Gautam Dass and Another vs State of Haryana

M. Jeyapaul, J.—Accused Gautam Dass and Nimai Manjhi have filed Crl. A. No. 792-DB of 2009 and accused Rajesh has preferred Crl. A. No. 267-DB of 2010 aggrieved by the conviction and sentence passed by the trial Court as follows:-

All the sentences were ordered to run concurrently.

The brief case of the prosecution is that Manoj Yadav (since deceased) who was the brother of PW12 Lallan Yadav was missing with Alto car bearing No. DL-3C/AZ-0961 in which he was engaged as a driver by PW13 Surinder Pal right from 23.12.2007 at about 11.00 p.m. Inspite of the search made by PW12 and PW13, Manoj Yadav was not found.

PW7 Satbir having detected a dead body of a young person in the bushes near Gurgaon road leading from Sethi Company Goodwill Chungi to Faridabad suffered a statement Ex. P12 before PW14 S.I. Jitender Singh. PW14 arranged a photographer to take photographs Ex. P7 to P11 of the unknown dead body. Thereafter he held inquest and prepared inquest report Ex. P3 and sent the dead body to B.K. Hospital, Faridabad for identification. PW12 Lallan Yadav identified the dead body as that of his brother Manoj Yadav.

On 25.12.2007, PW12 Lallan Yadav suffered a statement Ex. P4. Based on Ex. P4, a formal first information report was registered. PW14 visited the spot again and prepared a rough site plan Ex. P28. PW2 Dr. Y.P. Singh conducted post mortem examination on the dead body of Manoj Yadav on 25.12.2007 and issued post mortem report Ex. P2 expressing his opinion that the cause of death was Asphyxia due to strangulation which was ante mortem in nature. It is his opinion that the death would have occasioned on 24.12.2007 before dawn.

PW17 Inspector Narender Kumar, SHO, Sector 55, Faridabad took up the case for investigation on 2.1.2008. He procured call details of the mobile phone of the deceased bearing mobile set SIM card No. 9810759597 through PW15 Constable Dinesh. PW17 during the course of investigation came to know that said mobile of the deceased was used by accused Gautam Das in Sahara Mall, Gurgaon with SIM No. 9810899104. He arrested accused Gautam Dass at village Chhakarpur. The mobile phone of Nokia 1110 was recovered from him based on the disclosure statement Ex. P18 suffered by accused Gautam Dass. The said mobile phone was identified by PW8 Ramphal, the maternal uncle of the deceased as that of the mobile set of the deceased Manoj Yadav.

On identification of accused Gautam Dass, accused Nimai Manjhi was arrested. On search, black colour purse with the photograph of the deceased was recovered. The said purse was identified by PW8 as that of deceased Manoj Yadav. On the basis of the disclosure statement suffered by those two accused the place where the dead body was thrown was identified.

On 5.1.2008, PW17 proceeded to Jharkhand and arrested accused Rajesh from village Siriya in Jharkhand on 7.1.2008. On interrogation, accused Rajesh suffered disclosure statement Ex. P24. On the basis of his disclosure statement the keys of the car kept by him in his room were recovered alongwith the car bearing registration No. DL-3C-AZ/0961. In the dash board of the car, registration certificate and pollution certificate issued to PW13 Surender Pal were recovered.

PW17 made enquiry from Airtel office about I.D. Proof of mobile phone No. 9810899104. On enquiry it was revealed that I.D. Proof in the shape of driving licence of one Kamal Kumar Patro was used. The application form submitted seeking mobile connection bore the signature of accused Gautam Dass. On investigation, he found that Kamal Kumar Patro was a fake person. No driving licence as produced as I.D. Proof was issued by the SDO (RDO Officer), Sector 12, Faridabad.

All the three accused took up the plea in their respective statements u/s 313 Cr.P.C. that they were innocent, but a false case was foisted on them with false recovery.

The trial Court having completely relied upon the recovery of mobile phone at the instance of accused Gautam Dass, the recovery of a purse with the photograph of the deceased from the custody of accused Nimai Manjhi and the car of PW13 from the possession of accused Rajesh, in the background of the call details Ex. P30 collected by the investigating officer and spoken to by PW16 Constable Dinesh recorded conviction as against the accused-appellants.

We heard the submissions made by learned counsel for the accused-appellants Rajesh and Nimai Manjhi. Learned counsel Mr. Bijender Dhankar, Advocate who originally filed a common appeal for both accused-appellants Gautam Dass and Nimai Manjhi would submit that accused Gautam Dass has already taken away the brief from him. None appeared for accused Gautam Dass. Therefore, Mr. Bijender Dhankar, Advocate who originally appeared for accused Gautam Dass was appointed as Amicus Curiae by us to argue the case on behalf of accused Gautam Dass. His argument on behalf of accused Gautam Dass was heard. We also heard the submission made by learned DAG, Haryana appearing for the State.

