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no panch witnesses not fatal – no proper explanation under sec.313= in case there is no independent witness of recoveries and panch witnesses are only police personnel, it may not affect the merits of the case. In the instant case, the defence did not ask this issue in the cross-examination to Inspector Shamsher Singh (PW.21) as why the independent person was not made the panch witness. More so, it was the duty of the appellant to furnish some explanation in his statement under Section 313 Cr.PC., as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what circumstances recovery of incriminating material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established.

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

REPORTABLE

 

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

 

 

CRIMINAL APPEAL NO. 294 of 2010

 

 

 

 

 

 

Munish Mubar

…Appellant

 

 

Versus

 

 

State of Haryana

…Respondent

 

 

 

 

 

 

J U D G M E N T

 

 

 

 

Dr. B.S.CHAUHAN, J.

 

 

 

 

1.    This appeal has been preferred against the impugned judgment and

order dated 27.3.2008 in Criminal Appeal No. 553-DB  of  2006  of  the

High Court of Punjab & Haryana at Chandigarh, by  way  of  which,  the

High Court  has  affirmed  the  judgment  and  order  of  the  learned

Additional Sessions Judge, Gurgaon,  dated  26.4.2006,  by  which  the

appellant was convicted alongwith the co-accused, Shivani Chopra under

Sections 302/34 of Indian Penal Code, 1860, (hereinafter  referred  to

as the `IPC’), and sentenced  to undergo life imprisonment and to  pay

a fine of Rs.5000/- each; under Section 201 IPC, to  undergo  rigorous

imprisonment for three years and to pay a fine of Rs.300/- each;   and

also under Section 120-B IPC, to  undergo  rigorous  imprisonment  for

three years. In addition to this, the  appellant  was  also  convicted

under Section 404 IPC, and sentenced to undergo rigorous  imprisonment

for two years and to pay a fine of Rs.200/-. However, it  was  ordered

that  all  the  aforementioned  substantive   sentences,   would   run

concurrently.

 

 

2.    The facts and circumstances giving rise to this  appeal  are  as

under:

A.    On 27.12.2002 at 1.00 P.M., one Krishan Pal (PW.10), a  resident

of Village Bhondsi, District Gurgaon, noticed a dead body lying  in  a

      plot of land belonging to one Babu Singh.  Seeing that the corpse  had

      multiple injuries, he informed Inspector Shamsher Singh, (PW.21),  who

      was  present  at  the  Bus  Stand,  Bhondsi  alongwith  other   police

      personnel. Inspector Shamsher Singh, thereafter recorded the statement

      of Krishan Pal (Ex. PL) and reached  the  said  land  of  Babu  Singh.

      Inspector Shamsher Singh, I.O., then recovered  the  dead  body  lying

      there, and got the same photographed;  he also lifted from  the  spot,

      blood stained earth; a blood stained vest;  a boarding card issued  by

      Jet Airways; an almond coloured button, one blood stained hammer and a

      knife, and upon recovery of the same, he prepared the recovery  memos.

      He then sent ruqa on the basis of which, an FIR  was  registered.   An

      inquest report was prepared, as regards the dead body.

B.    On 28.12.2002, the dead body so recovered, was identified to  be

      that of one Ashok Jain, son of Shri  Mehar  Chand  Jain,  resident  of

      Mehardeep, 1/9, Sarojni Road,  Santa  Cruz,  Mumbai  On  30.12.2002,

Inspector Shamsher Singh (PW.21) obtained the details of mobile  phone

      no. 9818082192, from the Airtel office at Okhla, New Delhi,  and  also

collected a list of articles which the deceased had brought along with

      him on 4.1.2003 by Jet Airways.

C.    In the course of investigation, the investigating  officer  took

 into his possession, the records related to the parking of one  Santro

car no. UP-32-AG-9991 on 9.1.2003, from the car parking stand  of  the

New Delhi Airport.  The investigating officer, further  collected  the

 records of hotel Suji International, Paharganj,  Delhi  and  took  the

same into possession.  The investigating officer also arrested Shivani

Chopra – the co-accused on 10.1.2003 and recovered from her one mobile

phone.   The investigating officer then arrested the appellant, Munish

Mubar on the same day while he was  traveling  in  the  abovementioned

Santro car.  He recovered from the accused another mobile phone.

