Delhi High Court
Sh Yashu vs The State on 31 October, 2022
2022/DHC/004505
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 17th October, 2022
Pronounced on: 31st October, 2022
+ CRL.A. 455/2020
SH YASHU ..... Appellant
Represented by: Mr. Pardeep Khatri, Mr. Nasir
Ahmed, Ms. Mehreen Kanwal,
Advocates.
versus
THE STATE ..... Respondent
Represented by: Mr. Prithu Garg, APP for the
State with SI Harender Singh,
P.S. Nangloi.
+ CRL.A. 439/2020
[email protected] ..... Appellant
Represented by: Mr. Neeraj Kumar, Advocate.
versus
THE STATE OF DELHI ..... Respondent
Represented by: Mr. Prithu Garg, APP for the
State with SI Harender Singh,
P.S. Nangloi.
+ CRL.A. 498/2020
CRL.M.B. 1318/2021
SUNIL KUMAR ..... Appellant
Represented by: Mr. Pramod Kumar Dubey,
Senior Advocate with Ms.
Aanchal Budhraja, Dr. Alok,
Mr. Kaustubh Chauhan, Mr.
Siddharth Narang, and Mr.
Prince Kumar, Advocate.
Signature Not Verified
Digitally Signed
By:MANISH KUMAR CRL.A.455/2020& other connected matters Page 1 of 22
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
versus
THE STATE NCT OF DELHI ..... Respondent
Represented by: Mr. Prithu Garg, APP for the
State with SI Harender Singh,
P.S. Nangloi.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. These appeals have been filed assailing the impugned judgment
dated 30th July, 2020 passed by the learned Trial Court convicting the
appellants for offence punishable under Section 302/120B IPC and
additionally convicting appellant Yashu for offence punishable under
Section 25 of Arms Act. The appellant Sunil was acquitted of the
offence punishable under Section 25 of the Arms Act.The appeals also
assail order on sentence dated 11th August, 2020 sentencing the
appellants to life imprisonment for offence punishable under Section
302/120B IPC and fine of Rs. 20,000/- (SI for one year in default of
payment of fine) and appellant Yashu to three years for offence
punishable under Section 25 Arms Act and fine of Rs. 10,000/- (SI of
six months in default of payment of fine).
The Incident
2. As per the case of the prosecution, the deceased girl Nitika,
aged about 21 years, student of B.A. final year, stepped out of her
home Mundka for her college in Bawana at about 9:00 a.m. As per her
father PW-3 Vijender Singh, when he went to close the door of the
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
house, he saw that appellant Yashu and Sunil were standing in front of
parchun (grocery) shop of Sunil. In the meantime, Vineet also came in
a white Swift car bearing no. 3335 and all three were talking with each
other when PW-3 went inside the house. Since, his daughter Nitika did
not return by 3-4:00 p.m. from her college,he became worried, and
started searching for her but could not trace her. His brother PW-14
Kuldeeep Singh got a missing report lodged in Bawana Police Station.
At about 2:30 p.m. on 15th September, 2009, PW-3 received a
telephone call on his mobile no. 9810535131, and an unknown caller
informed him that appellant Yashu Son of Rajbir had shot his daughter
and further informed that the body has been disposed of accordingly.
Upon asking the caller about his identity, he initially refused to
disclose but on PW-3's insistence, mentioned he was one Vikram
speaking from Kurukshetra. PW-3 then called PCR and stated these
facts to police. When the PCR came after about 20-25 minutes,they
went to what was stated as being Yashu's house in the neighborhood
of PW-3's house. Since the main gate of the premises was locked with
an iron chain, the police broke it open and entered where they saw a
pistol in the courtyard with a magazine, a white/cream car color
standing there. In another locked room inside, they found a black
polythene bag which had the dead body of Nitika, who seemed to have
been shot in the temple near the eye. FIR No. 375/2019 was registered
at 6:28 p.m. on 15th September, 2009 at P.S. Nangloi and an
investigation pursued. The appellants were arrested on different dates
and chargesheet was filed for offencesunder Section 302/120B/34 of
IPC and Section 25 of Arms Act. Charges were framed against all the
appellants for committing murder of Nitika in pursuance of criminal
conspiracy. The accused pleaded not guilty and claimed trial. The
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
prosecution examined 29 witnesses in support of their case, statements
of the appellants were recorded under Section 313 Cr.P.C. and no
evidence was led in defence.
