In a very significant development, we saw how the Delhi High Court in a most laudable, learned, landmark and latest judgment titled Vijay Saini @ Ram Singh vs State in CRL.A. 689/2019 that was reserved for September 14 and then finally pronounced on October 31, 2022 upheld the conviction and life sentence handed down to a man who had shot dead Delhi University student Radhika Tanwar in 2011 for opposing his advances.
It must be noted that the Bench of Justice Hon’ble Ms Mukta Gupta and Hon’ble Mr Justice Anish Dayal said that the material on record pointed to the guilt of Vijay Saini who had shot down Radhika in broad daylight on women’s day in 2011. The Bench dismissed the appeal that was filed by Vijay who had challenged the order passed by a Sessions Court in October 2017 convicting him for murder under Section 302 of the Indian Penal Code and other relevant provisions of the Arms Act.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Anish Dayal for a Division Bench of the Delhi High Court comprising of Justice Hon’ble Ms Mukta Gupta and himself sets the ball rolling by first and foremost putting forth in para 1 that:
This appeal assails the judgment of the learned Trial Court dated 31st October, 2017 convicting the appellant for offences punishable under Section 302 IPC, Sections 25 (1B) (a) and 27(1) Arms Act and order on sentence dated 7th November, 2017 awarding the sentence of life imprisonment to the appellant for offence punishable under Section 302 IPC alongwith fine of Rs. 2000/-, rigorous imprisonment for one year for offence under Section 25 (1B) (a) Arms Act and fine of Rs. 1000/-, rigorous imprisonment for 3 years for offence under Section 27 (1) Arms Act and fine of Rs. 1000/-, additional rigorous imprisonment for 3 months in default of payment of fine.
All sentences to run concurrently. The impugned judgment of the learned Trial Court had also convicted two other co-accused Tabrez Ahmed @ Sameer and Ashraf Ali @ Fuddey for offence punishable under Section 212/34 IPC and Sheikh Shekhu for offence punishable under Section 25 (1B) (a) Arms Act and the sentence awarded to them was for the period already undergone by them respectively and the fine of Rs. 1000/- each was deposited by them since they did not wish to challenge their conviction and sentence.
To put things in perspective, the Bench then envisages in para 2 that:
As per the case of the prosecution, information was received by PCR on 8th March, 2011 at about 10:20 a.m. by PW-9 Ajit Singh that a girl had been shot at Dhaula Kuan foot over-bridge, Satya Niketan. This was shared with PS Dhaula Kuan vide DD No. 19-A recorded at 10:25 a.m. PW-47 Inspector Bal Ram (IO) along with other police officials reached the spot and found that one unidentified girl had been shifted to the hospital but could not survive. At the hospital, the complainant Rajender Singh PW-1 had also reached and identified the deceased as his daughter Radhika Tanwar. FIR No.49/2011 was registered on the statement of the complainant who mentioned that his daughter Radhika had left house for her college at about 9:30 a.m. and at about 11:00 a.m. he had received a call on his mobile phone that someone had shot his daughter at Satya Niketan. Upon reaching the hospital pursuant to information received, he found that his daughter had already expired.
During the investigation, it was found that the assailant had fired one bullet at the back of the deceased resulting in her death and that the appellant Vijay Saini used to follow the deceased few years prior to the incident. Later it was found that the appellant had fled to Mumbai and his associates, the co-accused with whom he had stayed in the night after the date of the incident had fled to their native place at District Sitapur, UP. The appellant and the co-accused were arrested from respective places and brought to Delhi and later the fourth co-accused Sheikh Shekhu was arrested from his house who got recovered the firearm used by appellant Vijay Saini.
As it turned out, the Division Bench then pointed out in para 3 that, Consequently, all four accused were charge sheeted and the case was committed to the Court of Sessions. Charges under Section 302 IPC and 25/27 Arms Act were framed against the appellant; charge under Section 201/34 IPC against the accused Tabrez and Ashraf Ali; and charges under Section 212/34 IPC and 25/27 Arms Act against accused Sheikh Shekhu. All of them pleaded not guilty and claimed trial. The prosecution examined 50 witnesses, statements of the appellant and other co-accused were recorded under Section 313 of Cr.P.C and they did not lead any evidence in defence.
