M.B Shah, J.— On the charge of murder of one Vishal Goel, Sandeep (A-1), Arun Bhatia (A-2), Vikram Singh (A-3), Mandeep (A-4) and one juvenile Aman were prosecuted. Trial of juvenile was separated. The Additional Sessions Judge, Faridabad by judgment and order dated 22-11-1996 in Sessions Case No. 10 of 1995 convicted all the four accused for the offence punishable under Sections 302/34 and sentenced them to suffer imprisonment for life and a fine of Rs 1000 each, in default of payment of fine to further undergo RI for six months each. He also convicted the accused for the offence punishable under Sections 201/34 IPC and sentenced them to undergo RI for five years and to pay a fine of Rs 300 each in default of payment of fine to further undergo RI for three months each. Both the sentences were directed to run concurrently.
2. Against the said judgment and order, Sandeep (A-1) preferred Criminal Appeal No. 49-DB of 1997, Arun Bhatia (A-2) filed Criminal Appeal No. 93-DB of 1997, Vikram (A-3) filed Criminal Appeal No. 48-DB of 1997 and Mandeep (A-4) preferred Criminal Appeal No. 616-DB of 1996 before the High Court of Punjab and Haryana at Chandigarh. V.K Goel, the complainant and father of the deceased, also filed Criminal Revision No. 199 of 1997 praying for enhancement of sentence. The High Court reappreciated the evidence and considered the circumstances connecting the accused with the crime. The High Court disbelieved the evidence of PW 6 Gulshan Kumar that he saw the deceased and the accused quarrelling near Kesar Hotel and that he separated them as in his previous statement he had not stated that he enquired the names of those boys from them. The High Court held that even if the said evidence is ruled out of consideration, it will make the only motive in the case behind the killing of Vishal absent. However, the Court relied upon the evidence of PW 9 Laxmi Narain on the ground that Sandeep was known to him earlier and that Vikram, Aman and Sandeep went to the house of Laxmi Narain in expectation that he was having association with the complainant V.K Goel so he would be able to help them in the investigation or in the trial. The Court relied upon the evidence of PW 11 Manish Sharma for arriving at the conclusion that the accused and the deceased were last seen together. Manish also gave the motorcycle number as HR-29 E/3698. The Court also relied upon the evidence of PW 7 Bankey Lal who after some time saw a motorcycle and a scooter coming at fast speed. On the motorcycle, he saw Sandeep, Aman and Arun. Arun was riding the motorcycle and Sandeep was having a sword in his hand. He also saw Mandeep riding the scooter and Vikram sitting on its pillion. On the basis of the information, V.K Goel along with Manish Sharma, Bhuneshwar and Bankey Lal went in search of Vishal and when they reached near Gurgaon canal they found a pair of chappals of brown colour belonging to the deceased. One locket belonging to the deceased was also found lying there. At the instance of the accused Sandeep, bloodstained sword and clothes were recovered. Similarly, at the instance of the accused Vikram, motorcycle was recovered and also bloodstained clothes containing human blood as reported by the Chemical Analyst were found. Considering the aforesaid circumstances, the Court arrived at the conclusion that the prosecution has successfully brought home, beyond pale of doubt, against Vikram and Sandeep the charge of murder of Vishal Goel on 15-3-1995 in furtherance of their common intention. However, the Court arrived at the conclusion that there was no evidence of recovery so far as Mandeep and Arun were concerned and the only evidence that they were last seen in the company of the deceased would not alone be sufficient to convict them.
3. The High Court by the impugned judgment and order dated 28-4-1999 dismissed Criminal Appeals Nos. 48 and 49-DB of 1997 filed by Sandeep (A-1) and Vikram (A-3) and confirmed their conviction. The Court partly allowed Criminal Revision No. 199 of 1997 filed by the complainant V.K Goel for enhancement of sentence and enhanced the fine in respect of Sandeep (A-1) and Vikram (A-3) to Rs 25,000 each for the offence punishable under Sections 302/34 IPC and to Rs 5000 each for the offence punishable under Sections 201/34 IPC. In default of payment of fine, they were further directed to undergo RI for one year and six months respectively. The Court allowed Criminal Appeal No. 93-DB of 1997 and Criminal Appeal No. 616-DB of 1996 filed by Arun Bhatia (A-2) and Mandeep (A-4) respectively and acquitted them for the offences for which they were charged.
