Parminder Singh Sethi & Anr vs State & Anr
2011 Latest Caselaw 2623 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on 16.05.2011

+       CRL.A. 751/2010


PARMINDER SINGH SETHI & ANR                        ...     Appellants


                                       versus


STATE & ANR                                        ...     Respondents

Advocates who appeared in this case:

For the Appellant         : Mr Ashutosh Bhardwaj
For the Respondent No.1   : Ms Richa Kapoor
For the Respondent 2      : Mr Javed Hashmi



CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in Digest ? YES

BADAR DURREZ AHMED (ORAL)

1. This is an appeal under the proviso to Section 372 of the Code of

Criminal Procedure, 1973 on behalf of the victim (namely, the appellant No.2

Smt Jagwant Kaur), who is the wife of the deceased Jagjit Singh. The appeal is

directed against the impugned judgment and / or order dated 16.03.2010 in

Sessions Case No.7/2008 delivered by the learned Additional Sessions Judge,

Tis Hazari Court, Delhi, whereby the accused Mohd Shafiq (the respondent

No.2 herein) was acquitted of the charges under Sections 302/201 IPC for

having committed the murder of Jagjit Singh and for having disposed of his

body in a gunny bag so as to cause the disappearance of evidence.

2. The case for the prosecution was that Jagjit Singh had given a sum of ` 6

lakhs by way of loan to the accused Mohd Shafiq. Request for return of the

money was being made from time to time and that on 12.04.2008, Jagjit Singh

had sent his wife (Smt. Jagwant Kaur PW-9) and his son (Prabhjot Singh PW-

10) to Mohd Shafiq to demand return of the said money. However, according to

the prosecution, Mohd Shafiq did not respond positively and, thereafter both

Smt. Jagwant Kaur and Prabhjot Singh narrated the story to the deceased Jagjit

Singh. It is further the case of the prosecution that on 18.04.2008 between 1 to

1.30 p.m., a call was received from Mohd Shafiq by Jagjit Singh, whereupon

Jagjit Singh left his house and went to Mohd Shafiq's residence. He did not

return to his house. And, it is apparently the case of the prosecution, that Smt.

Jagwant Kaur and other relatives searched for him for one or two days before a

missing person's report was lodged on 22.04.2008 at police station C.R. Park

[Exhibit PW-9/C]. In the meanwhile, a dead body had been recovered on

19.04.2008 at about 11.05 a.m. wrapped in a quilt placed inside a gunny bag

which had been sewed from outside. The gunny bag was recovered from near

the petrol pump at Rajender Market, Tis Hazari, Delhi. The dead body was,

however, identified as that of Jagjit Singh, several days later, i.e., on 23.04.2008

by Smt. Jagwant Kaur and her son Prabhjot Singh. The accused Mohd Shafiq

was arrested on 29.04.2008. He is stated to have made a disclosure statement

whereupon the following articles are said to have been recovered:-

i) a scooter belonging to the deceased from near Shastri Park Metro

Station on 29.04.2008;

ii) spectacles, purse and petro card belonging to the deceased

allegedly at the instance of the accused from the banks of river

Yamuna, near Wazirabad Bridge on 29.04.2008;

iii) an iron pipe, which was the alleged weapon of murder, was also

stated to have been recovered at the instance of the accused from

the same place on the banks of river Yamuna on 30.04.2008.

3. The trial court has, as pointed out above, acquitted Mohd Shafiq of all

charges against him. This, it did, in view of the fact that the recoveries were not

established. The trial court was also of the view that the alleged loan

transaction of ` 6 lakhs between the deceased Jagjit Singh and Mohd Shafiq was

also not established on the basis of the evidence. Certain mobile call records

were sought to be pressed into service by the prosecution to indicate the

location of the deceased Jagjit Singh and that of Mohd Shafiq on 18.04.2008.

However, the trial court, and in our view rightly so, held that the said mobile

call records were inadmissible in evidence in view of the clear provisions of

Section 65 B of the Indian Evidence Act, 1872 as also the clear position in law

in the case of Rakesh Kumar & Others v. State: 183 (2009) DLT 658 and State

(N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru: 2005 (11) SCC 600.