Analysis
Most significantly, the Division Bench then holds in para 7 that:
Having examined the evidence on record and on appreciation of the submissions of all parties, this Court is of the considered view that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt, for inter alia the following reasons:
7.1 The death of the deceased was clearly homicidal in nature caused due to fire arm injury, as evident from the testimony of PW-4, the doctor who conducted the post mortem.
7.2 Even though there were no direct eye witnesses at the point of shooting the deceased, the res gestae evidence of PW-5 and PW-9 was consistent in that both had heard a sound of a fire shot and both had seen the girl on the ramp of the flyover and while one had seen a boy standing next to her with something hidden under his shirt other had seen a boy running away with pistol in his hand. Both had identified the appellant in front of the police and then in the Court and being independent and not interested witnesses, they had no ground or reason to falsely implicate the appellant. The presence of PW-9 at the time and place is established from the fact that he made a call to the PCR to inform the police regarding the incident which is evident from Ex. 9/D1.
7.3 The motive of the appellant for killing the deceased is also quite evident from the testimonies of PW-10 Pankaj and PW-11 Ravi who stated that the appellant had been present 2-3 years back in their village where the deceased stayed and they had intervened and beaten him up since the deceased had pointed out that he was stalking her and teasing her. Both have stated in their testimonies that they had then taken the appellant to the house of the deceased where the father PW-1 had also beaten him up and this was corroborated by the testimony of PW-1 as well. While PW-1 was able to identify the appellant when he saw his picture on television, PW-10 and PW-11 both stated that they had gone to the police station on being called and identified the appellant as the same person.
7.4 The presence of the appellant in the area of the deceased’s residence and at the place of incident is further corroborated by the CDR record marked as Ex. PW-21/I which was presented by the prosecution before this Court. An analysis of the CDR for mobile No. 8010769628 of the appellant reveals that between 22nd December, 2010 and 2nd March, 2011 the location of the call phone of the appellant can be traced to Naraina village near the residence of the deceased on multiple occasions, and on 20th and 29th December, 2010 as well as on 20th February, 2011 cell phone of the appellant can been located near the college of the deceased in Satya Niketan.
7.5 The subsequent conduct of the appellant also gives serious credence and corroboration to the fact that he had tried to abscond post having shot the deceased on 8th March, 2011. Firstly, as per the testimony of the PW-14 the appellant used to stay and sleep in the factory at night but he was not found in the morning when PW-14 woke up and when he tried to call him on his mobile, his phone was answered by the co-accused Tabrez who asked him to call later and when he again made the call, the phone was switched off; secondly on 9th March, 2011 co-accused Tabrez visited the factory of PW-14 stating that the appellant was unwell and took away the bag of the appellant while not clearing the wages of the appellant and PW-14 had not seen them since; thirdly, the fact that PW-14 had called the appellant on that day is established from the CDR analysis which shows the location of cell phone of the appellant to be in Naharpur, where the factory of PW-17 is located, where they were present on that day; fourthly, PW-17 and PW-27 both stated that on 8th March, 2011 the appellant along with co-accused Ashraf and Tabrez visited the factory and asked to sleep in the factory that night and on the next morning i.e. on 9th March, 2011 all of them left without doing any work one after the other; fifthly, PW-40 stated that on 9th March, 2011 the co-accused and the appellant had come to ask for work and for accommodation but having not found any room for themselves in that area they left in the night at about 8:00 p.m., the appellant going to leave for Mumbai whereas the co-accused Ashraf and Tabrez leaving for their village; sixthly, the information revealing their departures on the night of 9th March, 2011 was corroborated by PW-41 as well; seventhly the fact of the appellant and the two co-accused being present at the factory of PW17 on the night of 8th March, 2011 was corroborated by the CCTV recording seized by the police. The said circumstance of absconding immediately after the incident of murder would be admissible as relevant conduct under Section 8 of the Evidence Act.
