Delhi District Court
State vs . Vijay Kumar Etc. Fir No. 56/2002 on 30 March, 2010
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC NO. 109/2009
FIR NO. 56/2002
PS : KESHAV PURAM
U/S. 302/380/34 IPC
STATE
VERSUS
1. VIJAY KUMAR @ VIJAY
S/O. SH. RAMJI LAL
R/O. VILLAGE & PO JATWARI
PS SHERGARH, TEHSIL CHATTA
DISTRICT MATHURA
U.P.
2. NARENDER @ PAPPU
S/O. SH. PURAN SINGH
R/O. VILLAGE NAGARIA BIJANAKI
PS PESWA, DISTRICT ALIGARH
U.P.
3. OM PRAKASH @ OMA
S/O. SH. RAMJI LAL
R/O. VILLAGE & PO JATWARI
PS SHERGARH, TEHSIL CHATTA
DISTRICT MATHURA
U.P.
4. THAKUR DASS @ PAPPU
S/O. SH. PURAN CHAND
R/O. VILLAGE GUDHERA
PS RAYA, DISTRICT MATHURA
U.P.
State vs. Vijay Kumar Etc. FIR No. 56/2002
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Date of Institution : 02.07.2002
Date of receipt of case in this Court : 29.07.2009
Arguments heard On : 20.03.2010
Order Announced On : 27.03.2010
Shri P. K. Verma, APP for the State.
Shri Aseem Bhardwaj, Amicus Curiae for accused
Vijay Kumar @ Vijay, Thakur Singh @ Pappu and Om
Prakash @ Oma.
Shri Samay Singh, Advocate for accused Narender @
Pappu.
JUDGMENT
1. The facts as projected in the charge sheet are that on 16.02.2002, DD No. 20A handed over to SI Vikram Singh. Duty Officer PS Keshav Puram on 16.02.2002 received wireless message through PCR at about 6.17 PM through wireless operator that in front of C-Block, 36/6, Lawrence Road, truck No. HR 38 8021 near water tank was parked containing a dead body. SI Vikram Singh alongwith Constable Surender went to the spot. SI Vikram Singh found that a truck was parked near C-36/6, Industrial Area, Lawrence Road, Delhi having face towards MIG Flats, Rampura and at the left side window in the cabin behind the driver seat, two dead bodies were lying having State vs. Vijay Kumar Etc. FIR No. 56/2002 :3: wrapped in their neck. Both the dead bodies were having swelling and bad smell was coming out. No eye witness was present there. On this DD, rukka was prepared and sent for registration of FIR under Section 302 IPC. Constable Surender took the rukka and got registered the FIR and further investigation was conducted by Inspector R.K. Budhiraja.
2. Inspector R. K. Budhiraja went to the spot, prepared site plan, the photographer took the photographs and crime team was also called for finger prints. Truck and dead bodies inspected by him. On the truck, a telephone No. 36284, Union Hodal was written. A call was made on this telephone number. Then, it came to the knowledge that the owner of the truck has gone to Delhi in search of the truck. On receiving this information, the owner came at the spot and identified the dead bodies of Prem Chand and Sanjay, both deceased persons. Some documents were taken out from the dead bodies clothes. Dead bodies of both the deceased were sent to BJRM Hospital Mortuary. On 17.02.2002, both dead bodies were identified and State vs. Vijay Kumar Etc. FIR No. 56/2002 :4: postmortem conducted and handed over to the relatives. Exhibits were seized, which were handed over by the doctor. Investigation Officer made local inquiries at jhuggis and secret informer were appointed. On 20.02.2002, Investigation Officer recorded statement of one Kanhaiya Lal, S/o. Sh. Maan Singh. In the statement, he named one Vijay and Pappu Vayapari. In the statement, the fact also came that on 13.02.2002 at about 8.45 PM, he had seen the deceased and these two persons alongwith two other persons. All the four persons boarded in the truck as they wanted to go to Palwal. Investigation Officer thereafter started search of accused persons Vijay Kumar and Pappu.
3. On 25.02.2002, on the basis of secret information accused Vijay Kumar was arrested. His disclosure statement was recorded, in which, he named co- accused Narender @ Pappu. He led the police party to broker Kailash Chand and got recovered 80 bags of wheat. Thereafter, co-accused Narender @ Pappu arrested and his disclosure statement also recorded. At this juncture of investigation, Inspector R. K. Budhiraja was transferred.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :5:
4. On 13.02.2002, investigation entrusted to Inspector O.P.Yadav. He made search for accused Virender Singh and proceedings under Section 82/83 Cr.P.C. conducted against him. The exhibits were deposited at FSL, Malviya Nagar but result was not received. However, postmortem report was received. As per this report, doctor stated the cause of death due to ligature strangulation. The chance print were sent for comparison but result was not received. The investigation till this stage was completed and charge sheet was filed with the request that after further investigation, a supplementary charge sheet under Section 173(8) Cr.P.C. would be filed. On 20.07.2002, accused Virender Singh surrendered in the Court. He was arrested and disclosure statement was recorded. On 30.07.2002, TIP proceedings were conducted at Tihar Jail. The witness Kanhaiya Lal did not identify the accused Virender Singh. On 27.07.2002, Constable Vishnu Dutt PS City Palwal, Haryana came to PS Keshav Puram and informed that accused Thakur Dass @ Pappu arrested in FIR No. 3../02 under Section 406/407/302/201/392 IPC PS City Palwal and he had made disclosure of involvement in the present case.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :6:
5. On 23.08.2002, accused Thakur Dass was arrested after issuance of production warrants. His disclosure statement was recorded. Similarly, accused Om Prakash @ Oma was arrested after issuance of production warrants. TIP proceedings of accused Thakur Dass @ Pappu and Om Prakash @ Oma but they refused to join the TIP proceedings.
6. After completion of investigation, supplementary charge sheet filed. In the charge sheet, it was prayed that if Court seems deem fit, then accused Virender Singh may be discharged.
