Delhi District Court
State vs Shiv Swaroop on 3 April, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-000703-2012
SC No.27955/2016
FIR No. 79/2012
U/s 302/397/411/420/34 IPC
P. S. Lahori Gate
STATE VERSUS SHIV SWAROOP ETC.
(i) SC No. of the case : 27955/2016
(ii) Date of commission of offence : 08.09.2012
(iii) Name, parentage and address : (1) Shiv Swaroop
S/o Kishan Swaroop
R/o H. No.1, Gali No.17,
B-Block, Kamal Vihar,
Kamal Pur, Burari, Delhi.
(2) Sakshi
W/o Shiv Swaroop
R/o H. No.1, Gali No.17,
B-Block, Kamal Vihar,
Kamal Pur, Burari, Delhi.
(3) Raju Malik
S/o Sh. Majud Malik
R/o H. No.160, Gali No.2,
Kamal Vihar,
Kamal Pur, Burari, Delhi.
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(4) Premwati (P.O. vide
15.01.2013)
W/o Kishan Swaroop
R/o H. No.1, Gali No.17,
B-Block, Kamal Vihar,
Kamal Pur, Burari, Delhi.
(iv) Offences complained of : 302/397/411/420/34 IPC
(v) Plea of the accused : Not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 03.04.2025
Date of Institution : 01.02.2013
Date of Judgment reserved on : 18.03.2025
Date of Judgment : 03.04.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Sh.
Satish Nigam/PW-2 vide Ex.PW2/A. On 10.09.2012 around
11:07 AM he had received a phone call of his sister Ms.
Sadhana Nigam from phone No.27185807 that Ms. Sadhana
Nigam had tried to contact her sister the deceased Ms. Geeta
Nigam at her mobile and landline phone. She could not contact
Ms. Geeta Nigam on which she made telephone call to her
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younger sister Ms. Madhu Nigam staying at 4th floor of H.
No.1917, Kucha Chelan, Khari Bowli, Delhi. The deceased Ms.
Geeta was staying at the 2nd floor. Ms. Sadhana has asked Ms.
Madhu to go at the room of Ms. Geeta the deceased and to
inform that why Ms. Geeta the deceased was not picking the
phone. Ms. Madhu after sometime replied to Ms. Sadhana that
half door of Ms. Geeta the deceased at 2 nd floor was lying open.
Cooler was running outside the door. Ms. Geeta is lying dead
on the floor in the room and some blood has also come out from
her head. PW-2 had intimated to the police at 12:38 PM at 100
number that murder of his sister Ms. Geeta Nigam has occurred.
PW-2 is working at Sadar Bazar who has business of Plastic
Dana. The age of Ms. Geeta the deceased was 58 years. Ms.
Geeta was lying between 2 beds on the floor and her body was
facing upwards. Her left leg was found bent backward and the
right leg was found half bent backward. She was wearing
nightie and injury was found on the back of her head from
which good amount of blood had spilled on the floor. On her
neck there are marks of some wire / rope appearing that she was
strangulated. FIR registered in the matter is Ex.PW8/A Vide
DD No.17A dated 10.09.2012 information was received at PS at
about 12:45 PM that murder had occurred at such and such
address. Information was given vide mobile No.9811155391
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and Inspt. O. P. Lekhwal was assigned the task. The site plan as
per scale is Ex.PW7/A and the site plan prepared at the spot by
IO is Ex.PW23/B. The photograph of the place of offence are
Ex.P-1 to Ex.P-12. After registration of FIR the police had
investigated the offence and filed the chargesheet against 3
accused who were summoned for trial. One of the co-accused
Premwati is absconding.
2. Charge was given to 2 accused namely Shiv Swaroop and
Ms. Sakshi under Section 302/397/120B/34 IPC on 18.02.2013.
Separate charge was given to accused No.3 Raju Malik under
Section 411 IPC. All the accused had pleaded not guilty and
claimed trial. Prosecution has examined PW-1 to PW-23 as
entire prosecution evidence against all the accused. Statement
under Section 313 Cr. P. C. of all the accused was recorded on
12.09.2019. Accused Shiv Swaroop and Sakshi has preferred to
lead evidence in defence and accused Raju Malik has preferred
not to lead evidence in defence. However accused Shiv
Swaroop and Sakshi have not produced any evidence in defence
and on their request vide their separate statement the DE of
accused No.1 and 2 was closed.
3. Final arguments are heard from both the parties and
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record perused.
4. The deceased was a divorcee of 25 years. As per the case
of the prosecution PW-2/Sh. Satish Nigam the brother of
deceased has stated in his statement under Section161 CrPC
that his sister had in her almirah one gold set of ear-ring, one
necklace, 3 gold chain, one pendant, 6 gold bangles, 8-9 gold
rings, 5 pair of ear-rings, 2-3 silver anklets, 14 silver coins,
Ginni of gold and Rs.10,000/- in cash which were missing.
5. The 3rd brother of the deceased Sh. Sushil/PW-1 had
knocked the door of the house of the deceased at 9:00 PM on
the Saturday night when accused No.1 had opened the door.
After having a brief talk PW-1 went to his room. PW-3 has also
stated to police that on the Saturday night accused No.1 and 2
came at the 4th floor of house of PW-3 and after having tea went
back to the house of the deceased at 2 nd floor. Hence PW-1 and
PW-3 are witness of the last seen evidence theory of the case of
the prosecution.
6. LAST SEEN EVIDENCE / THEORY
6.1. Learned Counsel for the accused relied on the
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following citations:
i) Kaloo Passi vs. State CRL No.413/2001 decided on
1.04.2009 by Hon’ble High Court of Delhi wherein it was
laid down at para No.25 that motive itself is not a
circumstance though it may be a relevant circumstance
sufficient to say that the accused had committed the offence
of murder.;
ii) Jasbir & Ors vs. The State of Uttrakhand Criminal
Appeal No(s). 972 of 2013 of Hon’ble Supreme Court of
India wherein it was laid down in para No.12 that
conjuncture or suspicion cannot take place of legal proof.
The reasonable likelihood of innocence of the accused must
be ruled out. There is short step between moral certainty
and legal proof and there is long mental distance between
“may-be-true” and “must be true”. It was further held at
para No.23 that the last seen doctrine has limited
application. Where the time gap between the time the
deceased was seen last with the accused and the time of
murder, is narrow, the Court should not convict an accused
only on the basis of last seen circumstance. It was laid down
that other evidnce has to be looked into. It will be hazardous
to come to the conclusion of guilt in the case where there is
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no positive evidence to conclude that the deceased and
accused were last seen together. It was held in para No.25
that when the post-mortem report is silent about the
probable time of death then the last seen circumstance even
if it is assumed to be proved then it is not justified to
convict the accused.;
iii) Karakkattu Muhammed Basheer vs. The State of Kerala
Criminal Appeal No.291 of 2023 decided on 05.11.2024 by
Hon’ble Supreme Court of India wherein it was laid down
at para No.10 that even when there is a small time gap in
the last seen theory then also any person other than the
accused is the author of the crime has to be ruled out, that,
when it becomes impossible then even in such case also the
Courts should look for some corroboration. When there is
possibility of other person exist coming in between then in
absence of any other positive evidence it is not safe to
conclude that the accused is guilty.;
iv) R. Sreenivasa vs. State of Karnataka Criminal Appeal
No.859 of 2011 by Hon’ble Supreme Court of India
wherein it was laid down at para No.15 that only if the
prosecution succeeds in proving the fact by definite
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evidence that the deceased was seen alive in the company of
accused then only a reasonable inference could be drawn
against the accused and then only onus can be shifted on the
accused under Section 106 of Evidence Act. It was held that
when the time gap in the last seen theory is long then it
would be unsafe to base conviction of the accused in
absence of any other corroborative evidence. It was further
laid down at para No.16 that it is for the prosecution to
successfully invoke Section 106 of the Evidence Act that
there was any fact especially within the knowledge of the
accused.;
v) Mohd. Tahir vs. State (NCT of Delhi) CRL. A. 95/2024
of Hon’ble High Court of Delhi wherein it was laid down
at para No.13 that while evaluating the circumstantial
evidence where two inference are possible then one in
favour of the accused is to be taken. It was further laid
down at para No.52 that where the seized articles were
lying in a public place, no public witness was asked to join
at the time of alleged recovery then the recovery is
unbelievable. The story of the prosecution becomes
doubtful when no efforts were made to join any public
witness. It was not the case of the prosecution that no public
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witness was present to join the investigation or despite
serving of notice any public person refused to join
investigation. It was laid down at para No.61 that merely
because Lakdi Ki Patti and wooden Danda was recovered at
the instance of the accused which did not bear their finger
print or blood marks of the deceased and this is not even
supported by any scientific evidence then it was
hypothetical to presume that the deceased was hit by the
accused. Further, it was not proved in that case that at what
place the deceased was hit and how the body had reached in
open parking zone which was considered a broken chain of
circumstance.;
vi) C. Vignesh Kumar vs. The State rep by The Inspector of
Police, R. S. Puram Police Station, Coimbatore Crl. No.587
of 2018 of Hon’ble High Court of Judicature at Madras
wherein it was laid down at para No. 24 that the last seen
theory alone is not sufficient to complete the entire chain of
circumstance to reach the finding of guilt. It was laid down
at para No.25 that even in the absence of corpus delicti it is
possible to establish in appropriate case about commission
of murder.; and
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vii) Manharan Rajware vs. State of Chhattisgarh Criminal
Appeal No(s). 818/2019 of Hon’ble Supreme Court of India
(Coram 3) wherein it was laid down at para No.7 that for
invoking Section 106 of Evidence act the prosecution ought
to have discharged the burden on it by adducing cogent
evidence to prove the presence of accused at the spot at the
relevant time. In that case as per the prosecution the
deceased had already died at 5:00 PM and the prosecution
witness has deposed that the accused came back home at
7:00 PM. The last seen theory was not proved.
6.2. It is the case of the prosecution that around 9:00
PM the brother of the deceased namely Sh. Sushil Nigam/
PW-1 was returning from market towards his floor. In the way
he had knocked the door of the house of the deceased Geeta
Nigam at 2nd floor. The door was opened by accused No.1 Shiv
Swaroop and after having some talk with accused No.1, PW-1
had returned back to his house at 3rd floor.
6.3. It is submitted by learned Counsel for the accused
that PW-1 in his complaint Ex.PW2/A does not mention that he
had seen accused No.1 and 2 at the spot nor does he mention
about robbery. PW-1 in his examination in chief dated
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01.05.2013 has deposed that he had knocked on the door on
08.09.2012 at about 9:00 PM when accused No.1 had opened
the door which means the door was closed from the inside. It is
deposed by PW-3 at page No.5 of cross examination that he
used to go inside the house of deceased to give her milk as the
deceased hardly used to climb stairs who was suffering from
diabetes. It is submitted that in cross examination of PW-3
dated 11.09.2013 at page 5 it is deposed that PW-3 used to give
milk to the deceased and she used to go inside the house to give
the milk. The deceased used to go to buy vegetable and PW-3
used to help the deceased to take the vegetable to her floor. It is
submitted that when PW-3 must have went to give milk to the
deceased on 09.09.2012 then possibly the deceased was alive at
that time. It is submitted by learned Counsel for the accused that
there was large gap at the time when the murder was committed
which could be on 9th or 10th of September 2012 as per
deposition of PW-18 Dr. K. Goel as recorded in post-mortem
report. It is submitted that there is interval of about 2 to 2 -½
days. Post-mortem was conducted on 11.09.2012 at about 12:15
AM whereas accused No.1 was allegedly seen at the house of
the deceased at 2nd floor by PW-1 on 08.09.2012 at about 9:00
PM. The death had occurred on 10.09.2012 at 12:45 PM. It is
argued that there is gap of about 39-40 hours from the time
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when the accused No.1 was last seen at the house of the
deceased by PW-1. It is submitted that the dead-body was found
on 10.09.2012 at about 11:15 AM which is after about 36 hours.
It is further argued that the complainant /PW-2 Sh. Satish is not
staying at the place where the murder was committed and his
evidence is only hearsay. PW-1 is staying at the 3 rd floor. At 1st
floor the parents of accused No.2 were staying namely Sh. Ram
Kumar Nigam who had expired in the year 2003 and wife of Sh.
Ram Kumar Nigam is namely Ms. Madhuri who had died in the
year 2011. Ms. Madhuri had two daughters namely Neetu
Nigam and Sakashi/accused No.2. at the time of death of Ms.
Madhuri, Neetu Nigam was married who was staying at Tri
Nagar Delhi. The above fact has come in the deposition of
PW-3 in her cross examination dated 11.09.2013 at page No.4.
6.3.1. It is noted that there is absence of proper
investigation by the police in this case whether the PW-3 has
delivered milk to the deceased on 09.09.2012 or had such milk
been consumed and how much. PW-3 is unmarried as per her
deposition at page 3 dated 11.09.2013. It is deposed by PW-3 in
cross examination dated 02.09.2014 at page 1 that since she was
residing on the 4th floor and her sister the deceased was residing
on 2nd floor then she has to necessarily pass from the front of
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house of her sister whenever she used to go downstairs and so is
his brother Sushil Nigam. It is deposed in cross examination
dated 11.09.2013 at page 3 that she used to take her younger
brother Sushil Nigam alongwith her whenever she used to go to
market to buy milk, bread, butter and vegetables in the morning.
It is also deposed by PW-3 at page 1 of cross examination dated
02.09.2014 that she used to meet daily with the deceased. She
was aware that her deceased sister Geeta used to keep keys of
the almirah beneath the mattress of the bed and this fact was
also known to PW-1 Sh. Sushil Nigam. It is deposed at page 2
of cross examination dated 02.09.2014 by PW-3 that whenever
she used to meet the deceased then her brother Sushil / PW-1
also used to join the house of deceased Ms. Geeta. Hence it has
come in evidence that PW-3 and PW-1 used to meet every day
with the deceased Ms. Geeta at 2 nd floor and that PW-3 used to
deliver milk everyday in the morning to deceased Ms. Geeta.
6.4. It is submitted by learned Counsel for the accused
that Ms. Sadhna who is one of the granddaughter of Sh. Jagdish
and who was sister of the deceased and therefore Bua of
accused No.2 had started the phone call and at whose instance
the search for the deceased was started as the deceased was not
picking the phone of Ms. Sadhna. It is submitted that Ms.
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Sadhna was not made a witness by the prosecution in the case.
6.5. It is deposed by PW-3 that in her examination in
chief dated 11.09.2013 that accused No.1 and 2 visited her in
the morning on 08.09.2012 at about 9:30 AM. They had taken
breakfast and lunch with her where deceased Ms. Geeta was
also present. The accused persons had stayed at the house of her
deceased sister. Her brother Sushil Nigam/PW-1 had also
reached there and accused No.1 had shook hands with him and
PW-1 went upstairs on his floor. Accused persons had left the
house of PW-3 at 4:30 PM. It means that from 9:30 AM to 4:30
PM the accused person had stayed with PW-3 only.
6.6. PW-3 has deposed that the both accused No.1 and
2 had hot arguments with her sister / the deceased as they were
saying against her brother/PW-1. The only brother present at the
spot was PW-1 Sh. Sushil Nigam. PW-3 has not named
specifically the name of the brother against whom the accused
persons were speaking. PW-3 has deposed that accused No.2
had told PW-3 at that time that she will take revenge from her
Bua /the deceased. It is deposed by PW-3 at page No.3 of cross
examination dated 11.09.2013 that she used to go with her
brother PW-1 two time once at 8:00 AM and at another time in
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the evening at 6:00 PM to buy milk, bread, butter and
vegetables. Hence it has come on record that whenever PW-1
and PW-3 used to go to purchase food articles then they also
used to go to the house of the deceased. The dead-body was
recovered on 10.09.2012. Hence after 9:00 PM on 08.09.2012
both PW-1 and PW-3 must have visited the house of the
deceased at least 3 times. Two times on 09.09.2012 once in the
morning and once in the evening. One more time they must
have visited the deceased on 10.09.2012 in the morning. It is
strange that PW-1 and PW-3 both are silent about meeting their
deceased sister Ms. Geeta at second floor at 3 times though they
used to meet her everyday. There was no reasons with them not
to meet the deceased 3 times continuously for 2 days. Hence the
conduct of PW-1 and PW-3 has become suspicious and
doubtful.
6.7. One more point to be seen in the case is that PW-3
has deposed that deceased Geeta had heated arguments with
accused No.2 when accused No.2 was speaking against Sh.
Sushil Nigam / PW-1 (since only Sh. Sushil Nigam was sitting
at that time at the house of PW-3). Strangely the nature of
heated arguments are not disclosed by PW-3 in her examination
in chief. Nor it is disclosed what exactly were the words spoken
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by accused No.2 and deceased Ms. Geeta. In the statement
Ex.PW3/DA dated 10.09.2012 under Section 161 Cr. P. C. it is
not stated anywhere by PW-3 that the deceased and accused
No.2 has heated arguments or that accused No.2 had told PW-3
that she will take revenge from the deceased her Bua. The non-
disclosure of the above most material fact by PW-3 creates
serious doubt in the deposition of PW-3 as PW-3 has materially
made improvement in her deposition against accused No.1 and
2. Nor it is disclosed in the statement that from 9:30 AM till
4:30 PM PW-1, PW-3 and both the accused were together at the
4th floor.
6.8. The statement of PW-1 under Section 161 Cr. P. C.
at page No.189 of case file Ex.PW1/DA does not mention that
he alongwith PW-3 with both the accused person had met at
house of PW-3 at 4th floor. He is staying at 3rd floor. Neither
PW-1 has stated in his statement under Section 161 Cr. P.C. that
accused No.1 had met him at house of PW-3. The above facts
show that material facts are also omitted by PW-1 in his
deposition and his testimony has to be read with caution and it
cannot be relied upon. PW-3 has deposed incorrectly that her
statement was recorded by police on 08.09.2012 at 4-5 AM.
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6.9. Much substance is found in submission of learned
Counsel for the accused that the prosecution witness has
animosity with accused No.1 and 2 as accused No.1 pertains to
lower in caste hierarchy and accused No.2 had love marriage
with accused No.1 against the wishes of the family. This is
substantiated in the evidence of PW-3 during cross examination
at page 4 dated 11.09.2013 that accused No.2 had hurt their
feelings by getting married with the boy of lower caste. In the
history of their family no one had married to a lower caste as is
accused No.1. Their family member had tried to explain to
accused No.2 that she is giving bad name to the family and
despite against all the opposition accused No.2 had married
with accused No.1. Similarly PW-2 at page No.3 of his cross
examination dated 09.10.2014 has deposed that he is in
possession of keys of 1st floor house which used to be of parents
of accused No.2. He is also in possession of keys of house of
deceased. It is deposed that he came to know about the marriage
of accused No.1 and 2 when sister of PW-2 / mother of accused
No.2 had died. It is deposed that the accused No.2 had married
in the family of “Badmaash”. He was not happy with the
marriage as it was a “Galat kaam”. He had tried to persuade
accused No.2 many times to leave accused No.1 and he will get
all help for accused No.2 to get remarried. PW-2 has deposed
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that nobody from his family accepted the alliance of accused
No.1 and 2 and all of them were annoyed with them. The
information about the visit of accused No.1 and 2 at the house
of deceased is only through Ms. Madhur Nigam /PW-3 and Sh.
