Mandeep vs State of Haryana

M.L. Singhal, J.—Vishal Goyal son of Vijay Kumar Goyal (V. K. Goyal) was students of 10 + 2 in Udey Bharti Public School, Sector 14, Faridabad. On 15-3-1995 at about 7.30 PM. Vishal Goyal was taking meals in his house No. 267, Sector 10 Faridabad. Some one called Vishal Goyal from outside. Thereupon, he went outside to meet him. V. K. Goyal waited for 5-10 minutes for the return of his son. He went outside, when his son did not return and after he had waited for him 5-10 minutes, he searched for his son but to no effect. He and his friends searched for Vishal Goyal in the house of his friends. Vishal Goyal was not traced. No clue could be found to his whereabouts despite frantic efforts made for tracing him. He reported the matter at pp Sector 7, Faridabad on 15-3-1995 vide application Ex. PP. Contents of application Ex. PP were incorporated in DDR of Police Chowki Sector 7, Faridabad vide DDR No. 27 dated 16-3-1996. On 16-3-1995, Manish Sharma PW informed V. K. Goyal that former had seen the son of the latter Vishal Goyal going outside in the company of Arun and Sandip appellants on the evening of 15-3-1995 on motor cycle No. HR-29-3698 when he was going to Delhi. V. K. Goyal had known Arun and Sandip prior to 15-3-1995 During the course of search for Vishal Goyal, Banke Lal Aggarwal and Bhuwneshwar PWs also informed him that on 15-3-1995 at about 8.30 PM they were strelling on the road dividing Sectors 9 and 13 that they noticed motor cycle and scooter coming from the side of canal in street light. Banke Lal Aggarwal and Bhuwneswar Goval PWs further informed him that Sandeep, Aman and Arun were riding that motor cycle and Sandeep was carrying sword, Vikram and Mandip were riding that scooter. Meanwhile Gulshan Malik met him during the search operation. He informed him that on 15-3-1995 at abut 4.30 PM when he was going from near Kesar Sweet Restaurant in Sector 15, Faridabad in connection with his personal work, he saw Vishal Goyal and 5-6 boys quarrelling. Those 5-6 boys were Arun, Aman, Sandip, Vikram and Mandip. Gulshan Malik further told him that he intervened and separated them. While continuing with the search operations V. K. Goyal, Manish Sharma, Bhuwneshwar and Banke Lal Aggarwal PWs reached by the side of bank of Gurgaon canal from the side of road dividing Sectors 9 and 13 and there they found a pair of chappal, V. K. Goyal identified those chappaps as belonging to his son Vishal Goyal. Close-by, they noticed trail of blood going up to the canal, as also drag marks. V. K. Goyal left for the police post for reporting the matter. On the way on the T point of the road which divides Sectors 9 and 8, the police met him and he made statement Ex. PA at about 7 p.m. on 16-3-1995. On the basis of statement of Ex. PA case FIR No. 221 was registered on 16-3-1995 under Sections 364/34, Indian Penal Code at PS Central, Faridabad. On 16-3-1995, V. K. Goyal, Manish Sharma, Bhuwneshwar, Banke Lal Aggarwal PWs accompanied the police party to Gurgaon canal. They and the police party reached the point near Gurgaon canal where chappals were found. They also found there a locket "OM" belonging to his son. That locket was seized by the police. It was made into a sealed parcel. Sealed parcel was taken into possession vide memo Ex. PP/1 attested by him and Manish Sharma PWs. Chappals were also seized by the police. Those were made into a sealed parcel. Sealed parcel was taken into possession vide memo Ex. PP. Blood stained earth was lifted by the police. It was made into a scaled parcel and taken into possession vide memo Ex. PP/2. Photographer was sent for. He reached the spot and took photographs. Divers were called from the Fire Bridge station, Faridabad with a view to flushing out the dead body, if any, from the waters of Gurgaon canal. Despite frantic efforts extending over a considerable length of time, divers could not locate anything. As dark was perading due to night fall, search operation was discontinued. In the morning of 17-3-1995, divers again attempted to flush out the dead body, if any, from the waters, of Gurgaon canard and at about 10 a.m. they succeeded in pulling out a dead body from the canal waters. It was the dead body of Vishal Goyal which was identified by his father V. K. Goyal. Clothes worn on the dead body were taken into possession vide memo Ex. PQ/2. S.I. Bhagat Singh held inquest on the dead body. Inquest is EX. PQ/1. Medical board consisiting of doctors V. K. Aggarwal and S. S. Arora. Medical Officers, B. K. Hospital, Faridabad conducted autopsy on the dead body of Vishal Goyal and found the following injuries :-

