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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:

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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@@

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one juvenile Aman were prosecuted. Trial of juvenile was@@

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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.@@

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