Submissions on behalf of the Appellant
3. Learned Senior Counsel appearing for Sunil Kumar in CRL.A.
498/2020 led the arguments and submissions were predominantly
adopted by the counsels of theother two appellants. It was essentially
submitted that the prosecution had been unable to prove the guilt of
the appellants beyond reasonable doubt, since there was no
incriminating evidence found against the appellants and the conviction
by the learned Trial Court had been handed down based on conjecture
and surmises. It was highlighted that even the testimony of PW-3
father of the deceased, could not be treated as last seen evidence, since
what he alleged as having seen was that the three appellants met near
his house on the day when his daughter had left for college, but had
not seen them accompanying or pursuing his daughter. Moreover, it
was apparent from a bare reading of his testimony before the Court
that substantial portion of his deposition was an improvement from his
earlier statements and therefore, his testimony could not be relied
upon. Moreover, the prosecution had not presented any evidence
whatsoever of the caller who had identified himself as 'Vikram from
Kurukshreta' and had called from an unidentified number 9255785505
nor was the various critical elements of the recovery of body from the
farmhouse made available including inter alia the evidence of the
broken lock of the farmhouse, the chance prints, any tyre marks in
front of the farmhouse and most importantly evidence relating to the
ownership of house by Yashu or his occupancy thereof. The learned
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
Trial Court had proceeded on the basis that since it was the Yashu's
farmhouse and the dead body was found there, it was appellant
Yashu's burden to provide cogent explanation in view of the Section
106 of the Indian Evidence Act. The counsel for the appellant,
therefore, submitted that in the absence of any last seen evidence, lack
of investigation regarding the caller who had informed PW-3 of the
death, no details of where his daughter had allegedly been shot as
stated in the rukka Ex. PW-17/A or any CDR records, the prosecution
has been unable to prove their case beyond reasonable doubt. As
regards the ID-card and admission ticket of the deceased, recovered
from the appellant Sunil, in FIR No. 234/2009 P.S. Phase-VIII
Mohali, Punjab under Section 25/54/59 of the Arms Act along with
three live cartridges of the pistol allegedly used in the commission of
murder, the counsel for the appellant pointed out that the learned Trial
Court itself in para 49(b) of the impugned judgment had observed that
the weapon seems to have been planted upon him. Also, there was no
investigation in relation to the recovery of the car or the motorcycle at
the said farmhouse to establish the ownership.Also, the ballistic report
from the FSL had returned no opinion of whether the weapon
recovered from appellant Sunil was the weapon used in the
commission of the crime.
Submission on behalf of the Prosecution
4. Learned Additional Public Prosecutor (APP) on behalf of the
prosecution countered the submissions of the appellants by contending
that the testimony of PW-3 father and PW-14 uncle of the deceased
was quite clear and cogent, and that they had identified the farmhouse
from where dead body was discovered as belonging to appellant
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
Yashu and that appellant Yashu or other appellants had not given any
proof in either of their statements recorded under Section 313 Cr.P.C.
or otherwise to state that this house did not belong to or was occupied
by either of them. In support of this contention, the learned APP relied
on the judgment of the Hon'ble Supreme Court in Ranjit Kumar
Haldar v. State of Sikkim (2019) 7 SCC 684 where the Apex Court
reiterated the view that recovery of the dead body from the house that
is in possession of the accused is sufficient to shift the onus on the
accused to explain circumstances against him by virtue of the Section
106 of the Indian Evidence Act. As per learned APP, the premises
where the body was discovered was locked from outside, the room
where the body was discovered was also locked from outside, the
corpse of the victim was found wrapped in black polythene, and the
gun was recovered from the courtyard. The burden would, therefore,
shift on appellants Yashu and Sunil to bring material on record to
suggest that the premises were not under their ownership or
possession. Further, it was contended that the presence of the
appellants close to the victim's house and spot where the corpse was
discovered, was proven by the deposition of PW-3 and PW-14. The
fact that the appellants were seen in the vicinity, and acting
suspiciously within the window of time when the deceased could have
been murdered, is dispositive of their guilt. As regards the recoveries
affected from the appellants, the learned APP contended that the
deceased ID-card and college Admission Card were recovered from
appellant Sunil which was identified by PW-3 as that of the deceased.
