Bijender @ Mandar vs State Of Haryana on 8 November, 2021


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Supreme Court of India

Bijender @ Mandar vs State Of Haryana on 8 November, 2021

Author: Surya Kant

Bench: Hon’Ble The Justice, Surya Kant, Hon’Ble Ms. Kohli

                                                                     REPORTABLE


                                  IN THE SUPREME COURT OF INDIA
                                 CRIMINAL APPELLATE JURISDICTION
                                 CRIMINAL APPEAL NO. 2438 OF 2010



         Bijender @ Mandar                                           ..... Appellant
                                              VERSUS
         State of Haryana                                          ..... Respondent



                                              JUDGMENT

Surya Kant, J.

The instant Criminal Appeal emanates from the judgment and

order dated 7th September 2009 of the High Court of Punjab and

Haryana at Chandigarh, whereby the order dated 20 th March 2002

passed by the Additional Sessions Judge, Sonipat, convicting the

Appellant­Bijender @ Mandar under Sections 392 and 397 IPC was

affirmed. The High Court upheld the rigorous imprisonment of 5 years

along with fine of Rs.5000/­ for the offence punishable under Section

392 IPC. However, it reduced the sentence from 10 to 7 years rigorous

imprisonment with a fine of Rs.10,000/­ for the offence punishable

under Section 397 IPC. Both the sentences were directed to run
Signature Not Verified

Digitally signed by
SATISH KUMAR YADAV
Date: 2021.11.08
17:52:01 IST
Reason:

concurrently.

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FACTS:

2. Briefly put, the Prosecution version is that on 14 th April 1999, at

around 11:00 AM, Bal Kishan (Complainant) was on his way to Delhi

on his motorcycle along with his nephew, Sanjay, to purchase a plot of

land and was carrying a sum of Rs. 46,000/­ for the said purpose.

When the Complainant reached near the farm house of one Virender

Bansal, on Jatheri Road, he was intercepted by a vehicle. The

Appellant and one Manjeet (co­accused) stepped out of the said

vehicle, armed with country made pistols and asked the Complainant

to hand over the amount. The Complainant then handed over the key

of the bike. The Accused took out the bag containing the money from

the boot of the motorcycle and fled from the spot. Whereafter, the

Complainant rushed towards the nearest Police Station on foot,

leaving his nephew and the motorcycle behind, at the place of the

incidence. To the good fortune of the Complainant, on his way to the

Police Station, he met with ASI Rajinder Kumar (PW­14) and reported

the occurrence to him. Consequently, an FIR was lodged and the

investigation was set in motion.

3. Four accused persons, including the Appellant were arrested on

the basis of secret information received by the police and they were

charged under Sections 392, 397 and 120­B IPC and Section 25 of the

Arms Act. Whilst the 5th co­accused (Vinod) could not be arrested and

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was declared a proclaimed offender under Section 82 Cr.P.C., the

other Accused including the Appellant abjured their guilt and pleaded

‘not guilty’. In the eventual trial, 14 witnesses were examined by the

Prosecution. No evidence was led by the Defence. The Prosecution

presented its narrative before the Trial Court that the Accused

persons, along with Vinod, conspired together to loot the Complainant,

who, they were aware was carrying money for the purchase of a plot in

Delhi. Whereas co­accused Mukesh and Subhash had provided the

information, the Appellant, Manjeet and Vinod actually carried out the

robbery.

4. The case of the Prosecution banked heavily on the disclosure

statements made by the Accused persons and the pre­trial recoveries

made pursuant thereto. The Appellant in his revelation (Ex. PD)

affirmed the 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 already spent Rs. 5,000/. The Appellant led the police to his

residence and aided in 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 ‘red cloth’ 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 paltry amount and a country

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made pistol belonging to co­accused Manjeet, which was allegedly

used for commission of the crime. These incriminatory 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 (PW­4), in his deposition, acknowledged

that the ‘red cloth’ belonged to his wife but he refuted that the pass

book and/or the said cloth was recovered from the possession of the

Appellant in his presence. He further denied that the Accused,

including the Appellant, 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 (PW­6),

who was an eye­witness, also debunked the very occurrence of the

incident in its entirety and testified that no amount was snatched

from his uncle, the Complainant. In a similar vein, PW­5 and PW­8,

who were independent witnesses to the 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 Prosecution

and stood their ground qua the guilt of the Accused. In this regard,

the testimony of ASI Rajinder Kumar (PW­14), who was in­charge of

the investigation, bears some significance. This witness affirmed to the

legitimacy of the disclosure statements presented by all the Accused,

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including the Appellant, and stated that the Complainant in his

supplementary statement before the police had contended that Rs.

46,000/­ were wrapped in a ‘red cloth’ which had Complainant’s wife’s

name embroidered on it along with a Passbook of Indian Bank. Albeit,

ASI Rajinder Kumar in his cross­examination, admitted that the ‘red

cloth’ which was recovered from the house of the Appellant was easily

available in the market and that the name ‘Kamla’ could also be easily

engraved thereupon. Further, he also deposed that whilst co­accused

Manjeet had sought for Test Identification Parade (for short, “T.I.P.”),

the Complainant refused 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 (PW­13), who was present with

PW­14 when the disclosure statements were tendered by the Accused,

also supported the Prosecution version and deposed that the recovery

of the incriminating articles was made in his presence.

