Delhi High Court
Nipun Gola @ Nikhil vs State on 3 April, 2014
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 7/2014
Reserved on: 19th March, 2014
% Date of Decision: 3rd April,2014
NIPUN GOLA @ NIKHIL ....Appellant
Through Mr. Ajay Verma with Mr. Prateek Sisodia
And Mr. Gaurav Bhattacharya,
Advocates.
Versus
STATE ...Respondent
Through Ms. Rajdipa Behura, APP.
+ Crl. Appeal 43/2014
AMIT @ CHUNNU ....Appellant
Through Mr. Pramod Kumar Dubey with
Mr. Shiv Pande and Mr. Nishaank
Mattoo, Advocates.
Versus
STATE ...Respondent
Through Ms. Rajdipa Behura, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE G. P. MITTAL
SANJIV KHANNA, J.
Nipun Gola @ Nikhil and Amit @ Chunnu, two appellants
impugn their conviction for murder with common intention, of Sunil
by Judgment dated 24th September, 2013 in Sessions Case No.
91/2011 arising out of FIR No. 186/2011. By order of sentence dated
26th September, 2013, two appellants have been sentenced to life
imprisonment with fine of Rs.10,000/- each and in default thereof
they have to undergo rigorous imprisonment for one year. Benefit of
Section 428 Code of Criminal Procedure ("Cr.PC" for short) has been
granted.
2. There is hardly any debate that dead body of Sunil was found
on 21st June, 2011 at about 12.40 PM at A-4/48 and 49, New Kondli,
Delhi. This information was received by the Police Control Room
from a mobile phone and was recorded vide DD No. 2A. Thereupon
Const. Krishan Yadav (PW8), PS New Ashok Nagar, Delhi along
with SI Neetu Kumar (PW13) visited the spot and on the third floor in
one of the rooms on the north-west side, dead body of a male aged
between 18-20 years was found lying on the floor. There were four
rooms on the third floor of the said house. A checked ligature cloth
having two knots was tied around the neck of the body and two
pillows soaked in blood were lying under the neck of the body.
There were blade cut marks on both hands and on both sides of the
chest. Clothes had been removed and Sunil was wearing an
underwear. The room had been ransacked and the belongings were
lying scattered. On enquiry by Const. Krishan Yadav (PW8) and SI
Neetu Kumar (PW13), it transpired that parents of the deceased had
gone to their village in Nainital. SI Neetu Kumar (PW13) stated that
lock of the iron box was found broken. Crime Team was called to
the spot to inspect the scene of crime and submitted their report. SI
Neetu Kumar (PW13) prepared the rukka (Ex. PW13/B) and the same
was sent to the police station for registration of the FIR. Dead body
of Sunil was sent to LBS Hospital Mortuary for preservation and
thereafter the investigation was entrusted to Insp. Suraj Pal Giri
(PW5).
3. The aforesaid factual position has been supported by Savitri
Devi (PW3) who used to reside in another room on the third floor of
the same property and has deposed that at about 12.00 noon she
noticed that curtain of the room where Sunil was residing was
protruding outside but the door was closed. She then went near the
door to see whether anyone was present in the room, but no
movement was noticed. Thereafter, she called the landlady who
resided on the ground floor, who in turn called her son Manoj on the
telephone. Manoj reached the spot and sometimes thereafter police
reached the spot and entered the room. Sunil was lying on the floor
with a cloth covering his body upto neck. A rope was tied around his
neck and Sunil was dead.
4. In the post mortem report (Ex. PW2/A) which was proved by
Dr. Vinay Kumar Singh (PW2), he deposed that death was caused
due to Asphyxia due to ligature strangulation caused upon the neck.
All injuries were ante mortem in nature. Ligature strangulation was
sufficient to cause death in the ordinary course of nature. He also
pointed out that the deceased had consumed alcohol prior to his death
and death in this case was homicidal.
5. The main issue and contention raised in the present appeal is
whether the two appellants were perpetrators of the crime as held by
the Trial Court. There are no eye witnesses and the prosecution relies
solely upon circumstantial evidence. FIR (Ex. PW1/A) does not
name the two appellants but states that on 20th June, 2011 at about 10
or 10.30 AM in the morning two boys along with deceased had
entered the room in question and possibly the said unidentified
boys/persons had committed the murder and therefore, an offence
under Section 302 IPC was made out. On the question of
identification of the two appellants as the perpetrators, we have to
refer to the testimony of Savitri Devi (PW3) and Ramesh Singh
Rawat (PW9) father of the deceased.
