Delhi High Court

Vikas @ Sunil vs State on 2 July, 2013

Author: Sunita Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 941/2010
        SURESH @ BONA                               ..... Appellant
                    Through:          Mr. Bhupesh Narula, Advocate
                                      along with the appellant (in
                                      judicial custody)
                          versus
        STATE                                    ..... Respondent
                          Through:    Ms. Ritu Gauba, APP

        CRL.A. 1211/2010

        VIKAS @ SUNIL                              ..... Appellant
                          Through:    Mr.    Siddharth       Aggarwal,
                                      Advocate along with the
                                      appellant (in judicial custody)
                          versus
        STATE                                    ..... Respondent
                          Through:    Ms. Ritu Gauba, APP

%                         Date of Decision: July 02, 2013

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. Suresh @ Bona & Vikas @ Sunil seek to challenge the

impugned order dated 30th January, 2010 and 6th February, 2010

whereby both the appellants were convicted for offence under Section

302/34 IPC and sentenced to undergo imprisonment for life and a fine

of Rs.15,000/- each, in default of payment of fine to undergo rigorous

imprisonment for six months each.

2. The factual matrix of the case is:-

3. On 17th September, 2007 on receipt of a telephone call from an

unknown person at 10:25 pm regarding one person lying unconscious

in front of shop No. 5632, Qutub Road near Hanuman Mandir and

bleeding, DD No. 26A Ex. PW 2/A was recorded. The DD was

handed over by Duty Officer to Constable Amit (PW-19) who handed

over the same to ASI Ashwini Kumar (PW-13). ASI Ashwini Kumar

along with Constable Amit Kumar reached the spot where Inspector

Joginder Singh (PW-20) also reached, where they met one Chowkidar

Veer Bahadur (PW-7) who informed them that one person was lying

unconscious at Qutab Road and blood was oozing from his body. On

reaching the spot, they found that one person aged about 27-28 years

was found lying in front of Shop No. 5632 wearing white shirt with

baniyan and white pant and blood was oozing from his nose and

mouth. There was injury on his stomach at left side which seemed to

be inflicted by some sharp weapon. The clothes were blood stained

and the blood was also lying near the dead body on the ground. One

TATA 407 No. DL 1 LB 1925 was also stationed near that person.

Two bags of black and red colour were also lying near the dead body.

No eye witness was available at the spot. As such, ASI Ashwini

Kumar prepared Rukka (Ex. PW-13/A) and handed over the same to

Constable Amit Kumar for registration of the case. FIR (Ex.PW3/A)

was recorded by HC Mehar Singh. After registration of the case,

further investigation was handed over to Inspector Joginder Singh.

4. During the course of investigation, Inspector Joginder Singh

called the crime team who inspected the scene of crime, took

photographs and gave a report Ex. PW-8/A. Site Plan Ex. PW-20/A

was prepared. Blood oozing from the wounds of the deceased, blood

lying near the dead body, earth control, blood stained earth were

seized vide seizure memos Ex.PW-4/G to Ex.PW-4/J. On search of

the dead body and from the pocket of the baniyan, one passport, visa,

one electronic ticket from Delhi to Abu Dhabi in the name of Richpal

and cash of Rs.4000/- in the denomination of Rs.1000/- each, all

bloodstained were recovered. From the pocket of shirt Rs.156/- in

denomination of one currency note of Rs.100/-, Rs.50/-, one coin of

Rs.5/- and one coin of Rupee 1/- were recovered. From the wearing

pant one Nokia 1600 mobile phone was recovered. On checking the

bags lying near the dead body, wearing clothes, daily use articles and

four photographs were recovered. All the articles were seized vide

separate Seizure Memos. Laxman Indoria, eye witness came at the

spot. His statement was recorded. The dead body was sent to

Mortuary of Maulana Azad Medical College through ASI Ashwini

and Constable Amit. Inquest proceedings under Section 174 Cr.P.C.

were conducted. After identification of the dead body and post-

mortem, same was handed over to the relatives of the deceased.

5. It is further the case of prosecution that on 19th September,

2007, Inspector Joginder Singh received a secret information that the

accused wanted in this case are present at the back side of MCD store

near Railway line. On the pointing out of secret informer both the

accused were apprehended, interrogated and arrested vide arrest

memos Ex. PW-13/C and Ex.PW-13/D. They made disclosure

statements Ex.PW-13/A and Ex.PW-13/B. They were taken to nearby

police booth at Qutab Road near Hanuman Mandir Gali. After

leaving accused Suresh @ Bona in the custody of HC Sadhu Ram,

Inspector Joginder Singh along with ASI Ashwini Kumar took Vikas

at his residence, i.e., 6461/1, Gali Hanuman Mandir. He got

recovered one blood stained half pant/knicker from iron shelf of his

first floor room and he also got recovered one foreign currency note,

i.e., dinar of Rs.25,000/- from almirah underneath the newspaper.