7. The Appellant in his 313 Cr.P.C. statement denied the recovery

of all the incriminating evidence put before him. To the same effect

were the statements made by other co­accused under Section 313

Cr.P.C., denying the Prosecution version completely.

8. The Trial Court found strength in the contention of the

Prosecution that the material witnesses had substantially proved its

version though with minor discrepancies. The Court further noted that

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an admission by an accused leading to the discovery of any fact could

be used against them and that in the instant case, the Accused had

failed to provide any explanation as to how they came into possession

of the articles, especially the ‘red cloth’ and the passbook, which were

recovered from the custody of the Appellant. In light of the instant fact

scenario, the Trial Court concluded that recovery of the Articles was

sufficient to draw the inference of culpability and to bring home the

guilt of the Accused. Consequently, the Trial Court convicted the

Appellant and Manjeet under Sections 392 & 397 IPC. Manjeet was

further convicted under Section 25 of the Indian Arms Act, 1959.

Accused Mukesh and Subhash were also convicted under Section

120B IPC. All the Accused were sentenced with a maximum sentence

of rigorous imprisonment of 10 years each under Section 397 IPC

and/or Section 120B IPC.

9. Discontented, the Accused preferred separate appeals before the

High Court of Punjab and Haryana. Their primary contention was that

none of the eye­witnesses or the independent witnesses supported the

Prosecution case and that they could not be convicted solely on the

basis of disclosure statements. Upon re­appraisal of evidence, the

High Court was unimpressed by the plea raised on behalf of the

Accused and concurred with the findings of the Trial Court and

further noted that due to enormous rise in instances of dacoity, the

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non­identification of the accused in the Court could not be construed

as a material consideration where other evidence points towards the

commission of the crime. The High Court vide a common judgment

maintained the conviction of the Accused persons. Nonetheless, the

High Court reduced the sentence under Section 397 IPC to rigorous

imprisonment of 7 years so as to meet the ends of justice.

10. The aggrieved Appellant is now before this Court.

CONTENTIONS:

11. We have heard learned counsel(s) for the Appellant and the

Respondent­State at a considerable length and perused the record in­

depth. The principal contention raised on behalf of the Appellant is

that his conviction is based solely on the basis of the ‘disclosure

statement’ and that there is no other cogent evidence to withstand his

conviction under Sections 392 and 397 IPC. It was further contended

that during the pendency of the present appeal, this Court, in

Criminal Appeal No. 1375 of 2010 and Criminal Appeal No. 1328 of

2013 had already acquitted co­accused Mukesh and Suresh with a

finding that there was a lack of evidence to sustain their conviction

under Section 120B IPC.

12. Learned State Counsel, on the other hand, reminded us of the

limited scope of interference by this Court in a case of concurrent

finding of fact and canvassed that the conviction of the Appellant, on

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the basis of his disclosure statement, which led to the recovery of Rs.

5,000/­ along with the ‘red cloth’ and the Indian Bank passbook, was

sufficient to foster the conviction of the Appellant. Regarding the

acquittal of the co­accused, it was rebutted that the allegations qua

them pertained only to the extent of conspiracy, and hence, their

acquittal did not have any substantial impact on the conviction of the

Appellant herein, who is alleged to have actually carried out the

malfeasance.

ANALYSIS:

13. It may be accentuated at the outset that although this Court is

bestowed 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

re­appraisement of evidence and doubt the credibility of witnesses

when there is a concurrent finding of fact, save for certain exceptional

circumstances where the decision(s) under challenge are shown to

have committed a manifest error of law or procedure or the conclusion

reached is ex­facie perverse.

14. Adverting to the case at hand, indubitably, the only eye­

witnesses to the alleged crime, i.e., the Complainant (PW­4) and his

nephew (PW­6) have not supported the case of the Prosecution. The

Complainant (PW­4) in his testimony before the Court unequivocally

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denied that the Appellant or his co­accused were involved in the

execution of the offence. Further, in the deposition of ASI Rajinder

Kumar (PW­14), who was the investigating officer of the case, there is

no mention of T.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 stands obscured, particularly, considering that all

the accused in the case were arrested on the basis of a secret

information, the origin of which is naturally unknown.

15. The short question that falls for our consideration thus is

whether the conviction of the Appellant on the strength of the

purported disclosure statement (Ex. PD) and the recovery memo (Ex.

PD/2), in the absence of any corroborative evidence, can sustain?