7. Charge sheet was filed before the concerned Magistrate after completion of investigation for trial initially against two accused persons Narender @ Pappu and Vijay Kumar. Later on, supplementary charge sheet was committed for trial of accused persons Om Prakash and Thakur Dass. Accused Virender Singh was not summoned by the learned MM vide order dated 11.10.2002. After compliance of Section 207 Cr.P.C., committed the case to State vs. Vijay Kumar Etc. FIR No. 56/2002 :7: the Court of Sessions.
8. Vide order dated 12.07.2002, my learned predecessor Sh. R. K. Yadav, ASJ framed the charge against accused Vijay Kumar and Narender @ Pappu for trial of the offence under section 302/380/34 IPC. Both the accused pleaded not guilty and claimed trial.
9. My learned predecessor vide order dated 16.12.2002 framed the charge against accused Om Prakash @ Oma and Thakur Dass for trial of the offence under section 302/380/34 IPC. Both the accused pleaded not guilty and claimed trial.
10. Prosecution in order to prove charges examined in total 37 witnesses. Prosecution examined PW-1 Om Prakash Jagid and PW-9 Jawahar Lal, partners of M/s. Krishna Transport, Hodal and registered owner of truck bearing No. HR 38 8021. PW-2 Maan Singh identified the dead body of deceased Sanjay, helper, PW-3 Mohinder Singh Panchal who identified the dead body of deceased State vs. Vijay Kumar Etc. FIR No. 56/2002 :8: Prem Chand, driver. Three witnesses are examined in regard to loading of 300 wheat bags on 12.02.2002 in truck No. HR 38 8021 at FCI, Hodal, Haryana for transportation to FCI, Mayapuri, Delhi. PW-4 Vishnu Kumar, transport contractor for FCI, PW-6 Om Parkash, who was Depot Incharge at Hodal on 12.02.2002 and PW-13 Sunder, driver of the truck on that day, in whose name gate pass was issued. PW-5 Tejpal, another driver who was on truck No. HR 38C 7141 of the same owner but not present at the time of loading of wheat bags as he was on leave. In his absence, driver Surender was there.
11. Prosecution further examined PW-7 Dr. B.L.Acharya, who conducted postmortem of deceased Prem and proved his report Ex. PW-7/A. PW-15 Dr. Vinay Kumar Singh, who conducted postmortem of deceased Sanjay and proved his report Ex. PW-15/A. The most vital witness examined by prosecution PW-6 Kanhaiya, last seen witness and PW-10 Kailash Chand recovery witness and his partner PW-27 Surinder Kumar. Police witnesses PW-8 SI Shiv Raj Singh, who made effort to trace State vs. Vijay Kumar Etc. FIR No. 56/2002 :9: accused Narender @ Pappu, PW-11 ASI Harjeet Singh, Duty Officer, who recorded Ex. PW-11/B, PW-12 Constable Prem Nath, who delivered FIR to senior police officials and Area Magistrate, PW-17 ASI Subhash Chander, who lifted the chance finger prints on 16.02.2002 and prepared his report Ex. PW-17/A, PW-22 learned MM Sh. Ashwani Sarpal, who proved TIP proceedings of accused Narender @ Pappu Ex. PW-22/A, PW-23 ASI Radheyshyam, PCR Official, who passed the information of recovery of dead bodies in truck No. HR 38 8021 at C- Block, Industrial Area, Lawrence Road, PW-24 SI Manohar Lal, Draftsman, who prepared scaled site plan Ex. PW- 24/A, PW-25 Inspector O. P. Yadav, who sent the exhibits to FSL and arrested accused Virender, not summoned on 20.07.2002.
12. Prosecution further examined PW-14 Constable Sunder Pal, PW-28 SI Vikram Singh and PW-37 ACP R. K. Budhiraja, Investigation Officer to prove the initial investigation regarding the truck No. HR 38 8021 and recovery of two dead bodies. These three State vs. Vijay Kumar Etc. FIR No. 56/2002 :10: witnesses also conducted the initial investigation. PW-21 Sukhram Pal and PW-31 HC Ajay Pal are the two main witnesses of investigation, who alongwith PW-37 Investigation Officer arrested the accused Vijay and Narender @ Pappu and also witness the recovery of wheat bags. PW-36 Constable Rajbir joined the investigation at the time of postmortem of deceased Prem Chand and Sanjay.
13. PW-19 Constable Azad Singh and PW-20 Inspector Om Parkash are the two witnesses of the arrest of accused Om Prakash @ Oma on 05.09.2002 and accused Thakur Dass @ Pappu on 23.08.2002, when they were produced before the learned MM of PS Keshav Puram. PW-33 Constable Richpal Singh and PW-34 SI Jagdish Singh examined who were the witness in case pertaining to City Palwal, Haryana vide FIR No. 373/02 under Section 302/201/292 IPC, in which, accused OM Prakash @ Oma and accused Pappu @ Thakur Dass were arrested. PW-35 Tularam, one of the witness of arrest in the FIR No. 373/02 PS City Palwal, Haryana and proved disclosure statement Ex. PW-34/A of accused Thakur Dass.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :11:
14. My learned Predecessor vide order dated 03.07.2009, closed prosecution evidence.
15. Statement of all the four accused persons recorded under Section 313 Cr.P.C. All of them pleaded innocence and wished to examine defence witness.
16. The defence witnesses DW-1 Veer Pal and DW-2 Kailash Chand were examined on behalf of accused Narender @ Pappu and DW-3 Kishan Singh and DW-4 Basanta were examined on behalf of accused Vijay Kumar in support of their defence. The learned counsel for the accused Narender @ Pappu Sh. Samay Singh and Sh.Aseem Bhardwaj, Amicus Curiae for the accused Vijay Kumar closed their defence evidence.
17. I have heard learned APP for the State Sh.P.K.Verma and Sh. Aseem Bhardwaj, Amicus Curiae for accused persons Vijay Kumar, Thakur Dass and Om Prakash and Cl. Sh. Samay Singh, Advocate for accused Narender @ Pappu and gone through the record. I have State vs. Vijay Kumar Etc. FIR No. 56/2002 :12: also gone through the written arguments on behalf of accused Narender @ Pappu.
