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SUPREME COURT OF INDIA
A.K. Sikri and Uday Umesh Lalit, JJ.
Indra Dalal —Appellant
versus
State of Haryana —Respondent
Criminal Appeal No.1261 of 2009 With Criminal Appeal No.1620 of 2009 and Criminal Appeal No.1189 of 2011
Decided on 29.5.2015
(b) Indian Evidence Act, 1872 – Section 25 and 26 – Confessional statement given to Police while in police custody – Not admissible as evidence. (Para 16)
(1998) 8 SCC 130 – Relied upon
(c) Indian Evidence Act, 1872 – Sections 25, 26 and 27 – Confessional statement given to police – Not admissible u/s 25 and 26 – However if it leads to recovery, that portion is admissible u/s 27 – Instantly alleged confessional statement not leading to any recovery – Recovery of scooter – Not on the basis of disclosure by appellants – Conviction on basis of such confessional statement even with other evidence, not permissible. (Para 23)
(d) Criminal trial – Confessional statement – Made by co-accused in another case – Recorded much after commission of instant crime – Common intention ceasing to exist after the incident – Such confessional statement not admissible – Section 10, Evidence Act, 1872 – Section 120-A and B, Indian Penal Code, 1860. (Paras 24, 25, 26)
[2002] 4 Crimes(SC) 160 / [2002] 6 Supreme 132; [2001] 4 Crimes(SC) 162 / [2001] 6 Supreme 247; [1999] 5 Supreme 60 / [1999] 2 Crimes(SC) 59 – Relied upon
(e) Criminal trial – Recovery – Of scooter – Made from house of one of the appellants – Not on the day of incident – Recovery made from the house of appellant in her absence when she was in jail – Scooter alleged to be owned by one appellant – Ownership denied – No primary evidence adduced to prove ownership of the scooter – Recovery doubtful – Not admissible in evidence. (Paras 29, 30)
Facts of the case:
One Dipender @ Banti, who was the son of the appellant Indra Dalal and nephew of Bijender, was murdered, in which deceased Nand Karan was implicated along with his sons, namely, Ravinder Kumar and Sandeep, who were even in jail in that connection. In order to take revenge, the appellants Indra Dalal and her brothers Bijender and Mahabir had hatched a conspiracy to kill Nand Karan, for which they enticed Udeyveer and got him murdered through him.
Five persons were made accused for committing the murder of Nand Karan. Out of them, the present three appellants were tried together by the Sessions Court who convicted and sentenced them for life imprisonment and also to pay a fine of Rs.10,000 each under Section 120-B read with Section 302 of the Indian Penal Code, 1860.
One more person was also made accused and tried with these appellants. However, he was acquitted of the charges framed against him.
Fifth person, Udeyveer @ Udey @ Sandeep, who was also an accused, was convicted by a separate judgment pronounced on the same date and given the identical sentence.
All the four convicted persons appealed to the High Court. The High Court dismissed these appeals affirming the conviction and sentence passed by the learned Additional Sessions Judge.
Udeyveer has not preferred any further appeal.
Finding of the Court:
The prosecution has miserably failed to prove, beyond reasonable doubt, the charge of conspiracy against these appellants with the aid of Section 120-B of IPC.
Result: Appeals allowed.
JUDGMENT
A.K. Sikri, J.—First Information Report (FIR) No. 99 dated May 24, 2001 was registered at Police Station: City Dadri, Haryana. In this FIR, five persons were implicated and made accused for committing the murder of one Nand Karan (hereinafter referred to as the ‘deceased’). Out of them, three appellants are before us who were tried together and convicted for the said offence by the Sessions Court vide judgment dated April 11, 2008, followed by the order of sentence dated April 12, 2008 sentencing them for life imprisonment and also to pay a fine of ?10,000 each for commission of the offence punishable under Section 120-B read with Section 302 of the Indian Penal Code, 1860. In default of payment of fine, it was directed that they would undergo simple imprisonment for a period of one year each. One more person was also made accused and tried with these appellants. However, he was acquitted of the charges framed against him. Fifth person, Udeyveer @ Udey @ Sandeep, who was also an accused in the said charge-sheet, was convicted by a separate judgment pronounced on the same date, i.e. on April 11, 2008, and given the identical sentence. All the four convicted persons appealed to the High Court. The High Court dismissed these appeals affirming the conviction and sentence passed by the learned Additional Sessions Judge-II, Bhiwani. Udeyveer has not preferred any further appeal. The three appellants before us in these three appeals, however, chose to challenge the judgment of the High Court by filing special leave petitions, in which leave was granted earlier.
2. Now, we take note of the case of the prosecution, in brief, which can be safely culled out from the impugned judgment of the High Court as there is no dispute that the said judgment correctly records the prosecution version:
3. The deceased Nand Karan, a retired Master, and his wife Suraj Kaur, were residing in the house known as ‘Lal Kothi’ situated on the Loharu Road, Dadri. On May 24, 2001, at about 8.00 p.m., the deceased, his wife and his brother Harish Chander Godara were present in the house. While the deceased’s wife was watering the plants in the lawn, the deceased inside the room and his brother on the roof, one young boy aged about 22-25 years, came on a scooter. He told Suraj Kaur that he had come from Rohtak and wanted to meet Master Nand Karan. When she was talking with that boy, the deceased came out of the house to the gate. Suraj Kaur told the deceased that a boy had come to meet him. Soon thereafter, the boy took out a pistol from his pant’s pocket and fired at the deceased on his chest. Another shot was fired at the head of the deceased. The deceased fell down crying. After hearing the sound of shots fired, Harish Chander Godara, brother of the deceased, immediately came down to the spot. After throwing the pistol at the spot, the boy ran away on the scooter on which he came. After the occurrence, many persons, including Suresh Kumar, s/o. Hoshiar Singh, and Jaipal, s/o. Kamal Singh, reached the spot. After arranging vehicle, they took the deceased to the hospital, where he was declared dead. Dr. H.L. Beniwal (PW-3), who attended the deceased at the hospital, declared him dead and sent a ruqqa (Exhibit PE) to the Station House Officer, Dadri Police Station at 9.10 p.m., regarding the dead body being brought by Suresh Kumar and Jaipal.
4. In the hospital, statement of Suraj Kaur (Exhibit PA) was recorded by Sub-Inspector Ram Chander (PW-17) on May 24, 2001 at 11.00 p.m. In her statement, she narrated the abovesaid occurrence and further stated that her husband was got murdered by Dr. Indra Dalal, her brother Bijender @ Vijay and Mahabir, through some unknown person, by hatching a conspiracy. The cause of grudge, as stated by her, was that an allegation of murder was levelled by them against her husband, her son Ravinder Kumar and one Sandeep, s/o. Mahabir Singh and in that regard a criminal trial under Section 302 IPC was pending. Her son and Sand
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