The Division Bench of the Delhi High Court in the case of Parvez @ Tantrik @ Sonu @ Radhey vs State consisting of Justices Mukta Gupta and Anish Dayal opined that appellants cannot be convicted for the offence punishable u/s 302/34 IPC when the prosecution has not been able to prove either by direct or circumstantial evidence that the cause of death was homicidal in nature.
Facts
By these appeals, the appellants challenged the impugned judgment whereby they have been convicted for offences punishable u/s 365/302/201/34 IPC as also the order whereby they have been directed to undergo imprisonment for life and to pay a fine of ₹5000/- each u/s 302 IPC, in default whereof to undergo two years simple imprisonment for offence punishable u/s 302 IPC; imprisonment for a period of five years and fine of ₹3000/- each u/s 365 IPC, in default whereof to undergo simple imprisonment for a period of one and a half years and to undergo imprisonment for a period of one and a half years and a fine of ₹2000/- each, in default whereof to undergo simple imprisonment for four months for offence punishable u/s 201 IPC.
Contentions Made
Appellant: It was contended that the appellants were liable to be acquitted for the charge of offence punishable u/s 302 IPC on the sole ground that no cause of death was opined by the post-mortem Doctor.
Respondent: It was contended that the prosecution having not proved the cause of death will not mitigate the offence of kidnapping and murder as also destruction of evidence committed by the appellants.
Observations of the Court
The moot question in the present appeal was whether the appellants can be convicted for the offence punishable under Section 302/34 IPC when the prosecution has not been able to prove either by direct or circumstantial evidence that the cause of death was homicidal in nature.
The Bench relied on Madho Singh vs. State of Rajasthan wherein it was held that to convict an accused u/s 302 IPC first and foremost aspect to be proved by the prosecution is the factum of homicidal death. Conviction of the appellants is not based on the statements of the eyewitnesses but by circumstantial evidence. In a case of eyewitness account the prosecution can prove homicidal death even by version of the eyewitnesses, however in this case in a case of circumstantial evidence it is essential that the opinion of the Doctor should be available to conclude that the death was homicidal in nature.
In the present case, not only has the homicidal death not been proved but the appellants have also been sought to be indicted by the prosecution based on the last seen evidence of the deceased along with the two appellants on his motorcycle. Moreover, regarding the application of the last seen theory, it was noted that there was serious gap in the time since when the appellants were allegedly seen with the deceased and the deceased died.
Judgment
Perusing all the evidence produced before the Bench by the prosecution, it opined that the prosecution was not able to prove the cause of death being homicidal and the last seen evidence itself was not satisfactory. Hence, it concluded that the appellants were entitled to the benefit of doubt. Accordingly, the impugned judgment of conviction and order on sentence were set aside.
Case: Parvez @ Tantrik @ Sonu @ Radhey vs State
Citation: CRL.A. 32/2018 and CRL.A. 86/2018
Bench: Justice Mukta Gupta, Justice Anish Dayal
Decided on: 20th September 2022
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