16. We have implored ourselves with abounding pronouncements of

this Court on this point. It may be true that at times the Court can

convict an accused exclusively on the basis of his disclosure statement

and the resultant recovery of inculpatory material. However, in order

to sustain the guilt of such accused, the recovery should be

unimpeachable and not be shrouded with elements of doubt. 1 We may

hasten to add that circumstances such as (i) the period of interval

between the malfeasance and the disclosure; (ii) commonality of the

recovered object and its availability in the market; (iii) nature of the

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

Page | 9
object and its relevance to the crime; (iv) ease of transferability of the

object; (v) the testimony and trustworthiness of the attesting witness

before the Court and/or other like factors, are weighty considerations

that aid in gauging the intrinsic evidentiary value and credibility of the

recovery. (See: Tulsiram Kanu vs. The State2; Pancho vs. State of

Haryana3; State of Rajasthan vs. Talevar & Anr 4 and Bharama

Parasram Kudhachkar vs. State of Karnataka5)

17. Incontrovertibly, where the prosecution fails to inspire

confidence in the manner and/or contents of the recovery with regard

to its nexus to the alleged offence, the Court ought to stretch the

benefit of doubt to the accused. Its nearly three centuries old cardinal

principle of criminal jurisprudence that “it is better that ten guilty

persons escape, than that one innocent suffer”. The doctrine of

extending benefit of doubt to an accused, notwithstanding the proof of

a strong suspicion, holds its fort on the premise that “the acquittal

of a guilty person constitutes a miscarriage of justice just as

much as the conviction of the innocent”.

18. It may not be wise or prudent to convict a person only because

there is rampant increase in heinous crimes and victims are oftenly

2
AIR 1954 SC 1
3
(2011) 10 SCC 165.

4

(2011) 11 SCC 666
5
(2014) 14 SCC 431

Page | 10
reluctant to speak truth due to fear or other extraneous reasons. The

burden to prove the guilt beyond doubt does not shift on the suspect

save where the law casts duty on the accused to prove his/her

innocence. It is the bounden duty of the prosecution in cases where

material witnesses are likely to be slippery, either to get their

statements recorded at the earliest under Section 164 Cr.P.C. or

collect such other cogent evidence that its case does not entirely

depend upon oral testimonies.

19. Unmindful of these age­old parameters, we find that the

Prosecution in the present case has miserably failed to bring home the

guilt of the Appellant and Courts below have been unwittingly swayed

by irrelevant considerations, such as the rise in the incidents of

dacoity. In its desire to hold a heavy hand over such derelictions, the

Trial Court and the High Court have hastened to shift the burden on

the Appellant to elucidate how he bechanced to be in possession of the

incriminating articles, without primarily scrutinizing the credibility

and admissibility of the recovery as well as its linkage to the

misconduct. We say so for the following reasons:

Firstly, the High Court and the Trial Court failed to take into

consideration that the testimony of ASI Rajinder Kumar (PW­14)

exhibited no substantial effort made by the police for conducting the

search of the residence of the Appellant in the presence of local

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witnesses. The only independent witness to the recovery was Raldu

(PW­8) who was admittedly a companion of the Complainant.

Secondly, the Complainant (PW­4) as well as Raldu (PW­8), have

unambiguously refuted that neither the passbook, nor the ‘red cloth’

was recovered from the possession of the Appellant, as claimed in his

disclosure statement.

Thirdly, while the Complainant (PW­4) negated his signatures on the

recovery memo (EX. PD/2), on the other hand, Raldu (PW­8) also

neither enumerated the recovery memo (Ex. PD/2) in the catalogue of

exhibited documents, nor did that he affirm to having his

endorsement.

Fourthly, the recovered articles are common place objects such as

money which can be easily transferred from one hand to another and

the ‘red cloth’ with ‘Kamla’ embossed on it, as has been acceded by the

Investigating Officer, Rajinder Kumar (PW­14), can also be easily

available in market.

Fifthly, the recovery took place nearly a month after the commission

of the alleged offence. We find it incredulous, that the Appellant

during the entire time period kept both the red cloth and the passbook

in his custody, along with the money he allegedly robbed off the

Complainant.

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Sixthly and finally, there is no other evidence on record which even

remotely points towards the iniquity of the Appellant.

20. It appears to us that the Trial Court and the High Court have

erroneously drawn adverse inference against the Appellant, in spite of

the Prosecution having lamentably failed to adequately dispense with

its burden of proof to depict culpability of the Appellant. As far as the

view of the Trial Court and the High Court qua the alleged threat is

concerned, we find it hard­pressed to give credence to such allegations

in the absence of any compelling evidence to substantiate the same.

Although, the Prosecution has attempted to place reliance on the

affidavit presented by the Complainant during the T.I.P. offered by the

co­accused­Manjeet, we find that the said affidavit does not name the

Appellant herein and pertains solely to Manjeet.

21. In light of the afore­stated discussion, we are of the considered

opinion that the evidence on record does not establish the guilt of the

Appellant beyond reasonable doubt and the Courts below have arrived

at recording the guilt of the Appellant in absence of any cogent

rationale, justifying his conviction.

CONCLUSION:

22. Consequently, and as a sequel thereto, the criminal appeal is

allowed. The judgments and orders passed by the Trial Court and

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High Court are set­aside and the Appellant is acquitted of all charges.

Bail bond, if any, stands discharged.

……………………….. CJI.

(N.V. RAMANA)

………..………………… J.

(SURYA KANT)

………..………………… J.

(HIMA KOHLI)
NEW DELHI
DATED : 08.11. 2021

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