Delhi High Court
Kuldeep Singh vs State Nct Of Delhi on 16 August, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 9th August, 2017
Judgment Pronounced on: 16th August, 2017
+ CRL.A. 500/2016
KULDEEP SINGH ..... Appellant
Through : Mr. K. Singhal, Advocate
versus
STATE NCT OF DELHI ..... Respondent
Through : Ms. Radhika Kolluru, APP for the
State along with SI Praveen, P.S.
Narela.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J.
1. This is an appeal filed against the judgment of the Trial Court dated
31.03.2016 in SC 115/08 arising out of FIR 622/2007 PS Narela by
which the appellant stands convicted under Section 302 of the Indian
Penal Code, 1860 („IPC‟) and the order on sentence dated 11.04.2016
by which the appellant has been sentenced to undergo life
imprisonment for the offence punishable under Section 302 IPC with a
fine of Rs.1 lakh, in default of payment of fine, to further undergo
rigorous imprisonment for a period of one year.
2. Before the rival submissions of the learned counsel for the parties can
be noticed, we deem it appropriate to reproduce the case of the
prosecution as noticed by the Trial Court, which reads as under:
"1. On 30.11.2007 Smt. Santra came to police station
Narela and reported that on 29.11.2007 at about 12:00
noon Kuldeep made a call to her son Amit and asked him to
reach railway crossing Bankner, thereafter her son Amit
aged about 20 years reached railway phatak Bankner where
Kuldeep along with one more boy whose name she does not
know were present on motor cycle No.HR 10J 2718. Amit
accompanied them. Amit was 5 ft 8 inch wearing white
pants and one jacket long face there was tattoo of Mata on
one hand and tattoo of face of lion on the other hand. She
alleged that they both have taken away Amit by enticing
him. During investigation Kuldeep was apprehended who
confessed about the crime and disclosed that Bijender was
with him. He pointed out the STD booth from where he
made the call to Amit. The rehri wala from where he
purchased the rope. He got recovered the dead body of
Amit. Post mortem was got conducted. The motorcycle was
seized. The pants, which he was wearing was also seized as
blood stains were found on the pant. ..."
3. After investigation, the chargesheet was filed against the appellant
Kuldeep. Appellant was initially charged under Sections 365 and 302
IPC. During the course of trial, after the evidence of Bijender Singh
(PW-9) was recorded, an application under Section 319 Cr.P.C. was
preferred and Bijender was also summoned. Again the charge was
framed. Appellant Kuldeep was charged for the offence punishable
under Section 120B IPC and accused Bijender was charged for the
offences punishable under Sections 120B, 365 read with 120B and
302 read with 120B IPC to which they pleaded not guilty and claimed
trial. Thereafter, the trial was conducted again.
4. To bring home the guilt of the appellant and accused Bijender, the
prosecution examined 27 witnesses. The statements of both the
accused under Section 313 Cr.P.C. was recorded, wherein they denied
all the incriminating evidence and pleaded false implication. The
defence did not lead any evidence.
5. After examining the evidence before it, the Trial Court found the
chain incriminating circumstances against the appellant complete and
convicted him under Section 302 IPC; but found that there was no
evidence of conspiracy against the co-accused Bijender and thus,
acquitted him of all charges. Aggrieved, the appellant has preferred
the present appeal.
6. Mr.Singhal, learned counsel appearing for the appellant Kuldeep,
submits that the impugned judgment and order on sentence are illegal,
perverse and liable to be set aside. The Trial Court has ignored the
material evidence available on record and passed the impugned
judgment in haste without correctly appreciating the facts of the case.
It is contended that the Trial Court has lost track of the fact that in a
case of circumstantial evidence, the prosecution is liable to prove each
and every circumstance beyond reasonable doubt and the chain of
events should be so complete to rule out the possibility of any verdict
except that of the guilt of the accused. Mr.Singhal contends that the
Trial Court has relied upon the following events to establish the guilt
of the appellant:
(i) The circumstance of last seen;
(ii) Recovery of dead body at the instance of the appellant;
(iii) Recovery of pant with blood-stains worn by the appellant at the
time of his arrest; and
(iv) Injury on the right hand small finger, which according to the
prosecution has not been explained.
7. Mr.Singhal submitted that though an additional circumstance of the
phone call having been received by the appellant from a STD Booth
was also alleged before the Trial Court; the Trial Court rightly
repelled the submission as Suresh Kumar (PW-4) did not identify the
appellant as the person who had made a telephone call on the number
of Amit („deceased‟). In the absence of this circumstance having been
proved, the same cannot be treated as incriminatory and to the
detriment of the appellant.
