Dinesh vs State
2014 Latest Caselaw 2524 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CRIMINAL APPEAL NO. 310/1999

                                 Reserved on: 20th February, 2014
%                                Date of Decision: 19th May, 2014


DINESH                                            ..... Appellant
                      Through:   Mr. Vinod Pant, Advocate.


                                 Versus

STATE                                           ..... Respondent

Through: Ms. Rajdipa Behura, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE G.P. MITTAL

SANJIV KHANNA, J:

Appellant-Dinesh and one Arjun Kumar (Arjun, for short) by the

impugned judgment dated 1st May, 1999 were convicted for murder of

Arjun‟s father, namely, Devi Ram. Arjun had also preferred an appeal

against conviction, but he expired on 31st March, 2008 and the appeal

filed by him has abated. Hence, we are only concerned with the

conviction of Dinesh under Section 302 read with Section 34 of Indian

Penal Code, 1860 (IPC, for short). By order on the point of sentence

dated 3rd May, 1999, Dinesh has been sentenced to undergo

imprisonment for life and pay fine of Rs.500/-.

2. The factum that Devi Ram, father of Arjun died a homicidal

death and his body with multiple injuries was found on 9 th January,

1993 at about 1.15 p.m. is not under challenge. On the said date and

time Head Constable Sukhbir Singh, PW-4 received information from

a wireless operator that a dead body was lying in the fields at Mundka,

Hiren Poothana Road, Laghu Udyog Nagar. Information was recorded

in DD No.11, Ex.PW4/A and handed over to SI Siri Ram, PW-29 for

investigation. PW-29 reached the location along with Constable Raj

Pal Singh and found dead body of a male aged about 60 years lying in

the fields of Sukhbir Singh. The body had multiple injuries on nose,

chin, throat and left arm which were probably caused by a sharp edged

weapon. Residents of village Mundka, namely, Prithi Singh and Liak

Ram, PW-1 and PW-2, respectively identified the dead body to be that

of Devi Ram. Thereupon, DD Entry No.11A was recorded and „rukka‟

was sent for registration of the case and FIR No.13/1993, Ex.PW4/B

under Section 302 IPC was registered at police station Nangloi.

Rough site plan, Ex.PW29/A of the place was prepared by SI Siri Ram,

PW-29 and photographs were taken by Rajbir Singh, PW-30.

Evidence and material lying on the spot in the form of blood stained

earth, sample earth, cap, blood stained cotton khes having cut marks,

chappal, Kurta, Lungi, bunch of keys, etc. were seized vide seizure

memos Ex.PW1/B to PW1/F.

3. Inquest proceedings concluded and on 10th January, 1993 post

mortem on the dead body of Devi Ram was conducted by Dr. L.T.

Ramani, PW-24. As per the testimony of PW-24 and the post mortem

report (Ex.PW24/A), the deceased had multiple deep cuts/chopping

wounds on the face, incised/chopping wound on the left side of

forehead, four incised wounds over chin and submendibular areas

involving mandible (lower jaw) and lower teeth which was broken,

incised wound on the middle part of the neck, incised wound scalp

deep on the right occipital region, chopping wound on the right elbow

and inner aspect of fore arm with chipping fracture of lower end of

right humorous bone and incised chopping wound on the left wrist.

Internal examination showed gapping fracture of left frontal and

parietal bone extending to the left lamboid suture, beneath external

injury No.2. All the injuries were ante mortem and opined as caused

by some heavy cutting weapon. Injuries over the skull and neck were

sufficient in the ordinary course of nature to cause death. Death was

due to hemorrhage and shock associated with cranio cerebral injury.

Time since death as opined was 36 hours. We shall be referring to the

testimony of PW-24 regarding the weapon of offence subsequently.

4. The core and primary issue raised in the present appeal relates to

involvement of the appellant Dinesh; whether he is the perpetrator,

who had committed the crime along with Arjun. Against Arjun, son

of the deceased Devi Ram, the prosecution had relied upon testimony

of Chiranji Lal (PW-17), uncle (Tau) of Arjun i.e. elder brother of the

deceased Devi Ram, who had raised Arjun and treated him like his son.

