Delhi High Court
State (Delhi Admn.) vs Sharad Dogra & Ors. on 2 July, 2010
Author: Ajit Bharihoke
Bench: A.K. Sikri, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: March 15, 2010
Judgment delivered on: July 02, 2010
+ CRIMINAL APPEAL NO. 216/1997
STATE (DELHI ADMN.) ....APPELLANT
Through: Mr. Pawan Sharma, Standing Counsel
Versus
SHARAD DOGRA & ORS. ....RESPONDENTS
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
AJIT BHARIHOKE, J.
1. The State has preferred this appeal against the impugned judgment dated 14th August, 1996 in Sessions Case No. 24/92, FIR No. 225/91, P.S. Hauz Khas acquitting the respondents Sharad Dogra, Gagan Mahant, Sandeep Kalsan and Pankaj Bhatia of charges under Sections 392 IPC and 302 IPC both read with Section 34 IPC. Crl.A.No.216/1997 Page 1 of 18
2. Briefly stated, case of the prosecution is that Sh. Prem Gopal Nair (hereinafter referred to as 'deceased') along with his sisters Prabha Nair (PW1) and Pushpa Nair (PW8) was living in DDA Flat No. L-7, Bhim Nagari, Safdarjung Development Area, New Delhi. On 10th June, 1991, Pushpa Nair (PW8) was out of station as she had gone for trekking with her friends. On that day, at about 03:30 p.m., PW1 Prabha Nair also went to her friend's house. She returned back at 09:50 p.m. When she was climbing the stairs for going to her flat, which was located at IIIrd Floor, she noticed the four accused persons (who were not known to her earlier) on the landing of IInd Floor, coming downstairs.
3. Prabha Nair (PW1) found the door of her flat locked. She thought that her brother Prem Gopal Nair (deceased) might have gone to purchase cigarettes and waited for him outside the flat. When the deceased did not turn up till 12:00 in the mid-night, Prabha Nair went downstairs and fetched a watchman from the neighbouring colony and the lock of her flat was broken with his help.
4. On entering, Prabha Nair found that the flat had been ransacked and the dead body of her brother was lying in the bedroom. She intimated Police Station Hauz Khas, which information was recorded as DD No.19A (PW6/A) dated Crl.A.No.216/1997 Page 2 of 18 10.06.1991. Copy of the DD report was entrusted to SI Suresh Kumar (PW21) who reached at the spot of occurrence and inspected the scene of crime. It is claimed that PW1 Prabha Nair was not in a position to give her statement as she was in a state of shock. Therefore, the Investigating Officer appended his endorsement on the copy of DD report and sent the rukka to the Police Station for the registration of formal FIR. Crime Team and dog squad were summoned and chance fingerprints were lifted from the spot of occurrence.
5. On 11.06.1991, Pushpa Nair (PW8) returned back from trekking. On checking the cupboards and the articles, she found that one camera make Hanimax, two ladies wrist watches, one gent's wrist watch and a silver chain were missing. Statements of Prabha Nair (PW1) and Pushpa Nair (PW8) were recorded. Inquest proceedings were also conducted on 11.06.91 and the dead body was sent for post mortem examination along with the inquest papers.
6. Accused Gagan Mahant was arrested from in front of his house in Bhim Nagri on 26.06.91. On interrogation, he made a disclosure statement Ex.PW21/B and pursuant to the said disclosure statement, he got recovered two wrist watches and a Crl.A.No.216/1997 Page 3 of 18 knife Ex.P25. Ex.P12 is one of those two watches which is claimed to be the stolen property of this case.
7. It is claimed by the prosecution that accused Gagan Mahant then led the police party to the house of accused Sharad Dogra at Malviya Nagar, who was arrested on the pointing out of Gagan Mahant. Sharad Dogra was also interrogated and he made a disclosure statement Ex.PW21/F. He got recovered one gents wrist watch Ex.P10 and a watch mettle chain Ex.P13, which were seized vide memo Ex.PW21/H. Sharad Dogra also got recovered a knife Ex.P-1 and a gold chain pertaining to some other case.
8. Thereafter, the police party went to the house of accused Pankaj Bhatia at Sheikh Sarai from where Pankaj Bhatia and Sandeep Kalsan were arrested on the pointing of Gagan Mahant. On interrogation, accused Sandeep Kalsan and Pankaj Bhatia made disclosure statements Exhibits PW21/L and PW21/M. Accused Pankaj Bhatia, pursuant to his disclosure statement, got recovered from his bedroom stolen Hanimax camera Ex.P9, besides a gold ring and a knife Ex.P27. Accused Sandeep Kalsan got recovered a wrist watch Ex.P11 besides one other wrist watch pertaining to some other case.