18. It has been consistently laid down by Hon'ble Supreme Court of India that where a case rests squarely on circumstantial evidence, the inference of guild can be justified only when all the incriminating facts circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circumstances. The Hon'ble Supreme Court of India laid down the principle that where the accused 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 offence home beyond any reasonable doubt.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :13:
19. 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:
(i) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(ii)the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(iii)in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(iv)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,
(v)if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
20. In Hanumant Govind Nargundkar and Another Vs. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed as under:-
State vs. Vijay Kumar Etc. FIR No. 56/2002 :14: "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 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."
21. In Padala Veera Reddy Vs. State of A.P. And Ors., 1990 (2) RCR (Criminal) 26: (AIR 1990 SC
79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
State vs. Vijay Kumar Etc. FIR No. 56/2002 :15:
(iii) 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
(iv) 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.
22. In State of U.P. Vs. Ashok Kumar Srivastava, 1992(3) RCR (Criminal) 63 :(1993 Cri.L.J. 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.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :16:
23. A reference may be made to a later decision in Sharad Birdhichand Sarda Vs. 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 lacunae in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the Hon'ble Supreme Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
(i) 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;
(ii)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;
(iii)the circumstances should be of a conclusive nature and tendency;
(iv)they should exclude every possible hypothesis except the one to be proved;
and State vs. Vijay Kumar Etc. FIR No. 56/2002 :17:
(v)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.
24. A reference to a decision of Hon'ble Supreme Court in C. Chenga Reddy and Ors. Vs. State of A.P., 1996 (3) RCR (Criminal) 793: (1996) SCC 193, wherein it has been observed as under :-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guild 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 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...."
25. Before analyzing the factual aspects in the light of principle of law discussed herein above it may be stated that for a crime to be proved it is necessary that the crime State vs. Vijay Kumar Etc. FIR No. 56/2002 :18: must be seen to have been committed and must in all circumstances to be proved by direct ocular evidence by examining before the Court those persons who had seen commission. The offence can be proved circumstantial evidence also. The principle fact or factum Probandum may be proved indirectly by means of certain inferences drawn from the factum Probans i.e. evidenciary facts. To put it differently circumstantial evidence is not direct to the point in issue but consist of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principle fact can be legally inferred or presumed.
26. Now in the present facts and circumstances of the case, the prosecution has to prove the complete chain of circumstantial evidence and establish the complete chain that in all probability points towards accused persons being the persons, who committed the offence and no other person. The first circumstances which the prosecution has to establish is the circumstance State vs. Vijay Kumar Etc. FIR No. 56/2002 :19: that the truck No. HR 38 8021 loaded at FCI, Hodal for delivering 300 wheat bags to FCI, Mayapuri, Delhi. In order to prove the circumstances, prosecution relied on testimony of PW-13 Sunder. PW-13 Sunder was the driver on the driver bearing No. HR 38 8021. He went to FCI Godown, Hodal were 300 wheat bags were loaded. Thereafter, he had taken the truck to Krishna Transport Company, Hodal. His testimony highlights that there was another truck bearing No. HR 38C 7141 also loaded with 400 bags of wheat, whose driver was Tejpal. On that day, he was not well and PW-13 took the truck to Mayapuri, Delhi. He unloaded the truck at FCI Godown, Mayapuri and took the empty truck to Kirti Nagar and loaded empty glass bottles there and unloaded the empty glass bottled in a factory at Hatin and left the truck at transport company, Hodal. He further established that the gate pass No. E- 34491 mark 'A' was also issued after loading of 300 bags of wheat in his name. In the cross-examination, he corroborated these facts. He was driver on the truck No. HR 38 8021 for about 3 months. The document was prepared in his presence. The gate pass was issued by the State vs. Vijay Kumar Etc. FIR No. 56/2002 :20: brother of owner Jawahar Lal. He himself seen the driver Tejpal in ill-condition. He further corroborated the fact that he brought the truck No. HR 38C 7141 to FCI Godown, Mayapuri, Delhi.
27. PW-4 Vishnu Kumar, another witness examined by prosecution was the transport contractor for FCI at Gurgaon. He used to run his business in the name and style of M/s. Tirupati Balaji Rice and Oil Mill and Transport Contractor, Bunarana Road, Hodal, Haryana. He also established that on 12.02.2002, truck No. HR 38 8021 was arranged at FCI Godown, Hodal where 300 bags of wheat were loaded. He proved the GR No. 723, which was seized by police vide memo Ex. PW-4/A. He also corroborate the duplicate copy of gate pass mark 'A'. he explained that duplicate copies are generally signed by his Munshi Satbir.
28. PW-5 Tejpal, another driver also examined by prosecution, who further corroborate these facts that he is driving the truck No. HR 38C 7141 for about 4-5 months State vs. Vijay Kumar Etc. FIR No. 56/2002 :21: prior to 11th day of English calender month but he fell ill and taken leave and thereafter, went to his home. He further testified that the truck No. HR 38C 7141 was driven by one Surinder of Village Jaroli in his absence.
29. PW-6 Om Prakash examined by prosecution, who was working in Tour Corporation of India as Depot Incharge at Hodal, Haryana and further corroborated the fact that on 12.02.2002, 300 bags of wheat were loaded in the truck bearing No. HR 38 8021 from FCI, Hodal Depot. The transporter was Vishnu Kumar. He further proved the gate pass mark 'A' issued in the name of driver Sunder. He further proved a receipt mark 'B' issued by Rahul Dharam Kanta showing the weight mentioning of 300 bags of wheat. The wheat bags were having seal of FCI or Haryana Agro State Warehouse Corporation and on some bags, HAFED, Haryana. The witness also shown his Identity Card of FCI. On the basis of testimony of the witnesses discussed herein above, the prosecution established the circumstance that on 12.02.2002, truck No. HR 38 8021 was loaded with 300 bags of wheat for transportation to State vs. Vijay Kumar Etc. FIR No. 56/2002 :22: FCI, Mayapuri, Delhi. The prosecution on the basis of above observation and discussion proved beyond reasonable doubt the first circumstance.
