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2018 Supreme(Del) 3246
IN THE HIGH COURT OF DELHI AT NEW DELHI
Hima Kohli, Manoj Kumar Ohri, JJ.
Vijay Shah - Appellant
Vs.
State (Nct Of Delhi) - Respondent
Criminal Appeal No. 407 of 2004
Decided On : 18-12-2018
Sumeet Verma, Adv., Aashaa Tiwari, Adv.
Headnote:
Penal Code, 1860 - Section 302, 364, 120-B R/w 34 – Kidnapping – Murder – Last seen – Conviction – Legality of – Appellant has been convicted – Dead body was recovered – No other person except for the appellant could have approached the deceased at the place of the incident or before the commission of the crime – Version of the prosecution with regard to killing of deceased is not substantiated by the medical evidence – Lack of evidence to establish the death – Motive for the murder of the deceased has not been proved – Disclosure statement of the appellant cannot be looked at for corroboration of this version – Weapon of offence has not been produced nor has anything incriminating been found against the appellant – Merely because the appellant knew the complainant and his wife and he used to visit their house frequently would not be an incriminating circumstance – No blood was detected on the appellant’s shirt – Last seen together is not credible – Witness is not a dependable witness and recovery of the dead body at the instance of the appellant by itself cannot necessarily lead to an inference that it was he who had committed the crime – There had to be some additional chain of circumstances to establish an unbroken link between the accused and the crime – Chain of circumstances is found to be inconsistent – Held, prosecution has failed to prove its case beyond reasonable doubt on the basis of acceptable evidence – Appellant is entitled to benefit of doubt – Impugned judgment is quashed and set aside – Appellant is acquitted.
JUDGMENT :
Hima Kohli, J.
The appellant (A-1) along with Ashok Kumar (A-2) has faced trial in Session Case No.49/2000 in the court of learned ASJ, Delhi for the offences punishable under Sections 302/364/120-B read with Section 34 of the Indian Penal Code, 1860 (in short 'IPC'), arising out of FIR No. 169/2000, PS Prasad Nagar. Vide judgment dated 12.01.2004, Ashok Kumar has been acquitted of all the charges framed against him and the appellant has been convicted for the offences punishable under Sections 302/364 of the IPC. He has however been acquitted of the charge punishable under Section 120-B IPC. Vide order on sentence dated 27.01.2004, the appellant has been sentenced to undergo imprisonment for life and pay fine of Rs.2,000/-. In default of payment of fine, he has been directed to undergo rigorous imprisonment for six months. The appellant has also been sentenced to undergo imprisonment for a period of six years and pay a fine of Rs.2,000/- for the offence punishable under Section 364 IPC and in default of payment of fine, directed to undergo rigorous imprisonment for six months with a stipulation that both the sentences shall run concurrently.
2. Aggrieved by the aforesaid conviction and order on sentence, the appellant has preferred the present appeal.
3. Shorn of irrelevant details, the case set up by the prosecution is that the deceased, Smt. Brijesh, wife of Sh. Niranjan Singh had a liaison with the appellant and he wanted her to leave her husband and three children and live with him. When Smt. Brijesh refused to break her marriage with Sh. Niranjan Singh, the appellant plotted to take her away. This opportunity came his way on 04.4.2000, when he knew that Smt. Brijesh, who lived in Bapa Nagar, Karol Bagh, would be visiting a government dispensary at Patel Nagar, for obtaining medicines. On 04.4.2000, when Smt. Brijesh left her house at 10.30AM along with her 2 year child, Kanchan, the appellant driving a blue coloured Maruti Van bearing registration No. DL-4CE-0940, met her on the way and made her and her daughter board the Van, which he drove towards Dharuhera, Haryana. When the deceased expressed her unwillingness to live with the appellant, he took her to the bed of river Shabi and murdered her. On the very same day, i.e., on 04.04.2000 at 4.45 PM, Jaan Mohd. a public witness found the minor daughter of Smt. Brijesh abandoned on the national highway leading to Gurgaon, Haryana and he took her to his house and informed Police Post Khandsa, Gurgaon.
4. When Smt. Brijesh and her daughter, Kanchan did not return home on 04.04.2000, her husband, Sh. Niranjan Singh lodged a missing report with P.S. Prasad Nagar. When the criminal law was set into motion, the police examined some witnesses including, Kamlesh, the sister of Niranjan Singh and sister-in-law of the deceased, who was residing with her mother on the first floor portion of the same house where Sh. Niranjan Singh and his family members were residing on the ground floor, i.e. House No. 16/483-I, Military Road, Bapa Nagar, Karol Bagh, Delhi. On 17.4.2000, Kamlesh, told her brother that she had seen her Bhabhi, Smt. Brijesh accompanied by baby Kanchan going with Vijay Shah in his Maruti Van on 04.4.2000. Niranjan Singh lodged a report with the police on the very same day and a FIR was registered.
5. After three days of registration of the FIR, on 20.4.2000, the appellant was arrested. Based on his disclosure statement (Ex.PW12/A) made on 23.4.2000, the appellant led the police party, duly accompanied by Niranjan Singh to the bank of river Shabi near Dharuhera, Haryana and on his pointing out to a place at the river bed from the bridge above, blood was found on the stones and the police party recovered a chopped head and a highly decomposed body along with clothes. Nirajan Singh identified the dead body as that of his wife from the skull and her clothes found lying there.
6. The pointing out memo (Ex.PW20/A) was prepared in respect of dry blood on the stones, duly wi
