* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. Appeal No.734/2004 % Date of Decision : 15th of February, 2008 # SHEKHAR & ANR. .....Appellant ! Through : Mr. Anil Soni, Amicus Curiae versus $ THE STATE OF NCT OF DELHI .....Respondent ^ Through : Ms. Fizani Hussain, Addl. P.P. & Crl. Appeal No.374/2005 # SUNIL @ PANDIT .....Appellant ! Through : Mr. Anil Soni, Amicus Curiae versus $ THE STATE OF NCT OF DELHI .....Respondent ^ Through : Ms. Fizani Hussain, Addl. P.P. * CORAM: HON'BLE MR. JUSTICE B.N. CHATURVEDI HON'BLE MR. JUSTICE G.S. SISTANI 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes : B.N.CHATURVEDI, J. 1. These appeals arise out of a judgment of Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 1 of 36 conviction dated 20th July, 2004 under Sections 392/394/302/34 IPC and Section 411 IPC in FIR No.390/2001 PS Mangol Puri, Delhi and sentence of imprisonment and fine to respective respondents by an order dated 24th July, 2004 as under : (1) three years RI and a fine of Rs.1000/- each and in default of payment of fine SI for one month under Section 392/34 IPC; (2) RI for four years and a fine of Rs.1,000/- each and in default of payment of fine SI for one month under Section 394/34 IPC; (3) imprisonment for life and a fine of Rs.1,000/- each and in default of payment of fine SI for one month under Section 302/34 IPC; and (4) RI for three years and a fine of Rs.1,000/- and in default SI for one month under Section 411 IPC. 2. The substantive sentences of imprisonment under different heads are to run concurrently. 3. The appellants together with three others were prosecuted on the allegations of committing Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 2 of 36 dacoity and murder of one Raju at House No.G-394 Mangol Puri, Delhi on the intervening night of 11/12th of May, 2001. Appellant Sanjay @ Moni was apprehended by Constable Bodh Raj Singh and Constable Parvinder Singh at D Block, Mangolpuri, Delhi immediately after commission of said dacoity and murder. At the relevant time both the said Constables were on patrolling duty. They noticed 6- 7 boys coming from the side of E Block, who on being asked to stop started running away. On a chase, Constables Bodh Raj Singh and Parvinder Singh succeeded in overpowering appellant Sanjay @ Moni. On his personal search two gold bangles and a cash amount of Rs.1507/- were recovered from right pocket of his trouser. Possession thereof he could not explain satisfactorily. After sometime Inspector S.K. Saxena, SHO PS Mangol Puri, Delhi accompanied by other police officials including Head Constable Ajay Pal and Constable Shokinder Singh also reached there around 3.15 am in the course of their night patrolling duty. Appellant Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 3 of 36 Sanjay @ Moni was produced before Inspector S.K. Saxena with recovered gold bangles and the cash amount. On being subjected to interrogation, Sanjay @ Moni allegedly disclosed that a short while ago he and his associates had committed a dacoity in a house near G Block latrines and that the gold bangles as also the cash were part of looted property. He allegedly further disclosed that in the course of dacoity, he and his associates had committed a murder also. Inspector S.K. Saxena was in the meantime joined by SI Vikram Singh who also happened to reach there. Appellant Sanjay @ Moni led the police officials to house No.G-394, Mangolpuri, Delhi, which was found bolted from outside. On entering the house a dead body was found lying there. The house belonged to one Rohtas. At some distance there was residence of his brother Jagdish. Jagdish was called from his house. He confirmed that the house in question belonged to his elder brother Rohtas. Raju, deceased as told by him was brother-in-law of both the brothers as Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 4 of 36 their respective wives were sisters. Rohtas was not at his house, as according to Jagdish, he had gone to a nursing home to take care of his nephew who was admitted there. The wife and children of Rohtas were sleeping in the house of Jagdish. The deceased Raju was alone there in the house when the incident took place. The dead body of Raju was found lying on the floor. There were multiple stab wounds on his person and a lot of blood was splattered on the floor. The almirah was found open and articles therein ransacked. The statement of Jagdish was reduced into writing on the basis of which a FIR was got registered. A disclosure by appellant Sanjay @ Moni led to recovery of a blood stained razor from a park nereby which was taken into possession by the police. This apart, the T- shirt, bearing blood stains, which appellant Sanjay @ Moni was wearing at the time of his apprehension, was also seized and taken into possession by the police. On the disclosure of appellant Sanjay @ Moni regarding his accomplices, appellants Shekhar Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 5 of 36 and Sunil @ Pandit were arrested by the police on 16th May, 2001 and 24th May, 2001 respectively. Appellant Shekhar on his arrest made a disclosure and led to recovery of a pair of golden ear tops and an iron rod from his house on the day of his arrest. Similarly, appellant Sunil @ Pandit pursuant to a disclosure by him got an amount of Rs.2,000/- and a golden chain recovered from his house. 