30. The second circumstance which the prosecution has to establish is that owner of truck bearing No. HR 38 8021 was M/s. Krishna Transport at Hodal, Haryana and it is owned by partner Jawahar Lal. Prosecution relied on the testimony of PW-1 Om Prakash Jagid, who testified that Jawahar Lal is the registered owner of the said truck. PW-9 Jawahar Lal himself appeared in the witness box and testified that he is the owner of the truck. He further proved that during investigation, the documents pertaining to the truck were seized by the police vide memo Ex. PW-9/B. The documents were certificate of fitness, registration certificate, permit and insurance Ex. PW-9/C to PW-9/F. He further proved the fact that the truck was released to him on Superdari. He also identified the truck during his examination as Ex. PX. On the basis of above discussion, prosecution established this circumstance beyond reasonable doubt.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :23:
31. The third circumstance prosecution has to establish that on 12/13.02.2002 night, the truck driver was deceased Prem Chand and conductor was deceased Sanjay. The prosecution relied upon the testimony of PW-9 Jawahar Lal, who testified that on 15.02.2002, his truck did not return and then, he came to Delhi on 16.02.2002 and tried to trace the truck. At Lawrence Road, he found the truck, which was empty and having dad bodies of deceased driver Prem Chand and helper Sanjay. He identified the dead bodies before the police. In the cross-examination, he stated that just about 2-3 days prior to the incident, both joined the company.
32. PW-1 Om Prakash Jagid, who is one of the partner of Krishna Transport also testified that he identified the dead body of deceased driver Prem Chand by proving his statement to police Ex. PW-1/A. The deceased were Prem Chand and Sanjay is also established on the basis of testimony of PW-2 Maan Singh, who testified that in the month of February 2002, his son Sanjay was working with one Jawahar. He identified his dead body and also proved State vs. Vijay Kumar Etc. FIR No. 56/2002 :24: the statement Ex. PW-2/A. PW-3 Mohinder Singh Panchal, the brother of deceased truck driver Prem Chandal so identified the dead body and proved his statement Ex. PW- 3/A regarding the identity of deceased driver Prem Singh. Hence on the basis of above discussion and observation, the circumstance has been established that on 12/13.02.2002 midnight, the truck driver was deceased Prem Chand and helper was deceased Sanjay.
33. The fourth most important circumstance, which prosecution has to prove is the last seen witness. Prosecution relied on the testimony of PW-26 Kanhaiya, who is the brother of deceased Sanjay. In his testimony, he stated that on 13.02.2002, he had gone alongwith deceased Prem Chand to Krishna Transport Company, Hodal, who was the driver and reached there at about 8.45 PM. There accused Narender was present, who started talking to him and on inquiry from Prem Singh, he came to know that accused Narender is the relative of deceased Prem Singh. PW-26 Kanhaiya further came to know that accused Narender alongwith 4-5 persons wanted State vs. Vijay Kumar Etc. FIR No. 56/2002 :25: to go to Palwal in their truck. Driver Prem Chand requested PW-26 Kanhaiya called his brother as no other conductor was available. The deceased Sanjay was called by PW-26 Kanhaiya and he also witnesses that all the persons standing in the dock, boarded the truck. He also stated the truck No. HR 38 8021. He came to know on 20.02.2002 that his brother Sanjay has been murdered. He came to the Police Station on 27.02.2002 and seen accused Narender and Om Prakash in the Police Station. He identified them. He also identified the accused persons before the police in Tis Hazari Court.
34. In the cross-examination, PW-26 Kanhaiya explained that he has been serving as driver with one Raj Kumar at Palwal, Haryana. His father used to drive truck in the year 2002. On 12.02.2002, he came from Calcutta to Hodal and on 13.02.2002, he drove the truck to Delhi at about 11.00 PM. On 13.02.2002, he also met the father. He further corroborated that he met his deceased brother Sanjay on 13.02.2002 during day hours and also at about 7.00/7.30 PM when he went on the truck alongwith Prem State vs. Vijay Kumar Etc. FIR No. 56/2002 :26: Singh. Further he corroborates that at about 8.30/8.45 PM, he had gone to Krishna Transport Company. He denied that he named the accused persons at the instance of police. He denied that on 13.02.2002, accused Narender was not present there but he was present at Village Chandhut, District Faridabad, Haryana where he had gone to attend Naamkaran ceremony.
35. It is pertinent to mention here that PW-37 ACP R. K. Budhiraja, Investigation Officer in his testimony deposed that on 20.02.2002, he went to Hodal at the house of deceased Sanjay and met PW-26 Kanhaiya and recorded his statement. As per his statement, accused Vijay and Pappu were named. The testimony of Investigation Officer further corroborate the fact that on 20.02.2002, PW-26 Kanhaiya met him and made statement of last seen witness of the accused persons. However in the witness, he identified accused Narender and Om Prakash when he has seen them in the Police Station on 27.02.2002. According to prosecution, accused Om Prakash was not arrested on 27.02.2002. On that day, accused Vijay and Narender @ State vs. Vijay Kumar Etc. FIR No. 56/2002 :27: Pappu were arrested by the police. However, witness identified accused Vijay and Narender without naming them. The accused Narender @ Pappu was subjected to TIP proceedings proved by learned MM Sh. Ashwani Sarpal but he refused to join the TIP. The accused Om Prakash @ Oma was arrested on 05.09.2002 and Thakur Dass @ Pappu was arrested on 23.08.2002. The supplementary charge sheet discloses that they were also subjected to TIP proceedings, which was conducted by learned MM Sh. P. K. Jain. However, prosecution failed to examine the learned MM Sh.P. K. Jain to prove the TIP proceedings. PW-26 Kanhaiya although brother of deceased Sanjay deposed coherently and cogently. The vital fact that accused Narender and Vijay alongwith 2-3 other persons were present on 13.02.2002 alongwith both deceased Prem Chand and Sanjay at Krishna Transport Company around 7.30 PM and he has seen them in their company when both were alive. PW-26 by name as well as by pointing out identified correctly the accused Narender @ Pappu and without naming he identified the accused Vijay. However the identity of remaining two accused persons Om Prakash and State vs. Vijay Kumar Etc. FIR No. 56/2002 :28: Thakur Dass is doubtful as vital witness not examined by the prosecution. Hence on the basis of above discussion and observation, PW-26 Kanhaiya has established the circumstance that he is the last seen witness of the truck driver deceased Prem Chand and helper deceased Sanjay alive in the company of accused Vijay Kumar and Narender @ Pappu.
