Delhi District Court
State vs Mahesh on 21 February, 2013
1 IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA, ADDITIONAL SESSIONS JUDGE01 (WEST):DELHI SC No. 12/2013 Unique Case I.D. No. 02401R0509872006 FIR No. 94/2006 PS Timarpur U/s 302/392/394/201/411/34 IPC. State Vs. 1. Mahesh S/o Shri Babu Lal R/o Hiloli, P.S. Morav Distt. Unnav UP, 2. Pyare Lal S/o Shri Sudarshan Pradad R/o Near ITI College Nolakha Mandir Charitra Mohalla P.S. Civil Lines, Distt. Buxor Bihar 3. Ajay Kumar S/o Shri Dayal Yadav R/o 29, Gram Road Kamarhedi 58, Uttar 24 Pargana, West Bengal. ... Accused Date of Institution : 09.01.2013 Date of arguments : 13.02.2013 Date of Judgment : 21.02.2013 SC No. 94/06 Page 1of 20 2 JUDGMENT
In brief, the case of the prosecution is that on 27.2.06, the accused persons namely Mahesh, Pyare Lal and Ajay Kumar has been arrested by the police of PS Sarawati Vihar as they were found in possession of stolen truck bearing No. HR38F9097 (hereinafter be referred as 'truck') containing the tea bags and FIR No. 210/06 U/s 411 /34 IPC has been registered against them in PS Sarawati Vihar. On enquiry, the accused persons had disclosed that they have murdered the conductor of the truck namely Akil Hussain (deceased) and at their instance the dead body of the deceased was recovered at footpath on outer ring road. The police of PS Saraswati Vihar conveyed the information as to the murder of the deceased to PS Timarpur as the murder has been committed in their jurisdiction. A case U/s 302/201/34 IPC was registered against the accused persons. The postmortem of the deceased was got done in the mortuary of Subzi Mandi. In the postmortem report, the cause of death of the deceased was opined to be as a result of asphyxia consequent upon ligature strangulation. The accused persons were arrested with the permission of the court as they have been produced as a result of production warrant issued by the concerned court. The accused Ajay Yadav made a confession statement which was recorded U/s 164 Cr.PC by Ld. MM. The accused Mahesh got recovered accelerated wire from the cabin of the truck under the back seat by which the deceased was strangulated by the accused persons. The accused Pyare Lal also got recovered one purse containing the documents belonging to the deceased from behind the driver seat of the truck. In the subsequent SC No. 94/06 Page 2of 20 3 opinion the doctor has opined that the ligature mark found on the person of the deceased was possible by the wire which was recovered by the accused Mahesh or by similar such type of material.
2. After investigation, the charge sheet was filed against the accused persons U/s 392/394/302/201/411/34 IPC on the allegations that in the intervening night of 26/27.2.06, the accused persons in furtherance of their common intention committed robbery of truck bearing No. HR38F9097 loaded with tea bags which was parked in front of Eastern Road Carrier, Apsara Border and also abducted the deceased in the truck and committed the murder of the deceased. After causing the murder of the deceased, the accused persons had thrown the dead body of the deceased on the footpath of the outer ring road with intention for causing the evidence of the said murder to disappear.
Charge U/s 392/394/364/302/201/411/34 IPC has been framed against the accused persons. The accused persons had pleaded not guilty to the charge.
3. In order to prove its case, the prosecution has examined 30 witnesses. Statement of the accused persons U/s 313 Cr. P.C. were recorded in which they had denied the case of the prosecution. The accused persons have not examined any witness in their defence.