6. Savitri Devi (PW-3) in her court deposition has stated that
Sunil along with his family used to reside in a room infront of her
room on the same floor. In the month of May-June in the said year it
was a Sunday. Sunil was present in his room but his parents had gone
to the village for the engagement of his sister. Younger brother of
Sunil left at about 10 A.M. Immediately after that Sunil went to the
market and returned with two boys whom she identified as the two
appellants, who were present in Court. They were in the room
throughout the day and the main door of the room was locked. After
taking meals at 11 P.M., she went on the roof to sleep. She returned
in the morning at 12 noon and noticed the curtain outside the door of
Sunil's room but the door was closed. As she did not notice any
movement, doubts arose. She called the landlady, who called her son
Manoj, who came there. Police reached and on opening the door,
dead body of Sunil was found.
7. On cross-examination by the Public Prosecutor, Savitri Devi
(PW3) accepted that it was the month of June and she did not notice
whether it was a rope or cloth tied around the neck of Sunil. In the
cross-examination, PW-3 accepted that she did not know the names
of the appellant-accused and the family of deceased had recently
shifted to the room i.e. about 15 days prior to the occurrence and on
Saturday parents of Sunil had gone to their village and before that she
had not seen any friend of Sunil visiting the room. On Monday dead
body of Sunil was found in the room and there were four families of
tenants residing on the third floor. In all about 30 persons used to
reside in the four tenanted rooms on the third floor and they used to
interact with each other. During the day, she did not hear any noise
from the room of Sunil but at 11 P.M. when she went up to the roof to
sleep, volume of TV in Sunil's room was very high though she did
not remember whether she had stated this fact to the police. She did
not know whether the accused were friends of Sunil nor did she know
if Sunil was addicted to drugs or anything else. On further cross-
examination, she has stated:
".........It is correct that I saw Sunil in the
company of accused for few seconds while
they crossed in front of my room. Vol.
Accused and Sunil after climbing the stairs
crossed in front of my room, open the lock of
Sunil's room and went inside. Sunil opened
the lock of his room. When Sunil was opening
the lock both the accused were facing towards
the door, their backs were facing towards my
room. Vol. After turning their neck they were
looking on the sides.
The distance between the stairs and the door of
the room of the Sunil was around 5 feet. It is
wrong to suggest that my room is not opposite
to the room of Sunil. On being asked
repeatedly the witness gave the same answer
about the position of her room and room of
Sunil.......There are three tenants at the 2nd
floor of the building. I did not see either Sunil
or anyone leaving the room........It is correct
that I got suspicion since the door of room of
Sunil was not locked."
8. The landlady Rajanti has appeared as PW12 but her son Manoj
did not appear as a witness. Rajanti (PW12) has deposed that she had
rented out one room to Ramesh Rawat (PW9) on 5th June, 2011 at
Rs.2000/- month and one room on the same floor was rented out to
Sumitri Devi. Leading questions were put to her regarding the name
of the lady tenant and Rajanti (PW12) stated that the name of the lady
was Savitri Devi and not Sumitri Devi. However, in the cross-
examination, she accepted that apart from Ramesh Rawat (PW9)
there were other tenants one of whom was Savitri Devi.
9. The scaled site plan Exhibit 5/A discloses the room of Savitri
Devi (PW-3) and the room where the body of the deceased was
found. There was a common kitchen, a toilet and a staircase. On the
same floor, there was another room in possession of one Harkesh as
per site plan Exhibit PW-5/A, which was locked. Thus, as per the
statement of Savitri Devi (PW-3), she had seen the two appellants
with Sunil in the morning hours of 20th June, 2011 at about 10-11
A.M. Thereafter, she did not see Sunil and she has also claimed that
she did not notice Sunil or anyone leaving the room. PW-3 had
identified the two appellants in the Court as the two boys, who had
come to meet Sunil.
10. Ramesh Singh Rawat (PW-9) has deposed that he had two sons
and a daughter and had occupied the room fifteen days prior to the
occurrence. On 18th June, 2011 at 9 P.M. he alongwith his wife and
daughter left for his native village in Nainital leaving behind his sons
Sunil and Deepak. On 20th June, 2011 at 3 P.M. he received a call on
his mobile No. 9818315304 from Sunil's mobile number
9871579820. Sunil had then enquired, how much money was lying in
the box but he did not tell him and disconnected the phone.