Incised wound of size of 3 cm x 1 - 1 1/2 cm x 1/2 cm on right side of chest in front starting from just below right nipple and going medically and horizontally.

Incised wound 3 cm x 1 1/2 cm on left side of chest on front, obliquely place going downwards and laterally 3 cm from midline and 10 cm below the left clavicle. On probing the probe went downwards and backwards by 17 cm. On dissection muscles were found out, ecchymosis was present, blood clots present and 4th rib was cut. On further dissection, there was a cut in left acrium going through and through size 3 cm x 1 cm.

Incised wound 2 cm x 1 cm obliquely placed 3 cm below and 2 cm lateral to the injury No. 2 Probe went 15 cm deep. On dissection ecchymosis was present with blood in the left pleural cavity. A cut of size 2 cm x 1 cm was seen on the lower lobe of the left lung.

An incised wound 3 cm x 1 cm in the epigasrium region vertical, probe went 8 cm deep. On disscussion left lobe of liver was found cut through and through of size 3 cm x 1/2 cm. On further dissection a cut of size 3 cm x 1/2 cm was present on the stomach.

Incised wound 3 cm x 1 1/2 cm on left side of back chest 2.5 cm from midline obliquely placed 5 cm medically from the angle of left scapula. Probe went 1 cm deep and underline muscles were ecchymosed.

An incised wound 3 cm x 1 1/2 cm on left side of back of chest 5 cm below the left angle of scapula vertical in direction and 7 cm from the midline. Probe went 6 cm deep. On dissection blood was present and the 9th rib was cut with a cut of size 3 cm x 1 cm in the lower lobe of left lung.

Incised wound 4 cm x 2 cm horizontal on the back of left shoulder in upper part. The underlying bone was cut.

Incised wound 6 cm x 2.5 cm x 2 cm just below injury No. 7 with a cut in the underlying scapula bone.

Incised wound 4 cm x 1/2 cm x 1/2 cm just below injury No. 8.

Incised wound 4 cm x 1 1/2 cm x 1/2 on the left right side of back in the lumber region over the iliac crest 5 cm from the mid line and horizontally placed.

In the opinion of the medical board, the cause of death was 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. Dr. V. K. Aggarwal, PW 5 handed over a vial (sealed) containing blood to the police. He also handed over a sealed packet containing clothes namely underwears P1 and P2, banian P3, sweater P4, pants P5, shirt P6 of the decesed to the police. Time that elapsed between injury and death was instantanceous and time that elapsed between death and autopsy was between 24-48 hours. These sealed parcels were sent to the Forensic Science Laboratory for analysis. On 18-3-1995, S.I. Bhagat Singh arrested all the accused. In pursuance of the disclosure statement Ex. PM made by Sandip accused, he got recovered sword P7 and clothes namley banian P23, pant P22 and Jacket P21 all stained with blood. Sword, banian etc. were taken into possession vide memo Ex. PM/1. Sketch of sword P7 was prepared by SI Bhagat Singh which is Ex. PM/2 Fard Nishandehi Ex. PM/3 was also prepared by him. Vikram accused in pursuance of his disclosure statement. Ex. PN, got recovered one motor cycle, one T shirt lying concealed in his house. T shirt was taken into possession vide memo Ex. PN/2. Fard Nishandehi Ex. PN/3 was prepared. Motor cycle was taken into possession vide memo Ex. PN/1. He prepared rough site plan of the place of recovery of sword and clothes got effected by Sandeep which is Ex. PN/4. In pursuance of the disclosure statement made by Aman, one T shirt P 26 stained with blood was recovered lying concealed in the house. Assistant Director (Serology), Forensic Science Laboratory, Haryana vide report Ex. PR/PRI found stains of human blood in earth, shirt, T shirt, pant, sweater, blood, kachha, underwear, sword, T shirt and T shirt. After investigation, Sandip Arun, Vikram and Mandip were challenged u/s 302/201/120-B/34 Indian Penal Code and S. 25 of the Arms Act by the police of PS Central, Faridabad.