The entire case of the prosecution hinges on circumstantial evidence. The recovery of mobile phone of the deceased at the instance of accused Gautam Dass, the recovery of purse having the photograph of the deceased from the custody of accused Nimai Manjhi and recovery of the car owned by PW13 and driven by the deceased from accused Rajesh were projected as the material circumstances to prove the case of the prosecution. In addition to the recovery as detailed above, it is the case of the prosecution that all the above accused demarcated the place where the dead body of Manoj Yadav was thrown based on the disclosure statement respectively suffered by them.

Learned counsel appearing for the appellants would vehemently submit that the dead body of Manoj Yadav was detected by PW7 Satbir. The spot was inspected by PW14 SI Jatinder Singh on 24.12.2007 itself. Therefore, the alleged demarcation of the site where the dead body was thrown by the accused based on their respective disclosure statements cannot be considered as a fact discovered based on the disclosure statements suffered by the respective accused.

We find that there is merit in the above submission made by learned counsel appearing for the appellants. Only that portion of the disclosure statement which leads to the recovery of a new fact is admissible u/s 27 of the Evidence Act. Admittedly, the spot where the dead body was found was already known to PW14 SI Jatinder Singh who inspected the spot on the basis of the statement Ex. P12 suffered by PW7 Satbir on 24.12.2007 itself. Therefore, the alleged demarcation of the site where the dead body was allegedly thrown by accused on the basis of the disclosure statement cannot at all be considered as a piece of evidence as no new fact as to the spot where the dead body was lying was discovered on the basis of their disclosure statements.

Let us now take up the recovery of the material objects projected by the prosecution one by one. PW17 would depose that accused Nimal Manjhi was searched by him and during such a search made by him a black colour purse with the photograph of deceased Manoj Yadav was found in his pocket. The above recovery was allegedly made on 2.1.2008 whereas, the occurrence had taken place on 24.12.2007. It is quite unbelievable that the accused retained a black colour purse of the deceased with the photograph of the deceased in his pocket for 9 long days. It is not the case of the prosecution that some cash amount was kept in the purse and the same was also missing. It is against common sense that an accused would prefer to keep the photograph of the deceased also in the purse retrieved by him from the deceased. Further, such a recovery was not effected based on any disclosure statement suffered by him. In our considered view, such a recovery projected by the prosecution does not inspire confidence. Further there is no other evidence available as against accused Nimai Manjhi to connect him to the crime. Therefore, Nimai Manjhi is entitled to acquittal of all the charges framed as against him.

The car was allegedly recovered from the possession of accused Rajesh. Learned counsel appearing for the accused-appellant Rajesh would vehemently submit that no police official from the local police of Jharkhand was associated for the purpose of recovery of car. Even assuming for the sake of arguments that there was some recovery of the car owned by the deceased, accused Rajesh may be liable for the charge u/s 411 IPC for having dishonestly retained such a stolen property. Further it is his submission that the recovery of car in the absence of any other evidence would not connect accused Rajesh to the crime of murder.

The recovery of car had been made from village Siria in the State of Jharkhand on 7.1.2008. It is not as if PW17 Inspector Narender Kumar, SHO, Sector 55, Faridabad rushed straight to the said village on proper information and arrested accused Rajesh forthwith without giving any scope for his escape and recovered the car. PW17 had reached Jharkhand on 5.1.2008 itself. He had been camping in the State of Jharkhand for 3 long days. But there is no evidence let-in by the prosecution that PW17 associated any local police for the purpose of arrest and recovery from accused Rajesh in their jurisdiction.

It is a common knowledge that a police official who proceeds to some other State for the purpose of effecting arrest and recovery would associate the local police for very many reasons. Firstly, it would be difficult for the police official hailing from another State to locate the whereabouts of the accused. Secondly, the police official from the other State would make attempt to collect all information available with the local police in connection with the accused. Thirdly it would be easy for the police official from the other State to effect arrest and effect recovery with the assistance of the local police force. The non-association of any local police creates a doubt in our mind as to the alleged arrest and recovery made at Siria in the State of Jharkhand. Further, in our considered view, the car which was robbed would not have been kept for personal use of accused Rajesh. An accused who robs a vehicle, that too after commission of murder, would try to dispose of the vehicle at the quickest possible time. The vehicle was allegedly recovered only from the house of accused Rajesh. Such a recovery allegedly effected from accused Rajesh does not inspire confidence. Even assuming for the sake of arguments that the car was infact recovered from the possession of accused Rajesh, it may connect accused Rajesh to a charge u/s 411 IPC and not to the crime of murder. Therefore, we have no hesitation to relieve accused Rajesh as well from all the charges framed as against him.

Accused Gautam Dass was convicted based on the recovery of mobile set allegedly owned by deceased Manoj Yadav. Learned counsel appearing for the accused-appellant would vehemently submit that the prosecution failed to establish that the deceased possessed a mobile phone set with SIM Card 9810899104. A very important piece of evidence, namely, the application form submitted for mobile connection which allegedly bore the signature of accused Gautam Dass was not exhibited before the Court. The prosecution failed to establish that the mobile set possessed by him was in use beyond 31.12.2007. Therefore, accused Gautam Dass could not have been apprehended on the basis of use of the mobile set on 2.1.2008 by him. Hence, it is submitted that accused Gautam Dass also is entitled to acquittal.

