Delhi District Court
State vs 1. Sat Narain S/O Sh. Kallu on 4 February, 2011
1
IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII &
INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS, DELHI
SESSIONS CASE No. 75/2010
State Vs 1. Sat Narain S/o Sh. Kallu
R/o Village Rasita P.S Maharaj Ganj
Distt. Rai Barrially U.P.
2. Shiv Ram S/o Sita Ram
R/o R 85/414 Lal Gurmail Camp
Panchsheel Park, Malviya Nagar,
Delhi. (EXPIRED)
3. Bhupinder Singh @ Gullu
S/o Late Inder Singh
R/o 18 Begum Pur, Malviya Nagar,
Delhi. (DISCHARGED VIDE ORDER
DATED 19.11.2004)
FIR No. 63/2004
Police Station Punjabi Bagh
Under Sections 302/201/34 IPC
Date of Institution: 18.05.2004
Date when arguments 27.01.2011
State Vs. Sat Narain
2
were heard
Date of Judgment 02.02.2011
JUDGMENT
1. The SHO of P.S: Punjabi Bagh has challaned the accused persons to face trial for the offences under Sections 365/328/408/302/ 201/411/34 IPC. The Ld Metropolitan Magistrate after supplying the copies of documents of the prosecution case to the accused persons by complying with provisions of Section 207 Cr.P.C has committed the case to the court of Sessions as provided under Section 209 Cr.P.C. BRIEF FACTS OF THE CASE
2. The prosecution case in brief is that on 13.01.2004 on receipt of DD No.8A ASI Beer Singh along with Constable Jabbar Singh went to Transport Centre Road Carrier of India, Punjabi Bagh and inquired about that truck No. HR 38A2940 and during search of the truck, the intimation was given to the PCR and information was received that the said truck was found parked in Malviya Nagar, therefore, ASI Beer Singh and Constable Jabbar Singh went to Malviya Nagar and found one Sh. Kapil Rastogi near the truck. His statement was recorded in which he has stated that the said truck belongs to his transport State Vs. Sat Narain 3 company. On 11.01.2004, his driver Nagender Kumar Dubey and helper Satya Narain went on this truck to Road Carrier of India 23 Transport Centre, Punjabi Bagh as per his instructions to load Brook Bond Taj Mahal tea. The truck loaded with the said goods started for Ghaziabad at 9.00 p.m but did not reach Ghaziabad by 12.00 a.m. The vehicle was searched but they could not trace it. The information was given to PCR and he was intimated that at about 6.00 p.m on 13.01.2004 that the said truck was lying parked at Malviya Nagar, DESU Office. The driver Nagender Kumar Dubey was not found in the truck but the helper Satya Narain was in the truck but could not given any satisfactory answer about the whereabouts of driver Nagender Kumar Dubey. He also stated that he suspects that the helper Satya Narain in collusion with some other person have abducted the driver to misappropriate the goods in the truck. On the statement of Kapil Rastogi, the endorsement was made by ASI Beer Singh and the rukka was sent to the police station for registration of FIR. The helper Satya Narain accused was arrested and his disclosure statement was recorded. At his pointing out, the dead body of driver Nagender Kumar Dubey was recovered from the jungle at Mehrauli Badarpur Road near Tukalabad Fort. The crime team was called there. The site plan was prepared. The inquest proceedings were conducted under Section 174 Cr.P.C. The dead body was sent to mortuary for postmortem examination. Coaccused Shiv Ram was arrested and the State Vs. Sat Narain 4 shoes, pant of the deceased driver were recovered from him. Further investigation was conducted by Inspector/SHO Rajender Singh, who after getting the postmortem on the dead body of the said driver done handed over the dead body to the relatives of the deceased. The doctor gave opinion that the death of the victim was on account of strangulation. One co accused Bhupinder Singh was also arrested and from him one carton of the tea was recovered. The statement of witnesses under Section 161 Cr.P.C were recorded, viscera was sent for chemical analysis to CFSL, Kolkatta and on completion of investigation the accused persons were challaned to face trial, as referred before.
CHARGE AND PLEA OF ACCUSED:
3. During the pendency of this case, accused Bhupinder was discharged vide order dated 19.11.2004. However, prima facie case for the offences under Sections 302/201/34 IPC was found to be made out against accused Sat Narain and Shiv Ram so they were charged accordingly on 19.11.2004 to which they pleaded not guilty and claimed trial. In addition prima facie case under Sections 408/364 IPC was made out against accused Sat Narain and prima facie case under Section 404 IPC was made out against accused Shiv Ram. The charges were framed against them accordingly to which accused persons pleaded not guilty. No prima facie case for any offence was made out against accused Bhupinder, so accused Bhupinder was discharged. However, as per order dated 12.11.2010, the proceedings against accused Shiv Ram stood closed as he had expired.
State Vs. Sat Narain 5 PROSECUTION EVIDENCE
4. In support of its case the prosecution has examined 25 witnesses in all. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court.
5. PW1 is HC Ram Niwas. He deposed that on 13.01.2004 he was posted as MHC(M) P.S Punjabi Bagh. On that day, SI Shish Ram deposited in the malkhana copy of seizure memo of truck No. HR38A2940 which was deposited in the malkhana vide entry No. 3041 of the malkhana register. Copy the same is proved by him as Ex PW 1/A. The truck along with goods had been handed over on superdari to Sh. Mahim Rastogi on court orders vide entry, copy of which is proved as Ex PW 1/A1.
This witness further deposed that on 14.01.2004 one pullanda bearing seal of S.R said to contain nylon rassi was deposited in the malkahana by SI Shish Ram along with copy of pointing out memo and seizure memo. The same were deposited in the malkhana vide entry no. 3046 of the malkhana register. Copy of the said entry is proved as Ex PW 1/B. On 15.01.2004 the said pulanda was handed over to SI Shish Ram for being taken to mortuary, AIIMS. On the same day the said State Vs. Sat Narain 6 pulanda was deposited back in the malkhana with seal of AIIMS. Copies of entries in that regard are proved as Ex PW 1/B1 and B2 respectively. On 15.01.2004 SI Shish Ram deposited with him copy of seizure memo of viscera, cloth and sample seal along with one wooden box said to contain viscera, one envelope, one cloth pulanda and sample seal of AIIMS. The said articles were deposited in the malkhana vide Sl. No. 3047 of the malkhana register. Copy of the same is proved as Ex PW 1/C. Vide the same entry one purse, one pant and a pair of shoes in unsealed condition had also been deposited in the malkhana along with copy of seizure memo in that regard by SI Shish Ram.
