BIJENDER @ MANDAR versus STATE OF HARYANA on 8 November 2021

1138

[2021] 7 S.C.R. 1138

SUPREME COURT REPORTS

[2021] 7 S.C.R.

BIJENDER @ MANDAR

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v.

STATE OF HARYANA

(Criminal Appeal No. 2438 of 2010)

BNOVEMBER 08, 2021

[N. V. RAMANA, CJI., SURYA KANT ANDHIMA KOHLI, JJ.]

Penal Code, 1860: ss. 392 and 397 – Robbery using deadlyweapons – Prosecution case that appellant and co-accused armedCwith pistols robbed the complainant and his nephew – Convictionu/ss. 392 and 397 and sentenced accordingly, on basis of thedisclosure statement and recovery made thereof – High Court upheldthe conviction, however, reduced the sentence u/s. 397 – On appeal,held: Court can convict an accused exclusively on the basis of hisDdisclosure statement and the resultant recovery of inculpatorymaterial – However, in order to sustain the guilt of such accused,the recovery should be flawless and not be shrouded with elementsof doubt – Where the prosecution fails to inspire confidence in themanner and/or contents of the recovery with regard to its nexus tothe alleged offence, the court ought to give the benefit of doubt toEthe accused – On facts, prosecution miserably failed to bring homethe guilt of the appellant – Courts below were influenced byirrelevant considerations, such as rise in the incidents of dacoity –Courts below shifted the burden on the appellant to explain how hewas in possession of the incriminating articles, without primarilyFscrutinizing the credibility and admissibility of the recovery as wellas its linkage to the misconduct – Inference was drawn against theappellant, in spite of the prosecution’s failure to dispense with itsburden of proof to depict culpability of the appellant – Evidence onrecord did not establish the guilt of the appellant beyond reasonabledoubt – Thus, the orders passed by the courts below set aside.G

Allowing the appeal, the Court

HELD: 1.1. The Court can convict an accused exclusivelyon the basis of his disclosure statement and the resultant recoveryof inculpatory material. However, in order to sustain the guilt of H

such accused, the recovery should be unimpeachable and not beshrouded with elements of doubt. [Para 16][1146-B-C]

1.2 Where the prosecution fails to inspire confidence inthe manner and/or contents of the recovery with regard to itsnexus to the alleged offence, the court ought to stretch the benefitof doubt to the accused. The cardinal principle of criminaljurisprudence is that “it is better that ten guilty persons escape,than that one innocent suffer”. The doctrine of extending benefitof doubt to an accused, notwithstanding the proof of a strongsuspicion, holds its fort on the premise that “the acquittal of aguilty person constitutes a miscarriage of justice just as much asthe conviction of the innocent”. [Para 17][1146-E-G]

2. It may not be wise or prudent to convict a person onlybecause there is rampant increase in heinous crimes and victimsare oftenly reluctant to speak truth due to fear or other extraneousreasons. The burden to prove the guilt beyond doubt does notshift on the suspect save where the law casts duty on the accusedto prove his/her innocence. It is the bounden duty of theprosecution in cases where material witnesses are likely to beslippery, either to get their statements recorded at the earliestunder Section 164 Cr.P.C. or collect such other cogent evidencethat its case does not entirely depend upon oral testimonies. [Para18][1147-A-B]

3. The prosecution miserably failed to bring home the guiltof the appellant and courts below have been unwittingly swayedby irrelevant considerations, such as rise in the incidents ofdacoity. The trial court and High Court have hastened to shiftthe burden on the appellant to elucidate how he bechanced to bein possession of the incriminating articles, without primarilyscrutinizing the credibility and admissibility of the recovery aswell as its linkage to the misconduct. The High Court and trialcourt failed to take into consideration that the testimony of ASI(PW-14) exhibited no substantial effort made by the police forconducting the search of the residence of the appellant in thepresence of local witnesses. The only independent witness tothe recovery was PW-8 who was admittedly a companion of the ABC

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Acomplainant. The complainant (PW-4) as well as PW-8, haveunambiguously refuted that neither the passbook, nor the ‘redcloth’ was recovered from the possession of the appellant, asclaimed in his disclosure statement. While, PW-4 negated hissignatures on the recovery memo, on the other hand, PW-8 alsoneither enumerated the recovery memo in the catalogue ofBexhibited documents, nor did that he affirm to having hisendorsement. The recovered articles are common place objectlike money and the ‘red cloth’ with ‘Kamla’ embossed on it, ashas been acceded by PW-14, can also be easily available in market.The recovery took place nearly a month after the commission ofCthe alleged offence. It is incredulous that the appellant duringthe entire time period kept both red cloth and the passbook alongwith the money he robbed off the complainant. Furthermore, thereis no other evidence on record which even remotely pointstowards the iniquity of the appellant. [Para 19][1147-C-H; 1148-A-C]D