PW-17 deposed that he informed the police [SHO Insp. Dharam Pal

(PW30)] on 11th January, 1993, that on 10th January, 1993 at about

8.30 P.M. Arjun had come to the house of his in-laws at Pitampura to

meet him and had wept bitterly. Arjun had then confessed before PW-

17 that he had murdered his father Devi Ram. He accepted his mistake

and wanted PW-17 to save him. Arjun had stayed the night with him

at Pitam Pura and the next morning he was taken to the village. In the

extra judicial confession, Arjun had also named the present appellant-

Dinesh as an equal participant in the actual crime and that he and the

appellant-Dinesh had earlier purchased two „Pharsas‟ from the shop of

Veer Bhan, situated at Nangloi Chowk and bamboo stick with nuts and

bolts from the shop of Ram Prakash Punjabi in village Mundaka. The

said bamboo stick, nuts and bolts were fixed on the „Pharsas‟ which

were used to inflict injuries. It is on the basis of this statement of PW-

17 that SI Shri Ram (PW29) and SHO Dharam Pal (PW30) swung into

action and arrested Arjun, who was present in the house of Chiranji Lal

(PW-17). Appellant-Dinesh was arrested from his own house.

5. At the outset, we record that the extra judicial confession

became the primary and principal evidence relied upon by the

prosecution against Arjun, but no extra judicial confession is attributed

to the appellant-Dinesh. The legal issue whether extra the judicial

confession made by late-Arjun, can be relied upon and made the basis

for conviction of Dinesh was answered in Kashmira Singh Vs. State of

Madhya Pradesh, AIR 1952 SC 159. In the said case, reference was

made to the decision of the Privy Council in Bhuboni Sahu Vs. The

King [1949] 76 I.A. 147 to the effect that extra judicial confession of a

co-accused did not come within the definition of „evidence‟ under

Section 3 of the Evidence Act as it was not required to be given on

oath, in the presence of the accused and could not be tested by cross-

examination. It was categorised as a weak type of evidence which

cannot be made the foundation for conviction of co-accused and could

only be used in support of other evidence. Reference was made to the

opinion of Sir Lawrence Jenkins in Emperor Vs. Lalit Mohan

Chuckerbutty, I.L.R. [1931] Madras 75, wherein, it was succinctly put

that extra judicial confession could be used only to lend assurance to

other evidence against a co-accused and as observed by Reilly J. in re

Periyaswami Moopan [1911] I.L.R. 38 Cal. 559, that Section 30 of the

Evidence Act went no further than stating that evidence against the co-

accused was sufficient, if believed, to support his conviction,

confession made by co-accused in view of said Section could be an

additional reason in the scale for believing the (primary) evidence. It

was accordingly held as under:-

"11. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

6. The aforesaid view finds resonance and approval in the decision

of the Constitution Bench in Haricharan Kurmi Vs. State of Bihar

AIR 1964 SC 1184 wherein reference was made to Sections 3 and 30

of the Evidence Act. The question whether confession of an accused

could be used against the co-accused, who had been implicated or it

could be only used against the maker, was again answered elucidating

that confession was strictly not an evidence against co-accused under

Section 3 of the Evidence Act, but in a non-technical way, Section 30

enabled the Court to take the confession into account, inspite of it not

being obligatory and though it was not to be treated as substantive

evidence against the co-accused. The proper way was to exclude the

extra judicial confession against co-accused and examine other

evidence. If the said evidence appeared to be satisfactory and the

Court was inclined to hold that the said evidence sustained the charge

framed against co-accused, then the Court could turn to the confession

with a view to reassure the conclusion. The Court cannot start with the

confession of a co-accused and must begin with other evidence

adduced by the prosecution and after formation of opinion with regard

to the quality and effect of the said evidence, it was permissible to turn

to the confession in order to receive assurance to the conclusion of

guilt which the judicial mind was about to reach on the other evidence.

