Delhi High Court
State vs Rampal Singh And Anr. on 24 January, 2014
Author: G.P. Mittal
Bench: Sanjiv Khanna, G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 9th January, 2014
Pronounced on: 24th January, 2014
+ CRL. A. 372/1998
STATE ..... Appellant
Through Ms. Rajdipa Behura, APP for the State
with SI Sandeep Sharma, PS Vasant
Kunj.
versus
RAMPAL SINGH AND ANR. .... Respondents
Through Mr. Aman Lekhi, Senior Advocate
with Mr. Jitendra Tripathi, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G.P. MITTAL, J.
1. Respondents Ram Pal Singh and Parvinder Singh have faced trial in Sessions Case No.58 of 1996 for the offence punishable under Sections 302/392/382 read with Section 120-B of the Indian Penal Code (IPC). By a judgment dated 29.09.1997, they were acquitted of all the charges framed against them.
2. Feeling aggrieved, the State sought Leave to Appeal against the impugned judgment and the same was granted by an order dated 26.08.1998. Before dealing with the grounds of Appeal, it will be apposite to pen down the prosecution version.
3. On 22.01.1994 at about 9:30 a.m., the Complainant (Captain Crl.A. 372/1998 Page 1 of 24 Harcharan Singh Kohli/PW-4), father of the deceased Saran Pal Sigh Kohli tried to contact his son on telephone but there was no response from his house. Again at about 2:00 p.m., he called up on the residential telephone installed at the house of Late Saran Pal Singh Kohli but again there was no response. At about 3:00 p.m., the Complainant received a telephone call from one Neeru who enquired from him (the Complainant) that Rajesh Kaur (deceased wife of deceased Saran Pal Singh Kohli) was to visit the house of Neeru's brother, i.e. C-80, Malviya Nagar, New Delhi on 20.01.1994 to attend a Kirtan but she had not gone there. The Complainant got anxious and again rang up his son's residence but received no response.
4. The Complainant was worried and therefore at about 4:45 p.m., he rang up his son's neighbour Mr. Wadhwa and had a talk with his wife and requested her to go to his son's house and see as to why there was no response to the telephone calls made by him. Wadhwa's wife went to the deceased's house and found the door of the flat open and observed blood spots near the door. She was terrified and passed on the information to the Complainant on telephone. The Complainant immediately informed the police at 5:00 p.m. and simultaneously proceeded to his son's residence along with his another son Ravinder Singh Kohli. When the police and the Complainant reached Flat No.D-III/3122, Ground Floor, Vasant Kunj, New Delhi, i.e. house of the deceased Saran Pal Singh Kohli, they found that Saran Pal Singh Kohli, his wife Rajesh Kaur and his two sons Teg Partap Singh and Rana Partap Singh were lying in a pool of blood with multiple injuries on various parts of their bodies. Thereafter, Amarjit Singh (PW-3), brother of Late Rajesh Kaur along with his wife Jasbir Kaur (PW-2) Crl.A. 372/1998 Page 2 of 24 also reached there.
5. The Complainant made a statement Ex.PW-4/A to the SHO detailing the facts mentioned earlier. The SHO made an endorsement Ex.PW- 46/A and sent it to the Police Station for registration of a case. In the endorsement, it was mentioned that although the house had been ransacked but a large number of valuables, i.e. wrist watches, video camera, VCR, TV, etc. etc. were found to be intact. In the endorsement, the SHO also mentioned that Harcharan Singh Kolhi (the Complainant) and his relations were not able to tell much about the availability of the cash and jewellery in the house at the moment.