4. The trial court and the High Court have erroneouslydrawn inference against the appellant, in spite of the prosecutionhaving lamentably failed to adequately dispense with its burdenof proof to depict culpability of the appellant. As far as the view ofthe trial court and the High Court qua the alleged threat isEconcerned, it is hard-pressed to give credence to such allegationsin the absence of any compelling evidence to substantiate thesame. Although, the prosecution has attempted to place relianceon the affidavit presented by the complainant during the T.I.P.offered by the co-accused, the said affidavit does not name the Fappellant. [Para 20][1148-C-E]

5. The evidence on record does not establish the guilt ofthe appellant beyond reasonable doubt and the courts below havearrived at recording the guilt of the appellant in absence of anycogent rationale, justifying his conviction. Thus, the judgmentsGand orders passed by the trial court and High Court are set asideand the appellant is acquitted of all charges. [Para 21, 22][1148-E-F]

Vijay Thakur v. State of Himachal Pradesh, (2014) 14SCC 609; Tulsiram Kanu v. The State; AIR 1954 SC 1;Pancho v. State of Haryana (2011) 10 SCC 165 : [2011]

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12 SCR 1173; State of Rajasthan v. Talevar & Anr.A(2011) 11 SCC 666 : [2011] 6 SCR 1050; BharamaParasram Kudhachkar v. State of Karnataka (2014)14 SCC 431 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2438 of 2010.

From the Judgment and Order dated 07.09.2009 of the High Courtof Punjab & Haryana at Chandigarh in Criminal Appeal No.851SB/2002.

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Surender Singh, Mukul Kumar, Advs. for the Appellant.

Ms. Alka Agarwal, AAG, Dr. Monika Gusain, Advs. for theRespondent.

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The Judgment of the Court was delivered by SURYA KANT, J.

1. The instant Criminal Appeal emanates from the judgment andorder dated 7[th] September 2009 of the High Court of Punjab and Haryanaat Chandigarh, whereby the order dated 20[th] March 2002 passed by theAdditional Sessions Judge, Sonipat, convicting the Appellant-Bijender@ Mandar under Sections 392 and 397 IPC was affirmed. The HighCourt upheld the rigorous imprisonment of 5 years along with fine ofRs.5000/- for the offence punishable under Section 392 IPC. However,it reduced the sentence from 10 to 7 years rigorous imprisonment with afine of Rs.10,000/- for the offence punishable under Section 397 IPC.Both the sentences were directed to run concurrently.

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FACTS:

2. Briefly put, the Prosecution version is that on 14[th] April 1999, ataround 11:00 AM, Bal Kishan (Complainant) was on his way to Delhi on H

Ahis motorcycle along with his nephew, Sanjay, to purchase a plot of landand was carrying a sum of Rs. 46,000/- for the said purpose. When theComplainant reached near the farm house of one Virender Bansal, onJatheri Road, he was intercepted by a vehicle. The Appellant and oneManjeet (co-accused) stepped out of the said vehicle, armed with countrymade pistols and asked the Complainant to hand over the amount. TheBComplainant then handed over the key of the bike. The Accused tookout the bag containing the money from the boot of the motorcycle andfled from the spot. Whereafter, the Complainant rushed towards thenearest Police Station on foot, leaving his nephew and the motorcyclebehind, at the place of the incidence. To the good fortune of theCComplainant, on his way to the Police Station, he met with ASI RajinderKumar (PW-14) and reported the occurrence to him. Consequently, anFIR was lodged and the investigation was set in motion.

