Full Text
Date of Decision: 24th July, 2013
STATE ..... Petitioner
Through: Ms. Richa Kapoor APP for the State.
Through: Mr. Raman Duggal, Adv. with Respondents in person.
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
1. Crl.M.A.3432/2012 has been filed by the State seeking condonation of 70 days’ delay in filing the present leave to appeal petition and Crl.M.A.3434/2012 has been filed by the petitioner seeking condonation of 10 days’ delay in re-filing the leave to appeal petition.
2. Learned counsel for the respondents submits that he has no objection if the present applications are allowed and delay is condoned.
3. Heard. For the reasons stated in the applications and in view of the stand taken by counsel for the respondents, present applications are allowed. Delay in filing and re-filing the leave to appeal petition is condoned.
4. Applications stand disposed of. 2013:DHC:3606-DB CRL.L.P. 148/2012
5. The State seeks leave to appeal against the judgment dated 30.08.2011 passed by the learned Additional Sessions Judge (ASJ), Saket New Delhi in Sessions Case No.24/2006 whereby the learned ASJ acquitted the respondents (accused before the trial court) of the charge for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (IPC).
6. According to the case of the prosecution DD No.5 (Ex.PW-9/A) was recorded at PP Madanpur Khadar to the effect that a person was lying unconscious on the slope at Kalandi Kunj, Jaitpur road, near Sukhpal Property Dealer. The DD was assigned to ASI Chaman Singh who along with Constable Virender reached the spot. The ASI noticed that a dead body was lying at the spot. Since there was no apparent mark of injury and no eye witness was available and there was none to disclose about the identity of the deceased, the dead body was sent to AIIMS mortuary with a request to preserve the same for 72 hours. Crime team was also requisitioned at the spot.
7. Unaware of the death of his brother Kamal, Mukesh Kumar (PW-1) reached PS Sarita Vihar at 12:00 in the night of 16-17.10.2005 and informed that his brother had left for his duty to MCD office, Central Zone, Lajpat Nagar Delhi on 15.10.2005 at 10:00 A.M. in his Maruti car No.DL-6CC-2345 and that he had not returned. In the police report PW- 1 did not raise any suspicion against any person. On 17.10.2005 Kamal’s (deceased’s) relatives gathered at PW-1 and Kamal’s house. PW-1 along with some relatives visited the house of respondent Aneesh’s in-laws. PW-1 met Aneesh’s wife and one Taruk (Aneesh’s brother in-law) (PW- 6). Taruk took PW-1 to PP Madanpur Khadar where he (PW-1) was informed that his brother Kamal had died and his dead body had been recovered from Kalandi Kunj. He (PW-1) identified the photographs of the dead body. On 18.10.2005 PW-1 and one Shailender Kumar identified the dead body in the mortuary.
8. On 19.10.2005 PW-1 made a detailed statement (Ex.PW-1/B) and informed the police that respondent Aneesh, who used to live as a tenant in their house was friendly with his brother Kamal. About four months prior to the incident Kamal had caught Aneesh red handed while committing some theft in his shop. Aneesh was given beatings by Kamal on account of which Aneesh was nursing a grudge against Kamal. Later on Aneesh tendered an apology to Kamal and their relations became normal. PW-1 informed the police that on 15.10.2005 at about 9:00 A.M. Aneesh came to their house. Aneesh and Kamal left the house together in Maruti car No.DL-6CC-2435 belonging to Kamal and they were also to attend some function at the house of Aneesh’s in laws. At about 7:00 P.M. PW-1 called Kamal on his mobile phone and talked to Kamal as well as Aneesh. Aneesh told PW-1 that Kamal would return home in 1/1½ hours. Kamal did not return till late night. PW-1 again called Kamal, however, phone was switched off. On 16.10.2005 at about 3:00 P.M. PW-1 went to the house of Aneesh’s in laws at J.J. Colony, Madanpur Khadar to inquire about Kamal. However, Kamal was not found there. Aneesh’s wife informed PW-1 that Aneesh had also not returned.