D.    On 11.1.2003, the appellant made a disclosure statement  to  the

effect that he would show to the police, the  place  where  he,  along

with the co-accused, had disposed of the dead body of the deceased, as

also, the place where they  had  gotten  rid  of  deceased’s  clothes.

Thus, on  13.1.2003,  the  investigating  officer  got  recovered  the

articles belonging to the deceased.

E.    The investigating officer recorded the  statements  of  a  large

      number of persons,  which  revealed  that  there  existed  an  illicit

      relationship between the appellant and co-accused Shivani Chopra,  and

      also that, she was an employee of Ashok Kumar Jain – the deceased  and

      was supposed to receive the deceased  at the Airport, upon his arrival

      from Mumbai.

F.    Upon conclusion of  the  investigation,  the  I.O.  submitted  a

      challan against the appellant and the co-accused  Shivani  Chopra,  as

      well as one Sudhir Srivastava.  On committal of the said  proceedings,

      both the accused were charged for the aforementioned offences, and the

      appellant was additionally charged under Section 404 IPC. Both of them

pleaded not guilty and hence, claimed trial.   The  co-accused  Sudhir

Srivastava could not be put to trial as he was absconding at the time.

 

 

G.    In order to substantiate the charges against  the  accused,  the

prosecution examined 22 witnesses. The appellant  also  examined  some

witnesses in his defence and, after the conclusion of the  trial,  the

trial court upon appreciation of the complete material and evidence on

record, found the appellant as well as the co-accused Shivani  Chopra,

guilty  of  all  the  charges  against  them  and  imposed  upon  them

punishment as has been described, hereinabove.

H.    Aggrieved, the appellant, as  well  as  the  co-accused  Shivani

Chopra, filed Criminal Appeal Nos. 553-DB of 2006 and 359-DB of  2006.

Both the appeals were heard and disposed of by way of common  judgment

dated 27.3.2008.

I.     Being  aggrieved,  the  co-accused  Shivani  Chopra,  filed  an

S.L.P(Crl.) before this Court, which was dismissed  in  limine.    The

S.L.P. filed by the present  appellant,  however,  was  admitted  vide

order dated 8.2.2010.

Hence, this present appeal.

 

 

3.    Mrs. Kawaljit Kochar, learned counsel  for  the  appellant,  has

submitted that both the courts below  have  erred  in  convicting  the

appellant, even though there is no evidence against him.  In a case of

circumstantial evidence, the issue of motive to commit  the  crime  in

question, is of paramount importance, which could not  be  established

in the instant case.   The parameters laid  down  by  this  Court  for

deciding such  a  case  of  circumstantial  evidence,  have  not  been

applied.  The recoveries relied upon by the courts below,  alleged  to

have been made at the instance of the appellant have in fact, all been

planted and the appellant has falsely been enroped  into  the  matter,

merely because he had an alleged intimate relationship  with  the  co-

accused, Shivani Chopra, who was an employee of the deceased  and  had

allegedly  also  developed  an   intimate   relationship   with   him.

 Furthermore, no independent witness has been examined so  far  as  the

      recoveries are concerned. All the witnesses of recoveries are actually

      police personnel.  Thus, the judgments of  conviction  passed  by  the

      courts below are liable to be set aside.

 

 

4.    On the  contrary,  Shri  Kamal  Mohan  Gupta,  learned  standing

counsel appearing for the State, has vehemently  opposed  the  appeal,

contending that there is no justification for this Court to  interfere

with the concurrent findings of fact that have been  recorded  by  the

courts below.  Of course, the present case is  one  of  circumstantial

      evidence, but with respect  to  the  same,  the  chain  of  events  is

      complete, and every link thereof, is a pointer towards  the  guilt  of

      the appellant.  The appellant has failed to furnish any explanation in

      relation  to  the  incriminating  circumstances  put  to  him,   while

      recording  his  statement  under  Section  313  of  Code  of  Criminal

      Procedure, 1973 (hereinafter  referred  to  as  the  `Cr.P.C.’).   The

present appeal, thus, lacks merit and is liable to be dismissed.

