SH YASHU Vs. STATE

JUDGEMENT

(1.) These appeals have been filed assailing the impugned judgment dtd. 30/7/2020 passed by the learned Trial Court convicting the appellants for offence punishable under Sec. 302/120B IPC and additionally convicting appellant Yashu for offence punishable under Sec. 25 of Arms Act. The appellant Sunil was acquitted of the offence punishable under Sec. 25 of the Arms Act.The appeals also assail order on sentence dtd. 11/8/2020 sentencing the appellants to life imprisonment for offence punishable under Sec. 302/120B IPC and fine of Rs.20,000.00 (SI for one year in default of payment of fine) and appellant Yashu to three years for offence punishable under Sec. 25 Arms Act and fine of Rs.10,000.00 (SI of six months in default of payment of fine).

(2.) As per the case of the prosecution, the deceased girl Nitika, aged about 21 years, student of B.A. final year, stepped out of her home Mundka for her college in Bawana at about 9:00 a.m. As per her father PW-3 Vijender Singh, when he went to close the door of the house, he saw that appellant Yashu and Sunil were standing in front of parchun (grocery) shop of Sunil. In the meantime, Vineet also came in a white Swift car bearing no. 3335 and all three were talking with each other when PW-3 went inside the house. Since, his daughter Nitika did not return by 3-4:00 p.m. from her college,he became worried, and started searching for her but could not trace her. His brother PW-14 Kuldeeep Singh got a missing report lodged in Bawana Police Station. At about 2:30 p.m. on 15/9/2009, PW-3 received a telephone call on his mobile no. 9810535131, and an unknown caller informed him that appellant Yashu Son of Rajbir had shot his daughter and further informed that the body has been disposed of accordingly. Upon asking the caller about his identity, he initially refused to disclose but on PW-3's insistence, mentioned he was one Vikram speaking from Kurukshetra. PW-3 then called PCR and stated these facts to police. When the PCR came after about 20-25 minutes,they went to what was stated as being Yashu's house in the neighborhood of PW-3's house. Since the main gate of the premises was locked with an iron chain, the police broke it open and entered where they saw a pistol in the courtyard with a magazine, a white/cream car color standing there. In another locked room inside, they found a black polythene bag which had the dead body of Nitika, who seemed to have been shot in the temple near the eye. FIR No. 375/2019 was registered at 6:28 p.m. on 15/9/2009 at P.S. Nangloi and an investigation pursued. The appellants were arrested on different dates and chargesheet was filed for offencesunder Sec. 302/120B/34 of IPC and Sec. 25 of Arms Act. Charges were framed against all the appellants for committing murder of Nitika in pursuance of criminal conspiracy. The accused pleaded not guilty and claimed trial. The prosecution examined 29 witnesses in support of their case, statements of the appellants were recorded under Sec. 313 Cr.P.C. and no evidence was led in defence.

(3.) Learned Senior Counsel appearing for Sunil Kumar in CRL.A. 498/2020 led the arguments and submissions were predominantly adopted by the counsels of theother two appellants. It was essentially submitted that the prosecution had been unable to prove the guilt of the appellants beyond reasonable doubt, since there was no incriminating evidence found against the appellants and the conviction by the learned Trial Court had been handed down based on conjecture and surmises. It was highlighted that even the testimony of PW-3 father of the deceased, could not be treated as last seen evidence, since what he alleged as having seen was that the three appellants met near his house on the day when his daughter had left for college, but had not seen them accompanying or pursuing his daughter. Moreover, it was apparent from a bare reading of his testimony before the Court that substantial portion of his deposition was an improvement from his earlier statements and therefore, his testimony could not be relied upon. Moreover, the prosecution had not presented any evidence whatsoever of the caller who had identified himself as 'Vikram from Kurukshreta' and had called from an unidentified number 9255785505 nor was the various critical elements of the recovery of body from the farmhouse made available including inter alia the evidence of the broken lock of the farmhouse, the chance prints, any tyre marks in front of the farmhouse and most importantly evidence relating to the ownership of house by Yashu or his occupancy thereof. The learned Trial Court had proceeded on the basis that since it was the Yashu's farmhouse and the dead body was found there, it was appellant Yashu's burden to provide cogent explanation in view of the Sec. 106 of the Indian Evidence Act. The counsel for the appellant, therefore, submitted that in the absence of any last seen evidence, lack of investigation regarding the caller who had informed PW-3 of the death, no details of where his daughter had allegedly been shot as stated in the rukka Ex. PW-17/A or any CDR records, the prosecution has been unable to prove their case beyond reasonable doubt. As regards the ID-card and admission ticket of the deceased, recovered from the appellant Sunil, in FIR No. 234/2009 P.S. Phase-VIII Mohali, Punjab under Sec. 25/54/59 of the Arms Act along with three live cartridges of the pistol allegedly used in the commission of murder, the counsel for the appellant pointed out that the learned Trial Court itself in para 49(b) of the impugned judgment had observed that the weapon seems to have been planted upon him. Also, there was no investigation in relation to the recovery of the car or the motorcycle at the said farmhouse to establish the ownership.Also, the ballistic report from the FSL had returned no opinion of whether the weapon recovered from appellant Sunil was the weapon used in the commission of the crime.