Delhi District Court
Case Of Sharad Birdhichand Sarda vs State Of Maharashtra, on 23 March, 2011
IN THE COURT OF SH RAJ PAUL SINGH TEJI:
ADDL. SESSIONS JUDGE(FAST TRACK COURT) NORTHEAST,
KARKARDOOMA COURTS:SHAHDRA:DELHI
Case I.D. No. 02402R0000362002
SC No.44/09
State
Versus
1.Sukhi Ram S/o Sh Hira Lal R/o Village Salpur, P.S. Haider Garh, Distt. Barabanki(U.P)
2. Dinesh @ Ganesh S/o Sh Baldev Singh R/o Lal Bhariya, P.S. Bawri, Distt. Bhagalpur, Bihar.
3. Babloo Sharma S/o Sh Raj Kumar R/o 1/2883, Loni Road, Ram Nagar Extension, Shahdara, Delhi.
4. Bajrangi S/o Sh Sukhi Ram R/o Village Salpur, P.S. Haider Garh, Distt. Barabanki (U.P) (Facing trial before Juvenile Justice Board) FIR No. 274/2002 P.S. M.S. Park U/s 302/201/364/34 IPC Date of Institution : 13.04.2009 Date on which order was reserved : 05.03.2011 Date of decision : 23.03.2011 SC No.44/09 Page 1/36 J U D G M E N T
1. Accused persons were sent to face trial for the commission of offence punishable U/s 302/364/201/34 IPC by the police of P.S. M.S. Park. The charge as framed by the then Ld. ASJ Sh O.P.Gupta against the accused persons reads as under:
"that on 24.5.2002 you all alongwith Bajrangi (not arrested) in the house of Babu Lal S/o Ram Bharose at Rahul Garden, Behta Hajipur or elsewhere entered into a criminal conspiracy to murder Rajan and thereby committed an offence punishable U/s 120B IPC and within the cognizance of this court.
Secondly on 24.5.2002 you all alongwith Bajrangi(not arrested) in pursuance of aforesaid criminal conspiracy kidnapped/ abducted Rajan for murder and thereby committed an offence punishable U/s 364 IPC read with Section 120B IPC and within the cognizance of this court.
Thirdly on the aforesaid date, time and place you all alongwith Bajrangi (not arrested) in pursuance of aforesaid criminal conspiracy after abducting/kidnapping said Rajan SC No.44/09 Page 2/36 murdered said Rajan and thereby committed an offence punishable U/s 302/120B IPC and within the cognizance of this court. Fourthly on the aforesaid date, time and place after murdering said Rajan you all alongwith Bajrangi (not arrested) in pursuance of aforesaid criminal conspiracy after killing said Rajan or after knowing that said murder had been committed disposed of his dead body from the place of murder to near Pipe Line, Behta Hajipur jungle nearby Dhama Property Dealer Office, Loni and thereby committed an offence punishable U/s 201 IPC read with Section 120B IPC and within the cognizance of this court"
2. Accused persons pleaded not guilty to the aforesaid charge and claimed trial.
3. The case of prosecution in brief is that on 25.05.2002 DD No. 12A was recorded to the effect that Sh Maheshwar Singh R/o House No. 1/2882, Dakh Khane Wali Gali, Ram Nagar, Delhi made a telephone call at P.S. M.S. Park that on 24.5.2002 at about 10.00 am. Bablu, Dinesh and Bajrangi had taken away his son on the pretext of showing him a movie who has not returned to the house as yet. The SC No.44/09 Page 3/36 said DD was marked to SI Ram Dhan for investigation. Thereafter on 28.7.2002 at about 3.58 p.m. an information was received vide DD No. 10A that murderer has been apprehended in front of Rahi Mill, Mandir Wali Gali. On receipt of DD No. 10A, ASI Ramdhari reached the spot where Sh Mahehswar Singh S/o Ram Dev produced Babloo Sharma and also told that he alongwith his associate namely Dinesh and Bajrangi had taken away his son Rajan in a TSR on the protext of showing him a picture. The said Babloo Sharma was interrogated by ASI Ramdhari who made a disclosure statement regarding the commission of offence. ASI Ramdhari arrested the accused after preparing a kalandra U/s 41.1 Cr.P.C. Thereafter, disclosure statement of accused Babloo and other papers were sent to P.S. Loni through Ct. Satpal, however, the papers were returned by Head Moharar HC Chander Pal and Hakim Singh with the remarks that as the offence has been committed within the jurisdiction of P.S. Mansarover, case file has been sent to the police station. On 31.7.2002 case FIR No. 458/02 was received from P.S. LONI, Ghaziabad and it was revealed that on 26.5.2002 that a dead body of unknown person was recovered from near Pipe Line, Behta Hazipur regarding which SI Pramod Kumar had prepared the Panchyatnama and exhibits were collected. After the postmortem examination, dead body was identified by Gajender Singh to be of his brother Rajan. On receipt of case file from P.S. Loni, a case FIR No. SC No.44/09 Page 4/36 274/02, U/s 302/364/201 IPC was registered. During investigation, I.O recorded the statement of all the officials of P.S. Loni as well as public witnesses who joined the investigation of case FIR No.458/02. On 5.8.2002 accused Babloo Sharma was arrested and his police remand was taken till 10.8.2002. On 8.8.2002 accused made a disclosure statement regarding the commission of offence and also pointed out the place where he alongwith his associates namely Dinesh and Bajrangi had committed the murder of Rajan after strangulating him. Accused Babloo Sharma also pointed out the place where they had thrown the dead body of Rajan. On 8.8.2002 house of Babu Lal @ Suraj was got inspected from Crime team and exhibits were lifted from there. On 15.8.2002 accused Dinesh @ Ganesh and Sukhi Ram @ Langar were also arrested and they were interrogated separately. Both of them had pointed out the place where they had thrown the dead body. On 16.8.2002 TSR No. IRF 9444 in which deceased Rajan was kidnapped, was seized. On the same day, accused Dinesh had pointed out the shop from where he had purchased the bottle of acid. Exhibits collected by the police of P.S. Loni were also collected and the same were deposited in the malkhana. On 25.9.2002 Babu Lal was called in the police station and he was shown the cot on which the dead body was found tied with the rope and he had identified the same. Though it has been mentioned in the chargesheet that accused Bajrangi could not be SC No.44/09 Page 5/36 arrested and proceedings U/s 82/83 Cr.P.C. have been initiated yet Ld. APP has informed that accused Bajrangi was arrested lateron and challan against him was filed before the Juvenile Justice Board. Exhibits were got deposited in CFSL, Kolkatta. Afer completion of investigation, chargesheet for the offence U/s 302/364/201/34 IPC was filed against the accused persons before the concerned court of Ld. M.M. Since the offence committed by accused persons was exclusively triable by the court of Sessions, Ld. M.M. committed the case to the court of Ld. District & Sessions Judge. Thereafter, this case was committed to this court for trial.