4. I have heard the Ld. APP for the state and Ld. counsel for the accused persons and perused the evidence on record.
PW1 Shri Amir Hussain is the father of the deceased and he has SC No. 94/06 Page 3of 20 4 identified the dead body of the deceased vide memo Ex. PW1/A. PW2 Shri Jeet Singh has deposed that the truck bearing No. HR38 F9097 was registered in his name and he had attached this truck with Eastern Road Carriers, Delhi UP Border. The deceased was the conductor on the truck and Arun Dubey was the driver. On 26.2.06, the truck had been parked in the godown of Eastern Road Carrier. The deceased had been left in the truck to take care of it. On 27.2.06, the driver had not found the vehicle in the godown and he had telephoned him. He immediately rushed to the godown and informed the police post UP border. He has received a telephone call from the police of police station Saraswati Vihar that the truck was in their custody and three culprits have been apprehended. He had gone to the police station Saraswati Vihar and seen the three accused persons. He was knowing the accused Ajay from before as he used to work as a cleaner on the vehicle of some other person.
In cross examination, PW2 has deposed that he had found his truck in police station Saraswati Vihar. It was having the tea loaded in it.
PW3 Shri Arun Kumar Dubey has deposed that he used to drive the truck bearing No. HR38F9097. The deceased was cleaner with him. This truck had been attached to the Eastern Road Carrier and TATA Tea used to be loaded and taken to various places in this truck. On 26.2.06, this truck had been loaded with the bundles of tea and it had been parked inside the godown of Eastern Road Carrier,Delhi/UP Border. The accused Ajay was cleaner on truck bearing registration No. DL1G0421. This truck was lying SC No. 94/06 Page 4of 20 5 parked at a distance of about ½ km at the office of other transport company namely Inland Transport Company. After loading the truck with TATA tea bags, he had left the godown on 26.02.06 at about 12.30 p.m. the deceased had been left there to take care of truck. When he was leaving the godown, the accused Ajay had come there and he had not seen any other person with him. On 27.2.06, he had reached the godown at about 9 a.m. and had not found the vehicle and the deceased and the accused Ajay.
In cross examination by Ld. APP, he has deposed that the remaining two accused persons had also come with Ajay but they had kept on standing at a distance of about 56 steps away from the accused Ajay. On 26.2.06, after 11 p.m. he had left the deceased in the company of the three accused persons.
In cross examination by Ld. defence counsel, PW3 has deposed that on 26.2.06, the truck was loaded with TATA tea bags. He has denied the suggestion that the accused persons had not come there. He was not knowing the accused other than the accused Ajay from before either by names or by their faces. They were standing near the tea shop which was at a distance of about 10/12 steps.
PW4 Shri Deepak Seth is the Manager in the Uttam Tea Agency and has deposed that their company had purchased 407 bags of TATA tea, Kellyden Tea Estate, Assam and this consignment had been sent through Eastern Road Carrier. The consignment had not reached them as on the way, the truck has been seized. They got it released from the court.
SC No. 94/06 Page 5of 20 6 PW5 Shri Mahesh Kumar is the draftsman and he has proved the scaled site plan as Ex. PW5/A. PW6 H.C. Naresh Kumar had gone to the Gandhi Vihar, Outer Ring Road at the place of occurrence and has taken the photographs. He has proved the photographs Ex. PW6/1 to Ex. PW6/5 and negatives as Ex. PW6/6.
PW7 Insp. Subey Singh has deposed that on 27.2.06, he was working as Incharge Crime Team and on that day, he went to the place of occurrence and had inspected the site and prepared his report. No chance prints were available at the spot.
PW8 Shri Anant Ghurye is the Zonal Manager (Sales) of the TATA Tea Ltd. and has deposed that he has never been contacted by the police official and he had not made any statement before the police.
PW9 ASI Ved Pal has proved the FIR as Ex. PW9/B. PW10 H.C Kripal Singh has proved the DD No. 13A as Ex. PW10/A. PW11 H.C. Isham Singh is the MHCM and he has proved the relevant entries in the register No. 19 and 21 regarding the deposits of case property as Ex. PW11/A and Ex. PW11/B. PW12 ASI Babita has proved the FIR No. 210/06 PS Saraswati Vihar as Ex. PW12/A. PW15 H.C. Vinod Kumar had remained in the mortuary of Subzi Mandi and the dead body of the deceased had remained in his supervision.
