Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 665

SUPREME COURT OF INDIA
N.V. RAMANA, CJI., SURYA KANT, HIMA KOHLI, JJ.
BIJENDER @ MANDAR - APPELLANT
VERSUS
STATE OF HARYANA - RESPONDENT
CRIMINAL APPEAL NO.2438 OF 2010
DECIDED ON : 08-11-2021

Advocates appeared:
For the Appellant(s) :Mukul Kumar, Advocates
For the Respondent(s):Alka Agarwal, Monika Gusain, Advocates

IMPORTANT POINTS
(1) Although Apex Court is bestowed with capacious powers under Article 136 of Constitution, yet, while beseeching such powers in a criminal appeal by special leave, Apex Court would by and large abstain from entering into a fresh reappraisement of evidence and doubt credibility of witnesses.
(2) Where prosecution fails to inspire confidence in the manner and/or contents of recovery with regard to its nexus to alleged offence, Court ought to stretch benefit of doubt to accused.
(3) It is bounden duty of 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.

Headnote:
(A) Indian Penal Code, 1860 – Sections 392 and 397 – Road robbery – Conviction and sentence – Case of Prosecution banked heavily on disclosure statements made by Accused persons and pre-trial recoveries made pursuant thereto – During trial, a host of Prosecution witnesses turned hostile – Complainant’s nephew, who was an eyewitness, also debunked very occurrence of incident in its entirety and testified that no amount was snatched from his uncle, Complainant – Only formal witnesses supported tale of Prosecution and stood their ground qua guilt of Accused – Only eyewitnesses to alleged crime, i.e., Complainant and his nephew have not supported case of Prosecution – Prosecution in present case has miserably failed to bring home guilt of Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as rise in incidents of dacoity – In its desire to hold a heavy hand over such derelictions, Trial Court and High Court have hastened to shift burden on Appellant to elucidate how he bechanced to be in possession of incriminating articles, without primarily scrutinizing credibility and admissibility of recovery as well as its linkage to misconduct – Trial Court and High Court have erroneously drawn adverse inference against Appellant, in spite of Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of Appellant – Evidence on record does not establish guilt of Appellant beyond reasonable doubt – Judgments and orders passed by Trial Court and High Court set aside and Appellant acquitted of all charges. (Paras 4, 5, 6, 14, 19, 20, 21 and 22)
(B) Constitution of India – Article 136 – Appellate Jurisdiction – Scope and ambit – Although Apex Court is bestowed with capacious powers under Article 136 of Constitution, yet, while beseeching such powers in a criminal appeal by special leave, Apex Court would by and large abstain from entering into a fresh reappraisement of evidence and doubt credibility of witnesses when there is a concurrent finding of fact, save for certain exceptional circumstances where decision(s) under challenge are shown to have committed a manifest error of law or procedure or conclusion reached is ex-facie perverse. (Para 13)
(C) Indian Evidence Act, 1872 – Section 27 – Disclosure Statement – At times Court can convict an accused exclusively on the basis of his disclosure statement and resultant recovery of inculpatory material – However, in order to sustain guilt of such accused, recovery should be unimpeachable and not be shrouded with elements of doubt – Circumstances such as (i) period of interval between malfeasance and disclosure; (ii) commonality of recovered object and its availability in market; (iii) nature of object and its relevance to crime; (iv) ease of transferability of object; (v) testimony and trustworthiness of attesting witness before Court and/or other like factors, are weighty considerations that aid in gauging intrinsic evidentiary value and credibility of recovery – Where prosecution fails to inspire confidence in the manner and/or contents of recovery with regard to its nexus to alleged offence, Court ought to stretch benefit of doubt to accused. (Paras 16 and 17)
(D) Indian Evidence Act, 1872 – Section 106 – Burden of Proof – It may not be wise or prudent to convict a person only because there is rampant increase in heinous crimes and victims are oftenly reluctant to speak truth due to fear or other extraneous reasons – Burden to prove guilt beyond doubt does not shift on suspect save where law casts duty on accused to prove his/her innocence – It is bounden duty of 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. (Para 18)
Facts of the case:
Instant Criminal Appeal emanates from the judgment and order dated 7th September 2009 of High Court of Punjab and Haryana at Chandigarh, whereby the order dated 20th March 2002 passed by the Additional Sessions Judge, Sonepat, convicting Appellant Bijender @ 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 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 offence punishable under Section 397 IPC. Both the sentences were directed to run concurrently. Short question that falls for consideration is whether conviction of the Appellant on the strength of purported disclosure statement and recovery memo, in absence of any corroborative evidence, can sustain?
Findings of Court:
In deposition of ASI Rajinder Kumar 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 Appellant is concerned. Ergo, the very identity of the Appellant as one of the perpetrators stands obscured, particularly, considering that all accused in the case were arrested on the basis of a secret information, the origin of which is naturally unknown.
Result : Criminal Appeal allowed

JUDGMENT :

Surya Kant, J.

The instant Criminal Appeal emanates from the judgment and order dated 7th September 2009 of the High Court of Punjab and Haryana at Chandigarh, whereby the order dated 20th March 2002 passed by the Additional Sessions Judge, Sonipat, convicting the Appellant-Bijender @ 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 concurrently.

FACTS:

2. Briefly put, the Prosecution version is that on 14th 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 (co-accused) 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.

3. Four accused persons, including the Appellant were arrested on 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 Arms Act. Whilst the 5th co-accused (Vinod) could not be arrested and 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 co-accused 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 made pistol belonging to co-accused 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, incl