8. It is contended that the theory of last seen which is sought to be
invoked by the prosecution is by itself a weak form of incriminating
circumstance. The prosecution has placed strong reliance on the
testimonies of Rakesh (PW-1) and Ravi (PW-2). However, the Trial
Court has failed to look into the various gaps in the story narrated by
these witnesses. The Trial Court did not make any attempt to analyse
the call records of PW-2, which would show that PW-2 was talking to
the deceased over the telephone upto 1 PM and the phone of the
deceased was not on the same location from where the calls were
being made/received by PW-2. The learned counsel for the appellant
submits that as per the case of the prosecution, the deceased had
received a phone call from the appellant Kuldeep. And thereafter, the
deceased had informed his mother (PW-7) that he was to meet
appellant Kuldeep and left the house on 29.11.2007 at about 12 noon
and did not return home. Mr.Singhal contends that the prosecution
has failed to prove that the mobile phone bearing number 9971068499
belonged to the deceased. No supporting documents were placed on
record, on the contrary, documents placed on record would show that
the phone belonged to the father of the deceased. Mr.Singhal explains
that this fact gains importance as in the complaint made by the mother
(PW-7), the mother has provided her phone number which is the same
number alleged to be used by the deceased and on which the alleged
phone call was made. It is thus contended that there is no evidence on
record that the mobile in question either belonged to the deceased or
was being used by the deceased, on the contrary there is evidence to
show that the mobile phone belonged to the father of the deceased and
was being used by the mother and in case this phone was in the
possession of the deceased, there would be no reason for his mother to
have provided this number to the police in the complaint so made by
her.
9. Mr.Singhal next contends that to invoke the theory of last seen, the
long time gap between to when the deceased was seen in the company
of the appellant and his murder was not considered by the Trial Court
and the theory of last seen was applied without application of judicial
mind. It is contended that the time gap is an important and
fundamental link in respect of the theory of last seen. Mr.Singhal
contends that the dead body was recovered on 04.12.2007, i.e. after a
gap of six days. As per the postmortem which was conducted on
05.12.2007, a specific board of experts was constituted. Dr.R.N.
Tahlan (PW-13) and Dr.Varsh (PW-25) appeared in the witness box
and deposed the gap in the time of death as 36 to 72 hours from the
death. The opinion of the Doctors remained unchallenged and hence
stands proved. In case the opinion of the Doctors are to be taken into
consideration and in case death occurred 72 hours prior to the date of
post-mortem, it would translate that the deceased died on 02.12.2007.
On the other hand, the prosecution has not been able to show that the
appellant was last seen in the company of the deceased on 02.12.2007.
In effect, the gap between 29.11.2007 to 02.12.2007 is fairly long and
there is nothing on record that no other person would have been in the
company of the deceased between 29.11.2007 upto 02.12.2007. In
such circumstances, the onus cannot be on the defence to show as to
when they parted company under Section 106 of the Evidence Act.
10. In support of his arguments, Mr.Singhal has relied upon the judgments
in the case of Rishipal v. State of Uttarakhand, (2013) 12 SCC 551
(paragraphs 19 - 25); Kanhaiya Lal v. State of Rajasthan, (2014) 4
SCC 715 (paragraphs 12 and 15); Raj Kumar @ Raju v. The State of
the NCT of Delhi, 2013 (3) JCC 2272: 202 (2013) DLT 370
(paragraph 15); Arun & Ors; Prithvi Raj & Krishan Kumar @
Krishna v. State, 209 (2014) DLT 515 (DB) (paragraph 23) and
Mohd. Rashid v. State, 223 (2015) DLT 327 (DB) (paragraphs 20 -
23).
11. In respect of the recovery of the dead body on 04.12.2007, learned
counsel submits that has not been proved. Mr.Singhal submitted that
the prosecution has projected PW-1 as a witness to the recovery,
however PW-1 on his first day of examination-in-chief had stated that
the body was recovered on the day of the complaint by the police, i.e.
30.11.2007, and they were only called to identify the body. He also
drew the attention of this Court to the cross-examination conducted on
09.12.2009, as per which, PW-1 stated that the Haryana Police had
already reached the spot prior to the appellant and the police party and
hence, there can be no question of the recovery being at the instance
of the appellant. Further, during his examination on 11.10.2010, the
appellant stated that the police had recovered the body and they came
to know after receiving a call from the police. Learned counsel
concluded that the aforegoing makes it clear the entire story of
prosecution of joining the appellant Kuldeep and PW-1 in the
recovery of dead body is an afterthought and concocted. Learned
counsel for the appellant had also drawn the attention to the
inconsistency in the testimony of PW-3 and PW-1 with regard to the
time of the recovery as PW-3 stated it to be 2-3 PM while PW-1
deposed that it was between 3-4 PM. PW-1 nowhere states that the
appellant was also accompanying them in the car or in any other car.
12. Learned counsel submits that PW-16 who is a police officer from
Haryana Police did not state that the recovery was affected at the
instance or in pursuance of the disclosure statement of appellant. He
merely stated that when he reached at the spot, the appellant and the
Delhi Police were already present and the body had been recovered
and therefore, the testimony of PW-16 does not lead the case of
prosecution anywhere except it shows that the Haryana Police was not
joined initially and it was only an afterthought. Learned counsel also
contends that the testimony of PW-22 shows a classic example of
false stories being produced by the police officers. PW-22 says that
the appellant Kuldeep was joined in the investigation on 02.12.2007
and 03.12.2007 and he was interrogated by SHO/ACP, however,
nothing could be brought out. However, on 04.12.2007, on the road,
the same appellant was interrogated by ASI rank officer and the
appellant confessed to his guilt. It is submitted that the recovery was
allegedly made in the presence of ASI level police officer without
informing the higher officers and joining them. The PW-22 did not
even deem it fit to call the Crime Team at the spot and did all the
investigation on his own. As per PW-3, he was called by the Delhi
Police to take the photographs of the dead body and the time was 12
noon on 04.12.2007.