6. The crime team visited the spot. Twenty one chance prints, one purse (Ex.P-39) containing a photograph of one Amalraj and a pair of gloves lying near the bathroom were seized. The crime team prepared a report Ex.PW-34/A wherein it was mentioned that the property stolen was not known. During the course of investigation, specimen finger/palm prints of a large number of persons (perhaps 52 specimens) who were known to the deceased or who could be connected with the crime were obtained. Respondent Ram Pal Singh was one such person and therefore, his finger prints were also obtained on 14.02.1994. It is the case set up by the prosecution that on 19.02.1994, on receipt of unofficial information that one of the chance prints matched with the specimen finger print of Respondent Ram Pal Singh, he was arrested. During interrogation, he made his first disclosure statement on 20.02.1994. On the basis of the said disclosure statement, recovery of some small items of jewellery was effected from the house of Ram Pal Singh's father in village Chaubara, Crl.A. 372/1998 Page 3 of 24 Rajasthan. After arrest of the first Respondent, second Respondent Parvinder Singh was arrested on 21.02.1994. He made his first disclosure statement on 21.02.1994 and the second disclosure statement on 24.02.1994. In pursuance of the disclosure statements of the two accused persons, two Gandasas were recovered from an open place near Power House, Nelson Mandela Marg. Dr. Arvind Thergaonkar (PW-20) who conducted post-mortem examination on the dead bodies of the four deceased opined that the injuries on their bodies could have been caused with the Gandasas Ex.P-21 and P-22. Some share certificates were also allegedly recovered at the instance of Respondent Parvinder Singh which were in the name of deceased Saran Pal Singh or his family members or in the name of third persons.
7. The jewellery recovered from the house of Ram Pal Singh's father in village Chaubara when put for test identification was identified by the brother and sister-in-law of deceased Rajesh Kaur. After completion of the investigation, a report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was presented against the Respondents.
8. On Respondents pleading not guilty to the charge for the offence punishable under Section 302/392/397/449 read with Section 120-B and 34 of the IPC, the prosecution in order to bring home the Respondents guilty examined 43 witnesses. The learned Additional Sessions Judge (ASJ) culled out 09 circumstances relied upon by the prosecution to connect the Respondents with the commission of the offence. On appreciation of evidence, the learned ASJ found that the Crl.A. 372/1998 Page 4 of 24 prosecution had failed to prove the circumstances relied upon by it and thus acquitted the Respondents of the charge framed against them.
9. It is well settled that in an Appeal against acquittal, unless the judgment of the Trial Court is perverse, the Appellate Court would not be justified in substituting it's own view and reversing the judgment of acquittal. In Arulvelu & Anr. v. State & Anr., (2009) 10 SCC 206 relying on Gaya Dikn v. Hanuman Prasad, (2001) 1 SCC 501, the Supreme Court observed that expression „perverse‟ means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. If a decision is arrived at no evidence or on evidence which is thoroughly unreliable and no reasonable persons would act upon it, the order would be perverse.
10. In Syed Peda Aowlia v. The Public Prosecutor, High Court of A.P., Hyderabad, (2008) 11 SCC 394, after referring to various judgments as to the approach to be adopted while hearing Appeals against the acquittal, the Supreme Court held as under:-
"5. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from Crl.A. 372/1998 Page 5 of 24 acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re- appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. See Bhagwan Singh and Ors. v. State of Madhya Pradesh, (2002) 4 SCC 85. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference."
11. Ms. Rajdipa Behura, learned APP for the State has taken us through the 09 circumstances culled out by the learned ASJ and the evidence produced by the prosecution to emphasise that the case against the Respondents was in fact proved beyond the shadow of all reasonable doubt. She argues that the learned ASJ faulted in returning a finding of not guilty. She urges that the conclusion reached by the learned ASJ is therefore liable to be reversed.
12. On the other hand, Mr. Aman Lekhi, learned senior counsel for the Respondents contends that the Trial Court has given valid and justifiable reasons to reach the conclusion that there was no incriminating circumstance to connect the Respondents with the offence with which they were charged and thus, it cannot be said that the finding reached is perverse. He very strenuously convasses that there were too many gaps and missing links in the circumstances put forth by the prosecution and thus, the impugned judgment is well founded and logical.