4. Prosecution in support of its case has examined as many as 39 witnesses.
5. PW 1 is Rajinder Prasad who conducted the postmortem examination on the body of deceased and proved its report as EX PW 1/A. He has opined that the cause of death was asphyxia as a result of ante mortem strangulation.
6. PW 2 is HC Yatender. He has deposed that on 19.02.2002 he was on emergency duty from 8 pm to 8 am alongwith Ct. Ganga Saran. He has further deposed that at about 11.15 am when they reached near gali No. 3 Gali Dakkhane Wali, Ram Nagar during the course of petrolling, a crowd had collected there and voice of filthy abuses was coming from the said crowd. He has further deposed that accused Babloo was in that crowd and he was fighting with Rajan. SC No.44/09 Page 6/36 He has further depsoed that he arrested both of them U/s 107/151 Cr.P.C. and put them in lock up vide DD NO. 25 A. He has proved the copy of DD No. 25A as ex. PW 2/A.
7. PW 3 Gajender is the brother of the deceased. He has deposed that he knew accused Babloo and Dinesh who were also residing in the same house as tenant. He has further deposed that he knows accused Bajrangi but does not know accused Sukhi Ram. He has further deposed that on 24.05.2002 at 10.30 am, accused Dinesh, Bablu and Bajrangi took his brother in TSR on the pretext of showing him a picture. He has further deposed that accused persons had returned at about 22.30 pm but his brother did not return. He has further deposed that he asked them as to where was his brother at which accused Babloo told him that he had sent his brother back after serving water from Janta Hotel. He has further deposed that earlier a quarrel had taken place between the above said accused persons and his brother. He has further deposed that on 25.05.2002 his father informed the police about the missing of his brother Rajan. He has further depsoed that on 27.05.2002 he learnt that a dead body was lying in jungle of village Bheta. He went there and he was informed that dead body has been taken to Ghaziabad Mortuary. Thereafter he went to mortuary where he identified the dead body of his brother Rajan. After postmortem examination the dead body of his brother was handed over to him. He has further SC No.44/09 Page 7/36 deposed that after about two and half months, Babloo came to his house and telephoned his wife that if she informed the police, the consequences would be serious. He has further deposed that his wife made a call to the police and accused was got arrested who made a disclosure statement to the police which is EX PW 3/A which bears his signature. He has further deposed that accused Babloo also pointed out the place where they had thrown the dead body for which a memo EX PW 3/D was prepared. He has further deposed that accused Babloo also pointed out the place where they had killed his brother vide memo EX PW 3/C. He has further deposed that police lifted earth control from the said room vide memo EX PW 3/D. He has further deposed that accused Dinesh was also got arrested by him after about 56 months of the arrest of accused Babloo. He has further deposed that accused Dinesh made a disclosure statement EX PW 3/E and also pointed out the place of occurrence vide EX PW 3/F and the place of throwing the dead body vide EX PW 3/G. He has further deposed that accused Dinesh also pointed out the place from where he purchased the bottle of acid. He has further deposed that accused Bajrangi and Sukhi Ram was also got arrested by him and Sukhi Ram made disclosure statement vide EX PW 3/H. This witness was declared hostile on certain points by Ld. APP and was cross examined. In his cross examination he admitted that accused Dinesh had shown a TSR in which his brother SC No.44/09 Page 8/36 was taken by the accused persons for showing a picture.
8. PW 4 is Ct. Ran Vijay. He has deposed that on 16.09.2002 he has taken the exhibits to CFSL Kolkata but he could not deposit the same as the same were accepted by the CFSL officials and then he again went CFSL Kolkata after two days and deposited the same. He has deposed that so long as the case property remained in his custody, it was not tampered with.
9. PW 5 is Prakash Dhama who is a property dealer at village Bheta Hajipur Loni Border . He has deposed that on 26.05.2002 at about 910 am when he reached the office, he found that some persons were standing 5060 feets away from his office. On inquiry it was revealed that a dead body which was tied with a cot with the help of the rope was lying there and the same was covered with a blanket. He has further deposed that he has informed the police. Police came there and recorded the statement vide EX PW 5/A. This witness also turned hostile but during the cross examination of learned APP he admitted it to be correct that Surender Sharma was also present at the spot alongwith him when police of PS Loni came there. He has denied the suggestion of Ld. APP that one blanket, one nylon rope(five meter long) and another rope(three meter long) was taken into possession by the police of P.S. Loni vide memo ex.PW 5/B.