Thereafter, Sunil called him again two-three times enquiring about
the same. He had told him that Rs.15,000/- were lying in the box.
While speaking to Sunil, he heard some voices and on being asked,
Sunil stated that Amit and Nikhil were present in the house with him.
He even spoke to Amit on the phone. He identified the two
appellants, Amit and Nikhil, in the Court as residents of Mandawali
and friends of Sunil who used to visit his house as they had earlier
resided in Mandawali for 15 years. He further deposed, that
Rs.15,000/- were part sale proceeds of his land in Nainital and were
kept for the marriage of his daughter and were in the form of three
bundles of Rs.50/- denomination. One of the bundles was of new
currency notes. On 21st June, 2011 at about 2 P.M. he received a call
from Delhi Police informing him that his son Sunil had been
murdered. They reached Delhi on 22nd June, 2011 and since the
house was locked, they went to the police station and collected the
key. He then went to LBS Hospital Mortuary and identified the body
of Sunil. He had taken with him to Nainital, 20 new currency notes
of Rs.50/- out of one bundle, thus, leaving behind Rs.14,000/-. Out of
the 20 new currency notes, he had utilised 18 currency notes and two
new currency notes were still with him. Rs.14,000/- which were
lying in the room were missing. He handed over the said remaining
two new currency notes to the police which were seized vide seizure
memo Exhibit PW-9/B.
11. On 24th June, 2011 at about 4 P.M. he had accompanied the
police officer in search of the accused and they were
apprehended on his pointing out and arrested vide arrest memos
Exhibit PW9/C and Ex. PW/D. On personal search of Nikhil four
new currency notes of Rs.50/- denomination were recovered from his
pants and three new currency notes of Rs.50/- and a mobile phone
without SIM was recovered from Amit's pants. The currency notes
recovered were of the same series as two Rs.50/- notes which PW-9
had already given to the police. The appellants were brought to the
house in muffled faces and shown to Savitri Devi (PW3), who
identified them and stated that both the appellants had come to the
house on the day of occurrence, i.e., 20th June, 2011 and had
remained there. Ramesh Rawat (PW9) further deposed that when he
had spoken to Sunil on telephone, he believed that Sunil was
intoxicated. He identified the mobile phone, which was marked
Exhibit P-4 and stated that it belonged to his son Sunil. The currency
notes seized from Nikhil and Amit were marked Exhibits P-2 and P3
respectively.
12. In the cross-examination, PW-9 accepted that Sunil had made
three or four calls however, this fact was not mentioned in his
statement under Section 161 marked Exhibit PW-9/DA. He stated
that it was incorrect to suggest that Sunil had informed him about
money being stolen, upon which he asked Sunil to call the police as
he was busy in the engagement of his daughter. He denied the
suggestion that Sunil had called the police thrice and made a
complaint. He had also denied the suggestion that Sunil had informed
him that his friends had left. He further denied the suggestion that he
had given Rs.50/- currency notes and the mobile phone to the police
to be planted on the appellants. Ramesh Rawat (PW9) claimed that
Sunil was facing a criminal case and volunteered that he and
appellant Amit were involved in a criminal case at Juvenile Court (No
such material/documentary evidence has been placed on record). He
also stated that his son was not addicted to charas and ganja or any
other intoxicant. However, he had asserted that it was correct that
when he spoke to his son, he appeared to be intoxicated.
13. The call records of mobile phone of Sunil bearing No.
9871579820 for the period 1st June, 2011 to 30th June, 2011 were
proved by Vishal Gaurav (PW4) as Exhibit PW-4/A. He further
proved call records relating to IMEI Nos. 911100850216000 and
911100850215990 as per the records of Bharti Airtel Limited, which
were marked as Exhibit PW-4/C and D respectively.