After investigation, case was committed to the Court of Session by Additional Chief Judicial Magistrate, Faridabad vide order dated 26-5-1995.

Learned Additional Sessions Judge, Faridabad charged Sandip, Arun, Vikram and Mandip accused u/s 120-B/302/201/34 Indian Penal Code. Accused pleaded not guilty to the charge and claimed trial.

With a view to bring home to the accused the charge levelled against them, the prosecution examined Inspector Ramesh Pal, SHO, PS Central, Faridabad PW 1, ASI Ram Niwas PW 2, constable Ashok Kumar PW 3, Pritam Singh Photographer CRO Office (SP Office) Faridabad PW 4. Dr. V. K. Aggarwal PW 5, Gulshan Kumar PW 6, Banke Lal Aggarwal PW 7, Shiv Singh PW 8, Laxmi Narain PW 9, Prem Chand PW 10, Manish Sharma PW 11, MC Satbir Singh of Police Post Sector 7, Faridabad PW 12, V. K. Goyal PW 13, S.I. Bhagat Singh PW 14. HC Chand Singh and Bhuvmeshwar were given up as unnencessary. Report of the chemical examiner/serologist Ex. PR/PR1 was tendered into evidence. Affidavit of HC Abhey Singh Ex. PC was tendered into evidence. Affidavit of Constable Om Parkash ExPD was also tendered into evidence.

Accused when examined u/s 313, Cr.P.C. denied the imputations appearing in prosecution evidence against them and stated that it is a false case. It is a false case against them and PWs have deposed falsely.

Arun accused pleaded that he was studying in a different school. He had never met Vishal Goyal. He had not known him. He had no association, concern or connection with him. In their defence, they examined Jai Bhagwan Singh Dahiya DW 1.

On the conclusion of the trial, learned Additional Sessions Judge, Faridabad vide order dated 20-22-11-1996 held charge u/s 302/201/34, Indian Penal Code proved against each of the accused. He accordingly convicted them thereunder and he sentenced them each to undergo imprisonment for life and to pay fine of Rupees 1,000/- each and in default of payment of fine to undergo further RI for 6 months u/s 302/34, IPC. He further sentenced them undergo RI for 5 years each and to pay fine of Rs. 300/- each and in default of payment of fine to undergo further RI for 3 months under Sections 201/34, Indian Penal Code. He ordered the substantive sentences to run concurrently.

Feeling that learned Additional Sessions Judge, Faridabad has not done them justice, Mandip, Vlkram, Sandip and Arun accused (convicts) have come up in criminal appeals No. 616-DB of 1996, 48-DB of 1997 and 49-DB of 1997 and 93-DB of 1997 to this Court. V. K. Goyal (father of the deceased boy) has also approached this Court through criminal revision No. 199 of 1997 whereby he has prayed that inadequate sentence has been passed upon the accused by the learned Additional Sessions Judge, Faridabad. Sentence passed upon them be suitably enhanced and further adequate compensation be awarded to the legal heirs of the deceased.

This case rests upon circumstantial evidence, there being no direct evidence in the case.