10. PW 6 Rekha is the bhabhi of deceased who has deposed that on 24.5.2002 his devar Rajan alongwith Bablu, Bajrangi and Dinesh had SC No.44/09 Page 9/36 gone to see a film in a TSR bearing No. 9444. She has further deposed that her devar did not return home after seeing the film. She has further deposed that in the evening, his father in law came to the house and she narrated the fact of going of his devar with the abovesaid persons. She has disclosed to her fatherinlaw that abovesaid persons namely Bablu, Bajrangi and Dinesh had returned but Rajan had not returned. She has further deposed that her father inlaw made inquiries from them but they ran away. She has further deposed that her fatherinlaw informed the police station of M.S. Park regarding the missing of Rajan on telephone. He has further deposed that on 27.5.2002 she alongwith her husband went to the mortuary and had seen the dead body of her devar there. She has further deposed that a quarrel had also taken place between Bablu and her dewar in the gali about 2/3 months back. She was declared hostile by Ld. APP and was crossexamined by Ld. APP. In cross examination by Ld. APP she has stated that she knew Bajrangi who used to come their house. She has further deposed that Bajrangi had an evil eye on her and she had made complaint to her husband in this regard. She has further admitted it to be correct that her husband had asked Bablu to make Bajrangi understand. She has further admitted it to be correct that lateron it was revealed to her that Bablu, Bajrangi and Dinesh had murdered her dewar Rajan. She has further admitted it to be correct that on 28.7.2002 Bablu SC No.44/09 Page 10/36 came to their house and had extended threats on which her fatherin law and other family members overpowered him and informed the police on which local police came there and arrested the accused Bablu.
11. PW 7 is ASI Ram Dhari who on receipt of DD No. 10A went to the house No. 1/2883 where Maheshwar Singh produced accused Bablu and told that he had committed the murder of his son. He formally arrested the accused U/s 41.1. Cr.P.C. and prepared a kalandra which is ex. PW 7/B. He has further deposed that accused was arrested vide memo ex. W 7/E and his personal search was conducted vide memo ex. PW 7/D. He has further deposed that accused made a disclosure statement ex. PW 7/G. He has further deposed that he informed the Incharge of P.S. Loni regarding the arrest of Bablu Sharma vide DD No. 18 which is ex. PW 7/H.
12. PW 8 is Raj Pal Singh who has deposed that about 2/2 ½ years back, accused Dinesh had brought the police at his shop situated at C107, Gali No.5, Meet Nagar, Delhi. He has further deposed that accused had earlier purchased a bottle of acid from his shop.
13. PW 9 Maheshwar Singh is the father of deceased who has deposed that on 24.5.2002 he came back to the house at 4.45 p.m. and asked her daughter inlaw Rekha about Rajan who told him that Rajan had been taken away by Bablu, Dinesh and Bajrangi in a TSR on the pretext of watching a movie at about 10.00 a.m. and he had not SC No.44/09 Page 11/36 returned to the house since then. He has further deposed that prior to that day, a quarrel had taken place between his son Rajan and accused persons Bablu, Dinesh and Bajrangi. He has further deposed that he informed the police of P.S. M.s. Park at about 6.45 p.m. regarding the nonreturning of Rajan who had gone to see a film with the abovesaid persons. He has further deposed that on 27.5.2002 he came to know that his son had been killed. He suspected that Bablu, Dinesh, Bajrangi and Sukhi Ram had committed the murder of his son. He has further deposed that on 27.5.2002 he alongwith his daughterinlaw had gone to P.S. to lodge the report against the abovesaid persons. He has further deposed that police had recorded his statement. He was crossexamined by Ld. APP regarding the date & month when he came to know about the murder of his son
14. PW 10 Sumitra Devi is the registered owner of TSR No. DLIR F9444 who has deposed that she had given the said TSR to his relative Mohar Kumar. She has further deposed that the said Mohan Kumar further gave the TSR on rent to some person whose name she does not know. She was declared hostile and was crossexamined by Ld. APP but nothing material was brought on record.
15. PW 11 SI Mukesh Kumar is a drafsman who prepared the scaled site plan and proved the same as ex. PW 11/A
16. PW 12 Mahesh Chand has deposed that he used to ply TSR bearing SC No.44/09 Page 12/36 No. DLIRF9444 and he had taken the said TSR from one Mohan Kumar on rental basis. He has further deposed that Mohan Kumar used to hand over the said TSR on hire to Dinesh who was an Auto Driver. He has further deposed that he had given the TSR to Dinesh in the month of August 2002. He has further deposed that police had seized the TSR vide memo ex. PW 3/1 which bears his signature at point A.
17. PW 13 Mohan Kumar has deposed that he had handed over the TSR to Mahesh Chand on hire basis. He has further deposed that police had seized the TSR vide memo ex. PW 3/1 which bears his signatures at point B.
18. PW 14 Naushad did not support the case of prosecution at all for which he was declared hostile by Ld. APP and was crossexamined by Ld. APP but nothing material was brought on record.
19. PW 15 Smt. Neelam also did not support the prosecution case. She too was crossexamined by Ld. APP but to no avail.
20. PW 16 Babu Lal & PW 17 Surender Kumar Sharma also did not support the case of prosecution despite crossexamination by Ld. APP.
21. PW 18 Jaffar Alam @ Rinku has deposed that on 26.5.2002 around 10.30 a.m. near Govind Town, Behta Hazi Pur, U.P. one dead body of male, aged about 30 years was found lying on a cot. He has further deposed that there was bleeding from the head of the dead body and SC No.44/09 Page 13/36 its tongue was between its teeth, face and skin was in burnt condition. He has further deposed that SI P.K.Sharma of P.S. Loni prepared the Panchnama of the dead body ex. PW 18/A which bears his signature at point A. He has further deposed that his statement was recorded by the police during investigation.
