Sonvir @ Somvir vs The State Of Delhi

2. The appellant has been convicted under Sections 302, 392 read with Section 34 of the IPC by Addl. Sessions Judge-02:South East Saket Court, New Delhi. The appeal against the conviction has also been dismissed by the Delhi High Court by judgment dated 10.12.2014. Detailed facts of the case including 2 prosecution case and the evidence on record have been elaborately noted by Sister Justice Indu Malhotra in her judgment. Hence, I feel no necessity to repeat the same. After elaborate consideration of entire evidence on record Sister Justice Indu Malhotra has come to the conclusion that appeal should be allowed and appellant be acquitted.

After Mohd. Aman was arrested on 20-4-1983 his specimen fingerprints were taken by H.C. Ramji Ram (PW 24) and forwarded to the Bureau on 24-5-1983. As the prints were not clear, the same were returned by the Bureau asking for better prints. Specimen fingerprints were thereafter again taken on 20-6-1983 and sent to the Bureau. These prints were also sent back and for the third time prints of Mohd. Aman were taken and sent to the Bureau on 30-6-1983. Thereafter the Bureau gave its report (Ext. 115) with the opinion that the chance fingerprints found on the brass jug were similar to and identical with his specimen fingerprints.”

1.1 The prosecution case is that on 20 th October 2009, the PCR received information at 11:45 a.m. from some secret informer stating that House No. C- 41 190, Kinner Wali Building, Shaheen Bagh, New Delhi, was locked and there was something wrong inside. The police opened the main gate with the help of a key maker. On entering the main gate, dried blood was found on the floor, and on the right side a Maruti car bearing No. 800 DL-6CA-3414 was found parked with all four tyres deflated. On the left-hand side, inside the bathroom, the dead body of Meena Kinner, aged 30 years, was found with injury marks on the neck and right arm. On the first floor, the dead body of one Vimlesh Kinner, aged 45 years, was found on the double bed. The body of Vimlesh had injury marks on the neck, chest, arm, toe, index finger etc. Articles were found scattered in the house. Both the deceased were persons of the third gender. 1.2 Post-mortem was conducted on the body of Vimlesh by Dr. Sunay M (PW-2) who opined that the cause of death was shock due to haemmorhage caused by injuries from a sharp weapon. Dr. Susheel Sharma (PW-7) conducted the post- mortem on the body of deceased Meena. The injuries were found sufficient to cause death in the ordinary course of nature. The injuries were caused by a sharp pointed heavy weapon.

1.4 On 3rd November 2009, at about 8:30 pm on the basis of secret information, the police apprehended Sultan @ Rajesh (Accused No. 1) who was the driver of the deceased Vimlesh. Sultan @ Rajesh (Accused No. 1) allegedly disclosed that Sonvir @ Somvir (Appellant-Accused No. 2) a taxi-driver, Khalil Ahmed (Accused No. 3), and “N” (Juvenile) were also involved in the conspiracy with him. As per the prosecution case, Sultan @ Rajesh (Accused No. 1) at the time of being apprehended, was allegedly found to be carrying a 42 black bag on his shoulder containing 15 items of golden jewellery, 2 pairs of payjeb, 6 silver coins, Rs. 2,00,000/- in cash, one wrist watch of ICICI make, and two photographs of the deceased Vimlesh. 1.5 Later the same day at night, Sultan @ Rajesh (Accused No. 1) led the police to Sonvir @ Somvir (Appellant-Accused No. 2), who was staying in a room in the house of Teja Chaudhary. At the time of arrest, Sonvir @ Somvir (Appellant-Accused No. 2), was allegedly also carrying a black coloured bag containing 15 items of golden jewellery, 2 items of silver, 6 silver coins and Rs. 50,000/- in cash. Sonvir @ Somvir (Appellant-Accused No. 2) led the police to his room, and brought out a blood-stained knife, and a blood-stained shirt, from a bucket.

3) at Hari Nagar who was also allegedly carrying a bag with him. On searching the bag, some golden jewellery, 2 wrist watches, and Rs. 3,00,000/- in cash were allegedly recovered at about 4.35 a.m. on 4th November 2009. 1.7 Khalil Ahmed (Accused No. 3) then led to the arrest of “N” (Juvenile) on 4 th November 2009. “N” (Juvenile) was sleeping on the floor with a bag under his pillow. On searching the bag, some jewellery items, 1 Nokia 6600 mobile phone and Rs. 32,000/- in cash were allegedly recovered. 1.8 On 7th November 2009, Sultan @ Rajesh (Accused No. 1) and Sonvir @ Somvir (Appellant-Accused No. 2) led the police to Village Bhind, District Morena for the recovery of a Maruti van belonging to Vimlesh. The Maruti van with the broken number plate had already been seized by ASI Udai Bhan Singh Parmar (PW-23) on 1st November 2009 from Gate No. 2 of the Punj Llyod Factory at Noorabad. It was handed over to the I.O. - SI Amrit Raj (PW- 32A) on 8th November 2009. The Maruti van along with the articles in it were seized by the I.O. - SI Amrit Raj (PW-32A). A broken number plate was allegedly recovered by the police near Gate No. 2 of the Punj Llyod Factory at Noorabad at the instance of Sultan @ Rajesh (Accused No. 1) and Sonvir @ Somvir (Appellant-Accused No. 2).

