Ramjir Dass Budhiraja v. Sanjeev Kumar & Ors

Judgment Reserved on: 14'^May, 2015 Judgment Pronounced on: 23*^^ July, 2015 CRL.REV.P. 453/2007 RAMJIR DASS BUDHIRAJA Petitioner Through: Mr. Kanishk Ahuja, Adv. versus SANJEEV KUMAR ORS. Through: Respondents Mr.Prasoon Kumar, Mr.Deepak Chander Pal, Mr. Kshitij Kumar and Mr.Sudhanshu Shekhar, Advs. for R-1 to 5. CORAM: HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

¶1The State has not preferred any appeal against the judgment of acquittal passed by learned Additional Sessions Judge (hereinafter referred to as Trial Court) dated 13^^ April, 2007 vide which Sanjeev Kumar, Amarjeet, Manoj, Koshlendra Pal & Parminder arrayed as respondent nos.l to 5 respectively in this revision petition, have been acquitted in FIR No.669/1998, PS Saraswati Viharandaggrievedbythesame, ShriRamjiDassBudhiraja,father Crl.Rev.P.No.453/2007 Page1of11 of the deceased(hereinafterreferredto as the petitioner)filed the present revisionpetitionto set aside the same and to punish the respondents no.1 to 5.

¶2Factual matrix, as emerges from the record, is that the son of the petitioner, namely, Jagdish Budhiraja went to Jaipur on 22"'^ September, 1998. On 24"^ September, 1998, he telephonedhis wife and told her that he would come back home in one and a half hours but he did not come back. All efforts to trace out the deceased were in vain. The petitioner got lodged a missing report of his son vide D.D. No.lOA dated 26'^ September, 1998. The petitionerapprehendedabductionofhis son and lodgeda complaint with the police which was registered as FIR No.669/98 under Section 365 of the Indian Penal Code {hereinafter referred to as 'IPC'). Duringthe courseof investigation,it was revealedbythe policethat JagdishBudhiraja,son of the petitionerused to meet a girl namely Babita. On further inquiry, it was found that Babita was missingfrom her place of employment. On the apprehension of the policein anothercase,Babitawas arrestedin the presentcase as well. The said girl Babita made a disclosurestatementthat she had physical relations with one Parminder who is arrayed as respondent no.5 in the present case. She further alleged that as Parminder, respondent no.5 did not approve the relation of Babita with Jagdish Budhiraja, he murdered Jagdish Budhiraja in coimivance with respondent nos.l to 4. Therefore, penal sections 302,201,120-B IPC were added in the case. CrLRev.P.No.453/2Q07 Page2 of 11

¶3On the statement of Babita, the police arrested respondent nos.l to

¶5Statement of Babita under Section 164 of Code of Criminal Procedure was recorded by the police. Certain recoveries of belongings of the deceased were effected at the instance of respondents. The police charge-sheeted Babita and respondent nos. 1 to 5 and a challan was issued against the accused.

¶4The respondent nos.l to 5 were charged under Section 120-B IPC read with Section 302 IPC and for substantive offences under Section302/201/34IPC on 21®^ February,2000. However,the Trial Court discharged Babita of all the allegations.

¶5At the outset, it has been argued by the learned counsel for the petitioner that the impugned judgment suffers from inherent infirmities and against the documents produced on record. It is argued that recovery of a golden Kara belonging to the deceased (which was identified by the father of the deceased) from the possession of respondent no.5 - Parminder; original number plates of the car of the deceased recovered from the possession of respondent no.l-Sanjeev Kumar; brief case of the deceased recovered from the possession of respondent no.5-Parminder, were not considered by the Trial Court. It is further contended that failure of recovery of the corpus deliciti in the present case as observed by the Trial Court is against the settled principles of law as the Hon'ble Supreme Court has observed time and again that non-finding of the body of the deceased is not necessary to prove Crl.Rev.P.No.453/2007 Page3 of11 the charges of murder.

¶6The learned counsel for the petitioner also relies on the pronouncementof the Hon'ble Supreme Court in Ganesha Vs. Sharanappa& Anr. (2014) 1 SCC 87 on the ground that setting aside of order of acquittaland dkectionas to retrial in revisionis permissibleonly in cases(i) whereacquittalis basedon misreading of evidence or non-consideration of evidence or perverse appreciationof evidence or where the Trial Court shut out the evidence which otherwise ought to have been considered or overlooked the material evidence clinchingthe issue, or (ii) where there is manifesterrorof law or procedure,or (iii) wherethe order of acquittal suffers from glaring illegality, resulting into miscarriage ofjustice.

¶7The presentcase is basedon circumstantialevidenceas thereare no direct evidencesto the murder of the deceased Jagdish Budhiraja. While dealingwith cases based on circumstantialevidence,it is a settled law that the circumstances from which the conclusion of guiltis to be drawn shouldbe fully provedand such circumstances must be conclusive in nature. There must be a chain of evidence so completeas not to leave any reasonablegroundfor the conclusion consistent with the innocence of the accused ^d must show in all humanprobabilitythatthe act musthavebeendonebythe accused.