22. PW 19 Abdullla PW 20 Jogender Singh & PW 21 Inderjeet are also witnesses to the panchanama prepared SI P.K. Sharma.
23. PW 22 Manoj Sharma is a photographer who took the photographs of the dead body. He has further deposed that he had given the positives and negatives to the I.O. Further examination of this witness was deferred for want of negative and positive photographs and lateron this witness was not produced by the prosecution in the witness box.
24. PW 23 Rattan Singh is also a photographer who took three photographs of the scene of incident. He has proved the positives as ex. PW 23/1 to 3 and their negatives as ex. PW 23/4 to 6.
25. PW 24 Ct. Sanjeev Kumar has deposed that on 8.8.2002 he joined the investigation of this case with I.O. Inspector K.D. Khan , Ct. Gajender Singh and Pawan Kumar. He has further deposed that accused Bablu who was in police custody, made a disclosure statement ex. PW 3/A to the effect that he alongwith his companion namely Dinesh and Bajrangi had committed the murder of Rajan. He has further deposed that accused Bablu also pointed out the place SC No.44/09 Page 14/36 near Pipeline, Behta Hazi Pur Jungle where he alongwith his companion had thrown the dead body of Rajan vide pointing out memo ex. PW 3/B which bears his signature at point A. He has further deposed that accused Bablu also pointed out a room of house at Rahul Garden, Loni where they had committed the murder of Rajan vide ex. PW 3/C which bears his signature at point X. He has further deposed that I.O. had seized the earth control from six different places and sealed with his seal.
26. PW 25 SI Udai Kumar has deposed that on 8.8.2002 on receiving the message from Senior Officer, he reached the office of DCP, North East where Inspector K.D. Khan met him there. He has further deposed that he alongwith his crime team and I.O. reached at Rahul Garden, Loni where he inspected the spot and got the spot photographed. He has further deposed that I.O. seized the earth sample and some soil from there and recorded his statement.
27. PW 26 is Ct. Mahipal Singh who joined the investigation with SHO K.D. Khan and in his presence accused Babloo was interrogated and was formally arrested.
28. PW 27 Ct. Pritam Singh has deposed that on 26.5.2002 he alongwith P.K. Sharma, Ct. Om Prakash and SI Har Prasad Singh reached Pipe Line, Behta Hazipur from where a dead body was seized. Thereafter he alongwith Ct. Om Prakash took the dead body to Hindon Mortuary where postmortem was conducted on 27.5.2002. SC No.44/09 Page 15/36 He has further deposed that after the postmortem examination, dead body was handed over to Gajender Singh, brother of deceased.
29. PW 28 SSI Har Parsad Singh has deposed that on 26.5.2002 he was posted at P.S. Loni , District Ghaziabad as SSI. He has further deposed that investigation of case Crime No. 458/02, U/s 302/201 IPC was marked to him. He recorded the statement of complainant and head Mohrar and reached at the spot. He has further deposed that he also joined SI P.K. Sharma and other staff in the investigation. The panchnama of dead body was prepared and the articles lying near the body was seized by SI P.K. Sharma on his direction. He prepared the site plan ex. PW 28/A. On 27.5.2002 he recorded the statement of witnesses of Panchayatnama. He also recorded the statement of Ct. Pritam singh who got conducted the postmortem on the dead body. He has further deposed that statement of Gajender Singh, brother of deceased who identified the dead body of his brother, was recorded. He has further deposed that he also recorded the statement of brother, father and sisterinlaw of deceased. He has further deposed that during investigation, it was revealed that incident pertains to P.S. Mansarovar Park, Delhi and, therefore, he sent the report of transfer of investigation to Delhi Police to the Senior Officers.
30. PW 29 is Ct Charan Singh who joined the investigation with Inspector K. Khan. He has deposed that on 5.8.2002 he alongwith SC No.44/09 Page 16/36 Inspector K Khan reached at Karkardooma courts where accused Bablu Sharma was produced. Bablu Sharma was interrogated and his disclosure statement ex.PW 29/A was recorded by Inspector K Khan. He has further deposed that accused Bablu Sharma also pointed out the place where the dead body was thrown.
31. PW 30 Ct. Gajender Singh is a witness to the arrest of accused Dinesh and Sukhi Ram. He has also deposed that both the accused persons made the disclosure statements regarding the commission of offence. He has further deposed that accused Dinesh and Sukhi Ram pointed out the place where the murder was committed and also the place where the dead body was thrown.
32. PW 31 is Ct. Om Prakash who alongwith Ct. Pritam Singh took the dead body of deceased to Hindon mortuary for postmortem examination.
33. PW 33 ASI Shahid Ali has deposed that on 14.9.2002 he alongwith Inspector K.Khan and Ct. Satender reached Police Station Loni where HC Chandrapal handed over five pullandas in sealed condition with the seal of BR UPP alongwith the sample seal to Inspector K Khan which were pertaining to case FIR No. 458/02, P.S. Loni. He has further deposed that Inspector K. Khan prepared the seizure memo in this regard vide memo ex. PW 32/A which bears his signature at point A.
34. PW 33 HC Kamal Singh is a MHC(M) with whom the case property SC No.44/09 Page 17/36 was deposited in the malkhana by Inspector K. Khan regarding which he made the entries in register No.19. He has proved the true extracts of the relevant entries as ex.PW 33/A to PW 33/D which bears his signature at point A.