In the statement Ex. P4 suffered by PW12 Lallan Yadav, the brother of deceased Manoj Yadav, it has been stated that deceased Manoj Yadav possessed a mobile phone bearing SIM No. 9810759597. In the mobile call details Ex. P30 collected by PW16 Constable Dinesh, we find that those call details relate from the period from 15.12.2007 to 31.12.2007. There is no evidence as to whether accused Gautam Dass continued to use the same mobile beyond 31.12.2007. In other words, accused Gautam Dass could not have been zeroed-in on by tracking down the mobile set bearing IMIE No. 351475608278550 on 2.1.2008.

On a careful analysis of Ex. P30, we find that the mobile set was used with SIM No. 9810759597 from 15.12.2007 to 23.12.2007 and mobile set bearing IMIE No. 351475608278550 with SIM Card No. 9810899104 was used from 24.12.2007 to 25.12.2007 and thereafter, the mobile set with IMIE No. 359389003285000 with SIM Card No. 9810899104 was used from 27.12.2007 to 31.12.2007.

It was submitted by learned DAG, Haryana appearing for the State that the mobile set possessed by the deceased was used by accused Gautam Dass by simply changing the SIM Card in the mobile set of the deceased. It is his submission that recovery of mobile set of the deceased from the possession of accused Gautam Dass clearly establishes his involvement in the crime alleged as against him.

It is true that in the statement Ex. P4 suffered by PW12 Lallan Yadav, brother of the deceased, it has been specifically stated that deceased Manoj Yadav possessed a mobile phone bearing SIM Card No. 9810759597. It is to be noted at this juncture that PW7 Satbir had suffered a statement immediately after locating the dead body of Manoj Yadav on 24.12.2007 itself. PW14 SI Jatinder Singh had visited the spot. The photographs of the dead body would go to show that there had been blood stains both in the nose and mouth of the deceased. But PW14 would say that he simply sent the dead body to the mortuary on 24.12.2007 itself without registering any case based on the statement suffered by PW7 on 24.12.2007. It is not as if the relatives of the deceased were not aware of the detection of the dead body of Manoj Yadav. PW12, brother of the deceased and PW8, the maternal uncle of the deceased have categorically deposed that on 24.12.2007 itself they having come to know of the dead body lying at B.K. Hospital at Faridabad proceeded over there and identified the dead body. But unfortunately, PW10 has not chosen to record any statement either from PW12 or from PW8 to set the law in motion.

In our considered view, PW10 should have set the law in motion by registering the first information report based on the statement suffered by PW7, as it is found from the photographs taken from the scene of occurrence that there was blood stains on the nose and mouth of the deceased. Even after PW12 and PW8 have identified the dead body, PW10 has not chosen to obtain their statements in order to set the law in motion. In our considered view, the registration of the case, for the reasons best known to the investigating official, has been wantonly delayed.

Ex. P30 does not give any details of the user of the mobile phone No. 9810899104 and mobile phone No. 9810759597. In other words, there is no evidence on record to show that accused Gautam Dass possessed a mobile phone with SIM Card No. 9810899104 and deceased Manoj Yadav possessed the mobile with SIM Card No. 9810759597.

The investigating official should have recovered the application form submitted not only by deceased Manoj Yadav, but also by accused Gautam Dass for obtaining SIM Card from Bharti Airtel Ltd. to establish that those SIM cards had been issued to them. Unless, the same was established, we cannot jump to a conclusion based on some call details of those two mobile numbers that the mobile No. 9810759597 was used by the deceased and mobile No. 9810899104 was used by accused Gautam Dass. Very surprisingly, PW17 would admit that the application form submitted for obtaining the SIM Car No. 9810899104 which bore the signature of accused Gautam Dass was not produced before the Court.

In our considered view, the application form submitted for obtaining SIM Card would have clinched the issue. In the absence of application form it is quite impossible to come to a conclusion that mobile No. 9810759597 was used by the deceased and mobile No. 9810899104 was used by accused Gautam Dass. Therefore, we have no hesitation to conclude that the prosecution has also failed to establish the connection of the mobile set allegedly recovered from accused Gautam Dass with the crime of murder. Even assuming for the sake of arguments that mobile of the deceased was recovered from the possession of accused Gautam Dass, it may at best constitute an offence punishable u/s 411 IPC for retention of a mobile phone which was the subject matter of theft. But, at any rate, such a recovery would not prove the charges framed as against the accused. We find that accused Gautam Dass is also entitled to acquittal of all the charges framed as against him. In view of the above, accused Rajesh, Gautam Dass and Nimai Manjhi are acquitted of all the charges framed as against them. They be set at liberty forthwith, if their custody is not required in connection with any other case. Consequently, the judgment of conviction and sentence passed by the trial Court stands reversed and both the appeals stand allowed.