14. Call records of mobile No. 9871579820 on 20th June, 2011 are
as under:
"
Calling No. Called No. Date Time Dur( Cell 1 Cell 2 Call IMEI IMSI Type Roam
s) Type No. SMSC NW
9818315304 9871579820 20-jun- 07:42:08 32 238_9361 238_9361 IN 353108 404100 PRE -
11 025569 220083
190 469
9871579820 8527606004 20-jun- 08:57:54 26 238_46761 238_9361 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 8527606004 20-jun- 08:58:33 5 238_46761 238_9361 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 9540453086 20-jun- 08:58:54 41 238_46761 238_46761 OUT 353108 404100 PRE -
11 025569 220083
190 469
9223492234 9871579820 20-jun- 09:13:36 0 238_9361 - SMT 353108 404100 PRE - 9032
11 025569 220083 3550
9871579820 8527606004 20-jun- 09:29:04 68 238_46761 238_9361 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 9540453085 20-jun- 09:30:32 47 238_46761 238_9361 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 8527606004 20-jun- 09:48:56 29 238_46761 238_46761 OUT 353108 404100 PRE -
11 025569 220083
190 469
9810491329 9871579820 20-jun- 09:51:03 38 238_46761 238-46761 IN 353108 404100 PRE -
11 025569 220083
190 469
9211988034 9871579820 20-jun- 09:54:12 33 238_46761 238_46761 IN 353108 404100 PRE -
11 025569 220083
190 469
9871579820 8527606004 20-jun- 10:10:40 48 249_15621 249_15621 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 8527606004 20-jun- 10:15:32 19 249_15621 249_15621 OUT 353108 404100 PRE -
11 025569 220083
190 469
1426BC6538 9871579820 20-jun- 12:43:16 0 238_9361 - SMT 353108 404100 PRE - 9810
1C0623 11 025569 220083 0519
1426BC6538 9871579820 20-jun- 12:43.28 0 238_9361 - SMT 353108 404100 PRE - 9810
1C0623 11 025569 220083 0519
9871579820 9815315304 20-jun- 13:57:48 32 238_46761 238_46761 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 100 20-jun- 15.51:45 16 238_46761 238_46761 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 100 20-jun- 15:52:06 13 238_46761 238_46761 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 100 20-jun- 15:52:29 10 238_46761 238_46761 OUT 353108 404100 PRE -
11 025569 220083
190 469
9871579820 9818315304 20-jun- 15.55:57 53 238_46761 238_9361 OUT 353108 404100 PRE -
11 025569 220083
190 469
9211988034 9871579820 20-jun- 15.57:36 31 238_9361 238_9361 IN 353108 404100 PRE -
11 025569 220083
190 469
9871579820 100 20-jun- 15:58:24 3 238_46761 238_46761 OUT 353108 404100 PRE -
11 025569 220083
190 469
9211988034 9871579820 20-jun- 15.58:32 71 238_46761 238_9361 IN 353108 404100 PRE -
11 025569 220063
190 469
9871579820 100 20-jun- 16.01:44 4 238_46761 238_46761 OUT 353108 404100 PRE -
11 025569 220013
190 469
9871579820 100 20-jun- 16.03:31 54 238_46761 238_9361 OUT 353108 404100 PRE -
11 025569 220083
190 469
9818315304 9871579820 20-jun- 16.16.14 115 238_9361 238_46761 IN 353108 404100 PRE -
11 025569 220083
190 469
1426B28969 9871579820 20-jun- 16:17:07 0 238_46761 - SMT 353108 404100 PRE - 9810
3DBCC6 11 025569 220083 0519
9211988034 9871579820 20-jun- 16.21:05 171 238_46761 238_46761 IN 353108 404100 PRE -
11 025569 220083
190 469
9211988034 9871579820 20-jun- 16.47:35 72 238_9361 238_9361 IN 3531080 404100 PRE -
11 2556919 220083
0 469
9211988034 9871579820 20-jun- 17:47:17 93 238_9361 238_9361 IN 353108 404100 PRE -
11 025569 220083
190 469
15. What is clearly discernible from the call records is that the
deceased-Sunil had extensively used the mobile phone on 20th June,
2011 and calls were received from and made to various numbers. It is
also discernible that the deceased had made a call to his father on
mobile No. 9818315304 on 20th June, 2011 a number of times
between 13:57 to 17:47 P.M. In between these phone calls, telephone
calls were made to the police on No. 100.
16. Call records of Ramesh Rawat (PW9), i.e., telephone No.
9818315304 have not been placed on record by the prosecution. The
police control room forms relating to calls made from telephone No.
