Punjab-Haryana High Court
Narender @ Dhilu vs State Of Haryana on 25 January, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl.Appeal No.104-DB of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Date of decision:25.1.2010
(i) Crl.Appeal No.104-DB of 2002
Narender @ Dhilu
... Appellant
versus
State of Haryana
... Respondent
( ii ) Crl.Appeal No.187-DB of 2002
Yogesh @ Bablu
... Appellant
versus
State of Haryana
... Respondent
Present: Mr.Gorakh Nath, Advocate, for the appellants.
Mr.S.S.Randhawa, Addl. AG, Haryana.
...
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR. JUSTICE JORA SINGH.
...
JORA SINGH, J.
By this common judgment, we propose to dispose of Crl.Appeal No.104-DB of 2002 filed by Narender @ Dhilu son of Randhir and Crl.Appeal No.187-DB of 2002 filed by Yogesh @ Bablu son of Randeep, to challenge the judgment/order dated 4.2.2002 rendered by Additional Sessions Judge, Sonepat. By the said judgment, appellants Narender @ Dhilu and Yogesh @ Bablu were convicted under Sections 302/392/34 IPC and directed to undergo life imprisonment and to pay fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for two years, each under Section 302 read with Section 34 IPC, and RI for six years and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for one year, each under Section 392 IPC.
Dinesh @ Dinu and Sanjay were acquitted of the charges Crl.Appeal No.104-DB of 2002 2 levelled against them. Against acquittal of above said accused, no appeal has been filed by the State.
Case of the prosecution, in brief, is that on 9.5.1998, VT message was received from control room regarding murder of one person. Jit Ram, SI/SHO, PS Kharkhoda, was at some distance from village Halalpur towards Jhinjholi side. Vineet Aggarwal had met the police party. Statement of Vineet Aggarwal (Ex.PF) was recorded by SI Jit Ram. Statement was read over and explained to Vineet Aggarwal, who signed the same admitting to be correct. After making endorsement, statement was sent to the Police Station, on the basis of which, formal FIR (Ex.PF/2) was registered at 10.30 PM. Special report was received by Ilaqa Magistrate at 4.00 AM on 10.5.1998.
Vineet Aggarwal, complainant, informed the police that his father Satya Narain and uncle Shyam Sunder Aggarwal were partners in a factory and the business was being carried on in the name and style of Unique Plywood Pvt. Ltd., in the area of village Halalpur. He used to come to the factory from Delhi in the morning and return in the evening. For the last many days, his uncle used to accompany him to visit the factory daily. Today in the morning, he along with his uncle Pawan had gone to their factory in Maruti Zen Car No. DL-6-CD-0846. At 6.15 PM, when they were returning from their factory, he was driving the car. Pawan was sitting by his side on the front seat. When they had left the factory, then one Maruti car of blue colour was noticed while coming from the opposite side. When they were in the area of village Halalpur, then maruti car was stopped in front of their car. He stopped his car, and then from the maruti car, four young men had alighted. All were wearing pants and bushirts. One of them Crl.Appeal No.104-DB of 2002 3 gave fist blow on his mouth. He along with his uncle were forced to alight from the car and to occupy the rear seat. One of the accused sat on the steering, second accused had occupied the front seat by the side of the driver, third accused had occupied the seat by his side and the fourth accused started driving the maruti car in front of their car. The accused, who was sitting by his side, demanded money from him. At that time, he had Rs.250/- with him and the said amount was given to the accused. Then the accused had scuffled with his uncle. The accused, who was sitting by his side, had caught hold his uncle. When the car was near Jhinjholi Farm House, then the accused, who was sitting on the front seat, armed with a pistol, had fired a shot, hitting his uncle, because his uncle tried to jump after opening the window. The accused, who was sitting by his side, was armed with some weapon. He struck the same on the neck of his uncle and after opening the window, his uncle was thrown near Jhinjholi pond from the running car. He was dropped at some distance from Jhinjholi at the canal and directed not to raise noise, otherwise he would be eliminated. All the accused were speaking Haryanvi and ran towards Delhi side with their maruti car. The accused had also removed a gold chain from his person and mobile phone. From village Harewali, Delhi police was informed on telephone. A PCR from Delhi police came. He was brought to the spot by the police. Dead body of Pawan was found lying on the spot. On telephone, intimation was given at his residence and on receipt of information, Manish Kadia and Alok Aggarwal came to the spot.