Crl.A. 372/1998 Page 6 of 2413. It is well settled that where the prosecution case rests purely on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must, in the first instance be fully established; the circumstances should be of conclusive nature; the circumstances taken together must unerringly point to the guilt of the accused; the circumstances proved on record must be incompatible with the innocence of the accused and form the complete chain of circumstances and it must be proved that in all probabilities the offence was committed by the accused. (Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh, AIR 1952 SC 343 and Sharad Birdhichand Sarda v. State of Maharashtra, (1984)4 SCC116).
14. The nine circumstances relied upon by the prosecution and culled out in Para 10 of the impugned judgment are extracted hereunder:-
"1. That the deceased Saranpal Singh Kohli and the accused Ram Pal Singh were last seen together on 21.1.94 in the office of Ravish Kumar Matta.
2. That the wallet Ex.P-39 containing the photograph Ex.P-40 were found to be lying at the spot and the same were later on found to have been stolen by the accused persons from the house of the Malkhana Moharrar of P.S. Kotwali, Ghaziabad.
3. That the pair of gloves which were blood stained were also seized from the spot and the same were found to have been purchased by the accused persons before this crime was committed.
4. That the specimen finger prints of accused Ram Pal Singh were obtained and the same were found to be identical by the finger prints expert by comparing the same with the chance prints developed from the spot.Crl.A. 372/1998 Page 7 of 24
5. That at the time of the arrest of accused Ram Pal Singh and thereafter in pursuance to his disclosure statement currency notes of `7067/- stated to be the sale proceeds of dollars was also recovered from his possession of the said accused, the robbed jewellery was recovered from the house of his father from village Chaubara and thereafter the said accused also got recovered his bloodstained clothes and shoes from his house in Ghaziabad and the jacket Ex.P-64 of the said accused was also seized.
6. That the jewellery recovered from the house of the father of accused Ram Pal Singh from Village Chaubara was later on identified by the witnesses during the TIP, being the same which belonged to deceased Saranpal Singh Kohli and Smt. Rajesh Kaur.
7. That after the arrest of accused Parvinder Singh he got recovered the motor cycle Ex.P-23 which was used by the accused persons in the commission of this crime and the said motor cycle was found to have been stolen by them from the malkhana of P.S. Kotwali, Ghaziabad and the said motor cycle was also found to have been earlier stolen from the area of P.S. Lajpat Nagar.
8. That the accused Parvinder Singh also got recovered the share certificates and the foreign currency which was found to be that of the deceased Saranpal Singh Kohli and of his mother family members and his bloodstained clothes i.e. shirt Ex.P-61, pant Ex.P-62 and sweater Ex.P-63 were also seized.
9. That both the accused persons in pursuance of their disclosure statements also got recovered gandasas Ex.P-21 and Ex.P-22 with which the murders were committed and the doctors who conducted the post-mortem on the dead bodies of all the deceased also opined that the injuries found on the dead bodies of the deceased could have been caused with the said gandasas."
CIRCUMSTANCES 1,2,3 & 7
15. These circumstances, in our view cannot at all be said to be Crl.A. 372/1998 Page 8 of 24 incriminating or materially relevant circumstances in any way to connect the Respondents with the commission of the crime. Turning to circumstance No.1, it is not even the case of the prosecution that the deceased Saran Pal Singh Kohli was last seen alive in the company of either of the Respondents. The prosecution has tried to set up a case that the deceased was seen alive in the company of Respondent Ram Pal Singh in the office of one Mr. Matta at about 3:00 p.m. the day before the incident. Admittedly, there were so many persons in the office of Mr. Matta. No evidence has been led that Respondent Ram Pal Singh accompanied the deceased to his (deceased's) house from the office of Mr. Matta in Nehru Place. It is the case of the prosecution that the deceased's father (PW-4) also spoke to the deceased on telephone at his residence at about 10:30 p.m. The last seen theory comes into play when the time gap between the death of the deceased and when the deceased was seen alive in the company of the accused is so small as to put onus on the accused to explain as to where the deceased parted company with him. The proximity of the place where the deceased was last seen alive and the place where he is found dead is another important aspect which is to be seen. There is a large time gap as also a great distance between the place where the deceased and the first Respondent were seen together and the time of the deceased's death and the place of his death.
