Recoveries made in the absence of any evidence cannot be termed sufficient to prove the case beyond reasonable doubt: Supreme Court of India

NON REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1306 OF 2017 YOGESH STATE OF HARYANA CRIMINAL APPEAL NO.1307 OF 2017 ANUJ STATE OF HARYANA CRIMINAL APPEAL NO.1308 OF 2017 PARDEEP STATE OF HARYANA JUDGMENT Uday Umesh Lalit J. These appeals arise out of the common judgment and final order dated 09.10.2013 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeals No.D 719 DB of 2010 D 713 DB of 2010 and D 735 DB of Eight persons namely Diwan Singh Anuj Sumit Pardeep Yogesh Satbir Parveen and Abhishek were tried in Sessions Case No.04 2009 on the file of the Additional Sessions Judge Jhajjar Haryana in connection with crime registered pursuant to FIR No.188 dated 18.08.2004 with Police Station City Bahadurgarh Haryana in respect of the offences punishable under Sections 302 364 A 376 216 read with Section 120 B of the Indian Penal Code 1860 “IPC” for short). The crime was registered pursuant to the reportingmade by one Manoj Kumarabout 12.45 P.M my children who use to study in B.S.M. Public school were coming back to house by bus after closing of their school as my son Neeraj 10 year and daughter xxx1 7 years got off from bus near Kothi No.622. then two boys came there on one red colour motor cycle one of them asked to come here upon which my daughter xxx went to near motor cycle then the boy sitting on motor cycle forcibly lifted baby and fled away toward the Primary school while getting her sit in between them on motor cycle number of motor cycle could not be seen. Hearing the alarm of children we tried to stop them but they fled away while pushing us. Both of them were of 1 Name of the victim is withheld young age. Out of them its driver had worn black pant brown shirt and a helmet on his head. Till now we remained in search of girl legal action be taken.” During the course of investigation a raid was conducted at the house of accused Diwan Singh who allegedly disclosed that his son Anuj along with three others had kidnapped the victim and as pressure of the investigation by the police was mounting the victim was murdered and her dead body was thrown in the fields of village Paparwat. deceased was recovered. In the intervening night of 19.08.2004 and 20.08.2004 the body of the It is not clear as to when exactly the accused were arrested but it is the case of the prosecution that pursuant to the disclosure statements made by these appellants the place where the dead body of the victim was lying could be located and their disclosure statements led to the recovery of certain items like clothing tiffin box etc. belonging to the victim. The dead body of the victim was subjected to post mortem which was conducted by Dr. P.K. PaliwalThere were multiple contusions of size 0.5 x 0.5 to 1.5 cm. over the lips angles of mouth and chin region ecchymosis was seen. iv) The labia were swollen and inflamed. The hymen and vaginal canal showed multiple and regular tears and laceration of size l x 0.5 cm. To 3 x l cm. Infiltration of blood was seen in tissues:” The cause of death was reported to be as under: “Opinion: Cause of death is manual strangulation coupled with smothering which was ante mortem in nature and homicidal in manner. However viscera was preserved for chemical analysis. Injurious over genitalia were indicative of forceful penetration of vagina. Duration between death and postmortem was about two days.” After examining viscera of the deceased the Forensic Science Laboratory Reportdisclosed the presence of Aluminium Phosphideunder Section 161 of the Code of Criminal Procedure 1973. Suresh Washerman was however not examined on behalf of the prosecution. The Investigating Officer PW20 deposed regarding the facts concerning recoveries pursuant to the disclosure statements made by the accused. On the strength of the material on record the Trial Court by its judgment and order dated 13.07.2010 found thatthe charge under Section 302 120 B 34 IPC was proved against the accused Yogesh Sumit Pardeep and Anuj while the charges under Sections 364 A and 376 IPC were not proved against themrest of the accused were not found guilty of any of the charges levelled against them and hence were acquitted. The trial court awarded sentence of life imprisonment to the convicted accused and imposed sentence of fine of Rs.20 000 in default whereof the convicted accused were directed to undergo further imprisonment for two years. The convicted accused namely Yogesh Sumit Pardeep and Anuj preferred appeals before the High Court challenging their conviction and sentence. No appeal was preferred by the State challenging acquittal of other four accused or against the acquittal of the convicted accused in respect of the charges under Sections 364 A and 376 IPC. All the appeals were considered and disposed of by the High Court by its judgment which is presently under challenge. After noting the material evidence on record and while considering the testimony of PW10 Manoj the High Court observed: “… Thus in the light of this unfortunate course of the trial statement of complainant Manoj Kumar PW10 father of the victim attains all the more importance. This witness as PW10 has specifically stated having witnessed occurrence when he was attracted on hearing the noise and has in no uncertain terms stated that accused Yogesh was driving the motorcycle and Sumeet was on the pillion and had taken away his daughter and in spite of his efforts could not chase them. …” Finding the case of the prosecution to have been proved as against the four convicted accused their conviction and sentence as recorded by the Trial Court was maintained and the appeals were dismissed by the High Court. Out of the four convicted accused Yogesh Anuj and Pardeep have preferred the appeals before this Court while Sumit has not preferred any challenge against the rejection of his appeal. It is reported that Sumit was on bail during the pendency of the appeal and after dismissal of his appeal has gone 19) We have heard Mr. V.C. Gautam learned Advocate for the appellants Yogesh and Pardeep and Mr. M.C. Dhingra learned Advocate for the appellant Anuj. The submissions on behalf of the State have been advanced by MS. Alka Agarwal learned AAG for the State. The evidence on record discloses that out of three witnesses who were stated to be the eye witnesses two witnesses viz PW12 Rajiv and PW15 Neeraj turned hostile and did not support the case of the prosecution. Both these witnesses are close relations of the victim and there is nothing on record to indicate that they were either put under any pressure or that there was any element of suspicion. Both these witnesses were categorical that the persons who kidnapped the victim were not before the Court in the capacity as the accused. 