35. PW 34 Ct. Pawan Kumar also joined the investigation with I.O. who has deposed on the lines of PW 24 Ct. Sanjeev.
36. PW 35 ACP K.Khan(Retd.) is the Investigating Officer of this case.
37. PW 36 SI Pramod Kumar Sharma, S.O. Police Station Saroorpur, Distt. Meerut has deposed that on 26.5.2002 he was posted at P.P Boarder Loni of Police Station Loni, Distt. Ghaziabad He has further deposed that on that day one Prakash Dhama informed about the dead body of a male upon which a case crime No. 458/02, U/s 302/201 IPC was registered at P.S. Loni. He has further deposed that he reached near Pipe Line , Behta Hazipur Village and prepared the inquest papers vide ex. PW 18/A on the direction of SI Har Prasad which includes Form No. 13 & 379 which are ex. as PW 35/C17 & C18 respectively. He has also proved the application written to Finger Print Expert as ex. PW 35/C19 and the request letter for the postmortem on the dead body of deceased which is ex. PW 35/C20. He also prepared the documents in respect of sample seals which are ex. PW 35/C22 and PW 35/C23 which bears his signatures at point A. He has further deposed that he also one cot of jute rope, one plastic rope , one rope of coconut jute & one blanket SC No.44/09 Page 18/36 of purple colour which were seized vide memo ex. PW 5/B. He has further deposed that on 27.5.2002 dead body was identified to be of Rajan S/o Maheshwar Singh. He has further deposed that he deposited all the seizure articles in the malkhana of P.S. Loni. He has identified the blanket as ex.P.1, nylon rope as ex. P.2, jute rope as ex..3 and cot as ex. P.4 to be the same which were seized by him.
38. PW 37 Ct. Kailash Chand is a formal witness who has proved the copy of DD No.12 A as ex. PW 37/A.
39. PW 38 is Ramesh Kumar to whom accused Bajrangi Lal had handed over his rehri rickshaw. This witness has not supported the case of prosecution despite crossexamination by Ld. APP.
40. PW 39 Inspector Arun Kumar Chaudhary has deposed that on 3.12.2002 he joined the investigation of this case with Inspector K Khan, SHO, P.S. M.S. Park. He has deposed that one Bajrangi was arrested at the instance of Gajender Singh and Maheshwar who made disclosure statement ex. PW 35/J which bears his signature at point B. He has further deposed that Bajrangi pointed out the place where the dead body was disposed off and a pointing out memo ex. PW 35/L was prepared which bears his signature at point B. He has further deposed that on 4.12.2002 he alongwith Inspector K Khan, Gajender and other staff went to Adiya Timber, Loni Road, Shahdra where Bajrangi pointed out Ramesh Kumar Yadav and told that 'rehri' used for disposal of the dead body of Rajan was handed over to SC No.44/09 Page 19/36 him. He has further deposed that at the instance of Ramesh Kumar Yadav and Bajrangi, one rehri rickshaw was seized vide memo ex. PW 35/K which bears his signature at point A.
41. Thereafter statement of accused persons U/s 313 Cr.P.C. namely Sukhi Ram, Dinesh and Babloo were recorded wherein they denied the allegations against them and stated that they are innocent persons and have been falsely implicated in this case by the police. Accused persons did not lead any evidence in their defence.
42. I have heard Ld. APP for the State as well as Ld. Counsels for accused persons and carefully perused the material available on record.
43. Sh Dasa Ram, Ld. counsel for accused persons namely Babloo and Dinesh has vehemently argued that prosecution has failed to prove its case against the accused persons and hence they are liable to be acquitted. He has further argued that there is no clear evidence of motive against the accused persons. He has submitted that prosecution has tried to prove the motive by examining PW 3 Gajender, brother of deceased, PW 6 Rekha, bhabi of deceased & PW9 Maheshwar, father but their version stood contradicted to each other and are not worthy of acceptance. He has further argued that aforesaid witnesses examined by the prosecution to prove the motive, are related witnesses hence no reliance can be placed on their testimonies. It has been further argued that accused persons have SC No.44/09 Page 20/36 neither made any disclosure statements nor pointed out the place where the deceased was allegedly murdered or where the dead body was thrown. He has further argued that dead body was recovered prior to the arrest of accused persons and the place of recovery of dead body was already in the knowledge of police officials. Ld. counsel for accused persons has further submitted that prosecution has failed to prove that TSR allegedly recovered by the police, was used in the commission of offence by the accused persons on the alleged date & time. That prosecution has also tried to prove that rehri rickshaw used by the accused persons in disposing the dead body, was handed over by accused Bajrangi to PW Ramesh Kumar but this witness while appearing in the witness box has not supported the prosecution version. Ld. counsel has further pointed out that there are material contradictions in the testimonies of witnesses which go to the root of the matter and caused serious doubt in the case of prosecution. It has been argued by Ld. Counsel for accused persons that chain of circumstance evidence is incomplete and hence the accused persons are liable to be acquitted.
44. Ld. counsel for accused Sukhi Ram has contended that prosecution has failed to establish the involvement of accused Sukhi Ram in the incident and hence he is liable to be acquitted.
45. On the other hand Ld.APP for the State has submitted that prosecution has successfully proved its case against the accused SC No.44/09 Page 21/36 persons and hence they are liable to be convicted. Ld. APP has submitted that prosecution has successfully proved on record that it was the accused persons namely Babloo, Dinesh and Bajrangi who had taken away the deceased from his house on the pretext of showing him a picture. He has further submitted that lateron dead body of deceased was recovered from Behta Hazipur Village which falls within the jurisdiction of P.S. Loni. He has further submitted that prosecution has also been able to prove the motive behind the commission of offence. He has further submitted that TSR as well as rehri rickshaw used by the accused persons in the commission of offence has been recovered and has been identified by the witnesses. Ld. APP has further submitted that pursuant to the disclosure statements made by accused persons, they have also pointed out the places where they committed the murder and where the dead body was thrown. He has further submitted that all these facts suggests the involvement of accused persons in the present case and hence they are liable to be convicted.