13. Learned counsel submits that the prosecution alleged that the
appellant was arrested on 04.12.2007 and at that time, he was wearing
the same pant which he was wearing on the date of incident. Some
blood marks were found on the bottom side of pant and the same was
sent to FSL. The FSL opined that the blood of human origin was
found on the pant worn by the appellant Kuldeep. The Trial Court
assumed the same as an incriminating circumstance without
considering the fact that the pant was recovered after a gap of 6 days
as per prosecution only, yet the appellant was wearing the same pant.
The appellant has stated in 313 Cr.P.C. that he fell down and received
injuries. It may be possible that he would have wiped blood from his
injuries with his pant. Furthermore, until and unless the blood group
is matched, it would be highly unsafe to believe that the blood found
on the pant has connection with the crime in question. Mr.Singhal
concluded that the Trial Court has presumed everything.
14. Mr.Singhal contends that the Trial Court considered the injury on
right hand small finger of the appellant as one of the incriminating
circumstance without giving any reasons as to how this circumstance
is an incriminating one. The prosecution has failed to prove that the
said injury was caused with a knife. However, the Trial Court
erroneously, shifted the burden upon the appellant to explain the
circumstance, without considering the fact that the appellant had duly
explained the same by stating that he fell down 6 days ago and
received the injury. It was the duty of the prosecution to clarify that
the injury could not have been caused by fall, which the prosecution
has failed to do so. Learned counsel finally contended that the
prosecution had also failed to ascribe any motive to the appellant,
which, in cases based of circumstantial evidence is of great
significance. Though the appellant had attempted to show a story of
an affair between the deceased and the wife of the appellant, the same
could not be proved.
15. It was also contended that the conduct of the appellant must also be
looked into. He joined the investigation on 02.12.2007 and
03.12.2007 upon being served with a notice. Even after joining the
investigation, he did not abscond.
16. Per contra, Ms.Kolluru, learned counsel for the State, submits that the
prosecution has been able to prove its case beyond any shadow of
doubt. The evidence of the mother would show that a phone call was
received by her son in her presence from the appellant. She had asked
PW-1 to follow him. Thus, the Trial Court has correctly applied the
theory of last seen. It is further contended that the dead body was
recovered at the instance of the appellant on his pointing out. A
complete reading of the testimony of PW-1 coupled with the arrest
memo, pointing out memo which is duly supported by PW-1 would
show that the dead body was recovered at his instance.
17. It is also submitted that the appellant Kuldeep had washed his pant
which is evident from the fact that although blood was detected but
the grouping could not be done and it is for this reason that the pant
was worn by the appellant Kuldeep with blood-stains. She further
submits that the testimony of PW-16 would prove that the phone
belonged to the father and the said phone was switched off and the last
call was made at 12:54 which would show that the phone was with the
son, the deceased herein. Learned counsel submits that DD 18-A
would show that PW-22 and PW-26 had left the Police Station in
connection with the investigation of this case, this would show that
PW-22 and PW-26 had a chance meeting with the appellant is
incorrect. In response to the submission made by Mr.Singhal with
regard to the time of death as per the postmortem report, Ms. Kolluru
has placed reliance on the judgments in the case of Solanki
Chimanbhai Ukabhai v. State of Gujarat, 1983 SCC (Cri) 379
(paragraphs 11 - 13); Rakesh v. State of Madhya Pradesh, (2011) 9
SCC 698 and Mangu Khan v. State of Rajasthan, AIR 2005 SC
1912 (paragraph 9) to submit that the time of death ascertained by the
doctors is not conclusive and depends on numerous factors.
18. We have heard the learned counsel for the parties and examined the
record before us. The Trial Court has convicted the appellant on the
basis of following four incriminating circumstances appearing against
the appellant:
(i) That the appellant and the deceased were last seen together;
(ii) The dead body was recovered at the instance of the appellant;
(iii) Recovery of blood-stained pants of the appellant; and
(iv) Unexplained injury on the little finger of right hand of the
appellant.
19. We deem it appropriate to deal with the circumstances under separate
heads:
LAST SEEN THEORY
20. One of the primary incriminating circumstance found by the Trial
Court appearing against the appellant was that he was last seen in his
company. It will be useful to examine the testimonies of Rakesh
(PW-1) (brother of the deceased), Ravi (PW-2) (friend of the
deceased) and Santra (PW-7) (mother of the deceased).
21. Rakesh (PW-1) deposed that on 29.11.2007, the appellant came to
their village with one Bijender and called the deceased telephonically
and told him to reach Railway phatak of village Bankner. The witness
was present at home and the deceased informed him of the call and
that the appellant wanted to purchase tin sheets. The deceased then
left along with Ravi to meet the accused at Railway phatak Bankner.
PW-1 also had some work and thus, he followed him. His mother had
also advised as to why the deceased had been called by the appellant.