Sushil Nigam/PW-1 and this is deposed by PW-2 at page No.5
of his above cross examination. Hence the evidence of PW-2 is
only hearsay from the mouth of PW-1 or PW-3 or Ms. Sadhna
Nigam who had made the first telephonic call to PW-2 that the
deceased was not picking her phone. PW-2 did not open or
check the articles kept in almirah of PW-1, PW-3 and the
deceased which shows that any information of PW-2 in respect
of theft of articles and presence of accused No.1 and 2 at the
spot is only a hearsay evidence which cannot be relied upon.
However PW-2 has sufficient evidence on record to prove that
there was animosity between the entire family of the deceased
and of accused No.1 and 2 for the reason that they had married
against the wishes of the family of accused No.2.
6.10. The evidence of PW-17 could not be completed
since after part cross examination he had expired and it is
recorded in order dated 08.07.2019. Hence complete evidence
of PW-17 has not appeared on record and he could not be cross-
examined by the accused persons. Accused person could not get
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complete opportunity to cross examination PW-17 Sh. Ranjeet
Nigam and therefore evidence of Sh. Ranjeet Nigam could not
be read against the accused person. However PW-17 has
deposed as incorrect that in his presence mobile phone was
recovered from accused No.2 Sakshi at the time of her arrest.
He had also given specimen of handwriting to police which had
to be compared with his alleged writing on the currency note
given by him to his deceased sister and the word “Geeta” was
written on those currency notes.
6.11. Ex.PW23/B is the site plan of the house at 2 nd
floor. The body of the deceased was lying at point Mark-A and
blood from the head of the deceased on the left side of the head
at point Mark-B. In front of the dead-body is the main gate of
the house which is Mark-D and this gate was found half open.
Near the gate cooler was also placed outside the door. The
report of Mobile Crime Team is Ex.PW10/A and Ex.P-1 to
Ex.P-12 are the photographs of the scene of the crime. The
seizure memo of the viscera and other article is Ex.PW16/A.
The blood was seized from the spot which has spilled on earth
vide seizure memo Ex.PW2/B with pullanda bearing Sr.
No.A(1), A(2) and A(3). Seizure memo of hair dryer found at
the spot is Ex.PW2/C.
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6.12. PW-1 has deposed that he performed Puja only at
temple in Chandni Chowk Delhi where he goes in the morning
at 6:00 AM and goes again back everyday in the evening at 5:00
PM. He performs Puja for about ½ hour. PW-1 confronted with
his cross examination dated 09.02.2015 that it is not recorded in
his statement under Section 161 Cr. P. C. Ex.PW1/DA that he
had told police that the deceased Geeta was murdered on
08.09.2012. It is deposed further by PW-1 that he came to know
about the murder of his sister Geeta on 10.09.2012. PW-1 in
cross examination dated 30.03.2015 has deposed that he might
be 38 years old. He does not remember that in which temple he
had visited on 08.09.2012 when he had left his house at 5:00
PM. He did not meet the deceased Geeta on 07.09.2012. Lastly
he met the deceased Geeta in the month of July, 2012 and he
did not meet her till her death. The above deposition of PW-1 is
contrary to the deposition of PW-3 Ms. Madhu Nigam. Wherein
PW-3 has deposed at page No.3 of cross examination dated
02.09.2014 that her brother/PW-1 Sushil Nigam came there at
4th floor when PW-3 was sitting with accused No.1 and 2 on
08.09.2012. PW-3 was confronted with her statement under
Section 161 Cr. P. C. Ex.PW3/DA where she has not stated that
her brother Sh. Sushil Nigam/PW-1 came there at her house at
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4th floor where accused No.1 had shook hands with PW-1 and
then he/PW-1 went upstairs (page No.3 of cross examination
dated 02.09.2014). Another fact to be noted is that PW-1 cannot
go upstairs to go to his house as he was staying at 3rd floor and
from 4th floor he had to go downstairs only. Hence the
deposition of PW-3 is contradiction of PW-1. It is deposed by
PW-3 at page 2 of her cross examination dated 02.09.2014 that
her brother /PW-1 used to join her at the house of the deceased
whenever PW-3 used to meet the deceased and it is also
deposed by PW-3 that she used to meet everyday with the
deceased while going to deliver the milk and vegetables
whereas PW-1 has deposed that he did not meet his deceased
sister after July, 2012. Further, it is deposed by PW-3 at page 2
of cross examination dated 02.09.2014 that her brother Sushil /
PW-1 was treated for mental ailments at AIIMS Hospital in
respect of which a certificate was also issued to PW-1 for such
mental ailment. PW-3 has also admitted that she was also
getting treatment at the Hospital due to her weak memory.
6.13. It is noted that PW-1 has to explain that why at
9:00 PM on 08.09.2012 he went to house of his sister Ms. Geeta
Nigam when he was not meeting his deceased sister since July,
2012. If he had went to the house of deceased at 9:00 PM on
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08.09.2012 to meet his sister/ the deceased Ms. Geeta then why
he had returned back to his house at 3rd floor without meeting
his deceased sister Ms. Geeta.
6.14. One of the ground taken by the learned Counsel for
the accused in discarding the evidence of PW-1 Sh. Sushil
Nigam that he is not mentally fit. It is deposed by PW-1 in cross
examination dated 30.03.2015 at 1st page that when he was aged
about 2-3 years old then he was admitted for treatment at
AIIMS. He does not remember his date of birth. His present age
was 38 years. He does not remember in which temple he visited
on 08.09.2012 when he left his house at 5:00 PM. He used to
reside at 3rd floor. He did not see accused No.1 and 2 visiting
the house of Ms. Geeta on 08.09.2012. It is deposed at last
page of cross examination dated 30.03.2015 that police had
obtained his signatures on several papers during investigation
and he does not know the contents of those documents as he is
illiterate. He does not remember to what ailments he was
suffering for which he was getting treatment at AIIMS. Nor
does he remember what for he is treated at AIIMS. In cross
examination dated 02.09.2014 it is recorded that the witness
was put many questions which he was not able to answer due to
some throat problem. The present Court had also observed that
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PW-1 was not able to understand some of the questions on
account of which the cross examination was deferred. In cross
examination dated 01.05.2013 at page 2 it is deposed that PW-1
performed puja at a temple in Chandni Chowk. It is deposed by
PW-3 at page 5 of cross examination dated 11.09.2013 that her
younger brother Sushil/PW-1 hardly used to go to floor of the
deceased Ms. Geeta. To the contrary PW-3 has deposed at page
1 of cross examination dated 02.09.2014 that she used to meet
the deceased daily and it is deposed further to the contrary at
page 2 of the same cross examination that her brother
Sushil/PW-1 also used to join them at the house of the deceased
Ms. Geeta whenever she used to visit the deceased. It is
deposed by PW-3 in cross examination dated 02.09.2014 at
page 2 that her brother Sushil /PW-1 was treated for his mental
ailment at AIIMS in respect of which certificate was also issued
for his such mental ailment. From the above deposition of PW-1
and PW-3 it is seen that the deposition of PW-1 is inconsistent
with the case of the prosecution about their daily visits to the
house of the deceased whereas PW-3 has deposed that they used
to meet the deceased daily. PW-1 does not even remember the
name and place of the temple at which he used to regularly go
twice a day once at 6:00 AM and another at 5:00 PM. The
memory of PW-1 is very frail. There is no explanation on
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record why he was visiting the house of the deceased at 9:00
PM on 08.09.2012 and whether that purpose was completed for
which he had visited the house of the deceased at such time. As
per PW-1 he has not met his deceased sister after July, 2012
which is contradictory to the deposition of PW-3 that PW-1 had
met the deceased in the afternoon of 08.09.2012 at the house of
PW-3 in presence of both the accused. Keeping in view the
above facts and circumstance of the case the testimony of PW-1
that he had last seen both the accused at the house of the
deceased at about 9:00 PM – 9:30 PM is doubtful. Benefit of
which must go to the accused. It is deposed by PW-1 that fact of
regular visit by accused No.1 and 2 to the deceased was told to
him by his sister /PW-3 many days prior to the death of Ms.
Geeta but he does not remember the exact month but it was year
2012. To the contrary PW-3 has deposed that PW-1 alongwith
her used to meet the deceased everyday. PW-1 even does not
remember for what ailment he was being treated in AIIMS and
in which temple he is visiting everyday since last many years
though he is living a life of Sanyasi, as per the case of the
prosecution. Hence the testimony of PW-1 as a witness of last
seen theory is highly doubtful and cannot be relied upon.
6.15. Learned Counsel for the accused No.1 and 2 has
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submitted that the deposition of PW-1 as witness of last seen
evidence cannot be relied upon. At page No.4 of cross
examination dated 30.03.2015 of PW-1 it is deposed by PW-1
that he does not remember as to what ailment he was suffering
and for what he was getting treatment at AIIMS. He does not
know whether he was treated at AIIMS Hospital for his mental
ailment or not. At page 1 of cross examination dated
02.09.2014 the observation of the Court while recording of
evidence of PW-1 and it was noted that PW-1 was not able to
understand some of the questions on the ground of which the
further cross examination of PW-1 was deferred. In cross
examination dated 09.02.2015 PW-1 has deposed as correct that
in his previous statement he had stated before the Court that Ms.
Madhuri, mother of accused No.2 Sakshi was not his relative
though in the same deposition it is deposed by PW-1 that the
husband of Ms. Madhuri namely Sh. Ram Kumar Nigam was
real brother of PW-1. He had told in his previous deposition
that his deceased sister was murdered on 08.09.2012 to which
he was confronted with his statement under Section 161 Cr.P.C.
Ex.PW1/DA where it is not recorded. He has again deposed
that he came to know about the murder of the deceased Ms.
Geeta on 10.09.2012. Though the mother of accused No.2 is
sister in law of PW-1 and still PW-1 is deposing that she was
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not relative of PW-1. In cross examination dated 30.03.2015
PW-1 has deposed at page No.1 that he does not remember that
in which temple he had visited on 08.09.2015 when he had left
his house at 5:00 PM. Though he has claimed that at 9:00 PM
on the same day he had met the husband of accused
No.2/accused No.1 at the house of the deceased. Further to the
contrary he has deposed that he met his sister Ms. Geeta the
deceased in the month of July, 2012 and after that he did not
meet her till her death. The above deposition is contrary to the
deposition of PW-3 that on 08.09.2012 PW-1 had visited at 4 th
floor at the house of PW-3 where not only accused No.1 and 2
were present but also deceased Ms. Geeta was also present.
Hence inconsistent statements are made by PW-1 which was
not only contradicted by his own statement but they are also
contradicted with the deposition of PW-3. There was no reason
for PW-1 to visit house of the deceased at 9:00 PM on
08.09.2012 and the purpose was not disclosed either by PW-1
or by PW-3. Had there been such purpose then it also not
proved on evidence whether that purpose was fulfilled. The
PW-1 had returned merely after shaking hands with accused
No.1 on 08.09.2012 at 9:00 PM at the house of the deceased
which is denied by the accused. It is the case of the prosecution
that accused No.2 had met PW-1 on 08.09.2012 at 9:00 PM at
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the house of the deceased. Due to above inconsistent and
contradictory statements made by PW-1 the last seen theory
produced by the prosecution through PW-1 is highly doubtful
benefit of which goes to both the accused and it cannot be said
conclusively that the PW-1 had seen accused No.1 at 9:00 PM
on 08.09.2012 at the house of the deceased. Accordingly it is
held that prosecution has failed to prove the last seen evidence
against accused No.1 and 2.
7. Recovery of Spice Mobile Phone from the possession of
accused No.2 Sakshi and location of both the accused and
the deceased at Khari Baoli on 08.09.2012.
7.1. One golden chain with locket and Rs.5000/- were
identified by Sh. Ranjeet /brother of deceased Geeta which were
recovered from accused No.1. However no TIP of such articles
was done.
7.2. The call details and location of place of accused
No.2 Sakshi pertaining to mobile No.9650622503 pertaining to
the date 08.09.2012 was collected. The location of accused
No.2 Sakshi was found of Khari Baoli and the location of the
deceased Ms. Geeta Nigam pertaining to mobile
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No.9971617101 was also found of same area Khari Baoli.
7.3. The accused No.1 and 2 were arrested on
12.09.2012.
7.4. The accused Shiv Swaroop and Sakshi both are
residents of B Block, Kamal Vihar, Kamaal Pur, Burari, Delhi.
The mobile No. of accused No.2 is 9650622503 and mobile No.
of the deceased is 9971617101. The mobile No.9868950352 of
MTNL was subscribed by one Sh. Kundan Swaroop with
driving licence as ID proof. The mobile No. of PW-3 Ms.
Madhu Nigam is 9953493424 of Vodafone Mobile Services
Ltd. It is noted that during evidence led by PW-9 and PW-10
the CAF and CDR are exhibited and the evidence of location
was not specifically pointed out by the witness to claim that the
location of both the accused No.1 and 2 was at Khari Baoli.
Location chart is not proved specifically by prosecution on
record. In the absence of which it cannot be said that both the
accused were present at the relevant time at Khari Baoli.
Ex.PW13/B (Mobile No.9650622503), Ex.PW13/D (Mobile
No. 9971617101), Ex.PW13/E is certificate under Section 65B
of the above exhibits, Ex.PW10/C (Mobile No. 9868950352).
The latitude and longitude chart of mobile phone of Sh. Kundan
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Swaroop is Ex.PW10/D which is called as Cell ID Chart.
However the Cell ID Chart of other mobile phone are not
proved on record in latitude and longitude and therefore it
cannot be said that both the accused No.1 and 2 were present
near the deceased. The time is also not mentioned in
Ex.PW10/D to ascertain that at what time the accused No.1
was present at Khari Baoli on 08.09.2012. Hence the above
evidence brought by the prosecution does not show that both the
accused were present on 08.09.2012 with the deceased.
However PW-3 has proved on record that on 08.09.2012 both
the accused had visited the deceased and till 4:30 PM both the
accused No.1 and 2 were sitting at 4 th floor with PW-3 and
nothing inconsistent was found in such deposition of PW-3 and
her deposition was found unimpeached in this regard. However
whether it can be said that the presence of both the accused with
the deceased was exclusive and near to the time of death of the
deceased. The deceased living at 2nd floor was found dead on
10.09.2012 after 11:15 AM by PW-3. PW-3 has not deposed
that at what time she had seen the deceased dead. PW-3 had
went to see the deceased on phone call from Ms. Sadhna
Nigam. The deceased was not picking up the phone of Ms.
Sadhna Nigam. Ms. Sadhna Nigam is not made a witness in the
case and therefore it is not proved by prosecution on record that
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at the instance of Ms. Sadhna Nigam the PW-3 Ms. Madhu
Nigam went to see the deceased. As per deposition of PW-1 he
had seen only accused No.1 at 9:00 PM on 08.09.2012 in the
house of the deceased and he had shook hands with accused
No.1. PW-1 did not meet accused No.2 at the house of
deceased on 08.09.2012 and therefore there is absence of last
seen evidence of accused No.2 at the house of deceased at 9:00
PM on 08.09.2012. The complaint was lodged by the police at
the instance of PW-2 vide Ex.PW2/A who had made a call to
PCR at 100 number. Though the deceased was first seen by
PW-3. As per PW-2 he had received call from Ms. Sadhna
Nigam on 10.09.2012 around 11 to 11:15 AM that the deceased
was not picking calls of Ms. Sadhna Nigam. PW-2 made a
phone call to PW-3 and thereafter PW-3 has informed PW-2
that the deceased was lying unconscious between two beds and
blood was oozing out of her head. It took 30-40 minutes to
PW-2 to reach at the spot where the deceased was lying and
after that call to police was made though phone was also
available with PW-3. It is also not recorded in statement given
to police by PW-3 that accused No.1 and 2 had visited PW-3 at
9:30 AM and in this regard PW-3 was confronted with
Ex.PW3/DA. Similarly PW-3 was confronted that it is not
recorded in her statement that both accused No.1 and 2 had
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taken breakfast and lunch with her. Similarly PW-3 was
confronted that it is not recorded in her statement that the
accused person had hot argument with the deceased as they
were saying against PW-1. Similarly it is not recorded in the
statement that accused No.2 had stated to PW-3 that
she/accused No.2 will take revenge from the deceased. It is
also not recorded in her statement that PW-1 came and shook
hands with accused No.1 at 9:00 PM on 08.09.2012 and then
went upstairs. It is also not recorded in her statement that PW-3
had went down and she had seen the deceased lying dead on the
floor. PW-1 had not seen visiting accused No.1 and 2 to the
house of deceased prior to 08.09.2012 and this fact was told to
him by PW-3 only.
7.5. Hence the prosecution has alleged that accused
No.1 only was present at 9:00 PM on 08.09.2012 whereas
prosecution has failed to prove the location of accused No.1 and
2 near the deceased on 08.09.2012. Keeping in view of fact that
the Khari Baoli is a large area and without specifically pointing
out the location of accused No.1 and 2 and the deceased it
cannot be said that at what point they were together on
08.09.2012 and that too in the presence of no other person.
Hence the prosecution has failed on this account.
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8. Disclosure statement made by accused No.1 Shiv
Swaroop and recovery under Section 27 of Indian
Evidence Act, 1872.
8.1. As per the case of the prosecution accused No.1
has disclosed that one year back he had married with accused
No.2 Sakshi. Deceased was paternal aunt / Bua of accused No.2
and they used to frequently visit the deceased. About 15 days
back the deceased had told accused No.1 that she want to
purchase a flat. This fact was told by accused No.1 to accused
No.2 and had further told that the deceased has good amount of
money with her alongwith jewellery. They had difficulty
earning while working as driver of D-Van and asked accused
No.2 to get the money from the deceased Geeta. The mother of
accused No.1 namely Ms. Premwati had advised both accused
No.1 and 2 to kill Ms. Geeta to get the money and this advice
was accepted by accused No.1 and 2. On 08.09.2012 around
10:00 AM they had reached at the house of deceased and
around 9:30 PM in the night when getting a chance accused
No.1 had hold the deceased down on the ground and tried to
strangulate her with both his hands. In the meanwhile accused
No.2 Sakshi came and grabbed the feet of the deceased. He had
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also picked the gold, silver jewellery and Rs.10,000/-. Accused
No.2 had picked the mobile of the deceased. After reaching
their home at Burari accused No.1 had kept one golden chain
having locket, Rs.5000/-, some silver coins and accused No.2
had kept some looted articles. The remaining articles were
handed over by them to their mother Ms. Premwati and with
those articles Ms. Premwati went to the house of some relative.