36. The fifth circumstance is the recovery of wheat bags at the instance of accused Vijay, his arrest and arrest of accused Narender @ Pappu. Prosecution relied upon the testimony of PW-21 Si Sukhram Pal, PW-31 HC Ajay Pal and PW-37 ACP R. K. Budhiraja. According to testimony of these three witnesses, on 25.02.2002, accused Vijay was arrested at Hodal Bus Stand. They proved the arrest memo Ex. PW-21/A, personal search memo Ex. PW-21/B, body inspection memo of accused Ex. PW-21/C and the disclosure statement of accused Vijay recorded Ex. PW-21/D. The law is well settled that the disclosure statement of accused is inadmissible. However, Section 27 of Indian Evidence Act opens a window for State vs. Vijay Kumar Etc. FIR No. 56/2002 :29: admissibility of the fact, which are discovered in pursuance to disclosure statement. The accused Vijay led the police party to B-60, Lawrence Road, New Delhi where as per his disclosure statement, the wheat bags were sold to one Kailash Chand. W-37 R. K. Budhiraja, Investigation Officer further corroborate that he seized the gate pass receipt of Dharam Kanta vide memo Ex. PW-37/A regarding the loading of truck on 12/13.02.2002 with 300 bags of wheat. The testimony of these three police witnesses PW-21 Sukhram Pal, PW-31 HC Ajay Pal and PW-37 ACP R. K. Budhiraja, Investigation Officer discussed herein above in detail, although there are minor contradictions in the cross- examination but those contradictions are not fatal to the prosecution case as the material aspects were corroborated by all the three witnesses. In the cross- examination, the fact also brought to the light that the police also conducted raid at the address of accused Vijay on 25.02.2002. Now the important aspect is the recovery of wheat bags in pursuance to disclosure statement.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :30:
37. The prosecution relied upon the testimony of PW-10 Kailash Chand, who is the person from whom accused Vijay got recovered the wheat bags, which were loaded in the truck No. HR 38 8021 on 13.02.2002. PW-10 Kailash Chand testified that he worked as Commission Agent at B-60, Lawrence Road, Industrial Area and he also maintains the transactions account. On 14.02.2002, accused Vijay came to his shop and brought goods of accused Pappu. The goods were 300 bags of wheat but on counting they were 299 bags. PW-10 Kailash Chand purchased the 299 bags of wheat from accused Vijay and Pappu at about 1.30/2.00 PM. He also proved the fact that he paid money to accused Pappu in total Rs.75,000/- from 14.02.2002 to 15.02.2002. He proved the entries of his transactions account Ex. PW-10/B. He further proved that on 25.02.2002, police came to his shop alongwith accused Vijay and then, 80 bags of wheat were recovered and the rest of the bags, he had sold. He identified the recovered bags Ex. P-1 to P-80. In the detailed cross-examination, he corroborated the fact that he maintains a rough record of transaction. There is no reason to disbelieve the State vs. Vijay Kumar Etc. FIR No. 56/2002 :31: transactions account produced by him in the Court and proved that he was purchasing controlled wheat for FCI Godown from accused Vijay and Narender. He got recovered the wheat bags from the possession of PW-10 Kailash Chand. It is further established that accused Narender and Vijay received Rs.75,000/- against 299 bags of wheat from PW-10 Kailash Chand. In the cross- examination, he explained that accused Vijay also came to him prior to 14.02.2002 and he knew him. He also verified that whether owner of the truck is there or not. He stated the truck number as HR 38 8021. He further corroborate the fact that accused Narender @ Pappu also came to his shop to clear the accounts, to whom he paid the money against the wheat bags. The testimony of PW-10 Kailash Chand is coherent and cogent and proved the prosecution circumstances. Another witness examined by prosecution is PW-27 Surinder Kumar, who turned out to be hostile but his testimony does not affect the prosecution case in any way.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :32:
38. The accused Narender arrested on 26.02.2002 after the arrest of accused Vijay when he was in police remand. The accused Narender arrested at the instance of accused Vijay from Mithapur, near Badarpur. PW-37 R.K.Budhiraja, Investigation Officer proved the arrest memo Ex. PW-21/A, personal search memo Ex. PW-21/B, body inspection memo Ex. PW-37/D, his disclosure statement also recorded vide Ex. PW-31/A. According to the pointing out by the accused Narender, pointing out memo of the place where truck No. HR 38 8021 was lifted prepared vide memo Ex. PW-37/E. Thereafter, the place where the truck was left was pointed out by pointing out memo Ex. PW-37/F. He also pointed out the place where the truck was unloaded vide memo Ex. PW-37/G and finally where the truck was parked also pointed out by him vide memo Ex. PW-37/H. The accused Narender was subjected to TIP on the next day. The testimony of Investigation Officer ACP R.K. Budhiraja is further corroborated by PW-21 Sukhram Pal and PW-31 HC Ajay Pal, who joined the investigation on 26.02.2002. there are minor contradictions among the cross-examination of these three police State vs. Vijay Kumar Etc. FIR No. 56/2002 :33: witnesses regarding the time spent by them during these proceedings but it will not affect the prosecution case in any manner. The prosecution has established the circumstance that the accused Vijay was arrested and at his instance wheat bags were recovered and on his disclosure statement, accused Narender @ Pappu was also arrested at his instance. Prosecution established on the basis of above observation and discussion that accused Vijay and Narender shared common intention and led the police party by pointing out all the places of crime and Vijay got recovered the stolen wheat bags.