PW-1 further deposed that he saw the appellant and his friend
Bijender on a motorcycle, who took the deceased along with them.
Ravi was left behind, who told him that they had gone to the factory
of Mahinder (father-in-law of the appellant). PW-1 and Ravi went to
the factory of Mahinder, but it was locked. PW-1 called the deceased
by the mobile of Ravi and the deceased told him that he is going with
Kuldeep and Bijender to buy tin sheets and would return in about 15
minutes. He waited for the deceased and then once again called him,
this time he stated that he was with the appellant and was going to
Katlupur to buy tin sheets and would return in ten minutes. Later,
PW-1 called from a PCO, the deceased again promised to return in a
few minutes. Thereafter, the mobile phone of the deceased came
switched off.
22. During cross-examination, PW-1 stated that after the deceased had
received the call, he took tea and then left within 15 minutes. On the
asking of his mother, PW-1 also accompanied the deceased to Narela.
Thereafter, the deceased made a call to Ravi and then went with him
to railway phatak, while the witness followed them.
23. The testimonies of Ravi (PW-2) and Santra (PW-7) are on similar
lines. PW-2 also deposed that on 29.11.2007, the deceased had asked
him to join him as he had to meet the appellant at railway phatak,
Bakner as the appellant had to purchase some tin sheets. PW-2 went
with the deceased to the railway phatak and met the appellant with
Bijender. Thereafter, the deceased had left with the appellant and
Bijender on their motorcycle. Santra (PW-7) deposed on 29.08.2009
that two years back on 29th day of November, her son/deceased was
present in the house. He received a telephone call from one of his
known person, who asked him that the appellant wanted to talk to him.
The deceased had tea and then received another call. Upon enquiry,
the deceased informed that he had received a call from the appellant as
he had to purchase iron tins. The deceased then left the house to meet
the appellant. Her other son, Rakesh (PW-1), enquired were the
deceased was going and then, Rakesh followed the deceased.
24. We may note that the postmortem of the deceased was conducted on
05.12.2007 by a board of doctors was constituted of Dr.R.N. Tehlan
(PW-13), Dr.Varsha (PW-25) and Dr.J.S. Punia. The report (Ex.PW-
13/A) and the testimonies of the doctors states that the deceased died
36 to 72 hours prior to the examination of dead body. Having regard
to the time of conducting of postmortem, the time of death can be
estimated to be between 10:15 AM on 02.12.2007 to 4:15 PM on
03.12.2007.
25. Prior to proceeding further, we deem it appropriate to discuss the
judicial pronouncements cited by the learned counsel for the parties.
26. In Kanhaiya Lal (Supra), the Apex Court was dealing with a case
wherein the only incriminating circumstance against the appellant
therein was that he was last seen along with the deceased last night
and both the Trial Court and the High Court had recorded an order of
conviction. In this background, the Supreme Court had held that this
singular piece of circumstantial evidence would not be sufficient to
sustain an order of conviction.
27. To similar effect is the judgment in Rishipal (Supra), wherein the
Supreme Court after referring to numerous judicial pronouncements
held that merely because the appellant was last seen with the deceased
and had returned with soiled clothes thereafter would, at best, raise a
suspicion against the appellant and no more. It upheld the judgment
of the High Court acquitting the appellant therein of the charge under
Section 302 IPC.
28. Though learned counsel for the appellant had also relied upon the
judgment in the case of Raj Kumar @ Raju (Supra) (paragraph 15),
at the same time, no paragraph or line of any judgment can be read in
isolation. In the case, the Trial Court had relied upon the complaint
filed by the complainant therein to establish the circumstance of last
seen even though there was nothing in his testimony before the Court,
which was found to be illegal as the complaint was not a substantive
piece of evidence. Accordingly, no support can be drawn from the
judgment.
29. Another coordinate bench in Mohd. Rashid (Supra) had found that
the distance between the place where the chance meeting with the
deceased in the company of the accused/appellants therein had
occurred, and the dead body was found was quite long and thus,
entailing a time gap. This opened a possibility of the intervention of
other persons and making the last seen theory doubtful. We deem it
appropriate to reproduce paragraph 22, which reads as under:
"22. The "last seen" theory comes into play where the time-
gap between the point of time when the accused and the
deceased were last seen alive and when the deceased is
found dead is so small that the possibility of any person
other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases, to
positively establish and apply the principle of last seen per
se and/or as a weighty factor when there is a long gap and
possibility of other person(s) coming in between exists. In
cases where positive evidence to conclude that the accused
and the deceased were last seen together till the crucial
moment is not coming forth, it would be hazardous to come
to a conclusion of guilt. At best, it would indicate presence
of the accused at the time and place so proved. [State of
U.P. vs. Shyam Behari and Anr., (2009) 15 SCC 548,
Bodhraj @ Bodha and Ors. vs. State of Jammu and
Kashmir, (2002) 8 SCC 45, State of U.P. v. Satish, (2005) 3
SCC 114, Ramreddy Rajesh Khanna Reddy vs. State of A.P,
(2006) 10 SCC 172, Venkatesan vs. State of Tamilnadu,
(2008) 8 SCC 456]."
