Delhi District Court
State vs . (1). Davinder Kumar Sharma @ Davinder @ on 15 September, 2014
FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 78/1/14 Unique Case ID No. 02404R0678272005 State Vs. (1). Davinder Kumar Sharma @ Davinder @ Mukesh Khandelwal @ Pappu S/o Sh. Devki Nandan R/o Village & Post Office Pureeni, District Aligarh, U.P. (2). Udaiveer S/o Sh. Ram Phal R/o Village Bilalpur, P.S. Barla, District Aligarh, U.P. FIR No. : 871/03 Police Station : Rohini Under Sections : 364/365/201/120B/34 IPC Date of committal to Sessions Court : 05.06.2009 Date on which judgment was reserved: 04.09.2014 Date on which Judgment pronounced : 15.09.2014 JUDGMENT
The facts and circumstances giving rise to the present case are as under:
(i) That in the year 2003, Gurcharan Singh (now expired) was residing alongwith his family on ground floor of H. No. C4/91, Sector6, State V/s Devender Kumar Sharma etc. ("Acquitted") Page 1 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 Rohini, Delhi belonging to Sh. Avtar Singh (PW24) and Sh. Avtar Singh alongwith his family was residing on first floor of the said house.
(ii) That the aforesaid Gurcharan Singh (now expired) was working as driver of Sh. Avtar Singh (PW24) on Indica Car bearing No. DL8CG6055 which was registered in the name of Smt. Sukhwinder Kaur (PW25) in the year 2003.
(iii) That on 12.10.2003 at about 11/11.15 am, accused Devender Kumar Sharma visited the house of Jarnail Singh (PW4) situated at Sector6, Rohini, Delhi and asked for Indica Car on which he called Gurcharan Singh and arranged Indica Car on hire for Aligarh and accused Devender Kumar Sharma alongwith said Gurcharan Singh left in the said Indica Car.
(iv) That on 12.10.2003 at about 11:30 am, said Gurcharan Singh (since expired) had left the house alongwith aforesaid Indica Car No. DL8CG6055 while telling his wife namely Ms. Surender Kaur (PW6) that he would come within few minutes and she should get his food ready but he did not return back at all.
(v) That when said Gurcharan Singh (since expired) did not return back alongwith aforesaid Indica Car, his family members including his wife i.e. Ms. Surender Kaur (PW6), Hardeep Singh (PW2) besides his employer i.e. Sh. Avtar Singh (PW24) made various efforts to search him but could not succeed.
(vi) That on 13.10.2003, Sh. Hardeep Singh (PW2) went to PS Rohini State V/s Devender Kumar Sharma etc. ("Acquitted") Page 2 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 and lodged missing report of said Gurcharan Singh (since expired) vide DD No. 16A (Ex.PW2/A).
(vii) That on receipt of copy of DD No. 16A (Ex.PW2/A) on 13.10.2003, SI Krishan Lal (PW20) got issued Hue and Cry notice of said Gurcharan Singh (since expired) and information regarding his missing was also sent to All India Missing Persons Squad and WT message was also flashed all over India.
(viii) That on 17.11.2003, complainant namely Sh. Avtar Singh (PW24) went to PS Rohini and gave his statement Ex.PW20/A recorded by SI Krishan Lal (PW20) who, in turn made his endorsement (Ex.PW20/B) and handed over the same to HC Ranbir Singh (PW1) who was working as Duty officer at that time.
(ix) That on the basis of said statement (Ex.PW20/A) and rukka (Ex.PW20/B), HC Ranbir Singh (PW1) recorded FIR in question U/s 365 IPC (Ex.PW1/A). The investigation was entrusted to SI Rajesh Kumar (PW7).
(x) That during the course of investigation, SI Rajesh Kumar (PW7) recorded statements of witnesses namely Jarnail Singh (PW4), Hardeep Singh (PW2), Ms. Surender Kaur (PW6) and Ms. Sukhvinder Kaur (PW25). SI Rajesh Kumar (PW7) also made efforts to trace the victim and aforesaid Indica car No. DL8CG6055 but could not succeed.
(xi) That on 23.10.2003, ASI Prem Prakash (PW19) was working as Duty officer in PS City Palwal, District Faridabad and he had State V/s Devender Kumar Sharma etc. ("Acquitted") Page 3 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 recorded FIR no. 1274/03 (Ex.PW19/A) at PS City Palwal on the complaint of one Suresh Chand Gupta S/o Sh. Narayan Das regarding kidnapping of his driver Dharmender alongwith his vehicle i.e. TATA Sumo no. HR16C3103 which was hired by a passenger on 21.03.2003 but did not return back upto 23.10.2003.
(xii) That on 10.08.2004, ASI Ram Babu (PW3) alongwith SI Ram Phool and HC Hazari Lal of PS City Palwal had joined the investigation in case FIR No. 1274/03, U/s 302/201/363/365 IPC with PS City Palwal. On that day, accused Devender was in custody of Rajasthan Police and he was formally arrested by SI Ram Phool in case FIR No. 1274/03, with PS City Palwal wherein he made disclosure statement (Ex.PW26/A) before PW SI Ram Phool, ASI Ram Babu (PW3) and HC Hazari Lal, concerning his involvement in the present case.
(xiii) That on 08.09.04, ASI Chet Ram (PW14) had joined investigation alongwith PWs SI Ram Phool and HC Mangal Singh (since expired ) in case FIR no. 1274/03 u/s 302/201/363/365 IPC with PS City Palwal. On that day, accused Udaivir was in custody in said case and he made disclosure statement (Ex.PW14/A) before PW SI Ram Phool, PW14 and HC Mangal Since (since expired) concerning his involvement in this case.
(xiv) That on 31.03.05, Sh. Avtar Singh (PW24) alongwith Hardeep Singh (PW2) visited PS Rohini where they met (retired) ASI Sherpal (PW26) and informed him about arrest of accused Devender Kumar State V/s Devender Kumar Sharma etc. ("Acquitted") Page 4 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 Sharma and his associates by police officials of PS City Palwal, Faridabad (Haryana).
(xv) That at that time, Avtar Singh (PW24) and Hardeep Singh (PW2) had also informed (retired) ASI Sherpal (PW26) that accused Devender Kumar Sharma had made disclosure statement before police of PS City Palwal wherein he had admitted his guilt of having taken Indica Car on rent from Rohini, Delhi and thereafter, committing murder of Sardar driver of said car.
(xvi) That (retired) ASI Sherpal (PW26) recorded statement of Hardeep Singh (PW2) and Avtar Singh (PW24) collected copy of FIR No. 1274/03 of PS City Palwal (Ex.PW9/A), disclosure statement (Ex.PW26/A) made by accused Devender Kumar Sharma in said FIR and disclosure statement (Ex.PW14/A) of accused Udaivir from P.S. City Palwal.
(xvii) That (retired) ASI Sher Pal (PW26) also moved an application for issuance of production warrants of accused Devender Kumar Sharma as well as of accused Udaiveer from concerned Court at Tis Hazari.
(xviii) That on 28.05.05, accused Udaiveer was produced before concerned Court in Tis Hazari and (retired) ASI Sher Pal (PW26) interrogated him and then arrested him in the present case. Accused Udaiveer made disclosure statement (Ex.PW11/A) before him wherein he admitted his guilt involved in present case. The accused Udaiveer had also disclosed the name of accused Devender Kumar State V/s Devender Kumar Sharma etc. ("Acquitted") Page 5 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 Sharma in the commission of offence involved in this case and also disclosed that the dead body of Sardar driver of Indica car no. DL8CG6055 had been disposed of at Khazra Nahar after taking out his clothes and his driving license with photostat papers which were kept in a plastic envelope, were dugged at the med of Bamba at Uttra Gaon and the said Indica car was sold by accused Devender Kumar Sharma to one Ravinder @ Pappu.