39. The sixth circumstance the prosecution has to prove the cause of death of deceased Prem Chand and deceased Sanjay. The prosecution relied on the testimonies of PW-7 Dr. B.L.Acharya and PW-15 Dr. Vinay Kumar Singh. PW-7 Dr. B. L. Acharya conducted postmortem of deceased Prem and had proved detailed report Ex. PW-7/A. The opinion for the cause of death reflect that it was due to asphyxia consequent upon ligature strangulation caused by other party. He also State vs. Vijay Kumar Etc. FIR No. 56/2002 :34: proved that one muffler was found tied around the neck with single knot on the right side. He further proved that the cause of death can be due to muffler tied around the neck of the dead body. He also opined the time since death was about 3½ to 4 days back and all the injuries were antemortem.
40. PW-15 Dr. Vinay Kumar Singh conducted postmortem of deceased Sanjay and proved the postmortem report Ex. PW-15/A. According to the opinion proved by him, all the injuries were ante mortem in nature and these injuries were sufficient to cause death in ordinary course of nature. The mode of death was homacidal. He further proved that the cause of death was due to ligature strangulation and recovered muffler was used as ligature in strangulating the deceased Sanjay. The prosecution has also proved beyond doubt that the cause of death of deceased Prem Chand and deceased Sanjay was due to ligature strangulation by other person.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :35:
41. The seventh circumstance the prosecution has to establish another circumstance that on 16.02.2002, the truck No. HR 38 8021 was found in front of C-36/6, Lawrence Road, New Delhi containing two dead bodies. The prosecution relied on the testimonies of PW-28 SI Vikram Singh, PW-14 Constable Surender Pal and PW-37 ACP R. K. Budhiraja, Investigation Officer. PW-28 SI Vikram Singh testified that on receiving DD No.20A Ex. PW-28/A, he alongwith PW-14 Constable Surender Pal reached at the spot and found truck No.HR38 8021 was parked there and on examining, found that foul smell was emanating from the truck. Two dead bodies were recovered covered with a quilt. Bodies were putrified. He further proved that on searching dead bodies, driving licence, a diary and cash were recovered. He further proved that he lifted the blood lying in the cabin behind the truck driver's seat and sealed with the seal of BS and taken into possession vide memo Ex. PW-28/B, the quilt was also taken into possession vide memo Ex. PW-28/C, seat covers of the cabin of the truck were also taken into possession State vs. Vijay Kumar Etc. FIR No. 56/2002 :36: vide memo Ex. PW-28/D, two pairs of shoes recovered from the cabin of the truck were also taken into possession vide memo Ex. PW-28/E, two empty bottles of liquor lying inside the cabin were also seized vide memo Ex. PW-28/F, the blood lying on the ground underneath the truck, blood stained earth, earth control sample were lifted, converted into a parcel and sealed with the seal of BS and taken into possession vide memo Ex. PW-28/G. He further proved the seizure memo of diary, driving licence vide memo Ex. PW- 28/H and the wheat lying scattered inside the truck were also taken into possession vide memo Ex. PW-28/J. The truck itself was also taken into possession vide memo Ex. PW-28/K and the earth control was also seized vide memo Ex. PW-28/L. He also identified the case property i.e. the articles of the dead bodies and the articles recovered from the spot i.e. the truck Ex. PX1 bearing registration No. HR 38 8021, cash of Rs.40/- Ex. PX2, pocket diary Ex. PX3, driving licence Ex. PX4 and one paper having some telephone numbers and some calculation Ex. PX5, two empty liquor bottles Ex. PX6/1-2 (colly), one quilt Ex. PX7, two pairs of shoes Ex. PX8 and PX9 and two seat covers Ex.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :37: PX10 and PX11 and the wheat grains seized vide memo Ex.P-8 (colly).
42. PW-37 ACP R. K. Budhiraja, Investigation Officer further corroborated the testimony of PW-28 SI Vikram Singh. PW-14 Constable Surender Pal further corroborated the testimony of PW-28 SI Vikram Singh and PW-37 ACP R. K. Budhiraja, Investigation Officer. PW-14 further corroborated the fact that he took the rukka Ex. PW-11/A for registration of FIR. In the cross-examination, all these three witnesses remained coherent and cogent and denied all the suggestions put to them regarding the material facts of investigation. Further prosecution proved these circumstance on the basis of testimony of PW-30 Constable Rampal, who proved the photographs of the spot Ex. PW- 30/1-11 and negatives Ex. PW-30/12-23.
43. PW-17 ASI Subhash Chander further corroborates the testimonies of above discussed police witnesses by proving the fact that he visited the spot of recovery of truck No. HR 38 8021 having two dead bodies. He proved his report Ex.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :38: PW-17/A. On the basis of above discussion and observation, prosecution proved this circumstance.
44. Now coming to the plea of alibi taken by the accused persons. DW-1 Veer Pal and DW-2 Kailash Chand were examined by accused Narender @ Pappu. In their testimony, both testified that accused Narender was attending the Naamkaran ceremony of a distant relative's son. They proved invitation card Ex. DW-1/A. I have gone through the card. The front of the card has not mentioned the name of the invitee with address. Even otherwise, the ceremony were over on 13.02.2002 in the day time itself. The card Ex. DW-1/A does not inspire confidence that accused Narender, who was having very distant relation ever attended or invited in the Naamkaran ceremony. DW- 3 Kishan Singh examined by accused Vijay Kumar propounded another theory of Panchayat and thereafter, accused Vijay was arrested. DW-4 is silent on the Panchayat, although he is a native of the same village. Therefore, the testimonies of DW-3 and DW-4 does inspire confidence. In view of above discussion and observation, State vs. Vijay Kumar Etc. FIR No. 56/2002 :39: the plea of alibi taken by accused Vijay Kumar and Narender @ Pappu does not hold water.
