2018 Supreme(P&H) 2713

IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
Hon’ble Mr. Justice A.B. Chaudhari
Hon’ble Mr. Justice Kuldip Singh
CRA-D-867-DB of 2012 (O&M)
Central Bureau of Investigation
v.
Bibi Jagir Kaur & Ors
{Decided on 04/12/2018}

Approver – Evidentiary Value of – The “inculpatory statements” made by the accused to such a approver cannot partake the character of “extra-judicial confession” and such “inculpatory statements” are not admissions
Call Records – It cannot be held that if the call details shows the movement of SIM cards from one place to another, necessarily, the accused persons must be held to have moved along with SIM cards.
Recalling of Witness – It is true that there is a judicial discretion in the Court to deal with such application but that does not mean that such a judicial discretion can be arbitrary and utilized on the whims and fancies

Headnote:(A) Indian Penal Code, 1860, S.304, S.313, and S.365 – Culpable Homicide – Causing Miscarriage – Bibi Jagir Kaur case – Acquittal – Prosecution story that Bibi was opposed to relationship of her daughter(deceased) with complainant (Husband of deceased) due to disparity in their respective status – Deceased had become pregnant from loins of complainant and miscarriage of her pregnancy was caused by kidnapping and keeping her confined in a house where doctor with help of medical staff carried abortion of a dead fetus – Deceased was confined to that house only but when she managed to escape she was persuaded to come back on pretext of agreeing to marriage with complainant – She was given meal laced with poison – She died same night and was cremated next morning without conducting any post mortem to destroy all evidence – Cause of death was projected as natural death due to extreme dehydration – Preliminary enquiry was conducted by State Police thereafter matter was transferred to CBI – CBI made said Doctor approver and based all the allegation on his statements – Trial Court convicted the accused – High Court ordered acquittal on following grounds: -

       (i) Prosecution did not collect/rely on any direct evidence in form of eye witness or otherwise – CBI made their alleged witness as approver who deposed as to the happenings right from beginning but was not made an accused at any point of time – Inculpatory statements made by accused to such approver does not amount to extra judicial confession and such inculpatory statements are inadmissible in evidence;

       (ii) Prosecution failed to prove that said approver was close aide having family relations with accused to whom everything could be known – It was not proved that said approver was doctor employed in dispensary run by accused as alleged.

       (iii) Approver has made material improvements in his statements which cannot be ignored – Approver held to be a planted witness and his evidence is rejected.

       (iv) As per material on record, approver was made approver witness by practicing pressure tactis, threats etc in a professional manner and he tendered his evidence accordingly – He was given choice to be a approver or be accused.

       (v) Complainant (husband of deceased) was declared hostile by the CBI – In his cross-examination by defence he completely demolished prosecution case – An application u/s 340 Cr.P.C for perjury by CBI was filed against the complainant and it was alleged that he did so by taking huge money from accused –

       (vi) CBI had never asked for recalling him – However, application by complainant for his recall was allowed after 10 years of his evidence by trial Court which held to be wrongly allowed.

       (vi) On basis of material on record, complainant held to be dishonest, deceptive witness and a liar – His story is incredible and abounds in contradictions of the gravest kind – His evidence is actuated with mala fides, enmity and a very strong motive and greed coupled with enmity against the main accused Bibi – Therefore, his entire evidence rejected being motivated and being dishonest. (Para 52)

       (vii) Call details found to be incredible as the investigating officer did not seize any of the mobile phones or SIM cards in respect of which the evidence of call details has been relied upon – Not a single witness by the prosecution was examined nor any evidence has been brought on record that anybody saw mobile phones having SIM cards of the numbers allegedly used by the accused persons – There is thus, no direct evidence to that effect. (Para 63)

       (viii) The prosecution does not have any evidence against any of the accused persons that in relation to alleged conspiracy or alleged abduction or other acts thereafter, till the date of death, the accused persons had factually moved from one place to another as indicated in the call details which have been heavily relied upon. (Para 64)

       (ix) Prosecution cannot claim that by movement of SIM cards from one place to another, that it has also proved the movement of the persons allegedly using the SIM cards in respect of which call details have been produced on record nor that a particular person was moving. (Para 64)

       (x) Younger sister of deceased who was present with her elder sister throughout and son of one of the accused at whose house deceased was confined, both of them were not examined though their evidence was recorded – Adverse inference to be drawn against the prosecution for withholding these material witnesses.