(Emphasis Supplied)
30. In Arun & Ors; Prithvi Raj & Krishan Kumar @ Krishna (Supra), a
coordinate bench of this Court found that the circumstance of last seen
was not established as the conduct of the prime witness (PW-13) was
unnatural and his testimony unbelievable and unacceptable, the time
of death was not ascertained as the doctor who conducted postmortem
had deposed contrary to the postmortem report itself and the ocular
testimonies as also belied by the call detail records of the
appellants/accused. The bench ultimately acquitted the appellants of
all charges against them.
31. Having discussed the judgments relied upon by the learned counsel for
the appellant, we deem it appropriate to reproduce Section 106 of the
Evidence Act:
"Section 106. Burden of proving fact especially within
knowledge.- When any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him."
(Emphasis Supplied)
32. The theory of last seen gains significance in criminal jurisprudence
from Section 106 as it places the burden on the accused to prove a fact
especially within his knowledge. Normally, it is for the prosecution to
prove each and every fact against the accused/appellant beyond
reasonable doubt, however, owing to the application of Section 106, if
a fact is especially within the knowledge of the accused, he must
account for it. The prosecution has to show that the accused and the
deceased were last seen together and the time gap between the death
and the last seen was so small as to exclude the possibility of other
persons coming contact with the deceased. In such a case, the fate of
the deceased would remain in the exclusive knowledge of the accused.
On the other hand, a huge gap may lead to the inference that other
persons had intervened and the whereabouts of the deceased no longer
remains in the especial knowledge of the accused. Then accused no
longer has to account for his presence with the deceased. Hence, the
time gap is of great significance as a huge gap may make it improper
to place the burden on the appellant and in his failure, draw an adverse
inference again him.
33. In the present case, the time gap between the last sight of the appellant
with the deceased and the time when his death probably occurred is
considerable and the theory of last seen cannot be invoked. The
deceased was missing since 29.11.2007 at about 1 PM to 04.12.2007
and at best, his death can be said to have occurred on 02.12.2007 at
10:15 AM as per the medical evidence. The prosecution has not been
able to show that the appellant had ever confined the deceased and had
kept him somewhere prior to murdering him and thus, the huge time
gap opens the possibility of intervention of other persons.
34. Ms.Kolluru had sought to rely upon the judgments in Solanki
Chimanbhai Ukabhai (Supra); Rakesh (Supra) and Mangu Khan
(Supra) to submit that the time of death estimated by the PW-13 and
PW-25 cannot be said to be conclusive. We find no force in the
submission. The judgments relied upon find that otherwise
creditworthy eyewitness account cannot be discredited by medical
evidence until the same completely irreconcilable and the estimation
of the time of death is based on numerous factors and its contradiction
cannot be a ground to throw out the case of the prosecution. In the
present case, there is no eyewitness account or any other evidence
proving the time of death. Even if we disregard the time of death
estimated by the doctors, there is nothing to reduce the time gap and
may only increase upto 04.12.2007.
35. Though we have proceeded in a manner to rely upon the testimonies
of the prosecution witnesses. Mr.Singhal had also contended that the
veracity of the witnesses is doubtful as running awry of the CDRs.
PW-2 had deposed that he is using the mobile number 9971454997,
while the number ascribed to the deceased is 9971068499. R.K.Singh
(PW-16) had produced the records of the number of the deceased
being Ex.PW-16/A to Ex.PW-16/D. The CDR (Ex.PW-16/C) and the
reveals the following calls between the deceased and Ravi (PW-2):
Time Calle r Recipient Cell ID of Cell ID of
Calle r Recipient
12:00:05 9971068499 9971454997 41153 41153
12:08:37 9971068499 9971454997 03373 41153
12:35:36 9971454997 9971068499 17693 42743
12:54:34 9971068499 9971454997 17693 17693
36. The limited Cell ID Chart (Ex.PW-16/D) shows that the Cell ID
17693 was located at Gogha Village, the remaining are unknown. In
the absence of location of the remaining towers it cannot be said
conclusively that whether two were together or separate.
37. Hence, the prosecution was unable to establish the theory of last seen
as the time gap between the last sighting of the deceased with the
appellant to the time of death was substantial, opening the possibility
of the intervention of other parties. Shifting of burden under Section
106 of the Evidence Act was not warranted and thus, the circumstance
has not been proved.
38. Even otherwise, in the absence of any other incriminating
circumstance, the evidence of last seen alone has been frequently held
to be insufficient to base an order of conviction.
RECOVERY OF THE DEAD BODY
39. It is the case of the prosecution that the appellant had made a
disclosure statement on 04.12.2007 and had subsequently got
recovered the dead body of the deceased from the area of Village
Jhanjholi from the forest on the eastern side of western Yamuna canal
from the area of district Sonepat. In this regard, the depositions of
Rakesh (PW-1), SI Dalbir Singh (PW-14), SI Devender Singh (PW-
22), Ct.Raj Kumar (PW-26) and Ins.Raj Kumar (PW-27) are relevant.