It is quite settled that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

In State of U.P. v. Ashok Kumar Srivastava 1992 (3) RCR 63 : (1992 Cri LJ 1104). The Hon''ble Supreme Court laid down the principles which are required to be kept in view while appreciating circumstantial evidence. At the same time, the Hon''ble Supreme Court observed that this is not to say that the proscution must meet any and every hypothesis put forward by the accused however, far-fetched and fanciful it might be. Nor does it mean that the prosecution evidence must be rejected on the slighest doubt because the law permits rejection if the doubt is reasonable and not otherwise.

In Surinder Pal Jain Vs. Delhi Administration, , the Hon''ble Supreme Court observed that in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The Hon''ble Supreme Court further observed that the absence of motive, however, puts the Court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjucture do not take place of legal proof. This is, however, not to be understood that in the absence of motive, conviction cannot take place.

In this case, therefore, we have to see whether all the links in the chain of circumstances are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. We have to see whether the circumstances brought on record unerrignly/unmistakably point to one inference i.e. the inference of guilt of the accused. The proved circumstances should be of a conclusive nature and of definite tendency unerringly pointing towards the guilt of the accused. The circumstances should be such as to exclude every hypothesis but the one proposed to be proved. It is not necessary that each circumstance by itself be conclusive but cumulative must form unbroken chain of events leading to the proof of the guilt of the accused.

Gulshan Kumar PW 6 stated that on 15-3-1995 at about 4.00/4.30 pm. he was going to Sector 15, Faridabad for some personal work. He saw near Kesar Hotel Vishal Goyal (deceased) and 5/6 other boys quarrelling with each other. Vishal Goyal was caught hold of by those 5 persons. He pointed to Mandeep, Sandeep, Vikram and Arun accused. He separated them. Bankey Lal PW 7 stated that on 15-3-1995 at about 7.00/8.30 p.m. he and Bhuneshwar Goyal were walking on the road leading to Sectors 9 and 13, Faridabad. When they reached near the Indian Oil Corporation, there was light. From the side of canal, they saw motor cycle and scooter coming at fast speed. They stopped for a while and saw Sandeep, Aman and Arun sitting on the motor cycle. Arun was driving the motor cycle, Sandeep was having sword in his hand. Mandeep was driving the scooter and Vikram was sitting on its pillion. He stated that thereafter they went away. On 16-3-1995 he came to know that Vishal Goyal was missing. He accompanied Vijay Goyal, Manish Sharma, Bhuneshwar in search of Vishal Goyal towards the canal and found two chappals of brown colour, blood on the earth, one locket of "OM" and marks of dragging up to the canal. Gulshan Kumar PW 6 has thus deposed about the fact that he saw Vishal Goyal and the accused at 4.00/4.30 p.m. near Kesar Hotel, Faridabad, while quarrelling with Vishal Goyal and the catching hold of Vishal Goyal by them. Bankey Lal PW 7 has deposed to the fact that he saw Sandeep, Aman and Arun on a motor cycle and Mandeep and Vikram on a scooter coming from the side of canal. Sandeep was carrying sword with him. Manish Sharma PW 11 stated that on 15-3-1995 at about 7.30 p.m. he was going to Delhi. He saw Vishal, Sandeep and Arun going on a motor cycle No. HR-29-E-3698. On the following day i.e. 16-3-1995, when he came from Delhi, he told this fact to Sh. Vijay Kumar Goyal PW. He along with Vijay Kumar, Goyal, Bhuneshwar, Bankey Lal in search of Vishal Goyal, reached near Gurgaon canal where they found a pair of chappals of brown colour lying which was identified by Vijay Kumar Goyal as belonging to his son. There were blood stains near the pair of chappals. One locket of "Om" was lying. Dr. V. K. Aggarwal, Medical Officers, PW 5 who performed post mortem examination on the dead body of Vishal Goyal on 17-3-1995 at 2.45 p.m. found a number of incised wounds on the dead body which have been mentioned in the earlier part of judgment. Dr. V. K. Aggarwal has stated that the cause of death was shock and haemorrhage as a result of injuries to vital organs, which were antemortem in nature and sufficient to cause death in the ordinary course of nature. The time that elapsed between injuries and death was instantaneous and the time that elapsed between death and post mortem was 24 to 48 hours. This means that Vishal Goyal was killed on 15-3-1995 at about 7.00/8.00 p.m.