As per case of the prosecution on 13.09.2012 accused No.1
Shiv Swaroop got recovered from bathroom of his house one
gold chain with locket weighing 31.95 grams, 5 currency notes
of Rs.1000/-, and 1 note was bearing No.9FG514353 on which
letter “Geeta” was written in Hindi language which was
identified by Sh. Ranjeet Nigam brother of the deceased telling
that every month he used to give a sum of Rs.10,000/- to
deceased Geeta for her personal expense and he used to write
word “Geeta” on the currency note. The said currency note was
also sent to FSL for matching specimen handwriting which was
returned with objection by the FSL.
8.2. It is noted that PW-3 has deposed in cross
examination dated 02.09.2014 at 1st page that keys of the
almirah were kept by the deceased under her mattress and this
fact was also known to Sh. Sushil Nigam. It means that the
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almirah of the deceased was kept locked. If the articles were
locked in the almirah then either this almirah must have been
opened or the lock must have been broken. Therefore it is
incumbent on the prosecution to prove that how the almirah was
opened and whether any chance print were found on the keys of
the almirah. There is absence of such evidence on record.
8.3. The relevant law in respect of disclosure and
recovery thereto in reference to Section 27 of Evidence Act was
laid down by Hon’ble Supreme Court of India in case titled
Raja Khan vs. State of Chattisgarh (07.02.2025 – SC) :
MANU/SC/0157/2025=Neutral Citation: 2025 INSC 167 was
discussed at relevant para No.17 to 30 which are reproduced
hereinasunder:
Raja Khan vs. State of Chattisgarh (07.02.2025 – SC) :
MANU/SC/0157/2025=Neutral Citation: 2025 INSC 167
17. To prove the charges, the prosecution has laid emphasis on
recovery of weapon of assault (stone as well as the gandasa) and
gold chains belonging to the deceased, on the basis of statement
(Ex. P-23) given by the Appellant-Accused while in custody.
18. Sections 25 and 26 of the Evidence Act stipulate that
confession made to a police officer is not admissible. However,
Section 27 is an exception to Sections 25 and 26 and serves as a
proviso to both these Sections [Delhi Administration v. Bal
Krishan and Ors., MANU/SC/0093/1971 : (1972) 4 SCC 659].
19. This Court is of the view that Section 27 lifts the ban, though
partially, to the admissibility of confessions. The removal of the
ban is not of such an extent so as to absolutely undo the object of
Section 26. As such the statement whether confessional or not is
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allowed to be given in evidence but that portion only which
distinctly relates to discovery of the fact is admissible. A discovery
of a fact includes the object found, the place from which it is
produced and the knowledge of the Appellant-Accused as to its
existence (Udai Bhan v. State of Uttar Pradesh
MANU/SC/0144/1962 : 1962:INSC:30 : AIR 1962 SC 1116).
20. The essential ingredients of Section 27 of the Evidence Act are
three-fold:
i. The information given by the Accused must led to the discovery
of the fact which is the direct outcome of such information.
ii. Only such portion of the information given as is distinctly
connected with the said recovery is admissible against the
Accused.
iii. The discovery of the facts must relate to the commission of
such offence.
21. The question as to whether evidence relating to recovery is
sufficient to fasten guilt on the Accused was considered by this
Court in Bodhraj Alias Bodha and Ors. v. State of Jammu &
Kashmir, MANU/SC/1463/2002 : (2002) 8 SCC 45, wherein it has
been held as under:
18… Section 27 of the Indian Evidence Act, 1872 (in short
“Evidence Act“) is by way of proviso to Sections 25 to 26 and a
statement even by way of confession made in police custody which
distinctly relates to the fact discovered is admissible in evidence
against the Accused. This position was succinctly dealt with by this
Court in Delhi Admn v. Balakrishan [ MANU/SC/0093/1971 :
(1972) 4 SCC 659] and Mohd. Inayatullah v. State of Maharashtra
[ MANU/SC/0166/1975 : 1975:INSC:207 : (1976) 1 SCC 828].
The words “so much of such information” as relates distinctly to
the fact thereby discovered, are very important and the whole force
of the Section concentrates on them. 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. The ban
as imposed by the preceding Sections 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. If
all that is required to lift the ban be the inclusion in the confession
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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. The object of the provision i.e. Section 27 was
to provide for the admission of evidence which but for the
existence of the Section could not in consequence of the preceding
sections, be admitted in evidence. It would appear that Under
Section 27 as it stands in order to render the evidence leading to
discovery of any fact admissible, the information must come from
any Accused in custody of the police. The requirement of police
custody is productive of extremely anomalous results and may lead
to the exclusion of much valuable evidence in cases where a
person, who is subsequently taken in to custody and becomes an
Accused, after committing a crime meets a police officer or
voluntarily goes to him or to the police station and states the
circumstances of the crime which lead to the discovery of the dead
body, weapon or any other material fact, in consequence of the
information thus received from him. This information which is
otherwise admissible becomes inadmissible Under Section 27 if the
information did not come from a person in the custody of a police
officer or did come from a person not in the custody of a police
officer. The statement which is admissible Under Section 27 is the
one which is the information leading to discovery. Thus, what is
admissible being the information, the same has to be proved and
not the opinion formed on it by the police officer. In other words,
the exact information given by the Accused while in custody which
led to recovery of the articles has to be proved. It is, therefore,
necessary for the benefit of both the Accused and prosecution that
information given should be recorded and proved and if not so
recorded, the exact information must be adduced through evidence.
The basic idea embedded in Section 27 of the Evidence Act is the
doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered as a search
made on the strength of any information obtained from a prisoner,
such a discovery is a guarantee that the information supplied by the
prisoner is true. The information might be confessional or non-
inculpatory in nature but if it results in discovery of a fact, it
becomes a reliable information. It is now well settled that recovery
of an object is not discovery of fact envisaged in the section.
Decision of Privy Council in Palukuri Kotayya v. Emperor
[ MANU/PR/0049/1946 : AIR (1947) PC 67], is the most quoted
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authority of supporting the interpretation that the “fact discovered”
envisaged in the Section embraces the place from which the object
was produced, the knowledge of the Accused as to it, but the
information given must relate distinctly to that effect. [See State of
Maharashtra v. Dam Gopinath Shirde and Ors.,
MANU/SC/0299/2000 : 2000:INSC:273 : (2000) 6 SCC 269]. No
doubt, the information permitted to be admitted in evidence is
confined to that portion of the information which “distinctly relates
to the fact thereby discovered”. But the information to get
admissibility need not be so truncated as to make it insensible or
incomprehensible. The extent of information admitted should be
consistent with understandability. Mere statement that the Accused
led the police and the witnesses to the place where he had
concealed the articles is not indicative of the information given.
(emphasis supplied)
22. In the present case, the prosecution has produced Tirath Dhruv
(PW-22) and Bhuvan Dhimar (PW-26) as the panch witnesses to
prove the recovery pursuant to the disclosure made by the
Appellant-Accused. A bare perusal of the testimonies of the said
witnesses raises serious doubts regarding the version of the
prosecution with respect to the alleged disclosure made by the
Appellant-Accused herein and the recoveries pursuant to such
alleged disclosure.
23. Tirath Dhruv (PW-22) has deposed that when the Appellant-
Accused was questioned in his presence, the Appellant-Accused
stated that he could recover the stone, axe and the pipe. However,
during his cross-examination, Tirath Dhruv (PW-22) admits that he
along with another witness (not produced during trial) stayed in
police station for about 5 (five) minutes during which period, the
police made them sign many papers. The said witness further
admits that the Memorandum of Statement (Ex.P-23) of the
Appellant-Accused had been taken and he signed the same on the
instructions of the police, without reading or understanding the
contents of the said document. He admits that none of the seizure
memos were prepared or signed at the spot. He states that the same
were prepared and signed at the police station. Therefore, from the
testimony of Tirath Dhruv (PW-22), there is grave doubt as to
whether the Appellant-Accused had made any disclosure in front of
the said witness or that any alleged recovery had in fact beenPage 37 of 107
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witnessed by Tirath Dhruv (PW-22).
24. Ex. P-25, i.e., the seizure memo for the stone and gandasa
states that the said items were taken out at the behest of the
Appellant-Accused. Similarly, in Ex. P-29, it has been stated that
the chains were taken out by the Appellant-Accused. However,
Tirath Dhruv (PW-22) nowhere states that the Appellant-Accused
was present along with the said witness and the police during the
seizure proceedings (i.e. when Ex. P-25 to Ex. P-31 were
prepared). In fact, none of the seizure memos apart from Ex. P-29
and Ex. P-25 state that the recoveries therein were at the instance
of the Appellant-Accused or the acquitted co-Accused.
25. Further, a perusal of the disclosure statement made by the
Appellant-Accused indicates that the Appellant-Accused had
allegedly hidden the gold chains allegedly belonging to the
deceased by wrapping them in a red wrapper and then hiding them
at the terrace of his house behind a green-coloured container.
However, the seizure memo being Ex. P-29 states that the chains
were recovered from a green-coloured blanket on the roof of the
house. The said seizure memo further states that the police took
possession of the articles after they were taken out by the
Appellant-Accused in presence of the witnesses. On the other hand,
the IO-G.S. Singh (PW-25), states that at the time of seizure
proceedings of Ex. P-29, he himself had not gone to the roof and
the Appellant-Accused and the witness had gone to the roof.
Pertinently, Tirath Dhruv (PW-22) in his deposition, without
making any reference to the presence of the Appellant-Accused,
states that a policeman had climbed the roof of the house of the
Appellant-Accused from the outside and, thereafter, he along with
Bhupender Dhruv climbed on the said roof from which the
recovery of chains was made. Therefore, there are glaring
inconsistencies with respect to the manner in which gold chains
were recovered from the house of the Appellant-Accused and
further, the presence of the Appellant-Accused at the time of the
said recovery is itself doubtful.
26. Similarly, Bhuvan Dhimar (PW-26), i.e., the diver who
allegedly recovered the stone and the gandasa from the Kachna
pond, in his testimony admits that he recovered the said items upon
the instruction from the police and from the place told by the police
without making any reference to the presence of the Appellant-
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Accused or the fact that the said items were recovered upon being
pointed out by the Appellant-Accused. The fact that the items from
Kachna pond were seized upon the instructions from the police is
corroborated by the statement of Tirath Dhruv (PW-22), who
unequivocally states that it was the police who instructed the divers
to go into the pond and take out the items.
27. This Court, in Varun Chaudhary v. State of Rajasthan,
MANU/SC/0911/2010 : 2010:INSC:757 : (2011) 12 SCC 545 and
Mustkeem alias Sirajudeen v. State of Rajasthan,
MANU/SC/0795/2011 : 2011:INSC:487 : (2011) 11 SCC 724, has
held that if the recovery memos have been prepared in the police
station itself or signed by the panch witnesses in the police station,
the same would lose their sanctity and cannot be relied upon by the
Court to support the conviction.
28. There are also glaring inconsistencies in the TIP of the gold
chains rendering the proceedings unreliable and inadmissible, as
Anwar Hussain (PW- 20) (who identified the two gold chains) has
consistently denied that Purnima Yadav (PW-2) (wife of the
deceased) identified the two gold chains and that the said gold
chains belonged to the deceased. He further denied that six more
similar chains were placed alongside the said two gold chains. This
fact has been corroborated by the testimonies of Gopi Sahu (PW-6)
and Yugal Kishore Verma (PW-7), wherein they have stated that
only two gold chains were placed for identification.
29. Further, the testimonies of witnesses reveal that the two gold
chains do not bear any distinguishable mark or properties and no
identification mark or properties were disclosed by Purnima Yadav
(PW-2) prior to identification proceedings. Purnima Yadav (PW-2)
states in her testimony that the two gold chains were handed over
to her at the police station on 10th December, 2013 in exchange for
receipts/bills/invoices, a day prior to the conduct of the TIP of the
gold chains.
30. This Court is of the view that the Courts below were not
justified in disregarding the glaring inconsistencies with respect to
the recoveries made by the police pursuant to the alleged disclosure
made by the Appellant-Accused. Consequently, the manner of
recovery and preparation of seizure memos raises grave doubts
about the version of disclosure and recovery put forth by thePage 39 of 107
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prosecution.
8.4. It is noted that the disclosure statement
Ex.PW22/C records that accused No.1 can get recovered the
chain having locket made of gold with Rs.5000/- from his
house. It does not mention the place at which in the house the
above articles were kept. The pointing out memo Ex.PW22/B
pertains to accused No.1. However the pointing out memo does
not state about which place in the house from where the
recovery was effected from accused No.1. PW-22 Ct. Kishan
Kumar was witness to the pointing out memo Ex.PW22/B and
also to disclosure statement ExPW22/C. The alleged disclosure
statement was not recorded in the presence of Panch witness. In
the seizure memo of golden chain with locket and Rs.5000/-
Ex.PW22/E records that the accused No.1 from right side of
ground floor, in the bathroom on the left side wall of the
bathroom, from a hole had got recovered one gold chain having
a locket in which “ॐ” is written and from the same hole in the
bathroom wall the accused No.1 got recovered Rs.5000/- of
denomination of Rs.1000/- each. In the note bearing Sr.
No.9FG514353 at blank spot word “गीता” in Hindi language
was written. The weight of the gold chain with locket was found
39.950 grams. The seized articles were sealed with the seal ofPage 40 of 107
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OPL. The above fact was deposed by PW-22 who was witness
to the same. The other witness was Sh. Ranjeet Nigam/PW-17
who had expired during recording of evidence and therefore in
the absence of his complete cross examination his evidence
cannot be read. It is deposed by PW-17 that he accompanied the
police to the house of accused No.1 and 2 from where silver
coins and 10 currency notes of Rs.1000/- each were recovered.
When the police reached the house of accused No.1 then he
jumped from the house. The police official also jumped behind
accused No.1 and told PW-17 that the gold chain and pendant
was recovered from the possession of accused No.1. PW-17 has
turned hostile to the case of the prosecution. Hence during
deposition of PW-17 it is not proved that the gold chain with
locket and the 5 currency notes were recovered in the presence
of PW-17 from the hole in the wall in the bathroom. As per
deposition of PW-22 accused No.1 was arrested at the instance
of PW-17 from police booth Fatehpuri Chowk vide arrest memo
Ex.PW22/A whose disclosure statement is Ex.PW22/C. It is
noted that the disclosure statement is dated 12.09.2012 and the
seizure memo is dated 13.09.2012. The alleged recovery was
effected from the house of accused No.1 Gali No.17, B-Block,
Kamal Vihar, Kamaal Pur, Delhi. PW-22 has deposed that the
recovery was effected from the space in the wall/ Aalaa.
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PW-22 has deposed that 5 currency notes of Rs.1000/- each
were recovered whereas PW-17 has deposed that 10 currency
notes of Rs.1000/- each were recovered. The golden chain with
locket is Ex.PW22A and currency notes are Ex.P-22B (colly.).
PW-22 in cross examination dated 18.04.2018 cannot tell at
page 2 that whether police official deputed at police booth
Fatehpuri Chowk were present there when they had reached
there which creates doubt in the case of the prosecution about
the arrest of accused No.1 from such booth. There was no
reason with accused No.1 to remain present at such police booth
which is not in ordinary course of nature. Police booth
Fatehpuri Chowk is situated in crowded area and when the
disclosure was recorded at police booth as per deposition of
PW-2 then there was no difficulty with investigating agency to
join public witness/ Panch witness which was not joined despite
it was a crowded area. PW-22 does not remember if IO had
asked public person to join the investigation. He cannot tell the
exact period they remained at police booth whether it was 5
minutes, 1 hour, 4 hours or 10 hours. This creates doubt in the
case of the prosecution not only regarding arrest of accused but
if any such disclosure and consequent recovery was made from
accused No.1. PW-22 cannot tell whether they had gone to the
house of the accused in a private or personal car or that howPage 42 of 107
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much time was taken in reaching the house of accused. He
cannot tell the number of storeys of the house of the accused.
He cannot tell the number of the rooms of the house of accused
or whether the house was locked or not at that time. It is further
deposed in cross examination that he cannot tell whether the
gold chain having locket was recovered from the house of
accused No.1 was from bedroom or kitchen or toilet or living
area or any other room of the house. He cannot tell whether 5
currency notes of Rs.1000/- were recovered from bedroom or
kitchen or toilet or living area or any other room of the house.
No photography or videography was done. PW-23 the IO has
deposed that he had asked public person to join investigation
but everyone refused. However there was ample time with the
IO to join public witness when the accused was arrested on
12.09.2012 and when accused No.1 was taken at his house on
13.09.2012. The relevant citation titled Mustakeen @ Bhura vs.
State (Govt. of NCT Delhi) on 2nd November, 2020 in CRL. A.
419/2018 & CRL. M. (BAIL) 6459/2020 at para no. 56, 62, 63,
65, and 69 are reproduced hereinasunder:
56. It is a settled principle of law that the prosecution has to stand
on its own legs and cannot draw strength from the lacuna in the
defence case. The appellant may have taken a wrong defence, but it
was for the prosecution to prove its case. In “Sharad Birdhichand
Sarda Vs. State of Maharashtra”, Criminal Appeal No. 745 of 1983
decided on 17.07.1984 by the Supreme Court of India it has been
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held that the absence of explanation and /or post explanation, or a
false plea taken by an accused was not sufficient to convict the
accused. It was observed in this case that “it is well settled that the
prosecution must stand or fall on its own legs and it cannot derive
any strength from the weakness of the defence”. This is trite law
and no decision has taken a contrary view. What some cases have
held is only that:
“where various links in a chain are in themselves complete,
then a false plea for a false decence may be called for aid only
to lend assurance to the Court. In other words, before using the
additional link it must be proved that all the links in the chain
are complete and do not suffer from any infirmity. It is not the
law that where there is any infirmity or lacuna in the
prosecution case, the same could be cured or supplied by a
false defence or a plea which is not accepted by the Court.” In
the instant case, we have already held that PW 11 is not an eye
witness of this case. Considering PW 11 to be the eye witness
of this case, and throwing all settled principles of law relating
to TIP to winds, constable Kuldeep was joined in the raiding
party alongwith secret informer and other police officials for
apprehending the accused persons of the incident which took
place on 6.3.2011, but PW 11 has categorically stated to PW 44
SI Bhim Sain that appellant Arshad was not involved in the
crime which took place on 6.3.2011, but despite that his
disclosure statement was recorded and recovery of Rs. 40,000/-
was effected from him. No doubt, the appellant has not been
able to give proper explanation as to how he was in possession
of Rs. 40,000/-, but burden was upon the prosecution to prove
that the appellant was involved in the crime which took place
on 6.3.2011, which the prosecution has miserably failed to do,
as discussed hereinabove. Therefore, the Ld. Trial Court was
not correct in drawing presumption against the appellant
Arshad U/s 114 of the Indian Evidence Act and to convict him.
