Delhi High Court
Vijay Bahadur @ Monu vs State on 29 May, 2023
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 12.04.2023
Pronounced on: 29.05.2023
+ CRL.A. 1278/2011
VIJAY BAHADUR @ MONU ..... Appellant
Through: Mr. Ashutosh Bhardwaj,
Advocate
versus
STATE ..... Respondent
Through: Mr. Naresh Kumar Chahar,
APP for the State with
Inspector Santosh Kumar, P.S.
Kashmere Gate
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
1. The present appeal has been filed by appellant under Section 374
of the Code of Criminal Procedure, 1973 („Cr.P.C‟) challenging the
impugned judgment dated 08.09.2011 and order on sentence dated
14.09.2011 passed by learned Additional Sessions Judge 02 (West), Tis
Hazari Courts, Delhi („Trial Court‟) in Sessions Case No. 04/03/08
arising out of FIR bearing no. 541/2004 registered at Police Station
Kashmiri Gate whereby the learned Trial Court has convicted the present
appellant for the offences punishable under Sections 120B and 201 of
the Indian Penal Code, 1860 („IPC‟) read with Section 302 of IPC by
virtue of judgment dated 08.09.2011. Vide order on sentence dated
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14.09.2011, the appellant was sentenced to undergo rigorous
imprisonment for one year with fine of Rs. 2000/-, and in default of
payment of fine to undergo simple imprisonment for two months.
2. Briefly stated, case of the prosecution is that on 07.11.2004, the
complainant i.e. Sh. Shri Bhagwan had lodged a written complaint
alleging that his Qualis Car bearing no. HR-38GT-3590 had been
missing along with the driver i.e. Sh. Vijay Kumar/deceased. The
alleged car was used for the purpose of tourism through Gujarat Travels.
It was alleged that on 04.11.2004, one Vinod Kumar had booked the
Qualis Car for a trip to Aligarh under the name of one Abhay Kumar,
with a scheduled return on 05.11.2004. It was further alleged that when
the car did not return, PW-5 i.e. Rajesh Kumar (brother of the
complainant), Mohan Kumar i.e. PW-1, Anil Maggoo and Praveen
Kumar Tyagi had initiated a search for the car. Thereafter, they had gone
to the address given during the car booking where they had met Karan
Singh i.e. PW-14 who had stated that Santosh, brother of accused
Birender lived in the same area. Upon meeting Santosh, he had disclosed
that his brother Birender Singh, Vinod Kumar and few others had gone
to Lakmipur Khurkari. The said persons had then taken Santosh along
with them to Lakmipur Khurkari but Bijender Singh was not found.
However, the owner of the car had identified Bijender Singh and Vinod
through photographs. Subsequently, PW-5 had come to know that two
unidentified dead bodies were found a few days ago in the area of P.S.
Patiali. They visited the police station and identified one of the bodies as
the driver, Vijay Kumar, based on photographs and his clothes. On
09.11.2004, a written complaint was lodged, resulting in registration of
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FIR against Birender Singh and Vinod @ Abhay. Thereafter, two
accused namely Birender and [email protected] Abhay were arrested from village
Nauri, District, Etah. Both of them were interrogated vide disclosure
statement and they had also pointed out the place of incident where the
dead body was thrown. On 13.11.2004, the police officials had taken
accused Birender and Vinod to Kanpur where they had discovered that
the alleged car had been abandoned and was recovered from a village
under the jurisdiction of PS Shivli. On checking the car, it was found
that its number plate had been changed. From the car, permit, insurance,
fitness, RC and two number plates of front and back bearing no. HR
38GT3590 were recovered. Car along with above articles was seized
vide seizure memo Ex. PW16/G. Thereafter, on 15.11.2004 the
investigating agency had gone to Roadways bus stand Oraiya U.P. and
to Ambika Lodge where they had met one Akhlesh Kumar Dubey who
had produced the register from 18.5.2004 to 14.11.2004 and copy of the
registers showing entry of Birender, Sanjeev and Vinod were also
seized. Akhlesh Dubey had identified accused Vinod in their custody.