9871579820 though exceedingly relevant and important have not
been placed on record by the prosecution. The call records reveal that
at least six phone calls were made to No.100 from telephone
No.987159820 between 15:51 to 16:03 P.M. on 20th June, 2011. The
conversation and the noting recorded by the police control room were
significant and vital as they would have thrown light on what
transpired and what was actually happening at that time. As noticed
above, PW-9 in his Section 161 Cr.P.C. statement marked Exhibit
PW-9/DA had not stated that there were repeated exchange of calls
between him and Sunil on 20th June, 2011. Ramesh Rawat (PW-9)
had stated that his other son, Deepak had stayed back with the
deceased-Sunil in Delhi. Deepak was not interrogated and was not
produced or deposed as a witness. PW-9 in his deposition has
claimed that Deepak had told him that at the time of incident he was
not in the house and was away with his friends but even this fact was
not mentioned in the statement of Ramesh Rawat (PW-9) recorded
under Section 161 Cr.P.C. marked Exhibit PW-9/DA as was accepted
by PW-9 in his cross-examination.
17. Appellants herein had filed an application under Section 91 of
the Code of Criminal Procedure before the Trial Court for production
of police control room records regarding calls made to No. 100 on 20th
June, 2011 between 3.51 P.M. to 4.03 P.M. By order dated 6th
September, 2011, notice was issued and thereupon on 2 nd November,
2012, report was submitted by SHO, Police Station, New Ashok
Nagar regarding the calls made to No. 100. The report submitted by the
SHO, Police Station Ashok Vihar, is not on Trial Court record. It is also
not available in the police records. Learned Additional Public Prosecutor
was asked to obtain police control room records relating to the calls
but it has been stated that the call records in question have been
weeded out or erased and are not available.
18. Even a layman examining the call records Exhibit PW-4/A
could have realised the significance and value of the details/recording
made at No. 100, looking at the timing and sequence and the calls
exchanged between telephone Nos. 987159820 and 9818315304
between 1.57 to 5.47 pm. It is not understandable why and for what
reason PCR forms were not obtained and filed. PW-9 claims that he
had received a telephone call from Sunil stating that he wanted
money or whether and how much money lying in the house etc., but
there is no explanation why and for what reason PW-9 did not get in
touch with his other son Deepak, who was in Delhi. Spate of calls
made and exchanged was unusual and indicative of something
undesirable and discomforting happening. Due to absence of call
records of Ramesh Rawat (PW-9), it cannot be ascertained whether
PW9 called the police or got in touch with Deepak at that time. As
per Savitri (PW-3), Deepak had left the room at about 10 A.M. on
20th June, 2011. It is difficult to accept and believe that Deepak did
not return to his residence at all thereafter for more than 24 hours till
12 noon on 21st June, 2011. Deepak's whereabouts have not been
investigated and adverted to by any of the witnesses.
19. It is also intriguing to note that there was a lull and no calls
were made by PW-9 after the last call was made by him at 5.47 P.M.
in the evening on 20th June, 2011 till next day 2.00 PM on 21st June,
2011 when police made a call and informed him as to the murder. In
case Sunil was not picking up or responding, it was natural and
normal for PW-9 to get in touch with his other son Deepak and make
inquiries. Conduct of PW9 is unnatural and failure to adduce and
collect relevant and crucial evidence goes against the prosecution.
20. Recovery of the mobile phone with IMEI No.
911100850215990 leaves behind unanswered questions and is not
free from doubts. As per the details furnished by Vishal Gaurav
(PW-4), the said instrument was used on 4th June, 2011 with mobile
No. 8527606004 to make two calls and for making 13 calls with SIM
No. 9871579820 between 5th to 7th June, 2011 and was used with SIM
No.9818315304 on 5th June, 2011 to make one call. The said
instrument i.e. with IMEI No. 911100850215990 was neither used to
make or receive any calls or SMS after 7th June, 2011. The said
instrument was not in use on the date of the occurrence, i.e., 20th June,
2011 and was also not used after the occurrence. IMEI number in
which SIM No. 987159820 was used as per Exhibit PW-4/A was
different, being 353108025569109. We do not know what happened
to the said mobile phone instrument. There is no evidence to suggest
and none of the witnesses have deposed that the said mobile phone
was missing and was not traceable on or after 21st June, 2011. In
these circumstances, we are not inclined to rely upon the alleged
recovery of the mobile instrument with IMEI No. 911100850215990
from the pocket of Amit. The phone it appears was planted.