4. Chance finger prints were lifted from the scene of crime some of which on a comparison with specimen finger prints of the appellants were opined to match with the specimen finger prints of appellants Shekhar and Sunil @ Pandit. 5. Though the appellants and two others were tried on the charges under Section 395/396/397/302/34 IPC and Section 412 IPC, eventual conviction recorded against them was under Sections 392/394/302/34 IPC and under Section 411 IPC. Their alleged two accomplices, Ishwar @ Jaggi and Praveen were held guilty for an offence punishable under Section 411 IPC only as Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 6 of 36 other charges against them were held not proved. Sixth person namely Rajesh was tried on a charge under Section 412 IPC only but convicted under Section 411 IPC. 6. Mr. Anil Soni, Amicus Curiae submitted that appellant Sanjay @ Moni was held guilty for the offences punishable under Sections 392/394/302/34 IPC and Section 411 IPC on the basis of his having led the police to the scene of crime after his apprehension by the police in addition to part of looted jewellery and cash amount being recovered from his person. Besides, the T-shirt, which he was found wearing at the time of his apprehension, bore blood stains, which were later found by the CFSL to be matching with the blood group of the deceased. Mr. Soni pointed out that though according to prosecution a razor had also been recovered at the instance of appellant Sanjay @ Moni and the doctor concerned conducting postmortem examination on the dead body of deceased Raju opined that all the stab injuries Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 7 of 36 except injury No.5 could possibly be caused by a razor of that type, the learned trial court did not base its finding of conviction against appellant Sanjay @ Moni on the basis of recovery of the razor. It was further brought out by Mr. Soni that the chance prints lifted from the scene of crime did not match with the specimen finger prints of appellant Sanjay @ Moni. 7. Referring to recovery of part of jewellery items and cash from appellants Shekhar and Sunil @ Pandit it was argued by Mr. Soni that all the recoveries of incriminating articles from the appellants were witnessed by the police officials only and in the absence of any independent witness to such recoveries particularly in case of appellants Shekhar and Sunil @ Pandit, these recoveries could not have been held proved. It was contended that the incriminating items allegedly recovered from respective appellants were packed and sealed in different parcels using the same seal on different dates and as the seal continued to be retained by the Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 8 of 36 Investigating Officer himself althrough, there was every likelihood of the articles of jewelery and cash allegedly recovered at the instance of respective appellants being shown to PW Rohtas before the same were put to identification by him before the Metropolitan Magistrate concerned. It was further argued that neither at the time of registration of the FIR nor thereafter any list of robbed articles was furnished to the police by PW Rohtas and in the circumstances it is not proved that the cash and jewelery items allegedly recovered from the appellants were actually part of the robbed items. Mr. Soni also contended that the claim of the police of solving a blind case of robbery and murder by virtue of apprehension of appellant Sanjay @ Moni in the course of their patrolling falls flat in view of no DD entries being proved on record to establish that the police officials concerned were actually present in the area at the relevant time in connection with their night patrolling duty. 8. Mr. Soni cited three Supreme Court Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 9 of 36 decisions in Mohd. Aman, Babu Khan & Anr. Vs. State of Rajasthan; (1997) 10 SCC 44, Paramasivam @ Paraman @ Kottiyan & Anr. Vs. State of Tamil Nadu; JT 2002 (8) SC 