Back
2018 Supreme(Del) 2712
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. MURALIDHAR, VINOD GOEL, JJ.
Ashwani - Appellant
Versus
State - Respondent
Crl. A. 323 & 412of 2018; Crl. MB 451 & 587, 1082 of 2018
Decided On : 08-10-2018
Advocate Appeared:
For the Appellant : Mr. Vikram Singh, Mr. Harpreet Sandhu, Mr. Bhanu Pant, Ms. Nidhi Tiwari
For the Respondent: Mr. Kewal Singh Ahuja
In a case based on circumstantial evidence, the prosecution must prove each link in the chain of circumstances beyond reasonable doubt and the circumstances must point unmistakably to the guilt of the accused.
Headnote:
CRIMINAL - CIRCUMSTANTIAL EVIDENCE - CHAIN OF CIRCUMSTANCES - LAST SEEN EVIDENCE - ARREST OF ACCUSED - RECOVERIES - MOTIVE - CDRs - PROOF - SECTION 437A CrPC - SECTION 65B IEA - SECTION 392/34 IPC - SECTION 302/34 IPC - SECTION 357-A CrPC:
Fact of the Case:
The case involves the murder of Rajender Verma and Shobha Verma, who were found dead in their home on August 10, 2010. The prosecution alleged that the appellants, Gaurav (A-1) and Ashwani (A-2), committed the murders with the intention of stealing Rs.50,000/- and jewelry from the deceased. The appellants were convicted by the trial court under Sections 392/34 and 302/34 of the Indian Penal Code (IPC).
Finding of the Court:
The High Court found that the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. The court held that the evidence of last seen, arrest of the accused, recoveries, motive, and CDRs was not reliable and did not form a complete chain of circumstances pointing unmistakably to the guilt of the appellants.
Issues: 1. Whether the prosecution proved the guilt of the appellants beyond reasonable doubt? 2. Whether the evidence of last seen, arrest of the accused, recoveries, motive, and CDRs was reliable and formed a complete chain of circumstances pointing unmistakably to the guilt of the appellants?
Ratio Decidendi: 1. The court held that the evidence of last seen was not reliable as the witness, Hema (PW-5), made numerous improvements and contradictions in her testimony. The court also found that the arrest of the accused was not proved as there was no independent witness to corroborate the police's version of events. 2. The court held that the recoveries of Rs.50,000/- and the earrings from the appellants were not proved as the seizure memos were not witnessed by any public witness. The court also found that the motive for the crime, which was the stealing of Rs.50,000/-, was not proved as the prosecution failed to establish that the appellants knew about the money or that the money recovered from them was the same money that was stolen from the deceased. 3. The court held that the CDRs were not admissible in evidence as the Nodal Officers who prepared the certificates under Section 65B IEA did not have personal knowledge of the CDRs.
Final Decision: The High Court set aside the impugned judgment of conviction and the order on sentence passed by the trial court. The appellants were acquitted and ordered to be released forthwith unless wanted in some other case.
S. Muralidhar, J.
1. These two appeals are directed against the impugned judgment dated 12th December, 2017 passed by the learned Additional Sessions Judge, Fast Track Court, Shahdara, Karkardooma Court, Delhi (hereafter the ‘trial Court’) in Sessions Case No.173/2010 arising out of FIR No.175/2010 registered at Police Station (‘PS’) Vivek Vihar, convicting both Appellants for the offences punishable under Sections 392 and 302 read with Section 34 of the Indian Penal Code (‘IPC’). The appeals are also directed against the order on sentence dated 18th December, 2017 of the trial Court whereby for the offence under Section 302/34 IPC each Appellant was sentenced to imprisonment for life with the direction that he “would not be released on remission before actual 28 years of incarceration” and fine of Rs.50,000/- each and in default to undergo simple imprisonment (‘SI’) for six months each; and for the offence under Section 392/34 IPC, each of them was sentenced to ten years RI with fine of Rs.25,000/- each and in default of payment of fine to undergo SI for six months.
2. The matter regarding award of compensation to the legal heirs of the deceased persons was referred by the trial Court to the District Legal Service Authority, Shahdara in terms of Section 357-A of the Code of Criminal Procedure (‘Cr PC’).
3. The charge against the Appellants is that both of them on the intervening night of 9th/10th August, 2010 at 137, Janta Flat, Ground Floor, Vivek Vihar, sharing a common intention, committed theft of Rs.50,000/-, a gold chain, a pair of earrings, a mobile phone Nokia 2626 in the house of Rajender Verma and Shobha Verma (‘the deceased’) and in order to commit theft, both the accused committed the murder of the deceased, thereby committing the offences punishable under Section 392/34 and 302/34 IPC.
4. The present appeals were admitted on 14th March, 2018. When the nominal roll was called for, it transpired that each of the Appellants has already undergone, as of 26th March, 2018 over seven years and seven months of imprisonment. The Court decided to advance the final hearing of the appeals itself instead of considering the case of the Appellants for suspension of sentence. It also requires to be noticed here that the Appellant Gaurav (the Appellant in Crl. Appeal No. 412/2018) was stated to have been receiving treatment at the Institute of Human Behaviour and Allied Sciences (‘IHBAS’) at Shahdara, Delhi during the time of his incarceration in jail. His record of treatment was called from IHBAS by the Court vide order dated 11th April, 2018. This record was received on 22nd May, 2018 and was allowed to be inspected by his counsel.
Reporting to the police
5. On 10th August, 2010, DD No.10-A (Ex.PW-16/C) was recorded at 10:01 am at PS Vivek Vihar to the effect that at Flat No. 137 Janta Flat, Vivek Vihar a lady and her husband had been murdered. The mobile number of the informant was also noted in the DD No.10-A. This was handed over to the Station House Officer (‘SHO’) Inspector Sanjay Drall (PW-25), who along with the police staff reached at Flat No.137.
6. Earlier thereto, Sub Inspector (‘SI’) Onkar Singh (PW-26) along with Constable Vikrant (PW-13) reached the flat. The two bodies of Shobha and her husband Rajender were found lying in the front room inside the flat at the ground floor. Both legs of Shobha were tied with a cable wire and a handkerchief was tied on her mouth. A pillow was lying on the mouth of Rajender with bloodstains. Blood was also found on the other parts of his body.
Visit of the crime team
7. PW-25 then called the crime team which came and inspected the spot, took photographs and handed over the crime-scene report (Ex.PW-2/A). The said report noted that the examination took place between 11:30 am to 1:30 pm. The age of Rajender was noted as 60 years and that of Shobha as 55 years. ASI Astasham Ali (PW-2) was part of the crime team. He deposed that ASI Harshvardhan searched for finger prints but could no