Same were seized vide seizure memos Ex. PW-13/I and PW 13/J.

Thereafter, accused Vikas was brought back at the police booth near

Qutub Road and after handing him over to HC Sadhu Ram, accused

Suresh @ Bona took them to Hanuman Mandir Gali near a khokha

where some bricks were lying and he got recovered one chura lying

there which was blood stained. After preparing the sketch of chura

Ex. PW13/K, it was sealed in a pullanda and was seized vide seizure

memo Ex. PW-13/L. Thereafter, accused Suresh took them to Banke

Birla Masjid where one Wasim met them at the gate of Masjid. At the

instance of accused Suresh @ Bona, a brown colour purse was got

recovered from inside the wall of Masjid, which on checking was

found to contain photographs of the deceased and some torn papers.

The same were seized vide seizure memo Ex. PW9/A. An application

for conducting Test Identification Parade of both the accused persons

was moved vide Ex. PW20/A. On 27th September, 2007, both the

accused persons refused to participate in TIP proceedings. An

application Ex. PW20/B was moved for conducting Test Identification

Parade of the recovered purse which was conducted by Metropolitan

Magistrate. Exhibits were sent to FSL. After completion of

investigation, charge sheet was submitted in the court.

6. Charge for offence under Section 302/34 IPC was framed

against both the accused to which they pleaded not guilty and claimed

trial. Prosecution examined 20 witnesses in support of its case. All

the incriminating evidence was put to both the accused, while

recording their statements under Section 313 Cr.P.C. Both of them

denied the case of prosecution. According to accused Vikas, he was

falsely implicated in this case at the instance of Laxman Kumar

Indoria who is his step-brother and is residing in front of his house.

He is a habitual complainant and is a police informer. He is desirous

to grab his property. He had come to police station on the morning of

the next day of the incident with some press reporters and asked him

to give a share in the property to him or threatened him to implicate

falsely in this case. According to him, he was lifted on the intervening

night of 17-18th September, 2007 from his house at about 02.00 a.m.

by Constable Arvind. Substantially similar plea was taken by accused

Suresh. According to him, the case was registered at the instance of

Laxman Indoria who is residing in front of his house and is informer

of the police. According to him, he was lifted on 18th September,

2007 from his house at about 11/11.30 pm by Constable Arvind and

then implicated in this case.

7. The accused examined two witnesses in support of their

defence DWI Smt. Sunita and DW2 Arti. DW1, Smt. Sunita is the

cousin of Laxman Indoria and accused Vikas @ Sunil. She testified

that Smt. Hardai, grand-mother of Laxman Indoria and Vikas @ Sunil

is one and the same. From the first marriage of Smt. Hardai there

were two children, namely, Babu Lal who is father of Vikas @ Sunil

and other is Jugal Kishore. After the death of her husband Smt.

Hardai entered into second marriage with Nathu Ram and from the

said marriage four children were born, namely, Ram Narain, Bhagwan

Dass, Madan Lal and Radhey Shyam. Ram Narain is the father of

Laxman Indoria. Relations between family members of accused and

Laxman were not cordial because Laxman is an informer of the police

and extorts money by blackmailing the persons. He resides opposite

the house of accused Vikas @ Sunil. The ground portion of the house

of accused Vikas @ Sunil has already been grabbed from his father by

elder brother of Laxman Indoria namely Raj Kumar Indoria. Laxman

Indoria was also demanding Rs. 5 Lacs from father of accused Vikas

who expired in November, 2009. Laxman threatened father of

accused Vikas that in case the demand is not fulfilled he will implicate

his children in false case. DW2, Aarti has deposed on the same lines

as DW1, Smt. Sunita that Laxman Indoria is her „jeth‟ and he is step

brother of her husband Vikas @ Sunil. Smt. Hardai is grandmother of

Laxman Indoria and her husband Vikas @ Sunil, first marriage was

with Chaman Lal and two children namely Babu Lal and Jugal

Kishore were born. Babu Lal is her father-in-law. After the death of

Chaman Lal, Smt. Hardai entered into a second marriage with Nathu

Ram. Four children were born out of the wedlock. One of them was

Sh. Ram Narain who is the father of Laxman Indoria. She further

deposed that her father-in-law Babu Lal expired on 8th October, 2009

and on his cremation, Laxman Indoria, his elder brother Raj Kumar

Indoria and their real uncle Madan Lal were also present and they had

spent money on the expenses for his cremation.

8. After hearing the parties and perusing the record, learned

Additional Sessions Judge vide impugned order held both the

appellants guilty of offence under Section 302/34 IPC and convicted

them separately. Feeling aggrieved by the said order, the present

appeal has been preferred.

