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TMI Blog2000 (10) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The High Court confirmed the said conviction only as against A-2 Manish Dixit, and the offence against A-1 Sharad Dhakar was found to be limited to Section 411 of the Indian Penal Code. 3. More details of the occurrence are these: Gulshan Makhija's family was running the jewellery shop called Star of India at Ashoka Hotal building, Jaipur. He used to be in the shop everyday till it was closed in the night. On 23.2.1994 he called his mother over phone and told her that one guest would also be with him for dinner and that both would reach home soon. But the unfortunate mother could never see his son alive thereafter 4. Gulshan Makhija and his German friend together set out from his shop in a brand new gypsy on the night after closing his shop. He carried with him a bulk of jewellery including gold, silver and valuable stones. As they reached Janpath at Shyam Nagar (near Bansal Hospital) the jeep was blocked by the two persons who rode on a motorcycle. One of them dragged Michael Hens out of the jeep and then pointed a revolver at him. He then pushed the jeweller off the driving seat and himself occupied that seat and drove the jeep keeping the dump-founded deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with some live cartridges. On the strength of information elicited from him the investigating team recovered three Kgs. of silver ornaments from the basement of the house of Rahul Sharma (A-4). 10. The said arrest was followed by the arrest of three more accused who are arraigned as A-3 to A-5. After completing the investigation police charge-sheeted the case against all them, Sharad Dhakar (A-1) and Manish Dixit (A2-) for the main offences. The Trial Court acquitted the last three accused and convicted A1 Sharad Dhakar and A-2 Manish Dixit of the offences under Sections 302, 364 read with 120B and also Section 34 of the IPC and sentenced them to imprisonment for life on the main count and to lesser term for the other counts. Both the convicted persons preferred separate appeals before the High Court of Rajasthan. The State filed an appeal against acquittal of the three accused. Subsequently, PW. 30 Devender Sharma, a Tehsildar filed a petition in the High Court for expunging certain observations made against him by the trial Judge in respect of the evidence given by him. All these were heard together and a Division Bench of the High Court confirmed the conviction and sentenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with that statement. 13. While dealing with the case against A-2 Manish Dixit we noticed that the following circumstances were projected against him and were found established by the prosecution: (1) On 24.2.1994 he stayed at hotel Sanjay (Jaipur) in the pseudonymous name Ramesh Chander Sharma. (2) He absconded from the scene soon after A-1 was apprehended. (3) On 12.7.1994 he was arrested at Connaught Place, New Delhi and the revolver (described above) was taken from his person (4) When PW. 41 the ballistic expert examined the bullet recovered from the head of deceased Gulshan Makhija and the revolver together he found that the said bullet could only have been fired from the said revolver. (5) On 18.7.1994 the investigating officers recovered three bags of ornaments from the basement of the house of A-4, pursuant to the information elicited from Manish Dixit. (Those ornaments were in the possession of the deceased at the time of his abduction). 14. If those circumstances were established by the prosecution there is little scope to contend that its cumulative result would be different from the guilty of Manish Dixit in the involvement of the murder of Gulshan Makhija. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that absconding by itself need not necessarily lead to the inference of culpable mind against the absconder. Learned counsel submitted that Manish Dixit was reporting to the police till 6.3.1994 and hence he could not be treated as an absconder at all. In this context it has to be pointed out that the disappearance of A-2 (Manish Dixit) from the locality was contemporaneous with the apprehension of A-1 (Sharad Dhaker). Even after resorting to legal measures to trace out A-2 (Manish Dixit) he remained underground until he was caught unawares. In the aforesaid broad features the absconding of A-2 (Manish Dixit) cannot be side-stepped as an innocuous circumstance. Of course absconding by itself has no decisive implication, nevertheless it has utility to form a link to concatenate the full chain. 18. On the evidence pertaining to the recovery of the revolver from the person of A-2 (Manish Dixit) on 12.7.1994 Shri U.R. Lalit made a two-pronged attack. First is that the very recovery is illegal as it was done in violation of the legal requirements. Second is that the revolver produced in Court as recovered from A-2 (Manish Dixit) was in fact found lying in the Gypsy on 24.2.1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that it is a very populous area of the metropolis. True no independent witness has affixed signature on Ext. P.80-Seizure Memo. The police officer said that they made an effort to secure at least two persons from Connaught Place but none was willing to be a witness. It is no surprise that any of the traders of Connaught Place would be unwilling to officer his service as a witness to any police action if he knew that he would have to bear all the sufferings thereafter, to give evidence in a Criminal Court, more so, when that Court would be at a far off place in a different State altogether. City people are quite conscious of such consequences and they would normally be wary to signify to such witnessing. The evidence of the police officer that nobody was willing to stand as a witness in Ext. P-80 cannot, therefore, be spurned down as improbable. 