As per the disclosure of the appellant Vineet, the car bearing no. DL
8CNB3355 was recovered and was identified by PW-3 as the one
driven by appellant Vineet on 14th September, 2009 when he saw him
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
at Sunil's shop. The learned APP further contended that since PW-3
had a land dispute with appellant Sunil and his family, it could have
been the basis or the motive to kill his daughter.
The Evidence
5. The evidence on record, relevant and necessary for assessment
of this case, is inter alia, as under:
5.1 PW-3, Vijender Singh, father of the deceased, deposed that his
daughter left for her college at about 9:00 a.m. on 14 th September,
2009 and when he was closing the door of his house as she left, he saw
that appellant Yashu and Sunil were standing in front of the parchun
(grocery) shop of Sunil. He identified both the appellants in Court. In
the meantime, appellant Vineet, whom he also identified in Court,
came there in white Swift car bearing no. 3335 and all three were
talking to each other. PW-3 went inside the house but since his
daughter did not return till 4:00 p.m. in the evening, which was the
usual time for return, he started searching for her and sent his younger
brother PW-14 Kuldeep to Bawana to trace her. PW-14 got a missing
report recorded at P.S. Bawana but there was still no trace of the
daughter of PW-3. On 15th September, 2009 at about 2:30 p.m., he
received a telephonic call from phone no. 9255785505 from an
unknown caller informing him that Yashu Son of Rajbir had shot his
daughter (terilarki ko goli maar di hai) and further stated that her dead
body had been disposed of accordingly (uski dead body Yashu dost or
uskegharwalo ne thikanelaga di hai). When PW-3 asked the caller
who he was, he refused to divulge his identity, but later on his
insistence, he mentioned that he was one 'Vikram speaking from
Kurukshetra'. PW-3 called the PCR and when the PCR came, they
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
went to „Yashu ka makan‟ in his neighborhood. The house was locked
with the iron chain and when the police broke it and went inside, they
found pistol, white/cream color car standing and a motorcycle. The
premises basically had a tin shed for keeping buffaloes and some
animal fodder was also lying there. Inside one of the roomswhich was
locked which was broken by the police, they found black polythene
bag with the dead body of his daughter. He deposed that he had a land
dispute with the appellant Sunil and his family and had called the PCR
when they tried to lay the foundation on the disputed land, and he
alleged that this could have been the motive for killing his daughter.
He identified the body of his daughter and the bag, wristwatch, and
clothes that she was wearing when she left home on 14 th September,
2009. In his cross-examination by the counsel for the appellants, he
was confronted with his statement PW-3/DA recorded under Section
161 Cr.P.C. where on various points he had improved his testimony.
In his cross-examination, he resiled from various testimonies
including that he had seen appellant Vineet present near his house in
Swift car bearing no. 3335 or that he saw all three people talking
before he entered his home or that he had been suspicious upon the
appellants, since they were seen standing together or that the PCR
came to his house within 20-25 minutes or that he had made call to the
PCR and other various aspects.
5.2 PW-14 Kuldeep, the uncle of the deceased, deposed that on 14th
September, 2009 at about 2.30-3.00 p.m., when he was coming back
towards his house from his plot, he passed by the plot of appellant
Yashu (whom he identified in Court) and the gate of the plot was lying
open and three appellants (whom he identified) were standing near
Ikon car of white colour and talking to each other. On seeing him they
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
turned their faces towards the opposite direction and thereafter, PW-14
went to his house. Since his niece did not return till 4:00 p.m., and at
about 6:00 p.m., his brother told him that Nitika had not returned
home from the college,both tried to trace her, though
unsuccessfully.He then lodged a missing report at P.S. Bawana at 9:00
p.m. and came back at about 10:00 p.m. and noticed that the gate of
Yashu's plot which usually remained open was locked. The next day
his brother told him about the telephone call from the caller which led
to the discovery of the dead body from Yashu's plot. On 21st
September, 2009, he was asked to join the investigation with the
police party who arrested appellant Yashu. In his cross-examination,
he stated that he had not raised any suspicion against anyone in the
missing report.He had not made any enquires from her college after
when she could not be traced, though he did contact relatives and
friends. In his cross-examination, he stated that the house of Yashu
was situated in a separate gali from the gali of his house and there
were 2-3 houses lying vacant in that gali. As per PW-14,in the house
of Yashu, there were about 5 to 6 rooms out of which 3-4 rooms were
in the possession of appellant Sunil and 2-3 rooms were in the
possession of appellant Yashu. He stated that appellant Yashu was not
his near relative and that according to him appellant Yashu had not left
that house in the year 2006 or that it was lying vacant since 2006. He
denied the suggestion that the deceased was having love affair with
one boy Anu and that he and his brother PW-3 were against that affair.
