS) Ashok Vihar. That day on
receipt of phone call that someone was stabbed at A-73, Group Factory, Wazirpur
Industrial Area, DD No.21 was recorded, in the Police Station. He accompanied
ASI Rohtash Singh to the spot. They were informed that the injured had been
removed to the hospital by his relatives. He accompanied ASI Rohtash Singh to
the hospital. The ASI collected the MLC of Ishwar Bansal, who was declared
unfit to make a statement. ASI Rohtash Singh made endorsement Ex.PW-9/A on
the DD entry. He carried the rukka to the Police Station on the basis of which FIR
No.914/2004 was recorded. He along with the ASI returned to the spot. The
crime team was present there. The spot was photographed by the crime team.
The witness deposed about seizure of blood and certain other articles from the
spot. PW-9 ASI Rohtash Singh deposed on the lines of PW-6 Constable Manoj.
21. PW-8 Dr. Mrs. Bimla Bansal is the wife of the deceased‟s brother. She deposed
that on 10.12.2004 her nephew Anuj Bansal (PW-10) came running to her and
informed her about having received a telephone call from their driver Ravi that
some untoward incident had taken place in the factory. She accompanied him on
his motorcycle to the deceased‟s factory. The factory door was bolted from
outside. She opened the door and went down to the basement. She found blood
lying in front of the cabin, which too was bolted from outside. On opening the
cabin door they noticed Ishwar Bansal lying there with extensive injuries. They
noticed injuries on the right side of deceased‟s abdomen. She deposed that the
deceased was removed to the hospital. PW-10 Anuj Bansal is deceased‟s son. He
deposed on the same lines as PW-8. He testified that on 10.12.2004 he received a
call from Ravi‟s mobile phone number 9213190362 on his mobile number
9868241730. Ravi informed him that something had happened to his father in the
factory and he asked him to reach there immediately. He disclosed this
information to his aunt Dr. Mrs. Bimla Bansal. He, along with his aunt reached
the factory and took Ishwar Bansal to the hospital.
22. PW-13 Manoj Sharma, according to the prosecution, is a witness to the recovery
of two knives alleged to have been kept in a polythene bag by Appellant Parvesh
Sharma @ Sonu. He did not support the prosecution version. In cross-examination
by the learned APP he admitted that he was running a Photo Studio in front of N-
9, C-11, Ram Lila Ground, Lal Bagh, Delhi. He denied that on 03.02.2005
Appellant Parvesh Sharma @ Sonu was brought to his Studio by the police. He
denied that Appellant Parvesh on 24-25/12.2004 gave him an envelope to be
handed over to his friend Munna. He denied that he placed that envelope on the
shelf (tand) of his shop without checking it and produced the same before the
police when Appellant Parvesh brought the police to his Photo Studio. The
witness was confronted with his statement Ex.PW-13/A purported to have been
recorded by the IO. The witness denied having made the said statement and was
confronted with the specific portions „A to A‟ to „F to F‟. The witness admitted
his signatures on the sketch of the dagger Ex. PW-13/A and sketch of knife Ex.
PW-1/DX. The witness explained that the police had obtained his signatures on
some blank papers.
23. PW-14 R.K. Singh is Nodal Officer, Bharti Airtel Ltd. He produced the call
details in respect of mobile phone number 9818127376 for the period 01.11.2004
to 31.12.2004 alleged to have been recovered from Appellant Parvesh. He
testified that IMEI number of the handset used by the subscriber on 01.11.2004
was 520424806094410. He stated that the last digit denotes the operator use only.
PW-25 Ms. Seema Nair, Nodal Officer, Idea Cellular Limited provided the call
details in respect of mobile (SIM) number 9891203018 (which belonged to
deceased Ishwar Bansal) as Ex.PW-25/A. She deposed that in Ex.PW-25/A she
referred „I‟ for incoming calls and „O‟ for outgoing calls.
24. PW-12 Ravi is the star witness of the prosecution, to prove the extra judicial
confession alleged to have been made by Appellant Nirmal. PW-12 also deposed
about the details as to how he accompanied Appellant Nirmal to Dimensions
Overseas, situated at B-133, Okhla Industrial Area, Phase-I, New Delhi; how the
utensils were weighed before its delivery was accepted by PW-15 Subash Kumar;
Nirmal‟s leaving the premises of Dimension Overseas to make some call at about
5:00 P.M. and then hearing the words ""Maar Diya Maar Diya Chaku Maar
Diya" when Appellant Nirmal handed over his (PW-12‟s) handset to him after
connecting it to the deceased. He deposed about working as a driver with Ishwar
Bansal, who used to run a utensils factory in Wazirpur Industrial Area. On
09.12.2004 Ishwar Bansal directed him to take the utensils consignment to one
Subhash at Okhla on the next morning. He deposed that he along with Appellant
Nirmal took the consignment to the destination at Okhla on 10.12.2004 and
reached there at 1:30 P.M. Consignee Subash asked them to get the weight of
consignment. The Appellant Nirmal and he got the consignment weighed and
unloaded the same at Subhash‟s factory. He deposed that Subhash again weighed
the utensils consignment on his own weighing machine. There was some
difference in the weight which was recorded on the documents carried by them.
The witness deposed that after every half an hour their employer Ishwar Bansal
used to make a telephone call to them on the mobile phone in his possession
(which was given to him by Ishwar Bansal). The consignee Subhash also talked
to Ishwar Bansal about the difference in the weights. At about 5:00 P.M.