9. We have heard Sh. Siddharth Aggarwal and Mr. Bhupesh

Narula, Advocate, for both the appellants and Ms. Ritu Gauba, learned

public prosecutor for State. It was submitted by learned counsel for

the appellant that it was a blind murder, however, prosecution has

based its case on the testimony of Laxman Indoria, and recovery of

certain articles at the instance of accused persons. Testimony of

Laxman Indoria has been severely attacked on the ground that he

proclaims himself to be an eye witness of the incident and wants the

court to believe that he had witnessed the entire incident. However,

his conduct was referred for submitting that in fact, he is not a witness

to the incident but is a witness of convenience for the prosecution who

claims to know the accused persons for last 20-25 years but denies

any relationship with them. However, the defence witnesses have

amply proved that he is related to the accused persons and was on

inimical terms with them. He is an interested witness. Although it

was fairly conceded that there is no rule of law that testimony of an

interested witness cannot be relied upon, but it was submitted that the

same should inspire confidence and the entire demeanour of the

witness makes it clear that he is not a man worthy of credence. Veer

Bahadur, PW-7 also claims to be an eye witness but he is hostile

regarding identity of the accused persons. He neither helps

prosecution nor the defence, inasmuch as, he deposed that he could

not see the accused persons‟ faces and saw their back only. Moreover,

prosecution has tried to give a colour of robbery to be the motive for

commission of crime but neither any charge of robbery was framed

nor the same stands proved, inasmuch as, the belongings of the

deceased were found lying at the spot. If the accused really intended

to rob the deceased, they would not have left the bags which were

found lying near him and the various articles recovered from the

person of the deceased. Even regarding arrest of the accused, it was

submitted that police officials have tried to give a colour as if the

accused persons were arrested in pursuance to a secret information.

However, there was no need of such secret information as it has come

on record that Laxman Indoria was known to the accused persons

from before and they were living in front of his house. That being so,

where was the difficulty for the police officials to nab them from their

house instead of waiting for some secret information to come and then

to arrest them. The recovery alleged to have been effected at the

instance of accused persons has also been challenged on the ground

that from accused Vikas, recovery of Iraqi Dinar of Rs.25,000/- was

alleged to have been effected. However, recovery simplicitor of any

foreign currency is no offence unless it is proved that it belonged to

the deceased. No evidence has come on record to show that the same

belonged to the deceased. Moreover, different versions are

forthcoming as to whether, it was Iraqi Dinar or dollar, which was

recovered at the instance of accused. As regards, recovery of knife at

the instance of accused Suresh, it was submitted that such knives are

easily available in the market. Moreover, no blood was detected on

the same. Further, the opinion of the concerned doctor was not sought

as to whether it was the weapon of offence with which crime was

committed. Moreover, there is no independent witness to the

recovery. As such the recovery of knife at the instance of the accused

is doubtful. As regards recovery of purse, it was submitted that the

same is alleged to have been recovered from an open space, which

was not in exclusive possession of either of the accused. As such

same does not connect them with the crime. As regards refusal on the

part of the accused persons to join test identification proceedings, it

was submitted that the same is inconsequential, inasmuch as, Laxman

Indoria already knew the accused persons from before. Therefore, no

purpose would have been served even if the accused would have

joined the proceedings. As such, it was submitted that prosecution

has miserably failed to prove its case beyond reasonable doubt and

both the accused are entitled to acquittal.

10. Per contra, it was submitted by learned public prosecutor for the

State that robbery was the motive for murder. The incident was

witnessed by Laxman Indoria and he has given a true and vivid

picture of the entire incident. There is no reason to disbelieve his

testimony. Moreover, subsequent to the arrest of the accused persons,

recovery was also effected at their instance viz. currency note of

25,000 dinar, purse, blood stained half pant and knife. All these

recoveries connect the accused with crime. Moreover, injuries on the

person of injured find corroboration from the medical evidence. The

impugned order does not suffer from any infirmity which calls for

interference. As such the appeals are liable to be dismissed.

11. We have given our thoughtful consideration to the respective

submissions of learned counsel for the parties and have perused the

record.

12. It has come on record through the testimony of PW-10 Sh.

Pritam Singh that on 16th September, 2007 his son Richpal had come

to Delhi by bus for going to Abu Dhabi. After arriving at Delhi,

Richpal made a telephone call to him that he had reached Delhi and

again a call was made that his flight was cancelled and he would go to

Abu Dhabi on 18th September, 2007 and would stay in Gurdwara in

the night. At about 12:30 a.m., he received a telephone call from the

police that some accident had taken place. He informed his relatives

who were residing in Delhi to enquire about the same from Police

Station Nabi Karim. Thereafter, he came to Delhi and came to know

that Richpal had been murdered by stabbing. When Richpal left the

village for Delhi, he was having Rs.7000/- cash, two bags, some

eatables, dollars to the tune of Rs.25,000/- and a mobile.