9. According to the statement made by PW-1 to the police thereafter he lodged a missing report with the police. On 17.10.2005 while he was passing through Madanpur Khadar to inquire about his brother Kamal he came to know that a dead body had been found near Pushta Jaitpur. He went to the mortuary on 18.10.2005 and identified the dead body. He informed the police that since Aneesh had absconded there is a possibility that he may be involved in the conspiracy to kill his brother Kamal. On the basis of the statement Ex.PW-1/B given by PW-1 the present case was registered and investigation was carried out. During the course of investigation police met Taruk who took the police party to the house of respondent Madan Bishwas. Respondent Madan Bishwas was arrested. He (Madan Bishwas) allegedly pointed out the place of occurrence and got recovered a pair of shoes (belonging to the deceased Kamal) from the bushes near the place of incident.
10. Subsequently, on 16.1.2006 in pursuance of the disclosure statement Respondents Aneesh and Sanjeev were apprehended at Jalebi Chowk, Madanpur Khadar. They also made disclosure statements. Respondent Aneesh got recovered Maruti car No. DL-6CC-2345 from the road near his house in the village near PS Rajpura, Distt. Badayun, U.P. The documents of the car were recovered from the house of respondent Aneesh in the village. In pursuance of his disclosure statement Ex.PW- 1/H one mobile phone belonging to the deceased was got recovered by respondent Sanjeev.
11. On completion of the investigation a report under Section 173 of the Code of Criminal Procedure (the Code) was laid in the Court. On framing of a charge for the offence punishable under Section 302/34 IPC and in order to establish its case the prosecution examined 19 witnesses.
12. The prosecution case rests upon (i) the last seen evidence in the shape of testimonies of PWs 1,4,5,[8] and 19; (ii) extra judicial confession made by respondent Madan Bishwas to PW-6; (iii) recovery of shoes belonging to the deceased Kamal at the instance of respondent Madan Bishwas in pursuance of the disclosure statement made by him; and (iv) recovery of car, mobile phone, its sim card and its documents at the instance of the respondent Aneesh and Sanjeev.
13. The trial court found that none of the circumstances have been established by the prosecution beyond reasonable doubt. The trial court observed that although PWs 4 and 5 were cited as witnesses in respect of last seen theory but they tried to project themselves as witnesses to the murder. The trial court disbelieved that they were witnesses to the infliction of any injury by the respondents on deceased Kamal. Having found that the case of the prosecution had not been proved beyond shadow of all reasonable doubt, the respondents were acquitted of the charge framed against them.
14. The finding given by the trial court is extracted as under:- “Extra Judicial Confession
8.0 Law regarding extra judicial confession is very well settled. The basis test to find extra judicial test is – whether the confession was primarily volunteered. If so, whether it is true or trustworthy. x x x x x x x x Similarly, in Sanjay Vs. State, 2009 (3) JCC 2337, it was inter alia held as under: “Law is well settled. An extra judicial confession is on the face of it a weak piece of evidence and in the absence of corroboration on material particulars rule of caution demands that it should not be relied upon. Courts are reluctant in the absence of chain of cogent circumstances to rely on this piece of evidence for the purpose of recording conviction.” 8.[3] Now if we see the testimony of PW[6] Taruq, he stated to have taken accused Madan Bishwas to PP Madan Pur Khadar on the same day when allegedly he (accused Madan) made extra judicial confession. Whereas, the case of the prosecution is that Madan Bishwas was arrested on 23.10.05 from his house. This itself per se, creates a doubt in the entire story put by prosecution. Taruq has shifted his stands from time to time. In the statement made before the police, he stated that on 16.10.05 Madan had come to his house and on being asked he told that he along with Sanjeev and Aneesh had committed murder of Kamal. In the examination on chief, this witness stated that when he met Madan Bishwas, he himself told him that he along with Sanjeev and Aneesh had killed Kamal. In the cross examination by Ld. Addl. PP, Taruq stated that firstly, Madan Bishwas came to him in the morning and told that Aneesh had taken away kamal and in the evening Madan Bishwas told him that they had killed Kamal. During the cross examination by defence, Taruq stated that he met Madan Bishwas on 16.10.05 in the morning at his house. It is also worthwhile to mention here that as per statement u/s. 161 Cr.P.C., Taruq had seen accused persons along with deceased, wherein as per statement made before the court, he had not met them. Thus, I consider that evidence regarding extra judicial confession allegedly made by accused Madan Bishwas to Taruq is not reliable at all. In Kavita Vs. State of T.N., (1998) 6 SCC 108 at page 108, it was inter alia held as under:-
15. Ms. Richa Kapoor, learned APP for the State urges that the reasoning given by the trial court for acquitting the respondents is based on conjecture and surmises. There was sufficient circumstantial evidence in the shape of extra judicial confession; last seen evidence; recovery of shoes; recovery of car, etc. to hold the respondents guilty of the charge for the offence punishable under Section 302/34 IPC.