(Refer also to State of M.P. Vs. Paltan Mallah AIR 2005 SC 733 and

Pancho Vs. State of Haryana AIR 2012 SC 523).

7. When we come to the other evidence against appellant Dinesh, it

would consist of the recoveries made purportedly from the residence of

Dinesh on 11th January, 1993 after recording his disclosure statement

Ex.PW17/B. These are in the form of T-shirt, pant and blanket, which

were marked Ex. P5, P-6 and P-9, respectively. As per the CFSL report

Ex.PW31/A to C, blood was detected on the said exhibits and was

ascertained to be of group B, which as per the serelogical report

Ex.PW31/B was the blood group of the deceased Devi Ram. The

second circumstance is the recovery of „Pharsa‟ again on the basis of

the disclosure statement as well as the fact that Arjun and appellant-

Dinesh had purchased the „Pharsa‟ as deposed to by Veer Bhan (PW-

14) and purchased bamboo, two sticks, nuts and bolts as deposed to by

Ram Prakash (PW-10). One „Pharsa‟ (Ex. P-7) attributed to Arjun

was recovered from a well on 12th January, 1993 and the second

„Pharsa‟ (Ex. P-8) attributed to the appellant Dinesh was recovered

from the same well on 15th January, 1993. Reliance on recovery of

„Pharsa‟ was placed upon the testimonies of Babu Lal (PW-13) and

Mahipal (PW-20). Prosecution further, relied upon the testimony of

Geeta (PW-25), wife of deceased‟s brother, who it was claimed had

seen the appellant Dinesh with Arjun on 9th January, 1993 at about

8.30 a.m. i.e. soon after commission of the offence.

8. The Trial Court has disbelieved and not placed credence on the

testimony of Geeta (PW-25) and in our opinion rightly on the ground

that she was planted and her testimony was not trustworthy. PW-25

was the wife of the brother of deceased-Devi Ram. She claimed that

she had seen Dinesh and Arjun on 9th January, 1993 at about 8.30 a.m.

coming from the side of Bakkarwala village and going on road towards

their village. Arjun had a khes, while Dinesh had a blanket wrapped on

his body. In the examination-in-chief, she accepted that she did not

speak to them and at about 2-2.30 p.m. came to know about the murder

of Devi Ram in the fields. In the cross-examination, PW-25 accepted

that her statement under Section 161 Cr.P.C. was recorded after nearly

3 months i.e. on 26th March, 1993, though she was aware and had

knowledge about the arrest of the appellant-Dinesh and Arjun on 11th

January, 1993. She accepted that the police had visited the house of

Devi Ram regularly, where she was also present, but she did not state

or reveal to the police that she had seen the appellant and Arjun

together in the morning at about 8.30 a.m. on 9 th January, 1993. This

aspect becomes important because other family members of late Devi

Ram, namely, his widow Rameshwari Dass (PW-7) and brother of

Arjun, Krishan Kumar (PW-16) had specifically deposed that on 9th

January, 1993 at about 8.30 p.m. Arjun had come back to the house

with a wet Khes and was nervous/perplexed. Arjun thereafter went to

Chaubara to sleep, but soon left the house. PW-7 has deposed that

Arjun had left the house on 9th January, 1993 at about 4/5 a.m. and the

deceased Devi Ram had left at about 7 a.m. Relevance and importance

of PW-25‟s testimony about seeing Arjun and appellant-Dinesh

together at 8.30 a.m. was apparent and perceptible, yet there is no

explanation why Geeta (PW-25) did not state and inform the police and

other family members immediately. Her statement was recorded by the

police after about 3 months of the occurrence. Geeta (PW-25) was

thus an unreliable witness and, therefore, we have to discard her

testimony altogether.