PW16 Shri Ali Hassan has identified the dead body of the SC No. 94/06 Page 6of 20 7 deceased vide his statement Ex. PW16/A. PW17 Shri Daya Ram has deposed that he was working in Eastern Road Carriers Pvt. Ltd. and had worked at Ghaziabad office for a period of about 11 years. There was a goods carriers truck bearing registration number HR38F9097 booked by their company from Ghaziabad to Delhi. Arun Kumar was the driver of the said truck and the conductor was Akil. The truck was loaded with tea and it was ready for departure from the godown in Chikambar Pur. He has denied the suggestion of Ld. APP that on 11.3.06, the accused persons came to the godown with the police.
PW19 Dr. K. Goel has deposed that on 28.2.06, he has conducted postmortem on the body of the deceased. The cause of death was asphyxia consequent upon ligature strangulation. All injuries were antemortem in nature. The time since death was about 3637 hours.
A written application was made by Insp. T.R. Mongia and which was sent through SI Rajneesh Sharma along with one sealed packet . On opening the packet, it was found to contain one black plastic cord (wire). The ligature mark mentioned in PM report Ex. PW19/A was possible by this cord or by similar such type of other material. He has proved his subsequent opinion as Ex. PW19/B and wire as Ex. P1.
PW22 Shri Ajay Goel has deposed that on 7.3.06, he was posted as Metropolitan Magistrate and on that day, an application Ex. PW22/A was marked to him for recording the statement U/s 164 Cr.PC of the accused Ajay Kumar. The accused was produced in J/C. He had given two days time to SC No. 94/06 Page 7of 20 8 rethink and told him about the gravity of the offence. On 10.3.06, the accused Ajay Kumar was again produced from J/C and he explained the accused that he was not bound to make to make confessional statement which might be used as evidence against him and the proceedings are Ex. PW22/B. He recorded the statement U/s 164 Cr.PC of the accused Ajay Kumar which is Ex. PW22/C and his certificate is Ex. PW22/D. PW23 Shri Yatinder Kumar Sharma has deposed that he was working as clerk in the Eastern Road Carriers, Apsara Border. On 26.2.06, he has prepared the challan No. 037940 in the name of Uttam agency Kherakalan and proved the same as Ex. PW23/A and same was seized by the IO vide seizure memo Ex. PW3/A. PW27 Shri Rakesh Bhardwaj is the photographer and he has taken the photographs of the TATA tea bags along with the truck and has proved the photographs as Ex. PW20/1 to Ex. PW20/11.
PW29 H.C. Satyapal Singh is the MHCM of PS Saraswati Vihar and has proved the relevant entry in the register No. 19 regarding deposit of truck bearing No. HR38F9097 along with the TATA tea bags as Ex. PW29/A. All these articles were sent to PS Timarpur vide RC No. 57/21/06 which is Ex. PW29/B. PW20 Insp. Roop Lal has deposed that on 27.2.06, he was posted as SHO in PS Saraswati Vihar. On that day at about 11.15 a.m., he has received a secret information regarding one truck bearing registration No. HR38F9097 was standing near Beriwala Bagh containing stolen articles of SC No. 94/06 Page 8of 20 9 tea bags and three boys are sitting in the same. He shared this information with the then ACP who directed him to take action and accordingly he reduced this information vide DD No. 11A which is Ex. PW18/D. He called SI Raj Kanwar Dahiya in the police station and formed a raiding party consisting of H.C. Ashok, Ct. Harish, Ct. Rahjender, Ct. Satender and Ct. Satish Rathi. They left the police station for the spot at about 11.25 a.m. and their departure entry was recorded vide DD No. 13A which is Ex. PW20/A. At about 11.40 a.m., they reached about 50 yards away from Beriwala Bagh and stopped the vehicle. The raiding party was divided into two groups. The secret informer pointed towards the truck which was stationed at Mall Road, Beriwala Bagh. They requested public persons to join the raiding party but they