13. It has come in the statement of Vir Bahadur (PW-7) that on 17th

September, 2007, he was doing the duty of Chowkidar at Qutab Road.

At about 9:30 pm, he was going from Hanuman Mandir to Birla

Mandir side. After 3-4 minutes when he was coming back towards

the said Mandir, he saw a person lying unconscious in front of shop

No. 5635. Blood was oozing out from the injury as if somebody had

stabbed him. Two bags were lying near the said person. He saw two

persons running on the road. Since there was no street light, he could

not see the faces of those persons, but could see them only from their

back. He went to Police Chowki, Nabi Karim to inform the police.

When he came back, it was revealed that the person had died.

14. On receipt of telephone call regarding one person lying

unconscious ahead of Hanuman Mandir who was bleeding, DD No.

26A (Ex. PW2/A) was recorded and was sent by HC Layakram (PW2)

to ASI Ashwini Kumar (PW13) through Constable Amit (PW19), who

went to the spot along with constable Amit. Later on Inspector

Joginder Singh also joined them. The dead body was sent to MAMC

Mortuary. Post-mortem on the body of Richpal Singh was conducted

by Dr. Bheem Singh (PW-5), who gave his report Ex.PW5/A. On

examination, he found external injury No. 1, incised stab wound 5.5

cm x 2cm x cavity deep present over the left side of trunk in the

anterior axillary lying at the level of 8th rib, horizontally placed, inner

angle was obtuse, outer angle acute, situated 17 cm below the left

nipple and 13 cm above and outer to the umbilicus. On internal

examination in the neck region, there was presence of clotted and

fluid blood in the trachea. He opined that death was due to

haemorrhagic shock consequent upon visceral injuries due to stab

wound via injury No.1. Injury No. 1 was ante mortem, fresh in

duration and could be caused by single edged sharp weapon. Injury

No. 1 was sufficient to cause death in ordinary course of nature. Thus

the fact that Richpal met homicidal death is not in dispute.

15. The crucial question for consideration is who was responsible

for causing this homicidal death.

16. Prosecution has primarily relied upon the testimony of PW4

Laxman Kumar Indoria and PW7 Veer Bahadur.

17. So far as Veer Bahadur is concerned, testimony of this witness

is confined to the fact that he saw a person lying in front of shop

no.5632 in unconscious condition and blood was oozing out from his

injuries. Although, he also saw two persons running on the road,

however, he could not see them as street light was not on. This

witness was cross examined by ld. Public Prosecutor and in cross

examination he denied having stated to the police that he saw accused

persons running towards Hanuman Mandir at about 10.15 P.M. and

that he was not intentionally identifying them.

18. The star witness of prosecution is PW4 Laxman Indoria who

has deposed that on 17th September, 2007 at about 8 P.M. he had gone

to Chowk Singhara in his Santro car to meet his sister. On receipt of a

telephone call from his house at about 10.00 p.m. that some guests

have come to his house, he was returning from Chowk Singhara in his

Santro Car. At about 10.15 p.m. he reached near Qutub Road, M.C.D.

Store, Nabi Karim and saw both the accused across the road near

Transport Office/Shop no. 5632. They had caught hold of one person

and were scuffling with him and trying to snatch something.

Resistance was being offered by that person. There was a blue

coloured Tata 407, a cycle rickshaw parked there. Street light was

falling on the said person and the vehicles. The person whom the

accused persons had caught hold of and were robbing was a passenger

on the said cycle rickshaw. The rickshaw puller put down the two

bags of the passenger and ran away. While sitting in the car he asked

the accused persons not to trouble that man. However he did not

come out of the car as there was heavy traffic jam on that road at that

time and it was not possible to stop and park his car. On hearing this,

Suresh @ Bona took out a knife and stabbed that person while

accused Vikas @ Sunil caught hold of that person from the back.

Thereafter both the accused ran away towards gali Hanuman Mandir

with the knife. He went to his home. He looked after the guests and

took dinner with them. Thereafter he went to Railway Station to see

them off as they wanted to go to Jaipur. He got very late at the

railway station. From there he returned over there and found many

police officers present at the spot and a dead body was lying there. He

disclosed the entire incident to the police who recorded his statement.

Police seized two bags of that person from the spot which contained

daily wearing apparel, other articles and the passport of the deceased.

On search of the dead body, a ticket from Delhi to Abu Dhabi and

Rs.156 in cash were found. There were four currency notes in the

denomination of Rs. 1000/- each in the purse. Four photographs were

recovered from the bag of the deceased. One mobile phone was also

recovered from the search of the dead body. All these articles were

seized vide separate seizure memos. He further deposed that on 15 th

November 2007 he came to the court of Sh. Alok Aggarwal,M.M.

where he identified the accused persons to be the same accused who

stabbed Richpal Singh. He further deposed that both the accused are

very well known to him for the last 20-25 years. They are of criminal

background. He went on deposing that since the date he appeared as a

witness, there is threat to his life.