Then the investigating agency had come back to Delhi and produced the
accused before the learned Trial Court. On 16.11.2004, PW-14 i.e.,
Karan Singh had produced accused Kaushlender @ Sanjeev and Vinod
@ Master, both the co-accused persons were arrested and separate arrest
and search memos were prepared. Subsequently, accused Vijay Bahadur
i.e. the appellant herein was arrested by the I.O. on 26.04.2006 and a
supplementary challan was filed before the learned Trial court on
17.05.2006. The disclosure statement of accused Vijay Bahadur @
Monu revealed that he had left the vehicle bearing no. HR38GT3590 at
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Shivli and to this affect a pointing out memo was prepared at the
instance of accused Vijay Bahadur @ Monu vide Ex.PW17/F, which
was taken away by co-accused persons. Hence, charge was directed to
be framed against the present petitioner only for the offence punishable
under Section 201 of IPC.
3. By way of impugned judgment dated 14.07.2006, the learned
Trial Court had convicted the present appellant for offence punishable
under Sections 120-B/201 read with 302 of IPC only. The relevant
portion of the impugned judgment qua the present appellant reads as
under:
"58. So long as accused Vijay Bahadur @ Monu is concerned, no
concrete evidence has come on record. But it has come on record
in the cross-examination of PW17 Insp. Randhir Singh, I.O. that
first he filed a challan against four accused persons but the
challan was not filed against Vijay Bahadur @ Monu.
Subsequently, on verbal directions of the then predecessor of this
court the challan was prepared against Vijay Bahadur @ Monu.
After preparation of challan against accused Vijay Bahadur @
Monu in March 2005 he neither made any further investigation
nor collected any other evidence against him upto April 2006. He
admitted that he has not diluted the investigation thereafter as
there was no proof during the investigations found against
accused Vijay Bahadur @ Monu. Besides, PW Parmod Kumar
who has been cited as witness by the I.O. in respect of accused
Vijay Bahadur could not be examined. He could have been the
star witness in this case in respect of accused Vijay Bahadur @
Monu since he is an advocate by profession at Orayya to whom
accused Vijay Bahadur @ Monu along with co-accused persons
approached to sell the vehicle in question but on knowing the
facts he asked the accused persons to go away from his house
along with the alleged vehicle. A careful perusal of the disclosure
statement of accused Vijay Bahadur @ Monu reveals that he left
the vehicle bearing no. HR 38 GT -3590 at Shivli and to this
affect a pointing out memo was prepared at the instance of
accused Vijay Bahadur @ Menu vide Ex.PW17/F, which was
taken away by co-accused persons. It is interesting to note that
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accused Vijay Bahadur was arrested by the I.O. on 26.04.2006
and a supplementary challan was filed before this court on
17.05.2006 and a charge was directed to be framed against him
for the offence u/s 201 IPG vide dated 14.07.2006."
****
66. Anyhow if we believe the missing mark of this link in the
chain weaving the clean and smooth circumstances leading to
afford only the one hypothesis that in all probabilities accused
persons have committed the offence of murder, it may impact the
rule of prudence and miscarriage of justice. However, it can
firmly and reasonably be concluded that the accused persons were
in association of each other prior to immediately committing the
offence precisely for the reasons that when accused persons were
taken on PC on 13.11.2004 they led to Ambika Lauge/Guest
House from where I.O. seized the photocopy of register vide
Ex.PW22/A wherein names of accused persons Birender,
Sajeev(@)Koshiander, Vinod Master and Vinod s/o Lokpal have
been found mentioned and signed with regard to their staying in
Ambika Lauge on 05.11.2004. They were got stayed there with
the help of one Pramod vide deposition of PW17 and
EX.PW22/A (copy of register from Ambika Lauge). Accused
Vijay Bahadur (@) Monu after his arrest, on the disclosure
statements of other co-accused persons namely 1. Vinod s/o
Lokpal, 2. Birender, S.Koshlander @ Sanjeev and 3. Vinod
Master vide their disclosure statements Ex.PW16/D, PW16/E,
PW16/K and PW16/L, got prepared the pointing out memo vide
Ex.PW17/F where he had left the vehicle in question in
abandoned condition and this vehicle bearing no. HR 38GT-3590
was recovered in the jurisdiction of PS Shivli as unclaimed vide
seizure memo Ex. PW16/G and deposition of PW13 HC Ramesh
Chand. This part of material and evidence on record hold some
water that all the accused persons guilty for the offence of
entering into criminal conspiracy within the meaning of section
120B IPC to destroy the evidence u/s 201 IPC as the recovery of
vehicle in question directly links with the deceased and this chain
of facts clearly and cogently gives only one inference that accused
persons if not committed the murder of deceased they have
definitely committed the offence to destroy the evidence after a
criminal conspiracy u/s 120 B and 201 IPC in view of the
deposition of PW17 and pointing out memo Ex.PW17/F and vide
Ex.PW16/F."