Appellant Nirmal went outside saying that he would return after making a
telephone call. Appellant Nirmal returned after 10-15 minutes. He and Nirmal
went upstairs in the office of the consignee (PW-15 Subhash). After sometime
Subhash made the accounts and paid them ` 3,20,000/- towards the utensils
supplied. After paying the money Subhash tried to contact Ishwar Bansal but the
telephone was busy, Subhash then asked them to go.
25. After leaving Subhash‟s factory they (PW-12 Ravi and the Appellant Nirmal)
searched for a TSR to reach the factory. Since it was not available, they started
moving on foot. Appellant Nirmal wanted to speak to Ishwar Bansal on
telephone. He (PW-12) handed over the mobile phone to Nirmal. Nirmal
connected the phone to Ishwar Bansal and continued uttering the words "Hello-
Hello" and then handed over the handset to him in the pretext that nothing was
audible from the other end. He deposed that he uttered the words "Hello-Hello" at
which he (Ishwar Bansal) spoke "Maar Diya Maar Diya Chaku Maar Diya". On
hearing this he became perplexed and informed Anuj Bansal, his employer‟s son
that there was some trouble with Ishwar Bansal and requested Anuj Bansal to
reach the factory immediately. Thereafter, they hired the TSR and reached the
factory where they found a crowd at the factory‟s gate. He handed over the cash
collected from Subhash to Ishwar Bansal‟s relatives. After the date of the incident
the factory was closed down and he was rendered jobless. He contacted different
establishments in search of a suitable job for him.
26. He testified that on 18.01.2005 at about 5:00 P.M. Appellant Nirmal met him on
the road near PP Wazipur Industrial Area. They both talked about their
unemployment. The Appellant Nirmal took him to his house in Lal Bagh. The
Appellant Nirmal took out a bottle of liquor. He (PW-12) informed him that he
did not take liquor. Thereupon, Appellant Nirmal arranged tea for him through
someone and he started taking liquor. During their interaction, the Appellant
Nirmal told him that he had advised Munna not to go to the factory. On enquiring
the reason for this Nirmal disclosed that he had hatched a conspiracy with Munna,
Sonu and Avinash to commit robbery at Ishwar Bansal‟s factory. He (PW-12)
told Nirmal that what he did was not good. The Appellant Nirmal started giving
oath to him that he should not disclose this to anyone. He (PW-12) got frightened
and immediately left Nirmal‟s room and confined himself in his house. On
19.01.2005 police came to him at his house and he narrated the entire story to the
police.
27. PW-15 Subhash Kumar corroborated the prosecution version regarding utensils
supplied by Ishwar Bansal and Ravi and Nirmal‟s visit to their godown on
10.12.2004 at about 12:00 noon. He deposed that Shri B.N. Kejriwal was the
owner of Dimension Overseas. He tried to contact Ishwar Bansal on his telephone
but phone was found engaged. Shri B.N. Kejriwal made the payment of `
3,20,000/- to Nirmal, who seemed to be in panic and hurry and urged him to make
the payment quickly. The witness was unable to identify Appellant Nirmal on the
ground that he saw him only on 10.12.2004, just 3-4 times. He denied the
suggestion that he had refused to identify the Appellant Nirmal as he was getting
threats from Nirmal‟s family.
28. PW-16 Anil Kumar runs the MTNL PCO Booth at his grocery shop at S-183/157,
Majdoor Camp, Okhla Phase-I with telephone number 26812628. He produced
the original bill Ex.PW-16/A in respect of the telephone calls stated earlier. In
cross-examination this witness deposed that he had no record of telephone calls
made from his PCO.
29. PW-17 SI Rajesh Singh was in-charge of the Crime Team, North West District.
He deposed about his visit to the spot along with other members of the team,
taking of the photographs by the photographer of their team and his effort to
develop the chance prints. He deposed that from the chance finger prints lifted
from the spot, no finger print could be developed.
30. PW-19 Dr. Suresh Bansal (deceased‟s brother) is another important witness
examined by the prosecution. He deposed that in the year 2004 he was staying in a
joint family with his younger brother Ishwar Bansal (the deceased). Ishwar
Bansal used to run a factory for manufacturing stainless steel utensils at A-73,
Wazirpur Industrial Area. He had a godown at 37, Surya Deep Building,
Wazirpur Community Center. On 10.12.2004 it was the wedding anniversary of
Ishwar Bansal. At about 6:30 P.M. Dr. Suresh Bansal came to know that someone
had stabbed his brother (the deceased) with a knife in his factory and that Ishwar
Bansal had been removed to Sunder Lal Jain Hospital. He immediately rushed to
the hospital. He reached the hospital where he found his brother was in a very
serious condition. He testified that his brother succumbed to the injuries and the
dead body was received by him after the post mortem examination.
31. After the Tervi Ceremony, his family members sat together to analyse as to how
the incident had taken place. They were in a state of shock. He and his family
members started recalling the events and the articles which his brother used to
wear. They recollected that Ishwar Bansal used to wear a gold chain which was
gifted to him ten years back by him. The same was missing and was not handed
over to them even after the postmortem examination. Ishwar Bansal used to wear
a gold ring on which letter „I‟ was engraved in letter „C‟. It had a net design on
the sides. He recollected that he had given a wrist watch HMT Swarna with white
dial and a golden chain to the deceased, which had to be repaired. They also
recollected that one mobile handset Nokia 3315 was stolen from Ishwar Bansal‟s
factory and could not be traced. His brother had made a complaint and got the
SIM cancelled and a duplicate SIM was issued. He apprised the IO about all the
missing articles. On 31.01.2005 he went to the Crime Branch office of Delhi
Police at Chanakya Puri and reached there at about 2:30 P.M. He saw Appellant
Nirmal present in the office of Inspector Pankaj Sood. IO Inspector Pankaj Sood
informed him that their Munim Nirmal along with his three associates, namely,
Avinash, Prakash @ Munna and Parvesh @ Sonu was involved in his brother‟s
murder. The witness testified that Appellant Nirmal made a confessional
statement to him and disclosed that his financial requirements had increased due
to his illicit relations with a girl. He started committing small thefts in the factory.