Learned counsel appearing for the appellants submitted that there is no ring of truth about the evidence of "last seen". It was submitted that the evidence of last seen was introduced so that the murder of Vishal Goyal which was otherwise a blind murder did not go unsolved. It was submitted that Bankey Lal PW 7 cannot be said to be an independent witness and a disinterested witness as he is close to Vijay Kumar Goyal PW being his neighbour residing at a distance of 5/6 houses away from his house and also he was frequent vistor to the house of Vijay Kumar Goyal. It is true that Bankey Lal PW 7 is a neighbour of Vijay Kumar Goyal residing at a distance of 5/6 houses away from his house. It is true that he has visited the house of Vijay Kumar Goyal on a number of occasions, may be 10/20 times. It is also true that he has known him for the last 3/4 years. It was submitted that Bankey Lal PW 7 had no occasion to be observant of the coming of Sandeep, Arun and Arun on a motor cycle from the side of canal. It was submitted that there was no occasion for him to be observant of Mandeep and Vikram coming on a scooter with them from the side of canal. It was submitted that there was no occasion for him to be observant of Sandeep carrying sword with him, when he had not known them nor their parentage or addresses. It was submitted that he has stated that "he had met those boys at the house of Vijay Kumar Goyal and they had been visiting the house of Vijay Goyal and when they were talking with each other, he came to know of their names" and this is with a view to show that his statement was natural. It was submitted that how could Bankey Lal PW have known them when he had never visited their house nor had they ever visited his house.

Suffice it to say, where was unnaturalness about the statement of Bankey Lal PW 7, as when a person is going on the road, he notices at least those who are known to him. There is nothing surprising if he noticed Sandeep (carrying sword), Aman and Arun coming on motor cycle and Mandeep and Vikram coming on scooter from the side of canal. He disclosed this fact to Vijay Kumar Goyal on 16-3-1995, when he was in search of his son, who was missing since 7.30 p.m. of 15-3-1995. This would have been a casual circumstance had Vishal Goyal been not missing since 15-3-1995 at 7.30 p.m. Mere circumstance that Bankey Lal PW 7 saw these boys coming from the side of canal on 15-3-1995 at 7.00/8.30 pm. while Sandeep carrying sword in his hand will not be suggestive of the fact that they are the murderers of Vishal Goyal. This circumstance along with other circumstances may be able to label them as the murderes of Vishal Goyal and that too if they unerringly and definitely point to the murder of Vishal Goyal by them and by noneelse.

Learned counsel appearing for the appellants submitted that there is no evidence that there was any motive operating in the mind of the appellants to murder Vishal Goyal. It was suggested that assuming that they were seen quarrelling with Vishal Goyal on 15-3-1995 at about 4.00/4.30 p.m. that quarrel will not saddle them with motive serious enough to liquidate him in the prime of youth. It was submitted that Vishal Goyal and the accused are youngsters. Among youngstes quarrelling and fighting does not assume a serious proportions. It was submitted that Gulshan Kumar PW 6 is also not an independent witness, or disinterested witness. He is a member of Lions Club, Ballabagarh while Vijay Goyal is also a member of Lions Club, Ballabgarh. He had known Vijay Goyal on this account. He had known Vishal Goyal also. They have been the members of that club of the last about 15 years. They are on visiting terms with each other. It was submitted that Gulshan Kumar had not known those boys at all prior to that day. He has stated that he enquired about the names of those boys at that time from them. It, however, does not find mention in his statement recorded u/s 161 of the Code of Criminal Procedure that he enquired the names of those boys from them. It was submitted that accused were not put up at test identification parade for being identified by Gulshan Kumar PW.