5.3 PW-8 Dr. Manoj Dhingra of Sanjay Gandhi Memorial Hospital
deposed that on 16th September, 2009, he conducted the post mortem
on the body of the deceased and noted one fire arm entry wound 3x2
cm oval in shape present in the temporal region of the head which had
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
caused fracture of the temporal bone, puncture of the dura under it
with brain matter coming out and blackening and soot particle present
with the brain matter. There was a fracture of the anterior cranial fossa
present from left to right side and fracture of the roof of the left eye
present with left eye protruding out. Besides this there was scratch
abrasion on the abdomen. As per his opinion, the death was due to
craniocerebral damage consequent to firearm injury and the post
mortem report was exhibited as PW-8/A. As per PW-8,rigor mortis
was slightly present all over the body and his estimate was that the
death had occurred in the last 24-36 hours. The FSL report was
exhibited as Ex. PW-28/O and PW-28/P to which PW-8 ACP Rajbir
Malik had deposed. As per the report the live cartridges were
successfully test fired through improvised pistol Ex. F3, but no further
opinion was given. As per the Ballistic Report No. FSL 2009/F-4555
dated 03.08.2010, the empty cartridge Ex. P5 (recovered from the
spot) was fired from the pistol 9 mm calibre Ex. P6 (recovered from
the spot). However, the lead piece of discharged bullet Ex. P4,
recovered from the spot, was found deformed & no ballistic opinion
could be given on it.
5.4 PW-9 Constable Resham Singh deposed that on 15th September,
2009, he went along with ASI Rampal and Constable Rajesh to the
house of the Yashu at Gugga Johar, Mundka which was found
locked. He saw magazine and pistol lying in the courtyard visible from
outside the gate, but they could enter only after breaking the locks of
the gate. The lock of the gate was broken, and they entered inside the
house. The other rooms were found locked and foul smell was coming
out from the room.
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
5.5 PW-28 ACP Rajbir Malik, the Investigating Officer, stated that
on 15th September, 2009, he was posted at P.S. Nangloi when he got
the PCR call regarding the dead body lying in the house of Yashu. At
the spot, he met PW-3 and PW-14, and an iron gate was found locked
with chain.From the grill of the gate, he could see one pistol and
magazine lying in the courtyard. They had to break open the chain to
enter and inside they found a motorcycle bearing registration No. HR
12L 4031. There was a room attached to the veranda which was found
locked, and it was opened. A foul smell was emanating from the other
room, and they found a dead body in supine condition. PW-3
identified the dead body as that of his daughter. The crime team also
reached the spot and inspected it and tried to take chance prints,
however, they could not be developed. The pistol and magazine were
seized and secured, and a site plan was prepared. The broken lock with
the chain was taken into possession, so also the blood-stained earth
and earth control, the plastic sheet which was wrapped on the dead
body and two blood-stained bedsheets. The articles found on the dead
body including the bag was also seized. PW-17 endorsed the rukka
and PW-11 was sent to register the FIR. On the same evening, PW-3
and PW-14 did not give their statement since they were shocked, so
their statements were recorded on the next day. On 17th September,
2009, he received secret information in respect of appellant Vineet,
and on that basis appellant Vineet was apprehended. Pursuant to his
disclosure, the car No. DL 8C NB 3335 was taken into possession
from near the house of appellant Vineet. On 21st September, 2009, on
the basis of secret information regarding appellant Yashu, a raiding
party was prepared, and he was arrested. Upon his disclosure, the
police went to Bahadurgarh and other places, but appellant Sunil could
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
not be found and ultimately after persistent efforts on 23rd
November,2009, he received information that appellant Sunil was
apprehended by the staff of Punjab Police. Upon making inquiries
from P.S. Mohali, he moved an application before the Court for
issuance of production warrants which was allowed for 04th
December, 2009 and when appellant Sunil was produced in Tis Hazari