In mid November, 2004 he got committed theft of a mobile phone and some cash
from Ishwar Bansal‟s factory. Nirmal further disclosed to him that on 09.12.2004
in the evening Ishwar Bansal had informed him that utensils worth ` 3,25,000/- to
` 3,50,000/- were to be supplied to a factory at Okhla on 10.12.2004 for cash. He
deposed that Appellant Nirmal disclosed that on the night of 09.12.2004 he
(Nirmal) hatched a conspiracy with co-accused Avinash, Prakash and Parvesh @
Sonu that he would bring cash at about 5:00 P.M. to the factory and the workers
would leave the factory at about 5:30 P.M. Nirmal further disclosed that he
directed his co-accused to commit robbery and take away the cash at any cost.
Nirmal further disclosed to him that payment for the utensils was delayed. He
(Nirmal) contacted Appellant Prakash on his mobile phone which was attended to
by his father and, therefore, he could not inform Prakash asking him not to
commit the robbery on that day. He disclosed that his associates could not get the
money and, therefore, they stabbed the deceased and bolted the office from
outside.
32. The witness then deposed about the recovery of the mobile phone Nokia 3315
(belonging to his deceased brother) by Appellant Prakash from a Tand (a shelf
near the roof used to store goods) of his room, which was seized by the police by
memo Ex.PW-19/B. The same was stolen from the factory in mid November,
2004. Appellant Prakash also got recovered a gold ring from a lota (metal pot).
The ring was identified by him as belonging to his deceased brother. The ring was
seized by memo Ex.PW-19/C. The witness then deposed about the recovery of a
gold chain at the behest of Appellant Nirmal from the first floor of his house
No.A-9, Gali No.9, Lal Bagh, which was seized by memo Ex.PW-19/D. The
witness then deposed about the identification of the HMT wrist watch in the TIP
held by the learned Metropolitan Magistrate on 15.02.2005.
33. PW-24 SI Vimal Kumar carried out the initial investigation of the case. He
deposed about the seizure of certain articles from the spot.
34. PW-26 ACP Prakash Khera, (Inspector/SHO at the time of the incident), carried
out investigation after Ishwar Bansal succumbed to the injuries. He conducted the
inquest proceedings Ex.PW-26/A-1 and sent the dead body for postmortem
examination. He deposed that on 18.01.2005 PW-19 Dr. Suresh Bansal,
deceased‟s brother produced one sweater in the Police Station stating that it was
worn by the deceased at the time of the incident. The sweater was seized by memo
Ex.PW-19/A.
35. PW-29 Inspector Pankaj Sood is the main Investigating Officer. He deposed that
on 19.01.2005 he was posted as Inspector Inter State Cell, Crime Branch,
Chanakya Puri, Delhi. On the directions of the Commissioner of Police the
investigation of the case was transferred to the Crime Branch and was assigned to
him. He perused the case file and summoned Dr. Suresh Bansal and Anuj Bansal,
brother and son of the deceased respectively at the place of occurrence i.e. A-73,
Wazirpur Industrial Area at 5:00 P.M. He recorded the statement under Section
161 Cr.P.C. Anuj Bansal (besides other facts) informed him that when he and his
aunt Dr. Bimla Bansal took his injured father to the hospital he found the ring and
gold chain, which his father used to wear, were not on his person. He also
informed that in the mid November, 2004 a Nokia 3315 handset of his father
having mobile number 9891203018 was stolen from the factory. He inspected the
spot and then along with the staff he visited CA-37A, Shalimar Bagh i.e. house of
Ravi (PW-12), the former driver of Ishwar Bansal. On inquiry, he (PW-12)
informed that on 18.01.2005 the Appellant Nirmal met him in Wazirpur Industrial
Area. Nirmal took him (Ravi) to his house. After taking liquor, Nirmal disclosed
to him about the incident. Inspector Pankaj Sood testified that he directed the
police staff to search for Nirmal at his house i.e. A-9, Gali No.9, Lal Bagh Delhi
and at other places. On 31.01.2005 he, with ASI Dharamvir and another police
personnel reached the house of Nirmal at 10:30 A.M; he was interrogated but he
did not cooperate. He took Nirmal to his office at Chanakyapuri where he
interrogated and confronted him with the statement made by Ravi (PW-12), the
former driver of Ishwar Bansal. Nirmal broke down and told him the true facts by
confessing his guilt before him. He arrested him at about 2:30 P.M. by arrest
memo Ex.PW-20/B. Dr. Suresh Bansal (PW-19) reached the Crime Branch office
at 2:45 P.M. He informed Dr. Suresh Bansal about arrest of Appellant Nirmal and
his having confessed his guilt. Appellant Nirmal made a confession in the
presence of Dr. Suresh Bansal which was reduced into writing by memo Ex.PW-
28/A. The IO then deposed about the arrest of Appellants Prakash @ Munna and
Avinash at about 4:00 P.M. by memos Ex.PW-28/F and PW-28/G respectively.