The statement of Gulshan Kumar PW 6 to our mind does not inspire much confidence as he had not known the accused earlier and there is no mention in his statement recorded u/s 161 of the Code of Criminal Procedure that he had enquired the names of those boys from them and further he had old association with Vijay Kumar Goyal PW. If statement of Gulshan Kumar PW 6 is ruled out of consideration, that will make only the motive in this case behind the killing of Vishal Goyal absent. It Would bear repetition that absence of motive behind the killing will not obliterate the charge if there is otherwise reliable, dependable and inspiring circumstantial evidence on the record in proof of the charge.

As regards Manish Sharma PW 11 the learned counsel submitted that he is not an independent witness and disinterested person. He was a tenant in the house of Vijay Kumar Goyal for the last 3 1/2 years. He had visited Karnal and Chandigarh 3/4 times in the company of Vijay Kumar Goyal. He stated that since his sister is residing at Chandigarh, he used to accompany Vijay Kumar Goyal. It is true that Manish Sharma was having some relations with Vijay Kumar Goyal, but he had no animus against Sandeep and Arun. He has stated that he had known Sandeep and Arun since he became tenant of Vijay Kumar Goyal. The evidence of an interested witness cannot be discarded merely because it is the evidence of an interested witness. All that is required is that it should be weighed with greater care and caution before the same is accepted. At the cost of repetition, we must say that evidence of "last seen" alone cannot fasten the nose around the neck of the accused. The evidence of last seen will have to be viewed in conjunction with other circumstances on record before the accused are found guilty or innocent.

Laxmi Narain PW 9 has stated about the extra judicial confession alleged to have been made before him by Aman, Vikram and Sandeep on 18-3-1995 at about 9.30 am. He stated that on 18-3-1995 at about 9.30 am. Aman, Vikarm and Sandeep came to his house. Sandeep told him that on 15-3-1995 they had murdered Vishal Goyal and they had thrown his dead body in Gurgaon canal near by-pass Sectors 9 and 13. Accused further told him that as they had committed heinous crime they were afraid of the police. They requested him to produce them before the police. He further stated that he along with Sandeep, Vikram and Aman was going to inform the police, that the police met them at "T" point of Sectors 8 and 9 Faridabad, where he produced them before the police and they were taken into custody.

Laxmi Narain PW 9 has also stated about the recoveries alleged to have been effected in pursuance of the disclosure statements of Sandeep, Vikram and Aman. He stated about the recovery of one black pant Ex. P-22, Jacket of Fauji colour stained blood Ex P-21, sandow banian Ex. P23 and sword Ex. P7 wrapped in a red cover in pursuance of his disclosure statement by Sandeep. Those were made into sealed parcel. He further stated that. Vikram got recovered motor cycle No. HR-29-E/3698 and one full sleeved banian (T shirt) labelled "gold star" In pursuance of his disclosure statement. He further stated that Aman (who was facing trial before the juvenile Court) got recovered one T shirt from his house in pursuance of his disclosure statement Ex. PO. Learned counsel submitted that Laxmi Narain PW 9 should not be believed as Aman, Vikram and Sandeep had not known him and as such they had no occasion to go to him and confess that they had murdered Vishal Goyal. It was submitted that an accused does not make confession of his guilt before a stranger. He makes confession of his guilt either before the one with whom he has special affinity or before the one who can be of some help to him in the investigation or at the trial. It was submitted that Laxmi Narain PW 9 does not fall in any of these categories. He is not an income tax payee. It was submitted that he was enshrined as a prosecution witness because of his old association with Vijay Kumar Goyals family. He has stated that he had known Vishal Goyal and his family for the last about 5/6 years. Vishal Goyal''s father and he are the members of lions club and they are on visiting terms with each other. It is true that he had some association with Vijay Kumar Goyal PW. He has stated that he had known Sandeep earlier prior to his visit to his house along with other accused. He met him in a restaurant and they both took snacks and he made payment. It appears natural that Vikram, Aman and Sandeep went to Laxmi Narain PW 9. It appears natural that they thought that because of his association with Vijay Kumar Goyal PW he might be able to help them in the investigation or in the trial. It appears that they felt that he might be able to assuage Vijay Kumar Goyal because of his association with him and Vijay Kumar Goyal might forgive and foreget. We do not see any reason not to believe him.

