Vijay Singh vs State & Anr.
2012 Latest Caselaw 5211 Del

$~2.
*IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CRIMINAL APPEAL NO.819/2012& CRL.M.A. No.
       12533/2012

                                  Date of decision: 3rd September, 2012


       VIJAY SINGH                                   ..... Appellant
                              Through Mr. Rajender Yadav, Advocate.

                         versus

       STATE & ANR.                                ..... Respondents
                              Through Ms. Richa Kapoor, APP for the
                              State.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. (ORAL):

       Vijay Singh, father of the deceased Vinod Kumar, has filed

this first appeal under Section 372 of the Code of Criminal

Procedure, 1973 (Cr.P.C) against the judgment dated 8th May,

2012 passed by Additional Sessions Judge, Delhi in Session

Case No. 90/2011 arising out of FIR No. 68/2011, Police Station,

Begumpur.             By the impugned judgment, respondent No. 2-

Mandeep has been acquitted but the two other accused Rekha,

wife of late Vinod Kumar and Naveen Dabas have been

convicted under Section 302 of the Indian Penal Code, 1860
CRL.A. No. 819/2012                                            Page 1 of 8
 (IPC, for short).

2.      We have heard learned counsel for the appellant and also

perused the impugned judgment and the trial court records,

including the statement of PW-13 Anjali Sharma.

3.      In the impugned judgment, learned trial court has noticed

that there were no eye witnesses and the prosecution's case is

based upon circumstantial evidence. Three circumstances were

relied by the prosecution against Mandeep, namely:

(i)     On The basis of disclosure statement, blood stained

        clothes (Exhibit P-11 and P-12) were recovered from the

        residence of Mandeep on 29th March, 2011.

(ii)    Blood stained knife (Exhibit P-8) was recovered at the

        instance of Mandeep from the bushes near Sukhi Nahar,

        Karala, Pooth Khurd village.

(iii)   Mandeep had pointed out the place of occurrence to the

        police in the pointing out memo.


4.      The trial court rightly held that pointing out place or memo

is not admissible in evidence as it does not fall within the scope

and ambit of Section 27 of the Evidence Act, 1872. The place of

occurrence was already known to the police. It has been further

observed that mere recovery of blood stained knife or blood
CRL.A. No. 819/2012                                        Page 2 of 8
 stained clothes does not complete the chain of evidence and

implicate or establish that Mandeep was involved in the said

offence. The prosecution had failed to establish that Mandeep

was a friend of Naveen Dabas or he was present at the spot at

the time of occurrence.   Call details of the mobile phone of

Mandeep were not placed on record. There was no evidence or

material to show or establish that Mandeep was near or at the

spot. Accordingly, Mandeep has been granted benefit of doubt

and acquitted.

5.     Learned counsel for the appellant submitted that PW-13

Anjali Sharma had implicated Mandeep in her statement under

Section 161 Cr.P.C.    However, he admits that PW-13 Anjali

Sharma did not recognize Mandeep as one of the persons, who

was present at the spot. We have examined the statement of

PW-13 Anjali Shamra, a friend of accused Rekha.        In her

examination in chief, she had clearly stated that she did not

know any person by the name of Mandeep.          The learned

Additional Public Prosecutor cross-examined her but she

reiterated her stand and had stated that she does not know

accused Mandeep and had not seen him before the said date.

The said PW-13 had made several statements against Rekha

CRL.A. No. 819/2012                                  Page 3 of 8
 and had stated there was tension between her and her husband

and that she wanted divorce.    She also recognised accused

Naveen Dabas and had stated that he was the tutor and he used

to teach children of Rekha. No TIP was conducted to identify

accused Mandeep from any witness including Anjali Sharma.

PW-13 does not implicate Mandeep and there is no reason and

ground to disbelieve her, on the basis of her 161 Cr.P.C.

statement.