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4. Learned counsel for the appellant vehemently argues that there is
no evidence against the appellant except statement given by PW-17 who
was the Investigating Officer of the present case. He argued that the
appellant was convicted by learned Trial for the offence punishable
under Section 201 and 120-B of IPC, however, all accused persons were
acquitted under Section 302/364/392 of IPC which is not valid in the
eyes of law because it is a settled principle that once any of the accused
is discharged under Section 302 of IPC, he cannot be convicted under
Section 201 of IPC in same case. It is further argued that no questions in
relation to destroying evidence were put to the appellant in his statement
recorded under Section 313 Cr.P.C by the learned Trial Court. Nor did
any other witness state anything about the fact that the appellant ever
tried to destroy any evidence.
5. Learned APP for the State, on the other hand, submitted that there
is material on record to show that the appellant had destroyed evidence
in the present case, and thus, he has been rightly convicted by the
learned Trial Court.
6. This Court has heard arguments and has considered the entire
material placed on record.
7. Since present appeal has been filed by accused Vijay Bahadur
who has been convicted as per the impugned judgment, this Court is
only dealing with the grounds of appeal qua Vijay Bahadur.
8. Prior to delving into the merits of the case, it is crucial for this
Court to contemplate and reproduce Section 201 of IPC, in order to
comprehend the case in a more comprehensive manner. The relevant
portion is reproduced as under:
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"201. Causing disappearance of evidence of offence, or giving
false information to screen offender --Whoever, knowing or
having reason to believe that an offence has been committed,
causes any evidence of the commission of that offence to
disappear, with the intention of screening the offender from legal
punishment, or with that intention gives any information
respecting the offence which he knows or believes to be
false......."
9. In Palvinder Kaur v. State of Punjab (1952) 2 SCC 177, the
Hon‟ble Supreme Court had observed as under:
"11. The decision of the appeal, in our view, lies within a very
narrow compass and it is not necessary to pronounce all the points
that were-argued before us. In our judgment, there is no evidence
to establish affirmatively that the death of Jaspal was caused by
potassium cyanide and that being so, the charge under Section
201 IPC, must also fail. The High Court in reaching a contrary
conclusion not only acted suspicions and conjectures but
inadmissible evidence
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14. In order to establish the charge under section 201, Indian
Penal Code, it is essential to prove that an offence has been
committed-mere suspicion that it has been committed is not
sufficient,that the accused knew or had reason to believe that such
offence had been committed- and with the requisite-knowledge
and with the intent to screen the offender from legal punishment
causes the evidence thereof to disappear or gives false
information respecting such offences knowing or having reason to
believe the same to be false..."
