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CASE NO.: Appeal (crl.) 345  of  2000 Appeal (crl.)   346-348  of  2000 Appeal (crl.)   349      of  2000 Appeal (crl.)   350      of  2000

PETITIONER: SANDEEP

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       26/02/2001

BENCH: M.B. Shah & Doraiswamy Raju

JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..J J U D G M E N T

Shah, J.

   On  the  charge  of murder of one Vishal  Goel,  Sandeep (A1),  Arun Bhatia (A2), Vikram Singh (A3), Mandeep (A4) and@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ one  juvenile  Aman were prosecuted.  Trial of juvenile  was@@ JJJJJJJJJJJJJJJJJJJ separated.   The  Additional  Sessions Judge,  Faridabad  by judgment and order dated 22nd November 1996 in Sessions case No.10 of 1995 convicted all the four accused for the offence punishable under Section 302/34 and sentenced them to suffer imprisonment  for  life and a fine of Rs.  1000/-  each,  in default  of  payment of fine to further undergo RI  for  six months  each.  He also convicted the accused for the offence punishable  under  Section 201/34 IPC and sentenced them  to undergo RI for five years and to pay a fine of Rs.300/- each in  default  of  payment of fine to further undergo  RI  for three  months each.  Both the sentences were directed to run concurrently.

   Against  the  said  judgment and  order,  Sandeep  (A-1) preferred  Criminal  Appeal No.  49-DB of 1997, Arun  Bhatia (A-2) filed Criminal Appeal No.  93-DB of 1997, Vikram (A-3) filed  Criminal Appeal No.  48-DB of 1997 and Mandeep  (A-4) preferred  Criminal  Appeal No.  616-DB of 1996  before  the High  Court of Punjab & Haryana at Chandigarh.  V.K.   Goel, complainant  and father of the deceased also filed  Criminal Revision No.199 of 1997 praying for enhancement of sentence. The  High Court re- appreciated the evidence and  considered the  circumstances  connecting the accused with  the  crime. The High Court disbelieved the evidence of PW6 Gulshan Kumar that  he saw the deceased and accused quarrelling near Kesar Hotel  and  that  he  separated  them  as  in  his  previous statement  he  had not stated that he enquired the names  of those  boys from them.  The High Court held that even if the said  evidence  is ruled out of consideration, it will  make

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only motive in the case behind the killing of Vishal absent. However,  the  Court relied upon the evidence of  PW9  Laxmi Narain  on the ground that Sandeep was known to him  earlier and that Vikram, Aman and Sandeep went to the house of Laxmi Narain  in  expectation that he was having association  with the  complainant V.K.  Goel so he would be able to help them in the investigation or in the trial.  The Court relied upon the  evidence  of  PW11 Manish Sharma for  arriving  at  the conclusion  that the accused and the deceased were last seen together.   Manish  also  gave motor-cycle number  as  HR-29 E/3698.   The  Court  also relied upon the evidence  of  PW7 Bankey  Lal who after some time saw motor-cycle and  scooter coming  at fast speed.  On the motor-cycle, he saw  Sandeep, Aman and Arun.  Arun was driving the motor-cycle and Sandeep was  having sword in his hand.  He also saw Mandeep  driving the scooter and Vikram sitting on its pillion.  On the basis of  the  information,  V.K.  Goel alongwith  Manish  Sharma, Bhuneshwar  and Bankey Lal went in search of Vishal and when they reached near Gurgaon canal they found a pair of chappal of brown colour belonging to deceased.  One locket belonging to the deceased was also found lying there.  At the instance of  accused  Sandeep,  bloodstained sword and  clothes  were recovered.   Similarly,  at the instance of accused  Vikram, motor-cycle  was  recovered  and also  bloodstained  clothes containing  human blood as reported by the Chemical  Analyst were  found.   Considering the aforesaid circumstances,  the Court  arrived  at the conclusion that the  prosecution  has successfully  brought  home  beyond pale  of  doubt  against Vikram  and  Sandeep the charge of murder of Vishal Goel  on 15th  March, 1995 in furtherance of their common  intention. However,  the Court arrived at the conclusion that there was no  evidence  of  recovery so far as Mandeep and  Arun  were concerned  and only evidence that they were last seen in the company of deceased would not alone be sufficient to convict them.