40. Ct.Raj Kumar (PW-26) deposed that on 04.12.2007, he was posted at
PS Narela and had joined investigation along with ASI Devender
Singh and Ct. Yashwant. During investigation, they were present at
main road, Village Bakner, near Govt. School at about 1 PM when
appellant was found coming on his motorcycle. ASI Devender
stopped him and made enquiries and thereon, the appellant confessed
to his guilt. Thereafter, the appellant was arrested vide arrest memo
(Ex.PW-22/A). The appellant then took them to the place of the
incident, i.e. forest near Jhinjholi, village Katlupur, where he had
committed the murder of the deceased. Thereafter, the appellant
pointed towards the dead body of the deceased which was found lying
there in bushes at some distance and informed that the body was that
of the deceased. Rakesh (brother of deceased) and Pawan (cousin
brother of deceased) were called and they identified the dead body as
that of the deceased. ASI Devender had prepared the site plan of the
place of recovery (Ex.PW-22/E). In his cross-examination, he stated
that the appellant was interrogated for half an hour on the road by the
IO and many people/vehicles were passing from the road at the time
of the interrogation. He further stated that they left Banknair Road at
about 2:30-2:45 PM on 04.12.2007 and left for the forest of village
Katlupur/village Jhinjholi and reached there at about 3 PM. The
appellant was made to sit on the motorcycle of the IO and reached the
forest. They left the spot at about 4-5 PM. Pawan and Rakesh
reached the spot at about 3 PM on their own vehicle. Saidpur
(Haryana) Police came to the spot after being called by the IO on
phone.
41. Ins.Ram Kishan (PW-27) deposed that on 04.12.2007, he was posted
at PS Narela as Inspector, Law and order. On the day, ASI Devender
had informed by phone that the appellant had got recovered the dead
body of the deceased Amit in pursuance of his disclosure statement
and had requested for sending some senior police officials. The
information was recorded vide DD 21-A at 3:35 PM on 04.12.2007
(Ex.PW-11/A). The DD was marked to PW-27 and he proceeded
towards the site. On reaching the exact place, ASI Devender,
Ct.Yashwant and Ct. Raj Kumar met him there along with the
appellant. Rakesh and Pawan were also present. SI Dalbir, Incharge
Police Post Saidpur Police Station, Kharkhoda along with other staff
and photographer Vijay also reached there. The body of the deceased
was found. Photographer Sandeep also reached the spot, who had
been called by ASI Devender. Nothing came in his cross-
examination, except that he had reached the spot at about 4 PM.
42. The IO at the time of the recovery was SI Devender Singh (then ASI)
(PW-22). He deposed that during investigation, he came to know
about the involvement of appellant Kuldeep and hence notice was sent
to him under Section 160 Cr.P.C. directing him to appear in the PS on
02.12.2007 and was interrogated by PW-22, SHO and the ACP. He
was again called on 03.12.2007 and sent to his house after
interrogation. On 04.12.2007, he along with Ct.Raj Kumar and
Yashwant went to village Bakner where the appellant met him near
the bank on a motorcycle. He was again interrogated and confessed to
his guilt. He was arrested vide Ex.PW-22/A and his disclosure
statement was recorded. Thereafter, the appellant led them to the
forest of Katlupur near the neher/canal, where the appellant pointed
out the dead body of the deceased, which was lying between bushes of
kikar and the dead body was thereafter, recovered on the instance of
the appellant Kuldeep. At the time, Rakesh (brother of deceased)
came to the spot, when Rakesh was called through Ct.Yashwant prior
to the recovery of the body when the appellant had disclosed that he
could recover the body and upon their arrival, they also joined the
investigation. The dead body was identified by Rakesh.
43. PW-22 was thoroughly cross-examined wherein he stated on
01.12.2007, the notice under Section 160 Cr.P.C. was served upon the
appellant at his house by the witness personally. His time of
appearance was mentioned as 10 AM and he reached PS Narela at
about 11:30 AM and remained there till 3:30 PM. On 03.12.2007, the
appellant was interrogated by the SHO, ACP and PW-22 between 10
AM to 5 PM. He also stated that on 04.12.2007, the appellant was
interrogated by him for about 45 minutes to 1 hour. The appellant had
led the police party to the forest of Katlupur at about 3 PM. They
were accompanied by one public witness Pawan and brother of the
deceased and his police staff as well as the appellant.
44. SI Dalbir Singh (PW-14) deposed that on 04.12.2007, he was posted
at ICPP, Saidpur Police Chowki. On the day at about 3:30 PM, ASI
Devender Singh of Delhi Police of PS Narela telephonically informed
him that one Kuldeep had confessed about his involvement in case
FIR 622/2007 PS Narela, wherein he had killed the deceased and
disposed of his body in the jungles of village Jhinjholi area towards
east side of the Western Yamuna Canal. PW-14 went to the spot and
ASI Devender, Rakesh and counsin of Rakesh met him. One dead
body was also lying in the jungles in the area of village Jhinjholi. In
his cross-examination, PW-14 stated that he had received the
information from ASI Devender Singh at about 3:30 PM and had
reached the spot after sometime along with Ct.Yashbir. He remained
at the spot for about 2-2:15 hours. He also stated that when they
reached the spot, there were about 15-20 persons available.