4. The said judgment and order is challenged by Sandeep (A-1) by filing Criminal Appeal No. 345 of 2000, by Vikram (A-3) in Criminal Appeal No. 350 of 2000, by the complainant V.K Goel in Criminal Appeals Nos. 346 to 348 of 2000 against Mandeep, Arun Bhatia and the State. The State of Haryana has also filed Criminal Appeal No. 349 of 2000 against acquittal of Mandeep.
5. It is the prosecution version that on 15-3-1995 at about 7.30 p.m, i.e, on the day of incident, when the deceased Vishal was at his house and was about to take meals, someone called him from outside on which he went out and did not come back. In the night, father of the deceased lodged a missing report, Ext. PP. On the next day, the complainant was informed by PW 11 Manish Sharma that he had seen the deceased going on a motorcycle along with Sandeep (A-1) and Arun Bhatia (A-2) in the evening time on 15-3-1995. He was also informed by Bankey Lal (PW 7) and Bhuneshwar that on 15-3-1995 they saw one motorcycle and one scooter coming from the side of canal. On the motorcycle, they saw Sandeep, Aman and Arun. Arun was riding the motorcycle and Sandeep was having a sword in his hand. The scooter was driven by Mandeep and Vikram was pillion rider. It is also stated that one Gulshan Malik, PW 6 also informed V.K Goel that he had seen Vishal and 5/6 boys quarrelling near Kesar Sweet Restaurant and that he separated them. He also disclosed the names of those boys as Arun, Aman, Sandeep, Vikram and Mandeep. While continuing with the search, the complainant and others reached Gurgaon canal and found a pair of chappals which V.K Goel identified as belonging to his son Vishal. Close by they noticed a trail of blood going up to the canal as also drag marks. The matter was reported to the police and on the basis of information given by the witnesses, FIR No. 221 was lodged on 16-3-1995 at about 7.00 p.m under Sections 364/34 IPC. After lodging the FIR, the police party along with PW 7, PW 11 and the complainant went to Gurgaon canal where they found a locket in the shape of “Om” belonging to the deceased. It was sealed, marked and seized by the police. Similarly, chappals were sealed, marked and seized. Divers were called from the fire brigade station, but despite their efforts they could not locate the body as it was night. Thereafter, on 17-3-1995, at about 10 a.m divers could recover the dead body from the canal. An autopsy on the dead body was conducted. Dr V.K Aggarwal, PW 5 found several incised wounds and opined that the death was due to shock and haemorrhage as a result of injuries to the vital organs which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. It is also the prosecution story that on 18-3-1995, Sandeep, Vikram and Aman went to the house of Laxmi Narain PW 9 and made an extra-judicial confession that they committed the murder of Vishal and his body was thrown in Gurgaon canal. The accused further informed him that they were afraid of the police as they had committed a heinous crime and requested him to produce them before the police. He produced them before the police and they were taken into custody. On the basis of their disclosure statements, recoveries were effected. Sandeep (A-1) disclosed about the sword Ext. P-7, black pants Ext. P-22, bloodstained jacket Ext. P-21, and sandow banian Ext. P-23. Vikram (A-3) disclosed about the motorcycle and clothes.