16. We are not impressed with the contention raised on behalf of the State. The evidence with regard to extra judicial confession was disbelieved as according to PW-6, who deposed about the extra judicial confession; immediately after respondent Madan Bishwas admitted his guilt on 16.10.2005, he was taken to the Police Station by him; whereas according to the prosecution respondent Madan Bishwas was arrested from his house only on 23.10.2005. The trial court noticed improvements as to how respondent Madan Bishwas had met him after the incident; the trial court further noted the contradictions made in the examination-in-chief and the cross-examination and observed that the extra judicial confession which is inherently a weak type of evidence, was not reliable. Thus, the extra judicial confession was rightly discarded.
17. With regard to last seen theory, the trial court observed that PW-1’s silence about deceased Kamal leaving with accused Aneesh in the morning of 15.10.2005 while lodging a missing report on the night intervening 16-17.10.2005 created serious doubt in his testimony. Obviously, if PW-1 would have seen the deceased leaving with Respondent Aneesh and then talking to the deceased and respondent Kamal in the evening of 15.10.2005, he would have definitely made a mention thereof in the missing report. Testimony of PW-19 deceased’s wife was also rejected for the same reason. PW-8 was disbelieved as if he would have come to know of deceased being missing from PW-1 on 16.10.2005 he would have informed him (PW-1) about seeing Aneesh and Kamal together on 15.10.2005. Again PW-1 would have mentioned this fact in the missing report lodged on the night intervening 16- 17.10.2005. Moreover, the trial court discarded PW-8’s testimony also on the ground that his statement under Section 161 Cr.P.C. was recorded after much delay, that is, on 24.10.2005. Testimony of PWs 4 and 5 with regard to last seen theory was rejected on account of wholesale improvements and contradictions on material points with which they were confronted during their cross examination.
18. Recovery of shoes at the instance of respondent Madan Bishwas is a classic case of fabrication of evidence by the investigating agency. The prosecution relied on seizure memo Ex.PW-13/B in respect of recovery of two shoes belonging to the deceased at the instance of respondent Madan Bishwas. PW-1 Mukesh, the deceased’s brother is not a witness to this seizure memo. The respondent came in possession of another seizure memo Mark A which was also admitted by the IO, in which PW-1 Mukesh is a witness to the seizure of the two shoes. This kind of conduct of the police officers in fabricating evidence loses faith in the credibility of the investigating agency and pricks judicial conscience. We are of the opinion that to instil faith of the general public in the Delhi Police, it is desirable that action should be taken against the police officers who indulge in fabricating evidence or false prosecution. The Commissioner of Police is, therefore, directed to initiate necessary departmental action against Inspector Ashok Singh, the then Additional SHO, Police Station Sarita Vihar and the police officials who were attesting witnesses to the seizure memo Mark A, which somehow landed in the hands of the accused.
19. Recovery of car was found to be of no consequence as this was parked on an open road. Obviously, it is not discovery of any fact as envisaged under Section 27 of the Evidence Act. Similarly, the alleged recovery of the mobile phone at the instance of respondent Sanjeev is inconsequential in view of the fact that although as per prosecution version the deceased spoke to PW-1 on his mobile phone in the evening of 15.10.2005 but the call details of the deceased and PW[1] were neither collected nor proved by the prosecution.
20. For the reasons stated above it cannot be said that the view taken by the trial court was not a legal view on the basis of evidence adduced. It is well settled that even when two views are possible the High Court would not interfere with the order of acquittal as the presumption of innocence is reinforced by an order of acquittal. In the instant case, there is no question of two views; rather there was only one view possible, that is, of acquittal which has been rightly taken by the trial court.
21. The Petition is devoid of any merit; the same is accordingly dismissed.
22. A copy of the judgment be transmitted to the Commissioner of Police for necessary action in view of observation made in para 14 of the judgment. Report shall be filed by the Commissioner of Police before the next date.
23. List for directions on 16.09.2013.
24. It has been brought to our notice that in this case, inadvertently an incorrect order has been uploaded on the website of this Court. We may clarify that this order may be treated as the final order and the earlier order uploaded on the website of this Court may be treated as cancelled.
(G.P. MITTAL) JUDGE (G.S. SISTANI)
JUDGE JULY 24, 2013 vk