46. There are two main points which are important for consideration in this case:
i. Whether it was a homicidal death ii Whether it was the accused persons and none else who committed the murder of Rajan
47. There is no dispute that dead body of deceased Rajan was recovered SC No.44/09 Page 22/36 from Gobind Town, Behta Hazi Pur, Loni, Ghaziabad. The body was duly identified by PW 3 Gajender, brother of deceased in the district mortuary, Ghaziabad on 27.5.2002. According to the postmortem report ex. PW 1/A which has been proved by PW 1 Dr. Rajender Prasad, the cause of death has been opined to be asphyxia as a result of antemortem strangulation. PW 1 Dr. Rajender Prasad has also observed that Rigor Mortis was present all over the body. Blister formation was present and skin was peeling. PW 1 was not cross examined by Ld. Counsel for accused persons. Therefore, it stands proved that deceased Rajan has met a homicidal death.
48. The second point which is important for consideration is that whether it was the accused persons and none else who committed the murder in this case. Admittedly, there is no direct evidence in this case. The present case is based on circumstantial evidence. In the case of Sharad Birdhichand Sarda Vs State of Maharashtra, AIR 1984 Supreme Court 1622, Hon'ble Supreme court of India laid down following five golden rules popularly known as 'punchsheel' of circumstantial evidence. The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established; (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.
SC No.44/09 Page 23/36 (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 of the accused and must show that in all human probability the act must have been done by the accused.
49. Let us now examine the various circumstances applying the above principles of law to the prosecution case. To prove its case against the accused persons, the prsoecution has relied upon the following aspects of the prosecution case:
(a) Motive
(b) Accused persons namely Dinesh, Babloo and Bajrangi visited the house of deceased Rajan on 24.06.2002 at about 10.30 a.m. and took him in a TSR on the pretext of showing him a picture.
(c) Recovery of dead body of deceased Rajan from Village Behta Hazipur, Loni(Ghaziabad) as well as cot and nylon rope.
(d) Earth (blood stained) lifted from the place where the deceased was murdered, was found to be positive for blood test. SC No.44/09 Page 24/36
(e) Recovery of TSR which was used in kidnapping the deceased at the instance of accused Dinesh.
(f) Recovery of rehri which was used for disposal of the dead body at the instance of Bajrangi
(g) Accused Dinesh pointed out the shop from where he had purchased the acid which was used in disfiguring the face of deceased Rajan.
(h) Subsequent conduct of accused Babloo
50. (a) Motive : I shall firstly deal with prosecution evidence regarding motive. The case of the prosecution as revealed by the evidence of PW 3 Gajender, PW 6 Rekha and PW9 Maheshwar Singh is to the effect that on 24.5.2002 accused persons namely Dinesh, Babloo and Bajrangi took Rajan (since deceased) in a TSR on the pretext of showing him a movie. Witnesses have further deposed that thereafter Rajan did not return. They have further deposed that prior to the present incident, a quarrel had taken place between the deceased Rajan and the accused persons. In crossexamination by Ld. APP PW6 Rekha has admitted that coaccused Bajrangi had an evil eye on her and she had made a complaint to her husband in this regard. Ld. Counsel for accused persons namely Dinesh and Babloo has pointed out that version of these witnesses stood contradicted to each other and are not worthy of acceptance. No doubt PW 6 Rekha has stated that quarrel had taken between Babloo and deceased Rajan SC No.44/09 Page 25/36 whereas PW 6 & PW 9 have stated that quarrel had taken place between the accused persons and Rajan yet it stands proved that quarrel had taken place between the accused Babloo Sharma and deceased prior to the present incident. Prosecution has also examined PW 2 HC Yatender who has proved DD No. 25A which is regarding the quarrel taken place between accused Babloo and deceased Rajan on 20.02.2002 and both of them were booked U/s 107/151 Cr.P.C. Moreover a suggestion was given to PW 3 Gajender, brother of deceased by Ld. Counsel for accused persons that they had stopped talking with accused Babloo and Dinesh after the incident of previous quarrel between them and his brother Rajan and witness has replied in affirmative. From the abovesaid suggestion given to PW 3, accused persons themselves have admitted about the previous quarrel. In my view, prosecution has established by satisfactory evidence that there was a strong motive for the accused persons to take the revenge from the deceased.
