State v. Naresh Kumar & Others

1. By this application filed under Section 378 (3) of the Code of Criminal Procedure (hereinafter referred to as Cr. P. C.) the petitioner seeks grant of leave to appeal against the judgment dated 28.09.2010 passed by the court of Sh. Paramjit Singh, Additional Sessions Judge, North west,Rohini: Delhi in SC No.101/07 arising out of FIR No.715/06, thereby acquitting the accused from the charges framed against him under Sections 364/ 302/ 120-B/ 201 of the Indian Penal Code, 1806 (hereinafter referred to as IPC).,

2. irguing the present criminal leave to appeal,.Mr.Pawan Sharma, Standing Counsel for the State submits that the order passed by the learned Trial Court thereby acquitting theaccused is contrary to law and the facts of CRL.L.P. 458/2013 2013:DHC:7163-DB the case as the learned Trial Court has brazenly ignored the last seen and circumstantial evidence proved on record clearly bringing home the guilt ofthe accused. Learned counsel further submits that the learned Trial Judge has failed to appreciate that the prosecution has been able to prove that the deceased was lastly seen in the company of Naresh Kumar, Sunil Sharma and Parvesh on 19.01.2006. It was since then that the deceased went missing. The contention raised by the learned counsel for the petitioner is that once it was proved on record by the prosecution that the deceased was lastly seen in the company ofthe accused therefore, the onus shifts on the accused to explain the circumstances which led to the missing ofthe victim and on failure of the accused to offer any explanation or ifthe explanation rendered by the accused is found to be false, then the possible inference can be drawn against the accused in the commission of the crime. Counsel further submits that the learned Trial Judge has committed an error in giving benefit of doubt to the respondents even though PW-1 / Narinder Kumar and PW-2 Ranjit Singh have unflinchingly deposed against the respondent that the deceased came to his tea shop on 19.01.2006 and they entered into a criminal conspiracy and abducted Tilak Raj and committed his murder. Counsel also submits that the learned Trial Judge has given undue weightage to the minor discrepancies and variance in regard to lodging of the F.I.R and failed to appreciate that the alleged delay had been adequately CRL.L.P. 458/2013 page 2of 12 explained by PW-2 inhis deposition that itwas because he trusted Raj rani, wife ofthe deceased and that is why he could not make any serious efforts to trace his son Tilak Raj, however when he came to know that Rajrani got married to Naresh, he could foresee the entire conspiracy being broiled amongst them. Learned Counsel further submits that the learned Trial Court ^ failed to appreciate the import of the testimony of PW-4, Pandit Rajesh Kumar and also the conduct ofthe wife which clearly revealed that itwas a conspired act. Based on these submissions, counsel urged that the prosecution proved its case beyond reasonable doubt to convict and sentence the accused for the commission ofoffence under Section 364/ 302/ 120-B/201 IPC.

3. We have heard the learned Counsel for the State and have also gone through the trial court record.

4. The case as set out by the prosecution is that on 22.8.2006, complainant-Ranjit Singh came to P.S, S.P. Badli and got recorded his statement, wherein he stated that he was residing with his family at agiven address and was running atea shop and on 14.01.2006, at about 6:00 P.M., his son aged about 46 years left the house after informing his wife Raj Rani that he along with his friends was going to Gohana, Sonepat(Haryana) to take atry of Tata tempo and since then till 23.01.2006, Tilak Raj did not CRL.L.P. 458/2013 Page 3of 12 come back and accordingly, his wife Raj Rani lodged a missing report at P.S, S.P. Badli. He further stated that he tried to trace out Tilak Raj at the houses of his relatives and friends but no clue was found and he also stated that he had suspicion that some person had taken away his son with the intention to kill him and legal action may be taken. On the basis of the aforesaid statement of Ranjit Singh, the present case was registered vide FIR No.715/06 at P.S, S.P. Badli and investigation was entrusted to Insp. Sardool Singh. During the investigation, Insp. Sardool Singh received information from Crime Branch, Chanakaya Puri on 23.8.2006 that accused Naresh, Sunil, Parvesh and Raj Rani, who have been apprehended by them, have disclosed their involvement in the commission of offence in the present case. Thereafter, lO-Insp., Sardool Singh got warrants issued for the appearance ofthe above named accused persons and during the said period, investigation of the case was transferred from Insp. Sardool Singh to SI Chander Prakash by the SHO concerned and thereafter, on 31.8.2006, all the aforesaid accused were produced before the concerned court on Production warrants and all four accused were formally arrested in the present case by the 10, after taking permission from the court concerned. Thereafter, PC remand of accused persons was taken and the 10 tried to trace out the dead body of Tilak Raj, but in vain. During investigation, brother of Tilak Raj namely Narinder Kumar disclosed that he had last seen CRL.L.P. 458/2013 Page 4of 12 his brother Tilak Raj in the company of accused persons and it was also disclosed that after missing of Tilak Raj, his wife Raj Rani got re mamed to the accused Naresh. Thereafter, on completion ofinvestigation, charge sheet was prepared. Charges for committing the offences punishable u/s-120-B IPC, u/s 364 r/w Section 120-B, u/s 302 r/w Section 120-B IPC and u/s - 201r/w Section 120-B IPC was framed against all the four accused- Naresh, Sunil, Parvesh and Raj Rani, to which all the said accused persons pleaded not guilty and claimed trial. In support ofits case, prosecution has examined 10 witnesses.