   The  High Court by the impugned judgment and order dated 28th  April, 1999 dismissed the Criminal Appeal Nos.  48 and 49-DB  of  1997 filed by Sandeep (A-1) and Vikram (A-3)  and confirmed  their  conviction.  The Court partly allowed  the Criminal  Revision  No.199 of 1997 filed by the  complainant V.K.  Goel for enhancement of sentence and enhanced the fine in  respect of Sandeep (A-1) and Vikram (A-3) to Rs.25,000/- each for the offence punishable under Section 302/34 IPC and to  Rs.5,000/- each for the offence punishable under Section 201/34  IPC.   In  default  of payment of  fine,  they  were further  directed to undergo RI for one year and six  months respectively.   The Court allowed Criminal Appeal No.  93-DB of  1997 and Crl.  Appeal No.  616-DB of 1996 filed by  Arun Bhatia  (A-2)  and Mandeep (A-4) respectively and  acquitted them for the offences for which they were charged.

   The  said  judgment and order is challenged by,  Sandeep (A-1)  by filing Criminal Appeal No.  345 of 2000, by Vikram (A-3)   in  Criminal  Appeal  No.    350  of  2000,  by  the complainant  V.K.  Goel in Criminal Appeal Nos.  346 to  348 of  2000 against Mandeep, Arun Bhatia and State.  The  State of  Haryana has also filed Criminal Appeal No.  349 of  2000 against acquittal of Mandeep.

   It  is the prosecution version that on 15th March,  1995 at  about  7.30  p.m., i.e.  on the day  of  incident,  when deceased  Vishal  was  at his house and was  about  to  take meals, some one called him from outside on which he went out and did not come back.  In the night, father of the deceased

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lodged   a  missing  report,  Ex.PP.    On  the  next   day, complainant  was informed by PW11 Manish Sharma that he  had seen  the deceased going on a motor-cycle along with Sandeep (A-1)  and  Arun  Bhatia  (A-2)  in  the  evening  time   on 15.3.1995.   He  was also informed by Bankey Lal  (PW7)  and Bhuneshwar  that  on 15.3.1995 they saw one motor-cycle  and one  scooter  coming  from  the   side  of  canal.   On  the motor-cycle,  they  saw  Sandeep, Aman and Arun.   Arun  was driving  the  motor-cycle and Sandeep was having a sword  in his  hand.  The scooter was driven by Mandeep and Vikram was pillion rider.  It is also stated that one Gulshan Malik PW6 also  informed  V.K.  Goel that he had seen Vishal  and  5/6 boys  quarrelling  near Kesar Sweet Restaurant and  that  he separated  them.  He also disclosed the names of those  boys as Arun, Aman, Sandeep,Vikram and Mandeep.  While continuing with  the  search,  the complainant and  others  reached  at Gurgaon  canal and found a pair of chappal which V.K.   Goel identified  as belonging to his son Vishal.  Close- by  they noticed  trail  of blood going up to the canal as also  drag mark.   The  matter  was reported to the police and  on  the basis  of  information given by the witnesses, FIR No.   221 was  lodged  on 16.3.1999 at about 7.00 p.m.  under  Section 364/34  IPC.  After lodging the FIR, the police party  along with  PW7,  PW11 and the complainant went to  Gurgaon  canal where  they  found a locket Om belonging to the  deceased. It  was sealed, marked and seized by the police.  Similarly, chappals were sealed, marked and seized.  Divers were called from  the  Fire Brigade Station, but despite  their  efforts they could not locate the body as it was night.  Thereafter, on  17.3.1995,  at about 10 a.m.  divers could  recover  the dead  body from the canal.  An autopsy on the dead body  was conducted.   Dr.   V.K.  Aggarwal PW5 found several  incised wounds  and  opined  that  the death was due  to  shock  and haemorrhage as a result of injuries to the vital organ which were  ante mortem in nature and sufficient to cause death in the  ordinary course of nature.  It is also the  prosecution story  that  on 18.3.1995, Sandeep, Vikram and Aman went  to the  house  Laxmi  Narain  PW9 and made  an  extra  judicial confession  that they committed the murder of Vishal and his body  was thrown in Gurgaon canal.  Accused further informed him  that  they  were  afraid  of the  police  as  they  had committed  heinous  crime and requested him to produce  them before  the police.  He produced them before the police  and they  were  taken  into  custody.  On  the  basis  of  their disclosure  statements,  recoveries were effected.   Sandeep (A1)  disclosed about the sword Ex.  P7, black pant  Ex.P22, blood  stained jacket Ex.  P.21, and sandow banian  Ex.P.23. Vikram (A3) disclosed about the motor-cycle and clothes.