19. As claimed by prosecution he is the solitary eyewitness of the

incident. Although, there is no rule of law that a conviction cannot be

based on the solitary testimony of a witness, but it should be of such a

nature that Court can place implicit reliance on the same. A close

scrutiny of his deposition reveals that it does not inspire confidence

due to following:-

(i) The witness has made material improvements in his

deposition inasmuch as, he was confronted with various

portions of his statement recorded under Section 161

Cr.PC where various facts viz., when he reached the spot

the accused persons were scuffling with the deceased and

there was "Hathapai and Cheena Jhapati", there was

TATA 407 and cycle rickshaw parked there; accused were

present across the road near the transport office outside

the shop; the person whom the accused were robbing was

the passenger of cycle rickshaw, were not recorded.

These facts pertain to the basic substratum of the case.

Omission to mention these facts in his statement recorded

under Section 161 Cr.P.C. casts a serious doubt about his

witnessing the incident. In Sunil W. Sambhudayal Gupta

Vs. State (2010), 13 SCC 657 it has been laid down that

the omissions which amount to contradiction in material

particulars i.e. go to the root of the case/materially affect

the trial or core of the prosecution case, render the

testimony of the witness liable to be discredited.

(ii) The entire conduct of the witness is quite unnatural.

According to him when he was going to his house via

Qutub Road, MCD Store, Nabi Karim, he saw the accused

persons across the road outside Shop No.5632, catching

hold of one person, scuffling with him and trying to snatch

from him. He called out at the accused persons by sitting

in the car not to trouble that person. According to him,

accused Suresh took out a knife and stabbed that person

while accused Vikas caught hold of that person.

Thereafter they ran away from the spot. However, he did

not come out of the car as there was heavy traffic jam on

the road and it was not possible to stop the car. Assuming

this to be correct, the least which he could have done was

to inform the police or PCR about the incident and

admittedly this was not done. Things did not end here. He

went to his house, had dinner with the guests, went to see

them off to railway station and it was only at 1:30 a.m.

when he was returning from the railway station by the

same route, then, he saw many police officers present at

the spot and a dead body lying there, then he went to the

spot and gave statement to the police. This entire conduct

of the witness is very unnatural.





       (iii)    It was admitted by the witness that when accused were

               produced    in   the   Court   of   Sh.   Alok     Aggarwal,

Metropolitan Magistrate, they were in muffled face and he

identified them. In pursuance to a question put to the

witness as to how he recognised them, he replied that he

recognised them from their "walk/gait". He however

denied the suggestion that any of the accused are related

to him. He also denied that accused Vikas is son of his

real elder uncle or that accused Suresh @ Bona is his

brother-in-law. He, however, admitted that accused

persons are living in the same street in front of his house.

He denied the suggestion that cross case bearing FIR No.

378/07 under Section 341/321 IPC dated 04.11.2007

between him and Madan Mati was going on and he

appeared as witness. He also denied the suggestion that

he alongwith Constable Arvind had gone to the house of

the accused and asked them to dispose of their house and

give their share to him. However, it has come in the

statement of DW-1 Smt. Sunita and DW-2 Arti that this

witness is closely related to both the accused as Smt.

Hardai, grandmother of Laxman Indoria and accused

Vikas was one. Vikas is the son of Babulal who was born

out of the wedlock of Smt. Hardai with Chaman Lal,

whereas Laxman Indoria is the son of Ram Narayan, who

was born out of her second marriage with Nathu Ram. As

such, this witness and accused Vikas are step brothers. It

has further come in their testimony that while ground floor

portion of the house of accused Vikas was already

grabbed by elder brother of Laxman Indoria, Laxman

Indoria also demanded Rs.5 lakhs from the father of

accused Vikas and threatened to implicate his children in

false case, in case the demand is not made. DW2 Aarti has

also deposed that on 17th September, 2009 at about 02:00

a.m, Constable Arvind came to her house and enquired

about her husband and took him. House of Laxman

Indoria is opposite her house and he was witnessing the

entire thing. On the next morning at about 6:00/7:00 a.m.

Laxman Indoria came to police station with 2-3 press

reporters and in her presence demanded Rs.5 lacs or share

in the property from her husband and father-in-law Sh.

Babu Lal, otherwise threatened to implicate her husband

in this case.