 

 

5.    We have considered the rival submissions made by learned counsel

for the parties and perused the record.

 

 

6.    The post-mortem of the dead body was conducted on 28.12.2002  by

Dr. Renu Saroha, Medical Officer, General Hospital  Sohna.   According

to the post-mortem report, the following injuries were  found  on  the

person of the deceased:

i)    Cut incised wound on scalp  left  side  7  cm  x  1.5  cm.

Spindal shaped  left  frontal  region,  bone  deep.  Reddish  in

colour. Extending from the hair line to be posteriorally.

ii)   Spindal shaped wound 4 cm x 1 cm left side of the  frontal

region. Fracture of tempo frontal region bone. Subdural hematoma

was present.

iii)  Incised wound on forehead between two eye brows 6  cm  x.5

cm. Obliquely situated on the nasion.

iv)   Incised  cut  wound  of  the  nose  horizontally  incising

thoroughly nasal bone and cavity extending to the both  side  of

the face maxillary region and communicating  with  the  vertical

wound as described in injury no.3 right side of  cheek  to  left

side 12 cm x .5 cm  bone  deep.  Incising  the  nose  completely

disfiguring the face.

v)    Incising cut wound  on  left  cheek  placed  horizontally.

Extending horizontally from the left ?cheek upto the base of  the

nose. 11 cm x 1 cm in length.

vi)   Obliquely placed incised wound extending  from  the  right

eye brow merging below with wound no.4 at nasal level.

vii)  Obliquely situated cut wound. Size of 7 cm x  .5  cm  over

the left cheek crossing the wound no.5 at perpendicular .

viii)       Cut wound incised of the left lower lip 4 cm  x  1.2

cm Spindal shaped.

ix)   Incised wound on right side starting from right  angle  of

mouth and going posteriorally 2 cm in front of the right pinna.

x)    Obliquely situated incised cut wound over to the chin 4 cm

x .5 cm.

xi)   Cut incised wound of 13 cm  x  2  cm  extending  from  the

tragus left ear and going to interiorally midline of neck. 4  cm

below the chin.

?xii)  Incised irregular almost spindal  shaped  wound  over  the

neck. Extending from the  anterior  border  of  right  crapezius

muscle to the opposite  left  crapezius  border  anterior  part.

Cutting the voice box and major vessels of neck on left side.

xiii)       Superficial cut wound on left side of  the  shoulder

anteriorally 9 cm in size.

xiv)  Cut wound on left side  elbow  joint  front  part  spindal

shaped. Obliquely situated cutting skin  and  muscle  and  blood

vessels are exposed. 5 cm x 3 cm.

xv)   Horizental incised cut wound on right arm  involving  skin

and muscle at the level of upper 1/3rd and lower 1/3rd. 10 cm  x

2 cm spindal shaped.

xvi)  Spindal shaped cut wound on right elbow joint 11 cm x 5 cm

involving skin, muscle and major vessels.

?xvii)       Spindal shaped wound on right forearm 5 cm  x  2  cm

involving skin facia and muscle region at the junction of  lower

1/3rd and upper 2/3rd.

 

 

All the injuries were anti-mortem in nature.  In the opinion  of

the Doctor, the cause of death was due to haemorrhage and shock caused

      by the cutting of major blood vessels, as a result of injuries,  which

      were sufficient to cause death in the ordinary course of nature.   The

duration of time taken to inflict such injuries was  approximately  24

hours.  Dr. Renu Saroha (PW.13), explained while being cross-examined,

      that the injuries found on the person of the deceased could have  been

      caused by a sharp  edged  weapon  and  were  the  possible  result  of

      stabbing.  The possibility of use of two separate weapons could not be

      ruled out, however, the said injuries  could  also  have  been  caused

      using only one weapon. Therefore, it is  evident  from  the  aforesaid

evidence that, the deceased was a victim of homicidal death.