Court, Delhi, he was arrested. In his disclosure statement, he stated
that he was using the property of appellant Yashu on rent. On his
further disclosure, three live cartridges were recovered from his house
at Mundka. Later, based on the secret information, some documents of
deceased were recovered from the possession of the appellant Sunil
when he had been apprehended by the staff of Punjab Police and
therefore, PW-28 sent his staff to verify the articles and get
photocopies of the same. In his cross-examination, he stated that PW-3
had not made any statement or hinted at the involvement of appellant
Vineet on 15th September,2009 and had not given any statement prior
to 16th September, 2009 regarding his involvement. He stated that
neither chance prints could have been developed from the spot nor
were there any tyre marks, nor he found any eyewitness. There were
no public persons who had seen the accused locking the gate and no
one was found to have knowledge or have seen the appellants there. In
his cross-examination, he further stated that at the time of his visit to
the farmhouse from where the dead body was recovered, there was
complete darkness.They had also not verified the visit of the deceased
to the college on the date of incident. As regards the caller who called
PW-3, on verification it was revealed that it was a telephone number
of the PCO. He stated that he had also not verified the receipt of the
call on PW-3's mobile from that number. He stated that no public
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
person had given any statement that the house, from which the body
was recovered, belonged to Yashu or was taken on rent by the
appellant Sunil. He stated that the call details and the call tower
locations of the appellant were not made part of the chargesheet. He
also stated that the ballistic expert was not called to the spot, and he
could not remember whether a dog squad was called. He also
confirmed that no opinion was taken from the doctor who conducted
the post mortem regarding any possibility of self-inflicted injury or
any finger impressions of the hands of the deceased were taken to rule
out the possibility of self-inflicted injury.
Analysis
6. Upon an assessment of the evidence on record and appreciation
of the contentions by counsels of the parties, this Court is of the
considered view that the prosecution has been unable to prove the
guilt of the appellants beyond reasonable doubt, for inter alia the
following reasons:
6.1 The reliance on the last seen evidence of PW-3 that on 14th
September, 2009 at about 9:00a.m., when he was closing the door of
his house as his daughter (the deceased) left for college, he saw
appellants Yashu and Sunil standing in front of the parchun shop of
Sunil, later joined by appellant Vineet who came in a white Swift car,
is not credible or complete to serve as last seen testimony. There is no
evidence or statement of any kind whatsoever by any witness for the
prosecution that PW-3 had seen the deceased in the company of any of
the appellants on that morning, or that the appellants pursued the
deceased after she left her home, or even showed any visible body
language that they would do so. It is axiomatic that last seen evidence
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
must relate to the combination of seeing the victim with the accused
departing from the site of the place of incidence in a time span which
is proximate to the commission of the crime. The reference in this
regard may be made to the following paras of decision of the Hon'ble
Supreme Court in Nizam &Anr. V. State of Rajasthan(2016) 1 SCC
550:
"14. The courts below convicted the appellants on the evidence
of PWs 1 and 2 that the deceased was last seen alive with the
appellants on 23-1-2001. Undoubtedly, the "last seen theory" is
an important link in the chain of circumstances that would point
towards the guilt of the accused with some certainty. The "last
seen theory" holds the courts to shift the burden of proof to the
accused and the accused to offer a reasonable explanation as to
the cause of death of the deceased. It is well settled by this
Court that it is not prudent to base the conviction solely on
"last seen theory". "Last seen theory" should be applied taking
into consideration the case of the prosecution in its entirety and
keeping in mind the circumstances that precede and follow the
point of being so last seen.