16. Similarly, the prosecution tried to build up a case that the wallet Ex.P-
39 was intentionally left by the Respondents to mislead the police as to the actual perpetrators of the crime. It was sought to be proved that the Respondents came in possession of the wallet Ex.P-39 belonging Crl.A. 372/1998 Page 9 of 24 to Amalraj through one Manoj, who was the son of the police official in U.P. police wherein the said Amalraj had deposited his wallet at the Malkhana when he was an accused in a case bearing FIR No.16/1991. Although statement of said Amalraj was recorded under Section 164 Cr.P.C. during investigation, yet the same is of no consequence as it could be used only for the purpose of corroboration of the statement made in the Court. It is well settled that a statement under Section 164 Cr.P.C.is not a substantive piece of evidence by itself as the accused does not have right and opportunity of cross-examination. It was sought to be suggested that PW Amalraj could not be produced as he had died. However, death of Amalraj was also not proved. His death certificate was not even produced on record.
17. The Trial Court also noticed that FIR No.16/1991 registered at P.S. Sector 49, Noida, in which the purse Ex.P-39 was sought to be seized was not produced. PW-41 HC Maha Dev Singh also could not say whether the purse Ex.P-39 was the same which was found in PS Noida. Thus, the Trial Court rightly concluded that circumstance No.2 was not established by the prosecution.
18. As far as circumstance No.3 is concerned, the prosecution tried to build up a case that these gloves were purchased by Respondents Ram Pal Singh and Parvinder Singh from one M/s. Bhartiya Medical Store owned by one Sudhir Kumar (PW-13). In his examination in the Court, PW-13 could neither identify the gloves as having been sold by him nor could he identify the Respondents as the persons who purchased any gloves from him. The recovered gloves are ordinary rubber gloves easily available in the market. Recovery of the gloves Crl.A. 372/1998 Page 10 of 24 from the spot of the crime by itself did not in any way connect the Respondents with the commission of the crime. Hence, the Trial Court rightly discarded circumstance No.3.
19. According to the prosecution, it was discovered and established that the crime was committed by use of the motorcycle Ex.P-23. We are unable to appreciate as to how this could be a circumstance against the Respondents. There was not even an iota of evidence (except the disclosure/confessional statement made by the Respondents) that motorcycle bearing No.UP-14-A7813 was used in this crime.
20. Section 25 of the Indian Evidence Act, 1872 (the Act) excludes the confession made to a police officer from any consideration. Similarly, Section 26 of the Act excludes the confession made by any person while he is in custody of a police officer unless it is made in the immediate presence of a Magistrate. Section 27 of the Act which is in the form of an exception to Sections 25 and 26 of the Act admits only so much of the information given by an accused which distinctly relates to the facts discovered in pursuance of the information. The recovery of the object has to be distinguished from the fact thereby discovered. If in pursuance of the information provided, any fact is discovered which connects the accused with the commission of the crime, then only the fact discovered becomes relevant.
21. In Pulukuri Kottaya & Ors. v. Emperor, AIR 1947 PC 67, the Privy Council very vividly brought out the distinction between the object discovered and discovery of a fact in pursuance of an information provided by a person accused of an offence while he is in police custody. Their Lordships observed as under:-
Crl.A. 372/1998 Page 11 of 24"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in cones quence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to section Crl.A. 372/1998 Page 12 of 24 26, added by section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house"
does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informent."
22. In the instant case, there was no discovery of any material fact in pursuance of the alleged disclosure statement that motor cycle No.UP- 14-A7813 was used in the commission of the offence. Thus, disclosure statement to that extent is inadmissible in evidence. The circumstance No.7 relied upon by the prosecution is consequently irrelevant.