PW1 further stated that on 16.02.2004 exhibits of this case were handed over to HC Tapeshwar Mishra vide road certificate No. 33/21 for being deposited in CFSL, Kolkatta. Copy of entry in that regard is proved as Ex PW 1/C1. On 21.02.2004 the receipt copy of road certificate was deposited in the malkhana by HC Tapeshwar Mishra vide entry, copy of which is proved as Ex PW 1/C2. The report and the sealed parcels were deposited in the malkhana on 24.07.2004 by HC Suresh. The report was handed over to the IO. Copy of the entry in that regard is proved as Ex PW 1/C3. On 15.01.2004 SHO Inspector Rajender Singh had deposited in the malkhana copy of recovery memo of one carton of Brook Bond Taj Mahal Tea along with one pulanda bearing seal of R.S said to contain the said carton. The same were State Vs. Sat Narain 7 deposited in the malkhana vide entry No. 3048 of the malkhana register. Copy of the same is proved as Ex PW 1/D. The copy of road certificate register in respect of road certificate No. 33/21 dated 16.02.2004 is proved by this witness as Ex PW 1/E.
6. PW2 is Lady ASI Rajbala. She proved the copy of DD register in respect of DD No. 8A dated 13.01.2004 P.S Punjabi Bagh as Ex PW 2/A.
7. PW3 is ASI Sultan Singh. He stated that on 13.01.2004 he was posted as duty officer P.S Punjabi Bagh. At about 9.20 p.m a rukka was produced before him by Constable Jaber Singh which had been sent by ASI Bir Singh. On the basis of said rukka, he registered FIR No. 63/2004 and proved the copy of the same as Ex PW 3/A. He also made his endorsement on the rukka at point encircled red as Ex PW 3/B. Thereafter, the rukka and copy of FIR were handed over to the Constable for being given to IO SI Shish Ram.
8. PW4 is HC Surender Kumar. He deposed that on 14.01.2004 he was posted with Mobile Crime Team, West District as a Photographer and a message was received in the office from SHO P.S Punjabi Bagh. Accordingly they went to a Jungle near Qilla on Mehrauli State Vs. Sat Narain 8 Badar Pur Road which was near Air Force Station, Tuglakabad. After going about 15 ft inside the jungle, a dead body was found lying. As per directions of SHO and SI Sheesh Ram, he took 15 photographs of the dead body and the spot. The said photographs and negatives are proved by him as Ex PW 4/A1 to A15 and Ex PW 4/B respectively. His statement was recorded by the IO in this case.
9. PW5 is Mahim Rastogi. He deposed that he is working as transporter and working under the name of Ishan Carrier. He is the registered owner of truck No. HR 38A2940. On 08.01.2004 he had sent his said truck from Ghaziabad to Delhi. On 10.01.2004 he had loaded goods in his truck which were cartons of Brook Bond Taj Mahal Tea. The goods had been loaded through Road Carrier of India, having office at Punjabi Bagh and had been received from Vapi. Goods booked in the name of Hindustan Livers Limited C/o M/s Rastogi Brothers. The delivery was to be made at Galand. The goods had been loaded at night. The truck did not reach Ghaziabad by the next day morning. On 11.01.2004 as the truck did not reach Ghaziabad by 12 noon, they checked all the barriers from UP Ghaziabad till Delhi but did not find the same. Thereafter his father sent a telegram in this regard to police station Punjabi Bagh since the police had refused to lodge FIR on the complaint of his father. He searched for the truck on his own.
State Vs. Sat Narain 9 This witness further deposed that during the course of search, one of the employees of Road Carrier India and his brother Kapil found the truck in Malviya Nagar area. His brother telephonically informed him in this regard and then he and his father took police force from Punjabi Bagh and reached the spot where their truck was lying parked. Police from Punjabi Bagh had called up PCR Malviya Nagar and had also reached the spot. Accused Sat Narain who was employed as a cleaner in his truck was also apprehended along with the truck. One or two cartons of tea which had been loaded in the truck were found missing. The driver of his truck was not traceable. The truck was brought by the police to P.S Punjabi Bagh. Subsequently he had obtained the truck on superdari from the court on executing superdarinama which is proved as Ex PW 5/A.
10. PW6 is HC Ramesh Kaushik. He deposed that on 15.01.2004, he was posted in P.S Punjabi Bagh. He had joined investigation of this case along with Inspector Rajinder Singh, Constable Ajit, SI Shish Ram, SI Sanjay. They had gone to House No. 18, Begampur, house of Bhupinder Singh and met him. Bhupinder Singh was interrogated, who got recovered one carton of Tea Boxes from his house. The said carton was opened and found to contain 48 boxes of Brook Bond Taj Mahal Tea of 500 gram each. One box was taken out as State Vs. Sat Narain 10 sample and converted into a cloth pulanda which was sealed with the seal of R.S. The carton along with remaining boxes was also converted into a cloth pulanda which was sealed with the seal of R.S. Seal after use was handed over to him. The case property was seized vide memo Ex PW 6/A. Accused was arrested vide arrest memo Ex PW 6/B and his personal search was conducted vide memo Ex PW 6/C. This witness has also identified one carton containing 48 boxes of Brook Bond Taj Mahal Tea being recovered in his presence as Ex P1.
11. PW7 is Yoginder Rastogi. He deposed that truck no. HR382940 is in the name of his son Mahim Rastogi (PW5). In January 2004 the said truck was loaded with tea boxes for being delivered at Ghaziabad from Punjabi Bagh. On 14.01.2004 he had gone to P.S Punjabi Bagh where the truck was found lying parked. The truck conductor Sat Narain was in the custody of police and was brought to the truck who took out a bundle of plastic rope from under the driver seat of the truck. The rope was measured and found to be 30 ft and the same was put in a plastic bag which was sealed by the police. Police had prepared some documents and obtained his signatures on the same. He identified his signatures on document Mark P7A. The rope is exhibited as Ex PR1 for the purpose of identification. Since the witness was unable to identify the accused and the rope so he was crossexamined on behalf of State in State Vs. Sat Narain 11 which he identified the rope and the accused. He also admitted that Mark P7A had been prepared by the police in connection with seizure of the rope pulanda.
12. PW8 is Rajesh. He stated that on 11.01.2004 he was in service with Road Carrier of India at 23 Transport Centre, Punjabi Bagh. On that day truck no. HR38A2940 was loaded from their office with tea leaf. Ajeet got the same loaded for Ghaziabad. He handed over a copy of aforesaid entry to the IO on 06.04.2004 vide seizure memo Ex PW 8/A. Photocopy of the entry is proved as Ex PW 8/B.
