- (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.;