SI Jit Ram prepared inquest report of dead body of Pawan. Blood stained earth and shoes were lifted from the spot. Blood stained earth and shoes were made into the sealed parcels and taken into police Crl.Appeal No.104-DB of 2002 4 possession vide memo (Ex.PD). Dead body was sent to the hospital for postmortem examination. Rough site plan with correct marginal notes was prepared.
On 10.5.1998, Dr. Arun Garg (PW1) conducted the autopsy of the deceased.
On 12.6.1998 accused Yogesh and Dinesh made statements before SI Mahavir Singh during investigation in different case to the effect that they were involved in this incident. DSP Ravinder Kumar (PW19) joined accused Yogesh and Dinesh in the investigation and produced before the CJM as to whether they wanted their identification parade. The accused made statements before the CJM that they did not want to participate in the test identification parade. After the accused were remanded to police custody, then they were interrogated. Yogesh on interrogation,suffered disclosure statement (Ex.PN) to the effect that he has kept concealed car in the area of village Sohati. In pursuance of disclosure statement (Ex.PN) suffered by accused Yogesh, the car was got recovered from the specified place and was taken into police possession vide separate memo. Accused Dinesh was also interrogated and as per disclosure statement (Ex.PO) suffered by him, gold chain was recovered from the specified place and the same was taken into police possession vide separate memo.
On 22.6.1998, accused Narender was brought from Bahadurgarh. He was produced in the Court as to whether he wanted to join test identification parade. He made a statement that he was not ready to join test identification parade. Thereafter, accused Narender was interrogated. He suffered disclosure statement (Ex.PP) and in pursuance thereof, got recovered one brief case and a stepney of car from the specified place. The Crl.Appeal No.104-DB of 2002 5 recovered articles were taken into police possession vide separate memo.
After completion of investigation, accused were challaned. Vide order dated 3.2.1999 by the JMIC, Sonepat, the case was committed to the Court of Sessions for trial.
Accused were charged under Sections 302/392/34 IPC, to which they did not plead guilty and claimed trial.
To prove its case, prosecution examined 23 witnesses. PW1 Dr. Arun Garg stated that Board was constituted to conduct the postmortem examination on the dead body of Pawan. He was member of the Board and on 10.5.1998 at 12.00 noon, the Board had conducted the postmortem examination on the dead body of Pawan and found the following injuries:-
"1. a lacerated wound with ragged margins, oval in shape measuring 3 x 2 cms present on the right second inter coastal space in the anterior auxiliary line. The blackening was present around the margins along with clotted blood in the wound. On dissection the wound track was going upwards medially and posteriorly upto the first rib after traversing the skin, subcutaneous tissue and muscle. The first rib was fractured. There was clotted blood in the right pleural cavity. The plura in the upper part was lacerated. The upper part of the lung also showed laceration and clotted blood. There was blood all along with track. A part of the bullet was recovered from the wound and handed over to the police in a sealed bottle.Crl.Appeal No.104-DB of 2002 6
2. A 2 x 3 cms incised wound with sharp well defined margins. Elliptical in shape present on the middle of the left side of the neck. The both angles of the wound were acute. Clotted blood was present.
3. A 4 x 4 cms contusion was present on the forehead.
4. A 3 x 2.5 cms contusion was present on the lateral side of the right eye."
Cause of death was due to extensive haemorrhage and shock as a result of fire arm injury No.1, which was found to be ante mortem in nature and sufficient to cause death in the ordinary course of nature. Probable time that elapsed between death and injury was within few minutes and between death and postmortem was within 24 hours.
Statements of PW2 Constable Rajesh Kumar, PW3 Satbir, Photographer, PW4 HC Sajjan Pal and PW5 HC Devender are of formal nature.