CIRCUMSTANCE NO.4
23. Much emphasis is laid by the learned APP for the State on this circumstance in her effort to overturn this order of acquittal. The learned APP urges that science of finger prints is almost a perfect science. PW-34 ASI Chet Ram lifted 21 chance prints from the spot immediately after the occurrence. One of the change prints tallied Crl.A. 372/1998 Page 13 of 24 with the specimen finger print impression of Respondent Ram Pal Singh which were obtained on 14.02.1994. The learned ASJ declined to believe that the specimen finger prints tallied with the chance prints on the grounds that (a) the Britannia cake tin dabba from which identical chance print was taken was not seized; (b) Head Constable Inder Singh who took the photographs of the chance prints, developed by ASI Chet Ram (PW-34) was not produced; and (c) negatives in respect of chance prints were not produced by Jagjit Kumar Kaushik (PW-36), Director CFSL.
24. We may note that it was very mysterious as to how the negatives of the chance prints were placed on record by Insp. Ramesh Kaushik (PW-46) as although he stated that he got collected the negatives from SI Lalit Mohan (PW-45) but PW-45 nowhere stated that he had collected the negatives of the photographs from Finger Print Bureau. The Trial Court noticed that it was also very mysterious on the part of Insp. Ramesh Kaushik (PW-46) to have stated that the unofficial information was received on 19.02.1994 that one of the chance prints developed from the spot had been found to be identical with the specimen finger print of Respondent Ram Pal Singh. The Trial Court noticed that Inspector Ramesh Kaushik was asked about the source of the unofficial information, who then brought into picture DCP U.N. Rao as the person who passed on this information. The Trial Court observed that DCP U.N. Rao had not been examined as a witness in the case and it was very difficult to believe whether any unofficial information can as such be passed on by the Director, CFSL.
25. We do agree with the conclusion reached by the Trial Court on this Crl.A. 372/1998 Page 14 of 24 circumstance. In fact PW-36 in his cross-examination recorded on 13.05.1997 had deposed that the negatives (of chance prints) were available on the file brought by him. He stated that he could not tell without verifying the negatives in the sunlight if the negatives which were on the file were of Ex.P-36/D and P-36/E. The witness was permitted to go in the sunlight along with counsel for the accused. The Trial Court noticed that the witness without permission of the Court had collected various other negatives from the photographer of the Bureau who was standing outside the Court and that the witness after seeing the negatives, which he had taken to verify in the sunlight stated that the negatives of PW-36/D and PW-36/E were not on file.
26. We have taken out one strip of negative (containing four negatives of some finger prints) from one envelope available on Trial Court record. Admittedly, 21 chance prints were lifted from the spot. The prosecution is under an obligation to prove it's case against accused beyond shadow of any reasonable doubt. The evidence produced has to be aboveboard and it cannot give any chance for speculation/suspicion that the evidence is botched up. Apart from the fact that the four negatives which were not seen by the expert (PW-36) surfaced on the file and reached the IO, all the 21 negatives including the 20 negatives in respect of chance prints which had not tallied ought to have been produced by the prosecution in seriatim with the negatives containing the chance print which tallied with the specimen finger prints of Respondent Ram Pal Singh. It was the bounden duty of the prosecution to have established that out of the 21 negatives in respect of chance prints, one negative at a particular serial number tallied with the specimen finger print of the Respondent. Thus, non Crl.A. 372/1998 Page 15 of 24 examination of Head Constable Inder Singh, who took the photographs of the chance prints after the same were developed by ASI Chet Ram, non production of the negatives by PW-36, Director FSL; non production of all 21 negatives of the chance prints Q-1 to Q- 20 and Q-13/A in seriatim pointing out the specific negative which contained the chance prints which tallied with the specimen finger print of Respondent Ram Pal Singh; introduction of the story that Respondent Ram Pal Singh was arrested on the basis of unofficial information received from the Finger Print Bureau by DCP U.N. Rao that one of the chance print had tallied with the specimen finger print of Respondent Ram Pal Singh on 19.02.1994; non-examination of DCP U.N. Rao as to how the unofficial information was passed on and by whom, do create very serious doubts with regard to the tallying of the chance prints with the specimen finger prints of Respondent Ram Pal Singh. This circumstance was therefore rightly discarded by the Trial Court and accordingly, we uphold the finding reached by the Trial Court on circumstance No.4. Although report of Director of finger print expert is admissible under Section 293 of the Cr.P.C., the same is of no consequence as the report itself becomes doubtful in view of our observations above.