 

 

7.    Chander Shekhar Jain (PW.1),  testified  that  he  had  gone  to

      identify the dead body of the deceased, but was unable to do so, owing

      to the fact that his face had been mutilated.  The next  day,  he  re-

visited the said place, along  with  Mahender  Jain,  brother  of  the

deceased and thoroughly examined the dead body.  They then  identified

the same to be that of Ashok Jain.

 

 

8.    Anil Garg (PW.2) deposed that Ashok Jain was a resident  of  the

United States of America and would visit India occasionally.   Shivani

Chopra, the co-accused was an employee of Ashok Jain.  He stated  that

the deceased had informed him in December,  2002,  that  he  would  be

coming to Delhi on 26.12.2002 and that he would  instruct  him,  at  a

later date whether or not he would be required to come to receive  him

from the Airport.  He further gave the contact numbers  (landline  and

mobile) of Shivani Chopra  both, in Delhi and in Mumbai.

 

 

9.    Bijender Kumar (PW.3), who was in-Charge of the car park at  the

Delhi Airport testified  that  on  26.12.2002,  Car  No.UP-32-AG  9991

remained parked at the Airport parking between 5.26 p.m. and 8.34 p.m.

 

 

10.   Shambhu  Chaudhary  (PW.4),  the  Receptionist   of  Hotel  Suji

International, Paharganj, Delhi deposed that the appellant and the co-

accused Shivani Chopra had stayed at his Hotel between  18-19.11.2002,

and then, between 7-8.12.2002 and yet again, on 26.12.2002, this  time

along with one Shri Sudhir Srivastava.  This witness provided proof of

such stay, by producing  requisite  guest-log  registers  and  further

identified both the said accused in Court.

 

 

11.   Naresh Kapoor  (PW.9),  the  proprietor  of  Ashoka  Continental

Hotel, Paharganj, deposed that the appellant and  co-accused,  Shivani

Chopra stayed in the said hotel on  24.12.2002,  upon  providing  fake

names and representing themselves as Munish Mathur and Shivani  Mathur

respectively.  Their stay here was proved by producing  the  guest-log

Register maintained for the purpose of keeping a record of guests,  in

the normal course of business.

12.   Narain Singh (PW.11), ASI made recoveries of  several  articles,

including cosmetic items, blood stained clothes of  the  appellant,  a

gold chain and one gold kara on 11.1.2003  and 14.1.2003 on the  basis

of a disclosure statement made by the appellant. The appellant and the

co-accused Shivani Chopra, identified the place where  the  dead  body

was lying.

 

 

13.   Inspector Shamsher Singh (PW.21), corroborated the testimony  of

Narain Singh, ASI (PW.11) with respect to all material particulars. He

also supported the case of  the  prosecution  by  explaining  how  the

investigation was conducted, how he had taken  readings  of  the  said

mobile phone numbers belonging to the accused persons, and  therefore,

concluded the said investigation.

 

 

14.   Surender Mohan Jain  (PW.14),  brother-in-law  of  the  deceased

deposed that the  deceased  was  a  Non  Resident  Indian.   He  would

however, visit India 2-3 times in a year.  It came to the knowledge of

the said witness that the co-accused Shivani Chopra, would receive the

deceased at the Airport on the day of his arrival, on  his  particular

visit to India.   Ms.  Urvashi,  a  niece  of  Ashok  Jain,  deceased,

informed him that her father had talked to her on the mobile phone  of

Shivani Chopra, the co-accused before his death.  He also stated  that

Shivani Chopra had told him that she had, in fact, gone to Airport  to

receive the deceased, however, he never showed up.  He further deposed

that,  Shivani  Chopra  had  developed  illicit  relations  with   the

deceased.

 

 

15.   Mahender Kumar Jain  (PW.17),  elder  brother  of  the  deceased

corroborated the testimony   of  Surender  Mohan  Jain   (PW.14),  and

further deposed that upon hearing the news regarding the death of  the

deceased, he immediately went to General Hospital on  28.12.2002,  and

identified the dead body of Ashok Jain.  He also disclosed that at the

time that Ashok Jain had left the city of Mumbai, he was carrying upon

his person, jewellery, i.e., a gold chain,  a pair of  diamond  rings,

various cosmetic articles and also cash.