PW6 SI Jit Ram had initially investigated the case in hand. He stated that he has recorded the statement of Vineet Aggarwal (Ex.PF) on 9.5.1998. After making endorsement, the statement was sent to the Police Station, on the basis of which, formal FIR was registered. After going to the place of occurrence, he had prepared inquest report. Blood stained earth was also lifted from the spot. Dead body of Pawan was sent to the hospital for postmortem examination.
Statements of PW7 Constable Ramesh Chander, PW8 Constable Ashwani, PW9 Constable Jugal Kishore, PW10 HC Zile Singh, PW11 Constable Dharampal, PW12 HC Jagpal and PW13 Alok Aggarwal are of formal nature.
Crl.Appeal No.104-DB of 2002 7
PW14 Vineet Aggarwal is the complainant. He has supported the prosecution story disclosed to SI Jit Ram on 9.5.1998.
PW15 SI Ram Kishan stated that on 12.6.1998, he had interrogated Dinesh Kumar in FIR No.264 of 1998 registered under the Arms Act. The accused had suffered disclosure statement by saying that Maruti Zen Car No.DL-06-CD-0846 was left in the area of village Sohati.
PW16 Gautam Vaid stated that he is the owner of Car No.DL- 06-CD-0846. Same was handed over to his partner Vineet.
PW17 DSP Abhey Singh had partly investigated the case in hand and had recorded the statements of PWs Murari Verma, Gautam Vaid, MHC Zile Singh, Constable Arvind Kumar, Photographer Satbir Singh and Constable Rajesh Kumar. Report under Section 173 Cr.P.C. was also prepared by him.
PW18 ASI Kalender Singh stated that on 12.6.1998, he was with party headed by SI Mahavir Singh. Accused Yogesh @ Bablu tried to abscond but he was apprehended by him. On search of the accused, country made .12 bore pistol and three live cartridges were recovered from him. Sketch of the pistol was prepared. Recovered articles were taken into police possession vide separate memo, attested by him.
PW19 DSP Ravinder Kumar had partly investigated the case in hand. He stated that on 12.6.1998, Yogesh was interrogated and as per disclosure statement suffered by Yogesh, Car No.DL-06-CD-0846 was got recovered from the specified place, and the same was taken into police possession vide separate memo attested by the witnesses. Dinesh was also interrogated and in pursuance of disclosure statement suffered by him, one gold chain was got recovered from the specified place. The gold chain was Crl.Appeal No.104-DB of 2002 8 also taken into police possession vide separate memo attested by the witnesses.
On 22.6.1998, accused Narender was interrogated and in pursuance of disclosure statement suffered by him, one brief case and a stepney of car were got recovered from the specified place, which were taken into police possession vide separate memo attested by the witnesses.
PW20 Inspector Mahavir Singh stated that on 12.6.1998, one country made pistol and three live cartridges were recovered from accused Yogesh.
PW21 Sh. S.K.Kaushik stated that on 12.6.1998, he was serving as CJM, Sonepat. Yogesh and Dinesh were produced before him with muffled faces for their identification parade. On enquiry, both the accused replied that they were not to participate in the test identification parade because they were already shown to the witnesses. On 23.6.1998, accused Narender was produced before him. On enquiry, he replied that he was not ready to join test identification parade because he was already shown to the witnesses.
PW22 Murari and PW23 Dinesh Kumar are the recovery witnesses of brief case and stepney, as per disclosure statement suffered by accused Narender, but both the witnesses did not support the prosecution story and were declared hostile.
After close of prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded. Accused denied all the prosecution allegations and claimed to be innocent. Opportunity was given to lead evidence but they did not lead any evidence.
After hearing learned PP for the State and learned defence Crl.Appeal No.104-DB of 2002 9 counsel for the appellants and from the perusal of evidence on the file, learned trial Court convicted appellants Narender @ Dhilu and Yogesh @ Bablu and sentenced them as aforestated, whereas other two accused, namely, Dinesh @ Dinu and Sanjay were acquitted of the charges levelled against them.