51. (b)Accused persons namely Dinesh, Babloo and Bajrangi visited the house of deceased Rajan on 24.06.2002 at about 10.30 a.m. And took him in a TSR on the pretext of showing him a picture. To prove that deceased was taken away by the accused persons on 24.6.2002, prosecution has examined PW 3 Gajender, PW 6 Rekha and PW 9 Maheshwar who have deposed that on 24.6.2002 at about 10.30 accused persons namely Dinesh, Babloo and Bajrangi took the SC No.44/09 Page 26/36 deceased Rajan with them in a TSR on the pretext of showing him a film. It has also come in the testimony of PW 3 & PW 6 that accused persons had returned, however, deceased Rajan did not return. It has also come in the testimony of PW 3 Gajender that when he asked the accused persons about the whereabouts of his brother Rajan, accused persons told him that they had sent his brother back after serving water from Janta Hotel. It has also been argued by Ld. Counsel for accused persons that PW 3, PW 6 & PW 9 are relatives of deceased hence they are interested witnesses. Admittedly PW 3 & PW 9 are brother and father of deceased whereas PW 6 Rekha is the bhabi of deceased. In myv view, for the mere reason that witnesses are related witnesses, they cannot be said to be interested witnesses. It is settled law that testimonies of related witnesses need not be rejected, when the evidence is consistent and the version of the witnesses tallied with each other. Reliance can be placed on the judgment of Hon'ble Supreme Court in the case of Sher Singh and another Vs. State of Haryana reported as 1994 Crl. L.J. 1980(SC)wherein it has been held that relationship with deceased itself is no ground to reject their testimony. On the other hand such persons would not implicate somebody falsely. Conviction can be based on their testimony. In this case, PW 3 & PW 6 have specifically deposed that it was the accused persons who took the deceased with them on the pretext of SC No.44/09 Page 27/36 showing him a movie. PW 9 Maheshwar, father of deceased has corroborated the version of PW 3 & PW 6. From their testimonies, it stands proved that deceased had left the house in the company of accused persons and did not come back. I have also gone through the crossexamination of these witnesses and the counsel for the accused persons could not make any dent in the crossexamination of these witnesses which could impeach their credibility. In my view, the contention raised by Ld. Counsel by accused persons is devoid of any merit and the same is, therefore, rejected. From the testimonies of PW 3, PW 6 & PW 9, the most important link i.e. Deceased had left the house in the company of accused persons namely Dinesh, Babloo & Bajrangi stands established.
52. C) Recovery of dead body of deceased Rajan It is the case of prosecution that on 26.5.2002 dead body of deceased Rajan was recovered from Village Behta Hazi Pur, Loni (Distt. Ghaziabad). It was PW 5 Prakash Dhama who firstly informed the police station Loni regarding the dead body lying on a cot tied with rope. This witness while appearing in the witness box has deposed that on 26.5.2002 at about 9/10.00 p.m. When he reached his office, he found that a dead body was lying on a cot tied with rope and one blanket was lying over the dead body. PW 36 SI Pramod Kumar Sharma, S.O. Police Station Saroorpur, Distt. Meerut has also deposed that on 26.5.2002 one Prakash Dhama informed about the SC No.44/09 Page 28/36 dead body of a male lying in front of his office situated in Village Behta Hazipur upon which a case crime No. 458/02, U/s 302/201 IPC was registered at P.S. Loni. He has further deposed that he reached near Pipe Line , Behta Hazipur Village and prepared the inquest papers vide ex. PW 18/A on the direction of SI Har Prasad which includes Form No. 13 & 379 which are ex. as PW 35/C17 & C18 respectively. He also deposed that he prepared the panchnama of the dead body ex. PW 18/A in the presence of PW 18 Jaffar Alam, PW 19 Abdulla, PW 20 Joginder and PW 21 Inderjeet. He has further deposed that one cot of jute rope, one plastic rope, one rope of coconut jute & one blanket of purple colour which were seized vide memo ex. PW 5/B. He has further deposed that on 27.5.2002 dead body was identified to be of Rajan S/o Maheshwar Singh. He has further deposed that he deposited all the seizure articles in the malkhana of P.S. Loni. He has identified the blanket as ex.P.1, nylon rope as ex. P.2, jute rope as ex..3 and cot as ex. P.4 to be the same which were seized by him. Similarly PW 3 Gajender has deposed in his testimony that on 27.5.2002 he had gone to Mortuary of Hindon, Ghaziabad where he had identified the dead body of his brother Rajan.
53. Ld. counsel for accused persons has pointed out that PW 5 Prakash Dhama was declared hostile by Ld. APP and hence his testimony cannot be relied upon. It is true that PW 5 Prakash Dhama was SC No.44/09 Page 29/36 declared hostile by Ld. APP but his entire evidence cannot be effaced or rendered unworthly of consideration. In Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 held that merely because the Court gave permission to the Public Prosecutor to crossexamine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 it was observed that by giving permission to crossexamine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is crossexamined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy. No doubt, PW 5 has denied the suggestion of Ld. APP that one blanket and one nylone rope was taken into possession by the police of P.S. Loni yet his entire SC No.44/09 Page 30/36 testimony cannot be thrown away. In this case, PW 5 Prakash Dhama has fully supported the case of prosecution with regard to recovery of dead body of deceased lying in front of his office. Further as regards the recovery of nylon rope, blanket and cot, prosecution has examined PW 36 SI Pramod Kumar Sharma who has identified the blanket ex. P.1, nylon rope as ex. P.2, jute rupe as ex.P.3 and cot as ex. P.4 to be the same which were recovered from the spot. Therefore, the contention of Ld. Counsel for accused persons is devoid of any merit. Thus the recovery of dead body of deceased Rajan as well as the recovery of cot, nylon rope, jute rope and blanket also stands proved.
54. d) Earth (blood stained) lifted from the place where the deceased was murdered, was found to be positive for blood test. The next circumstance relied upon by the prosecution is that earth (blood stained) lifted from the place where the deceased was murdered, was found to be positive for blood test. It is the case of prosecution that accused persons Dinesh, & Babloo made disclosure statement regarding the commission of offence and pursuant to their disclosure statements, they pointed out the place where they committed the murder of deceased and where they threw the dead body of deceased. PW 35 K.Khan who is investigating officer of the case has deposed that he took blood stain earth of six places from the room in which deceased Rajan was murdered. It has also come on SC No.44/09 Page 31/36 record that abovesaid exhibits were got deposited in CFSL through PW 4 for analysis. I have gone through the CFSL report ex. PW 35/M wherein earth(blood stained) ex. P.1 has been opined to be positive for blood test. There is no explanation regarding the presence of blood in the room on the part of accused persons in this regard. Presence of blood from the room pointed out by accused persons is also a clinching evidence in the chain of circumstantial evidence.
55. e) Recovery of TSR which was used in kidnapping the deceased at the instance of accused Dinesh.