The only evidence which remains on record against appellant
Arshad is his disclosure statement which is not admissible in
evidence. Apart from this, there is not even an iota of evidence
against appellant Arshad to connect him with the crime which
took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which
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lays down that unless and until the testimony of the police official
is corroborated by some independant evidence, the same cannot
be believed. But it is a Rule of Prudence, that a more careful
scrutiny of the evidence of the police officials is required, since
they can be said to be interested in the result of the case projected
by them.
63. In the instant case, we have already observed hereinabove in
the judgment that PW 11 Ct. Kuldeep who has been projected as
an eye witness by the IO of this case, is not an eye witness and has
been planted in order to “solve” the case. Therefore, we have find
it hard to believe the testimonies of the police officials in the
absence of corroboration from any public witness, looking into the
facts and circumstances of this case and also the manner in which
the IO and the SHO have conducted themselves. For the sake of
repetition, the IO had made no efforts to join the public witnesses.
Had he made any such efforts, then the things would have been
different, but in the instant case, the manner in which the
investigation has been done and the non joining of any public
witnesses reduces the arrest and search of the appellant
untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly
killed a man and is the BC of the area would be carrying with him
all the articles mentioned hereinabove with him, that too after 11
days of the incident. In our opinion, 11 days were sufficient for
the appellant Mustakeem to get rid of these articles but, strangely
enough, as per the prosecution, he was roaming around with all
this stuff of the deceased attached to his chest. It is also a matter
of common sense that whenever an offence is committed in the
jurisdiction of a police station, as a matter of routine, the
concerned SHO places suspicion on the local goons and specially
BC of the area. So, when such is the situation, we fail to digest the
theory of the prosecution that on the day of his arrest-which is
after 11 days of the date of the incident, appellant Mustakeem
would be carrying with him the articles of the deceased. There
would have been record of the accused maintained in the Police
Station and the same could be used to identify him and establish
his involvement. Where was the necessity of involving a secret
informer?
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69. In order to connect the appellant Mustakeem with the offence,
again the Ld. Trial Court has raised presumption U/s 114 (a) of the
Indian Evidence Act. The presumption U/s 114 (a) of the Indian
Evidence Act may be available if the goods in question found in
possession of the person in question after the theft, are proved to
be stolen property. Unless the goods are proved to be stolen
property, the presumption U/s 114 (a) of the Act is not available.
In the instant case, the prosecution has not been able to prove that
it was the appellant who had committed the offence on the date of
the incident as alleged by the prosecution. It was also not justified
on the part of the Ld. Trial Court to draw presumption U/s 114 (a)
of the Evidence Act as the possession, if any, cannot be said to be
recent possession. Therefore, if the prosecution has not been able
to prove that the sum of Rs. 70,000/- which according to the
prosecution was allegedly recovered from the appellant
Mustakeem, was the looted amount, the appellant cannot be
convicted with the crime by raising presumption U/s 114 (a) of the
Indian Evidence Act.
8.5. As per deposition of PW-22 at page 3 of cross examination
dated 18.04.2018 the accused No.1 was taken for search at his
house on 13.09.2012 and same is the deposition of IO.
Therefore sufficient time was available with the police to joint
Panch witness and which is not joined and therefore it creates
doubt in the case of the prosecution. The relevant citation titled
Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022
SCC OnLine SC 1396 (Coram:3) which has laid down at
relevant para No.51 to 76 the relevant law in this regard is
reproduced hereinasunder:
51. It is the case of the prosecution that on 24.01.2010 the accused
appellant was picked up by the investigating officer from nearby aPage 46 of 107
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bus stand and was arrested in connection with the alleged crime.
After the arrest of the accused appellant and while he being in the
custody at the police station, he is said to have on his own free
will and volition made a statement that he would like to point out
the place where he had hidden the weapon of offence (Banka) and
his bloodstained clothes after the commission of the alleged
crime. According to him, after such statement was made by the
accused appellant, he along with his subordinates set forth for the
place as led by the accused. There is something very unusual, that
we have noticed in the oral evidence of the investigating officer.
According to him while the police party along with the accused
were on their way, all of a sudden, the investigating officer
realized that he should have two independant witnesses with him
for the purpose of drawing the panchnama of discovery. In such
circumstances, while on the way the investigating officer picked
up PW2, Chhatarpal Raidas and Pratap to act as the panch
witnesses. According to the investigating officer the accused led
them to a coriander field and from a bush he took out the weapon
of offence (Banka) and the bloodstained clothes. The weapon of
offence and the bloodstained clothes were collected in the
presence of the two panch witnesses and the panchnama Exh. 5
was accordingly drawn. The weapon of offence and the blood
stained clothes thereafter were sent for the Serological Test to the
Forensic Science laboratory. We are of the view that the Courts
below committed a serious error in relying upon this piece of
evidence of discovery of a fact, i.e., the weapon & clothes at the
instance of the accused as one of the incriminating circumstances
in the chain of other circumstances. We shall explain here below
why we are saying so.
In the aforesaid
52. Section 27 of the Evidence Act, 1872 reads thus:
“27. How much of information received from accused may be
proved.–Provided that, when any fact is deposed to as discovered
in consequence of information received from a 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.”
53. If, it is say of the investigating officer that the accused
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appellant while in custody on his own free will and volition made
a statement that he would lead to the place where he had hidden
the weapon of offence along with his blood stained clothes then
the first thing that the investigating officer should have done was
to call for two independant witnesses at the police station itself.
Once the two independant witnesses arrive at the police station
thereafter in their presence the accused should be asked to make
an appropriate statement as he may desire in regard to pointing out
the place where he is said to have hidden the weapon of offence.
When the accused while in custody makes such statement before
the two independant witnesses (panch witnesses) the exact
statement or rather the exact words uttered by the accused should
be incorporated in the first part of the panchnama that the
investigating officer may draw in accordance with law. This first
part of the panchnama for the purpose of Section 27 of the
Evidence Act is always drawn at the police station in the presence
of the independant witnesses so as to lend credence that a
particular statement was made by the accused expressing his
willingness on his own free will and volition to point out the place
where the weapon of offence or any other article used in the
commission of the offence had been hidden. Once the first part of
the panchnama is completed thereafter the police party along with
the accused and the two independant witnesses (panch witnesses)
would proceed to the particular place as may be led by the
accused. If from that particular place anything like the weapon of
offence or blood stained clothes or any other article is discovered
then that part of the entire process would form the second part of
the panchnama. This is how the law expects the investigating
officer to draw the discovery panchnama as contemplated
under Section 27 of the Evidence Act. If we read the entire oral
evidence of the investigating officer then it is clear that the same
is deficient in all the aforesaid relevant aspects of the matter.
54. The reason why we are not ready or rather reluctant to accept
the evidence of discovery is that the investigating officer in his
oral evidence has not said about the exact words uttered by the
accused at the police station. The second reason to discard the
evidence of discovery is that the investigating officer has failed to
prove the contents of the discovery panchnama. The third reason
to discard the evidence is that even if the entire oral evidence of
the investigating officer is accepted as it is, what is lacking is the
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authorship of concealment. The fourth reason to discard the
evidence of the discovery is that although one of the panch
witnesses PW2, Chhatarpal Raidas was examined by the
prosecution in the course of the trial, yet has not said a word that
he had also acted as a panch witness for the purpose of discovery
of the weapon of offence and the blood stained clothes. The
second panch witness namely Pratap though available was not
examined by the prosecution for some reason. Therefore, we are
now left with the evidence of the investigating officer so far as the
discovery of the weapon of offence and the blood stained clothes
as one of the incriminating pieces of circumstances is concerned.
We are conscious of the position of law that even if the
independant witnesses to the discovery panchnama are not
examined or if no witness was present at the time of discovery or
if no person had agreed to affix his signature on the document, it
is difficult to lay down, as a proposition of law, that the document
so prepared by the police officer must be treated as tainted and the
discovery evidence unreliable. In such circumstances, the Court
has to consider the evidence of the investigating officer who
deposed to the fact of discovery based on the statement elicited
from the accused on its own worth.
55. Applying the aforesaid principle of law, we find the evidence
of the investigating officer not only unreliable but we can go to
the extent to saying that the same does not constitute legal
evidence.
56. The requirement of law that needs to be fulfilled before
accepting the evidence of discovery is that by proving the contents
of the panchnama. The investigating officer in his deposition is
obliged in law to prove the contents of the panchnama and it is
only if the investigating officer has successfully proved the
contents of the discovery panchnama in accordance with law,
then in that case the prosecution may be justified in relying upon
such evidence and the trial court may also accept the evidence. In
the present case, what we have noticed from the oral evidence of
the investigating officer, PW7, Yogendra Singh is that he has not
proved the contents of the discovery panchnama and all that he
has deposed is that as the accused expressed his willingness to
point out the weapon of offence the same was discovered under a
panchnama. We have minutely gone through this part of the
evidence of the investigating officer and are convinced that by no
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stretch of imagination it could be said that the investigating officer
has proved the contents of the discovery panchnama (Exh.5).
There is a reason why we are laying emphasis on proving the
contents of the panchnama at the end of the investigating officer,
more particularly when the independant panch witnesses though
examined yet have not said a word about such discovery or turned
hostile and have not supported the prosecution. In order to enable
the Court to safely rely upon the evidence of the investigating
officer, it is necessary that the exact words attributed to an
accused, as statement made by him, be brought on record and, for
this purpose the investigating officer is obliged to depose in his
evidence the exact statement and not by merely saying that a
discovery panchnama of weapon of offence was drawn as the
accused was willing to take it out from a particular place.
57. Let us see what has been exactly stated in the discovery
panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant
portion as under:
“Today on 24.1.2010, the arrested accused Ramanand alias
Nandlal Bharti son of Late Shri Gobre, resident of Naamdar
Purwa, Hamlet Amethi, original resident of village Basadhiya,
Police Station Isanagar, District Lakhimpur Kheri has been taken
out of the lockup, taken in confidence and then interrogated by
me the Station House Officer Yogendra Singh before Hamrah
S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374
Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar
Singh, Co. 394 Shrawan Kumar then he confessed the offence
occurred in the incident and weepingly said in apologizing manner
that, “I myself have committed this crime to get government grant
for being a rich man and to marry Km. Manju D/o Kanhai,
resident of Pakadiya, Police Station Tambaur, District Sitapur
regarding whereof the detailed statement has been recorded by
you. The baanka used in the incident and the pant shirt, on which
blood spilled from the bodies of deceased persons got stained and
which had been put off by me due to fear, have been kept hidden
at a secret place by me which I can get recovered by going there.”
In expectation of recovery of murder weapon and bloodstained
clothes, I the Station House Officer Yogendra Singh alongwith
aforesaid Hamrahis departed carrying accused Ramanand alias
Nandlal Bharti by official jeep UP70AG0326 alongwith driver
Raj Kishor Dixit for the destination pointed out by the accused,
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vide Rapat No. 7 time 07.15…” [Emphasis supplied]
58. We shall now look into the oral evidence of the PW7,
Investigating Officer wherein, in his examination in chief, he has
deposed as under:
“In January 2010 I was posted as Station House Officer, Kotwali
Dhaurahara. On 22.1.10, I myself had taken the investigation of
aforesaid case. On that day I had copied chik, rapat and recorded
the statements of chik writer H. Constable Dhaniram Verma and
complainant of the case. After recording the statement of
complainant of the case Shambhu Raidas I inspected the
occurrence spot on his pointing out and prepared the site plan
which is present on record; on which Exhibit Ka6 has been
marked. And I had also recorded the statement of hearsay
witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I
recorded the statements of witnesses Kshatrapal, Rustam Raidas.
On 24.1.10, I arrested accused Ramanand and recorded his
statement and when he expressed that he may get recovered the
murder weapon used in the incident, I recovered the murder
weapon baanka before the witnesses on his pointing out; which
had been sealed stamped at the spot and its recovery memo had
been prepared at the spot itself, which is present on record as
Exhibit Ka5….” [Emphasis supplied]
59. We shall also look into the oral evidence of the PW6, Uma
Shankar Mishra who at the relevant point of time was serving as a
SubInspector Chowki Incharge Bahjam, Police Station. It appears
that the PW6 had also participated in the proceedings of discovery
panchnama. He has deposed in his examination in chief as under:
“On 24.11.2010, I was posted at Police Station Dhaurahara. That
day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station
Dhaurahara, domicile of village Basadhiya, Police Station Isha
Ganj, District Kheri, the arrested accused of Crime No. 49/10 U/S
302 State versus Ramanand alias Nandlal Bharti, was taken out of
male lock up by the then Incharge Inspector and followers S.I.
Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh
Kumar Singh and Co. Shravan Kumar, and interrogated by the
Incharge Inspector in my presence, during which he confessed and
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at a secret place. On this, expecting the recovery of murder
weapon and blood stained clothes, the SHO along with followers
and force, carrying accused Ramanand with him, departed on an
official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On
the way, he picked up public witnesses Chhatrapal S/o
Rameshwar and Pratap S/o Asharfi Lal, both residents of
Naamdar Purwa, Hamlet Amethi for the purpose of recovery.”
[Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original
panchnama (Exh.5), the statement said to have been made by the
accused appellant figures, however, in the oral evidence of the
PW7, investigating officer & PW6, Sub Inspector the exact
statement has not been deposed, more particularly when it comes
to the authorship of concealment. The contents of the panchnama
cannot be read into evidence as those do not constitute substantive
evidence.
61. Further, the examination in chief of the PW6, Sub Inspector
and PW7, investigating officer does not indicate that they were
read over the panchnama (Exh.5) before it was exhibited, since
one of the panch witnesses was not examined and the second
panch witness though examined yet has not said a word about the
proceedings of the discovery panchnama. Everything thereafter
fell upon the oral evidence of the investigating officer and the
Sub Inspector (PW6).
62. In the aforesaid context, we may refer to and rely upon the
decision of this Court in the case of Murli v. State of
Rajasthan reported in (2009) 9 SCC 417, held as under:
“34. The contents of the panchnama are not the substantive
evidence. The law is settled on that issue. What is substantive
evidence is what has been stated by the panchas or the person
concerned in the witness box…….” [Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard
to the authorship of concealment by the person who is said to have
discovered the weapon.
64. The conditions necessary for the applicability of Section 27 of
the Act are broadly as under:
(1) Discovery of fact in consequence of an information received
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from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave
information; and
(4) So much of information as relates distinctly to the fact thereby
discovered is admissible – Mohmed Inayatullah v. The State of
Maharashtra: AIR (1976) SC 483
65. Two conditions for application –
(1) information must be such as has caused discovery of the fact;
and
(2) information must relate distinctly to the fact discovered –
Earabhadrappa v. State of Karnataka: AIR (1983) SC 446″
66. We may refer to and rely upon a Constitution Bench decision
of this Court in the case of State of Uttar Pradesh v. Deoman
Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph-
71 explains the position of law as regards the Section 27 of the
Evidence Act:
“71. The law has thus made a classification of accused persons
into two: (1) those who have the danger brought home to them by
detention on a charge; and (2) those who are yet free. In the
former category are also those persons who surrender to the
custody by words or action. The protection given to these two
classes is different. In the case of persons belonging to the first
category the law has ruled that their statements are not admissible,
and in the case of the second category, only that portion, of the
statement is admissible as is guaranteed by the discovery of a
relevant fact unknown before the statement to the investigating
authority. That statement may even be confessional in nature, as
when the person in custody says: “I pushed him down such and
such mineshaft”, and the body of the victim is found as a result,
and it can be proved that his death was due to injuries received by
a fall down the mineshaft.” [Emphasis supplied]
67. The scope and ambit of Section 27 of the Evidence Act were
illuminatingly stated in Pulukuri Kottaya and Others v. Emperor,
AIR 1947 PC 67, which have become locus classicus, in the
following words:
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“10. ….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 informant.”
68. What emerges from the evidence in the form of panchnama is
that the appellant stated before the panch witnesses to the effect
that “I will show you the weapon used in the commission of
offence”. This is the exact statement which we could read from
the discovery panchnama and the Investigating Officer also could
not have deposed as regards the exact statement other than what
has been recorded in the panchnama. This statement does not
suggest that the appellant indicated anything about his
involvement in concealment of the weapon. Mere discovery
cannot be interpreted as sufficient to infer authorship of
concealment by the person who discovered the weapon. He could
have derived knowledge of the existence of that weapon at the
place through some other source. He may have even seen
somebody concealing the weapon, and, therefore, it cannot be
presumed or inferred that because a person discovered weapon, he
was the person who concealed it, least it can be presumed that he
used it. Therefore, even if discovery by the appellant is accepted,
what emerges from the panchnama of the discovery of weapon
and the evidence in this regard is that he disclosed that he would
show the weapon used in the commission of offence. In the same
manner we have also perused the panchnama Exh.32 wherein the
statement said to have been made by the accused before the
panchas in exact words is “the accused resident of Roghada
village on his own free will informs to take out cash and other
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valuables”.
69. What emerges from the evidence of the investigating officer is
that the accused appellant stated before him while he was in
custody, “I may get discovered the murder weapon used in the
incident”. This statement does not indicate or suggest that the
accused appellant indicated anything about his involvement in the
concealment of the weapon. It is a vague statement. Mere
discovery cannot be interpreted as sufficient to infer authorship of
concealment by the person who discovered the weapon. He could
have derived knowledge of the existence of that weapon at the
place through some other source also. He might have even seen
somebody concealing the weapon, and, therefore, it cannot be
presumed or inferred that because a person discovered the
weapon, he was the person who had concealed it, least it can be
presumed that he used it. Therefore, even if discovery by the
appellant is accepted, what emerges from the substantive evidence
as regards the discovery of weapon is that the appellant disclosed
that he would show the weapon used in the commission of
offence.
70. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911,
this Court observed that the evidence of discovery of pistol at the
instance of the appellant cannot, by itself, prove that he who
pointed out the weapon wielded it in the offence. The statement
accompanying the discovery was found to be vague to identify the
authorship of concealment and it was held that pointing out of the
weapon may, at the best, prove the appellant’s knowledge as to
where the weapon was kept.
71. Thus, in the absence of exact words, attributed to an accused
person, as statement made by him being deposed by the
investigating officer in his evidence, and also without proving the
contents of the panchnama (Exh.5), the trial court as well as the
High Court was not justified in placing reliance upon the
circumstance of discovery of weapon.