There are a catena of decisions to the effect that defence

witnesses are entitled to same weight as that of

prosecution witnesses. In Banti @ Guddu vs. State of

M.P., 2004 SCC (Cri) 294, it was held that evidence of

defence witness is not to be ignored by courts. Like any

other witness, his evidence has to be tested on the touch

stone of reliability, credibility and trustworthiness. Similar

view was taken in Dudh Nath Pandey vs. State of U.P.,

1981 Cri LJ 618, where it was held that the defence

witnesses are entitled to equal treatment with those of the

prosecution. Courts ought to overcome their traditional

instinctive disbelief in defence witnesses. Relying upon

this authority in Munshi Prasad and Ors vs. State of

Bihar, AIR 2001 SC 3031, it was held that defence

witnesses are not to be treated differently from

prosecution witnesses. The evidence tendered by the

defence witnesses cannot always be termed to be tainted

only by reason of the factum of the witnesses being

examined by the defence. The defence witnesses are

entitled to equal respect and treatment as those of the

prosecution. The issue of credibility and trustworthiness

ought also to be attributed to the defence witnesses at par

with those of the prosecution. That being so, there is no

reason to disbelieve the testimony of DW-1 Smt. Sunita

and DW-2 Arti, that witness Laxman Indoria and accused

are related to each other and their relations are strained.

In fact, the same has also not been challenged by learned

public prosecutor, as even no suggestion to the contrary

was given to the witness. This material fact has not only

been suppressed by the witness, but in fact he even denied

the suggestion to this effect given by the defence counsel

In this scenario, the testimony of Laxman Indoria is

required to be scrutinised with great care and

circumspection.

(iv) The examination-in-chief of this witness was partly

recorded on 02.06.2008, it was deferred and at that time

he had deposed that a purse was also recovered from the

search of deceased. However, when he appeared on the

next date of hearing i.e. 24.07.2008 the witness suo-moto

clarified that there was no purse on the deceased. This

fact assumes significance, inasmuch as, it is the case of

prosecution that when the accused Suresh was

apprehended, in pursuance of his disclosure statement, he

got recovered one purse belonging to the deceased.

20. Under the circumstances, in our opinion, keeping in view the

fact that the entire conduct of the witness having witnessed the

incident is quite improbable and unnatural, and despite the fact that he

was related to the accused persons and relations were strained, not

only he tried to suppress the relationship, he also denied having any

relationship with them or any strained relations with them and

furthermore, material improvements were made in his deposition

affecting core issues, it will be highly unsafe to convict the accused

on the solitary testimony of this witness. It has been held time and

again by the Hon‟ble Supreme Court and this Court that when the

sentence is quite onerous, the burden also becomes heavy on the

prosecution to prove its case beyond any shadow of doubt.

21. It is the submission of learned Public Prosecutor for the State

that besides the oral testimony of Laxman Indoria, even the

circumstantial evidence proves the complicity of the accused in the

crime. It was submitted that the motive for committing the murder

was robbery. At the outset, it may be mentioned that neither the

charge sheet was submitted for offence of robbery nor any separate

charge for robbery was framed by learned Additional Sessions Judge.

Furthermore, it is not established beyond doubt that motive to commit

crime was robbery only because on personal search of deceased, from

his baniyan, Rs. 4,000/- in denomination of 1,000/- each along with

his passport, visa, electronic tickets from Delhi to Abu Dhabi, from

his shirt Rs. 156/- in currency and coins from the right pocket of his

pant, a NOKIA 1600 mobile phone were recovered. Near the dead

body, two bags containing clothes and daily use articles and four

photographs were recovered. If the intention of the accused was

really to rob the deceased, it is not understandable as to why they left

behind two bags which were found lying near the dead body and why

the articles and mobile phone recovered from the personal search of

the deceased were not taken by the accused. As such, a doubt is

raised regarding the intention of the accused to rob the deceased.

22. It is further the case of prosecution that on 19 th September,

2007, on the basis of secret information, both the accused were

apprehended at about 7:00 pm at Qutub Road near police picket,

Hanuman Mandir, Qutub Road behind MCD store. It does not appeal

to reason as to where was the occasion for the police officials to wait

for the secret information, inasmuch as, the accused were well known

to Laxman Indoria and they were living in front of his house. That

being so, for the purpose of apprehension of accused, police officials

could have straight away gone to the house of the accused and nabbed

them. But instead of doing so, as per prosecution version, on the basis

of secret information, they were arrested on 19th September, 2007. It

is the plea of accused Suresh that he was lifted on 18 th September,

2007 from his house at about 11/11:30 pm by Constable Arvind

whereas according to Vikas, he was lifted from his house on the

intervening night of 17/18th September, 2007 at about 2:00 am by

Constable Arvind. Keeping in view this plea of the accused, which

has been substantiated by DW2 Aarti that, on 17.09.2007, in late

night, at about 2 a.m., Constable Arvind came to her house and took

her husband coupled with the fact that the circumstances of the case

makes it clear that there was no need for the police officials to wait for

any secret information but the accused could have been apprehended

from their house and there is no independent witness to the arrest,

arrest of the accused as projected by the prosecution becomes

doubtful.

