Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2438 OF 2010
| Bijender @ Mandar | ..... Appellant |
|---|---|
| VERSUS | |
| State of Haryana | ..... Respondent |
JUDGMENT
Surya Kant, J.
The instant Criminal Appeal emanates from the judgment and
th
order dated 7 September 2009 of the High Court of Punjab and
th
Haryana at Chandigarh, whereby the order dated 20 March 2002
passed by the Additional Sessions Judge, Sonipat, convicting the
AppellantBijender @ Mandar under Sections 392 and 397 IPC was
affirmed. The High Court upheld the rigorous imprisonment of 5 years
along with fine of Rs.5000/ for the offence punishable under Section
392 IPC. However, it reduced the sentence from 10 to 7 years rigorous
imprisonment with a fine of Rs.10,000/ for the offence punishable
under Section 397 IPC. Both the sentences were directed to run
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2021.11.08
17:52:01 IST
Reason:
concurrently.
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F ACTS :
th
2. Briefly put, the Prosecution version is that on 14 April 1999, at
around 11:00 AM, Bal Kishan (Complainant) was on his way to Delhi
on his motorcycle along with his nephew, Sanjay, to purchase a plot of
land and was carrying a sum of Rs. 46,000/ for the said purpose.
When the Complainant reached near the farm house of one Virender
Bansal, on Jatheri Road, he was intercepted by a vehicle. The
Appellant and one Manjeet (coaccused) stepped out of the said
vehicle, armed with country made pistols and asked the Complainant
to hand over the amount. The Complainant then handed over the key
of the bike. The Accused took out the bag containing the money from
the boot of the motorcycle and fled from the spot. Whereafter, the
Complainant rushed towards the nearest Police Station on foot,
leaving his nephew and the motorcycle behind, at the place of the
incidence. To the good fortune of the Complainant, on his way to the
Police Station, he met with ASI Rajinder Kumar (PW14) and reported
the occurrence to him. Consequently, an FIR was lodged and the
investigation was set in motion.
Four accused persons, including the Appellant were arrested on
3.
the basis of secret information received by the police and they were
charged under Sections 392, 397 and 120B IPC and Section 25 of the
th
Arms Act. Whilst the 5 coaccused (Vinod) could not be arrested and
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was declared a proclaimed offender under Section 82 Cr.P.C., the
other Accused including the Appellant abjured their guilt and pleaded
‘not guilty’. In the eventual trial, 14 witnesses were examined by the
Prosecution. No evidence was led by the Defence. The Prosecution
presented its narrative before the Trial Court that the Accused
persons, along with Vinod, conspired together to loot the Complainant,
who, they were aware was carrying money for the purchase of a plot in
Delhi. Whereas coaccused Mukesh and Subhash had provided the
information, the Appellant, Manjeet and Vinod actually carried out the
robbery.
4. The case of the Prosecution banked heavily on the disclosure
statements made by the Accused persons and the pretrial recoveries
made pursuant thereto. The Appellant in his revelation (Ex. PD)
affirmed the chronicle presented by the Prosecution. He further stated
that Rs. 10,000/ fell in his kitty as part of his share, out of which he
had already spent Rs. 5,000/. The Appellant led the police to his
residence and aided in recovering Rs. 5,000/ which were found
wrapped in a ‘red cloth’ (Ex. P1), along with a passbook (Ex. P2). It is
alleged that the ‘red cloth’ belonged to the wife of the Complainant,
with the name ‘Kamla’ embroidered on it and the passbook belonged
to the Complainant. Similarly, the disclosure statements of the co
accused led to the recovery of some paltry amount and a country
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made pistol belonging to coaccused Manjeet, which was allegedly
used for commission of the crime. These incriminatory statements
were in line with the divulgation of the Appellant.
5. During the trial, a host of Prosecution witnesses turned hostile.
Even though the Complainant (PW4), in his deposition, acknowledged
that the ‘red cloth’ belonged to his wife but he refuted that the pass
book and/or the said cloth was recovered from the possession of the
Appellant in his presence. He further denied that the Accused,
including the Appellant, matched the identity of the persons who
committed the felony. He also denied that the recovery memo (Ex.