10. The Hon‟ble Apex Court in the case of Sukhram v. State of
Maharashtra (2007) 7 SCC 502, had discussed the ingredients that are
necessary to constitute an offence under Section 201 of IPC. The
relevant observations are reproduced as under:
"18. The first paragraph of the section contains the postulates for
constituting the offence while the remaining three paragraphs
prescribe three different tiers of punishments depending upon the
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degree of offence in each situation. To bring home an offence
under Section 201 IPC, the ingredients to be established are: (i)
committal of an offence; (ii) person charged with the offence
under Section 201 must have the knowledge or reason to believe
that an offence has been committed; (iii) person charged with the
said offence should have caused disappearance of evidence; and
(iv) the act should have been done with the intention of screening
the offender from legal punishment or with that intention he
should have given information respecting the offence, which he
knew or believed to be false. It is plain that the intent to screen
the offender committing an offence must be the primary and sole
aim of the accused. It hardly needs any emphasis that in order to
bring home an offence under Section 201 IPC, a mere suspicion is
not sufficient. There must be on record cogent evidence to prove
that the accused knew or had information sufficient to lead him to
believe that the offence had been committed and that the accused
has caused the evidence to disappear in order to screen the
offender, known or unknown".
11. This Court notes that the precedents laid down by the Hon‟ble
Apex Court indicate that to establish the guilt of an accused for offence
punishable under Section 201 of IPC, it is essential to demonstrate that
the accused had sufficient knowledge and evidence about the crime
committed. Furthermore, it must be demonstrated by the prosecution that
the actions of accused were intended to shield the offender from legal
consequences.
12. Bare perusal of the first part of Section 201 IPC is clear in
emphasizing the requirement to establish that commission of an
„offence‟ is sine qua non for charging an accused person under this
section. It is evident that the punishment to the accused for the offence
under this section is proportionate to the punishment assigned to the
underlying substantive offence committed by the said person. It is
important to note that there is no independent punishment explicitly
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prescribed for the offence under Section 201 of the IPC, as it is always
contingent upon the gravity of the primary offence.
13. The Hon‟ble Supreme Court in Duvvur Dasratharammareddy v.
The State of Andhra Pradesh, 1971 (3) SCC 247 had dealt with the
viability of a standalone conviction under Section 201 of IPC, and the
observations in this regard are reproduced as under:
"If once the case of the prosecution regarding the offence of
murder is not accepted, it follows that the appellant cannot be
convicted for the offence under Section 201 IPC either because
the evidence relating to that offence is common."
14. Keeping the above-mentioned law and judicial precedents laid
down by the Hon‟ble Supreme Court in mind, this Court shall now deal
with the facts and circumstances of the present case.
15. During the course of trial, the prosecution examined 23 witnesses.
After completion of trial, the appellant was convicted as mentioned in
the preceding paragraphs. In the present case, learned Trial Court vide
impugned judgment dated 14.07.2006 had convicted the present
appellant on the basis of his own disclosure statement and of the other
co-accused persons. Learned Trial Court had also relied upon the
testimony of PW-17.
16. As per the facts of the case, three accused persons had visited the
office of PW-1 Mohan on 04.11.2004 to book the alleged vehicle in
question, and a booking slip had been issued to the accused persons, and
one of them, identified as Abhay, had signed and acknowledged the slip.
When the vehicle and driver had not returned as scheduled, the vehicle
owner had initiated a search on 05.11.2004. Upon inquiry from PW-1
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Mohan i.e. the owner of M/s Gujrat Travels regarding the non-return of
the vehicle, he had provided the address that had been provided by the
accused persons to him. The owner, along with Rajesh Kumar (PW-5),
had visited the given address where they had met PW-14 Karan Singh,
who had informed them that Santosh i.e. the brother of accused Birender
resided in the same area, but the accused persons could not be found at
Santosh's house in Loni. It had also come to his knowledge that the
driver of the vehicle had been killed. Thereafter, on 08.11.2004, a
complaint (Ex.PW3/A) had been filed. However, the appellant was
arrested in the year 2006, and the allegations qua him were that he had
destroyed certain evidences.
17. In the present case, this Court has perused the pointing out memo
(Ex. PW-17/F) of the place where the alleged vehicle was found
abandoned. It is important to note that that the vehicle was neither
directly recovered from the accused nor at his instance, rather he had
allegedly disclosed the place where he had abandoned the vehicle in the
past. This Court takes note of the fact that incriminating evidence against
present appellant is his own disclosure statement and the disclosure
statements of other co-accused which are not admissible in law.