Motor cycle was recovered on 18-3-1995 in pursuance of the disclosure statement made by Vikram. How could it dawn on Manish Sharma on 16-3-1995 that it was motor cycle No. HR-29-E-3698 on which he had seen Vishal, Sandeep and Arun on 15-3-1995 at 7.30 pm. if it were a concoction or fabrication.

Shiv Singh PW 8 has not supported the prosecution case. As per the prosecution case, Mandeep Ahlawat and Arun had made extra judicial confession before him that they, Sandeep, Aman and Vikram had murdered Vishal Goyal in pursuance of a criminal conspiracy hatched between them.

There is thus no evidence of extra judicial concession made as to the murder of Vishal Goyal by Mandeep and Arun. There is no evidence of recovery so far as Arun and Mandeep are concerned. Only evidence against them is that the deceased was last seen in their company. That also is feeble evidence. The evidence of last seen alone without anything more is not sufficient to fasten the noose around the neck of Arun and Mandeep for the murder of Vishal Goyal.

The possession of sword etc. by Sandeep and Vikram which were found stained with human blood by the Forensic Science Laboratory, admits of no other explanation than the one that they had murdered Vishal Goyal. Murder of Vishal Goyal was committed by Vikram and Sandeep.

For the reasons given above, we are of the opinion that the prosecution has successfully brought home beyond the pale of doubt against Vikram and Sandeep the charge of murder of Vishal Goyal on 15-3-1995 in the area of Faridabad in furtherance of their common intention which was to murder him and further the charge of intentionally destroying the evidence of the commission of murder by throwing the dead body in the Gurgaon canal with intent to screen themselves from the punishment provided for the offence of murder. Their conviction under Sections 302/34 and 201/34 of the Indian Penal Code was quite justified and it is accordingly maintained. The appeal of Mandeep i.e. Crl. Appeal No. 616-DB of 1996 succeeds and is accepted. Similarly appeal of Arun Bhatia i.e. Crl. Appeal No. 93-DB of 1997 also succeeds and is accepted. Mandeep and Arun are accordingly acquitted of the charge for which they have been convicted and sentenced. They shall be released forthwith if in custody. Fine if paid shall be refunded to them.

Now a few words on Criminal revision No. 199 of 1997 :-

As regards Sandeep and Vikram, the fine imposed upon them by the learned Additional Sessions Judge does not commensurate with what has been proved against them i.e. the murder of Vishal Goyal, who was a student of 10 + 2 and a chirag of the family. A fine of Rs. 25000/- each is imposed upon them u/s 302/34 of the Indian Penal Code. Further fine of Rupees 5000/- each is imposed upon them u/s 201/34 of the Indian Penal Code. In default of payment of fine of Rs. 25,000/- they shall further undergo rigorous imprisonment for one year each. In default of payment of fine of Rs. 5,000/- they shall further undergo rigorous imprisonment for 6 months each. The entire amount of fine, if recovered shall be paid to the parents of Vishal Goyal deceased equally.

Vikram and Sandeep are also in their extreme youth. The murder committed by them is not foul or backed by any serious illwill motive or revenge. Murder of Vishal Goyal by them cannot be said to be the rarest of the rare cases where sentence of death should be awarded. Crl. Appeal No. 48DB of 1997 fails and is dismissed. Crl. Appeal No. 49-DB of 1997 also fails and is dismissed.

Criminal Revision No. 199 of 1997 filed by Vijay Kumar Goel succeeds and is accepted to this extent.

Order accordingly.