3. Four accused persons, including the Appellant were arrestedon the basis of secret information received by the police and they wereDcharged under Sections 392, 397 and 120-B IPC and Section 25 of theArms Act. Whilst the 5[th] co-accused (Vinod) could not be arrested andwas declared a proclaimed offender under Section 82 Cr.P.C., the otherAccused including the Appellant abjured their guilt and pleaded ‘notguilty’. In the eventual trial, 14 witnesses were examined by theProsecution. No evidence was led by the Defence. The ProsecutionEpresented its narrative before the Trial Court that the Accused persons,along with Vinod, conspired together to loot the Complainant, who, theywere aware was carrying money for the purchase of a plot in Delhi.Whereas co-accused Mukesh and Subhash had provided the information,the Appellant, Manjeet and Vinod actually carried out the robbery.F

4. The case of the Prosecution banked heavily on the disclosurestatements made by the Accused persons and the pre-trial recoveriesmade pursuant thereto. The Appellant in his revelation (Ex. PD) affirmedthe chronicle presented by the Prosecution. He further stated that Rs.10,000/- fell in his kitty as part of his share, out of which he had alreadyGspent Rs. 5,000/. The Appellant led the police to his residence and aidedin recovering Rs. 5,000/- which were found wrapped in a ‘red cloth’(Ex. P1), along with a passbook (Ex. P2). It is alleged that the ‘redcloth’ belonged to the wife of the Complainant, with the name ‘Kamla’embroidered on it and the passbook belonged to the Complainant. Similarly,the disclosure statements of the co-accused led to the recovery of some H

paltry amount and a country made pistol belonging to co-accused Manjeet,which was allegedly used for commission of the crime. Theseincriminatory statements were in line with the divulgation of the Appellant.

5. During the trial, a host of Prosecution witnesses turned hostile.Even though the Complainant (PW-4), in his deposition, acknowledgedthat the ‘red cloth’ belonged to his wife but he refuted that the pass bookand/or the said cloth was recovered from the possession of the Appellantin his presence. He further denied that the Accused, including theAppellant, matched the identity of the persons who committed the felony.He also denied that the recovery memo (Ex. PD/2) bore his signature.The Complainant’s nephew, Sanjay (PW-6), who was an eye-witness,also debunked the very occurrence of the incident in its entirety andtestified that no amount was snatched from his uncle, the Complainant.In a similar vein, PW-5 and PW-8, who were independent witnesses tothe recovery of the articles by the police and to the alleged conspiracy,respectively, also resiled and were declared hostile.

6. Only the formal witnesses supported the tale of the Prosecutionand stood their ground qua the guilt of the Accused. In this regard, thetestimony of ASI Rajinder Kumar (PW-14), who was in-charge of theinvestigation, bears some significance. This witness affirmed to thelegitimacy of the disclosure statements presented by all the Accused,including the Appellant, and stated that the Complainant in hissupplementary statement before the police had contended that Rs. 46,000/- were wrapped in a ‘red cloth’ which had Complainant’s wife’s nameembroidered on it along with a Passbook of Indian Bank. Albeit, ASIRajinder Kumar in his cross-examination, admitted that the ‘red cloth’which was recovered from the house of the Appellant was easily availablein the market and that the name ‘Kamla’ could also be easily engravedthereupon. Further, he also deposed that whilst co-accused Manjeet hadsought for Test Identification Parade (for short, “T.I.P.”), the Complainantrefused to participate in the same and instead had tendered an affidavit,claiming that if he were to identify Manjeet he would be killed. H.C.Karmbir Singh (PW-13), who was present with PW-14 when thedisclosure statements were tendered by the Accused, also supportedthe Prosecution version and deposed that the recovery of the incriminatingarticles was made in his presence.

7. The Appellant in his 313 Cr.P.C. statement denied the recoveryof all the incriminating evidence put before him. To the same effect A

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Awere the statements made by other co-accused under Section 313 Cr.P.C.,denying the Prosecution version completely.

8. The Trial Court found strength in the contention of theProsecution that the material witnesses had substantially proved its versionthough with minor discrepancies. The Court further noted that anBadmission by an accused leading to the discovery of any -----fact couldbe used against them and that in the instant case, the Accused had failedto provide any explanation as to how they came into possession of thearticles, especially the ‘red cloth’ and the passbook, which were recoveredfrom the custody of the Appellant. In light of the instant fact scenario,the Trial Court concluded that recovery of the Articles was sufficient toCdraw the inference of culpability and to bring home the guilt of theAccused. Consequently, the Trial Court convicted the Appellant andManjeet under Sections 392 & 397 IPC. Manjeet was further convictedunder Section 25 of the Indian Arms Act, 1959. Accused Mukesh andSubhash were also convicted under Section 120B IPC. All the AccusedDwere sentenced with a maximum sentence of rigorous imprisonment of10 years each under Section 397 IPC and/or Section 120B IPC.