(xix) That on 30.05.2005, (retired) ASI Sher Pal (PW26) alongwith accused Udaiveer had gone to PS Barla at Village Tias, where Ct. Raj Pal (PW22) of PS Barla also joined them and all of them reached at Village Dilal Pur, PS Uttra, Distt. Aligarh, U.P. One public person namely Swaraj Singh (PW9) also joined them in the investigation. Accused Udaiveer led them to Guava garden situated outside Village Uttra, Kachi Patri and pointed out towards med of Bamba in front of said garden.
(xx) That after digging out the said place near med of Bamba, one plastic envelope of green colour was taken out which was found containing driving license no. C08072002301728 in the name of Gurcharan Singh S/o Amrik Singh, H. No. 91, Pocket4, Sector6, Rohini, Delhi on which the photograph of Sardar Gurcharan Singh was also there besides one photostat copy of Ration Card. (Retired ASI Sher Pal (PW26) sealed the aforesaid envelope with the seal of SKS and seized the same vide seizure memo (Ex.PW9/A). (xxi) That accused Udairveer also led (retired) ASI Sher Pal (PW26), State V/s Devender Kumar Sharma etc. ("Acquitted") Page 6 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 Ct. Raj Pal of PS Barla and Swaraj Singh (PW9) to a nearby place in front of aforesaid garden and pointed out towards med of the nali situated by the side of field of Choudhary Ram Swaroop. After digging out the said place, one plastic panni envelope of white colour was taken out which was found containing election Icard, Driving License and PAN card of one Dharmender R/o Palwal, Faridabad. (Retired) ASI Sher Pal prepared pullanda of plastic panni envelope of white colour containing the aforesaid articles, sealed the same with the seal of SKS and seized the same vide seizure memo (Ex.PW9/C).
(xxii) That Ms. Sunita Devi w/o Sh. Swaraj Singh (PW10) also met (retired) ASI Sher Pal (PW26) and produced two letters by claiming that said two letters were given by accused to her in the presence of Omvir Singh (PW16). ASI Sher Pal seized both the said letters vide memo (Ex.PW10/A) prepared by him in this regard.
(xxiii) That 31.05.2005, accused Udaiveer pointed out towards Khazra Nahar falling in the area of PS Dholna, Distt. Itawa, U.P., where dead body of driver of Indica car was thrown after committing his murder. (Retired) ASI Sher Pal (PW26) prepared pointing out memo (Ex.PW26/B) in this regard.
(xxiv) That on 10.06.2005, accused Devender Kumar Sharma was produced in custody before concerned court at Tis Hazari on the basis of his production warrant and after taking permission from court, (retired) ASI Sher Pal (PW26) interrogated him in the State V/s Devender Kumar Sharma etc. ("Acquitted") Page 7 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 presence of Ct. Jogender Singh (PW12) and formally arrested him in this case vide arrest memo (Ex.PW12/B). Accused Devender Kumar Sharma also made disclosure statement (Ex.PW12/A) before him at that time.
(xxv) That on 11.06.2005, accused Devender Kumar Sharma led police party headed by (retired) ASI Sher Pal (PW26), HC Jai Kumar (PW5) and PW8 HC Sunil Kumar to the aforesaid place situated in front of Guava garden outside Village Uttra, Kachi Patri and pointed out the place of murder vide pointing out memo (Ex. PW5/A) prepared in this regard.
(xxvi) That accused Devender Kumar Sharma refused to participate in judicial TIP.
(xxvii) That accused Devender Kumar Sharma also led police party headed by (retired) ASI Sher Pal (PW26), HC Jai Kumar (PW5) and HC Sunil Kumar (PW8) to Khazra Nahar, PS Dholna, Distt. Itawa, U.P. and pointed out the place where dead body was thrown and vide pointing out memo (Ex. PW5/B) was prepared in this regard.
(xxviii) That Sh. Bhagish Upadhyay (PW15) and Sh. Dharmender Kumar Chaturvedi (PW17) also met (retired) ASI Sher Pal (PW26) and confirmed that Indica car no. DL8CG6055 was sold by accused Devender Kumar Sharma to Ravinder Kumar.
(xxix) That on 12.06.2005, the accused Devender led (retired) ASI Sher State V/s Devender Kumar Sharma etc. ("Acquitted") Page 8 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 Pal (PW26) and HC Pawan Kumar (PW11) to the place in front of house no. C4/91, Sector6, Rohini, Delhi and pointed out the said place where from he had hired Indica car bearing No. DL8CG6055 on 12.10.2003 and pointing out memo (Ex. PW11/C) was prepared in this regard.
(xxx) That Sh. Jarnail Singh (PW4) had also identified accused Devender Kumar to be the same person, who had hired Indica car no. DL8CG6055 on 12.10.2003 and had taken driver Gurcharan Singh with the said car to Aligarh, U.P. (xxxi) That on 09.07.2005, (retired) ASI Sher Pal (PW26) visited PS Hari Parbat, Agra and collected copy of FIR No. 14/05, U/s 411/420/467/468/471/120B IPC and u/s 41/102 Cr.P.C. and relevant documents {Ex. PX (colly)}.
(xxxii) That (retired) ASI Sher Pal (PW26) also visited RTO office Itawa, U.P. and collected verification report (Ex.PW26/G) in respect of copy of driving license no. 75008 (Ex. PW26/F).
(xxxiii) That on 13.07.2005, ASI Sher Pal (PW26) also visited the office of Food & Supply officer, Raja Pur, Sector9, Rohini, Delhi and collected verification report (Ex.PW26/H) in respect of ration card no. 853530. According to said report, the said Ration card was issued in the name of deceased Gurcharan Singh, R/o C4/91, Sector6, Rohini, Delhi.
(xxxiv) That ASI Sher Pal (PW26) also visited the office of MLO Ashok Vihar, Delhi and collected verification report (Ex.PW26/J) in State V/s Devender Kumar Sharma etc. ("Acquitted") Page 9 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 respect of driving license no. C08072002301728. According to said report, the said driving license was issued in the name of deceased Gurcharan Singh, S/o Sh. Amrik Singh.
After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge in respect of offences u/s 364/365/120B & U/s 201 read with Section 120B & 34 IPC against both the accused vide order dated 17.03.10 to which accused pleaded not guilty and claimed trial.
In support of its case, prosecution examined 26 namely PW1 HC Ranbir Singh, PW2 Sh. Hardeep Singh, PW3 ASI Rambabu, PW4 Sh. Jarnail Singh, PW5 HC Jai Kumar, PW6 Ms. Surender Kaur, PW7 SI Rajesh Kumar, PW8 HC Sunil Kumar, PW9 Sh. Swaraj Singh, PW10 Smt. Sunita, PW11 HC Pawan Kumar, PW12 Ct. Jogender Singh, PW13 Sh. Brijpal, PW14 ASI Chet Ram, PW15 Sh. Bagish Upadhayay, PW16 Sh. Ombir, PW17 Sh. Dharmender Kumar, PW18 SI Naresh Kumar, PW19 Retd. ASI Prem Parkash, PW20 SI Krishan Lal, PW21 Sh. N.K Pachauri, PW22 Ct. Rajpal Singh, PW23 Sh. R.C Verma, PW24 Sh. Avtar Singh, PW25 Smt. Sukhvinder Kaur and PW26 Retd. SI Sher Pal.