He testified that Appellant Avinash made a disclosure statement Ex.PW-29/D and
Prakash @ Munna made a disclosure statement Ex.PW-28/E. Dr. Suresh Bansal
also reached Central Market. He along with police staff, Appellant Prakash and
Avinash (as also Appellant Nirmal) reached house No.WZ-363, Village Wazipur
Delhi. Appellant Nirmal was left in the vehicle. Appellant Prakash and Avinash
led the police party and Dr. Bansal at their house on first floor. Prakash assisted
in recovery of the mobile phone from underneath the clothes from a Tand (a shelf
near the roof to store goods). The said mobile phone Nokia 3315 was identified
by Dr. Suresh Bansal to be belonging to deceased Ishwar Bansal and stolen from
the deceased‟s factory in November, 2004. The mobile phone was switched off.
He opened the mobile phone and took out the SIM card from it. The SIM card was
issued by Airtel. Appellant Prakash disclosed its number as 9818127376. He
placed the said SIM in the same mobile, sealed it with the seal of PS and seized
the same by memo Ex.PW-19/B. Appellant Avinash then got recovered a gold
ring lying in a lota from the left side of the tand, which was also sealed and seized
by memo Ex.PW-19/C. He deposed that mother of Appellant Avinash and
Prakash was available, but she refused to sign the recovery memos.
36. PW-29 testified that Appellant Nirmal then took the police party and the
complainant Dr. Suresh Bansal to his room on the first floor at A-9, Lal Bagh.
Nirmal opened the door and produced a gold chain from a brass glass lying among
the utensils underneath the cot. The gold chain was identified by Dr. Suresh
Bansal as belonging to the deceased and having been gifted by him to the
deceased 10-15 years back. The police party was sent to Kankhal, Haridwar in
search of Appellant Parvesh @ Sonu. Parvesh @ Sonu, however, was not
available at Kankhal and was ultimately arrested on 03.02.2005 from his house N-
9/C-1, Ram Lila Ground, Lal Bagh at 1:30 P.M. Appellant Parvesh was brought
to the Crime Branch office and was confronted with Avinash. At that time
Appellant Parvesh was wearing the wrist watch which was identified by Avinash
to be the part of the property removed from the deceased. The wrist watch was
seized. On interrogation, Appellant Parvesh made a disclosure statement Ex.PW-
28/P and led the police party to the shop of Manoj Sharma and took out a
polythene bag from Tand. On checking the polythene bag two knives wrapped in
an old English newspaper were recovered. One was a dagger and the other was a
buttondar knife.
37. When examined under Section 313 Cr.P.C., the Appellants denied the
incriminating evidence produced by the prosecution and pleaded false implication.
Appellant Prakash and Avinash pleaded alibi. They examined Sunil Kumar
Mishra (DW-1) in their defence to prove that the two Appellants worked as Peon
in the office of Rainbow Security and Detective Services at Noida in the month of
November and December, 2004. Office used to open at 8:00 A.M. and the closing
time of the office was 8:00 P.M. - 9:00 P.M.
38. By impugned judgment, the trial court believed the extra judicial confession
allegedly made by the Appellant Nirmal to Ravi (PW-12), incriminating all the
Appellants. The trial court found that the Appellants had entered into a criminal
conspiracy to do illegal acts in furtherance of which they committed Ishwar
Bansal‟s murder and held that the recoveries of the mobile phone with the IMEI
number 351479600619374/0 containing SIM number 9818127376 from Appellant
Prakash, gold ring from Appellant Avinash, gold chain from Appellant Nirmal
and HMT Swarna wrist watch, knife and a dagger from Appellant Parvesh @
Sonu were proved. The Appellants were convicted and sentenced as noticed in the
preceding portion of the judgment.
39. We have heard Mr. R.K. Singh, learned counsel for the Appellant Avinash Kumar
@ Sanjay, Mr. Ajay Verma, learned counsel for the Appellants Prakash and
Nirmal Kumar, Ms. Rekha Aggarwal, learned counsel for the Appellant Parvesh,
Mr. Lovkesh Sawhany, learned Additional Public Prosecutor for the State and Mr.
Sumeet Verma, learned counsel for the Complainant and have perused the record.
40. There is no direct evidence in the case. The prosecution case squarely rests on
circumstantial evidence. The circumstances relied upon are:-
(a) The extra judicial confession made by the Appellant Nirmal to PW-12 Ravi.
(b) Recovery of a gold ring, a gold chain and HMT Swarna wrist watch from
Appellant Avinash, Nirmal and Parvesh respectively.
(c) Recovery of a buttondar knife and a dagger at the instance of Appellant
Parvesh.
(d) Recovery of Nokia 3315 mobile phone having SIM number 9818127376 at the
instance of Appellant Prakash and other articles from the three Appellants
mentioned earlier and the call details in respect of the phone (SIM) number
9818127376 from Bharti Airtel (Ex.PW-14/A) and phone (SIM) number
9891203018 of Nokia 3315 from Idea Cellular Ltd. (Ex.PW-25/A)
respectively to show that there was meeting of minds amongst the Appellants.
41. We shall deal with the circumstances one by one.
(A) EXTRA JUDICIAL CONFESSION MADE BY APPELLANT
NIRMAL
42. It is not in dispute that Ishwar Bansal sustained stab injuries in his abdomen on
10.12.2004 evening. He was admitted to the hospital at about 06:50P.M. He
succumbed to the injuries the same evening.