CIRCUMSTANCE NO.5
27. Recovery of currency notes of `7067/- from Respondent Ram Pal Singh is of no consequence in view of our earlier observation and reference to Pulukuri Kottaya as there was no discovery of any material fact to connect the recovered notes with the commission of the crime. The alleged recovery from a person of means in the facts of Crl.A. 372/1998 Page 16 of 24 the present case is inconsequential and not relevant.
CIRCUMSTANCE NO.6
28. We shall now turn to the alleged recovery of jewellery from the house of Ram Pal Singh's father in village Chaubara, Rajasthan which jewellery was alleged to have been robbed by the Respondents from the deceased's house. In pursuance of the disclosure statement of Respondent Ram Pal Singh made on 20.02.1994, the ancestral house of Ram Pal Singh is alleged to have been raided by the police party on the morning of 21.02.1994 at 7:30 a.m. and some gold articles like kada Ex.P-1, a gent's diamond ring Ex.P-2, lady's rings Ex. P-5 and P-7 and broken pieces of chain Ex.P-3 and P-4 were allegedly recovered from the earlier said house in village Chaubara. The police party at the time of search had joined two public witnesses, i.e., Sumer Singh (PW-6) and Ram Kumar Singh (PW-7). Both the public witnesses denied that the search of the house was carried out in their presence or that the articles as alleged were recovered in their presence. It is true that the testimonies of police officers who are associated in the raid and recovery cannot be completely discarded simply because the public witnesses have not supported the search and recovery. The evidence of the official witnesses in such circumstances has to be weighed and tested.
29. However, first of all we may notice that the alleged recovery in the case was not affected in the presence of Respondent Ram Pal Singh. There is no gainsaying that there can be discovery of a material fact in pursuance of the disclosure statement made by an accused in his absence and the same would be admissible under Section 27 of the Crl.A. 372/1998 Page 17 of 24 Act. However, a perusal of the remand request dated 21.02.1994 reveals that Ram Pal Singh's remand was sought by the police (after 2:00 p.m.) on the grounds, inter alia, that 'looted property is to be recovered from outside Delhi‟ whereas the recovery memo Ex.PW- 6/A coupled with the statement of PW-6 and PW-7 (public witnesses) as also PW-21 Insp. Surender Singh and PW-22 Insp. M.S. Sanga official witnesses reveal that the alleged search was already carried out at the house of Ram Pal Singh's father at 7:30 a.m. in his absence. Thus, it is evident that either the request made in the application seeking police custody remand was wrongly made (as the recovery had already been effected) or that the recovery did not take place in the manner as claimed by the prosecution as per the recovery memo Ex.PW-6/A.
30. It is urged by the learned APP for the State that a separate police party had been sent to the Respondent's village and the I.O. who made a request may not be aware that the recovery had already been effected. In that event, since Respondent Ram Pal Singh had already been arrested and even if the police officers making request was not aware of the recovery (though it is highly improbable as the information is always passed from time to time), it would have been clearly mentioned in the remand request that a team has already been dispatched to Respondent's village to effect the recovery and it would not have been stated that the recovery of jewellery is to be effected as the purpose of police remand.