Thereafter, statements U/s 313 Cr.P.C. of both the accused persons were recorded during which all the incriminating evidence was put to State V/s Devender Kumar Sharma etc. ("Acquitted") Page 10 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 them. However, they denied the same and claimed that they are innocent and has been falsely implicated in this case. Their defence is of general denial. However, they did not opt to lead any evidence towards defence.
It may be noted here that an application U/s 216(3) Cr.PC for framing of additional charge in respect of offence U/s 302/34 IPC was moved by prosecution before the Court. The said application was allowed vide order dated 04.09.14 and consequently, amended charge in respect of offences U/s 364/365/120B IPC as also U/s 302/201/34 IPC was framed against both the accused persons on 04.09.14 to which both the accused pleaded not guilty and claimed trial.
In view of the provision contained in Section 217 Cr.PC, both the sides were also called upon to recall and /or summon any witness after amendment of the charges but both the sides opted not to recall and/or summon any witness. Their statements were also recorded separately in this regard by the Court.
I have heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld Amicus Curiae Sh Hakikat Yadav Adv. on behalf of both the accused persons. I have also gone through the material available on record.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: State V/s Devender Kumar Sharma etc. ("Acquitted") Page 11 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 PUBLIC WITNESSES PW2 Sh. Hardeep Singh: He is the cousin brother of deceased Gurcharan Singh. He deposed that on 12.10.03 at about 11.30 A.M, Gurcharan Singh had left his house with Indica car no. DL8CG6055 after having word with his wife Smt. Surender Kaur(PW6) that he would come soon and she should get the food ready but he did not return home on that day. He alongwith other family members of Gurcharan Singh made efforts to search for him but could not succeed. Accordingly, he went to PS Rohini on 13.10.13 and lodged missing report of Gurcharan Singh vide DD no. 16A(Ex PW2/A).
He further deposed that he alongwith Avtar Singh (PW24) and police officials including ASI Sher Pal(PW26) of PS Rohini were going towards Aligarh via Palwal when ASI Sher Pal showed photograph of Gurcharan Singh and other documents to the local police of PS City Palwal when it was revealed that case FIR no. 1274/03 U/s 365 IPC regarding kidnapping of driver of taxi had also been registered at PS City Palwal and accused Devender Kumar Sharma @ Devender alongwith his associates had been arrested by police. Accordingly, ASI Sher Pal collected relevant documents from PS City Palwal and they all came back to Delhi.
He has not been cross examined on behalf of accused despite grant of opportunity.
PW4 Sh. Jarnail Singh: This witness deposed that on 12.10.o3 at about 11.00/11.15 AM when he was sitting outside his house in Sector no. 6 State V/s Devender Kumar Sharma etc. ("Acquitted") Page 12 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 Rohini, accused Devender had come to him and asked for an Indica car. He called one person Gurcharan Singh and arranged Indica car for said accused on hire basis for Aligarh. Accordingly, said accused and Gurcharan Singh left in the Indica car. However, he could not disclose the registration number of said Indica car.
During cross examination on behalf of accused Devender, he deposed that Gurcharan Singh was having his private car. He denied the suggestion that accused Devender did not visit him for providing any taxi on hire or that accused did not hire any taxi of Gurcharan Singh as claimed during chief examination.
PW6 Ms. Surender Kaur: She is the wife of deceased Gurcharan Singh. She deposed that it was summer season when her husband had left at about 11.30 A.M alongwith Indica car from his house by telling her that he would return within a short time and she should get the food ready by that time. However, he did not return back on which her relative Hardeep Singh(PW2) lodged missing complaint of her husband. She has not not been cross examined despite grant of opportunity.
PW9 Sh. Swaraj Singh: According to the case of prosecution, this witness had joined investigation of the present case on 30.05.05 when accused Udaiveer had led the police officials of PS Rohini as also police officials of local PS i.e PS Barla UP to a jungle near village Uttra(UP).
He deposed that accused Udaiveer led them to a place situated in front of orchid of Gauva near tree of Jamun and got recovered one polythene State V/s Devender Kumar Sharma etc. ("Acquitted") Page 13 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 containing DL of one Sardarji bearing his photo and copy of Ration Card. Said two documents were seized vide memo Ex PW9/A. He further deposed that accused Udaiveer had also pointed out the place of incident vide pointing out memo Ex PW9/B and also got recovered Election I Card, DL and PAN Card from another nearby place on the same day. Said documents were seized vide memo Ex PW9/C. He further deposed that he had again joined investigation of the case with the police on 10.06.05 when accused Devender Kumar Sharma had pointed out the place where they had committed murder of driver of Tata Sumo as also the place where the dead body was thrown i.e Hazara Nahar(Canal) vide pointing out memos Ex PW5/A and Ex PW5/B. Pointing out memo Ex PW9/D was also prepared at the instance of accused Udaiveer in this regard.
During cross examination on behalf of accused, he admitted that he was involved in 34 criminal cases. Police had met him at about 3.00/4.00 P.M and they had gone to the jungle in a car. Many villagers had collected there when police came. He denied the suggestions that he was lodged in PS Barla on 30.05.05 when police officials of Delhi police had reached PS Barla as also that he had been taken out from lock up and was made witness to the aforesaid memos at the instance of Delhi Police. He also denied the suggestions that accused Udaiveer had lodged FIR against him at PS Barla or that one Yatinder @ Natoo, who was brother of accused Udaiveer, had also lodged an FIR against him for misbehaving with the wife of complainant and he had been deposing falsely against accused on account of said enmity. State V/s Devender Kumar Sharma etc. ("Acquitted") Page 14 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 During cross examination, this witness deposed that polythene containing DL and copy of Ration Card was of light cream colour and said polythene had been kept by IO with him.
He further deposed during cross examination that on 10.06.05, police met him at about 1.00/2.00 PM and 2030 villagers had also gathered there at that time but police did not record statement of any other villager in his presence. He denied the suggestion that accused Devender Kumar Sharma was lodged in Tihar Jail on 10.06.05 and was never brought to his village on that day or that he did not join investigation of the case or that accused did not point out either the place of incident or the place of throwing of dead body and he had signed all the documents in PS Barla.
PW10 Smt. Sunita: According to the case of prosecution, this witness had produced two letters handed over by accused Devender Kumar Sharma to her, before the police. However, she has not supported the case of prosecution on the said aspect.
She deposed that in the year 2004, one Sheoraj S/o Sh Thakur Dass managed to get involve her husband in some case in connivance of police and police officials of PS Rohini obtained her signatures on some papers on the assurance that her husband would be released.
This witness was also cross examined at length by Ld Additional PP on behalf of State during which all the relevant suggestions on the lines of prosecution story were put to her which she denied. She denied to have made any statement mark A to the police. She also denied that accused Devender Kumar had handed over two letters containing demand for payment of Rs. State V/s Devender Kumar Sharma etc. ("Acquitted") Page 15 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 50,000/ to get her husband released from Delhi. Although, she admitted her signature on seizure memo Ex PW10/A regarding seizure of siad two letters but claimed that her signatures were obtained by police on blank papers. This witness has not been cross examined on behalf of accused.
PW15 Sh. Bagish Upadhayay: As per the case of prosecution, this witness was running PCO during the relevant period and accused Devender Kumar Sharma was introduced to him by one Ravinder Kumar who was running Laxmi Transport Company.