15. Elaborating the principle of "last seen alive" in State of
Rajasthan v. Kashi Ram [(2006) 12 SCC 254: (2007) 1 SCC
(Cri) 688], this Court held as under: (SCC p. 265, para 23)
"23. It is not necessary to multiply with authorities. The
principle is well settled. The provisions of Section 106 of
the Evidence Act itself are unambiguous and categorical
in laying down that when any fact is especially within the
knowledge of a person, the burden of proving that fact is
upon him. Thus, if a person is last seen with the deceased,
he must offer an explanation as to how and when he
parted company. He must furnish an explanation which
appears to the court to be probable and satisfactory. If he
does so he must be held to have discharged his burden. If
he fails to offer an explanation on the basis of facts within
his special knowledge, he fails to discharge the burden
cast upon him by Section 106 of the Evidence Act. In a
case resting on circumstantial evidence if the accused
fails to offer a reasonable explanation in discharge of the
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
burden placed on him, that itself provides an additional
link in the chain of circumstances proved against him.
Section 106 does not shift the burden of proof in a
criminal trial, which is always upon the prosecution. It
lays down the rule that when the accused does not throw
any light upon facts which are specially within his
knowledge and which could not support any theory or
hypothesis compatible with his innocence, the court can
consider his failure to adduce any explanation, as an
additional link which completes the chain. The principle
has been succinctly stated in Naina Mohamed, In re.
[1959 SCC OnLine Mad 173 : AIR 1960 Mad 218] "
(emphasis supplied)
Reference is also made to Digamber Vaishnav &Anr. Vs. State of
Chhattisgarh (2019) 4 SCC 522, where the Hon'ble Supreme Court
held inter alia, as under:
"40. The prosecution has relied upon the evidence of PW 8 to
show that the accused and victims were last seen together. It is
settled that the circumstance of last seen together cannot by
itself form the basis of holding accused guilty of offence. If there
is any credible evidence that just before or immediately prior to
the death of the victims, they were last seen along with the
accused at or near about the place of occurrence, the needle of
suspicion would certainly point to the accused being the culprits
and this would be one of the strong factors or circumstances
inculpating them with the alleged crime purported on the
victims. However, if the last seen evidence does not inspire the
confidence or is not trustworthy, there can be no conviction. To
constitute the last seen together factor as an incriminating
circumstance, there must be close proximity between the time of
seeing and recovery of dead body.
41. In Arjun Marik v. State of Bihar [Arjun Marik v. State of
Bihar, 1994 Supp (2) SCC 372: 1994 SCC (Cri) 1551], it has
been held as under: (SCC p. 385, para 31)
"31. Thus the evidence that the appellant had gone to
Sitaram in the evening of 19-7-1985 and had stayed in
the night at the house of deceased Sitaram is very shaky
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
and inconclusive. Even if it is accepted that they were
there it would at best amount to be the evidence of the
appellants having been seen last together with the
deceased. But it is settled law that the only circumstance
of last seen will not complete the chain of circumstances
to record the finding that it is consistent only with the
hypothesis of the guilt of the accused and, therefore, no
conviction on that basis alone can be founded."
42. In Kanhaiya Lal v. State of Rajasthan [Kanhaiya Lal v.
State of Rajasthan, (2014) 4 SCC 715: (2014) 2 SCC (Cri) 413],
the Court has reiterated that the last seen together does not by
itself lead to the inference that it was the accused who
committed the crime. It is held thus : (SCC p. 719, para 12)
"12. The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be
something more establishing connectivity between the
accused and the crime. Mere non-explanation on the part
of the appellant, in our considered opinion, by itself
cannot lead to proof of guilt against the appellant."
(emphasis supplied)
6.2 The prosecution did not examine anybody from the college
which the deceased was attending, to confirm, corroborate or even
supply any information regarding the entry of the deceased into the
college, her presence in the college, her attendance in any particular
class, having met any friends in the college, her exit from the college.
The prosecution has been unable to furnish any evidence regarding the
facts and circumstances relating to the movement of the deceased from
the point when she left her home at 9:00 a.m. till her dead body was
recovered at the neighboring premises. There is nothing to implicate
the appellants regarding their presence with the deceased in this time
span. No call records have been presented by the prosecution nor any
other corroborative evidence.
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
6.3 The testimony of PW-14 that he saw the appellants standing
near the premises where the dead body was found, and that they were
talking to each other in the evening also does not help the case of the
prosecution.For the reason that neither did he see them inside the
premises where the body was found nor much can be conclusively
determined from his testimony (even if true) that they turned their
faces away when PW-14 saw them. The nature of PW-14's testimony
in this regard cannot be considered sufficient or cogent enough to
sustain a conviction of the appellants.