refused. The raiding party headed by him came from the side of conductor side of the truck and other party came from the front side of the truck. On the driver seat, one boy who disclosed his name as Mahesh was apprehended. The boy who was sitting besides Mahesh disclosed his name as Pyare Lal and the boy who was sitting with Pyare Lal disclosed his name as Ajay Kumar. The accused Mahesh produced the documents of the truck which were in the name of Jeet Singh and one bilty in the name of Eastern Roadways Carrier Pvt. Ltd. The truck was found loaded 407 bags of TATA tea. All the accused persons were interrogated. He found one mobile number printed on the back side of the truck. He made a call on the said number and one Jeet Singh talked to him. Jeet Singh came and contacted him and informed that his loaded truck was stolen from Apsara Border near Eastern Road Carriers Pvt. Ltd. and also that SC No. 94/06 Page 9of 20 10 one cleaner namely Akil was also in that truck. The truck was seized vide seizure memo Ex. PW18/O. The tea bags were also also seized vide seizure memo Ex. PW18/N. The accused Mahesh, Pyarelal and Ajay Kumar were arrested by SI Ram Kanwar Dahiya vide personal search and arrest memos. SI Ram Kanwar Dahiya prepared a rukka U/s 411/34 IPC and FIR No. 210/96 PS Sarawati Vihar was registered. The accused persons led them to the outer ring road on the footpath near Gandhi Vihar Colony in between the electricity pole No. 19 and 20 and on that footpath one person was lying covered with a blanket and pointed out by the accused persons that he was Akil Hussain and this was the place where they had thrown the dead body of Akil Hussain. The pointing out memo were prepared in this respect which are Ex. PW18/A1 to Ex. PW18/A3. Accordingly, he informed the police station Timarpur as the murder has been committed in their jurisdiction. He has identified the accelerator wire as Ex. P1 which was produced by the accused persons from the cabin of the truck under the back seat by which they strangulated the deceased, sample of Tata tea premium as Ex. P2.
PW18 SI Ram Kanwar Dahiya has joined the investigation with PW20 and has supported the testimony of PW20.
PW18 has also deposed that he prepared the rukka of case FIR No. 210/06 PS Sarawati Vihar which is Ex. PW18/A. He prepared the site plan where the truck was found standing and the same is Ex. PW18/C. He prepared the site plan in respect of recovery of dead body which is Ex. PW18/C1. The accused persons Pyare Lal, Mahesh and Ajay Kumar were SC No. 94/06 Page 10of 20 11 arrested vide arrest memos Ex. PW18/G, Ex. PW18/H and Ex PW18/J respectively. He has seized the TATA tea bags which was loaded in the truck as Ex. PW18/N and seized the truck vide memo Ex. PW18/O. He has also seized the RC of the truck vide seizure memo Ex. PW18/P and the challan No. 37940 vide memo Ex. PW18/Q. The case property was deposited by him in the Malkhana. The disclosure statement of the accused persons Pyare Lal, Mahsh and Ajay Kumar were recorded by him which are Ex. PW18/S, Ex. PW18/T and Ex. PW18/U respectively. The accused Pyare Lal got recovered one black colour wallet belonging to deceased from the driving seat of the truck. The wallet along with the articles articles containing in it were seized vide memo Ex. PW18/V. The accused Mahesh had produced accelerator wire from the back seat of the driver cabin which was seized vide memo Ex. PW18/W. On the same day, he along with Insp. Roop Lal, the accused persons and other police staff had left the police station for identification of the spot where the dead body was kept or placed. The accused had pointed out the place of keeping the dead body of the deceased vide pointing out memo Ex. PW18/A1 to Ex. PW18/A3. He prepared the site plan of the place of recovery of dead body of the deceased which is Ex. PW18/C1. He has identified the case property i.e. accelerator wire as Ex. P1 and wallet containing documents as Ex. P2.