72. If it is the case of the prosecution that the PW2, Chhatarpal
Raidas, s/o Rameshwar Raidas had acted as one of the panch
witnesses to the drawing of the discovery panchnama, then why
the PW2, Chhatarpal Raidas in his oral evidence has not said a
word about he having acted as a panch witness and the discovery
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of the weapon of the offence and blood stained clothes being
made in his presence. The fact that he is absolutely silent in his
oral evidence on the aforesaid itself casts a doubt on the very
credibility of the two police witnesses i.e. PW6 and PW7
respectively.
73. In the aforesaid context, we may also refer to a decision of this
Court in the case of Bodhraj alias Bodha and Others v. State of
Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
“18. …..It would appear that under Section 27 as it stands in
order to render the evidence leading to discovery of any fact
admissible, the information must come from any accused in
custody of the police. The requirement of police custody is
productive of extremely anomalous results and may lead to the
exclusion of much valuable evidence in cases where a person,
who is subsequently taken into custody and becomes an
accused, after committing a crime meets a police officer or
voluntarily goes to him or to the police station and states the
circumstances of the crime which lead to the discovery of the
dead body, weapon or any other material fact, in consequence of
the information thus received from him. This information which
is otherwise admissible becomes inadmissible under Section 27
if the information did not come from a person in the custody of
a police officer or did come from a person not in the custody of
a police officer. The statement which is admissible under
Section 27 is the one which is the information leading to
discovery. Thus, what is admissible being the information, the
same has to be proved and not the opinion formed on it by the
police officer. In other words, the exact information given by the
accused while in custody which led to recovery of the articles
has to be proved. It is, therefore, necessary for the benefit of
both the accused and the prosecution that information given
should be recorded and proved and if not so recorded, the exact
information must be adduced through evidence. The basic idea
embedded in Section 27 of the Evidence Act is the doctrine of
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the principle that if any fact is discovered as a search made on
the strength of any information obtained from a prisoner, such a
discovery is a guarantee that the information supplied by the
prisoner is true. The information might be confessional or non-
inculpatory in nature but if it results in discovery of a fact, it
becomes a reliable information. It is now well settled that
recovery of an object is not discovery of fact envisaged in the
section. Decision of the Privy Council in Pulukuri Kottaya v.
Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the
most quoted authority for supporting the interpretation that the
“fact discovered” envisaged in the section embraces the place
from which the object was produced, the knowledge of the
accused as to it, but the information given must relate distinctly
to that effect. (See State of Maharashtra v. Damu Gopinath
Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ
2301] .) No doubt, the information permitted to be admitted in
evidence is confined to that portion of the information which
“distinctly relates to the fact thereby discovered”. But the
information to get admissibility need not be so truncated as to
make it insensible or incomprehensible. The extent of
information admitted should be consistent with
understandability. Mere statement that the accused led the police
and the witnesses to the place where he had concealed the
articles is not indicative of the information given.” [Emphasis
supplied]
74. Mr. Upadhyay, the learned counsel for the State would submit
that even while discarding the evidence in the form of discovery
panchnama the conduct of the appellant herein would be relevant
under Section 8 of the Evidence Act. The evidence of discovery
would be admissible as conduct under Section 8 of the Evidence
Act quite apart from the admissibility of the disclosure statement
under Section 27 of the said Act, as this Court observed in A.N.
Venkatesh vs. State of Karnataka, (2005) 7 SCC 714:
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“9. By virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. The evidence of
the circumstance, simpliciter, that the accused pointed out to the
police officer, the place where the dead body of the kidnapped
boy was found and on their pointing out the body was exhumed,
would be admissible as conduct under Section 8 irrespective of
the fact whether the statement made by the accused
contemporaneously with or antecedent to such conduct falls
within the purview of Section 27 or not as held by this Court in
Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979
SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the
disclosure statement made by the accused appellants (Exts. P15
and P16) is not admissible under Section 27 of the Evidence
Act, still it is relevant under Section 8…..” [Emphasis supplied]
75. In the aforesaid context, we would like to sound a note of
caution. Although the conduct of an accused may be a relevant fact
under Section 8 of the Evidence Act, yet the same, by itself, cannot
be a ground to convict him or hold him guilty and that too, for a
serious offence like murder. Like any other piece of evidence, the
conduct of an accused is also one of the circumstances which the
court may take into consideration along with the other evidence on
record, direct or indirect. What we are trying to convey is that the
conduct of the accused alone, though may be relevant under
Section 8 of the Evidence Act, cannot form the basis of conviction.
76. Thus, in view of the aforesaid discussion, we have reached to
the conclusion that the evidence of discovery of the weapon and
the blood stained clothes at the instance of the accused appellant
can hardly be treated as legal evidence, more particularly,
considering the various legal infirmities in the same.
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8.6. It is noted that TIP was essentially required to be
conducted in respect of gold chain recovered and Panch witness
has to be independant witness and not PW-17 if he had given
gold chain to the deceased. In fact PW-17 has not deposed that
gold chain with locket was missing nor PW-17 has stated that
the gold chain with locket was recovered in his presence. Even
examination in chief of PW-17 was not completed. PW-22 who
is witness to recovery of gold chain with locket vide seizure
memo Ex.PW22/E has deposed in cross examination dated
18.04.2018 at page 4 that he cannot tell whether the gold chain
having locket was recovered from the house of the accused or it
was recovered from the bedroom or kitchen or toilet or living
area or any other room of the house of the accused. He also
cannot tell whether 5 currency notes of Rs.5000/-with
denomination was recovered from bedroom or kitchen or toilet
or living area or any other room of the house of the accused.
Hence the only witness examined by the prosecution as to the
recovery of gold chain with locket and Rs.5000/- could not
sustain the theory of prosecution of such recovery from accused
No.1.
8.7. Similarly PW-23 in cross examination dated
09.07.2019 at page 3 has deposed that he does not remember
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whether he had made any inquiry regarding ownership of said
house visited by him. It is noted that in the absence of proof of
ownership of the house the recovery cannot be fastened with the
accused and it has to be shown that if the owner has given
access to the accused to the alleged place of recovery. No
independent witness was joined at the time of recovery nor any
photography or videography was done. PW-23 has not stated
that any TIP of gold chain with locket was done at all if it had
belonged to the deceased. PW-17 had claimed the theft of the
gold chain with pendant in his statement under Section 161 Cr.
P. C. However no TIP of this gold chain with pendant is proved
on record or that whether it was the same gold chain with
pendant which belonged to the deceased. PW-17 is the only
witness who had claimed regarding the theft of gold chain with
locket which therefore cannot be fastened on the accused both
on the aspect of recovery and also that whether it belonged to
deceased at all. In such view of the matter the prosecution has
failed to prove the recovery from accused No.1 which is gold
chain with pendant.
8.8. Another item recovered from accused No.1 is
Rs.5000/- which are 5 currency notes and on one of which word
“गीता” was written. PW-17 has deposed that he had
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accompanied the police to the house of accused No.1 and 2
from where 10 currency notes in the denomination of Rs.1000/-
each were recovered. Accused No.1 jumped down from his
house to escape the police. Police person had jumped behind
him and after catching accused No.1 gold chain and pendant
was recovered from his possession. However PW-17 has denied
in his cross examination the arrest of accused No.1 and 2 near
the police booth on 12.09.2012. He had denied the recovery of
mobile phone from accused No.2 in his presence. It is deposed
that PW-17 had written word “गीता” on one of the currency
notes and he has also possession of some of the currency notes
from the bundle from which he had given Rs.10,000/- to his
deceased sister Geeta. However no such evidence of such
matching serial number of currency notes are produced by
PW-17 on record to identify that the alleged recovered currency
notes were the same currency notes given by PW-17 to his
deceased sister Ms. Geeta. Sh. Devak Ram Retired Asst.
Director (Documents) from FSL has deposed that on
06.12.2012 he had received sealed pullanda containing 5
currency notes and one chain. On one currency note word
“गीता” was written in Hindi. The said property was returned
with the seal of FSL with the remark that only one currency
note bearing writing of Geeta may be sent to FSL and IO had to
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bring document personally. The said document was returned
vide letter Ex.PW5/A dated 06.12.2012. Hence the prosecution
has failed to prove that the word ” गीता” written on one currency
out of 5 currency notes was so written by PW-17 Sh. Ranjeet
Nigam/ brother of the deceased. There is no evidence that the
recovered currency note of Rs.1000/- belong to the deceased or
that they were given by PW-17 to his deceased sister Ms. Geeta.
In such view of the matter it is held that the prosecution has
failed to prove the recovery of articles from accused No.1 if
they had belonged to the deceased or that such recovery was at
all made from accused No.1. The prosecution had failed to
prove the ownership of such recovered articles pertain to the
deceased.
9. Disclosure statement made by accused No.2 Sakshi and
recovery under Section 27 of Indian Evidence Act, 1872.
9.1. It was disclosed by accused No.2 that out of
robbed jewellery she had sold one silver glass and one silver
Chutki to one jeweller Sh. Raju Malik at Burari for a sum of
Rs.2500/- and it was recovered from the jeweller Raju Malik /
accused No.3 on 13.09.2012 at the instance of accused No.2
Sakshi. As per the case of the prosecution on 13.09.2012
accused No.2 Sakshi got recovered from her residence 14 silver
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coins.
9.2. The disclosure statement of accused No.2 Sakshi is
Ex.PW23/B. It is disclosed that one silver glass, one silver
chutki and ring was sold by accused No.2 to accused No.3 for a
sum of Rs.2500/-. Accused no.3 in his disclosure statement
Ex.PW12/A has disclosed that he had purchased silver articles
from accused No.2 which he had bent and broken and he can
get recovered the said articles. Vide seizure memo Ex.PW12/D
one bent and broken silver glass, 8 chutki, one ring on which
word OM was written with other broken articles made of silver
were seized from accused No.3. The witness to this seizure is
Ct. Jitender/PW-12/HC Jitender. It is deposed by PW-12 that on
weighing these articles they were found of 83.65 grams. It is
deposed by PW-12 in cross examination dated 08.07.2019 at
page 1 that he had left the shop of jeweller/ accused No.3 in the
morning. He does not remember whether they had gone to the
shop of jeweller in private vehicle or a government vehicle. The
distance between the said shop from PS Lahori Gate was about
10-15 KM. He does not remember how much time it had taken
to reach the jewellery shop of accused No.3. The said shop is
situated in crowded area which had both shops and residential
houses. PW-12 cannot tell the size of said shop nor he is aware
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about the ownership of said shop. He has deposed that no public
person was asked to join the investigation of the present case
during such recovery from jewellery shop. The disclosure,
personal search and arrest of accused was made by the IO while
sitting inside the shop. It is deposed that PW-23 the IO / Inspt.
O P Lekhwal who had prepared the disclosure statement of
accused No.1, 2 and 3 that accused No.1 and 2 had pointed out
the place of commission of offence vide memo Ex.PW23/E and
accused No.1 had led to his house for recovery of incriminating
articles. During investigation accused No.2 had led for recovery
of incriminating articles. The disclosure statement was not
recorded at the PS but as per deposition of PW-12 the
disclosure statement was recorded at the shop of accused No.3.
No Panch Witness was joined while recording the disclosure
statement, as per deposition of PW-12. To the contrary PW-23
in cross examination dated 09.07.2019 at page 2 has deposed
that he had asked public person to join investigation but
everybody refused. He did not serve any notice on public
person to join the investigation. No independant witness was
joined at the time of recovery. He does not remember if he had
made any inquiry regarding the ownership of the house from
which alleged recovery was made from accused No.1 and 2 nor
he had asked the ownership documents of jewellery shop from
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accused No.3. PW-23 cannot tell the number of the jewellery
shop from where he made the recovery of silver articles. Hence
the above infirmities show that it was incumbent on the
prosecution to join public witness in the case. Public witnesses
were available who were not joined and therefore it creates
doubt in the case of the prosecution. The relevant citation in this
regard is Ramanand @ Nand Lal Bharti vs. State of Uttar
Pradesh 2022 SCC OnLine SC 1396 (Coram:3) (supra).
9.3. No panch witness was joined though investigation
agency had sufficient time to join the panch witness. There is
doubt about the place and manner in which the disclosure
statement was recorded. Accused No.3 was arrested vide memo
Ex.PW11/A and the arrest was made at police booth Fatehpuri
Lahori Gate. Similar is the arrest of accused No.1 vide memo
Ex.PW22/A. The arrest was made on 12.02.2012 whereas the
recovery of articles was made on 13.09.2012. The disclosure of
accused No.1 and 2 was recorded on 12.09.2012 and therefore
the police had ample time to join panch witness. As per the
disclosure statement of accused No.2 she had sold such
jewellery articles to accused No.3 however the prosecution has
failed to prove that the ownership of such silver articles belong
to the deceased. Even the value of such silver article is not
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proved on record. It is also not proved on record that silver
articles of such value could not be possessed by accused No.1
and 2 or that they were beyond the means of accused No.1 and
2. Hence the the ownership of such silver articles with the
deceased are not proved. Even if at one instance it is believed
that these articles were sold by accused No.2 to accused No.3
then also it does not bring to any consequence in view of break
in chain of the circumstances as to the ownership of such
articles. Even otherwise the disclosure and recovery of such
articles is doubtful in view of the citation Shiv Kumar vs The
State Of Madhya Pradesh CRIMINAL APPEAL NO._1503 OF
2022 (Arising out of SLP (Crl.) No. 9141 OF 2019) decided on
07.09.2022 by the Hon’ble Supreme Court of India reproduced
hereinasunder:
Shiv Kumar vs. The State of Madhya Pradesh (07.09.2022 – SC) :
MANU/SC/1114/2022= Neutral Citation: 2022 INSC 933
10.1. On the other hand, Mr. Gopal Jha, the learned Counsel
appearing for the Respondent-State supported the view taken by
the Courts below. According to him, there are adequate material
and evidence on record which establishes the guilt of the Accused,
beyond reasonable doubt. The State Counsel has further placed
reliance on Sambhu Das alias Bijoy Das and Anr. v. State of
Assam MANU/SC/0705/2010 : (2010) 10 SCC 374 for sustaining
the impugned conviction where Justice H.L. Dattu for invoking
Article 136 power, opined the following:
16. This Court, in exercise of its powers Under Article 136 of the
Constitution, will not reopen the findings of the High Court when
there are concurrent findings of facts and there is no question of
law involved and the conclusion is not perverse. Article 136 of thePage 66 of 107
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Constitution, does not confer a right of appeal on a party. It only
confers a discretionary power on the Supreme Court to be
exercised sparingly to interfere in suitable cases where grave
miscarriage of justice has resulted from illegality or
misapprehension or mistake in reading evidence or from ignoring,
excluding or illegally admitting material evidence.
10.2. It is pointed out by the State’s counsel that the Appellant was
in possession of the property from 10.02.2003 till those were
recovered on 27.06.2003, on the basis of the disclosure statement
of other Accused Raju alias Rajendra and Sadhu alias Vijaybhan
Singh. As the articles were being sold at cheaper rates would lead
to the logical inference that the ingredients Under Section 411 of
the Indian Penal Code are satisfied against the Appellant. In
support of his argument, Mr. Jha has placed reliance on Nagappa
Dondiba Kalal v. State of Karnataka 1980 (Supp) SCC 336, where
Justice S. Murtaza Fazal Ali observed as under:
3. …At the utmost as the ornaments have been proved to be stolen
property received by the Appellant knowing that they were stolen
property. The Accused can thus be convicted on the basis of
presumption Under Section 114 of the Evidence Act and Under
Section 411 of Indian Penal Code as a receiver of stolen property
knowing the same to be stolen.
Analysis & Findings
11. The law governing disclosure statement was discussed by this
Court in the case of Haricharan Kurmi and Anr. v. State of Bihar
MANU/SC/0059/1964 : AIR 1964 SC 1184. It was observed:
12. …….In dealing with a criminal case where the prosecution relies
upon the confession of one Accused person against another
Accused person, the proper approach to adopt is to consider the
other evidence against such an Accused person, and if the said
evidence appears to be satisfactory and the court is inclined to hold
that the said evidence may sustain the charge framed against the
said Accused person, the court turns to the confession with a view
to assure itself that the conclusion which it is inclined to draw from
the other evidence is right….
12. In this case, although recovery of items was made, the
prosecution must further establish the essential ingredient ofPage 67 of 107
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knowledge of the Appellant that such goods are stolen property.
Reliance solely upon the disclosure statement of Accused Raju
alias Rajendra and Sadhu alias Vijaybhan Singh will not otherwise
be clinching, for the conviction Under Section 411 of the Indian
Penal Code.
13. Section 411 Indian Penal Code:
411. Dishonestly receiving stolen property.-Whoever dishonestly
receives or retains any stolen property, knowing or having reason
to believe the same to be stolen property, shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
The penal Section extracted above can be broken down into four
segments namely: Whoever,
I. Dishonestly;
II. Receives or retains any stolen property;
III. Knowing; or
IV. Having reason to believe the same to be stolen property,
shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both.
14. “Dishonestly” is defined Under Section 24 of the Indian Penal
Code as, “Whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person, is
said to do that thing “dishonestly”. The key ingredient for a crime
is, of course, Mens Rea. This was nicely explained by Justice K.
Subba Rao in the case of Dr. Vimla v. Delhi Administration
MANU/SC/0163/1962 : AIR 1963 SC 1572 in the following
paragraphs:
9A. A Full Bench of the Madras High Court, in Kotamraju
Venkatraadu v. Emperor [(1905) ILR 28 Mad 90, 96, 97] had to
consider the case of a person obtaining admission to the
matriculation examination of the Madras University as a private
candidate producing to the Registrar a certificate purporting to
have been signed by the headmaster of a recognized High School
that he was of good character and had attained his 20th year. It was
found in that case that the candidate had fabricated the signature ofPage 68 of 107
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the headmaster. The court held that the Accused was guilty of
forgery. White, C.J., observed:
“Intending to defraud means, of course, something more than
deceiving.” He illustrated this by the following example:
A tells B a lie and B believes him. B is deceived but it does not
follow that A intended to defraud B. But, as it seems to me, if A
tells B a lie intending that B should do something which A
conceives to be to his own benefit or advantage, and which, if
done, would be to the loss or detriment of B, A intends to defraud
B.” The learned Chief Justice indicated his line of thought, which
has some bearing on the question now raised, by the following
observations:
I may observe, however, in this connection that by Section 24 of
the Code person does a thing dishonestly who does it with the
intention of causing wrongful gain or wrongful loss. It is not
necessary that there should be an intention to cause both. On the
analogy of this definition, it might be said that either an intention
to secure a benefit or advantage on the one hand, or to cause loss or
detriment on the other, by means of deceit is an intent to defraud.
But, he found in that case that both the elements were present.