43. According to the prosecution Appellant Nirmal met PW-12 Ravi on 18.01.2005 at
about 5:00 P.M. and took Ravi to his house and made an extra judicial confession
of having committed robbery and the murder of Ishwar Bansal on 10.12.2004 in
conspiracy with the other Appellants. PW-12 Ravi deposed that the extra judicial
confession was made after Nirmal took some liquor while he (Ravi) gave him
company with a cup of tea.
44. It is urged by the learned counsel for the Appellants that an extra judicial
confession is a weak type of evidence. (Jagta v. State of Haryana, 1974 (4) SCC
747). An extra judicial confession to be relied by the Court to base conviction of
an accused must be true and voluntary (State of Rajasthan v. Raja Ram, 2003 (8)
SCC 180) and that a confession made under the influence of liquor cannot be said
to be voluntary (C.K. Raveendran v. State of Kerala, 2000 (1) SC 225).
45. It is contended on behalf of the Appellants that it is highly improbable that after
more than a month of the incident Nirmal would blurt out an extra judicial
confession to the driver of his previous employer knowing fully well that he could
disclose the same to the deceased‟s family.
46. On the other hand, it is contended on behalf of the State / Complainant that the
Court cannot start with a presumption that extra judicial confession is a weak type
of evidence. It is urged that the extra judicial confession if proved to be true and
voluntary can be the sole basis for conviction of an accused. Learned counsel for
the complainant places reliance on Raja Ram (supra). Learned counsel for the
complainant tried to distinguish C.K. Raveendran (supra) where the confession
made after consuming liquor was not relied upon on the grounds that in the cited
case the accused as well as the witness had consumed liquor and both were drunk
whereas in the present case only the maker of the confession consumed liquor.
47. On behalf of the State reliance is placed on Sansar Chand v. State of Rajasthan,
2010 (10) SCC 604, to contend that an extra judicial confession is not only proved
to be true and voluntary but is also corroborated by several important pieces of
incriminating evidence like the recovery of stolen property i.e. mobile phone, a
gold ring, a gold chain and an HMT Swarna wrist watch from the Appellants and
most importantly the call records which unerringly point out that there was a
conspiracy amongst the Appellants and in pursuance of the criminal conspiracy
Ishwar Bansal was done to death with the purpose of robbery.
48. In a Division Bench judgment of Himachal Pradesh High Court in Nirmal Singh v.
State of Himachal Pradesh, 1987 Crl LJ 1644, where the incident took place on
22.08.1983, the confession made after a lapse of two weeks of the incident
without any plausible ground was held to be unconvincing. Para 22 of the report
is extracted below:-
"22. Now coming to the so-called extra judicial confession alleged
to have been made by the appellant, we are again constrained to
remark that the learned trial Judge ignored the very basic
principles and guidelines governing the proof of confession while
jumping at his conclusion that the appellant had actually and
voluntarily confessed his guilt before Antar Singh (PW6), Chunan
Singh (PW 5) and Hem Raj (PW 4). It need not be emphasised that
a confession is required to be proved like any other fact and the
standard of proof is the same as of any other fact in a criminal
trial. The value of evidence of a confession would depend upon the
veracity of the witnesses before whom it is alleged to have been
made. The position of the person to whom the confession is
alleged to have been made in relation to the person making the
confession, the time lapse between the occurrence and the
making of confession and the circumstances in which the
confession is alleged to have been made are some of the relevant
factors which need to be taken into account while appreciating
such evidence. Another factor which cannot be ignored in this
connection is the normal human psychology that a man, unless
he is a hardened criminal, after the commission of a grave
offence especially murder, has a natural tendency to unburden
himself and share his terrible secrets with somebody else. Given
time to ponder over, the fear of the consequences of his
conviction may start acting in restraint of his natural impulse to
confess. With the passage of time also this desire to confess may
evaporate. Another surprising fact revealed by experience, and
that should always be borne in mind, is that in our country extra-
judicial confessions are generally introduced in evidence only
when there is no direct, cogent and reliable evidence available to
connect the accused with the crime. It is of very rare occurrence
that evidence of confession is adduced when proof of accused's
involvement in the offence is otherwise satisfactory. There is no
plausible explanation as to why this impulse to confess should be
stronger in so-called blind cases only."(emphasis supplied)
49. There is no dispute about the proposition of law held in the catena of judgments
including the State of Rajasthan v. Raja Ram (supra) and Sansar Chand v. State of
Rajasthan (supra), relied upon on behalf of the State. The Courts in this country
have considered an extra judicial confession to be a weak type of evidence on the
premise that every guilty person has an instinct to escape the law and, therefore, is
unlikely to blurt out the wrongs committed by him in the past. The Courts have
consistently emphasized that an extra judicial confession has to be proved like any
other evidence; it depends upon the veracity of the witness to whom it has been
made and the Court must be satisfied that it is true and voluntarily.
50. We are not inclined to reject the extra judicial confession merely because
Appellant Nirmal had consumed liquor as there is nothing on record brought in
the cross-examination to show that the Appellant was so drunk as to affect the
voluntary nature of the confession, particularly, when as per PW-12 Ravi, he did
not take liquor (though offered to him).
