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IN THE HIGH COURT OF DELHI AT NEW DELHI
SIDDHARTH MRIDUL, NAJMI WAZIRI, JJ.
DEEPAK YADAV & ORS. - Appellants
Versus
STATE (GOVT OF NCT OF DELHI) - Respondent
CRL.A. Nos. 231 317, 493 of 2017 & CRL.M. (BAIL) 545, 871 of 2017
Decided On : 23-02-2018
CRIMINAL APPEAL - CONVICTION - MURDER - SECTION 302/34 IPC - ROBBERY - SECTION 392/34 IPC - ARMS ACT - SECTION 25 - IDENTIFICATION PARADE - SECTION 9, 10 IDENTIFICATION OF PRISONERS ACT, 1920 - TEST IDENTIFICATION PARADE - SECTION 54 CRIMINAL PROCEDURE CODE, 1973 - DEFECTS IN INVESTIGATION - SECTION 167(2) CRIMINAL PROCEDURE CODE, 1973 - STATEMENT UNDER SECTION 313 CRIMINAL PROCEDURE CODE, 1973 - FAILURE TO FURNISH EXPLANATION - ADVERSE INFERENCE - SECTION 114 ILLUSTRATION (G) EVIDENCE ACT, 1872 - STANDARD OF PROOF - SECTION 3 CRIMINAL PROCEDURE CODE, 1973.
Fact of the Case:
The appellants were convicted and sentenced for the offences of murder, robbery, and possession of arms. The prosecution's case was that the appellants, along with a juvenile, committed robbery at a medical shop using deadly weapons and during the course of the robbery, they murdered the deceased by firing a bullet on his forehead. The appellants were identified by two eyewitnesses, PW-3 and PW-20, and one of the appellants was also identified in a test identification parade (TIP). The appellants denied the charges and claimed false implication.
Finding of the Court:
The court held that the defects in the investigation did not attribute to the benefit of the appellants and the evidence de hors the defects was sufficient and reliable to uphold the finding of conviction. However, the court found that the testimonies of the eyewitnesses were not reliable and the identification of the appellants in the TIP was not sufficient to convict them. The court also held that the recovery of the mobile phone of the deceased from one of the appellants was not sufficient to convict him for the murder and robbery charges. The court further held that the failure of the appellants to furnish an explanation with respect to the incriminating material put to them did not come to the aid of the prosecution.
Issues: 1. Whether the defects in the investigation attributed to the benefit of the appellants? 2. Whether the evidence de hors the defects was sufficient and reliable to uphold the finding of conviction? 3. Whether the testimonies of the eyewitnesses were reliable? 4. Whether the identification of the appellants in the TIP was sufficient to convict them? 5. Whether the recovery of the mobile phone of the deceased from one of the appellants was sufficient to convict him for the murder and robbery charges? 6. Whether the failure of the appellants to furnish an explanation with respect to the incriminating material put to them came to the aid of the prosecution?
Ratio Decidendi: 1. Defects in the investigation do not attribute to the benefit of the accused if the evidence on record bears out the case of the prosecution and the evidence is of sterling quality and reliable. 2. The standard of proof in criminal cases is beyond reasonable doubt. 3. Mere identification of the accused in a TIP does not substitute for the burden on the prosecution to prove the charges against an accused beyond reasonable doubt. 4. Recovery of stolen property from the accused, in the absence of any other evidence, would not be a safe ground to draw an inference that the accused committed the murder. 5. Failure of the accused to furnish an explanation with respect to any incriminating material put to him would entitle the court to draw an adverse inference against him, however, the initial burden is on the prosecution to prove all the charges against the accused beyond reasonable doubt.
Final Decision: The appeals were allowed, the impugned judgment was set aside, and the appellants were acquitted of the charges of murder and robbery. However, one of the appellants was convicted for the offence of possession of stolen property and sentenced to imprisonment for a period of 3 years.
SIDDHARTH MRIDUL, J.