13. PW9 is Ajeet Singh. He deposed that on 11.01.2004 he was working as Freight Incharge of Road Carrier of India Punjabi Bagh. On that day, he got loaded tea leaf in truck no. HR38A2940 for Ghaziabad. A challan No. 111507 was prepared for it, copy of which is proved as Ex PW 8/B. Rs 1400/ were given as advance to driver Nagender. Neither the goods reached the destination nor the driver came back.
14. PW10 is Jasbir Singh. He deposed that on 13.01.2004 he was working as Traffic Incharge in Road Carrier of Punjabi Bagh. On that day he informed PCR that on truck no. HR38A2940 which was loaded with 258 cartridges of tea leaf did not reach Ghaziabad for State Vs. Sat Narain 12 delivery of consignments. He had given this information to PCR on telephone.
15. PW11 is Kapil Rastogi. He stated that he is running a transport company in the name and style of "Ishan Carrier". On 11.01.2004 the truck No. HR38A2940 was sent by him to Road Carrier of India situated at 23 Transport Centre, Punjabi Bagh. On that day the driver of the said truck was Nagender Kumar Dubey and Helper was Satya Narain. This witness again recollected and said that the above mentioned truck was sent by him on 10.01.2004 to Punjabi Bagh for loading tea. Driver Nagender Kumar told him on telephone at about 8.00 p.m that he had loaded the tea leaf cartons in the said truck for Ghaziabad. Nagender Kumar also told him that he will leave the Transport Centre after 9.00 p.m after the expiry of no entry period of traffic. The above said truck was to reach Ghaziabad within 23 hours. Till 11.00 a.m on 12.01.2004 the truck did not reach their godown. They waited upto 34 p.m for the arrival of the truck. Thereupon they checked the truck from the police station as well as on the route but it was not found. On 13.01.2004 they informed the PCR on phone at about 11.0012.00 a.m regarding the missing of the truck along with driver/ cleaner. At about 6.00 p.m in the evening they received the information that their truck was parked in Malviya Nagar, Delhi. This witness State Vs. Sat Narain 13 corroborated with the statement of PW5 Mahim Rastogi regarding apprehension of accused Satya Narain. This witness also stated that he lodged a report at P.S Punjabi Bagh regarding the missing and kidnapping of driver Nagender. He proved his statement as Ex PW 11/A. He checked the cartons of tea leaf after removing the Tirpal and later on they found one carton missing from the truck and one dalla (back half cover) of the truck was also found open.
It is further stated by this witness that on 14.01.2004 he remained with the IO in the investigation of this case and accused was interrogated by the IO. Accused made disclosure statement which is proved as Ex PW 11/B regarding his involvement in the present case along with his associates. Accused also disclosed that he had thrown the dead body of Nagender in the Jungle of Tuglakabad Fort, Delhi. Accused informed that he intoxicated the deceased by giving him certain medicines and later on strangulated him with the help of his associate who is residing in Malviya Nagar. Accused further disclosed that he kept concealed the rassi which was used for strangulation at the time of incident under the driver seat of the truck and that he can get the dead body of the deceased Nagender and rassi recovered. Police recorded his statement in this regard on that day. Accused Satya Narain was employed on the said truck as Helper 67 days prior to the incident and Nagender was employed on the truck 45 days prior to the incident. The said truck State Vs. Sat Narain 14 is registered in the name of his brother PW5 Mahim Rastogi. This witness identified the photographs of the truck along with number plates as Mark A to Mark D to be the same which photographed at the time of recovery of the truck. The above mentioned truck along with tea leaf carton except the one missing and one which was taken by the police into possession were taken on superdari by his brother. This witness has also identified the carton along with the packets of tea as Ex P1 collectively to be the same which was loaded in the truck from Transport Centre, Punjabi Bagh on 11.01.2004.
16. PW12 is Ram Sakal Singh. He deposed that he was working as Supervisor in Road King Roadways, 393, Patel Marg, Ghaziabad. Nagender Dube (since deceased) was driver in their above mentioned transport on truck no. HR38A2940. On 14.01.2004 they received information regarding the missing of their driver Nagender who was on duty on the above mentioned truck at the time of incident. This witness corroborated with the statement of PW11 Kapil Rastogi with regard to interrogation of accused Satya Narain and recovery of dead body of deceased Nagender. This witness stated that the dead body was checked by the police and IO prepared the pointing out memo and seizure meme of the dead body which is proved as Ex PW 12/A. He correctly identified the dead body of their driver Nagender Dube. The State Vs. Sat Narain 15 deceased was wearing underwear only when his dead body was got recovered by accused. Police recorded his statement at the spot.
17. PW13 is Babu Lal. He stated that he is working as private driver for the last 15 years and used to work at a tempo stand situated in the main market Malviya Nagar. He knew accused Satya Narain as he was working as driver on a tempo and also used to park his tempo at the above mentioned stand. Accused left the job from there about 45 years prior to 2004. PW13 further stated that on 13.01.2004 he was present at Begum Pur Road and was talking with Satya Narain @ Kutti. In the meantime police reached there and accused Satya Narain @ Kutti was arrested by the police in this case in his presence. When he was talking with accused Satya Narain @ Kutti on the above mentioned place a truck which was loaded and covered with tripal was parked there. He saw the truck parked there one day prior to the above mentioned time when police reached there. On his inquiry accused Satya Narain told him that at present he is on duty on the said truck which was parked there. IO inquired from him (PW13) in this regard and recorded his statement. On leading question being put to this witness by Ld Additional Public Prosecutor, this witness replied that he does not remember if the number of truck was HR38A2940 due to lapse of time.
18. PW14 is Vijay Kant. He deposed that deceased Nagender Dubey was cousin of his father and as such he was his uncle. On 14.01.2004, he along with his uncle Shiv Prasad Dubey went to bushes (jungle) in Tuglakabad Fort, Delhi and found the dead body of deceased Nagender Dubey lying in bushes. They correctly identified the dead body of Nagender Dubey, his uncle. IO recorded his statement in this regard.
19. PW15 is Sh. Baldev Bhatia. He deposed that he is running a Dhaba at Punjabi Bagh Transport Centre. They served tea and omelette in the evening. On 11.01.2004 accused came at his Dhaba at about 7.007.30 p.m and asked for two plate bread omelettes. The accused had asked for two extra slices of bread and had taken total six slices of bread with omelettes. After making the payment, the accused went away. After about 34 days, same accused came with the police at his dhaba. He identified him (accused) before the police and told that he (accused) is the same person who had taken bread omelette from his dhaba on 11.01.2004. Police prepared some papers at the spot. The pointing out memo is proved as Ex PW 15/A. His statement was recorded by the police on 14.01.2004.