PD/2) bore his signature. The Complainant’s nephew, Sanjay (PW6),
who was an eyewitness, also debunked the very occurrence of the
incident in its entirety and testified that no amount was snatched
from his uncle, the Complainant. In a similar vein, PW5 and PW8,
who were independent witnesses to the recovery of the articles by the
police and to the alleged conspiracy, respectively, also resiled and were
declared hostile.
6. Only the formal witnesses supported the tale of the Prosecution
and stood their ground qua the guilt of the Accused. In this regard,
the testimony of ASI Rajinder Kumar (PW14), who was incharge of
the investigation, bears some significance. This witness affirmed to the
legitimacy of the disclosure statements presented by all the Accused,
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including the Appellant, and stated that the Complainant in his
supplementary statement before the police had contended that Rs.
46,000/ were wrapped in a ‘red cloth’ which had Complainant’s wife’s
name embroidered on it along with a Passbook of Indian Bank. Albeit,
ASI Rajinder Kumar in his crossexamination, admitted that the ‘red
cloth’ which was recovered from the house of the Appellant was easily
available in the market and that the name ‘Kamla’ could also be easily
engraved thereupon. Further, he also deposed that whilst coaccused
Manjeet had sought for Test Identification Parade (for short, “T.I.P.”),
the Complainant refused to participate in the same and instead had
tendered an affidavit, claiming that if he were to identify Manjeet he
would be killed. H.C. Karmbir Singh (PW13), who was present with
PW14 when the disclosure statements were tendered by the Accused,
also supported the Prosecution version and deposed that the recovery
of the incriminating articles was made in his presence.
7. The Appellant in his 313 Cr.P.C. statement denied the recovery
of all the incriminating evidence put before him. To the same effect
were the statements made by other coaccused under Section 313
Cr.P.C., denying the Prosecution version completely.
The Trial Court found strength in the contention of the
8.
Prosecution that the material witnesses had substantially proved its
version though with minor discrepancies. The Court further noted that
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an admission by an accused leading to the discovery of any fact could
be used against them and that in the instant case, the Accused had
failed to provide any explanation as to how they came into possession
of the articles, especially the ‘red cloth’ and the passbook, which were
recovered from the custody of the Appellant. In light of the instant fact
scenario, the Trial Court concluded that recovery of the Articles was
sufficient to draw the inference of culpability and to bring home the
guilt of the Accused. Consequently, the Trial Court convicted the
Appellant and Manjeet under Sections 392 & 397 IPC. Manjeet was
further convicted under Section 25 of the Indian Arms Act, 1959.
Accused Mukesh and Subhash were also convicted under Section
120B IPC. All the Accused were sentenced with a maximum sentence
of rigorous imprisonment of 10 years each under Section 397 IPC
and/or Section 120B IPC.
Discontented, the Accused preferred separate appeals before the
9.
High Court of Punjab and Haryana. Their primary contention was that
none of the eyewitnesses or the independent witnesses supported the
Prosecution case and that they could not be convicted solely on the
basis of disclosure statements. Upon reappraisal of evidence, the
High Court was unimpressed by the plea raised on behalf of the
Accused and concurred with the findings of the Trial Court and
further noted that due to enormous rise in instances of dacoity, the
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nonidentification of the accused in the Court could not be construed
as a material consideration where other evidence points towards the
commission of the crime. The High Court vide a common judgment
maintained the conviction of the Accused persons. Nonetheless, the
High Court reduced the sentence under Section 397 IPC to rigorous
imprisonment of 7 years so as to meet the ends of justice.
10. The aggrieved Appellant is now before this Court.
C ONTENTIONS :
11. We have heard learned counsel(s) for the Appellant and the
RespondentState at a considerable length and perused the record in
depth. The principal contention raised on behalf of the Appellant is
that his conviction is based solely on the basis of the ‘disclosure
statement’ and that there is no other cogent evidence to withstand his
conviction under Sections 392 and 397 IPC. It was further contended
that during the pendency of the present appeal, this Court, in
Criminal Appeal No. 1375 of 2010 and Criminal Appeal No. 1328 of
2013 had already acquitted coaccused Mukesh and Suresh with a
finding that there was a lack of evidence to sustain their conviction
under Section 120B IPC.