214 and Rajesh Jagdamba Avasthi Vs. State of Goa; 2005 (9) SCC 773 in support of his arguments that tampering with chance finger prints before the same were sent to Finger Print Bureau for comparison with specimen finger prints of appellants Shekhar and Sunil @ Pandit could not be ruled out and that as the packets of the incriminating articles allegedly recovered from the respective appellants and the seal, continued to be with the Investigating Officer only there was every possibility of the same being tampered with. 9. Ms. Fizani Hussain, learned Addl. P.P. representing the State canvassed, to sustain the impugned conviction and sentence, on the strength of apprehension of appellant Sanjay @ Moni shortly after the commission of murder and robbery and recovery of jewelery and cash amount forming part Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 10 of 36 of looted property, besides recovery of blood stained T-shirt which he was found wearing and the blood stains on his T-shirt being found matching with blood group of deceased Raju. Ms. Fizani further submitted that the recovery of incriminating articles effected from respective houses of appellants Shekhar and Sunil @ Pandit pursuant to their disclosure, coupled with evidence with respect to their finger prints being found at the scene of crime conclusively establish their complicity in commission of the crimes. She contended that the deficiencies in the evidence pointed out by learned counsel for the appellants do not materially affect the final outcome of appellants being held guilty of the offences as recorded by the learned trial court. Ms. Fizani Hussain sought to rely upon a Supreme Court decision in Praveen Kumar Vs. State of Karnataka; (2003) 12 SCC 199 to supplement her contention that in view of recovery of robbed jewellery and cash from the respective appellants, an inference could be Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 11 of 36 drawn that they must have robbed the same and in the process committed the murder as well. 10. We have heard Mr. Anil Soni, Advocate for the appellants and Ms. Fizani Hussain, Addl. P.P. for the State. 11. Want of direct evidence connecting the appellants with the commission of the crimes made the prosecution to fall back upon circumstantial evidence to prove the guilt of the appellants. The circumstances constituting basis for impugned conviction are as follows : (i) apprehension of appellant Sanjay @ Moni by the police shortly after commission of robbery and murder on the same night at a short distance from the scene of crime; (ii) recovery of two gold bangles and a sum of Rs.1507/- from his person being part of robbed property; (iii) the police being led by appellant Sanjay @ Moni to the house of PW Rohtas where the robbery and murder had been committed; (iv) blood stains on the T-shirt which appellant Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 12 of 36 Sanjay @ Moni was found wearing at the time of his apprehension by the police and which on chemical examination were found to match the blood group of the deceased ; (v) arrest of appellants Shekhar and Sunil @ Pandit on 16th May, 2001 and 24th May, 2001 respectively pursuant to their names being disclosed by appellant Sanjay @ Moni as his accomplices and recovery of part of robbed property from their respective houses at their instance apart from recovery of an iron rod from the house of appellant Shekhar; and (vi) presence of chance finger prints of appellants Shekhar and Sunil @ Pandit on steel almirah, refrigerator and a steel glass out of which some were found identical with specimen finger prints of appellants Shekhar and Sunil @ Pandit. 12. The trial court found the aforesaid circumstances taken together unerringly pointing to the guilt of the appellants and accordingly convicted them as stated earlier. Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 13 of 36 13. To say the least, text of the judgment does not present a very happy reading for lack of analytical approach on the part of the learned trial court, which was essential for proper evaluation of evidential value of the depositions of material prosecution witnesses. In the face of absence of statement of reasons supporting the finding of conviction, it becomes imperative to make a critical examination and evaluation of the evidence on record, adduced by the prosecution, to find the sustainability or otherwise of the impugned conviction. This sets out the stage for an analytical processing of relevant prosecution evidence available on record, related to individual circumstances as detailed in para 11 (i) to (vi). 