51. As stated earlier, in this case the incident took place on 10.12.2004 whereas the
extra judicial confession is alleged to be made on 18.01.2005 i.e. after lapse of
more than a month. It is highly improbable that after such a lapse of time
Appellant Nirmal would have a desire to unburden himself and share his secret
with somebody else. PW-12 Ravi used to work as a driver with deceased Ishwar
Bansal and was rendered jobless because of the closure of the factory. It has to be
borne in mind that normally, a driver is considered to be close to the master as
well as to the members of the master‟s family. It is unlikely that a former co-
employee would make an extra judicial confession to a driver knowing fully well
that it could be disclosed to the deceased‟s family. As observed in Nirmal Singh
(supra) the desire to confess evaporates with the passage of time. Though,
according to the prosecution an extra judicial confession has been corroborated by
the recovery of the stolen property, particularly, the mobile phone and the call
details. However, we are not inclined to believe the recovery of the stolen
property except the mobile phone to which we shall advert a little later. The call
details are also not of much importance as no inference can be drawn that a
number of calls were made by Appellant Nirmal to Appellant Prakash.
52. The investigation of this case was with the PS Ashok Vihar from the date of the
incident i.e. 10.12.2004 upto 18.01.2005. The investigation was ordered to be
transferred to the Crime Branch on 19.01.2005 and was assigned to Inspector
Pankaj Sood. It is very interesting to note that he immediately proceeded to the
residence of Ravi. Ravi was available right in his house and he disclosed about
the confession made by Appellant Nirmal to the IO.
53. Inspector Pankaj Sood might have preferred to approach PW-12 Ravi as he took
the goods to the Dimension Overseas and Ishwar Bansal was murdered while he
along with Appellant Nirmal was away for delivery of the utensils consignment.
Inspector Pankaj Sood deposed that he deputed his staff to search out Nirmal at
his residence and elsewhere. It is very strange that Inspector Pankaj Sood is
silent about the efforts made by him to contact Appellant Nirmal, let alone to
apprehend him when he became a suspect on the basis of Ravi‟s statement
recorded by the IO on 19.01.2005. In the circumstances, it is doubtful that any
extra judicial confession was made by Appellant Nirmal to PW-12 Ravi.
(B) RECOVERY OF A GOLD RING, A GOLD CHAIN AND HMT
WRIST WATCH SWARNA BELONGING TO THE DECEASED
FROM APPELLANTS AVINASH, NIRMAL AND PARVESH
RESPECTIVELY.
54. As stated earlier, the stabbing incident took place in the factory premises of
Ishwar Bansal on 10.12.2004 in the evening resulting into his death the same
evening in the hospital. According to the prosecution version a gold ring, a gold
chain which belonged to the deceased and an HMT Swarna wrist watch which
was handed over by PW-18 Dr. Suresh Bansal to the deceased (for repair) were
found missing and were ultimately recovered from Appellants Avinash, Nirmal
and Parvesh on 31.01.2005 and 03.02.2005. The FIR was recorded on the basis of
rukka sent by PW-9 ASI Rohtash Singh. The endorsement Ex.PW-9/A on the DD
No.21stated that no eye witness was available when ASI Rohtash Singh reached
the hospital. PW-29 Inspector Pankaj Sood testified that Anuj Bansal informed
him on 19.01.2005 that while his injured father was being removed to the hospital
he found the gold ring and the gold chain which his father used to wear were not
on his person. Thus, immediately family members of the deceased Ishwar Bansal
became aware that two valuable pieces of jewellery worn by the deceased were
missing. Yet, the statement with regard to the missing jewellery of Anuj Bansal
was recorded only on 19.01.2005. Similarly, PW-19 testified that he had given a
wrist watch HMT Swarna (with white dial and golden chain) for getting it
repaired to Ishwar Bansal a day prior to the incident. It was natural for Dr. Suresh
Bansal to have looked for the said wrist watch at least after Ishwar Bansal
succumbed to the injuries to assess if robbery was the cause of the deceased‟s
murder.
55. It has emerged from the testimony of PW-10 Anuj Bansal and PW-19 Dr. Suresh
Bansal that after Tervi Ceremony the family members sat together to analyse as to
how the incident had taken place. PW-19 stated that they recollected that Ishwar
Bansal used to wear a gold chain which was gifted by him ten years back and a
gold ring on which letter „I‟ was engraved in letter „C‟. The Tervi Ceremony
might have taken place on 22.12.2004 or 23.12.2004. We are not inclined to
believe the version as given by PWs 10 and 19. In fact, in Hindu mythology after
the cremation and before Tervi Ceremony the family members sit for condolence.
Perhaps this could have been the best time when the deceased family, particularly,
his son and the brother (PW-10 and PW-19) would have tried to reconstruct the
events leading to deceased‟s murder. Thus, PWs 10 and 19 would have definitely
known that some valuables consisting of a gold chain, a gold ring and an HMT
wrist watch were missing on 12-13.12.2004. Assuming for the sake of arguments
that the family sat together after the Tervi Ceremony which might have taken
place on 22 or 23.12.2004 the family would have been aware of the stolen articles
on 23-24.12.2004. However, the record shows that the statement with regard to
the missing articles was recorded by the IO only on 19.01.2005.
56. It is urged by the learned APP that the deceased‟s family was not satisfied with
the investigation which is why some representations were made to the Police
Officers resulting into transfer of the investigation to the Crime Branch.
Obviously, if a father or brother is brutally murdered and the local police fail to
get any clue, the victim‟s relatives are bound to approach senior police officers.
It is not the version given by PWs 10 and 19 that their statements were not
recorded by the SHO, PS Ashok Vihar, who took up the investigation after the
case was converted to one under Section 302 IPC. Thus, disclosing the theft of
the recovered items for the first time on 19.01.2005 i.e. after a period of 38 days
of the incident raises strong suspicion that the articles recovered might have been
planted on the Appellants.