23. Section 166 of the Code deals with searches made outside the limits of the police station concerned. Sub-section (1) thereof enables the officer in charge of one police station to require the services of the officer in charge of another police station. It is optional on the former to do so. Sub-section (2) enjoins a duty on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the search made by the investigating officers at Alka Hotel in Connaught Place, New Delhi? PW. 37 (Sanjay Aksetriya) the Circle Officer of the police station under whose leadership the raid was conducted at Alka Hotel has said in cross-examination that he had given the information to the higher officer of the area who agreed to inform the police officers of Delhi at their own level. There can be no grievance that a copy of the search has not been forwarded to the Court concerned. 26. On the aforesaid reasons we do not find any merit in the contention that the search made at Alka Hotel was not in conformity either with Section 165 or Section 166 of the Code. 27. The other contention is that a revolver was found in the Gypsy on 24.2.1994 and if that was with the police the recovery of revolver from A-2 at Alka Hotel on 12.7.1994 could only have been the result of a planting of the firearm at the hotel. The basis for the said contention is the testimony of PW. 4 (Bhanwar Lal). PW. 6 (Rajendra Kumar), PW. 9 (Vijay Kumar) and PW. 19 (Lala Ram Yadav), 28. It is unnecessary to deal with the evidence on PW. 4 and PW. 9 as Public Prosecutor had treated them as hostile o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppress such a vital material. That apart, it is too much to assume that the police concealed that crucial weapon in Ext. P. 18 with the far sighted object of using that weapon for planting it elsewhere five months later for a concocted and fake recovery. If actually a firearm was found lying in the Gypsy on 24.2.1994, it is inconceivable that the police would not have taken it into custody and forwarded it to the Forensic Science Laboratory to check up whether it was the same firearm which the assailant could have used for murdering the deceased. In this context we may note that Ext. P. 18 which was prepared on 24.2.1994 relating to the Gypsy was promptly forwarded to the Court. 32. All the above broad features cannot be allowed to submerge to the bottom and a concurrent finding made by the two Courts on that aspect be thrown overboard merely because of an uninvited oral vibration made by PW. 6. The least which can be commented on the Public Prosecutor who examined that witness, for not making any attempt to probe into that answer is that it smacks of irresponsibility in conducting the prosecution if he was an experienced Public Prosecutor. 33. The next circumstance is the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court he was holding the post of Sub-Registrar, Jaipur. On 9.6.1994 he was holding the post of Tehsildar, Jaipur. (Perhaps in that capacity he was ex-officio Executive Magistrate also). His services were requisitioned by the Investigating Officer for conducting the test identification of jewelleries recovered in this case. When he was examined as prosecution witness for speaking to the said test identification, the Public Prosecutor during the examination-in-chief elicited a few facts from his pertaining to those aspects and the documents prepared in connection therewith were marked through him. When he was cross-examined he was asked about the seal impressions found on the packets which contained the recovered jewelleries. He answered that he did not compare the impression with any other seal. He was then confronted with the memo of seizure (Ext. P. 28) and he was asked whether he had recorded the fact therein truly. He answered thus: It might have been correctly recorded in that memo or I may not be able to recollect . After the cross-examination was over the Public Prosecutor did not put a single question in re-examination. This was either because he did not find any need to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. It should have been remembered that PW. 30 (Devendra Kumar Sharma) was cited by the prosecution and the chief examination was conducted by a Public Prosecutor. Once the witness was cross-examined the Public Prosecutor had an opportunity under law to put such questions as were necessary for explanation of matters referred to in cross-examination . It is un-understandable to us why the Public Prosecutor did not put a single questions at re-examination stage, at least for the purpose of giving him opportunity to explain such incongruities which fell from his mouth during cross-examination. 40. If the Trial Court felt that some of the answers given by that witness during cross-examination were so inconsistent or contradictory and that such answers per se required judicial castigation the Court also had a duty to invoke its powers envisaged in Section 165 of the Evidence Act. The width of the powers of the Court to put questions is almost plenary and no party can possibly raise an objection thereto. This can be discerned from the language employed in the first limb of the section. It reads thus: The Judge may, in order to discover or to obtain proper proof of relevant facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to PW. 30 (Devendra Kumar Sharma). (State of U.P. v. Mohd. Nairn) [1964]2SCR363 , Ch. Jage Ram v. Hans Raj Midha 1972CriLJ768 , R.K. Lakshmanan v. A.K. Srinivasan [1976]1SCR204 , Niranjan Patnaik v. Sashibhusan Kar 1986CriLJ911 , State of Karnataka v. Registrar General, 2000CriLJ3958 . 44. It is apposite in this context to extract the following observations made by this Court in Dr. Dilip Kumar Deka v. State of Assam (1996)6SCC234 : We are surprised to find that in spite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition to defend themselves. It cannot be gainsaid that the nature of remarks the learned Judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also. Condemnation of the appellants without giving them an opportunity of being heard was complete negation of the fundamental principle of natural justice 45. We therefore, unhesitatingly allow the appeal filed by PW. 30 (Devendra Kumar Sharma) and order expunction of all the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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