21) We are thus left with the testimony of PW10 Manoj the informant and the father of the victim. The reporting made by this witness based on which the crime was registered neither shows that he was an eye witness to the occurrence nor does it disclose that the identity of the accused who had kidnapped the victim was in any way known at the stage when the occurrence took place. The statement given by the witness in his cross examination further discloses that he was sitting inside the house when the incident had occurred and that the shouts of the children and other passers by had attracted his attention whereafter the witness came out of the house. In the circumstances it is extremely difficult to accept PW10 to be an eye witness to the occurrence. The observations made by the High Court while placing reliance on his version in our view were totally incorrect. Thus all three witnesses who were claimed to be the eye witnesses to the occurrence and on whose testimonies reliance was placed by the prosecution are 22) We now turn to the other circumstances on record to see whether circumstances on record by themselves are sufficient to bring home the guilt of of no help. the accused. The law on the point of circumstantial evidence cases is very clear and as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra 1984) 4 SCC 116 the well settled principles are as under: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 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 Sahabrao Bobade v. State of Maharashtra2 SCC 793 : 1973 SCC1033 : 1973 Crl LJ 1783] where the observations were made:p. 1047] “Certainly it is a primary 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 and divides vague conjectures from sure conclusions.” 2) the facts so established should be consistent only with the hypothesis of the guilt of the 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) they should exclude every possible hypothesis except the one to be proved and 5) there must be a chain of evidence 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 act must have been done by the Certain salient features of the instant case are: a) Though the post mortem report discloses that the victim was sexually assaulted the FSL Report on record does not establish any connection of the accused with the sexual assault on the deceased victim. b) The dead body of the victim was found lying in an open field. c) The record is again not clear as to when the present appellants were arrested and how and in what manner their disclosure statements led to the recovery of the dead body. There are of course circumstances like recovery of clothing apparel as well as tiffin box etc. belonging to the victim. However such recoveries by themselves in the absence of any other material evidence on record pointing towards the guilt of the accused cannot be termed sufficient to hold that the case was proved beyond reasonable doubt. Not only those circumstances are not conclusive in nature but they also do not form a cogent and consistent chain so as to exclude every other hypothesis except the guilt of the appellants. 26) We therefore find ourselves in disagreement with the view taken by the Courts below. In our considered view the case of the prosecution has not been proved beyond reasonable doubt and the appellants are entitled to the benefit of 27) We therefore allow these appeals and set aside the orders of conviction and sentence recorded against the each appellants. The appellants be set at liberty forthwith unless their custody is required in connection with any other crime. [Indira Banerjee] doubt. New Delhi April 06 2021. 

Summary: Course circumstances like recovery of clothing apparel as well as tiffin box etc., in the absence of any other material evidence on record pointing towards the guilt of the accused, cannot be termed sufficient to hold that the case was proved beyond reasonable doubt. This honorable judgement was passed by Supreme Court of India in the case of Yogesh, Anuj, Pardeep vs. State of Haryana [CRIMINAL APPEAL NO.1306, 1307,1308 OF 2017] by The Hon’ble Mr. Justice Uday Umesh Lalit and The Hon’ble Ms. Justice Indira Banerjee. These appeals aroused out of the common judgment and final order passed by the High Court of Punjab and Haryana at Chandigarh. Eight persons were tried in Sessions Case with crime registered pursuant with Police Station City, Bahadurgarh, Haryana, in respect of the offences punishable under Sections 302/364-A/376/216 read with Section 120-B of the Indian Penal Code, 1860. A raid was conducted at the house of accused Diwan Singh, who allegedly disclosed that his son Anuj along with three others had kidnapped the victim and as pressure of the investigation by the police was mounting, the victim was murdered and her dead-body was thrown in the fields of village Paparwat. It was not clear as to when exactly the accused were arrested but it was the case of the prosecution that pursuant to the disclosure statements made by these appellants, the place where the dead body of the victim was lying could be located, and their disclosure statements led to the recovery of certain items like clothing, tiffin box etc. belonging to the victim. The dead body of the victim was subjected to post-mortem, which was conducted by Dr. P.K. Paliwal. No semen was detected in the vaginal swabs taken from the body of the victim. The learned council referred the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 where the law on the point of circumstantial evidence cases was made very clear. The court opinioned that, “There are of course circumstances like recovery of clothing apparel as well as tiffin box etc. belonging to the victim. However, such recoveries by themselves, in the absence of any other material evidence on record pointing towards the guilt of the accused, cannot be termed sufficient to hold that the case was proved beyond reasonable doubt. Not only those circumstances are not conclusive in nature but they also do not form a cogent and consistent chain so as to exclude every other hypothesis except the guilt of the appellants.” The court allowed the appeal stating that, “the case of the prosecution has not been proved beyond reasonable doubt, and the appellants are entitled to the benefit of doubt. We, therefore, allow these appeals and set-aside the orders of conviction and sentence recorded against each appellant. The appellants be set at liberty forthwith, unless their custody is required in connection with any other crime.”