Learned counsel for the appellants argued that main witnesses, namely, Murari Verma and Dinesh Kumar did not support the prosecution story. They were declared hostile. Vineet Aggarwal is the complainant but in Court, he stated that he cannot identify the accused present in the Court. Secondly, gold chain alleged to have been recovered from one of the accused, who was acquitted of the charge levelled against him, was not removed from the person of the complainant. Evidence on the file to connect the appellants with the crime is recovery of car, stepney and brief case, but recovery was from open area which was accessible to general public. Occurrence had taken place on 9.5.1998, whereas recovery of car as per disclsoure statement suffered by appellant Yogesh was made on 12.6.1998, and recovery of brief case and stepney as per disclosure statement suffered by appellant Narender was made on 24.6.1998. When the case is based on circumstantial evidence, then prosecution was required to complete the chain of circumstantial evidence. Complainant Vineet Aggarwal in the FIR stated that cell phone and gold chain were removed from his person, but in the Court stated that gold chain alleged to have been recovered from one of the accused is not the same, which was removed from his person. No recovery of cell phone. Therefore, mere recovery of car, brief case and stepney is not sufficient to prove that the appellants have committed the crime. Learned counsel placed reliance on (i) Trimbak vs. Crl.Appeal No.104-DB of 2002 10 The State of M.P., AIR 1954 (SC) 39; (ii) Sanwat Khan and another vs. State of Rajasthan, AIR 1956 (SC) 54; (iii) Dudh Nath Pandey vs. State of UP, AIR 1981 (SC) 911; (iv) Abdul Sattar vs. Union Territory, Chandigarh, 1985 (Sup) SCC 599, and (v) Madan Mohan @ David vs. State of Haryana, 1997(1) RCR (Crl.) 713.
Learned State counsel argued that occurrence had taken place on 9.5.1998 at about 6.00 PM. Complainant and his uncle were returning from their factory, then on the way, they sighted one maruti car. Four accused were in the car. Vineet Aggarwal was driving his Maruti Zen Car No.DL-06-CD-0846. Maruti car was stopped by the accused in front of the car driven by Vineet Aggarwal. Vineet Aggarwal and his uncle Pawan were forced to occupy the rear seat. While going towards Village Jhinjholi, one of the accused had shot fire, hitting the deceased. Deceased was thrown from the running car. Vineet Aggarwal was dropped at some distance from Jhinjholi at the canal. As per prosecution story, accused had fled away from the spot after committing the crime. In a separate FIR under the Arms Act, Yogesh and Dinesh were arrested. They were produced before CJM, Sonepat. On enquiry by CJM, Sonepat, the accused replied that they are not to participate in the test identification parade. After that, in pursuance of disclosure statement suffered by appellant Yogesh, Car No. DL-06-CD- 0846 was got recovered. Appellant Narender was also arrested on 23.6.1998 and as per disclosure statement suffered by him, one brief case and a stepney of car No.DL-06-CD-0846 were got recovered from the specified place. Recovery was in the presence of Murari Verma (PW22) and Dinesh Kumar (PW23). Both the witnesses admitted their signatures on the disclosure statements and recovery memos, but failed to support the Crl.Appeal No.104-DB of 2002 11 prosecution story by saying that recovery was not effected in their presence. The witnesses out of fear resiled from their statements. If they were not present at the time of disclosure statement and recovery, then how their signatures appeared on the disclosure statement and recovery memo. In case, the appellants had not committed the crime, then they could easily state that they were ready to participate in the test identification parade. No evidence on the file that before arrest, the appellants were shown to the complainant or the recovery witnesses. If appellants were shown to the witnesses, then witnesses of recovery could easily state that in their presence, brief case and stepney were recovered from the accused. No case of the accused that they were arrested much earlier to the date of recovery. Evidence on the file was rightly scrutinized by the trial Court.
Learned State counsel relied upon (i) Mukund @ Kundi Mishra and another vs. State of M.P., 1997(10) SCC 130; (ii) Ezhil and others vs. State of T.N., 2002(9) SCC 189 and (iii) Geejaganda Somaiah vs. State of Karnataka, 2007(9) SCC 315.
We have heard learned counsel for the parties and gone through the evidence on the file.
