Sandeep @ Sonu v. State

1. This appeal assails the judgment and order dated 19th February, 2022 passed by the learned Trial Court convicting the appellant for offence punishable under Sections 302/397/411/201 IPC and order on sentence dated 13th April, 2022 sentencing the appellant for life imprisonment for offence punishable under Section 302 IPC and a fine of Rs.3,000/- (simple imprisonment for three months in default of payment of fine); rigorous imprisonment for seven years for offence punishable under Section 397 IPC; simple imprisonment for six months for offence punishable under Section 411; rigorous imprisonment for one year for offence punishable under Section 201 IPC and a fine of Rs.1,000/- (simple imprisonment for three months in default of payment 2022:DHC:3235-DB of fine) and being held guilty for offence punishable under Section 174A (for having absconded during trial), being sentenced to rigorous imprisonment for six months. All sentences were to run concurrently. The Incident:

2. As per the case of the prosecution the complainant Panne Lal received a call on 25th April, 2010 at 4:30 p.m. from his cousin Deen Dayal who mentioned that his shop DD Jewellers was open and that his brother Ashok Kumar was reportedly not there and if Panne Lal could go to the shop and find out. When Panne Lal reached the shop and went inside he found Ashok Kumar in an injured condition with blood oozing from his neck and a wound on the head. The injured was shifted to Park Hospital where he expired. Subsequently, the crime team was called and FIR No.104/2010 was registered at PS Tilak Nagar against an unknown person for robbery and murder of Ashok Kumar under Sections 397/302 IPC. Pursuant to an investigation, charges were framed and the appellant pleaded not guilty and claimed trial. The prosecution examined 33 witnesses, statement of the appellant was recorded under Section 313 Cr.P.C. and no defence evidence was led. Submissions by the Appellant:

3. The appellant has contended through learned counsel appearing on his behalf and grounds taken in the appeal that the case of the prosecution was flawed in relying upon the two last seen witnesses PW- 3 and PW-4 who stated that they had seen the deceased on the date of the incident in the company of a boy about 20-25 years of age whose name they did not know but was talking to the deceased at the shop of the brother of the deceased. As per both the witnesses, the person sitting with the deceased was talking normally to him and was introduced by the deceased as “Sonar Bhai”. However, the appellant always worked as a driver and that fact was never disputed by the prosecution. The appellant further alleged that PW-3 and PW-4 claimed to have identified the appellant on 26th May, 2010 where he was brought in custody however the statements to that effect were not recorded by the Investigation Officer. These witnesses were not called for identification of the appellant and claimed to have seen the appellant on 26th May, 2020 per chance in the police station. It was contended that there was no eye witness in the present case despite the shop being in a busy market area and a gurudwara right in front of the shop. Reliance cannot be placed on the suspicion of PW-11 Deen Dayal, owner of the shop who stated that he suspected the appellant for this crime.

4. The forensic report showed that there was no blood group detected on the paper cutter, the alleged weapon, recovered at the instance of the appellant, nor the iron piece recovered from the place of incident. Moreover, the DNA report showed that the hair samples recovered from the spot did not match that of the appellant. The chance prints recovered from the spot do not match that of the appellant and have not been proved by any witness. Further, no blood was detected on the clothes allegedly seized from the appellant which falsifies the case of the prosecution. It was not believable that the appellant was carrying a polythene bag with gold and blood stained tags and blood stained clothes for more than six days after the incidence on 26th February, 2010 specially when he was going to meet his father at the hospital who was admitted since 22nd April, 2010. The alleged recovery of the paper cutter was from the toilet of school of which no one had access without permission and has not been corroborated by the relevant witness. Submissions by the Prosecution:

5. The learned Additional Public Prosecutor countered the submissions of the appellant by submitting that the instant case is of circumstantial evidence and the prosecution has been able to prove its case against the appellant. It was clear from the deposition of PW-1, PW-11, PW-2 and PW-15 that Panne Lal had first seen the deceased in injured condition before he was shifted to the hospital. Both PW-3 and PW-4 had deposed that the appellant was last seen with the deceased at the shop and the time gap between the last seen and the time of incident was merely 2.[5] hours which is quite narrow and is acceptable. The doctor PW-21 clearly opined that the cause of death was due to hemorrhagic shock subsequent to a cut injury to the neck by a pointed sharp edged weapon. This medical opinion was corroborated by weapon recovered from the spot as well as at the instance of the appellant, since there was also an external injury to the head possible by a forceful blunt impact. The disclosure statement of the appellant led to the recovery of the weapon of offence and, therefore, is admissible. The prosecution argued that the motive of the crime was that the appellant was in need of money to repay a loan to take care of his father who was admitted in hospital. The Evidence:

6. PW-3 Lalit was an acquaintance of PW-11 Deen Dayal owner of DD Jewellers and used to do electrical work at his jewellery shop. As per his testimony on 25th April, 2010 at about 2-2:15 p.m. he went to the jewellery shop to collect some money against electrical work done for PW-11. However, PW-11 was not present but his brother Ashok Kumar (deceased) and one more person aged about 25 years wearing t-shirt and black colour pant were talking with each other. The deceased stated that he did not know the expected time of arrival for PW-11 and then asked PW-3 to fix a plug and the deceased and the unknown person both said they had to go and take meal and, therefore, PW-3 could come later. At about 6:00 p.m. PW-2 came to know that Ashok had been murdered. PW-3 identified the appellant before the court as the person he had seen in the shop. However, he further stated that on 26th May, 2010 when he was passing through PS Tilak Nagar, he had seen the appellant with the police officials and he had identified him then as well.

7. PW-4 Sunny Maheshwari in his testimony stated that on 25th April, 2010 at about 03:00 p.m. he parked his motorcycle in front of the shop of DD Jewellers opposite the gurudwara and went inside the shop. However, PW-11 Deen Dayal was not present but his brother Ashok was present and there was one boy alongwith Ashok whom PW-4 identified as the appellant, in court. PW-4 asked Ashok regarding rate of gold on that day and Ashok replied that it was approximately Rs.16,000/- to Rs.16,500/- but the boy sitting there also stated that the rate was about Rs.17,000/- and above. PW-4 later went to his residence and in the evening about 5:30-6:00 p.m. came to know through TV that one person had been murdered inside DD Jewellers and later upon enquiry came to know that it was Ashok who had been murdered.

8. PW-5 Sunil Malhotra in his testimony stated that he had a jewellery shop by the name and title of Malhotra Jewelers in Chandni Chowk, Delhi. He stated that he had sold silver ornaments to PW-11and produced the bill dated 10th April, 2009. However, in his crossexamination he stated that the particulars of DD Jewellers were not mentioned in the said bill. Similar was the testimony of PW-6 Praveen Chawla who, as a jeweller, had sold mixed ornaments, gold, tops and rings to PW-11 and produced the photocopy of the bills.

9. PW-11 Deen Dayal testified that on 25th April, 2010 he had asked his brother Ashok Kumar to look after the shop and at about 1:30 p.m. he went with his family members to Bangla Sahib Gurudwara. At about 5:00-5:15 p.m. PW-1 received a call from his supplier Pawan who stated that the jewellery shop is open and no one is present at the shop. PW-11 asked Pawan to wait, thinking that Ashok may have gone nearby but since no one was seen in the shop despite waiting, PW-11 told Pawan that he would send Panne Lal, his first cousin. Panne Lal having agreed to go the shop pursuant to the call by PW-11 and then informed PW-11 that Ashok had received injuries and was at the hospital and who later expired. At about 9:00-9:30 p.m. when he came to shop with Panne Lal he came to know that the appellant who used to reside in the neighborhood was last seen alongwith his brother Ashok at the shop and the appellant was a “hooligan and awara type”. He further testified that the appellant was absconding from his residence since 25th April, 2010 and had been found mingling with his brother one or two days prior. PW-11 also placed five bills with the I.O. and a list of articles found missing. PW-11 further identified one iron musal having a hole which was unsealed from a sealed packet of FSL. PW-1 stated that this was used at his jewellery shop and meant to round the bangles. He also identified four jewellery boxes with blood stains and the clothes that were worn by his deceased brother when he left him on that day. He further identified the jewellery pieces which were recovered and given to him on superdari.

10. PW-12 Panne Lal testified that on 25th April, 2010 at about 4-4:30 p.m., he received a call of his cousin PW-11 informing him that since PW-11’s jewellery shop was reportedly open and his brother Ashok Kumar not present, PW-12 should go and check. PW-12 upon reaching the shop went behind the counter and found articles was scattered, almirah was open and Ashok Kumar was lying in a corner in injured condition. With the help of a nearby shopkeeper, he took the injured to Park Hospital but was declared dead on arrival. He testified that he came back to the shop at about 10-10:30 p.m. on that night alongwith the police officials and the crime team and various exhibits were lifted by them, seized and taken in possession. He testified that on 01st May, 2010 he was asked by the police to accompany them to the residence of the appellant but he was not found there. Pursuant to a further search and some secret information, PW-12 was made part of police team and on his pointing out at about 3:30 p.m., to a person coming on Najafgarh toward Kukreja Hospital, the appellant was arrested. He also identified the appellant before the court.