45. On the basis of above observations and discussions, the prosecution has established beyond reasonable doubt the circumstances from which an inference of guilt is sought to be drawn, which must be cogent and firmly established. Prosecution established beyond reasonable doubt the circumstances, which should be definite tendency unerringly pointing out towards the guilt of the accused persons. The prosecution established beyond reasonable doubt the circumstances taken cumulatively should form a chain so that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused persons and none else. The prosecution established the circumstantial evidence in order to prove chain of circumstances, which is complete and incapable of explanation of any of the hypothesis than that of the guilt of accused persons.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :40:
46. On the basis of above observations and discussions, the prosecution established beyond reasonable doubt that accused Vijay Kumar and Narender @ Pappu shared the common intention to commit murder of deceased Prem Chand and Sanjay. It is further proved beyond reasonable doubt that both committed theft of 299 wheat bags, which were loaded at FCI Hodal in truck No. HR 38 8021 and sold to Kailash Chand. Hence, both the accused persons Vijay Kumar and Narender @ Pappu are convicted of the offences punishable under Section 302/380/34 IPC.
47. However against accused Thakur Dass @ Pappu and Om Prakash @ Oma, the chain of circumstances is not proved beyond reasonable doubt. Their identity is not established that they were present on 13.02.2002 alongwith co-accused persons when deceased Prem Chand and Sanjay were seen alive with them. The prosecution failed to establish the complete and incapable of explanation of any other hypothesis than that of the guilt of accused Thakur Dass and Om Prakash beyond State vs. Vijay Kumar Etc. FIR No. 56/2002 :41: reasonable doubt. Hence, both accused persons are entitled to benefit of doubt, therefore, acquitted of the offences punishable under Section 302/380/34 IPC. Both the accused persons be released forthwith, if not required in any other case.
48. The prosecution has established the circumstantial evidence in order to prove the chain of circumstance, which is complete and incapable of explanation of any other hypothesis than that of the guilt of accused persons. Hence, both the accused persons Vijay Kumar and Narender @ Pappu are convicted for offence punishable under Section 302/380/34 IPC. Ordered accordingly.
(SANJAY KUMAR) Announced in the open court Additional Sessions Judge-01 today 27.03.2010. North West, Rohini Courts, Delhi.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :42: THE COURT OF SHRI SANJAY KUMAR, ADDITIONAL SESSIONS JUDGE - I, DISTRICT NORTH WEST, ROOM NO. 308, ROHINI COURTS, DELHI SC NO. 109/2009 FIR NO. 56/2002 PS : KESHAV PURAM U/S. 308/302/34 IPC STATE VERSUS
1. VIJAY KUMAR @ VIJAY S/O. SH. RAMJI LAL R/O. VILLAGE & PO JATWARI PS SHERGARH, TEHSIL CHATTA DISTRICT MATHURA U.P.
2. NARENDER @ PAPPU S/O. SH. PURAN SINGH R/O. VILLAGE NAGARIA BIJANAKI PS PESWA, DISTRICT ALIGARH U.P. Date of Institution : 02.07.2002 Date of receipt of case in this Court : 29.07.2009 Arguments heard On : 20.03.2010 Order Announced On : 27.03.2010 Order on sentence on : 30.03.2010 Shri P. K. Verma, APP for the State.
Shri Aseem Bhardwaj, Amicus Curiae for accused Vijay Kumar @ Vijay.
Shri Samay Singh, Advocate for accused Narender @ Pappu.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :43: ORDER ON SENTENCE 30.03.2010.
Present: Shri P.K. Verma, APP for the State.
Shri Aseem Bhardwaj, Amicus Curiae for convict Vijay Kumar.
1. It has been submitted by Shri Aseem Bhardwaj, learned Amicus Curiae for convict Vijay that Convict Vijay Kumar is married, aged about 30 years, having old age parents and three younger brothers, who are dependent upon him. He has not been convicted or involved in any criminal activity previously. He is the sole bread earner of his family and a lenient view may be taken.
2. It has been submitted by Shri Samay Singh and Shri Bhawani Shankar learned counsels for the convict Narender @ Pappu Singh that convict is aged about 35 years, married and having two daughter and a son of tender age. All the three children could not continue their studies due to convict's confinement in the judicial custody. Old aged ailing parents are also dependent upon him and State vs. Vijay Kumar Etc. FIR No. 56/2002 :44: also having the responsibility to look after his whole family. He is only bread earner of his family. His another brother is not residing with his old aged parents. He has not been convicted or involved in any criminal case or act. He has clean past antecedents. He is having no other source of income whatsoever. A lenient view may be taken.
3. On the other hand, Shri P.K. Verma, learned APP for the State states that under the given facts and circumstances, convicts be awarded maximum punishment.
4. Security of persons and property of the people is a paramount function of the State which could be achieved through machinery of criminal law. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the convicts. The nature of weapons State vs. Vijay Kumar Etc. FIR No. 56/2002 :45: used and all other attending circumstances are relevant facts which would enter into the area of consideration. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
5. It was observed in case of Dhananjoy Chatterjee @ Dhana Vs. State of West Bengal, 1995 AIR SCW 510 as under :--
Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it in imposing sentences, in the absence of specific legislation. Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and State vs. Vijay Kumar Etc. FIR No. 56/2002 :46: similarity mitigating circumstances have also to be taken into consideration.
In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflects public abhorrence of the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
6. It was also observed in case of Jashubha Bharatsing Gohil Vs. State of Gujrat, (1994) 4 SCC 353 that the protection of the society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence.
7. It was held in the case of Siddarama & Others Vs. State of Karnataka, (2007) 1 SCC (Cri) 72:--
the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose State vs. Vijay Kumar Etc. FIR No. 56/2002 :47: such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
8. It was observed in case of Shivaji @ Dadya Shankar Alhat Vs. State of Maharashtra, 2008 (4) RCR (Criminal) 202 as under :--
Proportions between crime and punishment is a goal respected in principles, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :48: Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment disproportionate punishment has some very undesirable practical consequences.