5. Seeing the aforesaid factual matrix, there is nothing on record to show that the accused had come to PW-l's tea shop and fi-om there he left with Naresh, Parvesh and Sunil in amaruti van. PW-1 in his deposition has stated that he did not even remember the colour ofthe van, the testimony ofthe aforesaid witness itselfraise doubt about the occurrence ofthe said incident. PW-1 ftirther stated in his cross examination stated that he did not hear the conversation between Tilak Raj and the accused persons. He further stated he informed his father the next day but he never informed the police about missing of his brother/ Tilak Raj. Surprisingly, no missing report was lodged by the family ofthe deceased either on the evening of 19.01.2006 or on 20.01.2006 and it is only on 22.08.2006, that areport was lodged with the police by the complainant Ranjit Singh/ PW-2 herein. During the course CRL.L.P. 458/2013 d c of the arguments, learned counsel for the petitioner failed to give any concrete reasoning for not having lodged any report by the family members of the deceased till 22.08.2006. Learned counsel for the petitioner laid much stress on his argument that the marriage ofRaj rani with Naresh itself is incriminating enough to raise doubts on the accused persons but in our opinion the same cannot be given much weightage as it has been brought on record that Naresh and Raj rani got married with each other after 3-4 months since when the deceased went missing. And even ifwe accept this aspect ofthe prosecution story, the contention raised by the counsel for the appellant could be appreciated only when the prosecution had succeeded to prove that the deceased Tilak Raj was lastly seen in the company of the accused. However in our opinion the chain of events also do not form an accurate link, one cannot lose sight ofthe fact that the dead body ofthe said Tilak Raj has yet not been recovered and also that there has been ahuge delay in lodging of the F.I.R, which lay heavy doubts on the prosecution story. Even otherwise, it is asettled legal position that the theoiy oflast seen evidence itself is extremely apuny piece of evidence and would not be sufficient to convict the accused particularly where there is no proof of motive. It is significant to point out here that the prosecution has also failed to prove any motive on the part of the accused, which could be the reason for the accused to commit murder ofthe Tilak Raj. CRL.L.P. 458/2013 „,

6. It is also a settled law that criminal jurisprudence begins with the presumption that unless otherwise proved the person facing the trial would be deemed to be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the act of the accused with ultimate crime and where the material links constituting the chain of circumstantial evidence are found missing then the benefit ofthe same goes infavour ofthe accused.

7. In State ofU.P. vs. Shyam Behari and Am. JT2009(11)SC274, the Hon'ble Apex Court elaborating on the last seen theory held that: 6...There must be cases where on account ofclose proximity of place and time between the event ofaccused having been lastseen with the accused and thefactum ofdeath a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death orshouldown the liabilityfor the homicide. This Court in Bodhraj @Bodha and Ors. v. State ofJammu and Kashmir2002CriLJ4664 held asfollows: 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 possibility ofany person other than the accused being the author ofthe crime becomes impossible. It would be difficult to some cases, topositively establish that the deceased was last seen with the accused when there is a long gap and possibility of other person coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion ofguilt in those cases "

8. It is needless and trite to say that where the case is based on CRL.L.P. 458/2013 Page 7of 12 circumstantial evidence, the circumstances from wliich the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so estabhshed should be consistent only with the hypothesis ofthe guilt of the accused. Again, the circumstances should be conclusive in nature and they should be such as to exclude every hypothesis but the one proposed to be proved, to other words, there must be achain ofevidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence ofthe accused and it must be such as to show that within all human probability the act must have been done by the accused {R^: Hanumant Govind Nargundkar vs. State ofM.P. AIR 1952 SC 343.). The said principles as set up by the Apex court have been reiterated time and agam in one or the other form by the various judgments ofthe Apex Court and ofHigh Courts.

9. to the recent judgment of the Hon'ble Apex Court, in the case of Rumi BoraDutta V. State ofAssam, 2013 (7) SCALE 5J[5], it was held that when acase totally hinges on the circumstantial evidence, it is the duty of the Court to see the circumstances which lead towards the guilt of the accused to have been fully established. The germane portion of the judgment is extracted below:

CRL.L.P. 458/2013 « o r,. circumstances. When a case is totally hinges on the circumstantial evidence, it is the duty ofthe Court to see that the circumstances which lead towards the guih of the accused have been fully established and they must lead to a singular conclusion that the accused is guilty ofthe offence and rule out the probabilities which are likely to allow the presumption of innocence of the accused. "

10. In yet another landmark judgment, in the case of Sharad Birdhichand Sarda Vs. State ofMaharashtra, AIR 1984 SC 1622, the Hon'ble Apex Court held as under:

152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused canbe saidto befully established: the circumstances from which the conclusion of guilt is to be drawn shouldbefullyestablished. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and -not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade

V. State ofMaharashtra MANU/SC/0167/1973: 1973CriLJ1783 where thefollowing observations were made: certainly, it is aprimary 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 anddivides vague conjecturesfrom sure conclusions. (2) the facts so established should be consistent only with the hypothesis ofthe guilt ofthe 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. (4) theyshouldexclude everypossible hypothesis except the one to beproved, and CRL.L.P. 458/2013 ^ ^, (5) there must be a chain ofevidence 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 actmust have been done by the accused.

153. Thesefive golden principles, ifwe may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.