9. Sample hairs of the accused persons and their sample fingerprints were taken with the permission of the court, which Crl.A.No.216/1997 Page 4 of 18 were sent to CFSL for comparison with the chance fingerprints lifted from the place of occurrence and the strands of hairs found in the hand of the deceased. Test Identification Parade for identification of the recovered stolen property was also conducted in which Prabha Nair (PW1) identified the stolen articles. Test Identification Parade was held for fixing the identity of the accused persons and Prabha Nair identified all the four accused persons as the persons whom she had seen on the staircase of her building on the relevant night. On completion of formalities of investigation, respondent accused persons were challaned and sent for trial.
10. The respondents were charged for the offences punishable under Section 302 IPC read with Section 34 IPC and Section 394 IPC read with Section 34 IPC. Besides that, respondents Sharad Dogra, Gagan Mahant and Pankaj Bhatia were also charged for the offence punishable under Section 397 IPC. Respondents pleaded not guilty to the respective charges and claimed to be tried.
11. In order to bring home the guilt of the respondents, prosecution has examined 22 witnesses in all. None of them, however, is an eye witness to the occurrence. The respondents in their statements under Section 313 Cr.P.C. have denied the Crl.A.No.216/1997 Page 5 of 18 prosecution version and have claimed that they are innocent and they have been falsely implicated by the police in not only in this case but also in one other case pertaining to P.S. Malviya Nagar in which they have already been acquitted. In defence, they have tendered in evidence certified copy of the judgment of acquittal passed in their favour by the court in Malviya Nagar case.
12. The learned Additional Sessions Judge, on consideration of the evidence found that the evidence produced by the prosecution was deficient to sustain the charges framed against the respondent accused persons. He, therefore, acquitted the respondents of all charges, giving them benefit of doubt.
13. On perusal of the record, it transpires that the case of the prosecution is essentially based upon the last seen evidence, the recovery of the stolen property at the instance of the respective respondents and the presence of chance fingerprints of respondent Gagan Mahant at the place of occurrence. On perusal of the impugned judgment, it transpires that the learned Additional Sessions Judge, on consideration of evidence, found that the prosecution has failed to establish either of the aforesaid incriminating circumstances and as a consequence, he concluded that the evidence produced by the prosecution was not sufficient Crl.A.No.216/1997 Page 6 of 18 to bring home the guilt of the respondent accused persons beyond reasonable doubt and acquitted them, giving them benefit of doubt.
14. Learned counsel for the State in his challenge to the impugned judgment has firstly submitted that the learned Trial Judge has fallen in error in finding the last seen evidence provided by PW1 Prabha Nair unreliable, ignoring the fact that Prabha Nair had no reason whatsoever to falsely implicate the respondent-accused persons or anyone of them.
15. We do not find merit in this contention. It is true that there is nothing on the record to suggest that PW1 Prabha Nair had any reason or motive to depose falsely against the respondent accused persons or anyone of them. This, however, cannot form reason for accepting the last seen evidence provided by PW1 Prabha Nair without requisite scrutiny. Admittedly, PW1 had lost her brother in the occurrence. A possibility cannot be ruled out that if she was convinced by the Investigating Officer that the respondents were responsible for the death of her brother, she might have agreed to depose falsely that she saw the respondents coming downstairs in the building on the fateful night with a view to ensure punishment to the culprits. Thus, in our view, the learned Additional Sessions Judge has rightly Crl.A.No.216/1997 Page 7 of 18 undertaken the exercise to analyse the testimony of PW1 to come to the conclusion whether or not it is reliable.
16. PW1 Prabha Nair, in her examination-in-chief, has stated that she had left her house on 10.06.91 at 03:30 pm and she returned back at 09:30 pm. When she was going to her flat, which was at the fourth floor of the building, she had seen all the four respondent-accused persons on the landing of the second floor of the stairs when they were coming down. She also claimed that on reaching at the fourth floor, she found her flat to be locked. She waited outside the flat, hoping that her brother would return shortly and when her brother did not turn up till 12:00 in the night, she got panicky and called a watchman who broke open the lock at her request. When she entered the house, she found it ransacked and she also found the dead body of her brother (deceased) lying in the bedroom.