 

 

16.   Capt.  Rakesh  Bakshi  (PW.22),  provided  proof  regarding  the

records of mobile phone numbers belonging to the accused persons.

Other witnesses also deposed in support  of  the  case  of  the

prosecution and proved all material particulars.

 

 

17.   When the appellant  and  the  co-accused  Shivani  Chopra,  were

examined under Section 313 Cr.P.C., they denied any involvement in the

said crime.   The  appellant  explained  that  he  was  being  falsely

implicated in this case.  He also stated that in connection  with  the

same, he had been arrested 5 days prior to the alleged date of  arrest

from Lucknow, and had since such date, been illegally  detained.   The

police had planted each of the alleged recoveries made by  them.   The

jewellery recovered, actually belonged to him.  He deposed that he did

not know the deceased, Ashok Jain at all, and all alleged  details  of

calls etc., were supported by way of fabricated documents.  A  similar

version was given by the co-accused Shivani Chopra who stated that the

deceased  Ashok  Jain,  was  in  fact,  her  family  friend.   He  had

telephoned her father to inform him that he would visit their house at

Rohini, on 26.12.2002  but  then  he  failed  to  show  up.   She  had

absolutely no intimacy with the  deceased.   The  alleged  records  of

phone calls etc. were untrue stories based on fabricated records.  She

did not, in fact,  own any of the telephone numbers, as shown as  part

of the evidence on record.

 

 

18.   The appellant also examined Samita Sinha (DW.1), and  Shailender

(DW.2), both of whom are sales persons at Bharti Jewellers, Mumbai and

also, one Subhash, who is the proprietor of Bharti  Jewellers  (DW.3),

to prove that the jewellery recovered, belonged to his family and  not

to the deceased Ashok Jain.

19.   In the above backdrop, both the courts  below  have  appreciated

      the entire evidence  and  material  on  record  and  thereafter,  have

      convicted the appellant and the co-accused Shivani Chopra on the basis

      of the following circumstances:

      i)     The  intimate  relations  vis-a-vis  Shivani  Chopra  and   the

      appellant, Munish Mubar as also between her and  the  deceased,  Ashok

      Jain.

      ii)    Shivani Chopra had knowledge that the deceased  was  coming  to

      Delhi on the evening of 26.12.2002 and she was to  receive  him,  upon

      his arrival, from the Delhi Airport.

      iii)  Shivani Chopra falsely informed Surender Mohan Jain (PW14), that

      Ashok Jain had not arrived in Delhi at all, and thus, she  was  unable

      to receive him at the Airport on the said day. On all prior occasions,

      Anil Garg (PW2) would receive him at the Airport.

      iv)   Car No. UP-32-AG-999l belonging to the appellant was parked,  on

      the evening of 26.12.2002, at precisely 17:26:21 hours in the car park

      of the Domestic Airport, Delhi and was taken therefrom,  on  the  very

      same day, at 20:34:50 hours and within 3 hours of such taking away  of

      the said car, the murder in question,  is known to have  taken  place.

      The said car was later recovered from the possession of the  appellant

      himself.

      v)    The calls made from mobile No.9818082l95 at  21:26:41  hours  on

      26.12.2002, were routed through cell No.6572  which  pertains  to  the

      Badshahpur, Gurgaon Tower, which was situated in the vicinity  of  the

      village Bhondsi, from where the dead body of Ashok Jain was recovered.



      vi)   The records of hotel  Suji  International  in  Paharganj,  Delhi

      prove sufficiently that  both  the  accused,  along  with  one  Sudhir

      Srivastava  (since the date of incident, proclaimed absconder), stayed

      in the said hotel on  several  occasions,  including  the  evening  of

      26.12.2002 between 3.40 p.m. and  11.55  p.m.   The  appellant  Munish

      Mubar, and Sudhir Srivastava also  stayed in hotel Ashoka Continental,

      Paharganj, Delhi on 24.12.2002, whereas the appellant had also  stayed

      in the said hotel along  with  the  co-accused  Sudhir  Srivastava  on

      25.12.2002, while representing themselves as  Munish  Mathur,  Shivani

      Mathur and Sunil Srivastava, respectively.