Benson, J. pointed out at p. 114:
I am of opinion that the act was fraudulent not merely by reason of
the advantage which the Accused intended to secure for himself by
means of his deceit, but also by reason of the injury which must
necessarily result to the University, and through it to the public
from such acts if unrepressed. The University is injured, if through
the evasion of its bye-laws, it is induced to declare that certain
persons have fulfilled the conditions prescribed for Matriculation
and are entitled to the benefits of Matriculation, when in fact, they
have not fulfilled those conditions for the value of its examinations
is depreciated in the eyes of the public if it is found that the
certificate of the University that they have passed its examinations
is no longer a guarantee that they have in truth fulfilled the
conditions on which alone the University professes to certify them
as passed, and to admit them to the benefits of Matriculation.
Boddam, J., agreed with the learned Chief Justice and Benson, J.
This decision accepts the principle laid down by Stephen, namely,Page 69 of 107
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that the intention to defraud is made up of two elements, first an
intention to deceive and second the intention to expose some
person either to actual injury or risk of possible injury; but the
learned Judges were also inclined to hold on the analogy of the
definition of “dishonestly” in Section 24 of the Code that intention
to secure a benefit or advantage to the deceiver satisfies the second
condition.
15. To establish that a person is dealing with stolen property, the
“believe” factor of the person is of stellar import. For successful
prosecution, it is not enough to prove that the Accused was either
negligent or that he had a cause to think that the property was
stolen, or that he failed to make enough inquiries to comprehend
the nature of the goods procured by him. The initial possession of
the goods in question may not be illegal but retaining those with
the knowledge that it was stolen property, makes it culpable.
16. On the above aspect, Mr. Gopal Jha for the State refers
particularly to the seizure memo as also the evidence of PW-5,
PW-22, and PW-24 to contend that the evidence therefrom
establish that the Appellant was aware that he was dealing in stolen
goods. On this, crucially it can be noticed that in the FIR No.
407/2003 (25.6.2003), Rs. 12,50,000/- is shown as the total value
of the goods (utensils, clothes, hosiery goods and electrical goods)
loaded in the truck No. MP 09/D0559. However, in the seizure
memo (27.6.2003), only Rs. 20,000/- is shown as the value of the
articles (steel articles, torch, aluminium box) allegedly seized from
the Appellant’s possession. Considering the disparate and
incomparable figures, those values cannot be reasonably inter-
linked to support the guilt finding Under Section 411 of the Indian
Penal Code. Moreover, the Appellant in usual course, sold utensils
in his shop and nothing is unnatural about him possessing such
household articles, as seized from him.
17. The learned Counsel for the State next points out that the
Accused Shiv Kumar had a shop of steel utensils and some of the
articles stolen from the truck were sold in his shop. On this, the
testimony of Nitin Jain (PW-5) becomes relevant. PW-5, however,
stated that the utensils of a particular mark are not sold in the shop
of the Appellant. More importantly, he does not remember the
special marks of the utensils carried in the truck. According to
PW-5, he is unable to remember whether the details of the seized
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goods were noted in the Appellant’s house or was prepared
subsequently. His testimony also mentioned that he met S.I., G.P.
Tiwari (PW-24) at the shop of the other Accused Shatrughan
Prasad and only after Shatrughan Prasad was arrested, the police
effected the arrest of the present Appellant, Shiv Kumar. The
evidence of PW-5, by no stretch establishes that the Appellant Shiv
Kumar was conscious that the goods seized from his shop, were
stolen articles.
18. Furthermore, one Bharat Singh Thakur (PW-22) was the Sub-
Inspector at Police Station, Pannagarh who received information
about clothes and utensils being sold at low prices. This PW-22
while proving his signature on the seizure memo, had
acknowledged that the Accused Shiv Kumar had a utensil store and
most pertinently “because of hastiness”, seal has not been put on
the seizure memo (Ext. P-4). The testimony of PW-22 suggests that
a defective procedure was followed in preparing the seizure memo
and importantly, his testimony does not show that the Appellant
was aware that he received articles, which had any connection with
the stolen goods in the truck.
19. Likewise, G.P. Tiwari, the S.I. at Police Station Kotwali, Satna
in his testimony as PW-24 while acknowledging that he had not
conducted the seizure procedure for the articles seized from the
Appellant, Shiv Kumar, nowhere mentioned that the Appellant was
aware that the goods seized from him were stolen property.
20. The contradiction in the testimonies of Nitin Jain (PW-5), Sub-
Inspector Bharat Singh Thakur (PW-22), and Sub-Inspector G.P.
Tiwari (PW-24) are also quite glaring. For instance, the utensils as
per PW-5, were seized by Sub-Inspector G.P. Tiwari (PW-24) in
the presence of Nitin Jain (PW-5), however, the S.I.G.P. Tiwari
(PW-24) in his testimony has denied seizing any property, owing
to lacking Jurisdiction, stating “seizure must have been done by
Police Station, Panagarh” and not by the officer from the Police
Station Kotwali, Satna. Apart from the above, interestingly, the
support for the testimony of Sub-Inspector G.P. Tiwari (PW-24) is
provided by Sub-Inspector Bharat Singh Thakur (PW-22) of Police
Station, Panagarh to the effect that PW-24 was not present at Shiv
Kumar’s house during the seizure process. He has also denied that
PW-24 called Nitin Jain (PW-5) to the house of Shiv Kumar to
witness the seizure. Moreover, the seizure memo being written by
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Sub-Inspector G.P. Tiwari (PW-24) is also not supported by
PW-24. Noticing all these discrepancies, the seizure evidence is
found to be totally unreliable.
21. In Trimbak v. State of Madhya Pradesh
MANU/SC/0116/1953 : AIR 1954 SC 39, this Court discussed the
essential ingredients for conviction Under Section 411 of the
Indian Penal Code. Justice Mehr Chand Mahajan, in his erudite
opinion rightly observed that in order to bring home the guilt
Under Section 411 Indian Penal Code, the prosecution must prove,
(1) that the stolen property was in the possession of the Accused,
(2) that some person other than the Accused had possession of the
property before the Accused got possession of it, and
(3) that the Accused had knowledge that the property was stolen
property….
22. When we apply the legal proposition as propounded to the
present circumstances, the inevitable conclusion is that the
prosecution has failed to establish that the Appellant had the
knowledge that articles seized from his possession are stolen
goods. This essential element was not established against the
Appellant to bring home the charge Under Section 411 of the
Indian Penal Code against him.
23. That apart, the disclosure statement of one Accused cannot be
accepted as a proof of the Appellant having knowledge of utensils
being stolen goods. The prosecution has also failed to establish any
basis for the Appellant to believe that the utensils seized from him
were stolen articles. The factum of selling utensils at a lower price
cannot, by itself, lead to the conclusion that the Appellant was
aware of the theft of those articles. The essential ingredient of
mens Rea is clearly not established for the charge Under Section
411 of Indian Penal Code. The Prosecution’s evidence on this
aspect, as they would speak of the character Gratiano in Merchant
of Venice, can be appropriately described as, “you speak an infinite
deal of nothing.”1
24. In a case like this, where the fundamental evidence is not
available and the law leans in Appellant’s favour, notwithstanding
the concurrent finding, the Court has to exercise corrective
jurisdiction as the circumstances justify. As such, taking a cue from
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Haryana State Industrial Development Corporation v. Cork
Manufacturing Co. MANU/SC/7869/2007 : (2007) 8 SCC 120,
the exercise of extraordinary jurisdiction Under Article 136 is
found to be merited to do justice to the Appellant who was held to
be guilty, without the requisite evidence to establish his mens rea
in the crime.
9.4. Hence it is held that the prosecution has failed to
prove the recovery of silver articles from accused No.2 and 3 to
be read under Section 27 of Indian Evidence Act 1872.
10. Recovery of Nokia Black IMEI No.355724023104585
Mobile Phone from the possession of accused No.2
Sakshi.
10.1. The above phone was recovered without any SIM
card inside it and this phone belong to deceased Ms. Geeta
which was picked by accused No.2 from the spot.
10.2. The seizure memo of Nokia mobile phone is
Ex.PW11/C which was of black colour without SIM Card.
IMEI number is 35572902310548. Witness to recovery is
women Ct. Shashi and PW-17 Ranjeet Nigam. PW-17 Ranjeet
Nigam whose evidence cannot be read due to the fact that he
had expired even before completion of his examination in chief.
Even otherwise he had deposed that this mobile phone was not
recovered in his presence from accused No.2 and he has turned
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hostile to the case of the prosecution despite confronted by the
statement with portion B to B in his statement Ex.PW17/B. The
said confrontation has to be put to the IO/ PW-23 Inspt. O. P.
Lekhwal. Whereas prosecution has not put PW-23 with
Ex.PW17/B / statement under Section 161 Cr.P.C. and therefore
the prosecution has failed to prove that PW-17 has so witnessed
before the IO recovery of Nokia Mobile Phone. Hence the
deposition of PW-17 as to recovery stands against the
prosecution in evidence in view of citation referred below:
[2024] 6 S.C.R. 20 : 2024 INSC 376 Alauddin & Ors. v. The State
of Assam & Anr. (Criminal Appeal No. 1637 of 2021) 03 May
2024
CONTRADICTIONS AND OMMISSIONS
5. Before we deal with the merits, something must be stated about
how the trial court recorded the prosecution witnesses’ cross-
examination in this case, especially when they were confronted
with their prior statements. The Trial Court did not follow the
correct procedure while recording the contradictions.
6. Under Section 161 of the Code of Criminal Procedure, 1973 (for
short, ‘CrPC‘), the police have the power to record statements of
the witnesses during the investigation. Section 162 of CrPC deals
with the use of such statements in evidence. Section 162 reads
thus:
“162. Statements to police not to be signed: Use of statements in
evidence.–(1) No statement made by any person to a police
officer in the course of an investigation under this Chapter, shall, if
reduced to writing, be signed by the person making it; nor shall any
such statement or any record thereof, whether in a police diary or
otherwise, or any part of such statement or record, be used for any
purpose, save as hereinafter provided, at any inquiry or trial in
respect of any offence under investigation at the time when such
statement was made:
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Provided that when any witness is called for the prosecution in
such inquiry or trial whose statement has been reduced into writing
as aforesaid, any part of his statement, if duly proved, may be used
by the accused, and with the permission of the Court, by the
prosecution, to contradict such witness in the manner provided by
Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and
when any part of such statement is so used, any part thereof may
also be used in the re-examination of such witness, but for the
purpose only of explaining any matter referred to in his cross-
examination.
(2) Nothing in this section shall be deemed to apply to any
statement falling within the provisions of clause (1) of Section 32
of the Indian Evidence Act, 1872 (1 of 1872), or to affect the
provisions of Section 27 of that Act.
Explanation.–An omission to state a fact or circumstance in the
statement referred to in sub-section (1) may amount to
contradiction if the same appears to be significant and otherwise
relevant having regard to the context in which such omission
occurs and whether any omission amounts to a contradiction in the
particular context shall be a question of fact.”
The basic principle incorporated in sub-Section (1) of Section 162
is that any statement made by a person to a police officer in the
course of investigation, which is reduced in writing, cannot be used
for any purpose except as provided in Section 162. The first
exception incorporated in sub-Section (2) is of the statements
covered by clause (1) of Section 32 of the Indian Evidence Act,
1872 (for short, ‘Evidence Act‘). Thus, what is provided in sub-
Section (1) of Section 162 does not apply to a dying declaration.
The second exception to the general rule provided in sub-Section
(1) of Section 162 is that the accused can use the statement to
contradict the witness in the manner provided by Section 145 of
the Evidence Act. Even the prosecution can use the statement to
contradict a witness in the manner provided in Section 145 of the
Evidence Act with the prior permission of the Court. The
prosecution normally takes recourse to this provision when its
witness does not support the prosecution case. There is one
important condition for using the prior statement for contradiction.
The condition is that the part of the statement used for
contradiction must be duly proved.
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7. When the two statements cannot stand together, they become
contradictory statements. When a witness makes a statement in his
evidence before the Court which is inconsistent with what he has
stated in his statement recorded by the Police, there is a
contradiction. When a prosecution witness whose statement under
Section 161 (1) or Section 164 of CrPC has been recorded states
factual aspects before the Court which he has not stated in his prior
statement recorded under Section 161 (1) or Section 164 of CrPC,
it is said that there is an omission. There will be an omission if the
witness has omitted to state a fact in his statement recorded by the
Police, which he states before the Court in his evidence. The
explanation to Section 162 CrPC indicates that an omission may
amount to a contradiction when it is significant and relevant. Thus,
every omission is not a contradiction. It becomes a contradiction
provided it satisfies the test laid down in the explanation under
Section 162. Therefore, when an omission becomes a
contradiction, the procedure provided in the proviso to sub-Section
(1) of Section 162 must be followed for contradicting witnesses in
the cross examination.
8. As stated in the proviso to sub-Section (1) of section 162, the
witness has to be contradicted in the manner provided under
Section 145 of the Evidence Act. Section 145 reads thus:
“145. Cross-examination as to previous statements in writing.–A
witness may be cross-examined as to previous statements made by
him in writing or reduced into writing, and relevant to matters in
question, without such writing being shown to him, or being
proved; but, if it is intended to contradict him by the writing, his
attention must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of contradicting
him.”
The Section operates in two parts. The first part provides that a
witness can be cross-examined as to his previous statements made
in writing without such writing being shown to him. Thus, for
example, a witness can be cross-examined by asking whether his
prior statement exists. The second part is regarding contradicting a
witness. While confronting the witness with his prior statement to
prove contradictions, the witness must be shown his prior
statement. If there is a contradiction between the statement made
by the witness before the Court and what is recorded in the
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statement recorded by the police, the witness’s attention must be
drawn to specific parts of his prior statement, which are to be used
to contradict him. Section 145 provides that the relevant part can
be put to the witness without the writing being proved. However,
the previous statement used to contradict witnesses must be proved
subsequently. Only if the contradictory part of his previous
statement is proved the contradictions can be said to be proved.
The usual practice is to mark the portion or part shown to the
witness of his prior statement produced on record. Marking is done
differently in different States. In some States, practice is to mark
the beginning of the portion shown to the witness with an alphabet
and the end by marking with the same alphabet. While recording
the cross-examination, the Trial Court must record that a particular
portion marked, for example, as AA was shown to the witness.
Which part of the prior statement is shown to the witness for
contradicting him has to be recorded in the cross-examination.
If the witness admits to having made such a prior statement, that
portion can be treated as proved. If the witness does not admit the
portion of his prior statement with which he is confronted, it can be
proved through the Investigating Officer by asking whether the
witness made a statement that was shown to the witness. Therefore,
if the witness is intended to be confronted with his prior statement
reduced into writing, that particular part of the statement, even
before it is proved, must be specifically shown to the witness. After
that, the part of the prior statement used to contradict the witness
has to be proved. As indicated earlier, it can be treated as proved if
the witness admits to having made such a statement, or it can be
proved in the cross-examination of the concerned police officer.
The object of this requirement in Section 145 of the Evidence Act
of confronting the witness by showing him the relevant part of his
prior statement is to give the witness a chance to explain the
contradiction. Therefore, this is a rule of fairness.
9. If a former statement of the witness is inconsistent with any part
of his evidence given before the Court, it can be used to impeach
the credit of the witness in accordance with clause (3) of Section
155 of the Evidence Act, which reads thus:
“155. Impeaching credit of witness.–The credit of a witness may
be impeached in the following ways by the adverse party, or, with
the consent of the Court, by the party who calls him–
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(1) ……………………………………….
(2) ………………………………………
(3) by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted.”
It must be noted here that every contradiction or omission is not a
ground to discredit the witness or to disbelieve his/her testimony.
A minor or trifle omission or contradiction brought on record is not
sufficient to disbelieve the witness’s version. Only when there is a
material contradiction or omission can the Court disbelieve the
witness’s version either fully or partially. What is a material
contradiction or omission depends upon the facts of each case.
Whether an omission is a contradiction also depends on the facts of
each individual case.
10. We are tempted to quote what is held in a landmark decision of
this Court in the case of Tahsildar Singh & Anr. v. State of U.P.1
Paragraph 13 of the said decision reads thus:
“13. The learned counsel’s first argument is based upon the words
“in the manner provided by Section 145 of the Indian Evidence
Act, 1872″ found in Section 162 of the Code of Criminal
Procedure. Section 145 of the Evidence Act, it is said, empowers
the accused to put all relevant questions to a witness before his
attention is called to those parts of the writing with a view to
contradict him. In support of this contention reliance is placed
upon the judgment of this Court in Bhagwan Singh v. State of
Punjab [(1952) 1 SCC 514 : (1952) SCR 812]. Bose, J. describes
the procedure to be followed to contradict a witness under Section
145 of the Evidence Act thus at p. 819: Resort to Section 145
would only be necessary if the witness denies that he made the
former statement. In that event, it would be necessary to prove that
he did, and if the former statement was reduced to writing, then
Section 145 requires that his attention must be drawn to these parts
which are to be used for contradiction. But that position does not
arise when the witness admits the former statement. In such a case
all that is necessary is to look to the former statement of which no
further proof is necessary because of the admission that it was
made.”
It is unnecessary to refer to other cases wherein a similar procedure
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is suggested for putting questions under Section 145 of the Indian
Evidence Act, for the said decision of this Court and similar
decisions were not considering the procedure in a case where the
statement in writing was intended to be used for contradiction
under Section 162 of the Code of Criminal Procedure. Section 145
of the Evidence Act is in two parts : the first part enables the
accused to cross-examine a witness as to previous statement made
by him in writing or reduced to writing without such writing being
shown to him; the second part deals with a situation where the
cross-examination assumes the shape of contradiction : in other
words, both parts deal with cross examination; the first part with
cross-examination other than by way of contradiction, and the
second with cross-examination by way of contradiction only. The
procedure prescribed is that, if it is intended to contradict a witness
by the writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used for the
purpose of contradicting him. The proviso to Section 162 of the
Code of Criminal Procedure only enables the accused to make use
of such statement to contradict a witness in the manner provided by
Section 145 of the Evidence Act. It would be doing violence to the
language of the proviso if the said statement be allowed to be used
for the purpose of cross-examining a witness within the meaning of
the first part of Section 145 of the Evidence Act. Nor are we
impressed by the argument that it would not be possible to invoke
the second part of Section 145 of the Evidence Act without putting
relevant questions under the first part thereof. The difficulty is
more imaginary than real. The second part of Section 145 of the
Evidence Act clearly indicates the simple procedure to be
followed. To illustrate : A says in the witness box that B stabbed C;
before the police he had stated that D stabbed C. His attention can
be drawn to that part of the statement made before the police which
contradicts his statement in the witness box. If he admits his
previous statement, no further proof is necessary; if he does not
admit, the practice generally followed is to admit it subject to proof
by the police officer. On the other hand, the procedure suggested
by the learned counsel may be illustrated thus : If the witness is
asked “did you say before the police officer that you saw a gas
light?” and he answers “yes”, then the statement which does not
contain such recital is put to him as contradiction. This procedure
involves two fallacies : one is it enables the accused to elicit by a
process of cross-examination what the witness stated before the
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police officer. If a police officer did not make a record of a
witness’s statement, his entire statement could not be used for any
purpose, whereas if a police officer recorded a few sentences, by
this process of cross-examination, the witness’s oral statement
could be brought on record. This procedure, therefore, contravenes
the express provision of Section 162 of the Code. The second
fallacy is that by the illustration given by the learned counsel for
the appellants there is no self-contradiction of the primary
statement made in the witness box, for the witness has yet not
made on the stand any assertion at all which can serve as the basis.