21. Similarly, the so-called recovery of three new currency notes of
Rs.50/- from Amit and four bank notes of Rs.50/- from Nikhil, as per
the deposition of Ramesh Rawat (PW-9) and the police officers is
debatable and not proved beyond doubt. Ramesh Rawat (PW-9) has
stated that Rs.14,000/- were stolen and taken away. The alleged
recoveries from Appellants Nikhil and Amit were that of only four
and three currency notes. It must also be noted that the balance,
including the two bundles was not found.
22. Savitri Devi (PW-3) has stated that she had neither seen the
two appellants nor Sunil after 10/11 AM on 20th June, 2011 but it
cannot be ruled out that the two appellants may have left the room
and gone when Sunil was alive and a third person may have entered
the room. It is apparent that the building in question had a number of
rooms, which were occupied by different persons/tenants. There
were other rooms in occupation of third parties, on the same floor.
There was a lot of movement and footfalls in the property.
23. As already stated above and at the risk of repetition we record
that Deepak was present in Delhi but his absence for a period of more
than 24 hours, including his absence at night from the room raises
questions and makes the prosecution version highly debatable. There
is no material and evidence to show where was Deepak during this
period and why and for what reason he did not come back to the
room. It is apparent that something unusual was happening in the
room and telephone calls were made at No. 100 and there was
exchange of calls with PW-9. In such circumstances, it was natural
and normal for PW-9 to get in touch with his son Deepak and he
would have asked him to go to the room or made inquiries about
well-being of Sunil. Calls records of Ramesh Singh Rawat (PW9) as
noticed above, were not filed. PW-9's deposition along with calls
made at No. 100, do indicate that, he (PW-9) suspected foul play. As
per the prosecution version, PW-9 did not call and speak to Sunil on
21st June, 2011 and at about 2 P.M., PW-9 was called by the police
and informed about death/murder of Sunil.
24. Failure to produce evidence and elucidate as to the
whereabouts of Deepak, to produce Deepak as a witness, his
purported absence of more than 24 hours, failure to produce police
control room records so as to ascertain and verify the nature of the
calls made from the mobile phone being used by the deceased, leaves
huge gaps and casts doubts about the prosecution version. These
aspects and gaps are not insignificant or inconsequential and cannot
be ignored as mere lapse in the investigation. In the present case, this
has damaged and impaired the prosecution case, making it unreliable
and vulnerable to the charge, that the allegations have not been
established beyond reasonable doubt.
25. A Division Bench of this Court of which one of us (Sanjiv
Khanna, J.) was a member in Sudhir Kumar v State Crl.A No.
605/2013 decided on 2nd September, 2013 held as under:
"24. ......... The discrepancies and gaps noticed in the
prosecution case mentioned above are significant and not
illusionary. Appellants have succeeded in denting the
prosecution version and have created doubts as to the
actual story. It is apparent that certain factual aspects have
been held back and have not been brought on record,
creating grave suspicion. In some cases, lack of or
improper investigation is ignored but in the present case
the consequences or failure has resulted in incompleteness
and uncertainty which leave a number unanswered queries
and silence on material aspects. It causes and creates
confusion and ambiguity on the involvement of the
appellants."
26. The detailed discussion on the aspect can be found in Dayal
Singh v. State of Uttaranchal, (2012) 8 SCC 263 wherein it has been
observed:
"19. Now, we will deal with the question of defective or
improper investigation resulting from the acts of
omission and/or commission, deliberate or otherwise, of
the investigating officer or other material witnesses, who
are obliged to perform certain duties in discharge of
their functions and then to examine its effects. In order
to examine this aspect in conformity with the rule of law
and keeping in mind the basic principles of criminal
jurisprudence, and the questions framed by us at the very
outset of this judgment, the following points need
consideration:
(i) Whether there have been acts of omission and
commission which have resulted in improper or
defective investigation.
(ii) Whether such default and/or acts of omission and
commission have adversely affected the case of the
prosecution.
(iii) Whether such default and acts were deliberate,
unintentional or resulted from unavoidable
circumstances of a given case.
(iv) If the dereliction of duty and omission to perform
was deliberate, then is it obligatory upon the court to
pass appropriate directions including directions in regard
to taking of penal or other civil action against such
officer/witness.