However, this witness did not identify accused Devender Kumar definitely to be the same person who had visited his shop as he deposed that he was not confirmed whether said accused is the same person or not. He deposed that on one day, one doctor had come to his shop in Indica car and sold Indica car to Ravinder for a sum of Rs. 45,000/ in his presence as also in the presence of one Dharamender(PW17) but he was not sure if accused Devender Kumar was the same doctor who had visited his shop on that day. He also volunteered that the name of doctor was disclosed as Devender to him by the police.
During cross examination on behalf of accused Devender, he deposed that he did not remember the registration number of said Indica car. He again reiterated that he was not sure if the doctor who had visited his PCO shop, was accused Devender or not. He also could not disclose the colour of Indica car.
PW16 Sh. Ombir: This witness is the brother of Smt. State V/s Devender Kumar Sharma etc. ("Acquitted") Page 16 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 Sunita(PW10). He has also not supported the case of prosecution. He deposed that in the year 2004/2005, his brother in law Swaraj Singh(PW9) was lodged in Bhondsi Jail in murder case. One SI of PS Rohini of Delhi Police went to PS Barla, UP. He had accompanied his sister Sunita to PS Barla as per direction of said SI where said SI assured to help them in release of his brother in law from the said murder case.
He further deposed that he alongwith his sister Sunita had also visited PS Rohini in Delhi where same SI had obtained his signatures on blank paper on the pretext that his brother in law was not wanted in any case. His sister had not handed over any letter to said SI.
This witness was also cross examined by Ld Additional PP but nothing material could come on record during said cross examination.
During cross examination on behalf of accused Devender, he denied to have made any statement to the police.
PW17 Sh. Dharmender Kumar Chaturvedi: This witness deposed that in the year 2003, one Devender Sharma had sold Tata Indica car to one Ravinder Kumar Yadav R/o Village Harband Pur, PS Rajour, District Eta, UP for a sum of Rs. 45,000/ at the PCO of Bagish Upadhayaya(PW15) in his presence. However, he cannot identify the person who had sold the said car to Ravinder Kumar as he had seen him only for a moment.
During cross examination by Ld Additional PP, this witness deposed that he cannot say if accused Davender Kumar was the same person who had sold the car to Ravinder.
During cross examination on behalf of accused Devender, he State V/s Devender Kumar Sharma etc. ("Acquitted") Page 17 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 denied the suggestion that no deal of Indica car took place in his presence.
PW24 Sh. Avtar Singh: He is the complainant in this case. As per the case of prosecution, deceased Gurcharan Singh was residing alongwith his family on ground floor of the house of this witness situated in Sector 6, Rohini, Delhi. He deposed that he used to reside with his family on the first floor of the same house and Gurcharan Singh used to drive his Indica car no. DL8CG 6055. On 12.10.03, at about 11.30 A.M, Gurcharan Singh had left the house with said car with instructions to his wife that he would come in couple of minutes and instructed her to cook food for him but did not return back.
He further deposed that on 17.11.03, FIR was registered at PS Rohini and they continued searching for Gurcharan Singh.
He further deposed that in the year 2005, Hardeep Singh who was relative of Gurcharan Singh, told him that he had some information that accused had been arrested by UP police in Palwal and Aligarh on which he alongwith said Hardeep Singh and ASI Sher Pal of PS Rohini went to Aligarh and Palwal. At Palwal, it was confirmed that one Devender had been arrested in similar case. He had also identified Gurcharan Singh from his photograph Ex PW24/A and from Hue and Cry notice mark PW24/A1.
During cross examination on behalf of accused, he deposed that he had gone to Palwal on 31.3.05 and Gurcharan Singh did not state anything to his wife in his presence.
PW25 Ms. Sukhvinder Kaur: This witness is the wife of complainant Avtar Singh and is the registered owner of Indica car no. State V/s Devender Kumar Sharma etc. ("Acquitted") Page 18 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 DL8CG6055. She deposed that said car was given to driver Gurcharan Singh who alongwith his family was residing on the ground floor of the same house.
On 12.10.03 at 11.30 A.M, Gurcharan Singh had left the house with said Indica car but did not return back and after waiting for considerable period, her husband had lodged report regarding kidnapping of Gurcharan Singh. Neither Gurcharan Singh returned back nor any clue could be found about the said car.
During cross examination on behalf of accused Devender, she testified that police did not record her statement and she had not seen the person who had hired her Indica car. She came to know about the said facts only through wife of deceased.
POLICE WITNESSES PW1 HC Ranbir Singh: He is the Duty Officer who has proved factum regarding registration of FIR No. 871/03, U/s 364/365/201/120B/34 IPC at PS Rohini on 17.11.2003. He proved copy of said FIR as Ex.PW1/A and his endorsement on the rukka as Ex.PW1/B regarding registration of FIR. He has not been cross examined on behalf of accused persons despite grant of opportunity.
PW3 ASI Ram Babu: He is the police official of Haryana Police. He deposed that on 10.08.2004, he joined investigation with SI Ramphool and HC Hazari Lal in FIR No. 1274/03 U/s 302/201/363/365 IPC with PS City Palwal. On that day, accused Devender Kumar who was in the State V/s Devender Kumar Sharma etc. ("Acquitted") Page 19 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 custody of Rajasthan Police, had been formally arrested in case FIR No. 1274/03 who had also made disclosure statement with regard to several cases including the present case. He has not been cross examined on behalf of accused persons despite grant of opportunity.
PW5 HC Jai Kumar: This witness joined investigation of this case with IO ASI Sher Pal(26) on 11.06.05. He deposed that accused Devender Kumar Sharma led them to village Uttra, Eta, UP where he pointed out the place situated near Guava Garden where they had committed murder of driver of Indica car No. DL8CG 6055 and also claimed to have thrown out his dead body in Hazara Canal.
He further deposed that they had also made efforts to search for Ravinder to whom said Indica car was disclosed to have been sold by accused Devender Kumar Sharma but no clue could be found by him.
During cross examination, he deposed that no recovery was effected from any place at village Uttra on that day. No pubilc person was present at Hazara nehar.
PW7 SI Rajesh Kumar: He is the formal witness who remained IO of this case for short period. He deposed that on 17.11.2003, investigation of this case was entrusted to him and investigation remained with him till the end of January, 2004 when he was transferred from P.S. Rohini. During said period, he had recorded statements of witnesses namely Jarnail Singh, Hardeep, Surender Kaur and Sukhvinder Kaur. He made efforts to trace out the victim and car bearing registration no. DL8CG6055 but same were not State V/s Devender Kumar Sharma etc. ("Acquitted") Page 20 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 traced out. He got WT message and hue and cry notice issued in this regard. He has not been cross examined on behalf of accused persons despite grant of opportunity.
PW8 HC Sunil Kumar: He is also a formal witness who joined investigation in this case on 10.06.2005. He deposed that accused Devender Kumar had led the police to Aligarh, U.P. where he had identified the place of incident vide memo Ex.PW5/A. He further deposed that said accused had also pointed out the place where dead body was thrown vide memo Ex.PW5/B. During cross examination on behalf of accused, said witness denied the suggestion that they had not visited Aligarh on that day and he had signed the documents in PS Rohini itself at the instance of IO.