   At  the time of hearing of these appeals, learned Senior Counsel  Mr.   U.R.  Lalit appearing for  Sandeep  submitted that  (1)  Courts  below  erred in  relying  upon  so-called confession  before  PW9  Laxmi Narain as  it  is  absolutely vague.    So  called  confession  no  where  indicates   who committed  murder  and where it was committed.  For  proving the  confession,  exact  words uttered by  the  accused  are necessary  to be proved.  In any set of circumstances, there was  no reason for the accused to approach PW9 and make such confession.  PW9 is not related or acquainted to the accused nor  having any status in the society or holding any post so as  to  be helpful to the accused.  Further, the say of  PW9 Laxmi  Narain that he handed over the accused to the  police inspector  does not find any corroboration from the evidence of  I.O.;  (2) Prosecution has failed to establish motive as

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narrated  by  PW6  Gulshan  Kumar and the  same  is  rightly disbelieved  by the courts below as witness was not  knowing the  accused  nor he was familiar with them;  (3) The  trial court had arrived at the conclusion that the prosecution has failed  to  prove  charge  of criminal  conspiracy  and  the accused  were acquitted for the same.  Therefore, the  chain of circumstances, namely, last seen together and seeing them coming  together, upon which the prosecution relies is  also weaken  as two accused are acquitted by the High Court;  (4) The  prosecution case that despite the detailed FIR  stating the  names  and addresses of the accused, being recorded  on 16th  March, 1995 at 7 p.m., I.O.  did not arrest any of the accused  named  in  the FIR and that the  I.O.   is  totally silent with regard to the steps taken by him after recording of  the  FIR, is not believable.  He submitted that if  this part is disbelieved, so-called recoveries at the instance of accused  become  suspicious.  In any case, recovery  is  not proved by any independent witness as PW9 Laxmi Narain cannot be  said to be an independent witness;  (5) The evidence led by  the prosecution is that of all interested witnesses, who are  connected with the complainant V.K.  Goel in one way or the  other.   He pointed out that evidence of V.K.  Goel  is not  reliable because his version that he came to know about the   arrest  of  accused  after   five  days   is   totally unbelievable  as  he  was in constant touch  with  the  I.O. Learned counsel further pointed out that all the prosecution witnesses have not specifically stated before the court that they were knowing accused and if knowing since when and how. Further,  as  there  was  no  identification  parade,  their evidence is not reliable.

   Learned  senior counsel Mr.  Sushil Kumar appearing  for Arun  Bhatia  submitted that there is no evidence worth  the name  for convicting Arun and, therefore, the High Court has rightly  acquitted him.  He has not made any confession.  He pointed  out that nothing was recovered from Arun Bhatia and complainant  has  named only four boys and he has not  named Arun.

   Mr.   Jaspal Singh, learned senior counsel appearing for Mandeep  adopted  the  aforesaid contentions raised  by  the learned  counsel and in addition submitted that there is  no confession  by  Mandeep and from the evidence on record  the prosecution  has  failed to prove chain of circumstances  to connect  him  with  the crime.  Learned  counsel  Mr.   S.N. Bhardwaj   appearing  for  Vikram   adopted  the   aforesaid contentions  raised by learned senior counsel Mr.  Lalit  as well  as Mr.  Sushil Kumar and submitted that the High Court erred in convicting Vikram Singh.