12. Learned State Counsel, on the other hand, reminded us of the
limited scope of interference by this Court in a case of concurrent
finding of fact and canvassed that the conviction of the Appellant, on
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the basis of his disclosure statement, which led to the recovery of Rs.
5,000/ along with the ‘red cloth’ and the Indian Bank passbook, was
sufficient to foster the conviction of the Appellant. Regarding the
acquittal of the coaccused, it was rebutted that the allegations qua
them pertained only to the extent of conspiracy, and hence, their
acquittal did not have any substantial impact on the conviction of the
Appellant herein, who is alleged to have actually carried out the
malfeasance.
NALYSIS
A :
13. It may be accentuated at the outset that although this Court is
bestowed with capacious powers under Article 136 of the Constitution,
yet, while beseeching such powers in a criminal appeal by special
leave, this Court would by and large abstain from entering into a fresh
reappraisement of evidence and doubt the credibility of witnesses
when there is a concurrent finding of fact, save for certain exceptional
circumstances where the decision(s) under challenge are shown to
have committed a manifest error of law or procedure or the conclusion
reached is exfacie perverse.
14. Adverting to the case at hand, indubitably, the only eye
witnesses to the alleged crime, i.e., the Complainant (PW4) and his
nephew (PW6) have not supported the case of the Prosecution. The
Complainant (PW4) in his testimony before the Court unequivocally
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denied that the Appellant or his coaccused were involved in the
execution of the offence. Further, in the deposition of ASI Rajinder
Kumar (PW14), who was the investigating officer of the case, there is
no mention of T.I.P. even attempted to be led, in so far as the
Appellant is concerned. Ergo, the very identity of the Appellant as one
of the perpetrators stands obscured, particularly, considering that all
the accused in the case were arrested on the basis of a secret
information, the origin of which is naturally unknown.
The short question that falls for our consideration thus is
15.
whether the conviction of the Appellant on the strength of the
purported disclosure statement (Ex. PD) and the recovery memo (Ex.
PD/2), in the absence of any corroborative evidence, can sustain?
16. We have implored ourselves with abounding pronouncements of
this Court on this point. It may be true that at times the Court can
convict an accused exclusively on the basis of his disclosure statement
and the resultant recovery of inculpatory material. However, in order
to sustain the guilt of such accused, the recovery should be
1
unimpeachable and not be shrouded with elements of doubt. We may
hasten to add that circumstances such as (i) the period of interval
between the malfeasance and the disclosure; (ii) commonality of the
recovered object and its availability in the market; (iii) nature of the
1
Vijay Thakur vs. State of Himachal Pradesh , (2014) 14 SCC 609
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object and its relevance to the crime; (iv) ease of transferability of the
object; (v) the testimony and trustworthiness of the attesting witness
before the Court and/or other like factors, are weighty considerations
that aid in gauging the intrinsic evidentiary value and credibility of the
2
recovery. ( See : Tulsiram Kanu vs. The State ; Pancho vs. State of
3 4
Haryana ; State of Rajasthan vs. Talevar & Anr and Bharama
5
Parasram Kudhachkar vs. State of Karnataka )
17. Incontrovertibly, where the prosecution fails to inspire
confidence in the manner and/or contents of the recovery with regard
to its nexus to the alleged offence, the Court ought to stretch the
benefit of doubt to the accused. Its nearly three centuries old cardinal
principle of criminal jurisprudence that “ it is better that ten guilty
persons escape, than that one innocent suffer ”. The doctrine of
extending benefit of doubt to an accused, notwithstanding the proof of
a strong suspicion, holds its fort on the premise that “ the acquittal
of a guilty person constitutes a miscarriage of justice just as
”.
much as the conviction of the innocent
18. It may not be wise or prudent to convict a person only because
there is rampant increase in heinous crimes and victims are oftenly
2
AIR 1954 SC 1
3
(2011) 10 SCC 165.