20. PW16 is Dr. Sunil Kumar Sharma. He deposed that on 15.01.2004, while posted at Department of Forensic Medicines & State Vs. Sat Narain 17 Toxicology, AIIMS as Senior Residence, he conducted postmortem examination on the dead body of Nagendder Dubey aged about 25 years residence of C12, Janakpuri. The deceased was allegedly found dead at Tughlakabad jungle on 14.01.2004 who was missing since the night of 11.01.2004.
Postmortem Findings: Rigor Mortis was present over the lower limbs, Postmortem staining was present over the back and dependent parts. There was slight greenish discolouration over the right lower abdomen. Antemortem Injuries: 1. Reddish Brown colour ligature mark over the upper part of the neck measuring 31 cms in length and 3 cms in width. On deeper neck dissection there was mild extravasation of blood in the subcutenous and muscular tissues. 2. Superficial scratched abrasions over the right maxilliary area of the face measuring 5 cms x 3 cms. 3. Superficial scratched abrasions over the right anterior chest wall size 8 cms x 4 cms. 4. Superficial scratched abrasions over the back right side size 10 cms x 5 cms. 5. Postmortem lacerated wound over the left lliac fossa opening abdominal cavity measuring 20 cms x 5 cms, margins of the wound irregular without any extravasation of the blood. Internal Examination: Both the lungs were congested voluminous with sub pleural petechial haemorrhages. Rest of the organs were normal.
Both the testes and penis were absent without any associated haematoma.
State Vs. Sat Narain 18 Following clothes were preserved: One cream colour round neck shirt, one full sleeves shirt, baniyan of blue colour, underwear blue colour and a pair of socks.
The organs were preserved for chemical analysis. All the above mentioned were sealed and handed over to IO. Time since death about 3 to 4 days.
Cause of death was asphyxia due to ligature strangulation which was sufficient to cause death in the ordinary course of nature.
Opinion regarding the ligature material submitted by the IO with the seal of SR: Plastic rope red - green colour 30 feet length.
Injury No.1 mentioned could have been produced by the plastic rope. The plastic rope was resealed and was handed over to IO. The postmortem report is proved by this witness as Ex PW 16/A and it is also stated that he preserved the viscera.
21. PW17 is Retired Inspector Devender Singh. He stated that on 05.02.2004, he was posted as Inspector Crime Branch. On that day, on the request of the IO, he reached at MehrauliBadarpur road near Air Force Station. There he took rough notes and measurements on the pointing out of SI Sheesh Ram Gautam. On the basis of those rough notes and measurements, he prepared scaled site plan on 10.02.2004 in his office. The scaled plan is proved by him as Ex PW 17/A. State Vs. Sat Narain 19
22. PW18 is Head Constable Jabar Singh. He stated that on 14.01.2004, he was posted at P.S Punjabi Bagh. On that day, he joined the investigation with SI Sheesh Ram. On that day, accused Sat Narain was arrested in his presence vide arrest memo Ex PW 18/A. His personal search was carried out vide memo Ex PW 18/B. His statement was recorded by the IO.
23. PW19 is A.S. Datta, Junior Scientific Officer of CFSL. He deposed that on 19.02.2004 he received one sealed jute box and one sealed paper packet from the Additional Deputy Commissioner of Police, West District, New Delhi in connection with case No. 63/04 dated 13.01.2004 P.S Punjabi Bagh under Section 365/328/408/302/201/411/34 IPC. The jute box was marked 105/1 and paper packet was marked as 105/2. The jute box contained two sealed big glass jars and two sealed small glass bottles are proved as Mark 105/1A, 105/1B, 105/1C and 105/1D respectively, which were sealed with the seal of Department of Forensic Medicine, AIIMS, New Delhi. They were containing Visceras and blood of deceased Nagendar Dubey, male age 25 years, P.M No. 53/04 dated 15.01.2004 which was received from Senior Resident Department of Forensic Medicine and Toxicology, AIIMS, New Delhi through the ACP, West District, New Delhi. The exhibits were analyzed State Vs. Sat Narain 20 by chemical methods and chromatographic techniques and the result was no common poison was detected in the said exhibits. The detailed report in this respect is proved by him as Ex PW 19/A.
24. PW20 is Lady Constable Annu. She deposed that on 13.01.2004, she was posted at police control room, police headquarter at ITO Operation D Shift. On that day, she was working on channel No. 112 and at about 12.02 p.m, an information was received from Jasbir Singh from telephone no. 25825837. She filled up the form and sent the same on power net. The information was received that Road Carrier of India 23 Transport Centre, Punjabi Bagh, truck no. HR38A2940 loaded on Sunday for Ghaziabad not reached. This witness recorded the aforesaid information in the phone. She also proved the copy of order No. 2554/Record Branch/PCR dated 01.09.2006 and also the PCR form as Ex PW 20/A and Ex PW 20/B respectively.
25. PW21 is Constable Ajit Singh. He deposed that on 15.01.2004, he was posted at P.S Punjabi Bagh. On that day, he joined investigation of the case with Inspector Rajinder Singh and he along with Inspector Rajinder Singh and HC Satish went at 18 Begum Pur, Malviya Nagar where HC Ramesh Kaushik met them and informed that Bhupinder Singh may be available at the house. Inspector Rajinder singh State Vs. Sat Narain 21 requested some passers by to join the investigation but they refused. Then they went inside house no. 18 Begum Pur where Bhupinder Singh met them. Bhupinder Singh produced a carton containing 48 boxes of Brooke Bond Taj Mahal Tea. The carton was kept in a cloth pulanda and sealed with the seal of RS. Seal after use was handed over to HC Ramesh Kaushik. The sealed pulanda was seized vide memo Ex PW 6/A. Thereafter Bhupinder Singh was arrested vide memo Ex PW 6/B and his personal search was conducted vide memo Ex PW 6/C. His statement was recorded. Bhupinder Singh was brought to the police station. This witness has also identified the 48 boxes of Brooke Bond Taj Mahal as Ex P1.