6.4 The primary issue which has been argued by the prosecution is
regarding the discovery of the dead body in the premises of Yashu part
of it being allegedly rented out to Sunil. However, there is not an iota
of evidence led by the prosecution to confirm the fact that this
premises was actually owned or was in exclusive and continuous
possession of Yashu or Sunil. Neither any property documents have
been presented by the prosecution nor any member of the family of
Yashu been examined in this regard. The reliance of the prosecution in
this regard is on two pieces of evidence. Firstly, the disclosure
statement by appellant Sunil (Ex.PW-15/B) stating that he was using
Yashu's property as a place where animals are tied, on rent; and
secondly, testimony of PW-14 stating in his cross-examination that it
was Yashu's house where there are 5-6 rooms out of which 3-4 rooms
were in the possession of appellant Sunil and 2-3 rooms were in the
possession of appellant Yashu. As regards the first reliance on the
disclosure of Sunil, it would be a statement in custody relating to a
mental fact which would be inadmissible under Section 27 of the
Indian Evidence Act. As regards the testimony of PW-14, it would
require corroboration of a substantial nature to accept the statement of
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
PW-14, who was an interested witness not only as relative of the
deceased but that of PW-3, who had a prior dispute with appellant
Sunil and his family. This Court finds that PW-14's testimony in this
regard is unreliable and unsupported. A mere statement of the witness
for the prosecution stating that a particular premises is owned/rented
by an accused is clearly not enough for the prosecution to rely and rest
a case of conviction on it.Moreover, there was no article found in the
premises belonging to either of the appellants and which could have
given a chance to the prosecution to prove that these premises were
indeed owned/occupied/rented by any of the appellants. There was no
confirmation led by the prosecution regarding the ownership of the car
which was recovered from the premises. The reliance on the
disclosure of appellant Vineet that this car was used in taking away the
deceased is again inadmissible under Section 27 of the Indian
Evidence Act as a mere piece of information not leading to any
discovery of a hitherto undiscovered fact. As regards the motorcycle,
which was recovered from the premises, no evidence was led by the
prosecution regarding its ownership. In these circumstances, it would
be sufficient to state that the prosecution case had no legs to stand on
regarding proof that this premises where the body was found was
either in the ownership/possession/tenancy or even exclusive and
continuous possession of any of the appellants in order to shift the
burden on the appellants under Section 106 of the Indian Evidence
Act. The law on Section 106 of the Indian Evidence Act is categorical,
in that once the place where the dead body is found is proved to be
used and in exclusive possession of the accused, then the onus can be
said to shift, in order to elicit facts which are exceptionally in
knowledge of the accused.
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
6.5 In the decision by the Hon'ble Supreme Court in Satye Singh &
Anr. V. State of Uttarakhand (2022) 5 SCC 438 it has been held:
"19. Applying the said principles to the facts of the present
case, the Court is of the opinion that the prosecution had
miserably failed to prove the entire chain of circumstances
which would unerringly conclude that alleged act was
committed by the accused only and none else. Reliance placed
by learned advocate Mr. Mishra for the State on Section 106 of
the Evidence Act is also misplaced, inasmuch as Section 106 is
not intended to relieve the prosecution from discharging its duty
to prove the guilt of the accused.
20. In Shambu Nath Mehra v. State of Ajmer [Shambu Nath
Mehra v. State of Ajmer, AIR 1956 SC 404], this Court had
aptly explained the scope of Section 106 of the Evidence Act in
criminal trial. It was held in para 11: (AIR p. 406)
"11. This lays down the general rule that in a criminal
case the burden of proof is on the prosecution and
Section 106 is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet certain
exceptional cases in which it would be impossible, or at
any rate disproportionately difficult, for the prosecution
to establish facts which are "especially" within the
knowledge of the accused and which he could prove
without difficulty or inconvenience. The word
"especially" stresses that. It means facts that are pre-
eminently or exceptionally within his knowledge. If the
section were to be interpreted otherwise, it would lead to
the very startling conclusion that in a murder case the
burden lies on the accused to prove that he did not
commit the murder because who could know better than
he whether he did or did not. It is evident that cannot be
the intention and the Privy Council has twice refused to
construe this section, as reproduced in certain other Acts
outside India, to mean that the burden lies on an accused
person to show that he did not commit the crime for
which he is tried. These cases are Attygalle v. Emperor
[Attygalle v. Emperor, 1936 SCC OnLine PC 20 : AIR
1936 PC 169] and Seneviratne v. R. [Seneviratne v. R.,
(1936) 3 All ER 36] , All ER at p. 49.""