31. Be that as it may, we are not even inclined to believe that the motive for commission of the crime was to rob valuables from the house or Crl.A. 372/1998 Page 18 of 24 from the person of the deceased. At this stage, we shall like to refer to the statement Ex.PW-4/A of the complainant on the basis of which the instant FIR was registered and the endorsement Ex.PW-46/A made thereon by the SHO. In his statement Ex.PW-4/A, the Complainant who is the father of the deceased and was in constant touch with his son, daughter-in-law and grand children is completely silent about any articles missing either from the bodies of the deceased or from the house. A perusal of the endorsement Ex.PW-46/A reveals that the costly articles like wrist watches, video camera, VCR, etc. etc. were found intact. Not only this, four gold bangles were present on the wrist of deceased Rajesh Kaur. One Rolex watch was also present on the wrist of deceased Saran Pal Singh. Statement of PW-3 Amarjit Singh, brother of deceased Rajesh Kaur runs counter to the statement Ex.PW- 4/A made by the complainant on the basis of which case was registered. He tried to say that when he saw the body of Saran Pal Singh, he did not find the kara, ring and the chain which he used to wear. He deposed that both the bangles were available on the wrist of his sister but her mangalsutra, chain and rings were not there. He stated that the nose pin and two rings and ear tops were also present. It is highly improbable and difficult to believe that the culprits, in the instant case the Respondents, would not remove the costly items like Rolex watch, gold bangles, ear rings and the two rings on the finger of deceased Rajesh Kaur and would decamp with only the paltry items. We may also note that according to the prosecution, Respondent Ram Pal Singh was quite literate as he was dealing in shares and thus, he must be aware of the value of the Rolex watch and other costly items which were very easy to be taken away. There is another aspect of the Crl.A. 372/1998 Page 19 of 24 matter. Admittedly, Respondent Ram Pal Singh's specimen finger prints were obtained by the police on 14.02.1994. Thus, at least on this date, he was aware that there was a needle of suspicion against him. The Respondent had ample opportunity to remove, destroy and dispose of the robbed jewellery articles alleged to have been recovered from his father's house as he was arrested only on 19.02.1994. We are supported in our view by a Division Bench judgment in Pradeep Gandhi v. State (Govt. of NCT of Delhi), Criminal Appeal No.76/1997, decided on 18.01.2010 where in similar circumstances the recovery of some gold ornaments was disbelieved when the others were left on the dead body. Para 25 of the report is extracted hereunder:-
"25. Further PW19, SI Badlu Khan, who conducted initial investigation of this case, has stated that after the inquest proceedings dead body of the deceased was sent to dead house, Subzi Mandi for post mortem. Constable Dalbir on return from the dead house brought one gold ring, a pair of gold tops and a pendent which were removed from the person of the deceased Shanno Bhandari at Subzi Mandi mortuary and handed over to him, which were seized vide memo Ex.PW10/A. Presence of gold ornaments on person of the deceased, particularly the gold tops and the gold pendent which could easily be removed from the body of the deceased, negatives the theory that the motive of murder was robbery. If robbery was the motive of the appellant, he obviously would have taken away the other gold ornaments instead making good with the gold chain Ex.P-3 only. In view of the above, we are of the opinion that the prosecution has not been able to establish the motive or the recovery of gold chain Ex.P-3 at the instance of the appellant beyond reasonable doubt."
32. In this view of matter, we are not inclined to believe the recovery of the earlier stated articles from the house of Respondent Ram Pal Crl.A. 372/1998 Page 20 of 24 Singh's father. Their identification in the TIP therefore becomes inconsequential.
CIRCUMSTANCE NO.8
33. The prosecution claims recovery of some share certificates at the instance of Respondent Parvinder Singh. In the year 1994, the shares of listed companies could be transferred only by signing a Transfer Deed and delivery of shares. At the same time, there was always a permanent record of transfer of shares. Share certificates could never be disposed of in the open market like currency. One could always track as to who was the holder of the shares on a particular date and who transferred it from time to time. Even if the share certificates were accompanied with some blank Transfer Deeds duly singed by the holder, the same would be normally entered with the stock broker. Respondent Ram Pal Singh, who as per the prosecution version was dealing in shares would have very well known that he could be tracked down if he sold the allegedly stolen shares in the market. In fact, it is very difficult to believe that Ram Pal Singh could have hatched a conspiracy to commit murder to remove the share certificates held by the deceased Saran Pal Singh and his family. Moreover, as stated above, while dealing with circumstance No.6, there was a needle of suspicion on Respondent Ram Pal Singh at least on 14.02.1994 and therefore, prudency requires that Respondent Parvinder Singh would have removed and destroyed the evidence which could have nailed the Respondents. We are also not inclined to believe the motive of the murder as robbery as has been held by us above while dealing with circumstance No.6. All the reasons equally apply to this circumstance Crl.A. 372/1998 Page 21 of 24 as well. This circumstance therefore, cannot be said to have been established to convict the Respondents.