7.6 As regards the contention of the counsel for the appellant that no transit remand had been taken for the arrest of the appellant from Bombay, this Court notes that it is not fatal to the case of the prosecution, particularly in light of other corroborating circumstances. PW-44 clearly states in his testimony that the appellant was arrested at about 11.00 p.m. on 11th March, 2011 and information of the arrest was duly given to SHO, PS Vikhroli, Mumbai as evident from Ex. PW-44/B which clearly mentions the time of arrest as 11.00 p.m. He has further stated that appellant was brought to Delhi by Kingfisher flight on 12th March, 2011 in muffled face and his custody was handed over to the IO. The same is corroborated by PW-45 and PW-36 both of whom had accompanied PW44 to Mumbai to arrest the appellant. Also, PW-44 states in his testimony that he had claimed reimbursement for their trip to Bombay for the flight expenses. Even though he has not filed the reimbursement certificate, but he said he could produce it if so directed. The fact that flight tickets were not produced would not be fatal to the case of the prosecution that the appellant was apprehended from Mumbai. Further, PW-47 IO Bal Ram has confirmed that PW-44 produced the accused before him on 12th March, 2012 and all four accused including the appellant were produced before the Ld. Magistrate at Dwarka Courts as confirmed from Trial Court Order Sheet dated 12th March, 2011.
7.7 The fact that the mobile being used by the appellant was issued in the name of Sh. Munir Khan PW-19 does not dilute the case of the prosecution, since PW-19 states that when he was working in the factory in Naraina, the appellant and the co-accused Ashraf and Tabrez were also working there, and since Ashraf and the appellant were not having IDs of Delhi, he had got issued three mobile connections and given to Ashraf and Vijay. PW-19 stated that the two mobile numbers 8010869628 and 9654137114 were with appellant Vijay and mobile number 9582291946 with appellant Ashraf.
7.8 The recovery of the weapon of offence i.e. the country made pistol/katta was at the instance of the appellant (disclosure statement of the appellant at Ex. PW-36/D) who disclosed that soon after shooting the deceased he ran to the house of his acquaintance Shekhu, resident of Babu Park, Kotla Mubrak Pur, and handed over the desi katta with a cover to him. PW-47 IO Bal Ram and PW-29 HC Devender Kumar along with the accused went to House No. S-48, Babu Park where not only was Sheikh @ Shekhu apprehended but the desi katta too was recovered. Shekhu confirmed (disclosure statement at Ex. PW-29/C) having received the desi katta from the appellant on 8th March, 2011 and hiding it by wrapping in a newspaper in the attic of his room. The ballistic opinion clearly showed that the bullet lodged in the body of the deceased had been fired from that weapon as also it corresponded to the empty cartridge found in the recovered weapon.
7.9 The discovery of the fact of the weapon being at Sheikh@Shekhu house confirms both the recovery of the object i.e. weapon as well as the place of hiding and the knowledge of the appellant of this fact. This confirmation is admissible to this extent as per the doctrine of confirmation encompassed in section 27 of the Indian Evidence Act.
While a mental fact disclosed by an accused in custody may not be admissible, disclosure leading to the recovery of a physical object or confirmation of a physical fact offers an admissible confirmation to the prosecution.
A short overview of a few decisions of the Hon’ble Supreme Court which developed, articulated and reiterated the principles in this regard are extracted as under, for ease of reference:
- Mohd. Inayatullah v. State of Maharashtra (1976) 1 SCC 828
12. The expression provided that together with the phrase whether it amounts to a confession or not show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence.
The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only so much of the information as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word distinctly means directly, indubitably, strictly, unmistakably.
The word has been advisedly used to limit and define the scope of the provable information. The phrase distinctly relates to the fact thereby discovered is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery.
The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
13. At one time it was held that the expression fact discovered in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Crown [AIR 1929 Lah 344 : ILR 10 Lah 283 (FB)] ; Rex v. Ganee [AIR 1932 Bom 286 : ILR 56 Bom 172 : 33 Cri LJ 396] ). Now it is fairly settled that the expression fact discovered includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor [AIR 1947 PC 67 : 74 IA 65 : 48 Cri LJ 533] ; Udai Bhan v. State of Uttar Pradesh [AIR 1962 SC 1116 : 1962 Supp (2) SCR 830 : (1962) 2 Cri LJ 251] ). (emphasis supplied)
- State of Maharashtra v. Damu (2000) 6 SCC 269
35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. …
36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle. (emphasis supplied)
- Bodhraj v. State of J&K (2002) 8 SCC 45
18. ... The words so much of such information as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. ... The statement which is admissible under Section 27 is the one which is the information leading to discovery.
Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence.
The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. (emphasis supplied)
- State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600
121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received.
Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished.
Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] : (AIR p. 70, para 10)
Quoting further from the Privy Council’s view expressed in Kottaya case, the Supreme Court highlighted the following extract:
In Their Lordships’ view it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that:
I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. (emphasis supplied)
- Mehboob Ali v. State of Rajasthan (2016) 14 SCC 640 relies on State of Maharashtra v. Damu in para 17 and holds as under:
18. In Ismail v. Emperor [Ismail v. Emperor, 1945 SCC OnLine Sind CC 32 : AIR 1946 Sind 43] it was held that where as a result of information given by the accused another co-accused was found by the police the statement by the accused made to the police as to the whereabouts of the co-accused was held to be admissible under Section 27 as evidence against the accused.
20. Considering the aforesaid dictums, it is apparent that there was discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Co-accused was nabbed on the basis of identification made by accused Mehboob and Firoz. That he was dealing with fake currency notes came to the knowledge of police through them. Recovery of forged currency notes was also made from Anju Ali.
Thus the aforesaid accused had the knowledge about co-accused Anju Ali who was nabbed at their instance and on the basis of their identification. These facts were not to the knowledge of the police hence the statements of the accused persons leading to discovery of fact are clearly admissible as per the provisions contained in Section 27 of the Evidence Act which carves out an exception to the general provisions about inadmissibility of confession made under police custody contained in Sections 25 and 26 of the Evidence Act.]
7.10 Culling out the essential ingredients of section 27 of the Indian Evidence Act in consonance with the principles articulated by the Hon’ble Supreme Court, the following aspects would need to be considered and factored in, while applying the doctrine of confirmation by subsequent events, embodied in section 27:
- There has to be an ‘information’ received from an accused.
- The accused has to be in the custody of a police officer when such ‘information’ is given.
- The said ‘information’ was not within the knowledge of the police officer, when it was received from the accused.
- As a consequence of that ‘information’, a ‘fact’ is discovered.
- Only that part of the ‘information’ which is the direct and immediate cause of discovery of the ‘fact’ and is distinctly related to it, stands confirmed for the purposes of the prosecution.
- If the prosecution deposes to the ‘fact’ based on that part of the ‘information’ (as in (v) above), it would stand proved.
Applying the principles to the facts of this case, it would be evident that pursuant to the disclosure by the appellant, in custody, an information was received that first, the appellant committed the offence; second, the appellant ran to the house of Sheikh@Shekhu; third, the house of Sheikh@Shekhu is at Babu Park, Kotla Mubrak Pur; fourth, the appellant had given the country made pistol with a cover to Sheikh@Shekhu to keep/hide.
It would be quite clear that the first two pieces of information are not facts which can be ‘discovered’ but are either confessional/inculpatory or un-discoverable facts. But the latter two pieces of information lead to two facts which are discovered i.e. that Sheikh @ Shekhu lives in that particular address, that he had a country made pistol in his possession and that the pistol was hidden in the attic in his house. Both these factual discoveries, not hitherto known to the police, are therefore probative and offer confirmation of the information given by the appellant, to that extent. This confirmation offers the prosecution case an important hook and clasp in the chain of circumstantial evidence, thus leading finally to proving the guilt of the appellant beyond reasonable doubt.
Conclusion
Most forthrightly, the Division Bench then mandates in para 8 that:
In light of the above discussion and analysis, this Court finds that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt and duly supported by circumstantial evidence by the prosecution. Consequently, this Court finds no error in the impugned judgment of conviction and order on sentence by the learned Trial Court.
Furthermore, the Division Bench then directs in para 9 that:
Appeal is accordingly dismissed.
Finally, the Division Bench then concludes by directing in para 10 that:
Copy of this judgment be uploaded on website and be also sent to Superintendent, Tihar Jail for intimation to the appellant and updation of records.
All told, we thus see that the Delhi High Court has uphold the life sentence of Vijay Saini for shooting dead a Delhi University student Radhika Tanwar in 2011 for opposing his advances. The Court has found no error in the impugned judgment of conviction and order on sentence by the learned Trial Court. Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