26. PW22 is Constable Virender Kumar. He deposed that on 15.01.2004 he was posted at P.S Punjabi Bagh and joined investigation with SI Sheesh Ram. Accused Shiv Ram was arrested by SI Sheesh Ram from Panchsheel Park jhuggis vide arrest memo Ex PW 22/A and his personal search was conducted vide memo Ex PW 22/B. On interrogation, accused Shiv Ram gave a disclosure statement which is proved by him as Ex PW 22/C. Pursuant to his disclosure statement, accused Shiv Ram took the police party at jungle near Tughlakabad Fort at M.B. Road vide pointing out memo Ex PW 22/D. Accused Shiv Ram had also got recovered a brown colour purse, a blue colour pant and a State Vs. Sat Narain 22 pair of shoes of black colour from his jhuggi at Panchsheel Park, Malviya Nagar. All of them were seized vide memo Ex PW 22/E. The purse contained some documents and Rs. 200/ where were the belongings of the deceased. On being put leading question to this witness, he admitted that the purse also contained the photograph of deceased driver Nagender. This witness has also identified the blue colour pant on which Deep Tailor, Janak Puri S.Bad was written, pair of shoes of black colour on which in front portion of the shoes LG was written and below the shoes No.8 and Guide was written and a purse containing some documents, Rs 200/ and photograph as Ex PW 22/P1 to Ex PW 22/P3 respectively.
27. PW23 is ASI Beer Singh. He deposed that on 13.01.2004 he was posted at P.S Punjabi Bagh. On that day on receipt of DD No. 8A proved as Ex PW 2/A, he along with Constable Jabbar Singh reached at 23, Transport Centre, Punjabi Bagh. He made inquiry with regard to missing truck no. HR38A3940 and came to know that the truck was standing at Malviya Nagar. Thereafter he along with Constable Jabbar Singh reached at Malviya Nagar near DESU office where truck no. HR38A 3940 was found parked. Accused Satya Narain, the helper of the truck and complainant Kapil Rastogi also met him. On questioning about the driver and about the presence of truck at Malviya Nagar, State Vs. Sat Narain 23 accused Satya Narain could not give any satisfactory reply. He recorded the statement of Kapil Rastogi and prepared rukka which is proved as Ex PW 23/A and sent the same to the police station through Constable Jabbar Singh. After registration of FIR, the investigation was entrusted to SI Sheesh Ram, who came at the spot and further investigation was taken over by him. SI Sheesh Ram seized the truck vide memo Ex PW 5/B. The truck was brought at the police station and deposited in malkhana.
PW23 further deposed that on 14.01.2004 on interrogation of accused Satya Narain by SI Sheesh Ram, he gave disclosure statement which is proved as Ex PW 11/B. Accused Satya Narain confessed that he had committed the murder of truck driver Nagender Dubey with the help of Shiv Ram and had thrown the body in the jungle near Tuglakabad Fort. On 15.01.2004 SI Sheesh Ram interrogated the accused Shiv Ram who gave disclosure statement which is proved as Ex PW 22/C. As the witness was suppressing some of the facts, he was crossexamined by Ld Additional Public Prosecutor in which he admitted it correct that truck number was HR38A2940 which was loaded with 257 cartons of Brook Bond Taj Mahal Tea which were also taken into possession vide seizure memo Ex PW 5/B. He further admitted that the accused Satya Narain in his disclosure stated that the pant, shoes and purse of deceased driver Nagender was with accused Shiv Ram and also disclosed about the location of rope in the truck under the seat of driver which was used in State Vs. Sat Narain 24 strangulating the deceased Nagender and also offered to get recovered the dead body from jungle near Tuglakabad Fort. Accused Shiv Ram in his disclosure offered to get recovered pant, shoes and purse containing documents and photograph of driver Nagender from his jhuggi. Accused Shiv Ram thereafter pointed out the place at jungle near Tuglakabad Fort, M.B Road and a pointing out memo which is proved as Ex PW 22/D. Accused Shiv Ram got recovered a brown colour purse containing some documents and photograph and Rs 200/ of deceased driver Nagender, a blue colour pant and a pair of shoes of black colour from his jhuggi situated at R85/414, Lal Ghumat Jhuggi Camp, Malviya Nagar which were taken into possession vide seizure memo Ex PW 22/E. Accused Satya Narain on 14.01.2004 voluntarily led the police party to Transport Centre, Punjabi Bagh and pointed out one dhaba by the name of Ravinder Dhaba from where he purchased six bread piece and two place omlattee and a pointing out memo Ex PW 15/A was prepared. This witness has also identified carton containing 48 boxes of Brook Bond Taj Mahal Tea as Ex P1. He also identified the pant, pair of shoes and purse containing some documents along with Rs 200 and photograph as Ex PW 22/P1 to Ex PW 22/P3 respectively.
It is further stated by this witness that accused Shiv Ram had pointed out the place where the dead body was thrown vide pointing out memo Ex PW 22/D. State Vs. Sat Narain 25
28. PW24 is SI Sheesh Ram. He deposed that on 13.01.2004 he was posted at P.S Punjabi Bagh and investigation of this case was marked to him. He along with Constable Jabar Singh went at Lal Gumbad where ASI Beer Singh met him at the spot. This witness corroborated with the statement of PW23 ASI Beer Singh with regard to interrogation of accused Satya Narain, arrest and interrogation of accused Shiv Ram as well as recovery of case property in this case. This witness further deposed that on 15.01.2004 he handed over the file to SHO P.S Punjabi Bagh who took over the investigation of the case. He took the sealed parcel containing the rope from MHCM and went to AIIMS with SHO. At the instructions of the SHO, he got conducted the postmortem of deceased and after postmortem handed over the body to legal heirs. The doctor handed over four sealed pulandas including Viscera of the deceased which was seized vide memo Ex PW 24/A in a sealed condition. He produced pulanda containing the rope to the doctor for opinion, who gave his opinion and returned the rope in a sealed pulanda with the seal of AIIMS which was seized vide memo Ex PW 24/A. The pulandas were deposited in the malkhana. The inquest documents prepared by him are proved as Ex PW 24/B. On being put leading question to this witness, he admitted that he prepared the site plan which is proved by him as Ex PW 24/C. The truck no. HR38 State Vs. Sat Narain 26 A2940 loaded with 257 cartons of Brooke Bond Taj Mahal Tea was taken into possession vide seizure memo Ex PW 5/B. He also recorded the dead body identification statement of witness Vijay Kant Dubey and Shiv Prasad Dubey vide identification statements Ex PW 24/D and Ex PW 24/E respectively. He also admitted that vide Ex PW 24/A, the rope was not seized after taking subsequent opinion. The accused Satya narain pointed out the Dhaba from where he purchased six pieces of double roti and two plates of omelette and a pointing out memo Ex PW 15/A was prepared. This witness has also identified the rope as Ex PR1 and also the pant, pair of shoes and purse as Ex PW 22/P1 to Ex PW 22/P3 respectively.