57. PW-19 Dr. Suresh Bansal, PW-28 ASI Dharamvir Singh and PW-29 Inspector
Pankaj Sood are the witnesses to the recovery of the gold chain in pursuance of
the disclosure statement made by Appellant Nirmal. PWs 19 and 29 are the
witnesses to the recovery of the gold ring at the instance of Appellant Avinash on
31.01.2005 and HMT Swarna wrist watch from Appellant Parvesh on 03.02.2005.
It is true that that there is no legal requirement that an independent witness must
be joined for effecting a recovery in pursuance of Section 27 of the Evidence Act
(State v. Sunil (88) 2000 DLT 260). However, we are not inclined to believe the
recovery of the gold ring, gold chain and HMT Swarna wrist watch at the instance
of Appellant Avinash, Nirmal and Parvesh respectively as the stolen property was
disclosed after a lapse of 38 days and there is every possibility that the articles
might have been planted on the Appellants.
(C) RECOVERY OF A BUTTONDAR KNIFE AND A DAGGER AT
THE INSTANCE OF APPELLANT PARVESH
58. Appellant Parvesh was arrested from his house in Lal Bagh on 03.02.2005.
According to the prosecution after he was brought to the Crime Branch office and
interrogated, he made a disclosure statement Ex.PW-28/P and led the police party
to the Photo Studio of PW-13 Manoj Sharma. Appellant took out a polythene bag
from the Tand, the words Shivam Garments was printed on the said polythene and
on checking the packet, the IO discovered two knives i.e. a dagger and a
buttondar knife. PW-13 from whose Photo Studio the packet containing the knife
was recovered, did not support the prosecution version. The witness was
confronted with his previous statement from portions „A to A‟ to „F to F‟. We
would have believed the recovery of the knives in spite of PW-13‟s not supporting
the prosecution version but for our conclusion that the stolen property appears to
have been planted on the Appellants. Otherwise also the recovery of the buttondar
knife Ex. P-1 and the dagger Ex. P-2 is inadmissible in evidence as no blood could
be detected on the dagger Ex.P-2 whereas buttondar knife Ex. P-1 was found to
contain only human blood. In Keshav v. State of Maharashtra, 2008 (1) Crimes
88 (SC) it was held that the discovery in terms of section 27 of the Evidence Act
would be admissible in evidence provided the recovery was of a fact that was
relevant to connect the same with the commission of the crime. Keeping of a
weapon at the instance of an accused which has no nexus with the cause of death
of the deceased is inadmissible in evidence. Since the buttondar knife Ex.P-1 and
the dagger Ex.P-2 could not be connected as the same did not contain the blood
group of the deceased, the same would not be admissible in evidence. Thus, this
circumstance even if taken as proved, does not help the prosecution. In Mani v.
State of Tamil Nadu, JT (2008) (1) SC 191 it was held by the Supreme Court that
the discovery is a weak evidence and cannot be wholly relied upon and conviction
for a serious offence like murder cannot be based simply upon discovery of any
fact.
(D) RECOVERY OF MOBILE PHONE NOKIA 3315 WITH SIM
NUMBER 9818127376 AND CALL DETAILS OF THE TWO
TELEPHONES
59. It is urged by the learned APP that recovery of mobile phone Nokia 3315 and use
of its SIM card by Appellant Prakash shows the conspiracy between the
Appellants to commit the crime and this circumstance by itself is sufficient to
uphold the judgment of the trial court.
60. It is proved on record that two mobile handsets (including Nokia 3315 bearing
IMEI No. 351479600619374) were purchased in the name of Anuj Bansal from
M/s. Shiv Shakti Telecom on 13.08.2003 by memo Ex.PW-19/A. PW-19 who
proved the receipt was not cross examined on purchase of mobile phone. Thus, it
is established that Nokia 3315 handset bearing IMEI No. 351479600619374
containing SIM number 9818127376 belonged to the deceased Ishwar Bansal.
61. PW-10 Anuj Bansal deposed that in mid November, 2004 his father‟s mobile
phone bearing number 9891203018 make Nokia 3315 was misplaced and was
stolen by someone from the factory. After searching the mobile for a couple of
days, his father lodged a complaint with the police and received a duplicate SIM.
The prosecution has not placed on record any missing report or even any
complaint to the service provider i.e. Idea Cellular Ltd. to show that the handset
was stolen along with SIM card. We would advert a little later whether telephone
number 9818127376 really belonged to Appellant Prakash or was recovered from
him. It is, however, established from the call details Ex.PW-14/A that a call was
made on telephone 9818127376 IMEI number 520424806094410 on 16.11.2004
at 09:42 A.M. from telephone number 27372430 installed at the factory of the
deceased bearing address A-73, Wazirpur Industrial Area. Another call was made
from the godown on 16.11.2004 at 12:28 noon. Yet another call was made from
the factory on that very day at 2:39 P.M. It is contended that the Appellant Nirmal
made a disclosure statement to the effect that in mid November, 2004 at about
9:30 A.M. he made a call to Munna (Parvesh) at his mobile phone to reach the
factory (to commit theft of a mobile phone and cash kept by Ishwar Bansal in the
drawer). It is urged that the part of the disclosure statement regarding the call
from the mobile phone number 9818127376 recovered from the Appellant
Prakash on the said date and time is admissible in evidence as this fact was
discovered later on by the call details Ex. PW-14/A obtained from Bharti Cellular
Limited.