      vii)  There was sufficient motive to rob Ashok Jain of  the  ?valuables

      and getting rid of him, as the main hurdle in the love affair  between

      the appellant and Shivani Chopra.

      viii)       There was telephonic  communication  between  the  accused

      Shivani Chopra and the deceased on the day of occurrence of  the  said

      incident and also prior thereto.

      ix)   There has been recovery of jewellery, cosmetic articles, a  gold

      chain, a gold kara etc. from the appellant, on the basis of disclosure

      statement made by him.

      x)    Recovery of a torn vest,  a  blood  stained  hammer,  one  blood

      stained knife and a blood stained pair of trousers was also  made,  in

      pursuance of  the  disclosure  statement  made  by  the  appellant  on

      13.1.2003.

      xi) The act of absconding by the accused and ultimately the arrest  of

      the accused on 10.1.2003.

 

 

20.   Undoubtedly, in a  case  of  circumstantial  evidence,  all  the

circumstances  must  be  fully  established  and  all  the  facts   so

established, must be consistent  with  the  hypothesis  regarding  the

guilt of  the  accused.   The  circumstances  so  established,  should

exclude every other possible hypothesis except the one  sought  to  be

proved.    The   circumstances   must   be   conclusive   in   nature.

Circumstantial evidence  is  a  close  companion  of  factual  matrix,

creating a fine network through which there can be no escape  for  the

accused, primarily because the said facts, when taken as a  whole,  do

not permit us to arrive at any other inference but one, indicating the

guilt of the accused.

 

 

21.   If the case is examined in the light of  the  aforesaid  settled

legal propositions, we are of the considered opinion  that,  there  is

nothing on record to doubt the existence of the  illicit  relationship

of the co-accused Shivani Chopra with the deceased, Ashok Jain as also

with the appellant, as this fact has been fully established  from  the

evidence provided by several witnesses.  It has  further  been  proved

that  the  Santro  Car  belonging  to  the  appellant  was  parked  on

26.12.2002, at the Delhi Airport for a duration of 3 hours,  when  the

flight by which Ashok Jain (deceased) was to arrive, was scheduled  to

land, and the said car left after the  arrival  of  such  Jet  Airways

flight.  The  telephone  call  records  reveal  the  presence  of  the

      appellant in the Bhondsi village area, i.e., the place of  occurrence,

      at the relevant time of the incident.   The  recoveries  in  the  said

case, were made upon the disclosure statement of the appellant.   Some

of the articles found, had human blood on them and the  same  connects

the appellant to the said crime.  The appellant failed to furnish  any

      explanation whatsoever in relation to any of the above, when  examined

      under Section 313 Cr.P.C.

22.   In a case  of  circumstantial  evidence,  motive  assumes  great

      significance and importance, for the reason that the absence of motive

      would put the court on its guard and cause it to scrutinize each piece

      of  evidence very closely in order to ensure that  suspicion,  emotion

      or conjecture do not take the place of proof.  However,  the  evidence

regarding existence of  motive  which  operates  in  the  mind  of  an

assassin is very often, not within  the  reach  of  others.  The  said

motive, may not even be known to the victim of the crime.  The  motive

may be known to the assassin and no one else may know what gave  birth

to such evil thought, in the mind  of  the  assassin.  In  a  case  of

circumstantial evidence, the evidence  indicating  the  guilt  of  the

accused becomes untrustworthy and unreliable, because most often it is

only the perpetrator of the crime alone,  who  has  knowledge  of  the

circumstances that prompted him to adopt a certain course  of  action,

leading to the commission of the crime.  Therefore, if the evidence on

record suggest sufficient/necessary motive to commit a crime,  it  may

be conceived that the accused has committed the  same.  (See:  Subedar

Tewari v. State of U.P. & Ors., AIR 1989 SC 733; Suresh Chandra  Bahri

v. State of Bihar, AIR 1994 SC 2420; and Dr. Sunil Clifford Daniel  v.