20. In order to answer these determinative parameters,
the courts would have to examine the prosecution
evidence in its entirety, especially when a specific
reference to the defective or irresponsible investigation
is noticed in the light of the facts and circumstances of a
given case."
27. After recording the aforesaid point for consideration, the
Supreme Court referred to earlier pronouncements which throw light
on the subject in the following words:-
"27. Now, we may advert to the duty of the court in such
cases. In Sathi Prasad v. State of U.P. [(1972) 3 SCC
613 : 1972 SCC (Cri) 659] this Court stated that it is
well settled that if the police records become suspect and
investigation perfunctory, it becomes the duty of the
court to see if the evidence given in court should be
relied upon and such lapses ignored. Noticing the
possibility of investigation being designedly defective,
this Court in Dhanaj Singh v. State of Punjab [(2004) 3
SCC 654 : 2004 SCC (Cri) 851] , held: (SCC p. 657,
para 5)
"5. In the case of a defective investigation the court has
to be circumspect in evaluating the evidence. But it
would not be right in acquitting an accused person solely
on account of the defect; to do so would tantamount to
playing into the hands of the investigating officer if the
investigation is designedly defective."
28. Dealing with the cases of omission and commission,
the Court in Paras Yadav v. State of Bihar[(1999) 2
SCC 126 : 1999 SCC (Cri) 104 : AIR 1999 SC 644]
enunciated the principle, in conformity with the previous
judgments, that if the lapse or omission is committed by
the investigating agency, negligently or otherwise, the
prosecution evidence is required to be examined dehors
such omissions to find out whether the said evidence is
reliable or not. The contaminated conduct of officials
should not stand in the way of evaluating the evidence
by the courts, otherwise the designed mischief would be
perpetuated and justice would be denied to the
complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of
Gujarat [(2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , the
Court noticed the importance of the role of witnesses in
a criminal trial. The importance and primacy of the
quality of trial process can be observed from the words
of Bentham, who states that witnesses are the eyes and
ears of justice. The Court issued a caution that in such
situations, there is a greater responsibility of the court on
the one hand and on the other the courts must seriously
deal with persons who are involved in creating designed
investigation. The Court held that: (SCC p. 398, para 42)
"42. Legislative measures to emphasise prohibition
against tampering with witness, victim or informant
have become the imminent and inevitable need of the
day. Conducts which illegitimately affect the
presentation of evidence in proceedings before the
courts have to be seriously and sternly dealt with. There
should not be any undue anxiety to only protect the
interest of the accused. That would be unfair, as noted
above, to the needs of the society. On the contrary,
efforts should be to ensure a fair trial where the accused
and the prosecution both get a fair deal. Public interest
in proper administration of justice must be given as
much importance, if not more, as the interest of the
individual accused. In this courts have a vital role to
play."
(emphasis supplied)"
28. When we apply the aforesaid legal ratio to the present factual
matrix, we feel that the prosecution version is not free from doubts or
question marks, on account of unexplained gaps which creates the
feeling that investigation was perfunctory and suspicious and material
has been withheld. It is debatable whether any currency of Rs.50/-
denomination of the same bundle was recovered from the appellants.
In nut-shell, the prosecution has only been able to prove that the two
appellants had visited the room along with Sunil between 10 and 11
A.M. on 20th June, 2011. There was exchange of phone calls between
PW-9 and telephone No. 9871579820 and phone calls were made at
No. 100 between 3 to 4 P.M. but the call details of the police control
room have not been placed on record. We do not have any details as
to the whereabouts of Deepak and why he did not go back to the room
for a period of 24 hours. With the said evidence, we do not think it
has been established and proved beyond doubt that the appellants
were the perpetrators and no one else could have committed the said
offence. Possibility of a third person entering the room is not ruled
out and is plausible. The prosecution version, it is apparent, was
based upon suspicion as right from the beginning it was suspected that
the two boys, who had come in the morning of 20 th June, 2011, had
committed murder of Sunil.
29. In view of the aforesaid discussion, we allow the present
appeals and the conviction of Nipun Gola @ Nikhil and Amit @
Chunnu under Section 302 IPC read with Section 34 IPC is set aside.
The appeals are accordingly disposed of.
(SANJIV KHANNA)
JUDGE
(G.P. MITTAL)
JUDGE
APRIL 03, 2014
kkb/VKR