11. Dr. O.P. Bansal (also marked as PW-11) testified that when the injured was brought to the hospital he was bleeding profusely and had a transverse cut injury on the neck on the left side as well as three lacerated wounds on the parito occipital region cutting deep scalp. He further stated that the nature of the injuries was grievous and the patient was unfit for statement and later he had prepared the death summary of the deceased. Dr. Santosh Kumar testified as PW-21 that he had conducted the post mortem of the deceased and in his opinion the cause of death was due to hemorrhagic shock consequent to a cut down injury to the neck vessel by a pointed sharp edged weapon. He further stated that an external injury no.9 and internal injury to the head could be possible by forceful blunt impact directly imparted over the head and that external injury no.9 and 10 was sufficient to cause death in ordinary course of nature individually as well as in combination. All injuries were ante mortem and similar in terms of duration. He subsequently opined having been shown the iron musal and the paper cutter (as allegedly recovered) that the injuries were possible due to similar type of knife (paper cutter).

12. Inspector R.S. Meena, the Investigation Officer testified as PW-31 that during his investigation he had recorded the statements and also that the forensic team had picked up chance prints from the scene of crime. He stated that he had collected exhibits viz. hairs from the pool of blood, blood from the workshop in a cotton gauge, blood stained flow mat, blood stained iron musal, four blood stained jewellery boxes and these were sealed and taken into police possession. He stated that in the statement recorded under Section 161 Cr.P.C., PW-3 and PW-4 told him that they had seen the deceased sitting with the appellant at the jewellery shop. On 27th April, 2010, on the basis of a secret information about the appellant, PW-31 went to the house of the appellant and met his mother where she mentioned that he had not returned home since 25th April,

2010. She further informed that her husband Phool Chand was admitted in Kukreja Hospital since 22nd April, 2010. PW-31 states that it was PW-11 who had told him that he had information regarding involvement of the appellant in the murder of his deceased, from his own source. Thereafter on 01st May, 2010, on the basis of secret information they came to know that the appellant would be coming to Kukreja Hospital to meet his father and at about 3:30 p.m. assisted by Panne Lal’s pointing out, the appellant was apprehended. As per PW-31 after sustained interrogation, the appellant confessed his guilt and on a personal search one polythene pouch of yellow colour was found in the right pocket of his trouser which contained one pair of ear tops, two rings and piece of ear rings. There was blood on the tag attached on the piece of the ear rings and there were two blood stained tags also in the same polythene pouch, all of which were sealed and seized. The appellant was carrying a bag of fauji colour and in that was found one black colour paint and one red t-shirt with blood stained. PW-31 stated that the appellant disclosed that he was wearing the said clothes at the time of committing the offence but had gone to Kanpur after the murder and washed the said clothes. Thereafter the appellant who got recovered at his instance, the weapon of offence i.e. paper cutter from the roof top of the toilet of Government Boys/Girls Senior Secondary School, Khyala which was situated inside the school. Further, the appellant led them to the roof of the second floor of the house where a blood stained polythene of violet colour was recovered at the instance of the appellant from underneath wooden planks and bricks which contained the some of the jewellery he had allegedly wrapped. This polythene contained a pouch of DD Jewellers containing six pairs of silver pajeb, two rings and one locket. PW-31 also stated that he had recorded the statement of PW-3 Lalit who had seen the person at the shop with the deceased. Further PW-3 on 28th May, 2010, during a conversation with PW-31 stated that he had seen the appellant with the police party on 26th May, 2010 and that he was the same person that he had seen at the shop with the deceased. Analysis:

13. On a meticulous perusal of the evidence and documents on record and submissions made by the parties, this Court is of the opinion that there are numerous critical gaps in the chain of circumstantial evidence, discrepancies in the testimonies of the eyewitness and the prosecution has not been able to prove its case beyond reasonable doubt inter alia for the following reasons:

(i) PW-3 and PW-4, the two last seen witnesses saw the deceased at the shop with an unknown person at about 2 p.m. and 3 p.m. respectively, at the jewellery shop. Neither of them identified nor were able to name the unknown person sitting with the deceased at the shop. Having not identified the unknown person even in their statements recorded under Section 161 Cr.P.C., their subsequent conduct of having identified the appellant as that unknown person purely by chance on 26th May, 2010 when he was with the police party, does not inspire confidence nor seems credible. As per PW-31’s testimony, both PW-3 and PW-4 independently stated that they had seen the appellant in the custody of the police on 26th May, 2010 PW-3 states that he saw at the appellant’s house and PW-4 states that he saw him generally at a location not specified. In his cross-examination, PW-31 states that PW-3 knew the name of the appellant and had given his description in his statement. If this were so, the fact that PW-3 never disclosed the name of the appellant, having last seen him with the deceased, is a circumstance which casts serious doubt on their testimonies. No statements were recorded of either PW-3 or PW-4 in this regard.