17. If aforesaid version of PW1 Prabha Nair is to be believed, she kept on waiting outside her flat during night hours for almost more than two hours without making an effort to contact any neighbour. This conduct of Prabha Nair (PW1) appears to be highly unnatural. It is highly improbable that a young lady, during night hours, would keep on waiting outside a locked flat without even making any effort to call the neighbours for help for opening Crl.A.No.216/1997 Page 8 of 18 the lock. Further, PW1 Prabha Nair claims that she had gone to Hauz Khas P-Block to call a watchman for breaking open the lock. This conduct of PW1 Prabha Nair is also strange because she has admitted that there was a 'chowkidar' in Bhim Nagari complex also. It defies reason as to why Prabha Nair (PW1), instead of seeking help from the neighbours or the watchman of Bhim Nagari complex, went to a neighbouring colony to call the watchman for breaking open the lock. This circumstance raises a doubt that Prabha Nair is not telling the truth, which doubt is further compounded by the fact that the said watchman, who purportedly broke open the lock has not been cited or examined as a witness to corroborate the version of Prabha Nair (PW1). Further, it is admitted case of the prosecution that the Investigating Officer SI Suresh Kumar (PW21) reached at the spot of occurrence in the night intervening 10th/11th June, 1991 but statement of Prabha Nair was not recorded by him. Investigating Officer has tried to explain the delay in recording the statement of Prabha Nair by stating that she (PW1) was not in a position to make a statement as she was under a state of shock. This version of Investigating Officer is belied by the testimony of PW1 Prabha Nair, who has stated that on the said night, DCP Sh. Neeraj Kumar had visited the spot and she had a talk regarding the incident with him. Even PW12 Dr. M. Vijayraghavan, a cousin of Prabha Nair (PW1), who Crl.A.No.216/1997 Page 9 of 18 had reached at the spot in the night, stated that PW1 Prabha Nair had told her the details about the incident. She also stated that she stayed with Prabha Nair at the flat in question till about 08:00 am and during the said period, she had been interacting and talking with Prabha Nair. If this version is to be believed, then the explanation given by the Investigating Officer for not recording the statement of PW1 Prabha Nair immediately cannot be true. Thus, a possibility cannot be ruled out that the statement of Prabha Nair was fabricated to create last seen evidence against the respondents. Not only this, perusal of purported statement of Prabha Nair Ex.PW1/DD reveals that this statement is undated. Therefore, it cannot be said for sure that this statement was recorded by the Investigating Officer in the evening of 11.06.1991 as claimed by him and a possibility cannot be ruled out that it has been introduced subsequently. Another strange feature of this statement is that as per the FIR No. 225/91 (Ex.PW6/B), it was registered at P.S. Hauz Khas under Section 460/380 IPC whereas at the top of the purported statement of PW1 Prabha Nair Ex.PW1/DD, particulars of the case are mentioned as FIR No. 225/91 under Section 302/394 IPC, P.S. Hauz Khas. It is unexplained as to how this lapse has occurred and this circumstance also raises a doubt against the fairness of investigation and a possibility cannot be ruled out that the story of Crl.A.No.216/1997 Page 10 of 18 last seen has been fabricated by the prosecution after due deliberation to strengthen the case of the prosecution. Thus, under the circumstances, we find no infirmity in the conclusion of the learned Additional Sessions Judge that the prosecution has failed to establish the last seen circumstance against the accused persons.
18. Learned counsel for the State has submitted that the learned Additional Sessions Judge has fallen in error in disbelieving the prosecution evidence regarding the recovery of stolen property from the possession of respective respondent accused persons for the reason that prosecution has failed to examine the independent witness Parvez Dar, who actually was won over by the respondents. Learned counsel for the State submitted that the recovery of stolen goods from the respondents is amply proved from the testimony of PW22 Inspector Dharampal which finds full corroboration in the testimony of PW21 SI Suresh Kumar, who was also a witness to the recoveries.