¶8In C. Chenga Reddy& Ors Vs. State ofAndhra Pradesh (1996)10 SCC 193 it was observed as under:- Crl.Rev.P. No.453/2007 "/« a case based on circumstantial evidence, the settled law is that the circumstancesfrom which the conclusion of guilt is drawn should befully proved and such circumstancesmust be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, theproved circumstancesmust be consistent only with the hypothesis of the guilt of accused and totally inconsistent with his innocence. "

¶9In G. Parshwanath Vs. State of Karnataka (2010) 8 SCC 593 it was observed as under "/« decidingthe sufficiencyofthe circumstantialevidence for the purpose of conviction,the Court has to consider the total cumulativeeffectofall theprovedfacts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the convictionwould hejustified even though it may be that oneor more ofthesefacts byitselfofthemselvesis/arenot decisive. Thefacts establishedshould be consistentonly with the hypothesisof the guilt of the accusedand should excludeeveryexceptonesoughtto beproved. Theremust be a chain of evidenceso complete as not to leave any reasonablegroundfor the conclusionconsistentwith the innocenceofthe accusedand mustshow that in all human probabilitythe act must have been done by the accused, where various links in chain are in themselves complete, then thefalse plea or a false defence may be called into aid onlyto lend assurance to the Court.

¶10So far as the recoveryof goldKara& briefcaseallegedlybelonging to the deceased at the instance of respondents, is concerned, the learned Trial Court did not believe the case of prosecution. The Kara had no identification marks on it to relate it with the deceased. Sh. Ravinder Dudeja, the then learned Metropolitan Magistrate (PW 30) who conducted Test Identification Parade {'TIP') of Kara, had stated in his cross-examination that, letters 'J' and 'B' were not Crl.Rev.P. No.453/2007 V engraved on the said Kara. He also stated that the briefcase producedbeforehim was in an unsealedcondition. There were no identification marks on the Kara allegedly recovered at the instance of respondent no.5 Parminder.

¶11Prosecution Witness Shri B.B. Kalra (PW 13) who allegedly sold a briefcase to the deceased, was produced in the court. Though he stated that he sold the said briefcase to the deceased, the receipt EX.PW13/Aproducedby him in the courtdid not show that it was sold to the deceased as no name of the purchaser was mentioned therein. Even otherwise, he admitted that the deceased was the son of his real maternal uncle. In the absence of any clear and cogent evidence, it cannot be held that the briefcase allegedly recovered from one of the respondentsbelongedto the deceased.

¶12It was alleged against respondent no.l-Sanjeev that after his apprehensionby the police,he got recoveredtwo originalnumber plates of the car of the deceasedfrom near the bushes at Baghpat Road. To provethis fact, the prosecutionexaminedonlythe police witnessesbut no independentwitness was producedto prove the recovery. It has come on record that the place from where the alleged number plates were recovered,was a public place where vehiclesand publicusedto pass, but no sincereeffortwas made by the investigatingofficerto join any independentpublic witness at the time of said recoverywhich creates doubt about the manner in which the recoveryof numberplates has been effected. CrI.Rev.P. No.453/2007 H

¶13The Division Bench of the Delhi High Court in case entitled Chander Pal Vs. State 1999 (1) RCR (Criminal)150, had heldthat if independentwitnesses are not associated in the recovery in pursuantof provisionsof Section27 of the Indian EvidenceAct, then suchrecoveryisnot reliable. Inanothercase entitledState Vs. Ramesh reported in 1989 II A.D. (Delhi), the Hon'ble Division \j' Bench has held that if public persons are not associatedin the recoverythen the provisionsof Section 100 of Code of Criminal Procedureare not followedand suchrecoverybecomesdoubtful.

¶14In the present case, the prosecution examined several public witnesseswho eitherturned hostile to the case of the prosecutionor theirtestimonyis ofno use. The only singlecircumstancebrought on record by the prosecutionto connectthe respondentswith the commissionof murderof the deceasedis the recoveryof articlesof the deceasedi.e. goldkara,numberplatesofcar and briefcase. The prosecutionhas failedto prove beyondreasonabledoubtthe single circumstance of recovery of articles of deceased from the respondents. In similarcircumstances,the Hon'bleSupremeCourt ^ in case of State of Uttar Pradesh v. Jageshwar and Ors. MANU/SC/0168/1983has observed that the single circumstance of recovery is not sufficientto convict the accused. Relevantpara from the judgment reads as under : "TTze evidenceregarding the recovery of a pistol, Exhibit 6, from accused Ram Vishal is less unacceptable than the evidence of the recovery of the gun from Sunder but, Crl.Rev.P. No.453/2007 considering the large mass of useless evidence which the prosecutionled, this single circumstancewillnot be safe to act uponfor convictingbut one out of eleven accused viz-Ram Vishal."