   As  against  this,  learned counsel Mr.   Mahabir  Singh appearing  for  the State at the outset submitted that  some lapses  on  the  part of I.O.  in not  carrying  out  prompt investigation   would   not  mean   that  evidence  of   the prosecution  witnesses  is not reliable.  He also  submitted that it is true that Public Prosecutor has not taken care in bringing  on record the fact that accused were known to  the witnesses   but   considering  their    evidence   and   the cross-examination  it is apparent that accused were known to the  witnesses and during the trial defence has not  doubted their identity by the witnesses at any point of time.  It is his  contention that prosecution has fully proved the  chain of  circumstances which connect the accused with the  crime. For this purpose, he relied upon the witnesses who have seen

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the  accused  going and coming on motor-cycle  and  scooter, particularly,  Sandeep  having sword in his hand.   He  also relied  upon the evidence of PW6 and submitted that prior to the commission of crime, an incident had taken place at 4 or 4:30  p.m.   on  the day of incident.  Apart from  this,  he referred to cross-examination of PW13 V.K.  Goel, wherein it was  suggested  by the defence that because of  throwing  of acid  on a girl named Deepika, there was dispute between the accused  and the deceased.  He pointed out that recovery  of blood-stained  sword and clothes of accused Sandeep  clearly establishes  his  connection with the crime.   He  submitted that  apart from the evidence of I.O.  as well as PW9  Laxmi Narain,  even the evidence of DW1 corroborates the  recovery of clothes from the houses of Sandeep.  For Vikram Singh, it is  his  contention that he was found alongwith Sandeep.   A motor-cycle  was  found  at  his   instance  and  that   his blood-stained  clothes  were also recovered.  For the  other acquitted  accused  Mandeep, he submitted that there  is  no reason to acquit him as from his house scooter was recovered on the basis of his disclosure statement.  He contended that accused  made confessional statements before PW9 who  handed over  the accused to the I.O.  and at that stage also in his presence accused made confessional statements and thereafter they  were arrested by the I.O.  The learned counsel for the complainant also supported the aforesaid contentions.

   In  our  view,  submission of learned  counsel  for  the appellants  that the courts below erred in relying upon  the confessional  statement  made  by Sandeep before  PW9  Laxmi Narain  requires  to  be   accepted.   Alleged  confessional statement  narrated  by  the witness PW9 is limited  to  the extent  that  Sandeep, Vikram and Aman came to his house  at 9.30  a.m.   on 18th March, 1995.  Sandeep told him that  on 15th March, they committed the murder of Vishal Goel and his body  was thrown in Gurgaon canal near bypass Sectors 9  and 13.   They  also informed him that they were afraid  of  the police  and requested him to produce them before the police. It  is his say that when he was going along with the accused to  inform the police, police met him at T-point of Sector 8 and 9, Faridabad and accused were handed over to the police. From  the  aforesaid version of the witness it  is  apparent that   neither  Vikram  nor   Aman  made  any   confessional statement.   Hence,  it  is  difficult   to  arrive  at  the conclusion  that  Vikram  and  Aman  made  any  confessional statement.   Only  Sandeep told the witness that  they  have committed  the murder of Vishal Goel.  Further, the  learned counsel  is right in submitting that there was no  necessity for  Sandeep  and  other accused to go at the  residence  of Laxmi  Narain,  more  so when Laxmi Narain was  not  closely acquainted with the accused nor was having any status in the society so that he could be helpful to them.  On this aspect prosecution  has not brought anything on record to point out the  reason  as  to why Sandeep and others had gone  at  the house  of PW9.  In cross-examination witness stated that  he was  a member of Lions Club and that Vikram had visited  his house  2-3 times and last time 2 ½ months prior to the date of  occurrence.   He  has also stated that  he  was  knowing Sandeep  prior to his visit at his residence.  It is his say that he met him in a restaurant and both of them took snacks and  he  made payment.  Considering the entire  evidence  of this  witness, in our view, the prosecution has not  brought on  record any reason for the accused to go at the residence of Laxmi Narain to confess their crime.  Therefore, the said confessional statements cannot be relied upon.