4
(2011) 11 SCC 666
5
(2014) 14 SCC 431
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reluctant to speak truth due to fear or other extraneous reasons. The
burden to prove the guilt beyond doubt does not shift on the suspect
save where the law casts duty on the accused to prove his/her
innocence. It is the bounden duty of the prosecution in cases where
material witnesses are likely to be slippery, either to get their
statements recorded at the earliest under Section 164 Cr.P.C. or
collect such other cogent evidence that its case does not entirely
depend upon oral testimonies.
Unmindful of these ageold parameters, we find that the
19.
Prosecution in the present case has miserably failed to bring home the
guilt of the Appellant and Courts below have been unwittingly swayed
by irrelevant considerations, such as the rise in the incidents of
dacoity. In its desire to hold a heavy hand over such derelictions, the
Trial Court and the High Court have hastened to shift the burden on
the Appellant to elucidate how he bechanced to be in possession of the
incriminating articles, without primarily scrutinizing the credibility
and admissibility of the recovery as well as its linkage to the
misconduct. We say so for the following reasons:
Firstly , the High Court and the Trial Court failed to take into
consideration that the testimony of ASI Rajinder Kumar (PW14)
exhibited no substantial effort made by the police for conducting the
search of the residence of the Appellant in the presence of local
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witnesses. The only independent witness to the recovery was Raldu
(PW8) who was admittedly a companion of the Complainant.
, the Complainant (PW4) as well as Raldu (PW8), have
Secondly
unambiguously refuted that neither the passbook, nor the ‘red cloth’
was recovered from the possession of the Appellant, as claimed in his
disclosure statement.
Thirdly , while the Complainant (PW4) negated his signatures on the
recovery memo (EX. PD/2), on the other hand, Raldu (PW8) also
neither enumerated the recovery memo (Ex. PD/2) in the catalogue of
exhibited documents, nor did that he affirm to having his
endorsement.
Fourthly , the recovered articles are common place objects such as
money which can be easily transferred from one hand to another and
the ‘red cloth’ with ‘Kamla’ embossed on it, as has been acceded by the
Investigating Officer, Rajinder Kumar (PW14), can also be easily
available in market.
Fifthly , the recovery took place nearly a month after the commission
of the alleged offence. We find it incredulous, that the Appellant
during the entire time period kept both the red cloth and the passbook
in his custody, along with the money he allegedly robbed off the
Complainant.
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and finally , there is no other evidence on record which even
Sixthly
remotely points towards the iniquity of the Appellant.
It appears to us that the Trial Court and the High Court have
20.
erroneously drawn adverse inference against the Appellant, in spite of
the Prosecution having lamentably failed to adequately dispense with
its burden of proof to depict culpability of the Appellant. As far as the
view of the Trial Court and the High Court qua the alleged threat is
concerned, we find it hardpressed to give credence to such allegations
in the absence of any compelling evidence to substantiate the same.
Although, the Prosecution has attempted to place reliance on the
affidavit presented by the Complainant during the T.I.P. offered by the
coaccusedManjeet, we find that the said affidavit does not name the
Appellant herein and pertains solely to Manjeet.
21. In light of the aforestated discussion, we are of the considered
opinion that the evidence on record does not establish the guilt of the
Appellant beyond reasonable doubt and the Courts below have arrived
at recording the guilt of the Appellant in absence of any cogent
rationale, justifying his conviction.
C ONCLUSION :
22. Consequently, and as a sequel thereto, the criminal appeal is
allowed. The judgments and orders passed by the Trial Court and
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High Court are setaside and the Appellant is acquitted of all charges.
Bail bond, if any, stands discharged.
……………………….. CJI.
(N.V. RAMANA)
………..………………… J.
(SURYA KANT)
………..………………… J.
(HIMA KOHLI)
NEW DELHI
DATED : 08.11. 2021
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