CIRCUMSTANCE No.9
34. The Respondents made disclosure statements about throwing of the Gandasas on 20.02.1994 and 21.02.1994. As stated earlier while dealing with circumstance No.6, since Respondent Ram Pal Singh was one of the suspects since 14.02.1994, he had all the opportunity to remove the Gandasas from the place where they were thrown to remove the incriminating evidence against him. Moreover, it is highly improbable that after recording disclosure statement on 20.02.1994/21.02.1994, the IO will wait for six days to effect the recovery on 26.02.1994. No explanation has been given by the IO as to why it took him six days to reach the place of recovery which was not very far from the Police Station to effect the recovery of the Gandasas. Moreover, blood group of the bloodstains found on Gandasas could not be deciphered so as to be matched with that of the deceased and thus, there cannot be said to be discovery of any material fact in pursuance of the alleged disclosure statement in view of the judgment in Pulukuri Kottaya. The opinion of the doctor that the injuries on the bodies of the deceased were possible with the Gandasas Ex.P-21 and P-22 and presence of human blood on the Gandasas can be taken only as a corroborative evidence provided there was some material evidence to connect the Respondents with the commission of the crime.
35. In Sattatiya v. State of Maharashtra, (2008) 3 SCC 210, in similar circumstances the Supreme Court declined to attach any importance to Crl.A. 372/1998 Page 22 of 24 the bloodstained clothes of the accused in the absence of any blood group match to connect him with the offence. In Para 26, the Supreme Court observed as under:-
"26. The next thing which is to be seen is whether the evidence relating to the recovery of clothes of the appellant and the half blade, allegedly used for commission of crime, is credible and could be relied on for proving the charge of culpable homicide against the appellant. In this context, it is important to note that the prosecution did not produce any document containing the recording of statement allegedly made by the appellant expressing his desire to facilitate recovery of the clothes and half blade. The prosecution case that the accused volunteered to give information and took the police for recovery of the clothes, half blade and purchase of handkerchief is highly suspect. It has not been explained as to why the appellant gave information in piecemeal on three dates i.e. 3-10-1994, 5-10-1994 and 6- 10-1994. Room No. 45 of "Ganesh Bhuvan" from which the clothes are said to have been recovered was found to be unlocked premises which could be accessed by anyone. The prosecution could not explain as to how the room allegedly belonging to the appellant could be without any lock. The absence of any habitation in the room also casts serious doubt on the genuineness and bona fides of recovery of clothes. The recovery of half blade from the roadside from beneath the wooden board in front of "Ganesh Bhuvan" is also not convincing. Undisputedly, the place from which half blade is said to have been recovered is an open place and everybody had access to the site from where the blade is said to have been recovered. It is, therefore, difficult to believe the prosecution theory regarding recovery of the half blade. The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the chemical examiner's report the bloodstains found on the shirt, pants and half blade were those of human blood, the same could not be linked with the blood of the deceased. Unfortunately, the learned Additional Sessions Judge and the High Court overlooked this serious lacuna in the Crl.A. 372/1998 Page 23 of 24 prosecution story and concluded that the presence of human bloodstains on the clothes of the accused and half blade were sufficient to link him with the murder."
36. In view of the foregoing discussion, it cannot be said that the finding of acquittal reached by the learned ASJ is perverse calling for any interference by this Court. On the other hand, for the reasons as stated above, we do support the judgment rendered by the learned ASJ.
37. The Appeal therefore has to fail; the same is accordingly dismissed.
(G.P. MITTAL) JUDGE (SANJIV KHANNA) JUDGE JANUARY 24, 2014 vk Crl.A. 372/1998 Page 24 of 24