PW11 HC Pawan Kumar: He joined investigation of this case on 28.05.2005 and again on 12.06.2005 with IO ASI Sher Pal (PW26). He deposed that on 28.05.2005, accused Udaiveer was arrested vide memo Ex.PW11/B in this case and said accused had made disclosure statement Ex.PW11/A before IO. He further deposed that on 12.06.2005, accused Devender Kumar had led the police to C4/91, Sector6, Rohini and pointed out the place wherefrom he had hired Indica car no. DL8CG6055 for Aligarh in the year 2003 and had committed the murder of Sardar driver of said Indica Car, vide memo Ex.PW11/C. During cross examination, he deposed that accused Devender Kumar alongwith police had reached at C4/91 supra at about 12 noon in TSR where some public persons had gathered and IO had also recorded statement State V/s Devender Kumar Sharma etc. ("Acquitted") Page 21 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 of one Sardar.
PW12 Ct. Jogender Singh: He joined investigation of this case on 10.06.2005. He deposed that on said date, accused Devender Kumar was arrested by ASI Sher Pal vide memo Ex.PW12/B in the present case. He further deposed that accused had also made disclosure statement Ex.PW12/A and after grant of his two days police custody remand, said accused had taken the police to Hazara Nahar, Aligarh, U.P. where he had pointed out the place of throwing dead body of Sardar driver of Indica car bearing no. DL8CG6055. Thereafter, they had returned back to Delhi.
During cross examination, he deposed that it had taken about 3060 minutes in recording disclosure statement of accused Devender Kumar on 10.06.2005 at Tis Hazari Court Complex. He denied the suggestion that he did not join investigation of this case.
PW14 ASI Chet Ram: He is the police official of Haryana Police. He deposed that on 08.09.2004, he joined investigation of this case with SI Ramphool and HC Mangal Singh (since expired). He further deposed that on that day, accused Udaiveer was in the custody in case FIR no. 1274/03 U/s 302/201/363/365 IPC with PS City Palwal. He further deposed that SI Ramphool made interrogation from said accused Udaiveer who had also made disclosure statement Ex.PW14/A in his presence.
During cross examination, he denied the suggestion that no such disclosure statement was made by the accused or that thumb impression of said accused was obtained on blank papers.
State V/s Devender Kumar Sharma etc. ("Acquitted") Page 22 of 43
FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014
PW18 SI Naresh Kumar: He is also a formal witness who
remained IO of this case for few months during which no concrete investigation was done in the present case. Said witness has not been cross examined by accused persons despite grant of opportunity.
PW19 ASI Prem Prakash: He is the police official of Haryana Police who was working as Duty Officer in PS City Palwal, District Faridabad on 23.10.2003 and had recorded FIR No. 1274/03 U/s 302/201/363/365 IPC with PS City Palwal on the complaint of one Suresh Chand Gupta regarding kidnapping of his brother namely Dharmender alongwith TATA Sumo bearing registration no. HR16C3103 hired by a passenger on 21.03.2003. He proved copy of said FIR as Ex.PW19/A. Said witness has not been cross examined by accused persons despite grant of opportunity.
PW20 SI Krishan Lal: This witness was entrusted copy of DD No. 16A dated 13.10.2003 (Ex.PW2/A) regarding missing report of Gurcharan Singh for necessary action. He got issued Hue and Cry notice of Gurcharan Singh and also gave information to All India Missing Persons Squad and also sent WT message throughout India. He deposed that on 17.11.2003, complainant Avtar Singh (PW24) visited PS Rohini and made statement Ex.PW20/A on the basis of which he made his endorsement Ex.PW20/B and got the FIR in question U/s 365 IPC registered regarding kidnapping of Gurcharan Singh. Nothing material came on record during cross examination of this witness.
PW22 Ct. Rajpal Singh: This witness was posted as Constable State V/s Devender Kumar Sharma etc. ("Acquitted") Page 23 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 in PS Barla District Aligarh, UP. He had joined investigation of this case alongwith ASI Sher Pal Singh(PW26) and other police officials on 30.05.2005.
He deposed that accused Udaiveer had led them to the jungle of village Uttra(UP) where he had taken them to Mango Orchid. On the side of said Orchid, there was a nali and from near Jamun tree, accused Udaiveer took out two polythenes from the nali. On checking of one of said polythene by ASI Sher Pal, it was found containing envelope wherein there was one original license and photocopy of ration card and in another polythene, Election I Card was found. Said articles were kept in the same envelope which was put back in the same polythene and after preparing their pullanda, it was sealed with the seal of SPS and then ASI Sher Pal seized the same vide memo Ex PW9/A. During cross examination on behalf of accused Udaiveer, he deposed that they had gone to the said place in private vehicle and arrival entry was made in this regard in PS Barla. The distance between said place and PS Barla was about 5 km and no public person was joined in the investigation at that time. He further deposed that out of said two polythenes, one polythene was of white colour and other was of blue colour.
PW26 Retired SI Sher Pal: He is the IO of this case. He has deposed about the entire investigation carried out by him in this case.
He deposed that on 31.3.05, complainant Sh. Avtar Singh(PW24) alongwith Sh. Hardeep Singh(PW2) had visited PS Rohini and informed him that they had come to know about the arrest of accused Devender Kumar and his associates by police of PS City Palwal, Faridabad, Haryana in some State V/s Devender Kumar Sharma etc. ("Acquitted") Page 24 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 criminal case wherein similar modus operandi was adopted and also that said accused had made a disclosure statement thereby confessing his involvement in the present case. After recording statements of said two persons, he collected copy of FIR no. 1274/03 of PS City Palwal i.e Ex PW19/A as also the copies of disclosure statements Ex PW26/A and Ex PW14/A of accused Devender Kumar and Udaiveer.
He further deposed that accused Udaiveer was arrested by him on 28.05.05 vide memo Ex PW12/B and said accused made disclosure statement Ex PW11/A wherein he disclosed the name of co accused Devender Kumar Sharma and Raju. He also deposed that accused Udaiveer got recovered plastic envelope containing driving license and photostate copy of ration card at the mud of Bamba at village Uttra on 30.05.05 in the presence of PW Ct. Raj Pal(PW22) and public witness Sh. Swaraj Singh (PW9). Accordingly, he converted those articles into pullanda and after sealing it with the seal of SKS, he seized them vide memo Ex PW19/A. He further deposed that accused Udaiveer had also got recovered another plastic envelope of white colour containing Election I Card, driving license and PAN Card of Dharmender resident of Palma from the mud of nali by the side of field of Choudhary Ram Swaroop Thakur which were also converted into pullanda by him and sealed with the seal of SKS.
He further deposed that Smt Sunita Devi W/o Sh. Swaraj Singh(PW9) had met him and also produced two letters mark A & B allegedly given to her by accused Devender Kumar Sharma which were seized by him vide memo Ex PW10/A. He also deposed that accused Udaiveer had State V/s Devender Kumar Sharma etc. ("Acquitted") Page 25 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 pointed out the place of throwing of dead body i.e at Khazra Nehar falling in the area of Dholna District Ettah, UP on 31.05.05 vide pointing out memo Ex PW26/B as also the place of murder and place of recovery vide memos Ex PW9/D and PW9/B respectively.
He further deposed that on 10.06.05, accused Devender Kumar Sharma was arrested vide memo Ex PW12/B and he had made disclosure statement Ex PW12/A. Said accused also refused to join judicial TIP.
He further deposed that on 11.06.05, accused Devender led them to village Uttra in front of Guava Garden and pointed out the place of murder vide memo Ex PW5/A. Said accused also pointed out the place of throwing of dead body vide memo Ex PW5/B. He further deposed that PWs Bhagish Upadhyay and Dharmender had also confirmed during investigation that Indica car no. DL8CG 6055 was soled by accused Devender to Ravinder Kumar. Accused Devender had also pointed out the place wherefrom he had hired Indica car No. DL8CG 6055 on 12.10.03 vide memo Ex PW11/C and publilc witness namely Sh Jarnail Singh had also identified the said accused to be the same person who had hired the aforesaid Indica car on 12.10.03.