       (xi) Preliminary Enquiry report was as submitted by first officer of the CBI who took over investigation and registered Preliminary Enquiry has stated that the name of the approver never figured in his inquiry and he arrived at a conclusion that death deceased was due to dehydration.

       (B) Criminal Procedure Code, 1973, S.306 – Pardon to Accomplice – Approver – The salient features are:-

       (i) a person supposed to have been directly or indirectly concerned in or privy to an offence; (i) can be tendered a pardon;

       (iii) will have to make full and true disclosure within his knowledge;

       (iv) in the commission of the offence;

       (v) shall, unless he is already on bail, be detained in custody until the termination of the trial. (Para 20)

       (C) Criminal Procedure Code, 1973, S.306 – Approver – Evidentiary Value of – There is a vast difference between a “witness” – Approver cannot be treated at par with the “witness” – Approver is subject to various restrictions/prohibitions/consequences which do not apply to an ordinary witness – Whether approver was made an accused along with other accused persons before granting pardon would make no difference. (Para 26)

       (D) Criminal Procedure Code, 1973, S.306 – Approver – Evidentiary Value of – The “inculpatory statements” made by the accused to such a approver cannot partake the character of “extra-judicial confession” and such “inculpatory statements” are not admissions vide Section 21 of the Evidence Act, cannot be made admissible in evidence – Nay an approver is a most unworthy friend, he having bargained for his immunity. (Para 26)

       (E) Criminal Procedure Code, 1973, S.311 – Recalling of Witness – The delay in trial is one of the aspects of the matter – But then the power cannot be exercised to allow a witness to get re-examined for enabling him to make a somersault as per his whims and fancies. (Para 48)

       (F) Criminal Procedure Code, 1973, S.311 – Recalling of Witness – Power under Section 311 Cr.P.C. not to be exercised on the whims and fancies of Court – Trial was almost at the fag end after 10 years, such application could not be dealt with in a casual and cavalier manner based on no material and on the whims and fancies of Court. (Para 48)

       (G) Criminal Procedure Code, 1973, S.311 – Recalling of Witness – It is true that there is a judicial discretion in the Court to deal with such application but that does not mean that such a judicial discretion can be arbitrary and utilized on the whims and fancies. (Para 48)

       (H) Evidence Act, 1872, S.65-B – Call Records – It cannot be held that if the call details shows the movement of SIM cards from one place to another, necessarily, the accused persons must be held to have moved along with SIM cards. (Para 64)

       (I) Criminal Procedure Code, 1973, S.287 – Non-examination of Material witness – Adverse Inference – No explanation for not examining material witnesses which was essential to find out the truth – Prosecutrix was not at all justified in with holding the witnesses – Held; It is different matter as to whether they would have supported the prosecution case or not, but then the CBI should have left it to the Court rather than withholding these witnesses – Adverse inference against the prosecution to be drawn – Evidence Act, 1973, S.114(g). (Para 65)

       (J) Duty of Court – Media Trial – Taking of sides in criminal cases, suggesting innocence or guilt of accused persons can cause grave prejudice, by either influencing the minds of Judges, Jurors, witnesses, or by creating a climate of sympathy for, or prejudice against the accused – It is but essential, that those, who are engaged in the administration of justice, should be free from outside influence, and the judicial machinery should be left unaffected by popular feelings as to guilt or innocence of persons being tried or awaiting trial on a criminal charge – The legal machinery, according to our law for adjudging the culpability of accused persons, or in civil cases, for determining the rights of the parties, carefully excludes from consideration facts and circumstances, other than those which are presented in a formal manner, according to the rules of procedure and evidence. (Para 16)