29. PW25 is Retired ACP Rajender Singh. He deposed that on 13.01.2004, he was posted as an SHO at P.S Punjabi Bagh. On 14.01.2004 on receipt of information from SI Sheesh Ram, he along with other police staff reached at Mehrauli Badarpur Road, near Tughlakabad Fort from where the dead body of Nagender Dubey, driver was recovered. After inspection and giving instructions to Sheesh Ram, he left the spot. On the next day i.e 15.01.2004, he took over the investigation of this case at 9 a.m and sent the accused Satya Narain with SI Sanjay Sharma for identification of the shop of chemist from where the sleeping pills were purchased and also for recording the statement of State Vs. Sat Narain 27 said chemist. He along with SI Shish Ram and other staff went to AIIMS for the postmortem of the body of deceased. SI Sheesh Ram, under his instructions collected the sealed pulanda containing the rope for obtaining the opinion of the autopsy surgeon. After deputing SI Sheesh Ram for postmortem of the deceased, he himself left the hospital as he was to produce the accused Satya Narain and Shiv Ram in the court. SI Sanjay Sharma met him in the court and informed that accused Satya Narain could not identify the chemist. Both the accused were produced in the court and sent to judicial custody. He himself them went to AIIMS. By that time, postmortem of the body had been conducted and pulandas containing viscera, clothes and sample seal etc already seized by SI Sheesh Ram vide seizure mem. The pulanda containing rope bearing the seal of hospital was also collected by SI Sheesh Ram vide seizure memo. The pulanda containing the rope bearing the seal of hospital was also collected by SI Shish Ram from the doctor.
It is further stated by this witness that he directed SI Sheesh ram to deposit the pulandas in Malkahana and himself proceeded for the search of accused Bhupender Singh @ Gullu and for the recovery of tea carton. He went to Begumpur, Malviya Nagar at the house of Bhupender Singh. HC Ramesh Kaushik and secret informer also met him near the house of Bhupender Singh. Accused Bhupender Singh @ Gullu was apprehended from his house and he got recovered one tea carton from State Vs. Sat Narain 28 the first floor of his house. On checking the carton, there were 48 boxes of Brookbond Ta Mahal tea of 500 gms each. The carton containing 48 boxes were kept in a cloth pulanda and sealed with the seal of RS and seized vide memo Ex PW 6/A. The seal after use was handed over to HC Ramesh Kaushik. Case property was deposited in Malkhana and Bhupender Singh was produced in the court on the next day. This witness further submits that after about one week, he went to the office of Transport Centre, Punjabi Bagh from where he seized the challan from clerk Rajesh vide seizure memo Ex PW 8/A. The photocopy of the challan is proved as Ex PW 8/B. He recorded the statement of Rajesh under Section 161 Cr.P.C. He came to know that Ajit Singh, employee of Transport Center had got the goods loaded for the truck, who was brought to the police station and identified the clothes and shoes of driver Nagender which he was wearing at the time of loading of the goods. The clothes and shoes were in an unsealed condition at that time. He recorded statements of Ajit Singh and Malkhana Moharar under Section 161 Cr.P.C. He got prepared the scaled site plan of the spot from Inspector Devender Singh who prepared the site plan on the pointing out of SI Shish Ram. He collected the scaled site plan from Inspector Devender Singh and postmortem report from the hospital. The exhibits were sent to CFSL, Kolkatta. He recorded statements of witnesses. After collecting the CFSL report, he prepared the charge sheet under Sections State Vs. Sat Narain 29 365/328/408/302/201/411/34 IPC. This witness has also identified the pant as Ex PW 22/P1, pair of shoes as Ex PW 22/P2 and carton containing 48 boxes of Brook Bond Taj Mahal Tea as Ex P1. On being put leading question, this witness admitted it correct that he handed over the body of deceased after postmortem vide memo Ex PW 25/A. He further admitted that he made his remarks on scaled site plan Ex PW 17/A from portion X to Y. PLEA AND DEFENCE ACCUSED
30. In the statement under section 313 Cr.P.C the accused has either denied the questions based on incriminating prosecution evidence put to him or has expressed his ignorance about them. According to him the police in collusion with the owners of the transport company falsely implicated him in this case. The owners wanted some one to be liable for the death of their driver and the police wanted to show that they have solved the case and hence both of them had made him the scapegoat. He is innocent. He is a poor person and in judicial custody for the last about 7 years. He did not have any means to hire a lawyer and hence was dependent upon the Amicus Curie provided by the court.
The accused did not lead and evidence in defence.
State Vs. Sat Narain 30 ARGUMENTS AND FINDINGS
31. I have heard the learned Chief Public Prosecutor for the State, learned Amicus curie for the accused and have gone through the record of the case and relevant provisions of law. The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
32. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the State Vs. Sat Narain 31 latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence. {See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554)
33. In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none State Vs. Sat Narain 32 else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In Raju Vs. The State by Inspector of Police AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn State Vs. Sat Narain 33 have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
State Vs. Sat Narain 34 (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum State Vs. Sat Narain 35 probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr.
V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far State Vs. Sat Narain 36 complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence State Vs. Sat Narain 37 of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
(2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors.
v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
LAST SEEN EVIDENCE
34. The accused was cleaner in the truck in question. PW5 Mahim Rastogi, the owner of Ishan Carrier and also of truck No. HR38A2940 has stated that the cartons of Brook Bond Taj Mahal tea had been loaded on truck through Road Carrier of India. He has also stated that accused Satya Narain was employed as cleaner in the said truck and was also apprehended along with the truck. PW7 Yogender Rastogi, the father of PW6 Mahim Rastogi has also stated before the court that the truck conductor Satya Narain was in custody of police and was brought to the truck who took out a bundle of plastic rope from under driver seat of the truck. PW11 Kapil Rastogi, the brother of PW6 Mahim Rastogi has also stated that on 11.01.2004, driver of the said truck was Nagender Kumar Dubey and helper was Satya Narain. Therefore, it is proved on record that the accused Satya Narain was the helper and State Vs. Sat Narain 38 victim Nagender Kumar Dubey was driver of the truck in question when the truck after being loaded with Brook Bond Taj Mahal tea cartons had moved from Delhi for Ghaziabad. The copy of the challan Ex PW 8/B issued by Road Carrier of India also shows that on 11.01.2004, the truck was loaded with Brook Bond Taj Mahal carton boxes for taking them from Delhi to Ghaziabad. The copy of this challan Ex PW 8/B was seized by police vide memo Ex PW 8/A.