23. It is further the case of prosecution that after the arrest, the

accused persons were interrogated. Accused Vikas @ Sunil made a

disclosure statement Ex. PW-13/B. In pursuance to the disclosure

statement, he led the police officials to his house No. 6461/1, Gali

Hanuman Mandir, Nabi Karim from where he got recovered one half

pant/knicker which was stained with blood and one Iraqi Dinar of the

value of Rs. 25,000/- lying underneath a newspaper from his almirah,

which were separately seized. Admittedly, there is no independent

witness to the recovery of both these items despite the fact that

recovery is alleged to have been effected from the house of accused

and it has been admitted by both the police officials, i.e., ASI Ashwini

and Inspector Joginder Singh that family members of the accused

were present in the house at that time. No explanation is forthcoming

as to why they were not asked to join the recovery proceedings. Even

assuming for the sake of arguments that such recovery was effected,

the question is whether the same implicates the accused or not,

inasmuch as, half pant was sent to FSL. As per the report although

blood was detected on the same, which was of human origin but blood

group could not be opined. Thus, it cannot be said with certainty that

the blood, which was found on the half pant of the accused, was that

of the deceased. Similar view was taken in Sattatiya vs. State of

Maharashtra and Ors., (2008) 3 SCC 2010; State vs. Shahid Mian,

2010 (166) DLT 350 Moreover, there was no occasion for the accused

to retain blood stained half pant at his house after the commission of

offence. As such, this circumstance is not reliable to establish the

guilt of accused.

24. As regards recovery of Iraqi Dinar of the denomination of

Rs.25,000/- a discrepancy was pointed out by learned counsel for the

appellant that the father of the deceased has deposed that when his son

left he was having Rs.25,000/- dollars and even learned public

prosecutor gave a suggestion to this effect. That being so, the

currency which is alleged to have been recovered from the house of

accused Vikas was of Iraqi Dinar, therefore, it does not connect him

with the crime. Although, this discrepancy is very minor in as much as

being rustic villager, witness may not be able to differentiate between

the foreign currency by terming it as dollar instead of Iraqi dinar but

the fact remains that even if a foreign currency is recovered from the

house of the accused that, ipso facto, is not an offence unless it is

proved that it belonged to the deceased. No evidence has been led by

the prosecution to prove that this Iraqi Dinar belonged to deceased.

25. As far as accused Suresh is concerned, it is the case of

prosecution that in pursuance to the disclosure statement, Ex.PW13/A,

he led the police party to a wooden khoka near Hanuman Mandir,

Nabi Karim and got recovered one „chura‟ lying beneath the bricks.

Here again, there is no independent witness to the recovery.

Moreover, the „chura‟ was sent to FSL and as per the report of FSL,

blood could not be detected on the same. In the absence of detection

of blood on the „chura‟, it cannot be said that it was the weapon of

offence, which was used in the crime. Moreover, the weapon of

offence was never shown to the concerned doctor who conducted the

post-mortem of the deceased to seek his opinion whether the injury on

the person of deceased could have been inflicted by this weapon of

offence. Under the circumstances, even this chura does not connect

the accused with crime.

26. The other incriminating piece of evidence alleged against this

accused is recovery of „purse‟ at his instance from inside wall of

Bankey Birla Maszid. Recovery was alleged to have been effected in

the presence of PW-9 Wasim Raja, who deposed that one person

namely Suresh was in custody of police official and he got recovered

one purse, however, this witness does not say that accused who was

present in the court was the same who got the purse recovered and in

cross-examination, he clarified that he had not seen the face of the

accused accompanying the police. Under the circumstances, although

according to this witness one Suresh got recovered one purse,

however, from his deposition it is not established that it was the same

Suresh who got the purse recovered who was wanted in this case.

After recovery of purse on 23.10.2007, an application Ex.PW12/A

was moved by Inspector Joginder Singh for conducting Test

Identification Parade of the case property. On 29.10.2007,

proceedings were conducted by Shri Vidiya Prakash (PW12),

Metropolitan Magistrate. As per proceedings Ex.PW10/A duly proved

by learned Metropolitan Magistrate, purse was correctly identified by

complainant as belonging to his son, however, recovery of this purse

simplicitor will not be sufficient to connect the accused with the

crime. Although, it raises a pointing finger towards the accused but

suspicion howsoever grave, is not sufficient to convict the accused.

The presumption of innocence always tilts in favour of the accused

and the burden of proof is heavy upon the prosecution to establish its

case beyond reasonable doubt.