The contradiction, under the section, should be between what a
witness asserted in the witness box and what he stated before the
police officer, and not between what he said he had stated before
the police officer and what he actually made before him. In such a
case the question could not be put at all : only questions to
contradict can be put and the question here posed does not
contradict; it leads to an answer which is contradicted by the police
statement. This argument of the learned counsel based upon
Section 145 of the Evidence Act is, therefore, not of any relevance
in considering the express provisions of Section 162 of the Code of
Criminal Procedure.” (emphasis added)
This decision is a locus classicus, which will continue to guide our
Trial Courts. In the facts of the case, the learned Trial Judge has
not marked those parts of the witnesses’ prior statements based on
which they were sought to be contradicted in the cross-
examination.
10.3. Woman Ct. Shashi/PW-11 who is witness to the
recovery of Nokia Mobile Phone Ex.PW11/C had taken
personal search of accused No.2 Sakshi. The personal search
was conducted vide memo Ex.PW11/B on 12.09.2012. The
personal search was conducted at Police Booth Fatherpuri and
accused no.2 was arrested vide memo Ex.PW11/A. The
physical Nokia Mobile Phone identified by PW-11 is
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Ex.PW11/P4. PW-11 does not remember the time when she
joined the duty and investigation on 12.09.2012. She cannot say
whether she had joined duty in the morning, evening or in the
night. She does not remember if she had left the PS after one
minute or after 1 hour of receiving the information to join
investigation in this case. The distance between Police Booth
Fatehpuri and PS Lahori Gate is about 1 KM. PW-22 at page 3
of his cross examination has deposed that the distance between
Fatehpuri Chowk and PS Lahori Gate is 500 or 700 meters. She
does not remember the name and designation of any police post
staff present at Police Post Fatehpuri. She had met Inspt.
Omprakash IO at Police Post Fatehpuri itself where he was
already present. She does not remember if accused Sakshi was
already present there or she came later on. She cannot tell when
the first document was prepared by IO at PP Fatehpuri or
whether it was after one minute or 10 hours. She cannot tell
who had written all the document on which she /PW-11 had put
signatures. The IO had not went to call public person to join
investigation in her presence. She does not remember if seizure
memo Ex.PW11/C was signed by accused No.2 or that thumb
impression was put by accused No.2. She does not know the
name of Incharge of Chowki at Fatehpuri Police Post. She does
not remember that for how long she had stayed at Fatehpuri
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Police Post. She does not remember when she joined duty on
12.09.2012 or whether it was morning, evening or at night. It is
deposed that seal of OPL was not used by the IO on 12.09.2012
and no parcel was prepared which shows that mobile phone was
not sealed immediately after its recovery. To the contrary
PW-11 has deposed on 23.07.2015 that on 12.09.2012 the
mobile phone was taken into possession which was sealed with
the seal of OPL. She does not remember the time was morning,
afternoon or evening when she had joined duty on 12.09.2012.
Hence deposition of PW-11 is doubtful as to recovery of Nokia
Mobile Phone in her presence or that she had made a personal
search of accused No.2 in which the said mobile phone was
recovered. To the contrary PW-23 has deposed in cross
examination dated 09.07.2019 at page 2 that he joined duty at
PS Lahori Gate at 9:00 AM on 12.09.2012 when he alongwith
Ct. Krishan, PSI Akhilesh and woman Ct. Shashi alongwith
other police officials left for investigation at about 9:30 AM and
reached the booth at Fatehpuri at 12-12:30 PM. W/Ct. Shashi
has deposed that she had reached Police Booth Fatehpuri
directly. W/Ct. does not remember if Incharge PP Fatehpuri
was present there on 12.09.2012 or not. However as per
deposition of PW-23 Incharge PP Fatehpuri was not present
there and no police official was present there when they reached
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there. Accused persons were also not present there. It is strange
to see that from 12:00 PM to 1:30 PM the investigating team
was kept sitting at PP Fatehpuri without purpose though they
had departed from PS for investigation of the case at 9:00 AM.
Between 1:00 to 1:30 PM the accused No.1 and 2 had suddenly
appeared without any reason at Police Booth Fatehpuri. To the
contrary PW-22 Ct. Krishan Kumar at page 2 of his cross
examination dated 18.04.2018 has deposed that accused No.1
Shiv Swaroop was present at Police Booth Fatehpuri Chowk
when they had reached there. He cannot tell the make of mobile
phone recovered in personal search of accused No.1. One
another strange fact is to be seen that accused No.2 allegedly
knowing that they had murdered Ms. Geeta and still she was
carrying the mobile phone of the deceased and coming on her
own to the Police Post Fatehpuri with the said mobile phone.
The above story of the prosecution cannot be believed keeping
in view the parallel story that accused No.2 Sakshi had already
destroyed and thrown the SIM card of said mobile phone which
as per the prosecution case it was well within the knowledge of
accused Sakshi that the Nokia Mobile Phone was an
incriminating article possession of which can incriminate
accused No.2. Hence the evidence discussed above and the
above facts and circumstances of the case creates doubt in the
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story of the prosecution of arrest of accused No.2 Sakshi from
Police Post Fatehpuri Chowk and it also creates doubt about the
recovery of Nokia Mobile Phone from accused no.2 Sakshi at
Fatehpuri Police Post. The benefit of above doubt must go to
the accused.
10.4. PW-13 Sh. Surender Kumar Nodal Officer from
Bharti Airtel Ltd has deposed that mobile phone
No.9971617101 belongs to Ms. Geeta Nigam and the Voter
Identity Card of the subscriber was the identity proof. The CAF
Form is Ex.PW13/C. The CDR of mobile phone from
07.09.2012 to 11.09.2012 is Ex.PW13/D. The certificate under
Section 65B of Evidence Act of the CDR is Ex.PW13/E. The
CDR of mobile phone of the deceased shows the last call was
made on 07.09.2012 at about 3:40 PM. On 07.09.2012 seven
phone calls were made by the deceased. There was no phone
call made from 07.09.2012 to 11.09.2012 between accused
Sakshi and deceased Geeta as per IMEI No. available on the
record. The deceased had made last phone call at IMEI No.
404100112156934. All phone calls were made with this IMEI
number. It is not the case of the prosecution that this IMEI
number even belongs to accused No.1 or accused No.2. The
deceased had 7 phone calls with this IMEI number. In fact the
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prosecution has failed to prove on record that with whom last
telephonic conversation was made by deceased Ms. Geeta on
07.09.2012 and 7 phone calls were made in this regard. It was a
relevant fact to be investigated and no such material
investigation was brought on record by the prosecution. Hence
it is held that the prosecution has failed to prove the recovery of
Nokia Mobile Phone of deceased Geeta from accused No.2
Sakshi and it has also failed to prove that the accused person
had used or had possession of this mobile phone.
11. Motive to commit the crime.
11.1. It is the case of the prosecution that the accused
No.1 and 2 are poor person who had difficulty in meeting their
daily needs and they were living in poverty. They are regular
visitor to the house of the deceased Geeta. About 15 days back
from the date of death of deceased the accused No.1 Shiv
Swaroop came to meet deceased Geeta when the deceased
Geeta / victim had made a talk of purchasing a flat in front of
accused No.1. Accused No.1 had believed that deceased Geeta
had lot of money. He had told this fact to accused No.2 Sakshi
and mother of accused No.1 namely Ms. Premwati after
reaching his house and thereby planning to kill was made at the
instance of Ms. Premwati, the mother of accused No.1. In the
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chargesheet at the last page it is mentioned by the IO that
accused Premwati is absconding. Vide order dated 15.01.2013
accused Premwati was declared Proclaimed Offender by
learned MM-06, North Delhi under Section 82 Cr.P.C. and the
report of the process server is Ex.CW1/A. Separate statement of
process server in this respect was recorded.
11.2. It is submitted by the learned Counsel for the
accused that the accused No.2 has no motive to kill whereas the
complainant and their sibling had motive to falsely implicate
the accused No.1 and 2. It is submitted that the accused Geeta
had died intestate who was staying at 2 nd floor and who was a
divorcee. It is submitted that the family members who are
complainant and his sibling were opposed to the marriage of
accused No.2 Sakshi to accused No.1 Shiv Swaroop because of
difference in caste and they had never supported this marriage.
It is submitted that because accused No.2 married against the
wishes to family with accused No.1 therefore they were falsely
implicated in the case. It is further submitted that parents of
accused No.2 had already expired who is daughter of Sh. Ram
Kumar Nigam who is one of the son of Sh. Jagdish. After
expiry of Sh. Ram Kumar Nigam who is sibling of the
complainant the accused No.2 had a share in the alleged
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ancestral property which is the same property in which the
deceased was residing. In order to avoid share to accused No.2
and also to usurp the share of the deceased the accused were
falsely implicated. There was no motive with the accused No.2
to kill the deceased. It is submitted that even the keys of the 1 st
floor are lying with Sh. Satish Nigam after such death of Ms.
Geeta. Sh. Satish Nigam who is staying at Anand Vihar, Delhi
and not at the spot where the offence of murder was committed.
It is submitted that earlier the 1 st floor was in possession of
accused No.2 which largely used to remain locked and the keys
of the 1st floor were also with accused No.2. The date of
marriage of accused No.2 is 29.08.2011 and as per the post-
mortem report and deposition of PW-18 death of Ms. Geeta had
occurred on 09.08.2012 between 00:15 AM to 12:00 PM.
11.2.1. It is deposed by PW-3 in cross examination dated
02.09.2014 at page 2 that the keys of the 1 st floor of the
premises where accused No.2 was earlier residing is with Sh.
Satish Nigam/PW-2. It is noted that Sh. Satish Nigam is not
staying at the said premises. The keys of the 1 st floor of the
house was earlier in possession of accused No.2 and her late
mother Ms. Madhuri. Ms. Madhuri had expired in the year 2011
which shows that key of the house were not available with
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accused No.2 till the year 2011. After death of Ms. Geeta the
keys of the house of 2nd floor is also with Sh. Satish Nigam/
PW-2.
11.3. PW-3 has deposed that on 08.09.2012 in the
afternoon when both the accused were sitting at 4 th floor with
the deceased alongwith PW-3 then the accused No.2 was
speaking foul of PW-1 Sh. Sushil Nigam and in respect of
which there were hot arguments between the accused and the
deceased. The accused No.2 had told PW-3 that accused will
take a revenge from the deceased / Bua of accused No.2. This
fact was not disclosed by PW-3 in her statement under Section
161 Cr. PC Ex.PW3/DA. Hence PW-3 has materially improved
in her deposition in this respect which is in the nature of
contradiction. Another fact to be noted is that when PW-3 was
meeting regularly the deceased then she must be interested in
the welfare of the deceased. Despite of such alleged fact of
statement of revenge by accused No.2 disclosed only to PW-3
this fact was not communicated by PW-3 to the deceased or any
other member of the family. This threat was allegedly extended
by accused No.1 and 2 because they had a heated arguments
regarding PW-1. However no such fact is brought on record by
the prosecution to show that accused No.1 and 2 had any kind
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of animosity towards PW-1 to have heated arguments with the
deceased and to further that they have to take revenge in respect
of such undisclosed animosity against the deceased. Hence it is
seen that the prosecution’s case has no basis to claim that the
accused No.1 and 2 would have intended to take revenge from
the deceased. In fact PW-1 himself had not met the deceased
during such day of 08.09.2012 as per his own deposition and
contrary to the deposition of PW-3.
11.4. Another motive claimed by the prosecution against
the accused No.1 is that deceased had discussed during such
conversation with PW-3 at 4th floor that the deceased was going
to purchase a flat. Believing that the deceased had lot of money
to purchase a flat therefore the alleged murder was committed.
There is no other evidence except the statement of PW-3 that
the deceased was going to purchase a flat. There is no evidence
brought on record by the prosecution to show on record that the
deceased had enough money in her bank account to purchase a
flat. To the contrary PW-2 Sh. Satish Nigam at page No.3 of
cross examination dated 09.10.2014 has deposed that the
deceased was maintaining balance of Rs.56,000/- at the time of
her death. She did not appoint any nominee. Though the
evidence of PW-17 Sh. Ranjeet Nigam could not be read in
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evidence as he had expired before completion of his cross
examination. However at page 1 of his examination in chief it is
deposed by him that he used to give Rs.10,000/- per month to
his deceased sister Ms. Geeta Nigam. This shows that the
deceased was not having income of her own and even for her
daily expenses she was dependant on money given by her
brother Sh. Ranjeet Nigam. No other sources of money of Ms.
Geeta Nigam is disclosed. It is difficult to believe that accused
No.1 and 2 being regular visitors to the deceased would not be
aware of such financial status of the deceased at the time of her
death who were not stranger to the family.
11.5. It is noted that if money was the only motive with
accused No.1 and 2 to kill the deceased because of alleged
poverty of accused No.1 and 2 then accused No.2 prima facie
had claim over 1st floor of the property in which her parents had
last resided. As per deposition of PW-3 at page 4 of her cross
examination by learned Counsel for the accused it is deposed
that Sh. Ram Kumar Nigam the brother of PW-3 had expired in
the year 2003 and the wife of Sh. Ram Kumar Nigam and
mother of accused No.2 had expired in the year 2011. However
the murder of deceased was committed on or after 08.09.2012
and no litigation was filed by the accused No.2 in respect of this
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property. It cannot be said that she is not aware of her parents
residing at 1st floor and articles lying there. Nor there is
evidence of prosecution that accused No.2 has ever raised any
claim over the 1st floor of such property or any claim in the rent
of the shops situated at ground floor of the same property. No
such dispute is proved on record. In the above circumstances of
the case the prosecution has failed to prove that accused No.1
and 2 had motive to kill the deceased for the purpose of money
or that because they are poor. Motive is relevant in a case of
circumstantial evidence and the same is not proved on record by
the prosecution.
12. Killing and Strangulation of the deceased.
12.1. It is the case of the prosecution that around 10:00
PM when it was dark outside and movement in the street had
lessened then suddenly accused No.1 had caught and pulled
down the deceased Geeta in the middle of two bed and
strangulated the deceased with both his hands. Accused No.2
Sakshi had assisted the accused No.1 in the crime by catching
hold of legs of the deceased Geeta and thereby accused No.1
and 2 killed the deceased Geeta and robbed the valuable
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articles.
12.2. PW-18 Dr. K. Goel, CMO from Arun Asif Ali
Hospital has deposed about the nature of injuries suffered by the
deceased as under:
“1) Laceration 4 cm long over lower side of left
occipetal region with dried blood around;
2) Both lips were bruised externally as well as orally
against the teeth;
3) Diffused reddish bruises -4 X 3 cm at right
mandibular angle, 4 X 2.5 cm just below chin on the
right side;
4) Contused- abrasion 3 X 1.5 cm just below left side of
chin;
5) Diffused bruise, reddish in colour 5 X 4 cm over left
side of forehand, 3 X 1.5 cm over back of left hand, 3X
1 cm over middle back of right forearm and all over
back of right palm;
6) There were two diffused bruises reddish in colour 3 X
1.5 cm and 2.5 X 2 cm over right side front of neck in
middle part, one above the other about 0.5 am apart each
other and there were diffused multiple coalsced bruises
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the neck in upper middle part about 3 cm below left
mandibular angle;
7) There was pressure contused abrasion mark
transversally placed over right side of neck at the level
of apple of adam, extending from midline neck up to
postero lateral aspect of right side neck. Mark was
parchmentized and about 1 cm white and dark brownish
in colour.
On internal examination, there was subscalp
bruising over left frontal region. The meninges were
intact and congested. Brain matter was intact and
congested with multiple patechie in which matter. Slight
softening present.
On reflection of skin of neck, there were
diffused subcutaneous and platysmal bruising all over
front of neck and right side of neck alongwith external
injury No.7. There was fracture of right greater cornua
of hyoid bone from the body with in-ward deflection
with marked bruising and clots around. There were
massive muscular bruising and extravasation of blood in
neck layers. Epiglottis and larynx were showing
congestion and patechie.”
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12.3. The opinion is given that the cause of death of the
deceased was asphyxia consequent upon manual pressure on the
neck (throttling). All injuries are ante-mortem in nature.
External injury No.1, 3, 4 and 5 were caused by blunt forced
impact. External injury No.2 was caused by pressure over
mouth consistently to ward of cries. External injury No.6 has
occurred due to manual grip pressure over neck. Injury No.7
was caused by pressure by some hard flexible material. The
manner of death was homicidal. The external injury No.6 which
is pressure over neck was sufficient to cause death in ordinary
cause of nature. The post-mortem was conducted on 11.09.2012
at about 12:15 PM and the time since death was reported to 2 to
2-1/2 days. The death had occurred somewhere between 12:15
AM to 12:15 PM on 09.09.2012 and it is deposed that in such
cases the time since death calculated is very arbitrary and there
may always be more margins in time calculations. PW-18
cannot say that there is possibility of death after 8:00 PM on
09.09.2012. PW-18 cannot say the exact time if there is
possibility of death caused after 11:00 PM on 09.09.2012.
however it is deposed that the death must have been caused
prior to 1:00 AM on 10.09.2012. Rigor Mortis in the body
depends on the environmental conditions which occurs earlier
in winter season and later in summer season. The time to appear
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Rigor Mortis is 2 to 4 hours. The Rigor Mortis disappears in
winter season in 24 to 48 hours and in summer season it take 12
to18 hours. When the body is kept in cold chamber then it take
longer time for Rigor Mortis to disappear. After receipt of dead-
body the same was kept in cold chamber till post-mortem was
conducted.
12.4. PW-19 Ms. Bharti Arya, Assistant Director
(Chemistry), FSL has deposed that she had received one parcel
containing 3 exhibits. The 1st exhibits was containing stomach
and intestine, the 2nd exhibit contained liver, spleen, and half of
each kidney and the 3rd exhibit contained 10 ml blood of
deceased Ms. Geeta Nigam. On chemical examination no
common insecticide, volatile metallic, inorganic and sedative
substance were found in any of the exhibits. The report is
submitted as Ex.PW19/A. Hence PW-19 has proved that the
deceased Ms. Geeta did not die due to poisoning of her body.