State of Punjab, JT 2012(8) SC 639)

23.      The issue of non-examination  of  independent  witnesses  and

     reliance upon the deposition of police officials as “Panch  witnesses”

     was considered at length by this Court in State, Govt. of NCT of Delhi

     v. Sunil & Anr., (2001) 1 SCC 652, wherein this Court held as under:

                   “….But if no witness was present or  if  no  person  had

                agreed to affix  his  signature  on  the  document,  it  is

                difficult to lay down, as a proposition of  law,  that  the

                document so prepared by the police officer must be  treated

                as tainted and the recovery evidence unreliable. The  court

                has to consider the evidence of the  investigating  officer

                who deposed to the fact of recovery based on the  statement

                elicited from the accused on its own worth.

                    We feel that it is an archaic notion  that  actions  of

                the  police  officer  should  be  approached  with  initial

                distrust………At any rate, the court  cannot  start  with  the

                presumption that the police records are untrustworthy. As a

                proposition of law the presumption should be the other  way

                around.  That  official  acts  of  the  police  have   been

                regularly performed is a wise principle of presumption  and

                recognised even by the legislature.  Hence  when  a  police

                officer gives evidence in court that a certain article  was

                recovered by him on the strength of the statement  made  by

                the accused it is open to the court to believe the  version

                to  be  correct  if  it  is  not  otherwise  shown  to   be

                unreliable.  It  is  for  the   accused,   through   cross-

                examination of witnesses or through any other materials, to

                show that the evidence of  the  police  officer  is  either

                unreliable or at  least  unsafe  to  be  acted  upon  in  a

                particular case. If  the  court  has  any  good  reason  to

                suspect the truthfulness of such records of the police  the

                court could certainly take into account the  fact  that  no

                other  independent  person  was  present  at  the  time  of

                recovery. But it is not a legally approvable  procedure  to

                presume the police action as unreliable to start with,  nor

                to jettison such action merely for the reason  that  police

                did not collect signatures of independent  persons  in  the

                documents made contemporaneous with such actions.”

 

 

24.   It is obligatory  on  the  part  of  the  accused,  while  being

     examined under Section 313 Cr.P.C. to furnish  some  explanation  with

     respect to the incriminating circumstances associated  with  him,  and

     the Court must take note of  such  explanation,  even  in  a  case  of

     circumstantial evidence, so to decide, whether or not,  the  chain  of

     circumstances is complete.  The aforesaid judgment has  been  approved

     and followed in Musheer Khan v. State of Madhya Pradesh, (2010) 2  SCC

     748. (See also: The Transport Commissioner, A.P., Hyderabad & Anr.  v.

     S. Sardar Ali & Ors., AIR 1983 SC 1225).

25.    In view of the aforesaid discussion,  it  is  evident  that  in

     spite of the fact that in case there  is  no  independent  witness  of

     recoveries and panch witnesses are only police personnel, it  may  not

     affect the merits of the case. In the instant case,  the  defence  did

     not ask this issue in  the  cross-examination  to  Inspector  Shamsher

     Singh (PW.21) as why the independent person was  not  made  the  panch

     witness.  More so, it was the duty of the appellant  to  furnish  some

     explanation in his statement under Section 313 Cr.PC.,  as under  what

     circumstances his car had been parked at  the  Delhi  Airport  and  it

     remained there for 3 hours on the date of  occurrence.  More  so,  the

     call records of his telephone make it evident that he was  present  in

     the vicinity of the place of occurrence and under  what  circumstances

     recovery of incriminating material had  been  made  on  his  voluntary

     disclosure statement. Merely making  a  bald  statement  that  he  was

     innocent and recoveries had been planted and  the  call  records  were

     false and fabricated documents, is not enough  as  none  of  the  said

     allegations made by the appellant could be established.

            In view of the above, we do not find any force in this  appeal.

     The appeal is therefore, dismissed accordingly.

 

 

?                                             ……..………………………J.

(Dr. B.S. CHAUHAN)

 

 

 

……………….………………………………………J.

(FAKKIR     MOHAMED     IBRAHIM     KALIFULLA)

 

 

New Delhi,

October 4,  2012

 

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