9. On the question of recovery of clothes i.e. T-shirt, pant and

blanket (Ex. P-5, P-6 and P-9 respectively) from the house of appellant

Dinesh, the prosecution had partly relied upon testimonies of eye

witnesses to the recovery, namely, Jitender (PW-6) and Nathu Ram

(PW-12). However, the trial court noticed several contradictions and

unexplained divergence in the statements of Jitender (PW-6) and Nathu

Ram (PW-12) on the recovery which read as under:-

"Although, it was claimed by the prosecution that the said clothes of deceased and blanket were seized in the presence of PW6 Jitender but the manner in which PW6 Jitender and PW12 Nathu Ram, who were the neighbours of accused Dinesh, have given evidence clearly suggests that either the clothes and blanket were not got recovered by the police at the instance of accused Dinesh in their presence or they were not inclined to support the prosecution case on one ground or the other. Now, it was claimed by PW6 Jitender Kumar that the accused Dinesh had got recovered his T-shirt bearing the label of „O.K. Tailor‟ and the pant from the „Chopal‟. However, it was admitted by him in his cross-examination that there was no „chopal‟ in the house of accused Dinesh and the Chopal was in the village. Although, in his cross-examination, he corrected his mistake bydeposing that accused Dinesh got

recovered the blood stained clothes from the „Chobra‟ of his house and the said shirt and pant were found hanging on the khooti but at the same time, it was also disclosed by him that either accused Arjun or accused Dinesh had disclosed to the police that these clothes belonged to him. Although it was the case of the prosecution that the police after effecting the recovery of shirt and pant had stopped at ground floor, where the accused Dinesh had got recovered his blanket, but it was stated by this witness that the police had not stopped on the ground floor after coming down from the Chobara.

As such, the testimony of this witness does not inspire confidence so far as regards the recovery of blood stained clothes and blanket at the instance of accused Dinesh was concerned. Although, PW12 Nathu Ram was examined by the prosecution to support their case regarding the recovery of blood stained clothes at the instance of accused Dinesh but this witness also did not support the prosecution case from the core of his heart. Accordingly to him, about 3 ½ /3 ¾ years back police had brought both the accused person in their village at about 6.30 AM and „Thanedar‟ had summoned him and informed him that the clothes have been recovered from the house of accused and at his instance, he had affixed his thumb impression and at that time he was he was standing at the „Chaukhat‟ of the place from where the clothes were recovered. According to him, the said clothes were pant and bushirt and were stained with some blood drops. He also deposed that he did not know as to whom, the said clothes belonged. He also showed his ignorance as to whether any other thing was also got recovered from the house of accused Dinesh or

not. This witness refused to identify the shirt and pant Ex.P5 and Ex.P6 stated to have been recovered at the instance of accused Dinesh. Surprisingly, when this witness was cross- examined by ld. A.P.P. it was admitted by him that at that time, PW Chiranji Lal was also present and accused Dinesh had led the police party to his „Chobara‟ situated on the first floor but he was unable to say that accused Dinesh had brought the pant and shirt which were found hanging on the khooti in the chobara. It was also reiterated by him that he had gone upstairs at the time of recovery of clothes and had kept on standing at the „Chaukhat‟ of the house of accused. It was strongly refuted by him that accused hd pointed out towards the clothes and police had seized the bushirt Ex.P5 and pant Ex.P6 in his presence. It was further denied by him that the accused Dinesh had pointed out the cot lying on the ground floor and had pointed out the blanket lying there and the said blood stained blanket was taken into possession by police vide seizure memo Ex.PW12/A after sealing the same with the seal of S.R. So, in view of the said deposition made by PW Nathu Ram, it cannot be held with certainty that the blood stained clothes Ex.P5 and Ex.P6 and blanket Ex.P9 were got recovered by police in the presence of this witness. Consequently, his testimony on the vital factum of the recovery of clothes and blanket cannot be given any consideration."