(emphasis supplied)
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
6.6 Short of this evidence, it could easily be contended that an
abandoned premises like the one where the body was discovered could
have been possibly used by anybody for dumping the body of the
deceased or committing any other crime relating thereto. It may be
noted that no chance prints were recovered as well and there was no
evidence relating to the key to the locks which was found to secure the
gate and the room, none of which was discovered in the possession of
the appellants or disclosed by the appellants as being recoverable from
some place.
6.7 It is also extremely important to note that there was no
investigation regarding the identity of the caller from Kurukshetra
who had called PW-3 to suggest that the daughter had been killed by
the appellants and that the body had been disposed of. There was no
investigation also of whether PW-3 had indeed received that call by
analyzing the CDRs of PW-3. Further, careful examination of PW-3's
testimony would show that while the so-called caller from
Kurukshetra informed him only that Yashu son of Rajbir had shot his
daughter and that his family and friends had disposed of the body,
PW-3 was able to identify the spot i.e. Yashu ka makan in his
neighborhood as the house which the caller had mentioned. There is a
discrepancy in this aspect since PW-3 does not state in his testimony
that the caller had also indicated that the body had been disposed of
for the crime committed in Yashu's house in his own neighborhood.
Even though this may seem like a minor discrepancy, it is important to
take it into account considering that there is no other evidence to
corroborate the existence of the call to PW-3 or the identity or location
of the caller.
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
6.8 Attention had been drawn to the finding of the learned Trial
Court at para 49(b) of the impugned judgment, where the learned
Additional Sessions Judge had observed that the weapon found with
the appellant Sunil by P.S. Mohali seem to have been planted upon
him. While this Court need not comment on the investigation under
FIR 234/2009 by PS. Mohali, Punjab, in a charge under Section
25/54/59 of the Arms Act against appellant Sunil, it is important only
to the extent that three live cartridges recovered from appellant Sunil
were not matched with the weapon recovered in the commission of the
crime from the premises.As per the ballistic report only the three live
cartridges could be fired from an improvised pistol and no further
opinion was given. Besides in answer to question No. 71in his
statement recorded under Section 313 Cr. PC., the appellant Sunil,
states that the document of the deceased were planted on him as he
had obtained a copy of the Register No. 19 through RTI to show the
same. It is further evident from the ballistics report that there was no
opinion returned to whether the weapon recovered from the premises
was indeed the weapon used in the commission of the crime.
6.9 Moreover, there is no proof regarding the motive and the
foundational facts regarding the same. A mere statement by PW-3 that
there was a family dispute with Sunil regarding property, without any
further corroboration, cannot be taken as credible. Also, even if PW-3
does mention regarding the property dispute there is nothing in his
statement to indicate that the dispute was simmering and had
precipitated in any manner in the recent past to trigger murder of his
daughter. Neither the deceased nor PW-3 had received any threat
which was in the knowledge of PW-3, or even PW-14. Even the Trial
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
2022/DHC/004505
Court observes in para 50(b) of the impugned judgement that the exact
motive was hazy and unclear.
Conclusion
7. On the basis of the above discussion and analysis, this Court
finds that there is no evidence available on record, on the basis of
which the appellants can be proven guilty beyond reasonable doubt for
the murder of the deceased and therefore, the conviction and the order
on sentence thereon passed by the learned Trial Court cannot be
sustained and is set aside.
8. The appellants are therefore acquitted and be released from
custody forthwith.
9. Appeals are accordingly disposed of.
10. Copy of this judgment be uploaded on website and be also sent
to Superintendent, Tihar Jail for intimation to the appellants and
updation of records.
CRL.M.B. 1318/2021 in CRL.A. 498/2020
Application is disposed of as infructuous.
(ANISH DAYAL)
JUDGE
(MUKTA GUPTA)
JUDGE
OCTOBER 31, 2022/rk
Signature Not Verified
Digitally Signed
Signing Date:31.10.2022
16:33:10