9. In case State of Punjab Vs. Prem Sagar and Others (2008) 7 SCC 550 it was observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing. It was further observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also relevant. It was observed as under :--
In our judicial system, we have not been able to State vs. Vijay Kumar Etc. FIR No. 56/2002 :49: develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so.
Whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would no doubt depend upon the facts and circumstances of each case. While doing so, however, the nature of the offence said to have been committed by the accused plays an important role. The offences which affect public health must be dealt with severely. For the said purpose, the courts must notice the object for enacting Article-47 of the Constitution of India.
A sentence is a judgment on conviction of a crime. It is resorted to after a person is convicted of the offence. It is the ultimate goal of any justice delivery system. Parliament, however, in providing for a hearing on sentence, as would appear from sub-section(2) of Section 235, sub- section (2) of Section 248, Section 325 and also Section 360 and 361 of the Code of Criminal Procedure, has laid down certain principles. The said provisions lay down the principle that the court in awarding the sentence must take into consideration a large number of relevant factors; sociological backdrop of the accused being one of them.
Although a wide discretion has been conferred on the court but said discretion must exercise judicially. It would depend upon the circumstances in which the crime has been committed and the mental state. Age of the accused is also relevant.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :50:
10. The punishment provided under Section 302 IPC death or life imprisonment as a penalty for murder. The Indian Penal Code has under gone multi facet changes for the last three decades which indicates that the Parliament has taken note of contemporary criminological thought and movement. The Indian Penal Code reflects a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3) Cr.P.C. It indicates that reformation and rehabilitation of offenders and no deterrence, are now among the foremost objects of the administration of criminal justice in the country. Section 354(3) Cr.P.C. is a part of emerging picture of acceptance by the legislature of the new trends in criminology. The personality of an offender revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. A judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. The former rule State vs. Vijay Kumar Etc. FIR No. 56/2002 :51: that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the sentence prescribed in the Section 302 IPC.
11. In case Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 it was observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. The ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
12. In case Machhi Singh Vs. State of Punjab, AIR 1983 SC 957, the guidelines are laid down which are to be kept in view, considering the question whether the case belongs to the rarest of rare category. It was observed that the following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:-
a) Is there something
uncommon about the crime
which renders sentence of
imprisonment for life
inadequate and calls for death
sentence?
State vs. Vijay Kumar Etc. FIR No. 56/2002 :52:
b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
13. In case Machhi Singh , the guidelines were culled out which are to be applied to the facts of each individual case where the question of imposition of death sentence arises. The following preposition emerges from the Bachan Singh's case:--
i. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
ii. Before opting for the death penalty the circumstances of the 'offender' also required to be taken into consideration alongwith the circumstances of the 'crime'.
iii. Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and State vs. Vijay Kumar Etc. FIR No. 56/2002 :53: circumstances of the crime and all the relevant circumstances.
iv. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
14. In case Bablu @ Mubarak Hussain Vs. State of Rajasthan, AIR 2007 SC 697, the Supreme Court observed as under :--
In rarest of rare cases when collective conscience of the community is so shocked that it will except the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
i. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
ii. When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in a course for State vs. Vijay Kumar Etc. FIR No. 56/2002 :54: betrayal of the motherland. iii. When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
iv. When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. v. When the victim of murder is an innocent child, or helpless woman or old or infirm person or a person vis-a-vis whom the murder is in a dominating position or a public figure generally loved and respected by the community.
15. In the present case both the convicts caused death of two persons namely Prem Chand and Sanjay. The untimely and unnatural death of deceased persons must have caused irreparable loss to their families. The families are deprived off love, affection and support. The convicts also committed theft of 299 bags of wheat loaded in truck in which deceased Prem Chand was driver and Sanjay was helper.
State vs. Vijay Kumar Etc. FIR No. 56/2002 :55:
16. On the basis of above observations and discussion in the present facts and circumstances of the case the present case does not fall within the category of "rarest of the rare category", as such, the death penalty cannot be awarded to both the convicts. The latest decision of the Hon'ble Supreme Cour tof India pertaining to imposition of sentence in the case of Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra, decided on 13.05.2009. Another important facet pertaining to sentencing the procedure being considered. Imprisonment for life as a penalty entails that the convicts must remained in the imprisonment till his life i.e. would never to set free from the jail. However, the code of Criminal Procedure provides power to executive under Section 433 Cr.P.C. which subject to the restrictions provided by Section 433 A Cr.P.C. According to which a convict sentenced to imprisonment for life for whose death sentence has been commuted to imprisonment for life cannot be released from prison unless served at least 14 State vs. Vijay Kumar Etc. FIR No. 56/2002 :56: years of imprisonment. The Hon'ble Supreme Court of India in the case Swami Shraddhanand vs. State of Karnataka 2008(13) SCC 767 imposed upon State the condition that accused would not be entitled to any commutation or premature release.
17. Hence, in the present case, I sentence both the convicts to undergo life imprisonment alongwith fine of Rs.5000/- each, in default of payment of fine simple imprisonment for six (6) months for offence punishable under Section 302/34 IPC. For offence punishable under Section 380/34 IPC RI for three (3) years and fine of Rs.3000/- each, in default of payment of fine simple imprisonment for three (3) months. Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. be given to both the convicts.
18. It is made clear that in view of law laid down by Hon'ble Supreme Court of India in the case of Swami Shraddhanand (Supra) the appropriate sentence of imprisonment of life is that they both have to undergo actual sentence of 20 years and grant of remission shall not be considered till the actual sentence of 20 years. Copy of judgment and that of order on sentence be State vs. Vijay Kumar Etc. FIR No. 56/2002 :57: provided to the convicts, free of cost, today itself. Sessions file be consigned to record room.
(SANJAY KUMAR) ADDL. SESSIONS JUDGE-01 (NW) ROHINI COURTS: DELHI.
Announced in the open court today i.e. 30.03.2010.
State vs. Vijay Kumar Etc. FIR No. 56/2002