14. It is not the investigative acumen rather a chance catch which treads the path of acclaimed success in solving a blind case of dacoity/robbery and murder in the given case. Such a success story begins with alleged apprehension of appellant Sanjay @ Moni at a short distance from the scene of Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 14 of 36 crime. Constable Bodh Raj Singh, PW-10 and Constable Parvinder Singh PW-14 are credited with effecting his apprehension in the course of their night petrolling in blocks A, B, C, D and E of Mangol Puri. Noticing 6/7 boys coming from E- Block side they asked them to stop. The boys however, instead of abiding by their command started running away. A chase by the two constables resulted in appellant Sanjay @ Moni being apprehended. The fact that the aforesaid two constables had apprehended appellant Sanjay @ Moni is supported by other police officials, namely Head Constable Ajay Pal, PW-3, Constable Shokinder Singh, PW-8 and Inspector S.K. Saxena, PW-16 who claimed to have had reached the place of apprehension of the said appellant in the course of their night patrolling of the area. SI Vikram Singh, PW-15 had, as stated by him, also reached that place on way back to Police Station Mangol Puri after attending a call at Sanjay Gandhi Hospital. 15. Departure entries in the daily diary, in Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 15 of 36 connection with patrolling in the area, could have been better established by placing on record extracts thereof. However, no DD entry in respect of any of the aforesaid police officials including Constable Bodh Raj Singh, PW-10 and Constable Parvinder Singh, PW-14 is proved on record to establish that they were actually present in the area at the relevant time in connection with patrolling of the area or that SI Vikram Singh, PW-15 had gone to Sanjay Gandhi Hospital to attend a call there. This omission apart, a comparative reading of the statements of the aforesaid witnesses concerning sequence of developments following alleged apprehension of appellant Sanjay @ Moni, also confounds the situation. Afflicted by glaring contradictions, the depositions of these witnesses fall short of being assuring from prosecution's point of view. It is to be noticed that according to Constable Bodh Raj Singh, PW-10, Head Constable Ajay Pal, PW-3 and Constable Shokinder Singh, PW- 8 had arrived about 30 minutes after the Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 16 of 36 apprehension of appellant Sanjay @ Moni. Within another 15 minutes SI Vikram Singh, PW-15, accompanied by Constable Raghvinder also reached there. Appellant Sanjay @ Moni, states Constable Bodh Raj Singh, PW-10, was subjected to personal search by Constable Parvinder Singh, PW-14, leading to recovery of two gold bangles and an amount of Rs.1507/-, in the presence of Head Constable Ajay Pal, PW-3 and Constable Shokinder Singh, PW-8. On the contrary, Constable Parvinder Singh, PW-14 affirmed that it was Head Constable Ajay Pal, PW-3, who had conducted the personal search of the appellant Sanjay @ Moni yielding the said recoveries. On the point as to who had conducted personal search of appellant Sanjay @ Moni, statements of Constable Bodh Raj Singh, PW- 10 and Constable Parvinder Singh, PW-14 are thus contradictory to each other. The testimony of neither of them is supported by Head Constable Ajay Pal, PW-3 or Inspector S.K. Saxena, PW-16. Head Constable Ajay Pal, PW-3 and Inspector S.K. Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 17 of 36 Saxena both stated that on their reaching the place where appellant Sanjay @ Moni was being detained by Constable Bodh Raj Singh, PW-10 and Constable Parvinder Singh, PW-14, the appellant Sanjay @ Moni was produced before Inspector S.K. Saxena, PW-16 alongwith two gold bangles and a sum of Rs.1507/-. Clearly, according to Head Constable Ajay Pal, PW-3 and Inspector S.K. Saxena, PW-16 the personal search of appellant Sanjay @ Moni had already been carried out before their reaching the place. Constable Shokinder Singh, PW- 8 on the other hand came out with an altogether different version. According to him the personal search of appellant Sanjay @ Moni was conducted by Inspector S.K. Saxena, PW-16 only resulting into said recoveries. Mutually contradictory statements of these witnesses, as noticed, apart from putting a question mark on the alleged apprehension of the appellant Sanjay @ Moni and recovery of the two gold bangles and an amount of Rs.1507/- from him also appear to negate their very presence in the Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 18 of 36 area as claimed. 