However, what is admissible in law, is any recovery if made pursuant to
the disclosure statement of the accused. This implies that the portion of
the disclosure statement where an accused reveals a fact, leading to the
discovery of an article or another fact, will be pertinent and admissible
under the law. Albeit, in the present case, if the recovery of alleged
vehicle would have been made pursuant to the disclosure statement of
the present accused/appellant, then that portion of his disclosure
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statement would have been admissible in law and could have been used
against him, that he had left the vehicle at the place which he had
allegedly pointed out. In accordance with legal provisions, the disclosure
statement must be recorded prior to the discovery in question, and it
cannot be the other way around.
18. Interestingly, it is not so in the present case. In the present case,
the alleged vehicle had already been discovered and seized on
13.11.2004 i.e. more than one year and five months prior to the
recording of alleged disclosure statement dated 26.04.2006 as well as
pointing out memo dated 27.04.2006 prepared at the instance of the
appellant herein, which was inadmissible in law.
19. In this regard, this Court also notes that the learned Trial Court
had observed that there was lack of evidence against the present
appellant and that no witness from P.S. Shivli was examined at all,
though the car was recovered from the area falling under the said police
station. However, learned Trial Court was of the opinion that as stated
by PW-17 in his cross examination, he was not aware of the place of
recovery of the car in question when he had got the pointing out memo
prepared by the appellant. As far as this aspect is concerned, this Court
notes that firstly, PW-17 in his examination-in-chief had deposed that on
13.11.2004, he along with SI Ramjeet, Ct. Om Parkash, Ct. Ratnagiri
had reached at Kanpur, where they had inspected the seized vehicle no.
HR38GT3590 vide Seizure Memo Ex.PWI6/G, which had been lying at
P.S. Shivli. Secondly, he had stated in his cross-examination that he had
inquired about the spot from where the alleged car was recovered from
police officers of PS Shivli but they had not told him about the same,
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however, it can be noted that statement of PW-20 S.I. Rajesh Kumar
Mourya (Ex. PW-17/DA) had been recorded by PW-17 on 13.11.2004
and in that statement, the spot from where the car was recovered had
been mentioned. Hence, it cannot be held with certainty that recovery of
the car was not already known to PW-17 when he had got the pointing
out memo prepared by the appellant.
20. Thus, the main reasoning on which the conviction has been based
by the learned Trial Court i.e., on the disclosure statement of the
appellant and pointing out memo, in the considered opinion of this
Court, is based on incorrect appreciation of law and facts.
21. There are few unusual and interesting facts disclosed from the
impugned judgment itself and the most glaring is that the supplementary
charge-sheet in the present case against present appellant was filed at the
oral direction of concerned Trial Court. This is unheard in criminal
jurisprudence or the procedure followed in the criminal courts. This fact
has been mentioned by learned Trial Court in the impugned judgment
itself.
22. It also cannot escape the notice of this Court that initially in the
present case, the prosecution itself had found nothing incriminating
against the present appellant and had not named him in the FIR or in the
initial chargesheet. The FIR in the present case pertains to the year 2004
and while four accused persons had been arrested in 2004, the present
appellant was arrested on 26.04.2006 i.e. after 2 years. A perusal of the
cross-examination dated 10.03.2010 of PW-17 reveals that he had
initially filed chargesheet only against four accused persons and not
against the present appellant as there was no evidence against him.
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However, he had stated that on verbal directions of the learned Trial
Court, he had prepared a draft chargesheet against the present appellant
in March 2005, but he had not filed the same due to lack of sufficient
evidence, and he had neither made any further investigation nor had he
collected any other evidence against the appellant up till April, 2006.
The relevant portion of the said cross-examination reads as under:
"...I have perused the entire police file and did not completed the
original mark X. Initially I filed a challan against the 4 accused
persons but the challan was not filed against the Monu and later
on the verbal directions of the predecessor of this court the
challan was prepared against the Monu but could not be filed as
there was no sufficient material against him nor the Monu was
interrogated as he could not be traced out. After preparation of
Challan against the accused Monu in March 2005 I did not made-
any further investigation and collected any other evidence against
the accused Monu upto April, 2006. It is correct that I have not
dilute in The investigation thereafter as there was no prove during
the investigations found against the accused Monu. I have
prepared the challan against the accused Monu on the directions
of the court after due investigation..."