First submission of learned counsel for the appellants is that no direct evidence to connect the appellants with the crime. Evidence to connect the appellants is recovery of car, brief case and stepney. Recovery was from open and accessible place. Appellants cannot be held to be in conscious possession of the car, brief case or stepney. Occurrence is dated 9.5.1998, whereas recovery was on 12.6.1998 and 24.6.1998. So, nothing to presume under Section 114 of the Evidence Act that crime was committed by the appellants.
Crl.Appeal No.104-DB of 2002 12
We have gone through the evidence on the file and are of the opinion that submission of learned counsel for the appellants are not acceptable. On 9.5.1998, Vineet Aggarwal along with deceased in a car had gone to their factory established in the area of village Halalpur. In the evening, complainant and his uncle in the car had left the factory. One Maruti car of blue colour was noticed. There were four accused in the car. Maruti car was stopped in front of the car driven by Vineet Aggarwal. One of the accused started driving the car of the complainant party and complainant and his uncle were forced to occupy the rear seat. On the way, one of the accused fired a shot hitting the accused. Deceased was thrown out of the car. The complainant was also dropped in the area of village Harewali. Complainant on telephone informed the police. A PCR from Delhi police came. The complainant was brought to the place of occurrence and noticed the dead body of Pawan lying with gun shot injury. Vineet Aggarwal while appearing as PW14 supported the prosecution story, but in cross-examination, stated that he cannot identity the accused now present in the Court. He cannot say whether the accused present in the Court are the same persons, who had committed the crime. Secondly, the gold chain is not the same, which was removed from his person. Statement of Vineet Aggarwal is natural and inspires confidence because the accused were not known to him. For the first time, the accused were seen at the time of occurrence. In the FIR, Vineet Aggarwal had not named the accused. Evidence shows that in another case under the Arms Act, the accused were arrested. After interrogation, the accused suffered disclosure statements, then recovery was effected. According to the prosecution story, gold chain was recovered from Dinesh, but Dinesh was acquitted of the charge levelled Crl.Appeal No.104-DB of 2002 13 against him, because the complainant in cross-examination stated that the chain produced in the Court was not the same which was removed from his person. When the accused were arrested in some other case, while planning to commit the dacoity, then there is a possibility that the chain recovered as per the disclosure statement of Dinesh is of another complainant and not the present one, namely, Vineet Aggarwal. Vineet Aggarwal stated that he is not the owner of the car, but the car was of his partner and this fact has been proved by Gautam Vaid, who appeared as PW16 and stated that he is the owner of Car No. DL-06-CD-0846, and the car was handed over to his partner Vineet Aggarwal. No doubt, recovery of car was from open and accessible place in the area of village Sohati, but without disclosure statement, recovery was not possible because the car was found stationed in the cluster of kikker trees. Secondly, place of recovery was not near to the place of occurrence. Without disclosure statement, how the police party can guess that car of the complainant party is to be recovered from the area of village Sohati.
In Trimbak's case (supra), place of recovery of ornaments was open and accessible to all. It was difficult to hold that the accused was in possession of the articles.
In Sanwant Khan and another's case (supra), there was recovery of articles of the deceased at the instance of the accused. Recovery at the most could lead to a presumption that the accused were the thieves or received articles knowing them to be stolen property. In the absence of evidence, not possible to hold that the accused are guilty of murder.
In Dudh Nath Pandey's case (supra), Hon'ble the Supreme Court held that when there is recovery of pistol at the instance of the accused in Crl.Appeal No.104-DB of 2002 14 view of disclosure statement, then at the most, we can presume that the accused had the knowledge of the weapon.
In Abdul Sattar's case (supra), there was a recovery of clothes worn by the deceased. Recovery was after three weeks of the occurrence. Recovery of clothes from a public place accessible to people of locality was held to be doubtful.
In Madan Mohan @ David's case (supra), Hon'ble the Supreme Court held that disclosure statement by the accused is totally unreliable because the same in the form of confession was made before a police officer. The disclosure statement is not admissible in evidence because it describes the whole sequence of the case as to how the deceased was killed.
No doubt, car No. DL-06-CD-0846 was recovered from open and accessible place, but the car was recovered from the cluster of kikkar trees from the area of village Sohati. Number plate of the car was changed. Two number plates bearing No. DL-06-CD-0846 were found inside the car.