He also deposed about collecting the relevant documents of case FIR no. 14/05 on 09.07.05 as also collecting relevant records from the office of RTO, Etta (UP) and from the office of FSO, Rajapur Sector9, Rohini, Delhi and from the office of MLO, Ashok Vihar during the course of investigation. He proved the relevant proceedings regarding refusal to join TIP by accused Devender as Ex PW26/L. State V/s Devender Kumar Sharma etc. ("Acquitted") Page 26 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 During cross examination on behalf of accused persons, he deposed that after medical examination of accused Devender, he was put up in lock up of PS Shalimar Bagh on 02.06.05 but when he was confronted with judicial record, MLC of accused Devender was not found available there.
This witness admitted during cross examination that no arrival entry was made at PS Barla and local police was also not joined by him on 11.06.05. Although, he claimed to have prepared site plan of Hazara Nahar(Canal) where dead body of deceased Gurcharan Singh is alleged to have been thrown but he admitted that no such site plan has been placed on judicial record. He did not enquire from the wife of deceased about the articles which deceased had carried with him at the time of leaving the house. He did not personally meet IO of case FIR no. 1274/03 of PS City Palwal and he had obtained the copies of relevant documents of the said case from concerned MHC(M).
He deposed that recovery of documents was effected from below Jamun tree which was situated in the field of Choudhary Ram Swaroop Thakur. He volunteered that recovery was effected from side wall of the nali in the said field and side wall of mud. However, he did not join Choudhary Ram Swaroop Thakur as a witness nor he called him at the time of recovery proceedings. He did not prepare any site plan of place of recovery of those documents.
OFFICIAL WITNESSES PW13 Sh. Brijpal: This witness had produced relevant record State V/s Devender Kumar Sharma etc. ("Acquitted") Page 27 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 regarding Driving Licence No. C08072002301728 issued in the name of Gurcharan Singh S/o Amrik Singh by Licencing Authority Wazirpur, Delhi. He proved computerized copy of driving licence details of said D/L as Ex.PW13/X and forwarding letter issued by concerned MLO as Ex.PW13/Y. He has not been cross examined on behalf of accused persons despite grant of opportunity.
PW21 Sh. N.K. Pachauri: This witness had produced relevant record regarding Driving Licence No. 75008 issued in the name of Shesh Kumar S/o Ramesh Singh by ARTO Etah, U.P. He proved copy of relevant record as Ex.PW21/A. He has not been cross examined on behalf of accused persons despite grant of opportunity.
PW23 Sh. R.C. Verma: This witness had produced relevant record regarding ration card in the name of Gurcharan Singh S/o Sh. Amri Singh vide registration no. 4414. He proved copy of said ration card as Ex.PW23/A and copy of extract of master register for consumer cards maintained in the office reflecting entry of issuance of ration card as Ex.PW23/B. He has not been cross examined on behalf of accused persons despite grant of opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED While opening the arguments, Ld Additional PP fairly conceded that there is no direct evidence led by prosecution in order to establish its case against the accused persons. However, Ld Additional PP vehemently argued that prosecution has been able to establish the guilt against accused persons on State V/s Devender Kumar Sharma etc. ("Acquitted") Page 28 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 the basis of circumstantial evidence as produced during trial.
On the other hand, it was argued on behalf of accused persons that prosecution has failed to establish its case against them beyond reasonable doubt. Ld Amicus Curiae of both the accused contended that prosecution has not been able to complete the necessary chain of evidence which could un erringingly point out towards the guilt of accused persons beyond shadow of doubt.
The circumstantial evidence as pointed out by Ld Additional PP can be summarized as under: (1) The deceased Gurcharan Singh was lastly seen in the company of accused Devender at about 11.00/11.15 A.M on 12.10.03 by PW4 Jarnail Singh;
(2) Disclosure statements Ex PW26/A of accused Devender Kumar Sharma and Ex PW14/A of accused Udaiveer made by them in case FIR no. 1274/03 with PS City Palwal wherein they confessed their involvement in the commission of murder of Gurcharan in this case;
(3) The recovery of plastic envelope containing driving license and photocopy of ration card Ex P1(colly.) at the instance of accused Udaiveer; (4) Disclosure statement Ex PW12/A of accused Devender Kumar Sharma and disclosure statement Ex PW11/A of accused Udaiveer made in this case wherein they have confessed their involvement in the commission of murder of driver Gurcharan Singh;
(4) Refusal of accused Devender Kumar Sharma to join judicial TIP State V/s Devender Kumar Sharma etc. ("Acquitted") Page 29 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 vide proceedings Ex PW26/L;
(5) The pointing out memo of place of throwing of dead body Ex PW26/B, pointing out memo of place of commission of murder and pointing out memo of place of recovery i.e Ex PW6/B and PW6/D prepared at the instance of accused Udaiveer and pointing out memo Ex PW5/A of the place of murder, pointing out memo Ex PW5/B of the place of throwing of dead body in Hazara Canal and pointing out memo Ex PW11/C of the place wherefrom Indica car no. DL8CG 6055 was hired, prepared at the instance of accused Devender Kumar;
(6) Letters mark A and B handed over by accused Devender Kumar to Ms. Sunita Devi(PW10) who in turn, produced the same before IO i.e PW26 ASI Sher Pal Singh which have been seized vide memo Ex PW10/A; and (7) The testimonies of PW15 Bhagish Upadyay and PW17 Dharmender showing that Indica car no. DL8CG 6055 was sold by accused Devender Kumar Sharma to one Ravinder Kumar.
To counter the aforesaid submissions made by Ld Additional PP, Ld Amicus Curaie of both the accused persons contended that disclosure statements as relied by prosecution are not admissible in evidence unless and until it leads to discovery of same facts as provided in Section 27 of Indian Evidence Act. He further argued that all the aforesaid disclosure statements did not lead to discovery of any new facts due to which same are not admissible in evidence. He also contended that pointing out memos as referred to by Ld Additional PP, are also not admissible in evidence as the State V/s Devender Kumar Sharma etc. ("Acquitted") Page 30 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 relevant places i.e alleged place of throwing of dead body, alleged place of commission of murder and the alleged place wherefrom Indica car was hired, were already within the knowledge of police.
Ld defence counsel also pointed out that accused persons have already been acquitted in case FIR no. 1274/03 registered at PS City Palwal wherein both the accused are alleged to have made disclosure statements pertaining to this case. In this regard, he also referred to the certified copy of judgment dated 12.10.11 delivered by Sh. Rakesh Yadav, Ld Additional Sessions Judge, Palwal(Haryana), certified copy of which has been exhibited as Ex DX in this case. He also pointed out that there are various material contradictions appearing in the testimonies of the prosecution witnesses thereby creating reasonable doubt in its case and thus, accused persons are entitled to benefit of doubt.