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   However,  there  is no reason to disbelieve the  say  of this  witness that Sandeep made confessional statement  that the  dead  body of Vishal Goel was thrown in  Gurgaon  canal near   bypass   Sectors  9  and  13  and  that   sword   and blood-stained  clothes  were kept at his residence.  On  the disclosure statement of Sandeep, blood stained sword wrapped in  red  cover,  one black pant and jacket of  fauji  colour stained  with  blood were recovered from his house.  On  the basis  of  disclosure  statement  of  Vikram,  blood-stained T-shirt  and a motor-cycle bearing No.HR-29 E/3698 parked at the  ground  floor of his house near garage were  recovered. Further discovery of articles from the house of Sandeep gets corroboration from the evidence led by the accused.  Accused led  the evidence of DW1 Jai Bhagwan Singh Dahiya who was at Security  service  in Sector-9, for contending that  accused Sandeep  was  arrested on 16.3.1995 and not on 18.3.1995  as stated  by  the prosecution.  It is say of DW1 that on  16th March,  he  learnt  that  one boy was murdered  and  son  of Mahender  Sharma, namely Sandeep was involved in the  crime. He  had gone at the house of Mahender Sharma at about  10.15 p.m.   In the meantime, S.I.  Bhagat Singh accompanied  with 2/3  other police officers arrived at his house.  It is  his say  that  Sandeep was handcuffed along with one other  boy. The  witness admitted that police enquired about the clothes of  Sandeep  when  he  was sitting in the  drawing  room  of Mahender  Sharma.  Sandeep brought clothes consisting of one jacket,  sandow  baniyan of blue colour, one black pant  and thereafter the police along with the accused left the place. In  cross-examination,  he admitted that he was on  visiting terms  with Mahender Sharma for the last many years and that he  came to know about the murder at about 4/5 p.m.  on 16th March,  1995.  He also came to know about the involvement of Sandeep  in murder case at 10 p.m.  Mahender Sharma and  his wife  were  present  in their house when  police  came.   He admitted  that he had not disclosed this version to  anybody and  was  not summoned as a witness, but at the instance  of Mahender Sharma he appeared as a witness.  This evidence, in our  view,  amply  corroborates that  Investigating  Officer discovered  the  blood-stained  clothes from  the  house  of Sandeep  in  presence  of his parents.  Once  this  part  of discovery is believed, then there is no reason to disbelieve the evidence of Laxmi Narain who was present at the house of Sandeep  when the discoveries as stated above were made.  He has  stated  that  on the disclosure by Sandeep,  they  were taken  at  his residence and Sandeep produced blood  stained sword and clothes in presence of his parents and the witness had attested the recovery memos.

   Further, The prosecution has also produced on record the report  of Assistant Director, (Serology), Forensic  Science Lab,  Haryana who found stains of human blood in the  earth, shirt, T-shirts, pant, sweater, underwear and sword.  As per the  FSL  report, the said articles were found stained  with human blood of B-Group which was also the blood group on the articles recovered from the dead body of Vishal Goel.

   In  our  view, the High Court erred in disbelieving  the evidence  of  PW6 Gulshan Kumar in its entirety.  It is  the say of PW6 that at about 4/4.30 p.m., near Kesar Restaurant, he saw Vishal Goel and 5-6 boys quarrelling with each other. Vishal  Goel was caught by 4-5 boys, who were present in the court,  and he separated them.  In cross-examination, he has stated  that  he was not knowing them prior to the  incident and  that  he was knowing Vishal Goel and his  father  since