45. From the aforegoing, it is clear that PW-27 and PW-14 had reached
the spot after the appellant had already recovered the body and thus,
they can at best be said to be the witnesses to the surrounding
circumstances and not the recovery itself.
46. The final witness is the brother of the deceased (PW-1). Rakesh (PW-
1) deposed on 07.08.2008 that on 30.11.2007, they had made a
complaint to the police and on the same day, the body of
Amit/deceased was discovered in the jungle of village Katlupur near a
canal. They had been called by the police after the body had been
discovered for its identification. Thereafter, the examination was
deferred on two occasions and on 29.08.2009, PW-1 deposed that the
FIR was lodged on 30.11.2007 and then they had made efforts to trace
the deceased. On 04.12.2007, ASI Devender called them at Banknair
Railway Phatak, Narela. His cousin Pawan also accompanied him.
ASI Davender and other police officials met them there. Appellant
was also with ASI Devender in police jeep. The police officials
informed him that the appellant has disclosed about the murder of the
deceased and was leading them to recover the dead body. The police
officials and the appellant started in the police jeep and they followed
on their bike. They reached the area of jungles of Katlupur Village
near the canal. The appellant pointed towards a place and there was
blood lying on the ground. The appellant also pointed towards the
bushes, where the dead body of the deceased was lying. During cross-
examination, PW-1 stated that on 04.12.2007, ASI Devender had
called them to visit the police station. He also stated that they had met
the IO between 3-4 PM at the railway phatak Baknair, Narela along
with his father, mausha ji (uncle) and other family members. They
were in a Maruti Van and accompanied the IO. When they reached
the said Katlupur forest, Haryana Police was already there. He along
with Pawan stayed at PP Saidpur for about 10-15 minutes and then
came back to his house.
47. Later on, when the witness was once again examined after the
summoning of the accused Bijender (acquitted by the Trial Court), he
deposed that on 04.12.2007, the body of the deceased was recovered
from Katlupur by the police and they learnt the same after receiving a
call from the police.
48. We find that there are numerous inconsistencies, contradictions and
improbabilities in the versions of the prosecution witnesses. Even if
we ignore the minor contradictions like the time of arrival, reaching of
the spot and the vehicles used, there remain numerous glaring
contradictions which go to the root of the case of the prosecution.
49. PW-26 and PW-14 have categorically testified that they had arrived
after the recovery of the body and did not witness the actual pointing
by the appellant herein. Regarding the remaining evidence, there is no
clarity as to when the brother of the deceased, i.e. Rakesh (PW-1), had
reached the spot. Ct.Raj Kumar (PW-26) deposed that Rakesh and
Pawan arrived after the recovery had been effected and only identified
the body. There is no clarity in the version of PW-22. On the other
hand, PW-1 had, during his examination on 07.08.2008, testified that
the body had been recovered by the police on the day the complaint
was filed, i.e. 30.11.2007. It was only when he was called for further
examination after a gap of about an year, did he run with the story led
by the police witnesses. This clearly suggests that the witness had
been tutored. Even thereafter, he deposed that he was called to the
railway phatak (crossing) and had proceeded along with the police
party to the site of recovery, which remains in stark contrast with what
had been deposed by PW-26. Further, the father, mausha (uncle) and
other family members of PW-1 have been introduced, though they
were not mentioned by anyone else or PW-1 himself previously.
Additionally, he stated in his cross-examination that when they
reached the site, the Haryana Police was already present there and
thus, belying the entire story of the prosecution. If the Haryana Police
had already learnt of the presence of the body, there cannot be any
recovery at the instance of the appellant. The prior knowledge by the
authorities would have removed the location of the body from the
exclusive knowledge of the appellant and thus, outside the contours of
Section 27 of the Evidence Act. We may notice the judgment of a
coordinate bench of this Court in Raj Kumar @ Raju (Supra)
wherein the Bench found that the police had already learnt the
whereabouts of the body of the deceased a day prior to the alleged
recovery and hence, there was no recovery in the eyes of law. The
relevant paragraphs read as under:
19. When this fact about the dead body being in the house
was already in the knowledge of the police on 13.4.2007 the
recovery effected from the spot on the following day i.e. on
14.04.2007 is no recovery in the eye of law. It does not fall
within the parameters of Section 27 of the Evidence Act.
20. Under Section 27 of the said Act, if an information is
given by the accused which leads to a disclosure of a fact it
will be a piece of evidence but if this fact has already been
discovered, it would not be any evidence in the eye of law.
In order to attract this provision the prosecution must prove
that the fact disclosed by the accused was previously not
within the knowledge of the investigating officer or the fact
disclosed was of such a nature which was only in the
knowledge of the accused and was not within the knowledge
of any other person from whom the investigating officer may
have received this information.
...
22. In (1997) 6 SCC 171 Vijender Vs. State of Delhi the
Apex Court while elaborating on the provisions of the
aforenoted provision of law had noted that where the dead
body was already within the knowledge of the investigating
officer, it could not be said that the recovery of the dead
body was discovery of a fact falling within the purview of
Section 27 of the said Act.
