1997 Supreme(SC) 250

1997(2) Supreme 329
SUPREME COURT OF INDIA
M.K. Mukherjee and B.N. Kirpal, JJ.
Vijender etc. -Appellant
versus
State of Delhi -Respondents
Criminal Appeal No. 769 of 1996
With
Criminal Appeal No. 2017 of 1996
With
Criminal Appeal No. 2022 of 1996
Decided on 12-2-1997
Counsel for the Parties :
For the Appellant : Shrinath Singh, B.M. Sharma and T.N. Singh, Advocates in Crl. A. No. 769/96.
For the Appellant : K.R. Nagaraja and K.K. Tyagi, Advocates in Crl. A. No. 2017 & 2022/96.
For the Respondent : V.V. Vaze Sr. Adv., Suvira Lal, D.S. Mehra and B.K. Prasad, Advocates.

IMPORTANT POINT
The trial Court is required to base its conclusion solely on the evidence adduced during the trial and it cannot rely on the investigation or the result thereof to base his findings.

Headnote:(i) APPEAL AGAINST CONVICTION-Indian Penal Code, 1860-Sections 364, 302-Convictions under-Appeals-Offence of kidnapping with murder-No eye witness-Judgment of conviction based on conclusions drawn from inadmissible evidence-Non consideration of evidence which materially impaired prosecution case-Trial Judge permitted prosecution to lead evidence on some vital issues in utter breach of rudimentary and fundamental principles of criminal jurisprudence-Convictions recorded not sustainable.

       Held that the trial Judge permitted the prosecution to lead evidence on some vital issues in utter breach of the rudimentery and fundamental principles of criminal jurisprudence and that the impugned judgment is a perverse one for it is not only based on conclusions drawn from such inadmissible evidence but suffers from the vice of non consideration of evidence which materially impaired the prosecution case. The impugned judgment cannot be sustained for other reasons also. (Para 7)

       Further held : The reliance of the trial Judge on the result of investigation to base his findings is again patently wrong. If the observation of the trial Judge in this regard is taken to its logical conclusion it would mean that a finding of guilt can be recorded against an accused without a trial, relying solely upon the police report submitted under Section 173 Cr.P.C., which is the outcome of an investigation. The result of investigation under Chapter XII of the Criminal Procedure Code is a conclusion that an Investigating Officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent Court to take cognizance thereupon under Section 190(1)(b) Cr.P.C. and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The trial Court is then required to base its conclusion solely on the evidence adduced during the trial; and it cannot rely on the investigation or the result thereof. Since this is an elementary principle of criminal law, we need not delete on this point any further. Equally unsustainable is the trial Judge s reliance upon the statement made by Jeetu (P.W. 2) before the police in view of the express bar of Section 162 Cr.P.C., which we have discussed earlier. Indeed, we find, the trial Judge placed strong reliance on the purported statement made by Jitender before the police that they (the appellants) were hiding and that they were involved in kidnapping and murder of Khurshid to convict them. (emphasis supplied). (Para 25)

       (ii) Arms Act, 1959-Section 25-TADA-Section 5-Conviction for illegal possession of country made pistol and a cartridge-No charge framed u/s 27 Arms Act-Accused jointly tried for illegal possession of firearm with offences of kidnapping and murder-Evidence led by prosecution relating to kidnapping and murder utilised for convicting the accused u/s 25-No previous sanction for prosecution as required u/s 39 Arms Act produced during trial-Conviction recorded not sustainable. (Para 27)

       (iii) EVIDENCE-Circumstantial evidence-Abscondance of accused-Weak link in chain of circumstantial evidence. (Para 26)

       (iv) Indian Penal Code, 1860-Section 364, 302-Conviction under-Complicity of accused based on two circumstances-Recovery of key of seized car and motive for crime-Absence of any evidence that deceased boy was kidnapped in this car-Conviction based on inadmissible evidence-Not legally sustainable. (Para 26)

       (v) Evidence Act, 1872-Section 60-Oral evidence must in all cases be direct-If it refers to a fact which could be seen it must be the evidence of a witness who says he saw it.

       Held : The evidence of P.W. 5 that Raju gave him the number of the vehicle and the names of the three appellants as the miscreants was not legally admissible for Raju (P.W. 4) did not state that he had soon the three appellants to kidnap Khurshid nor did he give the vehicle number in which Khurshid was taken away. In absence of such direct evidence of Raju (P.W. 4), the testimony of P.W. 5 to that extent would be hit by Section 60 of the Evidence Act. In the instant case the facts which could be seen were that Khurshid was kidnapped, that the appellants kidnapped him and that he was kidnapped in Car No. DDB 5067 and therefore P.W. 4 was the only person (in absence or any other eyewitness) who was legally competent to testify about these facts. Since P.W. 4 did not testify to two of the above facts, namely the car number and the persons who kidnapped him, the statement of P.W. 5 that he was also told the above two facts would not be admissible being, hearsay , but his testimony that P.W. 4 told him that Khurshid was kidnapped would be admissible as corroborative evidence under Section 157 of the Evidence Act. While on this point it need be mentioned that in the facts of the present case Section 6 of the Evidence Act also does not come in aid of the prosecution. (Para 11)

       (vi) Criminal Procedure Code, 1973-Section 162-Evidence Act, 1872-Section 27-Evidence of police witnesses that in consequence of information received from three appellants on June 30, 1992 they discovered place where dead body was thrown-Dead body recovered on June 27, 1992-Evidence inadmissible. (Para 17)

       (vii) EVIDENCE-Offence of kidnapping with murder-Failure of prosecution to prove homicidal death of deceased-Non examination of doctor who held autopsy-Post mortem report admitted on basis of testimony of a clerk of hospital-It was not original report but a carbon copy-Post mortem report relates to an unknown male aged about 25/30 years-Deceased victim being a boy of 17/18 years-Absence of any medical opinion that injuries were homicidal-Accidental death of victim cannot be ruled out-Identification of dead body from wearing apparels-Mother identified body after post mortem examination-Injuries on dead body did not fit in with hole/tear found on shirt-Prosecution failed to prove that victim met a homicidal death. (Paras 21 & 22)