VIJENDER versus THE STATE OF DELHI

Citation: [1997] 1 S.C.R. 1181 · Decided: 12-02-1997 · Supreme Court of India · Bench: M.K. MUKHERJEE · Disposal: Appeal(s) allowed

Judgment (excerpt)

VUENDER 
v. 
THE STATE OF DELHI 
FEBRUARY 12, 1997 
[M.K. MUKHERJEE AND B.N. KIRPAL] 
Criminal Law : 
Evidence Act, 1872 : Sections 6, 60 and 157. 
Hearsay evidence-Offence of kidnapping-Father of victim deposed 
that witness gave him the vehicle number in which his son was kidnapped 
and names of accused as kidnappers-However, such witness did not depose 
A 
B 
c 
that he saw the accused kidnapping the victim nor did he give the vehicle 
number in which the victim was kidnapped-Held : Evidence of victim's 
father was hearsay and not admissible-But his testimony that witness told D 
him that his son was kidnapped would be admissible as co"oborative 
evidence under S.157-S.6 not applicable. 
Section 27-Dead body already recovered by police-Accused stated the 
place where dead body was thrown-Held : such a statement not admissible. 
Sections 64, 65 and 32-Best Evidence Rule-Murder-Homicidal 
death--Proof of-Post-mortem report (carbon copy) produced by record clerk 
of hospital-Doctor who conducted post-mortem not examined-Held : ln 
such circumstances post-mortem report not admissible-Moreover, only 
E 
original report and not a carbon copy thereof admissible. 
F 
Section 3--Result of investigation-Held : finding of guilt could not be 
based 011 result of investigation-It should be based solely on evidence 
produced during trial-Criminal Procedure Code, 1973-Ss. 173 and 
190(1)(b ). 
Criminal Procedure Code, 1973: Section 162. 
Statement-Before police officer during investigation-Use of-Held : 
such a statement could not be used for any purpose except when it attracted 
G 
Ss. 27 or 32(1) of the Evidence Act-However, it could be used to contradict 
maker thereof in accordance with S.145 of Evidence Act-Evidence Act, H 
1181 
1182 
SUPREME COURT REPORTS 
[1997) 1 S.C.R. 
A 1872,-Ss. 27, 32( I) and 145. 
Section 218--Joint Trial-Offences of kidnapping and murder under 
Penal Code along with offence under S.25 of Amis Act read with S.5 of 
TADA for illegal possession of count1y-111ade pistol and canridge-No change 
that accused used the pistol for committing the said offence,~Held : Joint 
B t1ial was illegal and caused prejudice to accused-Hence, conviction for 
offence under S.25 of Anns Act read with S.5 of TADA set aside-Further, 
conviction under S.25 of Anns.Act must also fail as there was no prior 
sanction under S.39 of Anns Act-Amis Aci, 1959, Ss. 25,27 and 39-Ter-
rorist and Dismptive Activities (Prevention) Act, 1987, S.5. 
c 
D 
Criminal Tri a/ : 
Circumstantial evidence-Abscondance-Held 
a weak link in the 
chain of circumstantial evidence. 
Circumstantial evidence-Motive-Held : Jn absence of any other in-. 
criminating circumstances, it is of no moment. 
Appreciation of evidence-Offences of kidnapping and mur-
der-Prosecution proved that victim was kidnapped in a Mamti car-It failed 
to prove that accused were the kidnappers or t/zat they were responsible for 
E the death of tiie victim:--Held : judgment of trial cowt convicting the accused 
was a prese1ve one for it was nut only based on conclusions drawn from 
i11admissihle evidence but .wjfercd from the vice of no11-co11sidcration of 
evidence, which matc1ially impaired the prosecution case-Accordingly, con-
viction set aside-Penal Corle, 1860, Ss. 302 and 364. 
F 
TI1e appellants-accused were convicted by the Designated Court 
G 
under Sections 364 and 302 read. with Section 34 of the Indian Penal Code, 
1860 and Section 25 of the Arms Act, 1959 read with Section 5 of the 
Terrorist and Disruptive Activities (Prev~nlion) Act, 19!!7. Aggrievli!d 
thereby the appellants-accused preferred the present appeal, 
According to the prosecution, PW-4 went to the house of PW-5 and 
informed him that he had seen the accused kidnapping his son in a Maniti 
car, PW-5 reportecl to the police that his son was kidnapped, In the meantime 
some Police officers found the dead body of a young boy lying by the side of 
Railway Lines, The dead bo!ly was identified by PW-6 as that of her son. A 
H country-made pistol with a cartridge was recovered from the ai:cused pel'· 
. )-
... 
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I 
1 
VUENDER v. STATE 
1183 
sons. The information about the place where the dead body was thrown A 
was obtained from the accused. The appellant absconded after commission 
ol" the crime. A First Information Report was lodged and a post-mortem 
was held. 
On behalf of the appellants, it was contended that the father of the 
victim deposed that the witness gave him the number of the Maruti car

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