PW21 Ct. Satinder Kumar, PW26 H.C. Ashok Kumar and PW30 H.C . Rajender has joined the investigation with PW18 and PW20 and has supported the testimonies of PW18 and PW20.
SC No. 94/06 Page 11of 20 12 PW25 Insp. Hari Singh Rawat has deposed that on 28.2.06, on the direction of SHO/IO he along with SI Suman Kumar went to the Subzi Mandi Mortuary for the postmortem of the deceased. He prepared the brief facts Ex. PW25/A and filled up form 25.35 B which is Ex. PW25/B. The father and the uncle of the deceased were present in the mortuary and they had identified the dead body of the deceased . He moved an application Ex. PW25/C for conducting the postmortem of the deceased and postmortem was conducted on the same day i.e. 28.2.06. The dead body was handed over to father of the deceased after postmortem. On 11.3.06, he along with SHO/IO the accused persons went to Eastern Road Carriers, 135, Rawal Pindi Garden, Distt. Ghaziabad where the accused persons had pointed out the place of occurrence vide memo Ex. PW2/A to Ex. PW2/C respectively.
PW24 SI Suman Kumar has gone to the Subzi Mandi mortuary along with PW25 and has supported the testimony of PW25.
PW13 ASI Yashpal has deposed that on 27.2.04, he along with Insp. T.R. Mongia and other police staff went to the Subzi Mandi Mortuary. SI Ram Kanwar along with the staff of PS Saraswati Vihar met them at mortuary . They had shown the dead body. The dead body was having ligature mark on the neck besides injuries stretch mark on the face. Ct. Vinod was left in the mortuary and they all went to the spot at Gandhi Vihar at outer ring road. After inspection the spot, Insp. T.R. Mongia handed over to him rukka for the registration of the FIR. He got the FIR registered.
PW28 Retd. ACP Tilak Raj Mongia has deposed that he was SHO SC No. 94/06 Page 12of 20 13 of PS Timarpur from 2005 to 2007. On 27.2.06, on receiving of DD No. 13A which is Ex. PW10/A he along with staff went to the mortuary of Subzi Mandi. SI R.K. Dahiya was already present there. He showed them the dead body of Akil Hussain. On examination of the body, they saw the ligature mark on the neck and scratches on the face. They all returned to the spot on the ring road outside Gandhi Vihar. The endorsement was made on the DD entry and the rukka was sent to the duty officer for registration of the case. After having completed investigation at the spot, they went to the PS Saraswati Vihar. The photocopies of all the relevant documents were taken and placed on the file. On 28.2.06, the postmortem of the deceased was got done. On 6.3.06, all the accused persons were produced in the court on the production warrant and with the permission of the court, they all were arrested vide memo Ex. PW28/A to Ex. PW28/C and they had made disclosure statement Ex. PW14/A to Ex. PW14/C. Accused Ajay expressed his desire to confess and he moved an application Ex. PW22/A before Ld. MM and the same was fixed for 10.3.06. Shri Ajay Goel, Ld. MM recorded the statement of the accused Ajay. On 11.3.06, the accused persons had pointed out the place of occurrence i.e. Eastern Road Gallery where they had killed the deceased and pointing out memo in this regard was prepared which is Ex. PW2/A to C. He also prepared site plan of the place pointed out by the accused persons which is Ex. PW28/D. He got the case property transferred from PS Saraswati Vihar. On 31.3.06, Jitender Kumar Sharma and Arun Kumar Dubey handed over to him the copy of the challan No. 037940 which was seized vide memo Ex. PW3/A. On SC No. 94/06 Page 13of 20 14 1.5.06, he has sent SI Rajneesh to Dr. K. Goel with the parcel of accelerator wire and he obtained the subsequent opinion given by the doctor which is Ex. PW19/B. On 19.5.06, he summoned SI Mahesh, draftsman. A scaled site plan was got prepared at the instance of SI R.K. Dahiya which is Ex. PW5/A. He has proved the FSL reports as Ex. PW28/E and Ex. PW28/F. PW14 SI Rajneesh Sharma who joined the investigation with PW28 has supported the testimony of PW28.