19. We are not convinced with this argument. As per the case of prosecution, the mystery of this case started unfolding with the arrest and interrogation of the respondent accused Gagan Mahant on 26.06.1991. Question arises as to what was the Crl.A.No.216/1997 Page 11 of 18 reason which prompted the Investigating Officer to suspect and arrest the respondent accused Gagan Mahant on 26.06.91. Inspector Dharampal has tried to explain the reason by deposing that on 20.06.91 father of Gagan Mahant told him that on the night of occurrence i.e. the night intervening 10.06.91 and 11.06.91, his son Gagan Mahant returned home at 1:30 am and he was perplexed at that time. The Investigating Officer also stated that this fact was reconfirmed by father of respondent Gagan Mahant on 25.06.91 also. It remains unexplained as to why the Investigating Officer had questioned the father of Gagan Mahant on 25.06.91. If this version of Inspector Dharam Pal is to be believed, then as early as on 10.06.1991, Inspector Dharam Pal had a reason to suspect the involvement of Gagan Mahant in the murder of the deceased Prem Gopal Nair. Despite that, he neither arrested Gagan Mahant nor interrogated him till 26.06.1991. This circumstance puts a question mark on the fairness of investigation and casts a doubt on the story regarding arrest of Gagan Mahant. There is no explanation on the record as to why the Investigating Officer remained inert and did not take any steps to arrest respondent accused Gagan Mahant from 20.06.1991 till 26.06.1991. Further, on perusal of the respective disclosure statements of the respondents Gagan Mahant, Sharad Dogra, Sandeep Kalsan and Pankaj Bhatia Exhibits PW21/B, Crl.A.No.216/1997 Page 12 of 18 PW21/F, PW21/M and PW21/N as well as the relevant recovery memos relating to the purported recovery of the stolen property and the recovery of knife Exhibits PW21/C, PW21/D, PW21/H, PW21/K, PW21/P, PW21/Q, PW21/R and PW21/S, it transpires that all these memos are purported to have been witnessed by SI Suresh Kumar and an independent witness Parvez Dar. The prosecution has failed to examine the independent witness Parvez Dar to support the evidence of the recovery of stolen property as well as the knives from the possession of or at the instance of the respective accused persons. According to the Investigating Officer Inspector Dharam Pal, aforesaid Parvez Dar was also a suspect in this case and even his chance prints were sent to CFSL for comparison. Despite of that, the Investigating Officer, in preference to the independent witnesses from the neighbourhood of places of respective recoveries, preferred to join Parvez Dar as a witness to recovery of stolen articles. This circumstance casts a strong doubt against the bona fide of the Investigating Officer. Otherwise also, said Parvez Dar has not been examined as a witness in this case. The explanation given for his non-examination is that he has been won over by the respondents. This explanation does not appear to be correct because of the reason that PW20 Rohit Bhatia, who admittedly is the friend of the deceased, has stated in his cross-examination Crl.A.No.216/1997 Page 13 of 18 that after 11.06.1991, he had never visited sisters of the deceased at their house but he had been meeting them off and on in the house of Parvez Dar and other common friends, which version gives an impression that Parvez Dar still has good relations with the sister of the deceased and, therefore, the possibility of his being won over by the respondents, as claimed by the Investigating Officer is oblique. Further, as per the case of prosecution, the motive for the crime was robbery. According to PW1 Prabha Nair and PW8 Pushpa Nair, only three wrist watches Exhibits P10 to P12, one Hanimax Camera Ex.P9 and a silver chain Ex.P13 were found missing from the house. PW1 Prabha Nair admitted in her cross-examination that the wrist watches Ex.P11 and P12 were not in working order and the glass of the wrist watch Ex.P10 was cracked and it was fixed with a transparent tape. She also stated that when she identified these wrist watches before the Magistrate, the wrist watches were in same condition. She further stated that even the lens of camera Ex.P9 was broken and it was in same condition when she identified it before the Magistrate on 24.06.1991. Regarding the silver chain Ex.P13, the witness could not deny that she might have purchased that silver chain for about Rs. 100/-. From the aforesaid evidence, it is apparent that value of the purported robbed articles was negligible. It has come in testimony of PW1 Crl.A.No.216/1997 Page 14 of 18 Prabha Nair that there were more valuable articles such as Television, VCR, a food processor worth Rs.2,800/-, video cassettes costing about Rs.200/- each and music system in their house. It is unfathomable that if the four respondents had visited the house of the deceased to commit robbery, they would commit theft of minor articles in preference to costly items referred to above. Therefore, even the story of robbery appears to be improbable and a possibility cannot be ruled out that the aforesaid three wrist watches, a silver chain and camera have been planted by the police to create evidence against the respondents. In view of the circumstances, we find that the learned Trial Judge has rightly concluded that the recovery of stolen property at the instance of the respondent accused persons has not been firmly established.