¶15The prosecutioncase is that the articlesbelongingto the deceased i.e. gold kara, briefcaseand number plates of car were recovered from or at the instanceofthe respondentswhichis sufficientto hold them guilty for the murder of the deceased. This Court is not convinced with this contention of the petitioner that mere recovery of articles belonging to the deceased is sufficientto hold them guilty for the murder of the deceased. In Dhan Raj @ Dhand v. State of Hatyana, MANU/SC/0454/2014,the Hon'ble Supreme Courtobservedthat recoveryof an objectis not a discoveryof fact and that even if the recovery of goods is reliable then it does not indicate that the accused committed the murder. The only fact which can be inferred is that the accused are in possession of goods. Relevantparasfromthejudgmentreadasunder: '''"Furthermore,it appears to us that therecoveryhas not been corroborated by any proper independent evidence. Moreover,recoveryofan objectis not a discoveryoffact, as per the decision of this Court inMano v. State of Tamil Nadu MANU/SC/7266/2007:

(2007) 13 SCC 795. Recovery must be of a fact which was relevantto connectit with the commissionofcrime. Therefore,even iftherecoveryofgoods is reliable then it does not indicate that the accused Appellants committedthe murderand the only admissible fact which can be inferred is that they are in possession of stolen goods.

¶13We would refer to the decision of this Court in Madhu v. State of Kerala MANU/SC/0019/2012: (2012) 2 SCC 399 thefacts ofwhichare relevant in thepresent case. In the said Crl.Rev.P.No.453/20Q7 Page8of11 i-case, the bodyofthe deceasedwasfoundnearherhome with her ornamentson herperson missing. On the basis of the informationfurnishedby the accusedrecovery of the said ornamentswas made. Thisfact coupledwith the sightingof the accused near the place of crime was the basis for conviction. However, this Court reversed the conviction on the ground that said recoveryand sightingof the accused near the deceased do not lead to the sole conclusion that murder was committed by the accused only. InState of Rajasthanv. Talevarand Anr. (2011) 11 SCC 666 also it \J was heldthatwhere the onlyevidenceagainstthe accusedis recovery of stolen property, then although circumstances may indicate that theft and murdermight have been committed at the same time, it is not safe to draw an inferencethatthepersoninpossessionofstolenpropertyhad committedmurder.Also the recoveryof lootedarticles at the instanceofthe accusedcouldnot be reliedupon in absence ofany detailsasto when andwheresuch recoverywas made andin absenceofany confessionofcommissionofoffenceby the accused. Besides, the seizure of the goods was not corroboratedby any independent witness in the present case.^^

¶16Anotherdeficiencyin the prosecutioncase is the non-examination of Babita. It is a matterof recordthat the presentcase was worked out on the basis of disclosureof one Babita. It was the case of prosecution that deceased used to meet Babita. Babita was apprehendedin anothercase and was arrestedin the presentcase. She disclosed that she was having a physical relation with the deceased besides respondentno.5-Parminder. She also disclosed that the deceasedwaskidnappedand murderedby Parminderalong with his associates. At her instance, the car of the deceased was recovered from the house of her uncle and on her disclosure, Crl.Rev.P. No.453/2007 accusedpersonswere also arrested.Babitawas made an accusedin the presentcase but was dischargedby the learnedTrialCourtvide orderdated21'*February,2000 whileobservingthat shewas notan accused rather an importantmaterial witness of the prosecution. Despite the same, the prosecutiondid not examine Babita as a witness in the court to substantiate its case, that is, that the respondentskidnapped or murdered the deceased or that on her disclosure,the respondentswere arrestedor that they had any role in the kidnappingor murder of the deceased. The testimonyof Babitawas an importantpiece of evidencewhich the prosecution had failedto examineand thus it provedto be fatal to the case of the prosecution.

¶17The petitionerhas failed to show that there is any misreadingof evidenceornon-considerationof evidenceorwrongappreciationof evidenceby the Trial Court. The petitionerhas further failed to showthatthe TrialCourtoverlookedthematerialevidenceorthere is any manifesterror of law or procedurewhich resultedinto the miscarriage ofjustice.

¶18In view of the above discussion,this Court is of the considered opinionthatthe prosecutionhas miserablyfailedto provethe chain of circumstances JBrom which the inference of guilt of the respondents/accusedcan be drawn. The chain of circumstantial evidenceput forth by the prosecutionis incompleteand it cannot lead to the conclusion that the allegations against the Crl.Rev.P. No.453/2007 respondents/accusedstand proved.

¶19Thus,the impugnedjudgmentdated 13"^April,2007 cannotbe said to be not sustainablein the eyes of the law and the present revision petition deservesto be dismissed.

¶20Consequently,the presentrevisionpetitionis dismissedas devoid of merit. Trial Court record be sent back. JULY 23,2015 aa CrI.Rev.P. No.453/2007 P.S TEJIiJ. JPagejU^of^

IN THE HIGH COURT OF DELHI AT NEW DELHI