35. In view of the above, it is clear that the prosecution has been able to prove that the truck in question loaded by Brook Bond Taj Mahal tea carton was going from Delhi to Ghaziabad and victim Nagender Kumar Dubey was its driver and accused Satya Narain was posted as helper in this truck. Therefore, the prosecution has been able to prove the important incriminating circumstance that accused being helper on the truck in question was last seen with the driver Nagender Kumar Dubey, the victim when the truck started from Delhi to Ghaziabad. The fact of last seen is reinforced by pointing out memo Ex PW 15/A by which accused Satya Narain has pointed out dhaba from where he purchased six pieces of double roti (bread) and two plates of omelette for himself and for victim driver. The accused purchased two plates of omelette and six slices of bread from dhaba is also proved by PW15 Sh. Baldev Bhatia , the owner of dhaba in Punjabi Bagh who testified to these facts. These facts make prosecution evidence of 'last seen' accused and victim State Vs. Sat Narain 39 together, more convincing.
MEDICAL EVIDENCE
36. The postmortem report of the victim Nagender Kumar Dubey is proved by Dr. Sunil Kumar Sharma Assistant Professor Department of Forensic Medicines, Safdarjung Hospital as Ex PW 16/A. The cause of death given in the postmortem report is asphyxia due to ligature strangulation which was sufficient to cause death in the ordinary course of nature. The postmortem report and medical evidence is also in consonance with the prosecution case that accused Satya Narain with co accused Shiv Narain strangulated victim Nagender Kumar Dubey by rope strangulation.
RECOVERY OF PLASTIC ROPE AT THE INSTANCE OF ACCUSED
37. The accused led the police party to the truck in question and at his pointing out, underneath the seat of truck, he took out one nylon plastic rope with pink and somewhat yellowish colour with length of 30 ft by which the victim Nagender Kumar Dubey was strangulated by accused and coaccused Shiv Ram, as per prosecution story. This pointing out cum seizure memo of the nylon ligature is Ex PW 7/A. State Vs. Sat Narain 40
38. The importance of recovery of this nylon plastic rope is enhanced due to the opinion given by PW16 Dr. Sunil Kumar Sharma that the injury no.1 in the postmortem report Ex PW 16/A could have been produced by the said plastic rope.
RECOVERY OF DEAD BODY OF VICTIM AT THE INSTANCE OF ACCUSED
39. After the accused was arrested, he gave disclosure statement Ex PW 11/B to the Investigating Officer and took the police in the Tuglakabad Fort jungle at Mehrauli Badarpur road behind DTC bus stand Tugalkabad Air Force Station and pointed out towards the half naked dead body of victim Nagender Kumar Dubey which was recovered by police vide pointing out cum recovery memo of dead body Ex PW 12/A proved by PW12 Ram Sakal Singh.
CRUCIAL CIRCUMSTANCE
40. As already stated, the accused was last seen with the victim on the truck in question where he was employed as helper and victim as driver and they started on the truck from Delhi for going to Ghaziabad with Brook Bond Taj Mahal carton loaded on the truck. The accused was arrested near the truck at Malviya Nagar and victim driver was not in the truck. Therefore, the accused is liable to explain the facts within his special State Vs. Sat Narain 41 knowledge leading to the death of the victim. There is caselaw also to the effect in somewhat similar circumstance. In Prabhakar Jasappa Kanguni v. State of Maharashtra, A.I.R. 1982 (SC) 1217 relied upon by learned counsel forcomplainant it was held:
"16. The other circumstances listed above had also been finally established, once circumstance (a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Malti's death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accusedappellant and none else, who had murdered the deceased by strangulating her to death."
In State of U.P. v. Dr. Ravindra Prakash Mittal, A.I.R.1992 (SC) 2045 also relied upon by learned counsel for complainant the following observations were made:
"41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable State Vs. Sat Narain 42 and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning."
41. In the present case, as already stated the accused Satya Narain as helper and victim Nagender Kumar Dubey as driver were on the same truck and after loading the Brook Bond Taj Mahal tea cartons, they started from Delhi for Ghaziabad. The truck never reached Ghaziabad is proved by the prosecution by evidence of PW6 Mahim Rastogi, PW7 Yoginder Rastogi and PW11 Kapil Rastogi. The accused was arrested near the truck which was in Malviya Nagar. Therefore, the accused was liable to explain the facts leading to death of victim Nagender Kumar Dubey as he alone was with him in the truck. But, he has failed to explain the same properly in the statement under Section 313 Cr.P.C nor he has led any evidence to show his innocence that it is not he and someone else who has killed the victim Nagender Kumar Dubey, the driver of the truck. Therefore, the natural presumption is that accused committed the murder of the victim which according to his own disclosure statement and as per prosecution case he did along with coaccused Shiv Ram (since deceased).
State Vs. Sat Narain 43 MOTIVE
42. The motive for committing the crime by accused Sat Narain in the given facts and circumstances of the case is obvious. It was to commit criminal breach of trust by dishonestly misappropriating the cartons of Brook Bond Taj Mahal tea worth lakhs of rupees, by which the truck in question was loaded. To facilitate this motive, the murder of the victim Nagender Kumar Dubey (CHECK) was committed. The motive assumes significance particularly in cases based on circumstantial evidence. Therefore, the motive of the crime is also one of the important incriminating circumstances appearing against accused Satya Narain in this case.
ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES
43. Once the fact of last seen together is proved, a duty is cast on the accused to explain the circumstances in which they parted company. The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution case. (See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB).)
44. It is a well settled principle that in a case of circumstantial State Vs. Sat Narain 44 evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).)
45. In the present case, the accused has failed to explain the State Vs. Sat Narain 45 circumstance leading to death of the victim despite the fact that he was along with the victim driver in the truck in question at the fateful day, instead he has taken a false plea that the police in collusion with owner of transport company falsely implicated him in this case. He made a false statement under Section 313 Cr.P.C that the owner wanted someone to be liable for the death of their driver and the police wanted to show that they have solved the case and hence both of them had made him the scape goat. He has also made a false statement that after picking him up from the residence, police fabricated certain documents at the behest of the owners of the transport company. He also took a false plea that on the alleged date, he was unwell and was resting at his house. He did not go for work and as such he has no knowledge who drove the truck or who was the driver on the impugned date as he did not accompany him. These false answers given by the accused in statement under Section 313 Cr.P.C and also his omission to explain clearly the reasons leading the death of the victim Nagender Kumar Dubey despite the fact that he was with him on the truck in question at the relevant time supplement the prosecution case by providing additional/missing link in the chain of circumstances appearing against the accused Satya Narain to prove the case against him based on circumstantial evidence.