4. In any event, this is not of much material significance because the

accused Mohd Shafiq has admitted in his Section 313 CrPC statement that Jagjit

Singh had come to see him on 18.04.2008 at around 2.30 p.m. as they had

business dealings inasmuch as Mohd Shafiq used to purchase jeans material

from Old Delhi through Jagjit Singh and on that day he had paid him a sum of `

1.75 lakhs, which he had taken and left his place shortly thereafter.

5. The learned Additional Sessions Judge, in the impugned order, has

discussed the evidence threadbare and has come to the conclusion that the

recoveries do not stand established. First of all, it was pointed out by the

learned Additional Sessions Judge that PW-9 Smt. Jagwant Kaur was not a

reliable witness inasmuch as the recoveries were concerned. This is so because,

in her testimony, she stated that several articles, including a turban, a broken

piece of mobile phone and iron rod were recovered in her presence, when, no

turban or broken piece of mobile phone were at all recovered and the iron rod

was recovered the next day when, admittedly, as per the prosecution case, PW-9

Smt Jagwant Kaur was not present at all. Apart from this, the learned

Additional Sessions Judge also noted that both PW-4 Sunder and PW-8 Abdul

Sattar, who were divers and who had allegedly fished out the spectacles, purse

and petrol card as also the iron pipe from the waters of river Yamuna had stated

that they had not recovered anything, although they had attempted to do so at

the instance of the police officials for quite some time. PW-4 Sunder is said to

have taken out the spectacles, purse and the petrol card belonging to the

deceased from the waters of the river Yamuna, but he has categorically stated

that he had spent one and a half hours in search of the articles, but no articles

were recovered in his presence. He also stated that he had been called to the

police station and, alongwith the other diver Abdul Sattar, he was made to sign

on a paper on the next day. He also stated in his cross-examination by the

learned APP that he was illiterate and that he was only able to sign. He denied

the suggestion that he had recovered from the water one pair of gold coloured

spectacles, the left glass of which was broken or one black leather purse

containing one petrol card. He also denied the suggestion that he had handed

over these articles to the police who had prepared the recovery memo [Exhibit

PW-4/A]. More importantly, this witness also denied the suggestion that Smt.

Jagwant Kaur, who is the wife of deceased Jagjit Singh, was present at that time

and had identified the recovered items. In fact, he volunteered to state that there

was no lady present at that time.

6. PW-8 Abdul Sattar, who was the other diver who had been produced by

the prosecution as a witness to the recovery of the said articles, in particular, the

iron pipe on 30.04.2008, also denied having recovered anything from the river.

He also stated that he was called to the police station and gave his thumb

impression on a blank paper as he was an illiterate. PW-8 Abdul Sattar also

stated that on that day, only the police officials were present and no lady was

with them. He categorically stated that the wife of the deceased was not present

at the spot, i.e., Yamuna river alongwith the police officials. It is on the basis of

the testimonies of PW-4, PW-8 and the unreliable testimony of PW-9 Smt.

Jagwant Kaur that the learned Additional Sessions Judge came to the conclusion

that the recoveries at the instance of the accused Mohd Shafiq had not been

established beyond doubt.

7. With regard to the recovery of the scooter, the trial court has, in our view,

rightly concluded that the same cannot be foisted upon the accused inasmuch as

the same was recovered from an open area near the Shastri Park Metro station.

The scooter was lying alongside the road and was accessible to the general

public. The scooter was also not found to be in working condition. In any

event, the learned Additional Sessions Judge has correctly concluded that the

scooter cannot be said to be in the exclusive possession or knowledge of the

accused Mohd Shafiq and, therefore, the alleged recovery of the scooter cannot

be taken as a circumstance against Mohd Shafiq.

8. As mentioned above, the learned Additional Sessions Judge also noted

that the prosecution has not been able to produce any evidence of the alleged

loan transaction of ` 6 lakhs. We may also note that Exhibit PW-9/C, which is

the complaint lodged at police station C.R. Park with regard to Smt. Jagwant

Kaur's husband being missing, which was lodged on 22.04.2008, there is no

mention of a sum of ` 6 lakhs and the figure of ` 6 lakhs was stated later on, i.e.,

on 29.04.2008 after the arrest of the accused.

9. After having gone through the impugned judgment and the evidence in

detail, we do not find any infirmity in the impugned judgment. Consequently,

this appeal is dismissed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J MAY 16, 2011 dutt