First and foremost circumstantial evidence relied by prosecution is the last seen evidence in the form of testimony of PW4 Jarnail Singh. As per the case of prosecution, PW4 had lastly seen deceased Gurcharan Singh in the company of accused Devender Kumar Sharma in the morning of 12.10.03. However, PW4 Jarnail Singh could not disclose the registration number of Indica car which was hired by accused Devender on 12.10.03. It is also important to note that the statement U/s 161 Cr.PC of PW Jarnail Singh is shown to have been recorded by the police for the first time only on 12.06.05 i.e after a considerable delay of 20 months for which no explanation is forth coming from the side of prosecution. The said fact coupled with the relevant State V/s Devender Kumar Sharma etc. ("Acquitted") Page 31 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 part of cross examination of said witness wherein he claimed that deceased Gurcharan Singh was having his private car, persuade this Court to find itself in agreement with the submission made on behalf of accused persons that said witness has been introduced subsequently by the investigating agency in order to fill up the lacuna in its case as there is no reason as to why PW4 Sh Jarnail Singh was not joined during investigation of the case from 12.10.03 till 12.06.05 Moreover, the aforesaid piece of evidence even if believed to be true, is not sufficient to arrive at conclusion that accused persons had committed the murder of Gurcharan Singh. It may be noted that the dead body of deceased Gurcharan Singh has not been recovered in this case. It could not be established by prosecution witnesses that death of Gurcharan Singh has actually taken place like any other fact. It needs no emphasis that it has to be established by the prosecution that death of Gurcharan Singh has actually taken place like any other fact. What to say of recovery of dead body of Gurcharan Singh, not even a piece of mortal remains of Gurcharan Singh was found in this case. In this backdrop, the prosecution cannot be said to have proved the guilt of accused persons. While saying so I am also fortified by the judgment in the matter titled as "K.T Palam Samy Vs. State of Tamilnadu" reported at 2008(1) RCR(Criminal) 870(SC).
The second set of circumstantial evidence relied on record by prosecution is recovery of driving license and copy of ration card Ex P1(colly.) at the instance of accused Udaiveer vide seizure memo Ex PW9/A State V/s Devender Kumar Sharma etc. ("Acquitted") Page 32 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 from the mud of nali situated in the field of Choudhary Ram Swaroop Thakur. However, the recovery of said articles in the manner as claimed by prosecution, is not shown to be free from doubt for several reasons.
Firstly, the prosecution has claimed that Gurcharan Singh had gone missing on 12.10.03 and as per relevant disclosure statements made by accused persons, the murder of Gurcharan Singh had been committed immediately thereafter but his driving license and photocopy of his ration card contained in plastic envelope /polythene are shown to have been recovered from mud of nali situated in the agricultural field on 30.05.05 i.e after a period of 19 months. It has come on record that there was mud and water available near the place of alleged recovery of said two documents. Even otherwise, it is a mater of common knowledge that agricultural field is cultivated and water is also used for the purpose of ploughing the agricultural field. Had it been the case where photocopy of ration card was embedded below agricultural field or even below jamun tree as also claimed by some of the prosecution witnesses, it would have outlived the life of xxnot only of the plastic envelope/polythene but also that of the piece of paper in the form of photocopy of said ration card during the span of 19 months. However, the plastic envelope/polythene as also photocopy of ration card produced during trial, were not shown to be in any such miserable condition.
Secondly, it is highly improbable that accused who, as per the case of prosecution had planned the kidnapping of Gurcharan Singh alongwith his Indica car and to commit his murder and to cause the evidence disappeared State V/s Devender Kumar Sharma etc. ("Acquitted") Page 33 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 by throwing his dead body in canal, would keep driving license and photocopy of ration card of deceased at any such place in order to suffer risk of being implicated in a case of murder so that same may be used against him by the prosecution.
Thirdly, visit of PW26 ASI Sher Pal alongwith PW22 Ct. Raj Pal Singh of PS Barla (UP) alongwith accused Udaiveer to village Uttra on 30.05.05 has also not been established on record in the absence of relevant departure entries being proved during trial.
Fourthly, it is quite strange that the investigating officer namely PW26 ASI Sher Pal did not make any effort to call owner of aforesaid agricultural field namely Choudhary Ram Swaroop Thakur either at the time of recovery proceedings or even subsequently. No plausible explanation has been furnished by the prosecution on this count.
Fifthly, there is contradictions appearing in the testimonies of prosecution witnesses as regard the exact place wherefrom said documents were recovered. PW22 Ct. Raj Pal Singh of PS Barla deposed that said documents were got recovered from nali situated on the side of Mango Orchid. However, PW9 Sh Swaraj Singh and PW 26 ASI Sher Pal Singh have deposed that said documents were recovered near mud of bamba situated near orchid of Guava.
Sixthly, it is again highly improbable that taxi driver would also carry photocopy of his ration card with him while driving taxi to long distance State V/s Devender Kumar Sharma etc. ("Acquitted") Page 34 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 destination like Aligarh carrying passengers. All these facts lead to an inference that recovery of said two articles is shown to have been planted in order to connect the accused with the crime. In this regard, reliance can also be placed upon the judgment in the matter titled as " Ashok Yadav Vs. State of M.P" reported at 1997(1) RCR(Criminal) 346(SC).
The testimony of PW9 Sh Swaraj Singh in whose presence recovery of said two documents are claimed to have been recovered, also does not inspire confidence as he has admitted during cross examination that he was involved in 34 criminal cases. He also admitted the fact that he had already lodged one FIR against accused Udaiveer prior to registration of this case. He also claimed that the colour of polythene containing aforesaid two documents was of light cream colour whereas the colour of said polythene was green when the said polythene was actually produced during trial.
Seventhly, another polythene containing Election I Card, Driving License and PAN Card in the name of Dharmender, which are claimed to be case property in case FIR no. 1274/03 of PS City Palwal, are also shown to have been recovered at the instance of accused Udaiveer simultaneously on 30.05.05 from nearby place in village Uttra. The recovery of said articles at the instance of accused Udaiveer on 30.05.05, does not appeal to reasoning for the reason that accused Udaiveer was already in custody in case FIR no. 1274/03 with PS City Palwal atleast since 08.09.04 as can be seen from the testimony of PW14 ASI Chet Ram of PS Palwal who has testified that accused Udaiveer had made disclosure statement Ex PW14/A in case FIR no. 1274/03 State V/s Devender Kumar Sharma etc. ("Acquitted") Page 35 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 supra on 08.09.04. It is no understandable as to why the police officials of PS City Palwal did not make any effort to recover said documents from the said place immediately on 08.09.04 or thereafter and kept sitting idle in order to allow Delhi Police to recover documents of their case on 30.05.05 i.e after a period of more than 8 months from the disclosure statement Ex PW14/A made by accused Udaiveer, in said other case.
Moreover, even if the case of prosecution is presumed to be correct for the sake of arguments that aforesaid two documents were actually recovered from the alleged place on the alleged date at the instance of accused Udaiveer, it does not amount to discovery of a fact within the meaning of Section 27 of Indian Evidence Act which speaks of " discovery of facts" and not discovery of an object.