6. At the time of hearing of these appeals, learned Senior Counsel Mr U.R Lalit appearing for Sandeep submitted that (1) courts below erred in relying upon the so-called confession before PW 9 Laxmi Narain as it is absolutely vague. The so-called confession nowhere indicates who committed the murder and where it was committed. For proving the confession, exact words uttered by the accused are necessary to be proved. In any set of circumstances, there was no reason for the accused to approach PW 9 and make such a confession. PW 9 is not related to or acquainted with the accused nor having any status in society or holding any post so as to be helpful to the accused. Further, the say of PW 9 Laxmi Narain that he handed over the accused to the Police Inspector does not find any corroboration from the evidence of IO; (2) the prosecution has failed to establish the motive as narrated by PW 6 Gulshan Kumar and the same is rightly disbelieved by the courts below as the witness was not knowing the accused nor was he familiar with them; (3) the trial court had arrived at the conclusion that the prosecution had failed to prove the charge of criminal conspiracy and the accused were acquitted for the same. Therefore, the chain of circumstances, namely, last seen together and seeing them coming together, upon which the prosecution relies is also weakened as the two accused are acquitted by the High Court; (4) the prosecution case that despite the detailed FIR stating the names and addresses of the accused, being recorded on 16-3-1995 at 7 p.m, the IO, did not arrest any of the accused named in the FIR and that the IO is totally silent with regard to the steps taken by him after recording of the FIR, is not believable. He submitted that if this part is disbelieved, the so-called recoveries at the instance of the accused become suspicious. In any case, recovery is not proved by any independent witness as PW 9 Laxmi Narain cannot be said to be an independent witness; (5) the evidence led by the prosecution is that of all interested witnesses, who are connected with the complainant V.K Goel in one way or the other. He pointed out that the evidence of V.K Goel is not reliable because his version that he came to know about the arrest of the accused after five days is totally unbelievable as he was in constant touch with the IO. Learned counsel further pointed out that all the prosecution witnesses have not specifically stated before the court that they were knowing the accused and if knowing since when and how. Further, as there was no identification parade, their evidence is not reliable.
7. Learned Senior Counsel Mr Sushil Kumar appearing for Arun Bhatia submitted that there is no evidence worth the name for convicting Arun and, therefore, the High Court has rightly acquitted him. He has not made any confession. He pointed out that nothing was recovered from Arun Bhatia and the complainant has named only four boys and he has not named Arun.
8. Mr Jaspal Singh, learned Senior Counsel appearing for Mandeep adopted the aforesaid contentions raised by the learned counsel and in addition submitted that there is no confession by Mandeep and from the evidence on record the prosecution has failed to prove the chain of circumstances to connect him with the crime. Learned counsel Mr S.N Bhardwaj appearing for Vikram adopted the aforesaid contentions raised by learned Senior Counsel Mr Lalit as well as Mr Sushil Kumar and submitted that the High Court erred in convicting Vikram Singh.
9. As against this, learned counsel Mr Mahabir Singh appearing for the State at the outset submitted that some lapses on the part of IO in not carrying out prompt investigation would not mean that evidence of the prosecution witnesses is not reliable. He also submitted that it is true that Public Prosecutor has not taken care in bringing on record the fact that the accused were known to the witnesses but considering their evidence and the cross-examination it is apparent that the accused were known to the witnesses and during the trial defence has not doubted their identity by the witnesses at any point of time. It is his contention that prosecution has fully proved the chain of circumstances which connect the accused with the crime. For this purpose, he relied upon the witnesses who have seen the accused going and coming on a motorcycle and scooter, particularly, Sandeep having a sword in his hand. He also relied upon the evidence of PW 6 and submitted that prior to the commission of crime, an incident had taken place at 4 or 4:30 p.m on the day of incident. Apart from this, he referred to cross-examination of PW 13 V.K Goel, wherein it was suggested by the defence that because of throwing of acid on a girl named Deepika, there was dispute between the accused and the deceased. He pointed out that recovery of bloodstained sword and clothes of the accused Sandeep clearly establish his connection with the crime. He submitted that apart from the evidence of IO as well as PW 9 Laxmi Narain, even the evidence of DW 1 corroborates the recovery of clothes from the house of Sandeep. For Vikram Singh, it is his contention that he was found along with Sandeep. A motorcycle was found at his instance and that his bloodstained clothes were also recovered. For the other acquitted accused Mandeep, he submitted that there is no reason to acquit him as from his house the scooter was recovered on the basis of his disclosure statement. He contended that the accused made confessional statements before PW 9 who handed over the accused to the IO, and at that stage also in his presence the accused made confessional statements and thereafter they were arrested by the IO. The learned counsel for the complainant also supported the aforesaid contentions.