10. We are substantially in agreement with the aforesaid reasoning

given by the trial court pointing out sufficient discrepancies on the

question of recovery of T-shirt, pant and blanket. However, the trial

court relying upon the testimony of Chiranji Lal (PW-17) and the

police officers SI Shri Ram (PW-29) and SI Daler Singh (PW-30) still

accepted the said recoveries at the behest and on the disclosure

statement (Ex. PW17/B) of the appellant Dinesh. We have reservations

on the said finding of the trial court, after having recorded the fact that

the depositions of witness to the recovery memos, Nathu Ram (PW-12)

and Krishan Kumar (PW-16) had contradicted each other. That apart,

there was no reason and cause for Dinesh to keep blood stained T-shirt

and pant with him after the occurrence in the early morning hours of 9 th

January, 1993 till the date of recovery i.e. 11th January, 1993. Same

logic and reasoning would apply to the blanket as the clothes and

blanket could have been destroyed or thrown away. Keeping the said

blood stained clothes and blanket would have invited problem and

negative inference as a proof of involvement of the appellant Dinesh.

Natural and normal instinct would have been not to keep and destroy

any such evidence, when you had both opportunity and sufficient time.

Ex. P-5 has been described as a T-shirt. In villages some time bushirts

are also known as T-shirts. However, while recording evidence of

Chiranji Lal (PW17), on examination of Ex. P-5, the court observed

that the said exhibit was a full sleeve shirt and not a T-shirt. An

objection was raised on behalf of the appellant Dinesh, but it was kept

open.

11. In view of the aforesaid discussion, we have some reservations

on the recovery of the blood stained T-shirt, pant and blanket.

Consequently, the said reservations and doubt dilute the effect of CFSL

report Ex.PW31/A to C and the opinion that human blood of group B

was found on the pant, bushirt or T-shirt and the blanket.

12. The recovery of the two „Pharsas‟ is again debatable as no

„Pharsa‟ was recovered on 11th January, 1993 inspite of search, though

it can be explained as no one had dived into the well to locate the

„Pharsa‟. The first „Pharsa‟ Ex.P-7 was recovered on 12th January,

1993 as deposed to by Babu Lal (PW-13) and Mahipal (PW-20).

However, this „Pharsa‟ is not attributed, as per the prosecution version,

to the appellant Dinesh, but was allegedly used and thrown by Arjun.

The second „Pharsa‟ marked Ex.P8 was seized vide memo Ex.PW13/C

on 15th January, 2013, three days after the first „Pharsa‟ was recovered

from the well. Babu Lal (PW-13) had stated that on 15th January, 1993,

appellant Dinesh and the other accused Arjun were not present, though

they were present on 12th January, 1993. This has been reiterated twice

in the examination-in-chief by PW-13 and repeated in cross-

examination by the Addl. Public Prosecutor. He, however, accepted

that „Pharsa‟ (Ex. P-8) was identified by the appellant Dinesh. PW-13

categorically deposed that the „Pharsa‟ which was recovered from the

well did not have any handle. Babu Lal (PW13) was cross-examined

by the Additional Public Prosecutor on the said aspect and his attention

was also drawn to the sketch of „Pharsa‟ recovered from the well on

15th January, 1993 (Ex. PW13/C) had a handle. PW-13 had stuck to his

stand that „Pharsa‟ recovered from the well on 15th January, 1993 did

not have any handle. He denied the suggestion that „Pharsa‟ marked

Ex.P8 was with a handle and the sketch was accordingly prepared at the

spot. The „Pharsa‟ produced in the court as per the sketch Ex. PW13/C

had a handle.

13. Mahipal (PW-20), on the other hand, with regard to „Pharsa‟

recovered on 15th January, 1993 has deposed that the two accused were

taken to the tube-well and water was pumped out with the help of water

pumping machine and the police had put a magnet tied with a rope in

order to take out the second „Pharsa‟. However, they were not

successful and thereupon Babu Lal (PW-13) went inside the tube-well

and brought out the „Pharsa‟ and the same had a bamboo stick attached

to it. The said „Pharsa‟ was seized vide seizure memo Ex.PW20/A.