1.14 The trial proceeded against the three accused viz. Sultan @ Rajesh (Accused No. 1), Sonvir @ Somvir (Appellant-Accused No. 2), and Khalil Ahmed (Accused No. 3). Khalil Ahmed (Accused No. 3) stated that he was in a relationship akin to that of a husband and wife with the deceased Vimlesh. Sultan @ Rajesh (Accused No. 1) was employed as a driver by Vimlesh; whilst Sonvir @ Somvir (Accused No. 3) was a taxi driver, whose taxi had been engaged by Vimlesh on some occasion, as per Sonvir @ Somvir’s statement recorded under Section 313 of the Cr.P.C. 2 The Trial Court vide Judgment and Order dated 3 rd June 2014 convicted all the three accused for offences punishable under Sections 302 and 392 r.w. Section 34 of the IPC.

Further, both these accused allegedly led the police party near Gate No. 2 of the Punj Lloyd Factory at Noorabad from where the Maruti van had already been recovered, and got recovered the broken number plate bearing number “86”. The recovery of the Maruti Van and the broken number plate was held to be a piece of incriminating evidence against Sultan @ Rajesh (Accused No. 1) and Sonvir @ Somvir (Appellant-Accused No. 2) by the Trial Court. SI Abhisek Singh (PW-30) had stated in his cross-examination that no public person/independent witness was present at the time of the alleged recovery. It is important to note that while ASI Udai Bhan Singh Parmar (PW-23) stated that the broken number plate was allegedly recovered from the garbage dump, SI Abhishek Singh (PW-30) and Inspector Amrit Raj (PW-32A) stated that it was allegedly recovered from the bushes. The absence of any independent witness of the alleged recoveries, and the discrepancy in the statements of the police officers, makes the prosecution case doubtful. 6.5 FORENSIC REPORT REGARDING MATCHING FINGER IMPRESSIONS The prosecution relied upon the report tendered by the Senior Finger Print Expert of the Fingerprint Bureau, RN Rawat (PW-35), to state that the finger 50 impressions obtained from Sonvir @ Somvir matched with the chance prints obtained from the scene of crime.

3. I fully agree with the above view of the Sister Justice Indu Malhotra. However, an important question of law pertaining to interpretation of Sections 4 and 5 of the Identification of Prisoners Act, 1920 being involved in the present appeal, I proceed to consider the same and give my reasons.

51. In view of the foregoing discussion we are of the opinion that view of the Delhi High Court that evidence of fingerprints of the accused has to be discarded cannot be supported for the reasons given in the impugned judgment of the Delhi High Court.

53. Thus, even if, above evidence is not discardable the entire chain of circumstances is not complete to unmistakeably point out the guilt to the appellant.

54. In result, the appeal is allowed. The appellant stands acquitted of the charges under Sections 302, 392 read with Section 34 of the IPC. The appellant is directed to be released forthwith, if not required in any other case.

........................J. (ASHOK BHUSHAN) New Delhi, July 02, 2018.

1.6 It is further alleged that the police apprehended Khalil Ahmed (Accused No.

Accused No. 2) has filed the present SLP, which was re-numbered as Criminal Appeal No. 958 of 2017.

Sultan @ Rajesh (Accused No. 1) has apparently not challenged the judgment of the High Court, and is undergoing the sentence awarded. 5 The legal evidence relied by the prosecution against Sonvir @ Somvir (Appellant-

Accused No.2) is as follows:

6 The legal evidence adduced by the prosecution is dealt with seriatim, to determine whether the prosecution has proved the case for offences punishable under Sections 302, 392 read with Section 34 of the IPC against the present Appellant beyond reasonable doubt.

6.1 ALLEGED RECOVERY OF UNACCOUNTED JEWELLERY AND CASH As per the prosecution case, 15 items of golden jewellery, 2 items of silver, 6 silver coins and Rs. 50,000/- in cash were allegedly recovered from Sonvir @ Somvir (Appellant-Accused No. 2) at the time of his arrest on 3 rd November 2009, which was 16-17 days after the date of the occurrence of the offence. The said jewellery and cash belonged to the deceased Vimlesh. Sonvir @ Somvir (Appellant-Accused No. 2) did not claim that the jewellery and cash belonged to him, and failed to give an explanation in his statement recorded under Section 313 of the Cr.P.C., as to how he was in possession of such a large amount of jewellery and cash.

Sonvir @ Somvir (Appellant-Accused No. 2) in his statement recorded under Section 313 of the Cr.P.C. stated that the recovery was planted, and that he had been falsely implicated.

The prosecution alleged that 16-17 days after the date of occurrence of the offence, when each of the accused was apprehended, each of them was found holding bags of jewellery. This seems improbable and unnatural. In the case of Sonvir @ Somvir (Appellant-Accused No. 2), he was apprehended from his room in the house of one Teja Chaudhary.

6.4 ALLEGED RECOVERY OF THE MARUTI VAN AND THE BROKEN NUMBER PLATE The prosecution alleged that both Sultan @ Rajesh (Accused No. 1) and Sonvir @ Somvir (Appellant-Accused No. 2) disclosed that they had abandoned the Maruti van belonging to Vimlesh 20 kilometers from Gwalior. They were taken to Morena by the I.O. - SI Amrit Raj (PW-32A), on 8 th November 2009. The Maruti van with a broken number plate had, however, already been seized by ASI Udai Bhan Singh Parmar (PW-23) as unclaimed on 1st November 2009.

This issue is being dealt with in the separate Judgment by Justice Ashok Bhushan.

7 In the aforesaid facts and circumstances, the prosecution has failed to make out the complete chain of circumstances to establish the guilt of the appellant beyond reasonable doubt. As a result, the present appeal is allowed, and the judgment and order passed by the High Court dated 10.12.2014 in Criminal Appeal no. 1300 of 2014 is set aside. The appellant is acquitted of the charges under Sections 302, 392 read with Section 34 of the I.P.C. 1860.