12.5. The death of the deceased was caused due to
external injury No.6 which is pressure over neck and was
sufficient to cause death in the ordinary course of nature. As
per medical evidence on record the death had occurred between
12:15 AM to 12:15 PM on 09.09.2012. PW-18 cannot say that
death could have possibly occurred after 8:00 PM or 11:00 PM
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on 09.09.2012. However it is deposed that the death could have
been caused prior to 1:00 AM on 10.09.2012. PW-4 has
deposed that a finger print expert had inspected the scene of
crime and photographer had taken photographs Mark P-1 to
P-12 on record. His report is Ex.PW4/A who was posted as
Incharge of Crime Team. Ex.1 contains dark brown gauge cloth
piece in which blood was found of human origin of AB group.
Ex.2 are marble and cemented pieces stained with blood was
found with blood of human origin of AB group. Ex.3 are
marble and cemented pieces with no reaction as to human
blood. Ex.4 is one hair dryer with no reaction as to species of
origin. Ex.5 is gown with no reaction. Ex.6 is one yellowish
gauge cloth piece with vaginal swab as species of human origin
with AB group. The above result was found in FSL report
Ex.PW21/A read with FSL report Ex.PW21/B. The FSL result
Ex.PW19/A on Ex.1, 2 and 3 as mentioned therein did not find
common poisons in stomach, intestine, spleen, kidney or in the
blood. No finger print impression could be traced nor any
injury or scratch mark on the accused No.1 during such
strangulation is proved. Hence no such incriminating evidence
is found by the prosecution against accused no.1 and 2 in
reference to above FSL examination and therefore it cannot said
that there is any circumstantial or any other evidence against
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accused No.1 and 2 in respect of killing and strangulation of the
deceased.
12.6. Now it has to be seen that whether accused No.3 is
guilty under Section 411 IPC for having found in possession of
one silver glass, 8 silver anklets, one ring and other silver
articles weighing 83.65 grams. First it is incumbent upon the
prosecution to prove that the above articles recovered from
accused No.3 belongs to the deceased. In the evidence already
discussed above it was found that the prosecution has failed to
prove that such silver articles recovered belongs to deceased.
No TIP of such articles was done in absence of which it cannot
be said that these articles belongs to the deceased. No invoice of
such articles was produced. Nor any photograph is produced to
show that such articles were worn by the deceased at any point
of time. In case titled Kalu @ Habib vs. State of Madhya
Pradesh 2023 SSC Online SC 984 at relevant para No.34 to 38
it is laid down that the presumption under Section 114
illustration (a) of the Evidence Act could be drawn in a given
situation is a matter which depends on the evidence and the
circumstances of the cases. The nature of stolen articles, the
nature of its identification by the owner the place and
circumstances of his recovery, the intervening period from the
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date of occurrence and the date of recovery, the explanation of
the persons concerned are all relevant factors to be taken into
consideration. Without corroboration from other cogent
evidence it must not be drawn in isolation. Merely disclosure
statement by the accused or other accused are not sufficient to
warrant presumption under Section 114 illustration (A) of
Evidence Act, 1872. A goldsmith who has to deal with
ornaments and jewellery on a day to day basis would obviously
in possession of a significant quantity of ornaments at his shop.
In the present case the prosecution has failed to bring on record
sufficient corroborative evidence to raise this presumption
except disclosure statement of the accused persons. Further the
value of articles is not such that it is not easily available with
any jeweller. In these circumstances it cannot be said that the
articles recovered from accused No.3 are stolen articles. In
these circumstances of the case it is held that the prosecution
has failed to prove that the accused No.3 has received silver
articles from accused No.1 and 2 as stolen articles if those
articles belongs to deceased at all. The relevant citation titled
Kallu alias Habib Versus State of Madhya Pradesh 2023 SCC
OnLine SC 984 in Criminal Appeal No. 1030/2023 and
Criminal Appeal No. Disclosure Statements =Manoj Kumar
Soni vs. The State of Madhya is reproduced hereinasunder:
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Kallu alias Habib Versus State of Madhya Pradesh 2023 SCC
OnLine SC 984 in Criminal Appeal No. 1030/2023 and Criminal
Appeal No.Disclosure Statements =Manoj Kumar Soni vs. The
State of Madhya Pradesh (11.08.2023 – SC) :
MANU/SC/0877/2023
20. The facts of the case reveal that all the Accused persons made
disclosure statements to the I.O. whereupon recovery of money,
jewellery, etc. was effected. Although it is quite unusual that all
five Accused, after being arrested, would lead the I.O. to the places
for effecting recovery of the stolen articles, we do not propose to
disbelieve the prosecution plea only on this score. Manoj’s
involvement was primarily based on the disclosure statements
made by co-Accused Suleman and Jaihind where they admitted to
selling the stolen articles to him and a similar statement made by
Manoj himself which led to recovery Under Section 27, Evidence
Act. Similarly, both the courts below, in convicting Kallu, largely
relied upon the disclosure statement made by Kallu himself as well
as co-Accused Jaihind, who confessed to giving Rs. 3,000.00 to
Kallu from the stolen money and storing a country-made pistol
along with three cartridges at his house/tapra.
21. A doubt looms: can disclosure statements per se,
unaccompanied by any supporting evidence, be deemed adequate
to secure a conviction? We find it implausible. Although disclosure
statements hold significance as a contributing factor in unriddling a
case, in our opinion, they are not so strong a piece of evidence
sufficient on its own and without anything more to bring home the
charges beyond reasonable doubt.
22. The law on the evidentiary value of disclosure statements
Under Section 27, Evidence Act made by the Accused himself
seems to be well- established. The decision of the Privy Council in
Pulukuri Kotayya and Ors. v. King-Emperor
MANU/PR/0049/1946 : AIR 1947 PC 67 holds the field even
today wherein it was held that the provided information must be
directly relevant to the discovered fact, including details about the
physical object, its place of origin, and the Accused person’s
awareness of these aspects. The Privy Council observed:
The difficulty, however great, of proving that a fact discovered on
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no justification for reading into Section 27 something which is not
there, and admitting in evidence a confession barred by Section 26.
Except in cases in which the possession, or concealment, of an
object constitutes the gist of the offence charged, it can seldom
happen that information relating to the discovery of a fact forms
the foundation of the prosecution case. It is only one link in the
chain of proof, and the other links must be forged in manner
allowed by law.
23. The law on the evidentiary value of disclosure statements of
co- Accused too is settled; the courts have hesitated to place
reliance solely on disclosure statements of co-Accused and used
them merely to support the conviction or, as Sir Lawrence Jenkins
observed in Emperor v. Lalit Mohan Chuckerburty
MANU/WB/0030/1911 : (1911) ILR 38 Cal 559, page 588, to
“lend assurance to other evidence against a co-Accused”. In
Haricharan Kurmi v. State of Bihar MANU/SC/0059/1964 : AIR
1964 SC 1184, this Court, speaking through the Constitution
Bench, elaborated upon the approach to be adopted by courts when
dealing with disclosure statements:
13. …In dealing with a criminal case where the prosecution relies
upon the confession of one Accused person against another
Accused person, the proper approach to adopt is to consider the
other evidence against such an Accused person, and if the said
evidence appears to be satisfactory and the court is inclined to hold
that the said evidence may sustain the charge framed against the
said Accused person, the court turns to the confession with a view
to assure itself that the conclusion which it is inclined to draw from
the other evidence is right.
24. In yet another case of discrediting a flawed conviction Under
Section 411, Indian Penal Code, this Court, in Shiv Kumar v. State
of Madhya Pradesh MANU/SC/1114/2022 : (2022) 9 SCC 676
overturned the conviction Under Section 411, declined to place
undue reliance solely on the disclosure statements of the co-
Accused, and held:
24. …, the disclosure statement of one Accused cannot be accepted
as a proof of the Appellant having knowledge of utensils being
stolen goods. The prosecution has also failed to establish any basis
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stolen articles. The factum of selling utensils at a lower price
cannot, by itself, lead to the conclusion that the Appellant was
aware of the theft of those articles. The essential ingredient of
mens rea is clearly not established for the charge Under Section
411 Indian Penal Code. The prosecution’s evidence on this aspect,
as they would speak of the character Gratiano in Merchant of
Venice, can be appropriately described as, “you speak an infinite
deal of nothing.” [William Shakespeare, Merchant of Venice, Act 1
Scene 1.]
25. Coming to the case at hand, there is not a single iota of
evidence except the disclosure statements of Manoj and the co-
Accused, which supposedly led the I.O. to the recovery of the
stolen articles from Manoj and Rs. 3,000.00 from Kallu. At this
stage, we must hold that admissibility and credibility are two
distinct aspects and the latter is really a matter of evaluation of
other available evidence. The statements of police witnesses would
have been acceptable, had they supported the prosecution case, and
if any other credible evidence were brought on record. While the
recoveries made by the I.O. Under Section 27, Evidence Act upon
the disclosure statements by Manoj, Kallu and the other co-
Accused could be held to have led to discovery of facts and may be
admissible, the same cannot be held to be credible in view of the
other evidence available on record.
26. While property seizure memos could have been a reliable piece
of evidence in support of Manoj’s conviction, what has transpired
is that the seizure witnesses turned hostile right from the word ‘go’.
The common version of all the seizure witnesses, i.e., PWs 5, 6, 11
and 16, was that they were made to sign the seizure memos on the
insistence of the ‘daroga’ and that too, two of them had signed at
the police station. There is, thus, no scope to rely on a part of the
depositions of the said PWs 5, 6, 11 and 16. Viewed thus, the
seizure loses credibility.
27. This Court in Sanjeet Kumar Singh v. State of Chhattisgarh
MANU/SC/1077/2022 held:
18. But if the Court has – (i) to completely disregard the lack of
corroboration of the testimony of police witnesses by independant
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witnesses turning hostile, then the story of the prosecution should
be very convincing and the testimony of the official witnesses
notably trustworthy. If independant witnesses come up with a story
which creates a gaping hole in the prosecution theory, about the
very search and seizure, then the case of the prosecution should
collapse like a pack of cards. It is no doubt true that corroboration
by independant witnesses is not always necessary. But once the
prosecution comes up with a story that the search and seizure was
conducted in the presence of independant witnesses and they also
choose to examine them before Court, then the Court has to see
whether the version of the independant witnesses who turned
hostile is unbelievable and whether there is a possibility that they
have become turncoats.
28. The testimony of the seizure witnesses, we are inclined to the
view, is the only thread in the present case that could tie together
the loose garland, and without it, the very seizure of stolen
property stands falsified. We cannot overlook the significance of
the circumstance that all four independant seizure witnesses (PWs
5, 6, 11, and 16), who were allegedly present during the
seizure/recovery of the stolen articles from Manoj’s house, having
turned hostile and not support the prosecution case, the standalone
evidence of the I.O. on seizure cannot be deemed either conclusive
or convincing; the recoveries made by him Under Section 27,
Evidence Act must, therefore, be rejected.
29. The material inconsistency in Kallu‘s case is the contradiction
in the depositions of the I.O. and the complainant. The I.O.
deposed that he, upon the disclosure by co-Accused Jaihind,
successfully recovered a sum of Rs. 3,000.00 (comprised of three
one-thousand-rupee notes), seized the same in the presence of
witnesses, and prepared a seizure panchnama; however, when one
looks at the complainant’s version, it is wholly inconsistent. She
stated in her deposition that the Accused persons did not take away
any one-thousand-rupee note from her house. It does not escape
our attention that the conviction of Kallu entirely hinges on the
alleged recovery of Rs. 3,000.00 and both the courts below heavily
relied on this aspect to convict him of criminal conspiracy.
However, it does not appear from a perusal of the Trial Court’s
judgment as to who exactly the seizure witnesses were in whose
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presence Rs. 3,000.00 was recovered although it does seem that
none of the several prosecution witnesses, who were witnesses of
arrest and seizure, had supported the prosecution case. Although
there could be evidence aliunde to establish the guilt of the co-
Accused Jaihind, Arif and Suleman, there was absolutely no
evidence worthy of consideration which could have been relied on
to convict Manoj and Kallu.
30. It is clear as crystal that the sole connecting evidence against
Manoj and Kallu was the recovery based on their disclosure
statements, along with those of the other co-Accused but this
evidence, in our opinion, is not sufficient to qualify as “fact …
discovered” within the meaning of Section 27. Having regard to
such nature of evidence, we view the same as wholly
untrustworthy.
xxxxxxxxxxx
Conviction of Manoj Under Section 411, Indian Penal Code
33. Manoj has been convicted Under Section 411, Indian Penal
Code which is reproduced below:
Dishonestly receiving stolen property. -Whoever dishonestly
receives or retains any stolen property, knowing or having reason
to believe the same to be stolen property, shall be punished with
imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
34. The Trial Court convicted Manoj based on a presumption
Under Section 114(a), Evidence Act, asserting that his possession
of stolen articles shortly after the theft, with knowledge of its
stolen nature, was adequate enough to hold him guilty Under
Section 411, Indian Penal Code. As a result, he was held liable for
the offence under the said provision. Illustration (a) of Section 114,
Evidence Act has been noted above but the entire provision reads
as follows:
114. Court may presume existence of certain facts. -The Court may
presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural
events, human conduct and public and private business, in theirPage 103 of 107
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relation to the facts of the particular case. The Court may presume-
(a) That a man who is in possession of stolen goods soon after the
theft is either the thief or has received the goods knowing them to
be stolen, unless he can account for his possession.
***
35. The Trial Court erred in drawing such a presumption of fact
without considering other factors. What could be those factors has
been explained by this Court in A Devendran v. State of Tamil
Nadu MANU/SC/1851/1997 : (1997) 11 SCC 720 in the
following words:
20. … Whether a presumption Under Section 114, Illustration (a) of
the Evidence Act should be drawn in a given situation is a matter
which depends on the evidence and the circumstances of the cases.
The nature of the stolen articles, the nature of its identification by
the owner, the place and the circumstances of its recovery, the
intervening period between the date of occurrence and the date of
recovery, the explanation of the persons concerned from whom the
recovery is made are all factors which are to be taken into
consideration in arriving at a decision.
36. A presumption of fact Under Section 114(a), Evidence Act
must be drawn considering other evidence on record and without
corroboration from other cogent evidence, it must not be drawn in
isolation. The present case serves as a perfect example of why such
a presumption should have been avoided by the Trial Court.
Manoj’s conviction, solely relying on the disclosure statements
made by himself and the other co-Accused, does not suffice to
warrant a presumption Under Section 411, Indian Penal Code. It
would not be unreasonable to presume that a goldsmith, who has to
deal in ornaments and jewelleries on a day-to-day basis, would
obviously be in possession of a significant quantity of ornaments at
his shop. Given the circumstances, such a presumption drawn
Under Section 114(a) stands vitiated.
37. At this juncture, even if we assume the veracity of the claim
that the items sold to Manoj were indeed stolen articles, it would
not be sufficient to attract Section 411, Indian Penal Code; what
was further necessary to be proved is continued retention of such
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articles with a dishonest intent and knowledge or belief that the
items were stolen. No evidence worthy of consideration was
adduced by the prosecution to prove that Manoj had retained the
articles either with dishonest intent and with knowledge or belief of
the same being stolen property.
Conviction of Kallu Under Section 120-B, Indian Penal Code
38. It is intriguing that among all five Accused persons, only Kallu
has been convicted for criminal conspiracy Under Section 120-B,
Indian Penal Code. At this stage, we cannot help but wonder: can a
single individual conspire with oneself? We cannot but disagree. It
logically follows that one person alone can never be held guilty of
criminal conspiracy because one cannot conspire with oneself. As
per Black’s Law Dictionary (8th Edn), ‘conspiracy’ is an
“agreement by two or more persons to commit an unlawful act,
coupled with an intent to achieve the agreement’s objective, and
action or conduct that furthers the agreement”. The wordings of
Section 120-A, Indian Penal Code make it abundantly clear-the
offence of criminal conspiracy is committed only when two or
more persons agree to do or cause to be done an illegal act or legal
act by illegal means. The position in English law too is well-
settled. In The King v. Plummer (1902) 2 KB 339, the King’s
Bench, speaking through Lord Justice Bruce, held:
It logically follows from the nature of the offence of conspiracy
that, where two or more persons are charged in the same
indictment with conspiracy with one another, and the indictment
contains no charge of their conspiring with other persons not
named in the indictment, then, if all but one of the persons named
in the indictment are acquitted, no valid judgment can be passed
upon the one remaining person. (page 343)
39. In I.G. Singleton v. King-Emperor MANU/WB/0279/1924 :
(1924-25) 29 CWN 260 : AIR 1925 Cal 501, the Calcutta High
Court further clarified the law related to criminal conspiracy:
The Rule of English law that is now well settled is that where two
persons are indicted for conspiring together and they are tried
together, both must be acquitted, or both convicted. (page 265)
40. The decision of this Court in Topandas (supra) affirmed the
aforesaid position and held:
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14. … on the charge as it was framed against the Accused 1, 2, 3
and 4 in this case, the Accused 1 could not be convicted of the
offence Under Section 120-B of the Indian Penal Code when his
alleged co-conspirators Accused 2, 3 and 4 were acquitted of that
offence.
41. Having regard to the position of law as aforesaid, the
conviction of Kallu Under Section 120-B, Indian Penal Code
stands completely vitiated because of the simple reason that one
cannot alone conspire. There is no evidence to even remotely
suggest that there existed any agreement between Kallu and the co-
Accused while none of the others, except Kallu, has been convicted
for criminal conspiracy.
13. In view of the discussion held above it is held that
the prosecution has failed to prove that the accused No.1 Shiv
Swaroop and No. 2 Sakshi have committed offence under
Section 302/397/120B/34 IPC and accused No.3 Raju Malik has
committed offence under Section 411 IPC. Hence accused
persons namely Shiv Swaroop, Sakshi and Raju Malik are
acquitted of the offence charged against them. Accordingly,
accused persons namely Shiv Swaroop, Sakshi and Raju Malik
stand acquitted. Their earlier personal bonds are cancelled and
sureties are discharged and documents, if any, be returned to the
sureties and endorsement on security documents is allowed to
be de-endorsed. In terms of Section 437A Cr. PC, accused
persons have furnished their bail bonds as directed which will
be in force for period of six months from the date of this
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judgment. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally
JOGINDER
signed by
Announced in the open court PRAKASH PRAKASH NAHAR
Date: 2025.04.03
on dated 03.04.2025 NAHAR 15:19:12 +0530
(JOGINDER PRAKASH NAHAR)
Additional Sessions Judge (FTC-I)
Tis Hazari Court/Delhi/03.04.2025
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