23. Having examined the evidence at hand we are
constrained to hold that the recovery of this dead body was
not made pursuant to the disclosure statement of the
accused. It does not fit within the parameters of Section 27
of the Evidence Act. The knowledge that a dead body was
lying in the store room of the house (E-86) of the appellant
and a foul smell was emanating therefrom was known to the
investigating agency prior to recording his disclosure
statement that is why the police kept a vigil outside and
locked the room of the house on 13.4.2007 itself."
(Emphasis Supplied)
50. Similarly, in the present case, if the appellant is to be believed in
respect to his statement in cross-examination, then the Haryana police
must have already learnt the location of the body even prior to the
appellant/accused ever leading them there.
51. We may also notice that the narration of PW-22 is also improbable.
According to him, the appellant/accused was summoned to the police
station on two occasions during the investigation and interrogated by
senior officials like the SHO and the ACP as well as PW-22 on hours
at end, to no avail. He did not crack. However, on the very next day,
having run into the appellant, the ASI (PW-22) was able to extract the
confession within less than an hour. It seems what PW-22 was unable
to do infront of the senior officials in long hours could have been
achieved by him within a short duration alone. On the intervening
night of 03-04.12.2007, PW-22 became a master of the art of
interrogation was able to crack the appellant within the span of an
hour. This remains extremely improbable and raises a doubt as to
whether the accused/appellant had ever confessed or not.
52. Accordingly, we have no hesitation in finding that the prosecution was
unable to show that the dead body of the deceased was recovered at
the instance of the appellant.
RECOVERY OF THE BLOOD STAINED PANT
53. The next incriminating circumstance proved by the prosecution before
the Trial Court was the recovery of the blood stained pant at the
instance of the appellant, which he was wearing at the time when he
confessed to his guilt on 04.12.2007. Testimonies of PW-22 and PW-
26 are relevant in this regard.
54. PW-22 was first examined on 15.07.2011 wherein he deposed about
the entire chain of events of 04.12.2007, from the appellant confessing
his guilt to his leading the police party to the STD Booth, rehriwala
and the forest of Katlupur and did not mention anything about the
recovery of the bloodstained pant. It was only on the next date, i.e.
27.09.2011, that he deposed that he had also seized the pant of the
appellant, which he was wearing at the time of the arrest and small
spots of blood were also present on the pant. The pant was seized by
seizure memo (Ex.PW-22/G). PW-26 also deposed that the blood
stained pant, which the appellant was wearing at the time, was also
seized vide Ex.PW-22/G. We may also notice that the Seizure Memo
(Ex.PW-22/G) states that the an earth coloured pant is worn by the
appellant and upon close inspection, it had sprinkles of blood on it
(khoon jaise chite) which was seized.
55. The recovery fails to inspire any confidence as firstly, it does not stand
to reason that the appellant would be wearing the same blood stained
pants and roaming around when he knows investigations are pending
and he is being summoned by the police; and secondly, it is not
probable that only few drops of blood will be spilled on the pants of
the perpetrator of the murder when the postmortem (Ex.PW-13/A)
shows serious injuries from the head to the hip of the deceased. The
pants would have been drenched in blood, such minor sprinkles are
more likely to have been caused by the injury found on the finger of
the appellant. Further, even though the FSL (Ex.PW-28/A and
Ex.PW-28/B) proved the presence of blood, in the absence of
conclusive serological examination, it cannot be held that the blood
was of the deceased. In such circumstances, the non-examination of
any public witnesses even though it was busy road further raises a
cloud on the version of the prosecution.
56. Hence, the prosecution was unable to prove the incriminating
circumstance beyond reasonable doubt and the benefit should be
extended to the appellant.
INJURY ON THE FINGER
57. It was also held by the Trial Court that the injury on the little finger of
the right hand coupled with the failure of the appellant to explain the
cause of the injury added a circumstance pointing towards the guilt of
the appellant.
58. Dr.Avdesh Kumar Bhagat (PW-5) had deposed that he had prepared
the MLC of the appellant (Ex.PW-5/A) wherein he had observed a six
days old injury on the right little finger of the appellant. The Trial
Court had repelled the explanation of the appellant that the same was
sustained owing to a fall as the injury was sharp and not blunt; and in
our view, rightly so. Be that as it may, we find not even a whisper of
evidence led by the prosecution to link the injury with the incident.
The weapon of the offence has neither been recovered nor ascertained
to say that the injury might have been caused while inflicting blows on
the deceased. In this background, the presence of the injury cannot be
taken as a incriminating circumstance against the appellant.
59. To conclude the prosecution has not been able to prove any of the
individual circumstances beyond reasonable doubt; let alone a
complete chain of incriminating circumstances as mandated in a case
based on circumstantial evidence. The order of conviction recorded
by the Trial Court cannot be sustained.
60. Accordingly, the appeal is allowed. The impugned judgment and
order on sentenced are set-aside. The appellant be set at liberty,
unless wanted in any other case.
61. Trial Court record be returned along with copy of this judgment.
62. Copy of the judgment be sent to the concerned Jail Superintendent to
update his records.
G. S. SISTANI, J.
CHANDER SHEKHAR, J.
th
AUGUST 16 , 2017 //pst