Another circumstance relied upon by the prosecution is recovery of TSR by accused Dinesh which was used in kidnapping the deceased. As stated above,PW 3 Gajender and PW 6 Rekha in their testimonies have specifically deposed that accused persons had come in a TSR and they took away the deceased with them in the said TSR. Further accused persons namely Babloo Sharma and Dinesh in their disclosure statements ex. PW 3/A & PW 3/E respectively have disclosed that they took the deceased to Rahul Garden in a TSR. It is also the case of prosecution that on 16.08.2002 accused Dinesh @ Ganesh took the police to PW 13 Mohan Kumar who produced the TSR No.DLI RF 9444 which was seized vide seizure memo ex. PW 3/1. Prosecution has also examined PW 12 Mahesh Chand who has deposed that he used to ply the TSR bearing No. DLIR F 9444 on SC No.44/09 Page 32/36 rental basis. He has further deposed that he had taken the said TSR from one Mohan Kumar. He has further deposed that he used to hand over the said TSR to accused Dinesh on hire basis. He has further deposed that police had seized the TSR ex. PW 3/1 which bears his signatures at point A. From the testimony of PW 12 Mahesh Chand, it stands proved that the accused Dinesh used to ply the said TSR which was used by them in kidnapping the deceased.
56. (f) Recovery of rehri which was used for disposal of the dead body at the instance of Bajrangi Accused persons in their disclosure statements have stated that they had used the rehri for the disposal of the dead body which was brought by Bajrangi. It is the case of prosecution that Bajrangi had lateron handed over the said rehri rickshaw to Ramesh Kumar. Prosecution has produced Ramesh Kumar as PW 38 who while appearing in the witness box has admitted that police of police Station MS Park had seized a rehri from Loni Road, however he has stated that police had obtained his signatures on some blank papers. He has also stated that he does not know any person namely Bajrangi Lal. He was crossexamined by Ld. APP and in cross examination by Ld. APP he has denied the suggestion of Ld. APP that accused Bajrangi had handed over one rehri rickshaw to him. Though PW 38 has denied the fact of handing over of rickshaw to him by accused Bajrangi yet he has admitted about the factum of SC No.44/09 Page 33/36 recovery of rehri rickshaw by the police from Loni Road outside of the shop of Aditya Timbers . On the other hand PW 35 Inspector K Khan who is the investigating officer has deposed that at the instance of Bajrangi one Rehri was taken into possession from Loni Road shop vide memo ex. PW 35/K from one Ramesh Yadav to whom it was given by the accused after the disposal of the dead body. Recovery of rehri is also a clinching evidence and also points a guilty finger towards the accused persons.
57. (g) Accused Dinesh pointed out the shop from where he had purchased the acid which was used in disfiguring the face of deceased Rajan.
It has come in the testimonies of PW 18 Jaffar Alam, PW 19 Abdulla and PW 21 Inderjeet, who are witnesses to the panchnama ex. PW 18/A, that face and skin of dead body was in burnt condition. Further the doctor i.e. PW 1 who conducted the postmortem examination on the body of deceased has also found the presence of blister formation and peeling of skin in his report ex.PW 1/A. Accused persons namely Dinesh and Babloo Sharma in their disclosure statements ex. PW 3/E & PW 3/A have also stated that they had thrown the acid on the face of Rajan which was brought by Dinesh from a shop. It was accused Dinesh who had pointed out the shop from where he had purchased the acid bottle. Prosecution has examined PW 8 Raj Pal Singh, Shopkeeper who has deposed that SC No.44/09 Page 34/36 accused had purchased a bottle of acid from his shop. There is no explanation on the part of accused persons regarding the purchase of bottle of acid from the shop of PW 8. PW 8 Raj Pal Singh is an independent witness and he had no vested interest to depose falsely against the accused. In the absence of any explanation on the part of accused, it can be said that said bottle of acid was used by the accused persons in the commission of offence.
58. (H) Subsequent conduct of accused Babloo It has come in the evidence of PW 3 Gajender and PW 6 Rekha that on 28.07.2002 accused Babloo had visited their house and threatened PW 6 that in case she informed the police, the consequences would be serious. It has also come in the testimonies of these witnesses, they informed the police in this regard and police arrested him. In my view, the aforesaid conduct of accused Babloo in visiting the house of deceased and extending theats to the Bhabi of deceased had revealed a clinching circumstance and shows that involvement of the accused in the commission of offence.
59. From the above discussion, I am of the view that prosecution has been able to prove that it was the accused persons namely Dinesh @ Ganesh, Babloo Sharma and Bajrangi (Juvenile) and none else who after hatching conspiracy with each other abducted Rajan and committed the murder of Rajan. Recovery of dead body of Rajan from Village Behta Hajipur, Loni has been proved on record. From SC No.44/09 Page 35/36 the postmortem report ex. PW 1/A as well as from the testimonies of witnesses, it has been established on record that face of dead body was in burnt condition. It stands established that accused persons has also tried to destroy the evidence by sprinkling acid as well as throwing the dead body in the jungle of Behta Hajipur. The chain of event requied to prove the hypothesis in this case is complete. Consequently, both the accused persons namely Dinesh & Babloo Sharma are held guilty for the offence punishable U/s 120B/364/ 302/201 read with 120B IPC. So far as accused Sukhi Ram is concerned, prosecution has failed to estabish his involvement in the commission of offence. Accordingly, accused Sukhi Ram is acquitted of the offence charged with.
Announced in Open court (RAJ PAUL SINGH TEJI)
on 23.03.2011 ADDL. SESSIONS JUDGE (FTC)
KARKARDOOMA COURTS: SHAHDRA
SC No.44/09 Page 36/36