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years.   May  be  that, on the date of incident he  was  not knowing  the  names  of the boys who were  quarrelling  with deceased  but  that would not, in any way, falsify  his  say that  Vishal  and 5-6 boys were quarrelling with each  other and  that he separated them.  Even in chief- examination, he has  not  stated  the names of accused.  However,  the  High Court rightly appreciated the evidence of PW11 Manish Sharma who  has  stated  that at about 7.30 p.m.  on  the  date  of incident,  he  saw  accused  Sandeep and  Arun  going  on  a motor-cycle  having  the same number which was recovered  at the  instance  of  Vikram.  This  witness  has  specifically stated  that he was knowing deceased Vishal Goel as he was a tenant  in the house of V.K.  Goel.  He has also stated that he  was  knowing Sandeep and Arun since he became tenant  at the  house of V.K.  Goel.  There is no reason to  disbelieve the  evidence  of this witness.  The evidence is  consistent with  the  evidence  of complainant who has stated  that  at about  7.30  p.m.  when his son Vishal Goel was  taking  his meals,  someone  called him from outside and  thereafter  he left  the house.  Next day, V.K.  Goel was informed by  PW11 Manish  Sharma  that he had seen his son in the  company  of Sandeep  and  Arun at 7.30 p.m.  on a motor-cycle.   Further there  is evidence on record of Bankey Lal PW7 that on  15th March  when he alongwith Bhuneshwar Goel was walking on  the road  leading to Sector 9 and 13, at about 8.30 p.m., he saw Sandeep,  Aman  and Arun on a motor-cycle.  Motor-cycle  was driven  by Arun and Sandeep was having a sword in his  hand. He also saw Mandeep driving a scooter and Vikram was pillion rider.   The  motor-cycle and scooter were coming  from  the side of canal in a fast speed.  On the next day when he came to  know  that Vishal Goel was missing, he accompanied  V.K. Goel  in  search  of him towards canal and found a  pair  of chappal  of brown colour and blood on the earth.  One locket of Om was also found there and they noticed dragging marks on  the  spot  up to the canal.  In  cross-examination,  the witness  has stated that he was on visiting terms with  V.K. Goel  and had gone at his house on number of occasions as he was  residing in neighbourhood.  He has also stated that the accused  boys have been visiting the house of V.K.  Goel and he was knowing their names as he had heard them talking with each  other.  As the evidence of the aforesaid two witnesses is consistent, cogent and reliable, it would be difficult to accept  the  contention of the learned counsel that  because they  knew  V.K.  Goel, therefore, they are  interested  and their  evidence  is not reliable.  In case where the  victim and  accused  are known to a witness, his evidence would  be material  and  cannot  be  criticized that  as  witness  was knowing the father of the accused, he is interested witness. In  the present case, as the witnesses knew the deceased  as well  as  the  accused persons, they were in a  position  to inform the complainant and also to identify the accused.  In such   a   case  there  was  no  question  of   holding   an identification  parade.   The   aforesaid  evidence  clearly establishes  that the deceased was last seen in the  company of  Sandeep and others after leaving the house at about 7.30 p.m.   Thereafter, Sandeep having sword and others were seen coming  back  from the canal side by Bankey Lal, PW7.   From the  house  of Sandeep blood-stained sword and clothes  were discovered.    Similarly,  the   bloodstained  T-shirt   was discovered  from the house of Vikram and from the garage  of his  house,  motor-cycle  bearing No.HR-29 E/3698  was  also recovered.   PW5  Dr.  Aggarwal carried out the  post-mortem and found as many as 10 incised wounds which could be caused by  a sword.  The sword and the clothes which were recovered were found stained with blood of B group which is also the

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blood  group  found from the earth lifted from the spot  and from the articles found on the body of deceased Vishal.

   In  view of the aforesaid circumstantial evidence proved by  the  prosecution,  even if we discard  the  confessional statement  made by accused Sandeep before PW9 Laxmi  Narain, the  High Court was right in convicting accused Sandeep (A1) and  Vikram  Singh (A3).  Further, the High Court held  that against  Mandeep and Arun, except seeing them together while coming  back  by PW7, there is no other evidence to  connect them with the crime and that there was no discovery of blood stained  articles  at  their  instance.   Hence,  they  were acquitted.   But that would not in any way adversely  affect the  prosecution  evidence qua A1 and A3.  It is  also  true that  despite  the  detailed  FIR,  the  IO  has  not  taken immediate  steps for arresting the accused named in the FIR. But  sluggishness  in  investigation would not  in  any  way adversely  affect the evidence of complainant-PW13, PW7  and PW11.   In this view of the matter, the finding recorded  by the High Court convicting A1 and A3 and acquitting A2 and A4 does not call for any interference.

   In the result, the appeals are dismissed.

(M.B. SHAH)

(DORAISWAMY RAJU)

February  26, 2001.@@ JJJJJJJJJJJJJJJJJJJ