6.     The appellant herein Vijay Singh had appeared as PW-6

and he has not deposed anything against Mandeep. Similarly,

PW-4, Jasbir Singh s/o Vijay Singh and brother of the deceased

Vinod Kumar has not made any statement or implicated

Mandeep with the commission of offence.

7.     In the present case, Vinod Kumar was murdered at about

7.30 to 7.48 A.M. on 23rd March, 2011 near his residence in a

park behind the liquor shop, Sector 20, Rohini, Delhi. There is

no evidence or material to show that the respondent No. 2-

Mandeep was present at the said spot on the said date. Call

details of mobile phone of Mandeep have not been placed on

record and proved by the prosecution.

8.     Mandeep was arrested along with Rekha and Naveen

CRL.A. No. 819/2012                                    Page 4 of 8
 Dabas on 29th March, 2011.      Against the said two accused,

Rekha and Naveen Dabas, the prosecution relied upon the

mobile phone call details, including the calls exchanged between

both of them on the day and at the time of the occurrence.

There is no evidence or material to show that Mandeep was a

friend of Naveen Dabas or that they were constantly in touch

with each other.

9.     The only evidence relied by the prosecution against

Mandeep is the alleged recovery of a knife and the blood stained

clothes, which were worn by Mandeep on the date of the

occurrence. As noticed above, Mandeep was arrested on 29th

March, 2011, six days after the occurrence/incident. As per the

FSL report (Exhibit PW-18/K and PW-18/J), blood was found on

the clothes and the knife, but the blood group could not be

ascertained. With regard to recovery of knife, we notice that

Naveen Dabas had also made a disclosure statement and

another knife (Exhibit P-7) was recovered at the instance of

Naveen Dabas from the same location.

10.    In view of the aforesaid evidence and material on record,

we do not think that there is any ground or reason to interfere

with the judgment of the trial court acquitting Mandeep by giving

CRL.A. No. 819/2012                                     Page 5 of 8
 him the benefit of doubt.

11.    The circumstantial evidence, in order to sustain a

conviction, must be complete and incapable of any other

explanation or hypothesis, other than the guilt of the accused.

The following conditions must be fulfilled before a case against

an accused can be said to be fully established on circumstantial

evidence:

(1)     The circumstances from which the conclusion of guilt is to

be drawn must or should be and not merely 'may be' fully

established,

(2)    The facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should

not be explainable on any other hypothesis except that the

accused is guilty,

(3)    The circumstances should be of a conclusive nature and

tendency,

(4)    They should exclude every possible hypothesis except the

one to be proved, and

(5)    There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with

the innocence of the accused and must show that in all human

CRL.A. No. 819/2012                                       Page 6 of 8
 probability the act must have been done by the accused. [See

Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4

SCC 116].

12.    Blood stained clothes of the accused, on stand-alone

basis without any other fact or incriminating evidence, in the

present case do not complete the chain of events so as to

establish that the accused was guilty and involved in the said

commission of offence. They only indicate a remote possibility

and not a certainty, especially when the respondent No. 2

accused was not seen at the scene of crime and there was no

evidence to establish his presence there. The blood was of

human origin but the blood group could not be ascertained. The

recovery of knife is itself debatable. The chain of evidence is not

complete in order to form a reasonable ground for a conclusion

therefrom that the respondent No.2 was guilty. There are

inconsistencies and missing links in the present case.

13.    Further, the appellate courts do not interfere with acquittal

of an accused unless there are sufficient and compelling

circumstances to hold to the contrary.

14.    In view of the aforesaid reasons, we are not inclined to

issue notice on the application for condonation of delay and

CRL.A. No. 819/2012                                        Page 7 of 8
 accordingly the application for condonation of delay and the

appeal are dismissed. We clarify that we have not examined the

case of the prosecution or expressed opinion on the allegations

made against Rekha or Naveen Dabas.

       The application for condonation of delay and the appeal

are dismissed.



                                       SANJIV KHANNA, J.

S.P. GARG, J. SEPTEMBER 03, 2012 VKR