10. In our view, submission of learned counsel for the appellants that the courts below erred in relying upon the confessional statement made by Sandeep before PW 9 Laxmi Narain requires to be accepted. Alleged confessional statement narrated by the witness PW 9 is limited to the extent that Sandeep, Vikram and Aman came to his house at 9.30 a.m on 18-3-1995. Sandeep told him that on 15th March, they committed the murder of Vishal Goel and his body was thrown in Gurgaon canal near Bypass Sectors 9 and 13. They also informed him that they were afraid of the police and requested him to produce them before the police. It is his say that when he was going along with the accused to inform the police, the police met him at T-point of Sectors 8 and 9, Faridabad and the accused were handed over to the police. From the aforesaid version of the witness it is apparent that neither Vikram nor Aman made any confessional statement. Hence, it is difficult to arrive at the conclusion that Vikram and Aman made any confessional statement. Only Sandeep told the witness that they had committed the murder of Vishal Goel. Further, the learned counsel is right in submitting that there was no necessity for Sandeep and the other accused to go to the residence of Laxmi Narain, more so when Laxmi Narain was not closely acquainted with the accused nor was he having any status in society so that he could be helpful to them. On this aspect the prosecution has not brought anything on record to point out the reason as to why Sandeep and others had gone to the house of PW 9. In cross-examination, the witness stated that he was a member of Lions Club and that Vikram had visited his house 2-3 times and last time 2 1/2 months prior to the date of occurrence. He has also stated that he was knowing Sandeep prior to his visit at his residence. It is his say that he met him in a restaurant and both of them took snacks and he made the payment. Considering the entire evidence of this witness, in our view, the prosecution has not brought on record any reason for the accused to go to the residence of Laxmi Narain to confess their crime. Therefore, the said confessional statements cannot be relied upon.
11. However, there is no reason to disbelieve the say of this witness that Sandeep made confessional statement that the dead body of Vishal Goel was thrown in Gurgaon canal near Bypass Sectors 9 and 13 and that the sword and bloodstained clothes were kept at his residence. On the disclosure statement of Sandeep, bloodstained sword wrapped in a red cover, one black pants and jacket of fauji colour stained with blood were recovered from his house. On the basis of disclosure statement of Vikram, bloodstained T-shirt and a motorcycle bearing No. HR-29 E/3698 parked on the ground floor of his house near garage were recovered. Further discovery of articles from the house of Sandeep gets corroboration from the evidence led by the accused. The accused led the evidence of DW 1 Jai Bhagwan Singh Dahiya who was at security service in Sector 9, for contending that the accused Sandeep was arrested on 16-3-1995 and not on 18-3-1995 as stated by the prosecution. It is the say of DW 1 that on 16th March he learnt that one boy was murdered and the son of Mahender Sharma, namely Sandeep was involved in the crime. He had gone to the house of Mahender Sharma at about 10.15 p.m In the meantime, SI Bhagat Singh accompanied with 2/3 other police officers arrived at his house. It is his say that Sandeep was handcuffed along with one other boy. The witness admitted that the police enquired about the clothes of Sandeep when he was sitting in the drawing-room of Mahender Sharma. Sandeep brought clothes consisting of one jacket, sandow baniyan of blue colour, one black pants and thereafter the police along with the accused left the place. In cross-examination, he admitted that he was on visiting terms with Mahender Sharma for the last many years and that he came to know about the murder at about 4/5 p.m on 16-3-1995. He also came to know about the involvement of Sandeep in the murder case at 10 p.m Mahender Sharma and his wife were present in their house when the police came. He admitted that he had not disclosed this version to anybody and was not summoned as a witness, but at the instance of Mahender Sharma he appeared as a witness. This evidence, in our view, amply corroborates that the investigating officer discovered the bloodstained clothes from the house of Sandeep in the presence of his parents. Once this part of discovery is believed, then there is no reason to disbelieve the evidence of Laxmi Narain who was present at the house of Sandeep when the discoveries as stated above were made. He has stated that on the disclosure by Sandeep, they were taken to his residence and Sandeep produced the bloodstained sword and clothes in the presence of his parents and the witness had attested the recovery memos.
12. Further, the prosecution has also produced on record the report of Assistant Director, (Serology), Forensic Science Lab, Haryana who found stains of human blood on the earth, shirt, T-shirts, pants, sweater, underwear and sword. As per the FSL report, the said articles were found stained with human blood of Group B which was also the blood group on the articles recovered from the dead body of Vishal Goel.