PW-20 could not identify the second „Pharsa‟ as he claimed that he

was standing at some distance when the same was taken out from the

tube-well. The said witness was allowed to be cross-examined by

learned Additional Public Prosecutor. What is rather intruding is the

CFSL report marked Ex.PW31/A to C in respect of „Pharsas‟. It

records that human blood was found on the two „Pharsas‟, though too

small for serological analysis. The second „Pharsa‟ had remained in

water of well as per the prosecution case for almost 6 days, which is a

long period. It is difficult to appreciate and accept that blood would

have remained on the „Pharsa‟ even after the „Pharsa‟ had remained in

water for six days. On the said aspect, we have testimony of Dr. L.T.

Ramani (PW-24) to whom the two „Pharsas‟ were shown and he had

given his report Ex.PW24/C that the injuries on the body of the

deceased Devi Ram were possible with the „‟Pharsas‟. He has deposed

that the two „Pharsas‟ had bamboo handle attached to them, but stated

that the two „Pharsas‟ did not show obvious blood stains. PW-24 had

also referred to the bamboo on the second Pharsa and he had signed on

the bamboo of the two Pharsas. Therefore, on the question of recovery

of second „Pharsa‟ which was allegedly used by the appellant Dinesh,

there is doubt and ambiguity on the recovery, the blood stains being

present thereon etc. As is apparent, there was delay in recovery of the

second 'Pharsa' (Ex. P-8), which as per the prosecution was recovered

on 15th January, 1993.

14. Faced with the aforesaid situation, it was submitted on behalf of

the State that Devi Ram had suffered a large number of injuries and one

person could not have caused the said injuries. Reference was also

made to the testimonies of Ram Prakash (PW-10) and Veer Bhan (PW-

14). The purchases made from them are not covered by Section 27 of

the Evidence Act as it did not lead to recovery of any physical object.

At the same time, it would be appropriate to record and notice the

testimony of Chiranji Lal (PW-17) to the effect that Arjun had

informed him about purchase of Pharsas, bamboo, nuts and bolts and

had also given details of the shops. The said extra judicial confession,

as per PW-17, was made on 10th January, 1993 at about 8.30 p.m.

which was before the disclosure statement (Ex. PW13/C) of the

appellant Dinesh recorded on 11th January, 1993 at about 10-11 a.m.

Thus, as per the prosecution case, Chiranji Lal (PW-17) had before the

disclosure statement (Ex.PW 13/C) of the appellant Dinesh, informed

the police about purchase of „Pharsas‟ etc. There is evidence to show

that Arjun was the first to make disclosure statement, which was

followed by the disclosure made by the appellant Dinesh. SI Siri Ram

(PW29) has testified that disclosure statement of Arjun Ex.PW13/A

was confronted to the appellant Dinesh. Even if we accept that this is a

case of joint disclosure, it would be important to notice the observations

of the Supreme Court in State (NCT of Delhi) Vs. Navjot Sandhu @

Afsan Guru (2005) 11 SCC 600, wherein under the heading „joint

disclosures‟ it has been elucidated:-

"14. Joint disclosures Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section

27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may

furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these preparatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel."

(emphasis supplied)

15. In the aforesaid paragraph, the Supreme Court, while accepting

that „joint disclosures‟ can fall under the purview of Section 27 of the

Evidence Act, has observed that the information should be given

without any break and almost simultaneously to avoid criticism from

the stand point of credibility and nexus with recovery. Admissibility

and credibility are two different aspects and, therefore, credibility of the

discovery of the two „Pharsas‟ from the well, in this situation, which

was a fact stated by Arjun to Chiranji Lal (PW-17) on 10th January,

1993 and in his disclosure statement recorded earlier on 11th January,

1993, to some extent affects the credibility of the disclosure made by

the appellant Dinesh. However, the testimonies of PWs-10 and 14 can

be relied upon as relevant evidence under Section 8 of the Evidence

Act.