62. As per the disclosure statement a call was made by Appellant Nirmal on
10.12.2004 to Appellant Munna at number 9818127376 from the godown‟s
landline number 27373444 which fact is also discovered from the call details
Ex.PW-14/A. Similarly, making of a call by Appellant Nirmal at about 5:00 P.M.
from PCO belonging to PW-16 Anil Kumar having number 26812628 to
Appellant Prakash‟s number 9818127376 was discovered from the call details
and these parts of the disclosure statement are accordingly admissible in evidence.
63. We have perused the call records. It is true that aforesaid calls were made on the
aforesaid date and time to number 9818127376 which was allegedly recovered
from Appellant Prakash. However, no evidence was led by the prosecution to
show that these call details were collected by the police after the date of making of
the disclosure statement by Appellant Nirmal on 31.01.2005. In this view of the
matter, there is no discovery of any fact and the portions of the disclosure
statements aforesaid are not admissible in evidence under Section 27 of the
Evidence Act.
64. It is also established on record that the SIM card number 9891203018 was being
used in the deceased‟s handset on 16.11.2004 till 1:30 P.M. and the SIM card was
put in the another handset which was using SIM number 9818127376 from
16.11.2004 to 19.11.2004. A SIM card continued to be used on the handset which
was being used on the number 9818127376 alleged to be belonging to the
Appellant Prakash. It is quite intriguing to note that the IO botched up the
investigation completely; except for the alleged recovery of the SIM bearing
number 9818127376, no evidence was collected by the prosecution that this SIM
was ever allotted to Appellant Prakash. Rather, evidence was produced to show
that in July, 2005 number 9818127376 was allotted to one Harish Chander.
There were number of calls outgoing and incoming on phone number
9818127376. Even if the prosecution was unable to get the details as to who was
allotted this number by Bharti Cellular services, the recipient of the calls from
9818127376 and the makers of the call to 9818127376 could have been examined
by the prosecution to establish the identity of the person who was using this SIM
card. Unfortunately, it has not been done by the prosecution. Similarly the
prosecution did not make any effort to record statements of the persons who were
called by Appellant Prakash after he allegedly committed theft of the deceased‟s
mobile from his factory on 16.11.2004. Important pieces of evidence were thus
abandoned by the prosecution for the reasons best known to it.
65. Assuming that the recovery of the handset Nokia 3315 bearing IMEI
No.351479600619374/0 and the SIM card number 9818127376 as proved from
the Appellant, what can be inferred is that the stolen handset belonging to the
deceased Ishwar Bansal was being used for some time by Appellant Prakash. No
report of theft of mobile number 9891203018 and handset Nokia 3315 was lodged
with the police and the Appellants Prakash and Nirmal were not tried for the
offence of theft of the said mobile phone. Thus, the use of the stolen mobile
phone by Prakash (even if the recovery from him is believed) is of no
consequence. The only evidence produced by the prosecution is that one call was
made in the morning by some person from the godown telephone number
27373444 to Appellant Prakash and then perhaps Nirmal made a call from PCO
booth number 26812628 to Appellant Prakash on the same day at 4:59 P.M.
66. In our opinion, there are too many gaps in the prosecution version. From these
stray acts no inference of a criminal conspiracy to commit an illegal act of robbery
and murder of Ishwar Bansal can be drawn against any of the Appellants. It is true
that direct evidence of hatching a conspiracy by the conspirators is seldom
available; at the same time, indirect evidence has to be clear, cogent and must
show that there was meeting of minds for a particular purpose.
67. It is well settled law that where the prosecution case is based on circumstantial
evidence, the circumstances from which an inference of guilt is sought to be
drawn must, in the first instance, be fully established; the circumstances should be
of definite tendency unerringly pointing out towards the guilt of the accused; the
circumstances taken cumulatively should form a chain so complete that there is no
escape from the conclusion that within all human probabilities the offence was
committed by the accused and none else and that the circumstances established
must be incapable of explanation of any other hypothesis other than the guilt of
the accused. (Hanumanth Govind Nargundkar v. State of M.P, AIR 1952 SC 343
and Padala Veera Reddy v. State of A.P., AIR 1990 SC 79).
68. The circumstances of placing certain calls from the mobile phone belonging to the
deceased and from the factory of the deceased to the mobile of Appellant Prakash,
even if accepted, do not lead to any conclusion that the Appellants entered into
conspiracy and committed the offence of robbery and murder.
69. We are conscious of the fact that an accused cannot be acquitted simply because
of some defects in the investigation carried out by the investigating agency
designedly or because of negligence, the Court is required to examine the
evidence de hors such omission to find out whether the said evidence is reliable or
not and is sufficient to bring home the guilt of the accused or not. (Paras Yadav v.
State of Bihar, 1999 (2) SCC 126). In this case there are not only lapses on the
part of the investigating agency but the evidence produced is too insufficient to
bring home the guilt of the accused beyond the shadow of reasonable doubt. The
evidence produced simply creates some suspicion against Appellants Nirmal and
Prakash. Suspicion, however strong, cannot take place of proof.
70. It seems that the investigating agency shuffled through the call details of the
mobile phone belonging to the deceased and somehow came to the conclusion that
anybody using the said mobile phone was the author of the crime.
71. In our view, the prosecution has failed to establish its case against the Appellants
beyond the shadow of reasonable doubt. The Appeals, therefore, have to succeed.
Accordingly, we set aside the judgment of conviction and the order on sentence in
respect of the Appellants. The Appellants are acquitted of the charges and are
ordered to be set at liberty.
72. The Appeals are allowed in the above terms. The appellants shall be released
forthwith.
(G.P. MITTAL)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
JULY 12, 2011
vk