13. In our view, the High Court erred in disbelieving the evidence of PW 6 Gulshan Kumar in its entirety. It is the say of PW 6 that at about 4/4.30 p.m, near Kesar Restaurant, he saw Vishal Goel and 5-6 boys quarrelling with each other. Vishal Goel was caught by 4-5 boys, who were present in the court, and he separated them. In cross-examination, he has stated that he was not knowing them prior to the incident and that he was knowing Vishal Goel and his father since years. Maybe, that, on the date of incident he was not knowing the names of the boys who were quarrelling with the deceased but that would not, in any way, falsify his say that Vishal and 5-6 boys were quarrelling with each other and that he separated them. Even in the examination-in-chief he has not stated the names of the accused. However, the High Court rightly appreciated the evidence of PW 11 Manish Sharma who has stated that at about 7.30 p.m on the date of incident, he saw the accused Sandeep and Arun going on a motorcycle having the same number which was recovered at the instance of Vikram. This witness has specifically stated that he was knowing the deceased Vishal Goel as he was a tenant in the house of V.K Goel. He has also stated that he was knowing Sandeep and Arun since he became a tenant in the house of V.K Goel. There is no reason to disbelieve the evidence of this witness. The evidence is consistent with the evidence of the complainant who has stated that at about 7.30 p.m when his son Vishal Goel was taking his meals, someone called him from outside and thereafter he left the house. Next day, V.K Goel was informed by PW 11 Manish Sharma that he had seen his son in the company of Sandeep and Arun at 7.30 p.m on a motorcycle. Further there is evidence on record of Bankey Lal, PW 7 that on 15th March when he, along with Bhuneshwar Goel, was walking on the road leading to Sectors 9 and 13, at about 8.30 p.m, he saw Sandeep, Aman and Arun on a motorcycle. The motorcycle was driven by Arun and Sandeep was having a sword in his hand. He also saw Mandeep driving a scooter and Vikram was the pillion rider. The motorcycle and scooter were coming from the side of canal in a fast speed. On the next day when he came to know that Vishal Goel was missing, he accompanied V.K Goel in search of him towards the canal and found a pair of chappals of brown colour and blood on the earth. One locket of “Om” was also found there and they noticed dragging marks on the spot up to the canal. In cross-examination, the witness has stated that he was on visiting terms with V.K Goel and had gone to his house on a number of occasions as he was residing in the neighbourhood. He has also stated that the accused boys have been visiting the house of V.K Goel and he was knowing their names as he had heard them talking with each other. As the evidence of the aforesaid two witnesses is consistent, cogent and reliable, it would be difficult to accept the contention of the learned counsel that because they knew V.K Goel, therefore, they are interested and their evidence is not reliable. In case where the victim and the accused are known to a witness, his evidence would be material and cannot be criticised that as the witness was knowing the father of the accused, he is an interested witness. In the present case, as the witnesses knew the deceased as well as the accused persons, they were in a position to inform the complainant and also to identify the accused. In such a case there was no question of holding an identification parade. The aforesaid evidence clearly establishes that the deceased was last seen in the company of Sandeep and others after leaving the house at about 7.30 p.m Thereafter, Sandeep having a sword and others were seen coming back from the canal side by Bankey Lal, PW 7. From the house of Sandeep bloodstained sword and clothes were discovered. Similarly, the bloodstained T-shirt was discovered from the house of Vikram and from the garage of his house, the motorcycle bearing No. HR-29 E/3698 was also recovered. PW 5 Dr Aggarwal carried out the post-mortem and found as many as 10 incised wounds which could be caused by a sword. The sword and the clothes which were recovered were found stained with blood of ‘B’ group which is also the blood group found from the earth lifted from the spot and from the articles found on the body of the deceased Vishal.
14. In view of the aforesaid circumstantial evidence proved by the prosecution, even if we discard the confessional statement made by the accused Sandeep before PW 9 Laxmi Narain, the High Court was right in convicting the accused Sandeep (A-1) and Vikram Singh (A-3). Further, the High Court held that against Mandeep and Arun, except seeing them together while coming back by PW 7, there is no other evidence to connect them with the crime and that there was no discovery of bloodstained articles at their instance. Hence, they were acquitted. But that would not in any way adversely affect the prosecution evidence qua A-1 and A-3. It is also true that despite the detailed FIR, the IO has not taken immediate steps for arresting the accused named in the FIR. But sluggishness in investigation would not in any way adversely affect the evidence of complainant — PW 13, PW 7 and PW 11. In this view of the matter, the finding recorded by the High Court convicting A-1 and A-3 and acquitting A-2 and A-4 does not call for any interference.
15. In the result, the appeals are dismissed.