16. Nature and extent of the injuries suffered by the deceased Devi

Ram do indicate involvement of more than one person, who had caused

the said injuries. But by no stretch it can be argued that presence of

second culprit has been established beyond doubt. Multiple injuries

were possible by a single person also. It is also apparent that it was a

pre-meditated, well planned and deliberately executed attack. Injuries

were not caused with an intention to rob or steal, but to do away with

and kill Devi Ram. We can conceive, the agony, hurt and pain when

the family members of Arjun implicated and accepted that Arjun had

killed his father. It could not have been easy for the family members of

Devi Ram i.e. Chiranji Lal (PW-17), uncle (Tau), who had brought up

Arjun and Rameshwari Dass (PW-7) mother of Arjun and wife of the

deceased Devi Ram and other family members like Krishan Kumar

(PW-16) to come out openly and name Arjun. However, what is also

noticeable is that Rameshwari Dass (PW-7), Krishan Kumar (PW-16)

and Chiranji Lal (PW-17) have deposed that Arjun use to keep bad

company and because of this he used to commit theft, consume liquor

and indulge in narcotics. Dinesh, it was stated, was a friend of Arjun

and was responsible as he had induced and pushed Arjun on to the

wrong path and was responsible for his deviant behaviour. The

appellant Dinesh was the real culprit. In some way, therefore, while

accepting that Arjun was the culprit, the said witnesses wanted to blame

Dinesh for what Arjun had done and stated that appellant Dinesh was

responsible for Arjun‟s blameworthy behaviour and actions. In other

words, Dinesh was responsible and liable for what has happened.

17. Thus, the depositions of PWs-7, 16 and 17 have to be read with

certain discount, keeping in view rancor and loathing they had for the

appellant Dinesh. This does not mean that we completely disregard or

reject the statements made by the said witnesses, but we have to be

cautious and rule out possibility of exaggeration and implication of

appellant Dinesh by PWs-7, 16 and 17 for reasons other than purely

objective and unbiased rendition of the facts as they transpired.

18. Thus, what we have before us is highly debatable evidence in the

form of recovery of T-shirt, pant and blanket with blood stains

matching the blood group of the deceased, testimonies of PWs-13 and

14 on purchase of Pharsas, bamboo etc. by Arjun and appellant Dinesh,

the „Pharsa‟ (Ex. P-8) recovered from a well after about 6 days, still

having traces of human blood and statements of the relatives i.e. PWs-

7, 16 and 17 that Arjun and appellant were good friends and the

appellant was responsible for the bad habits and deviant behaviour of

Arjun. We do not think that the aforesaid circumstantial evidence even

when taken cumulatively and considered along with respective

ambiguities noticed above is sufficient to complete the chain and hold

that the appellant Dinesh along with Arjun was the second person

involved, who had committed the offence in question and there was no

possibility that Arjun alone was responsible. The said possibility

always existed. Interestingly, Chiranji Lal (PW-17) in his court

deposition had talked about an application, which was filed by him

against Arjun and his cousins Liak Ram and Saman at police station

Nangloi about the threats being extended by them to PW-17 about two

years prior to the incident. Police had then called Arjun and others and

got the matter compromised.

19. In view of the aforesaid discussion and applying the legal ratio as

expounded by the Supreme Court in Kashmira Singh (supra) and

Panchu (supra), we do not think that it will safe and correct to hold that

prosecution has been able to prove and make out a case beyond

reasonable doubt against the appellant Dinesh. Dinesh is entitled to

benefit of doubt as it cannot be held that Dinesh could have been the

perpetrator along with Arjun and had committed the offence in

question. Once we exclude the extra judicial confession made by

Arjun, the prosecution evidence, as led, is not sufficient but rather weak

and does not complete the chain to indict and hold that the appellant

Dinesh was the second perpetrator with Arjun. The gaps in the

prosecution version are apparent and, therefore, we should give benefit

of doubt to the appellant Dinesh. He is accordingly acquitted and the

appeal of Dinesh is allowed. The appeal is disposed of.

(SANJIV KHANNA) JUDGE

(G.P. MITTAL) JUDGE MAY 19th, 2014 NA