As discussed earlier, place of recovery of the car is not near the place of occurrence. As per prosecution story, complainant and the deceased had started from their factory situated in the revenue estate of village Halalpur in that car. On the way, they were abducted. In the area of village Jhinjholi, one of the accused had fired a shot hitting the deceased. Gold chain and mobile phone were removed from the person of the complainant. While going towards village Harewali, Pawan (deceased) was thrown out of the car. After that, in the area of village Harewali, the complainant was dropped. On 11.6.1998, Accused Yogesh was arrested and as per disclosure statement suffered by him, recovery of car was effected on 14.6.1998.
Accused Narender was arrested on 23.6.1998 and as per Crl.Appeal No.104-DB of 2002 15 disclosure statement dated 24.6.1998 suffered by him, got recovered brief case and stepney of car No. DL-06-CD-0846. Place of recovery was near the pond in the area of village Sohati.
In Mukund @ Kundu Mishra and another's case (supra), relevant facts are as under:-
"2 (c ) In the evening of 17.1.1994 Shailja went to the house of Dubeys and after having a cup of tea there when she left, Sarita, as was her wont, locked up her compound gate.
(d) On the following day, that is 18.1.1994, at about 12 noon Shailja called one bangle-seller to purchase some bangles.
Expecting that Sarita might also be interested in purchasing bangles, she sent a girl to call her. The girl came back and reported that Sarita could not be found in the drawing room or in the courtyard. Shailja then went to the house of Sarita and entering her bedroom found her lying dead on the floor with hands and legs tied with a coir strip and the two children lying dead on the bed. She further found household articles lying scattered all around the room and the steel almirah open. Immediately thereupon Shailja came out of the house screaming and called the neighbours including Dr. Awadhesh Singh who rushed to the spot. Dr. Singh then sent a message to Anuj Prasad at Bombay and thereafter went to Sarkanda Police Station and lodged an information.
xx xx xx
(f) In the night that followed both the appellants were
arrested and interrogated. Pursuant to the statement made by Crl.Appeal No.104-DB of 2002 16 Mukund the Investigating Officer recovered and seized some gold and silver ornaments and a knife from his house. Besides he seized a woolen sweater from his house of which two buttons were found missing. Thereafter the house of the other appellant Deva was searched and some currency notes were recovered. Pursuant to his statement, one polythene bag containing some silver and gold articles, ornaments and a lady's wristwatch were recovered from beneath some earth in the house. He also produced a dagger (bhujali) and some clothes which were all blood stained. Since both the appellants were found to have some injuries on their persons they were thereafter sent for medical examination."
Arguments of learned counsel for the appellants are as under:-
"9. Mr. Jain, appearing for the appellants, firstly contended that the prosecution failed to establish that any incriminating article was recovered from the respective houses of the appellants, for less, that it was stolen at the time of the murders. We are not impressed by this contention of Mr. Jain. On perusal of the record we find that both the courts below have discussed in detail the entire evidence adduced by the prosecution and given cogent and convincing reasons for accepting the same. Having gone through evidence we are constrained to say that no other reasonable view of it could have been taken. Mr. Jain next submitted that even if it was assumed that the articles stolen from the house of Dubeys were recovered from the appellants it could at best be said that they Crl.Appeal No.104-DB of 2002 17 committed the offence under Section 411 IPC but not the offences for which they stood convicted. We do not find any substance in this submission of Mr. Jain also. If in a given case- as the present one- the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In drwing the above conclusion we have drawn sustenance from the judgment of this Court in Gulab Chand v. State of M.P. We hasten to add that the other incriminating circumstances detailed earlier reinforce the above conclusions, right drawn by the Courts below. We therefore find no hesitation in upholding the convictions as recorded by the trial Court and affirmed by the High Court."
