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2015 Supreme(Del) 3286
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA, J.
SHAUKAT – Appellant
Versus
STATE OF NCT OF DELHI – Respondent
Criminal Appeal Nos. 861 & 998 of 2012
Decided On : 24.11.2015
Advocate Appeared:
For Appellant:Ms. Saahila Lamba, Advocate.
For Respondent: Ms. Aashaa Tiwari, APP and SI Rajeev Kumar, P.S. Sarai Rohilla.
The judgment establishes the importance of proving the involvement of the accused beyond a reasonable doubt and the application of Section 114 of the Evidence Act in drawing presumptions based on common sense principles.
Headnote:
Indian Penal Code - Murder and Dacoity - Section 302, Section 34, Section 396 - The judgment discusses the application of Section 114 of the Evidence Act and its exception in relation to the presumption of facts. The court analyzes the evidence against the accused, Lakhinder and Shaukat, and concludes that the prosecution failed to prove their involvement in the robbery and murder of Dina Nath. The court also modifies Lakhinder's conviction from Section 412 IPC to Section 411 IPC.
Fact of the Case:
Dina Nath was robbed and stabbed by unknown persons near Shiv Mandir, Tulsi Nagar. Lakhinder and Shaukat were convicted under Section 302 read with Section 34 and Section 396 of the Indian Penal Code for the murder and dacoity. The case was based on circumstantial evidence, including the recovery of the deceased's mobile phone and SIM card from the accused.
Finding of the Court:
The court found that the prosecution failed to establish the involvement of Lakhinder and Shaukat in the robbery and murder of Dina Nath. The court acquitted Shaukat and set aside his conviction. Lakhinder's conviction under Section 302 read with Section 34 and Section 396 IPC was also set aside, and his conviction under Section 412 IPC was converted to Section 411 IPC with a modified sentence.
Issues: The main issue was whether the accused were involved in the robbery and murder of Dina Nath. The court also addressed the application of Section 114 of the Evidence Act and the exception to its presumption in relation to the facts of the case.
Ratio Decidendi: The court applied the principles of Section 114 of the Evidence Act and its exception to the presumption of facts. It analyzed the evidence against the accused and concluded that the prosecution failed to prove their involvement beyond a reasonable doubt.
Final Decision: Shaukat was acquitted, and Lakhinder's conviction under Section 302 read with Section 34 and Section 396 IPC was set aside. His conviction under Section 412 IPC was converted to Section 411 IPC with a modified sentence. Shaukat was to be released, and Lakhinder's sentence was modified.
SANJIV KHANNA, J.
1. Lakhinder and Shaukat by the impugned judgment dated 28th January, 2012 have been convicted under Section 302 read with Section 34 and Section 396 of the Indian Penal Code, 1860 (IPC, for short) for having committed murder and dacoity on Dina Nath at about 4.50 A.M near Shiv Mandir, Tulsi Nagar. Lakhinder has also been convicted under Section 412 IPC. By the order on sentence dated 31st January, 2012, the appellants have been sentenced to imprisonment for life, fine of Rs. 10,000/- each and in default of payment of fine, to undergo simple imprisonment for six months for the offence under Section 396 IPC. However, the impugned order on sentence records that, in view of the provisions of Section 71 IPC, no separate sentence was imposed for the offence under Section 302 read with Section 34 IPC and, in the case of Lakhinder, for the offence under Section 412 IPC (we have merely reproduced the order on sentence and are not commenting on the same).
2. There is ample evidence to show that that the said Dina Nath was robbed and stabbed by three-four unknown persons at about 4.50 A.M. on 12th June, 2010 near Tulsi Nagar Nala Road (see deposition of Vinod Kumar Sharma (PW-5), pujari of Shiv Mandir, Tulsi Nagar). Constable Dharamvir (PW-1) and ASI Veer Singh (PW-2) had taken Dina Nath to Hindu Rao Hospital where he was admitted for treatment at about 5.10 A.M. on 12th June, 2010 vide MLC Exhibit PW29/A (proved by Dr. Noor Ali (PW-29), who identified handwriting and signatures of Dr. M.D. Hassan). Dina Nath was declared unfit for statement and expired at about 10 A.M. on 13th June, 2010. Constable Dharamvir (PW-1) and ASI Veer Singh (PW-2) have testified that Dina Nath had informed them that he was stabbed by three to four boys, who then proceeded to steal his mobile phone and Rs. 20-25/-.
3. Prosecution asserts that the two appellants, Lakhinder and Shaukat; Shahid @ Sheru (not arrested) and two juveniles had robbed and inflicted stab wounds on Dina Nath. The case set out in the charge sheet and before the trial court is entirely predicated on circumstantial evidence, viz. recovery of the mobile phone instrument of the deceased with IMEI No. 35523203719007 (1) from Lakhinder on 16th July, 2010, SIM card of the deceased Dina Nath bearing No. 9717146012 in the mobile instrument bearing IMEI No. 35905903158206(0) statedly used by Shaukat and call detail records (CDRs, for short). Statedly collaborative evidence is also relied upon to complete the chain of circumstances against the appellants. In order to appreciate and understand the prosecution case, it would be desirable, at first, to refer to the evidence relied upon against Lakhinder and Shaukat separately as this would be convenient and bestow clarity. To avoid repetition and incertitude, we would refer to the mobile phone instrument of the deceased with IMEI no. 35523203719007 (1) as the mobile instrument of the deceased and SIM Card of the deceased bearing no. 9717146012 as the SIM card of the deceased.
Case against Lakhinder.
4. Lakhinder, as noticed above, was arrested on 16th July, 2010 at about 5.00 P.M vide arrest memo Exhibit PW-22/B and, as per seizure memo Exhibit PW-22/A, the mobile phone instrument of the deceased was recovered from him. At the time of Lakhinder's arrest, the said mobile phone instrument had a SIM card with No. 9910922750 inserted in it. The said SIM card was also seized. It is important to note that the SIM card of the deceased was not recovered from Lakhinder.
5. CDRs of mobile SIM No. 9910922750 for the period between 1st June, 2010 to 30th September, 2010 marked Exhibit PW-20/E were proved by Vishal Gaurav (PW-20) of Bharti Airtel Limited, who also proved the certificate under Section 65B of the Indian Evidence Act, 1872 (Evidence Act, for short). This number was issued to Rama Nand, father of Lakhinder, as per customer application form marked Exhibit PW-20/C.
6. As per CDR Exhibit PW-20/E, SIM card with No. 9910922750 was i