9. Discontented, the Accused preferred separate appeals beforethe High Court of Punjab and Haryana. Their primary contention wasthat none of the eye-witnesses or the independent witnesses supportedEthe Prosecution case and that they could not be convicted solely on thebasis of disclosure statements. Upon re-appraisal of evidence, the HighCourt was unimpressed by the plea raised on behalf of the Accused andconcurred with the findings of the Trial Court and further noted that dueto enormous rise in instances of dacoity, the non-identification of theaccused in the Court could not be construed as a material considerationFwhere other evidence points towards the commission of the crime. TheHigh Court vide a common judgment maintained the conviction of theAccused persons. Nonetheless, the High Court reduced the sentenceunder Section 397 IPC to rigorous imprisonment of 7 years so as tomeet the ends of justice.G10. The aggrieved Appellant is now before this Court.

CONTENTIONS:

11. We have heard learned counsel(s) for the Appellant and theRespondent-State at a considerable length and perused the record in-depth. The principal contention raised on behalf of the Appellant is thatH

his conviction is based solely on the basis of the ‘disclosure statement’and that there is no other cogent evidence to withstand his convictionunder Sections 392 and 397 IPC. It was further contended that duringthe pendency of the present appeal, this Court, in Criminal Appeal No.1375 of 2010 and Criminal Appeal No. 1328 of 2013 had already acquittedco-accused Mukesh and Suresh with a finding that there was a lack ofevidence to sustain their conviction under Section 120B IPC.

12. Learned State Counsel, on the other hand, reminded us of thelimited scope of interference by this Court in a case of concurrent findingof fact and canvassed that the conviction of the Appellant, on the basisof his disclosure statement, which led to the recovery of Rs. 5,000/-along with the ‘red cloth’ and the Indian Bank passbook, was sufficientto foster the conviction of the Appellant. Regarding the acquittal of theco-accused, it was rebutted that the allegations qua them pertained onlyto the extent of conspiracy, and hence, their acquittal did not have anysubstantial impact on the conviction of the Appellant herein, who is allegedto have actually carried out the malfeasance.

ANALYSIS:

13. It may be accentuated at the outset that although this Court isbestowed with capacious powers under Article 136 of the Constitution,yet, while beseeching such powers in a criminal appeal by special leave,this Court would by and large abstain from entering into a fresh re-appraisement of evidence and doubt the credibility of witnesses whenthere is a concurrent finding of fact, save for certain exceptionalcircumstances where the decision(s) under challenge are shown to havecommitted a manifest error of law or procedure or the conclusion reachedis ex--facie perverse.

14. Adverting to the case at hand, indubitably, the only eye-witnesses to the alleged crime, i.e., the Complainant (PW-4) and hisnephew (PW-6) have not supported the case of the Prosecution. TheComplainant (PW-4) in his testimony before the Court unequivocallydenied that the Appellant or his co-accused were involved in the executionof the offence. Further, in the deposition of ASI Rajinder Kumar (PW-14), who was the investigating officer of the case, there is no mention ofT.I.P. even attempted to be led, in so far as the Appellant is concerned.Ergo, the very identity of the Appellant as one of the perpetrators standsobscured, particularly, considering that all the accused in the case were A

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Aarrested on the basis of a secret information, the origin of which is naturallyunknown.

15. The short question that falls for our consideration thus is whetherthe conviction of the Appellant on the strength of the purported disclosurestatement (Ex. PD) and the recovery memo (Ex. PD/2), in the absenceBof any corroborative evidence, can sustain?

16. We have implored ourselves with abounding pronouncementsof this Court on this point. It may be true that at times the Court canconvict an accused exclusively on the basis of his disclosure statementand the resultant recovery of inculpatory material. However, in order toCsustain the guilt of such accused, the recovery should be unimpeachableand not be shrouded with elements of doubt.[1] We may hasten to add thatcircumstances such as (i) the period of interval between the malfeasanceand the disclosure; (ii) commonality of the recovered object and itsavailability in the market; (iii) nature of the object and its relevance tothe crime; (iv) ease of transferability of the object; (v) the testimonyDand trustworthiness of the attesting witness before the Court and/orother like factors, are weighty considerations that aid in gauging theintrinsic evidentiary value and credibility of the recovery. (See: TulsiramKanu vs. The State[2]; Pancho vs. State of Haryana[3]; State ofRajasthan vs. Talevar & Anr[4] and Bharama Parasram KudhachkarEvs. State of Karnataka[5])

17. Incontrovertibly, where the prosecution fails to inspireconfidence in the manner and/or contents of the recovery with regard toits nexus to the alleged offence, the Court ought to stretch the benefit ofdoubt to the accused. Its nearly three centuries old cardinal principle ofFcriminal jurisprudence that “it is better that ten guilty persons escape,than that one innocent suffer”. The doctrine of extending benefit ofdoubt to an accused, notwithstanding the proof of a strong suspicion,holds its fort on the premise that “the acquittal of a guilty personconstitutes a miscarriage of justice just as much as the convictionof the innocent”.G

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1 Vijay Thakur vs. State of Himachal Pradesh, (2014) 14 SCC 609

2 AIR 1954 SC 1

3 (2011) 10 SCC 165.