1. The present batch of criminal appeals instituted under the provision of section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’), assail the judgment and order on sentence dated 07.01.2017 and 21.01.2017, respectively, rendered by the Ld. Additional Sessions Judge, Shahdara, Karkardooma Court, Delhi, in Sessions Case no.67/2011; emanating from FIR No.65/2011 (hereinafter referred to as the ‘subject FIR’).
2. By way of the impugned judgment and order on sentence dated 07.01.2017 and 21.01.2017, respectively, Deepak Yadav (hereinafter referred to as ‘Appellant No.1’); Ravi @ Munna (hereinafter referred to as ‘Appellant No.2’); and Babu Musahid @ Ali @ Akram (hereinafter referred to as ‘Appellant No.3’), were convicted and sentenced as under :
(I) Appellant Nos.1 and 3
i. Life Imprisonment and a fine of Rs.5,000/- for the offence punishable under the provisions of sections 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’). In default of payment of fine, simple imprisonment for a further period of three months.
ii. Rigorous Imprisonment for a period of 7 years and a fine of Rs.2,000/- for the offence punishable under the provisions of sections 392/34 IPC read with section 397 IPC. In default of payment of fine, simple imprisonment for a further period of one month.
(II) Appellant No.2
i. Life Imprisonment and a fine of Rs.5,000/- for the offence punishable under the provisions of sections 302/34 IPC. In default of payment of fine, simple imprisonment for a further period of three months.
ii. Rigorous Imprisonment for a period of 7 years and a fine of Rs.2,000/- for the offence punishable under the provisions of sections 392/34 IPC read with section 397 IPC. In default of payment of fine, simple imprisonment for a further period of one month.
iii. Rigorous Imprisonment for a period of 3 years and a fine of Rs.2,000/- for the offence punishable under the provision of section 25 of the Arms Act, 1959. In default of payment of fine, simple imprisonment for a further period of one month.
The sentences have been directed to run concurrently. Furthermore, the benefit of section 428 CrPC has been granted to the Appellant Nos.1, 2 and 3 (hereinafter collectively referred to as the ‘Appellants’).
3. The fulcrum of the case of the prosecution is that on 15.02.2011, the Appellants along with ‘K’ (juvenile in conflict with law/JCL), in furtherance of their common intention committed robbery at Bharat Medicos, 65 South Anarkali Extension, Delhi (hereinafter referred to as the ‘crime spot/medical shop’) using deadly weapons, and during the course thereof committed murder of Mr. Mulakh Raj Batra (hereinafter referred to as the ‘deceased’) by firing a bullet on his forehead.
4. On 15.02.2011 around 11:55 P.M., ASI Mangal Singh (PW-4) recorded DD No.48A [Ex.PW-4/A] in relation to the underlying incident. Pursuant thereto, SI Sandeep (PW-25) reached at the crime spot where Constable Sandeep (PW-12/16) was already present. On enquiry from one Gulshan Kumar, PW-25 got to know that the deceased was taken to a hospital. Subsequent thereto, PW-25 proceeded to the hospital where the deceased was found to be admitted. Statement of the son of the deceased, namely, Mr. Bharat Batra (PW-3) was recorded [Ex.PW-3/A also Ex.PW-25/A]. Thereafter, PW-25 returned back to the crime spot and the rukka was prepared and sent for registration of the subject FIR. After registration of the subject FIR, investigation of the case was assigned to Inspector Ajab Singh (PW-23).
Crime team arrived and inspected the crime spot as well as took photographs thereof. Visual site plan [Ex.PW-23/A] was prepared by PW-23 at the instance of PW-3. PW-23 seized the country made pistol/firearm, live cartridge therein, fired bullet, fired bullet shell, and lifted the blood from the crime spot, vide separate seizure memos Ex.PW-3/K, Ex.PW-3/D, Ex.PW-3/C, Mark PW-3/PX-3 and Ex.PW-3/E, respectively. A motorcycle bear
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