In Ezhil and others' case (supra), Hon'ble the Supreme Court in para No.13 observed as under:-
"13. The possession by the accused, no doubt in the dicky of the car entrusted to the third accused, in which along with him the 1st and the 2nd accused alone were found present at all relevant and material points of time, of the articles belonging to as well as those supposed to be in the possession of the deceased having been entrusted with them by PW15 and PW23 and others, as per the address slips found on the parcels, some Crl.Appeal No.104-DB of 2002 18 of whom are the personal belongings of the deceased, which should have been only in his custody, have been substantiated by the prosecution by cogent and convincing evidence and accepted concurrently by both the courts below. Such possession by the accused is very much proximate in point of time to the death of the deceased to constitute the whole thing an integrated affair and the controversy sought to be raised about the actual date of arrival (whether it is 9.3.1994 or
10.3.1994) even pales into insignificance, with the strong material glaringly staring against the accused. The accused have not been able to properly or reasonably explain as to the legitimacy or origin of their possession of the articles carried by the deceased when he arrived from abroad at the airport at Chennai. In such circumstances, since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted at a special rule in Section 106 of the Evidence Act, to meet certain exceptional cases in which not only would it be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. The appellants in this case have miserably failed to explain their lawful possession of those articles with them that really belonged to and were in the possession of the deceased when he landed at the airport at Chennai.
Consequently, it was legitimate for the courts below, on the Crl.Appeal No.104-DB of 2002 19 facts and circumstances of this case, to draw the presumption not only of the fact that they were in possession of the stolen articles after committing robbery but also committed the murder of the deceased, keeping in view the proximity of time within which the act of murder was supposed to have been committed and body found and the articles recovered from the possession of the accused."
In Geejaganda Somaiah's case (supra), Hon'ble the Supreme Court observed as under:-
"20. The most important circumstance for the prosecution in the case is the disclosure statements of the accused persons and recoveries of the stolen property, blood stained shirt and weapon of offence consequent upon such statements. The admissibility of the statements made by the accused persons to the police is challenged on twin grounds, i.e., (i) factually no such statement was made, and (ii) the statement made was inadmissible in evidence.
21. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 of the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a Crl.Appeal No.104-DB of 2002 20 person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act."
In the present case, occurrence was on 9.5.1998. Appellants were not known to the complainant party. They were arrested in some other case under Sections 399/402 IPC. Appellants were produced before the Court as Crl.Appeal No.104-DB of 2002 21 to whether they wanted to join the test identification parade. Appellants refused to join test identification parade. As per disclosure statement dated 12.6.1998 by accused Yogesh, car No. DL-06-CD-0846 was recovered from the specified place.
Accused Narender was arrested on 23.6.1998 and as per disclosure statement dated 24.6.1998 suffered by him, one brief case and a stepney of car were recovered in the presence of Murari Verma and Dinesh Kumar. Both the witnesses of recovery appeared in the Court, but they did not support the prosecution story. However, one fact was admitted that disclosure statement (Ex.PP) and recovery memo (Ex.PP/1) bear their signatures. The witnesses did not state how they had gone to the police station and signed the disclosure statement. No explanation why they signed the recovery memo. Till today, no complaint to any authority that their signatures were obtained under pressure. That means, out of fear, while appearing in the Court, the witnesses had resiled from their statements. Recovery was not possible without disclosure statement. Recoveries were not converted into discoveries. Recovery of car, stepney and brief case is a circumstance showing this fact that crime was committed by the appellants. Brief case and stepney were found buried by the side of main road. Without disclosure statement, recovery of these articles was not possible. Appellants had the knowledge of concealment of brief case and stepney. In pursuance of disclosure statement, recovery of brief case and stepney was got effected. So disclosure statements of the appellants when there is a recovery in pursuance of disclosure statements carry evidentiary value. In case, there is no recovery in pursuance of disclosure statement, then disclosure statement alone is not sufficient for connecting the accused with the crime by holding Crl.Appeal No.104-DB of 2002 22 that while suffering disclosure statement, the accused confessed their guilt.
No other submission was put forward.
As a sequel to the above discussion, we are of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is hereby upheld.
Both the appeals, i.e., Crl. Appeal No.104-DB of 2002 and Crl.Appeal No.187-DB of 2002 are hereby dismissed.
As accused-appellant Narender @ Dhilu is on bail, so his bail bonds stand cancelled. He is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
( JORA SINGH )
JUDGE
25.1.2010 ( SATISH KUMAR MITTAL )
pk JUDGE