4 (2011) 11 SCC 666

5 (2014) 14 SCC 431

18. It may not be wise or prudent to convict a person only becausethere is rampant increase in heinous crimes and victims are oftenlyreluctant to speak truth due to fear or other extraneous reasons. Theburden to prove the guilt beyond doubt does not shift on the suspect savewhere the law casts duty on the accused to prove his/her innocence. Itis the bounden duty of the prosecution in cases where material witnessesare likely to be slippery, either to get their statements recorded at theearliest under Section 164 Cr.P.C. or collect such other cogent evidencethat its case does not entirely depend upon oral testimonies.

19. Unmindful of these age-old parameters, we find that theProsecution in the present case has miserably failed to bring home theguilt of the Appellant and Courts below have been unwittingly swayedby irrelevant considerations, such as the rise in the incidents of dacoity.In its desire to hold a heavy hand over such derelictions, the Trial Courtand the High Court have hastened to shift the burden on the Appellant toelucidate how he bechanced to be in possession of the incriminatingarticles, without primarily scrutinizing the credibility and admissibility ofthe recovery as well as its linkage to the misconduct.We say so for thefollowing reasons:

Firstly, the High Court and the Trial Court failed to take intoconsideration that the testimony of ASI Rajinder Kumar (PW-14)exhibited no substantial effort made by the police for conducting thesearch of the residence of the Appellant in the presence of local witnesses.The only independent witness to the recovery was Raldu (PW-8) whowas admittedly a companion of the Complainant.

Secondly, the Complainant (PW-4) as well as Raldu (PW-8), haveunambiguously refuted that neither the passbook, nor the ‘red cloth’ wasrecovered from the possession of the Appellant, as claimed in hisdisclosure statement.

Thirdly, while the Complainant (PW-4) negated his signatures onthe recovery memo (EX. PD/2), on the other hand, Raldu (PW-8) alsoneither enumerated the recovery memo (Ex. PD/2) in the catalogue ofexhibited documents, nor did that he affirm to having his endorsement.

Fourthly, the recovered articles are common place objects suchas money which can be easily transferred from one hand to another andthe ‘red cloth’ with ‘Kamla’ embossed on it, as has been acceded by the A

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AInvestigating Officer, Rajinder Kumar (PW-14), can also be easilyavailable in market.

Fifthly, the recovery took place nearly a month after thecommission of the alleged offence. We find it incredulous, that theAppellant during the entire time period kept both the red cloth and theBpassbook in his custody, along with the money he allegedly robbed offthe Complainant.

Sixthly and finally, there is no other evidence on record whicheven remotely points towards the iniquity of the Appellant.

20. It appears to us that the Trial Court and the High Court haveCerroneously drawn adverse inference against the Appellant, in spite ofthe Prosecution having lamentably failed to adequately dispense with itsburden of proof to depict culpability of the Appellant. As far as the viewof the Trial Court and the High Court qua the alleged threat is concerned,we find it hard-pressed to give credence to such allegations in the absenceDof any compelling evidence to substantiate the same. Although, theProsecution has attempted to place reliance on the affidavit presentedby the Complainant during the T.I.P. offered by the co-accused-Manjeet,we find that the said affidavit does not name the Appellant herein andpertains solely to Manjeet.

E21. In light of the afore-stated discussion, we are of the consideredopinion that the evidence on record does not establish the guilt of theAppellant beyond reasonable doubt and the Courts below have arrivedat recording the guilt of the Appellant in absence of any cogent rationale,justifying his conviction.

CONCLUSION:F

22. Consequently, and as a sequel thereto, the criminal appeal isallowed. The judgments and orders passed by the Trial Court and HighCourt are set-aside and the Appellant is acquitted of all charges. Bailbond, if any, stands discharged.

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Nidhi Jain

Appeal allowed.

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