OFFENCES UNDER SECTIONS 201, 364 & 408 IPC
46. The dead body of the victim was found near Tuglakabad State Vs. Sat Narain 46 Fort. The fact that the truck in question was to go from Punjabi Bagh to Ghaziabad but the dead body of the victim was thrown in the jungle near Tuglakabad Fort in itself shows that accused Sat Narain and coaccused Shiv Ram caused the disappearance of the dead body of the victim to screen themselves from legal punishment and threw the dead body in the forest near Tuglakabad Fort. Therefore, the charge under Section 201 IPC stands proved against accused Sat Narain.
47. The fact that the victim Nagender Kumar Dubey, the driver of the truck in question was to go with the loaded truck from Punjabi Bagh to Ghaziabad and instead the truck was found at Malviya Nagar and dead body of the victim was found in the forest near Tugalkabad Fort, obviously proves that the victim driver was abducted by the accused persons in order to commit murder. Therefore, charge under Section 364/34 IPC is also proved against accused Sat Narain. The facts and circumstances of the case show that accused Sat Narain in collusion with coaccused Shiv Ram had abducted the victim driver Nagender Kumar Dubey and committed his murder in order to usurp the loaded truck in question with Brook Bond Taj Mahal tea cartons worth lakhs of rupees. The prosecution has been able to prove, as already discussed above, that the victim driver and accused Sat Narain as helper started from Punjabi Bagh loaded with the truck in question with the destination as State Vs. Sat Narain 47 Ghaziabad. The truck belongs to PW5 Mahim Rastogi, the transporter and the goods belonged to the party for which these were being transported from Punjabi Bagh to Ghaziabad. The word "Entrusted" as used in Section 408 IPC and also in Section 405 IPC in which offence of criminal breach of trust is defined, has to be understood in a wider sense. All that is necessary is that ownership or beneficial interest in the property, which is subject matter of the offence should be in some person other than the accused.
48. The prosecution has also been able to prove as discussed above that the accused Sat Narain was working as helper with the victim driver in the truck in question on the fateful day and they were entrusted with the truck in question along with the cartons of Brook Bond Taj Mahal tea. The accused being posted as helper was instrumental in taking the loaded truck in collusion with coaccused Shiv Ram to Malviya Nagar near the residence of coaccused Shiv Ram, instead of helping the victim driver in taking the loaded truck to Ghaziabad safely to the destination at Ghaziabad, is also proved to be guilty of charge under Section 408 IPC also.
RESULT OF THE CASE
49. In view of the above discussion, accused Bhupinder Singh State Vs. Sat Narain 48 @ Gullu is already discharged by the court vide order dated 19.11.2004 and the accused Shiv Ram has already expired and the proceedings against him stood closed due to this reason on 12.11.2010.
50. The accused Sat Narain is convicted of the charges under Sections 302/201/408/364/34 IPC. Let he be heard on the point of sentence. The judgment be sent to the server (www.delhidistrictcourts.nic.in). Let the accused be heard on the point of sentence.
Announced in the open court on this day 2nd of February 2011 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Sat Narain 49 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS, DELHI SESSIONS CASE No. 75/2010 State Vs Sat Narain S/o Kallu R/o Village, Rasita P.S Maharaj Ganj Distt. Rai Bareily (Uttar Pradesh ) FIR No. 63/2004 Police Station Punjabi Bagh Under Sections 302/201/408/364/34 IPC ORDER ON SENTENCE Vide my judgment of dated 02/02/2011, the convict/accused Sat Narain was convicted under Sections 302/201/408/364/34 IPC.
The Ld Chief Public Prosecutor has argued that extreme death panelty may be awarded to the convict/accused as he has committed the heinous offence of murder besides committing offences under Sections 201/408/364/34 IPC.
On the other hand, Ld Amicus Curie Sh A. K. Chaddha, Advocate has argued that convict/accused is a poor person having aged parents and he is sole bread earner of his family. Therefore, lessor punishment provided under Section 302 IPC may be awarded to convict/accused besides sentence of imprisonment to period of detention already State Vs. Sat Narain 50 undergone by him for other offences.
I have heard learned Chief Public Prosecutor for the state and learned amicus curie for the accused/convict Sh A K Chaddha, Advocate and have gone through the record of the case and relevant provisions of law, carefully.
The punishment awarded should be proportionate to the crime committed by the convict/accused. In murder cases besides fine there may be capital punishment or imprisonment for life. Section 354 (3) Cr.P.C. requires that the Court should give special reasons for awarding the death sentence under Section 302 IPC. The settled legal position is that the death penalty is awarded only in rarest of rare murder case.
Therefore, the special reasons envisaged by Section 354 (3) CrPC are those which make the case fall amongst the rarest of rare cases.
Keeping in view the overall facts and circumstances of the case, I do not find this case to be one amongst rarest of rare cases to justify awarding the capital punishment to the convict. Therefore, the convict is awarded sentence of life imprisonment for the offence under Section 302 IPC convict/accused. However, in the light of Bidhan Nath alias Parijat Kusum Nath & Ors. Vs. State of Assam 2000 CrLJ 1144 (Gau) (DB) there is no need to award fine in the given facts and circumstances of the case.
State Vs. Sat Narain 51 I further sentence convict/accused to undergo Rigorous Imprisonment for the offence under section 201 IPC for four years and to pay fine of Rs. 200. In default of payment of fine convict shall undergo simple imprisonment for one month.
I further sentence convict/accused to undergo Rigorous Imprisonment for the offence under section 408 IPC for four years and to pay fine of Rs. 200. In default of payment of fine convict shall undergo simple imprisonment for one month.
I further sentence convict/accused to undergo Rigorous Imprisonment for the offence under section 364 IPC for ten years and to pay fine of Rs. 600. In default of payment of fine convict shall undergo simple imprisonment for two months.
The sentences of imprisonment awarded to the convict with regard to different offences shall run concurrently.
The period of detention already undergone by convict during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict by this order, as provided under section 428 CrPC.
State Vs. Sat Narain 52 Judgment and order on sentence be sent to server(www.delhidistrict courts. nic.in). Copy of judgment and order on sentence be supplied to convict/accused free of cost.
File be consigned to record room.
Announced in the open court on this 4th day of February 2011 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Sat Narain