27. The other incriminating piece of evidence alleged against the

accused persons is their refusal to join Test Identification Proceedings

conducted by learned Metropolitan Magistrate. As per record, on

20.09.2007, an application Ex.PW11/A for conducting Test

Identification Parade of both the accused was moved by Inspector

Joginder Singh before learned Metropolitan Magistrate. On

27.09.2007, Shri Jagdish Kumar, M.M. (PW11) went to Tihar Jail,

where both the accused refused to join TIP proceedings as per TIP

proceedings, Ex.PW11/2 and PW11/3. In normal course, refusal to

join Test Identification Proceedings in the absence of satisfactory

explanation, raises an adverse inference against the accused that in

case they had joined the proceedings they would have been identified

by the witnesses. However, things are somewhat different in the

instant case because the accused were to be identified by Laxman

Indoria who was previously known to the accused persons being their

relative. That being so, no purpose would have been served even if the

accused had joined the proceedings. In fact, according to Laxman

Indoria, even when the accused were produced in muffled face before

the Court of Sh. Alok Aggarwal, learned MM he could identify them

from their walk/gait. That being so in the peculiar circumstances of

the present case, refusal to join Test Identification Proceedings by the

accused does not lead to any adverse inference against them.

28. In Harendera Narain Singh vs. State of Bihar, AIR 1991 S.C.

1842, their Lordships of the Supreme Court had reiterated the well

known principle of the criminal jurisprudence law that:

"....... The basic rule of criminal jurisprudence is that if

two views are possible on the evidence adduced in a case

of circumstantial evidence, one pointing to the guilt of

the accused and the other to his innocence, the Court

should adopt the latter view favourable to the

accused....."

29. In Data Xiva Naique Desai and Another vs. The State, AIR

1967 Goa, Daman and Diu 4, Hon‟ble Court reiterated the well

known principles of the criminal jurisprudence which are reproduced

as under:

"The learned Judge would be advised to observe the

following general rules when he is dealing with the

serious question of the guilt or innocence of persons

charged with crime: (i) The onus of proving everything

essential to the establishment of the charge against the

accused lies on the prosecution; (ii) The evidence must

be such as to exclude to a moral certainty every

reasonable doubt of the guilt of the accused; (iii) In

matter of doubt it is safer to acquit than to condemn; for

it is between several guilty persons should escape than

that one innocent person suffer; and (iv) the hypothesis

of delinquency should be consistent with all the facts

proved."

30. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957

SC 637, it was held by the Apex Court that in criminal cases mere

suspicion, however, strong, cannot take the place of proof. The Court

must also take into consideration that an accused is presumed to be

innocent till charges against him are proved beyond reasonable doubt.

Mere suspicion, however, strong it may be, cannot take the place of

legal proof.

31. Moreover, in Kali Ram vs. State of Himachal Pradesh, AIR

1973 SC 2773, the Apex Court had observed as follows:-

"Another golden thread which runs through the web of

the administration of justice in criminal cases is that if

two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and the

other to his innocence, the view which is favourable to

the accused should be adopted. This principle has a

special relevance in cases wherein the guilt of the

accused is sought to be established by circumstantial

evidence. Rule has accordingly been laid down that

unless the evidence adduced in the case is consistent

only with the hypothesis of the guilt of the accused and

is inconsistent with that of his innocence, the court

should refrain from recording a finding of guilt of the

accused. It is also an accepted rule that in case the court

entertains reasonable doubt regarding the guilt of the

accused, the accused must have the benefit of that doubt.

Of course, the doubt regarding the guilt of the accused

should be reasonable : it is not the doubt of a mind which

is either so vacillating that it is incapable of reaching a

firm conclusion or so timid that it is hesitant and afraid

to take things to their natural consequences. The rule

regarding the benefit of doubt also does not warrant

acquittal of the accused by resort to surmises,

conjectures or fanciful considerations.

Although the benefit of every reasonable doubt should

be given to the accused, the courts should not at the same

time reject evidence which is ex-facie trustworthy on

grounds which are fanciful or in the nature of

conjectures.

The guilt of the accused has to be adjudged not by the

fact that a vast number of people believe him to be guilty

but whether his guilt has been established by the

evidence brought on record. Indeed, the courts have

hardly any other yardstick or material to adjudge the

guilt of the person arraigned as accused. Reference is

sometimes made to the clash of public interest and that

of the individual accused. The conflict in this respect, in

our opinion, is more apparent than real.

It is no doubt true that wrongful acquittals are

undesirable and shake the confidence of the people in the

judicial system, much worse, however, is the wrongful

conviction of an innocent person. The consequences of

the conviction of an innocent person are far more serious

and its reverberations cannot but be felt in a civilized

society. All this highlights the importance of ensuring as

far as possible, that there should be no wrongful

conviction of an innocent person. Some risk of the

conviction of the innocent, of course, is always there in

any system of the administration of criminal justice.

Such a risk can be minimised but not ruled out

altogether."