????. However, a perusal of the supplementary charge sheet which was
filed against the appellant in 2006 does not mention such facts, and it
was only stated that on the oral directions of the learned Trial Court on
12.04.2006 to interrogate the present appellant, PW-17 had obtained
Non-Bailable Warrants against the appellant on 26.04.2006 and had
arrested him from Kanpur and thereafter, had recorded his disclosure
statement as well as pointing out memo and had, accordingly, submitted
the chargesheet.
24. This Court also notes that learned Trial Court itself in para no. 58
of impugned judgment had observed that the investigation against the
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appellant was insufficient and nothing concrete in evidence was brought
on record. The Court concerned had also noted that one Pramod Kumar
who could have been the star witness against the appellant in relation to
present offense was not examined by the prosecution before the learned
Trial Court. In the last para of the impugned judgment, the Court had
also observed that investigating officer had not got the Test
Identification Parade conducted in respect of appellant nor had he made
the witnesses from P.S. Shivli.
25. Therefore, having thoroughly considered the entire evidence
brought on record in this case, including various pieces of circumstantial
evidence relied upon by the prosecution, this Court concludes that the
evidence brought on record by the prosecution was inherently
insufficient to establish a solid foundation for conviction. The legal
principles governing the basis of conviction through circumstantial
evidence have been firmly established by the Hon‟ble Apex Court in
case of Sharad Birdichand Sarda v. State of Maharashtra (1984) 4
SCC 116, wherein the Court had laid down the following golden
principles of the proof of case based on circumstantial evidence.
"(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established. There is not only a
grammatical but a legal distinction between „may be proved‟ and
"must be or should be proved". It is a primary principle that the
accused must be and not merely may be guilty before a court can
convict and the mental distance between „may be‟ and „must be‟
is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the accused
is guilty.
(3) the circumstances should be of a conclusive nature and
tendency,
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(4) they should exclude every possible hypothesis except the one
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused."
26. Considering the above-mentioned principles this Court notes that
the prosecution failed to prove its case beyond reasonable doubts, nor
are the circumstances, from which an inference of guilt is sought to be
drawn, cogent and firm. This Court notes that in the facts and
circumstances of the case, when the appellant and co-accused persons
stood acquitted of the substantive and principle charge of Section 302
IPC and there being a categorical finding by the learned Trial Court that
the prosecution had failed to establish commission of offence under
Section 302 IPC by the appellant and the co-accused persons, under such
circumstances, present appellant could not have been independently
convicted so far as the offence under Section 201 of IPC is concerned
for the reasons that the principal offence under Section 302 IPC itself
has not been established in the present case against any of the accused
persons, together with the other lacunaes in investigation and the manner
of filing of supplementary chargesheet of the present appellant on oral
directions of the Court.
27. Based on the aforementioned reasons discussed in the preceding
paragraphs, this Court notes in its opinion that the independent
conviction of the accused individual for the offence under Section 201 of
the IPC is improper, unjustified and unlawful, in the facts and
circumstances of the present case.
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28. This Court, therefore, holds that the present case is not based on
the established principles of law of evidence and Indian Penal Code. The
judgment also suffers from the fact that despite there being no
incriminating evidence against the present appellant, he has been
convicted on the basis of a presumption. This Court notes with a little
dismay that the present appellant has faced the trial for many years
despite there being no incriminating evidence against him. At this stage,
the only recourse available to this Court is to acquit the appellant of all
the charges leveled against him.
29. Considering the overall facts and circumstances of the case, the
conviction rendered by the learned Additional Sessions Judge 02,
(West), Tis Hazari Courts, Delhi in case FIR bearing no. 541/2004 is
deemed erroneous qua the present appellant.
30. In view thereof, the present appellant is acquitted of all the
charges.
31. Bail bond, if any, stands cancelled. Surety stands discharged.
32. Accordingly, the appeal is allowed in above terms.
33. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
MAY 29, 2023/kss
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