16. Another aspect of the matter impacting the claim of the aforesaid police officials of being present in the area on night petrolling is that neither Constable Bodh Raj Singh, PW-10 nor Constable Parvinder Singh, PW-14 spoke about the presence of Inspector S.K. Saxena, PW-16 either at the time when alleged recovery of the two gold bangles and Rs.1507/- was effected from appellant Sanjay @ Moni or when the said appellant was produced before Head Constable Ajay Pal, PW-3. From the statements of both these witnesses it turns out that Head Constable Ajay Pal, PW-3 and Constable Shokinder Singh, PW-8 were not keeping company with Inspector S.K. Saxena, PW-16 when they had arrived at the place of apprehension of appellant Sanjay @ Moni, though Inspector S.K. Saxena, PW-16, Head Constable Ajay Pal, PW-3 and Constable Shokinder Singh, PW-8 claimed that they had reached there together. The statement of Constable Bodh Raj Singh, PW-10 rather discloses Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 19 of 36 that Inspector S.K. Saxena, PW-16 had arrived at the scene of crime only. To the same effect is the statement of Constable Parvinder Singh, PW-14 as well. Thus, if testimony of both these constables are to be accepted, Inspector S.K. Saxena, PW-16 was nowhere in picture at any point of time before they reached the place of crime. This is clearly in contradiction to the statements of Inspector S.K. Saxena, PW-16, Head Constable Ajay Pal, PW-3, Constable Shokinder Singh, PW-8 and SI Vikram Singh, PW-15 to the effect that the appellant Sanjay @ Moni had led the police officials, headed by Inspector S.K. Saxena, to the place of crime. Thus doubt regarding actual presence of the aforesaid police officials in the area in connection with night petrolling in the absence of relevant DD entries being proved on record grows stronger in view of aforesaid inconsistencies in the statements of the said prosecution witnesses in regard to the apprehension and arrest of appellant Sanjay @ Moni as also recovery of two gold bangles and cash Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 20 of 36 amount of Rs.1507/- from him. In the given situation where the very apprehension and recovery of aforesaid incriminating items from the person of the appellant Sanjay @ Moni are rendered suspect, the prosecution case that the appellant Sanjay @ Moni had led the police party to the scene of crime can also be not viewed beyond doubt. 17. Shifting to crime scene, in the face of doubt in regard to the police officials being led thereto by the appellant Sanjay @ Moni, the factum of police officials reaching there at about 3.45 am is also difficult to accept for the simple reason that if the alleged pointing out of the place of crime by the appellant Sanjay @ Moni on his apprehension is left apart, the police officials could not have had any clue of the crimes being committed there at that hour of night. If one goes by the statement of Jagdish, PW-1, Inspector S.K. Saxena, PW-16, accompanied by some police officials, would appear to have first visited his house at about 4.30 am on 12th May, 2001 to take him along to the place of Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 21 of 36 crime i.e. House No.G-394 Mangol Puri, Delhi belonging to his brother Rohtas, PW-2. Inspector S.K. Saxena, PW-16 SI Vikram Singh, PW-15, Head Constable Ajay Pal, PW-3, Constable Shokinder Singh, PW-8, Constable Bod Raj Singh, PW-10 and Constable Parvinder Singh, PW-14 however testified that all of them had reached the scene of crime only and Jagdish, PW-1 was called from his house later on noticing a dead body lying there and the house being found ransacked. If such statements of said police officials are to be believed, Jagdish, PW- 1, on his reaching the house of his brother Rohtas, PW-2, would have come across with Inspector S.K. Saxena, PW-16 and other police officials being already present inside the house but that was not so. According to Jagdish, PW-1 when he reached the house of his brother, he saw two police officials present there outside the house. Further, from his statement it is noticed that he as well as the police officials entered the house No.G-394 Mangol Puri, Delhi simultaneously. Had Inspector S.K. Saxena, Crl. Appeal No.734/04 & Crl. Appeal No.374/04 Page 22 of 36 PW-16 and other police officials been already present inside the house there could be no reason for Jagdish, PW-1 making statement to the said effect belying their presence at the scene of crime before his reaching there. Contradictory position emerging out of the affirmations of Jagdish, PW-1 on one hand and that of the said police officials on the other also causes doubt on prosecution's claim that the police officials headed by Inspector S.K. Saxena, PW-16 were led