20. Learned counsel for the State has further submitted that from the testimony of PW17 Head Constable Khem Bahadur and PW18 Head Constable Ram Niwas, chance fingerprints were lifted by them from the spot of occurrence. PW13 SI Amarpal Verma compared those chance fingerprints with the specimen fingerprints of the respondents and as per his report Ex.PW13/A, two of the chance fingerprints matched with the specimen fingerprints of the respondent Gagan Mahant. From this, learned counsel for the State has submitted that the presence of Crl.A.No.216/1997 Page 15 of 18 respondent Gagan Mahant at the time of occurrence is firmly established and this circumstance by itself, in absence of any explanation by the respondent Gagan Mahant, is sufficient to establish his complicity in the crime.
21. This argument was also advanced before the learned Trial Judge and did not find favour with him. He has dealt with the argument in Para 19 of impugned judgment in following manner:
".....PW22 Inspt. Dharampal in his statement has stated that he moved application on 5.8.91 for taking finger prints of the accused persons and the court allowed the said application and permitted to take the specimen finger prints of the accused persons. There is nothing on the record to suggest as to who took the finger prints of accused Gagan Mahant and when and where the same were taken. In the absence thereof it cannot be said that the finger prints of accused Gagan Mahant were ever taken or sent for comparisons to the finger print bureau. Moreover, PW13 SI Amarpal Singh Verma has admitted that in the report Ex.PW13/A it has nowhere been stated that the same has been prepared by him or with his assistance. He further admitted that the said report is not even signed by him and that the same has been signed by the Director of the bureau. The said director, who has signed the report has not been produced as a witness in this case. In view of the statement of PW13 himself, I am of the view that it cannot be said that PW13 has compared the chance prints and the finger prints or has prepared the report Ex. PW13/A. Moreover, according to PW13 the chance print Ex. PW13/C-1 was only 10% of the whole finger print. For that reason also I am of the view that the said chance print could not have been properly or effectively compared with the specimen finger prints of the accused and the finger prints expert report could not be perfect, definite or conclusive. The alleged finger print was otherwise sent to the finger print bureau on 4.9.91 whereas according to the investigating officer the finger prints were allowed to be taken on 5.8.91 and the said delay in sending the finger prints for comparison has not been explained in any manner. Moreover, according to PW13 the said finger prints were received by him in unsealed condition. The said fact also makes the evidence of the comparison of chance prints and the alleged finger prints to be doubtful. From the evidence it is also not clear as to who has lifted the chance prints from the spot as PW17 HC Khem Crl.A.No.216/1997 Page 16 of 18 Bahadur has stated that he has lifted the chance prints from the spot and PW18 HC Ram Niwas has stated that the he has lifted the chance prints from the spot. Moreover, PW18 HC Ram Niwas, who is alleged to have lifted the chance prints from the spot has stated that he cannot say as to from which place the chance/finger prints Ex. PW 13/C-1 was lifted. The said fact also makes the story of the prosecution as put forward by it of lifting the said chance print from the spot to be doubtful. According to PW17 there was rubbing on the right side of the chance print Ex PW13/C-1 . In view of this statement of PW17, I am of the view that the alleged chance print Ex. PW 13/C-1 could not be properly compared with the specimen finger prints. For the reasons recorded above, I am of the view that the prosecution has also failed to prove this circumstance that chance prints lifted from the spot were found to be identical with the finger print impression of accused Gagan Mahant".
22. We find no infirmity or illegality in the above approach adopted by the learned Additional Sessions Judge while appreciating the evidence relating to the comparison of fingerprints. Learned counsel for the State has also not come out with any cogent argument to counter the reasoning given by the learned Trial Judge. Therefore, we find no reason to interfere with the conclusion that the prosecution has failed to prove that the chance fingerprints lifted from the spot of occurrence belong to the respondent Gagan Mahant.
23. In view of the above, we find that the learned trial Judge has rightly concluded that the evidence adduced by the prosecution falls short of forming a complete chain of incriminating circumstances to lead to an irrefutable inference of guilt of the Crl.A.No.216/1997 Page 17 of 18 respondents or anyone of them. Thus, there is no reason to interfere with the impugned judgment of acquittal.
24. There is no merit in the appeal. It is accordingly dismissed.
AJIT BHARIHOKE, J.
A.K. SIKRI, J.
JULY 02, 2010 pst/akb Crl.A.No.216/1997 Page 18 of 18