The perusal of provision contained in Section 27 of Indian Evidence Act would show that first essential ingredient of said provision is discovery of fact, albeit the relevant fact in consequence of the information received from any accused of an offence; The second essential ingredient is that there is discovery of such facts as stated in the disclosure statement; The third essential ingredient is that at the time of receipt of such information, the accused must be in police custody and the last and important essential ingredient is that only " so much so of the information" as relates distinctively to the facts thereby discovered is admissible and rest of the information has to be excluded. The word, 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. Such type of word has been advisedly used to limit and define the scope of the probable information. The phrase, 'distinctly' relates to the State V/s Devender Kumar Sharma etc. ("Acquitted") Page 36 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 fact thereby discovered and is the linchpin of the provision. In these circumstances that part of the information supplied by the accused which is the direct and immediate cause of the discovery is relevant and admissible. The reason behind this partial lifting of the ban against disclosure statement to the police is that if a fact is actually discovered in consequence of information given by the accused. it affords some guarantee of that part, and that part only, of the information and proximate cause of the discovery. So, it is clear that no such guarantee or assurance attaches to the rest of the statement may be directly or remotely related to the fact discovered. Therefore, it is clear that the fact which discovered must be distinctly, directly, indubitably or strictly as well as unmistakably must relate to the issue and establish the relevancy of the said discovery of fact. In this case, the only thing which has been discovered is discovery of an object i.e driving license and photocopy of ration card. Therefore in these circumstances, recovery of said objects should not be considered to be a discovery of fact. Therefore, also the recovery of said articles does not amount to discovery of any fact which is directly, unmistakably, undubitably and directly relates to the offences for which the accused have been tried in this case. While taking this view, I am also fortified by the judgment reported at AIR 2004 Supreme Court 2865 titled as Anter Singh Versus State of Rajashtan.
It is also pertinent to mention here that no evidence has been placed on record by prosecution in order to show that deceased Gurcharan Singh was carrying the aforesaid two documents at the time of leaving the house on State V/s Devender Kumar Sharma etc. ("Acquitted") Page 37 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 12.10.03. In this regard, the relevant portion of cross examination PW26 ASI Sher Pal(IO) assumes great importance when he admitted that he did not enquire from wife of Gurcharan Singh as to what was carried by her husband at the time of leaving the house. Therefore, such type of recovery does not inspire confidence.
It has come on record in the testimonies of PW6 Ms. Surender Kaur(wife of deceased Gurcharan Singh), PW25 Ms. Sukhvinder Kaur and PW24 Sh. Avtar Singh that Gurcharan Singh had left the house with instructions to PW6 Ms. Surender Kaur that she should keep the food ready. This part of the deposition made by said prosecution witness, is not in coherence with other part of prosecution story that Indica car no. DL8CG 6055 alongwith Gurcharan Singh was hired to visit Aligarh on the alleged date and time by accused Devender Kumar Sharma. In case, Gurcharan Singh was aware that he had to go to Aligarh then he would not have instructed PW6 Ms. Surender Kaur to keep the food ready as it is a matter of common knowledge that Aligarh is situated at long distance from Delhi and it takes considerable time to visit Aligarh and then to return back to Delhi. The prosecution has also failed to bring on record any evidence showing that Indica car No. DL8CG 6055 had relevant permit to go to Aligarh as on 12.10.03. Moreover, the said car has not been recovered either from the possession of any of the accused or at their instance. The alleged purchaser of said car namely Ravinder Kumar to whom it was allegedly sold by accused Davender Kumar Sharma, has also not been produced during trial.
As regards the disclosure statement Ex PW26/A of accused State V/s Devender Kumar Sharma etc. ("Acquitted") Page 38 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 Devender Kumar Sharma and another disclosure statement Ex PW14/A of accused Udaiveer made in case FIR no. 1274/03 with PS City Palwal is concerned, said disclosure statements are hit by Section 25 and 26 of Evidence Act as the said disclosure statements do not lead to discovery of any fact in the present case. Similarly, the pointing out memos as pointed out by Ld Additional PP are also not admissible under the law as all the relevant places i.e place of throwing of dead body, place of commission of murder etc. were already well within the knowledge of police authority. In view of alleged disclosure statements made by said two accused in case FIR no. 1274/03 with PS City Palwal much prior to their arrest in the present case.
While saying so, I am also fortified by the judgment of Division Banch of Hon'ble High Court of Sikkim in the matter of "Prem Bahadur Rai Vs State of Sikkim" reported at 1978 Cr.L.J. 945 and the judgment of Hon'ble High Court of Delhi in the matter titled as "Arun Kumar vs State"
reported at 1996 I A.D. (Delhi) 955.
The material prosecution witnesses namely Ms. Sunita Devi(PW10) and Ombir(PW16) produced during trial, have also not supported the case of prosecution to the extent that accused Devender Kumar Sharma had handed over letters mark A and B to PW10. Rather, both the said witnesses have deposed contrary to the case of prosecution and thus, the testimonies of both the said witnesses have given serious blow to the case of prosecution.
Likewise, the prosecution also could not drive any benefit out of State V/s Devender Kumar Sharma etc. ("Acquitted") Page 39 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 the testimonies of its two other public witnesses namely PW15 and PW17 who claimed that accused Devender Kumar Sharma had sold Indica car to one Ravinder Kumar in their presence. PW15 namely Bhagish Upadayay could not identify accused Devender Kumar Sharma definitely when he deposed that he was not confirmed as to whether accused Devener Kumar Sharma present in the Court, is the same person who used to visit his shop in Indica car. Not only this, both the said witnesses also could not disclose the registration number of Indica car which was allegedly sold by accused Devender Kumar Sharma to Ravinder Kumar.
It is also pertinent to mention here that incident in question had taken place on 12.10.03 but FIR in question had been registered only on 17.11.03 i.e after a gap of more than one month. Thus, there is a considerable delay in registration of FIR but no satisfactory explanation is forth coming from the side of prosecution witnesses for the said delay due to which accused persons are also entitled to benefit of doubt.
As also rightly argued by Ld defence counsel, accused persons have already been acquitted in case FIR 1274/03 with PS City Palwal vide judgment Ex DX as placed on record by Ld defence counsel. The said case was the basis on which the accused persons were arrested in this case but the case of prosecution as set up in FIR no. 1274/03 supra has been disbelieved by the Court of law. Same also creates reasonable doubt in the case of prosecution as set up in the present case qua involvement of accused persons.
It is well settled law that in a case based upon circumstantial evidence, the circumstances relied upon by the prosecution must not only be State V/s Devender Kumar Sharma etc. ("Acquitted") Page 40 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 fully established but the chain of evidence furnished by those circumstances must be so complete as not to lead any reasonable ground for a conclusion consistent with the innocence of the accused and also that the circumstances from which the conclusion of guilt of that accused is to be inferred, should be of conclusive nature and consistent only with the hypothesis of the guilt of accused and same should not be capable of being explained by any other hypothesis except the guilt of accused and all the circumstances cumulatively taken together must lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
Hon'ble Apex Court in the matter titled as "Sharad Birdhichand Sarda Vs. State of Maharashtra"reported at (1984) 4 SCC 116, has laid down the following five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in ShivajiSahebraoBobade Vs. State of Maharashtra, 1973 CriLJ 1783 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not State V/s Devender Kumar Sharma etc. ("Acquitted") Page 41 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(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.
In view of the discussion made herein above, Court is of the considered opinion that prosecution has not been able to complete the entire chain of evidence which could unerringly point out towards the guilt of accused persons beyond shadow of doubt. In other words, prosecution could not establish the complete chain of evidence which may rule out the innocence of accused persons in the commission of offence of this case. Hence, Court is of the view that prosecution has failed to establish the charges levelled against both the accused persons beyond reasonable doubt. Consequently, both the State V/s Devender Kumar Sharma etc. ("Acquitted") Page 42 of 43 FIR No. 871/03; U/s 364/365/201/120B/34 IPC; P.S. Rohini D.O.D.: 15.09.2014 accused persons namely Devender Kumar Sharma and Udaiveer are acquitted of the charges levelled against them. File be consigned to Record Room after compliance of Section 437A Cr.PC.
Announced in open Court today
dt. 15.09.2014 (Vidya Prakash)
Additional Sessions Judge04
North District, Rohini Courts
Delhi
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