5. Ld. counsel for the accused persons has argued that the accused persons has been falsely implicated in the case. The case of the prosecution depends upon the circumstantial evidence. The prosecution has failed to prove the circumstance on record which would prove that it is the accused persons who had committed the alleged offences. From the evidence on record, the prosecution has failed to prove its case against the accused persons and so the accused persons be acquitted.
On the other hand, Ld. APP has argued that from the evidence on record, the prosecution has proved its case beyond reasonable doubt against the accused persons.
6. The case of the prosecution depends upon the circumstantial evidence on record as there is no direct evidence against the accused persons.
It is settled law that for conviction on circumstantial evidence, the following conditions must be fulfilled:
a. The circumstances from which the conclusion of the guilt is to be drawn should be fully established.
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b. The facts so established should be consistent not 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. c. The circumstances should be of conclusive nature and tendency. d. They should exclude every possible hypothesis except the one to be proved.
e. 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.
7. PW2 has deposed that the truck was registered in his name and he had attached this truck with Eastern Road Carriers, Delhi UP Border. The deceased was the conductor on the truck and Arun Dubey was the driver. On 26.2.06, the truck had been parked in the godown of Eastern Road Carrier. The deceased had been left in the truck to take care of it.
PW3 has deposed that he used to drive the truck. The deceased was cleaner with him. The truck had been attached to the Eastern Road Carrier. On 26.2.06, this had been loaded with the bundles of tea and it had been parked inside the godown of Eastern Road Carrier,Delhi/UP Border. After loading the truck with TATA tea bags, he had left the godown on 26.02.06 at about 12.30 p.m. the deceased had been left there to take care of truck.
PW17 has deposed that he was working in Eastern Road Carriers SC No. 94/06 Page 15of 20 16 Pvt. Ltd.. There was a goods carriers truck bearing registration number HR38 F9097 booked by their company from Ghaziabad to Delhi. Arun Kumar was the driver of the said truck and the conductor was the deceased.
PW23 has deposed that he was working as clerk in the Eastern Road Carriers, Apsara Border. On 26.2.06, he has prepared the challan No. 037940 and which is Ex. PW23/A. The challan No. 037940 shows that the truck has been booked with 407 bags of tea to carry the tea bags from UP border to Delhi and the driver of the truck was Arun Kumar.
From the evidence of PW2, PW3, PW17, PW23, it is proved that the truck with tea bags has been booked and the truck was parked inside the godown of Eastern Carrier Delhi/UP border and the driver of the truck was PW3 and the deceased was the cleaner of the truck. The truck loaded with tea bags has been left in the godown in the night of 26.2.06 by PW3 and the deceased has been left to take care of the truck.
8. PW20 has deposed that at about 11.40 a.m. on 27.2.07, the accused persons were apprehended from the truck loaded with tea bags at Mall Road, Beriwala Bagh. The truck and the tea bags were seized vide seizure memo Ex. PW18/O and Ex. PW18/N respectively. PW20 has also deposed that the accused persons led them to the outer ring road on the footpath near Gandhi Vihar colony in between electricity pole No. 19 and 20 and recovered the dead body of the deceased. The accused Mahesh also got recovered from the cabin of the truck under the back seat one accelerated wire by which the accused persons has strangulated the deceased.
SC No. 94/06 Page 16of 20 17 The testimony of PW20 is also corroborated by the testimonies of PW18, PW21, PW26 and PW30. These witnesses have been cross examined by the accused persons but no such material has been come on record to disbelieve their testimonies. The testimonies of these witnesses are reliable. It is not the case that the public persons has not been requested to join the raiding party as PW20 has deposed that the public persons have been requested to join the raiding party but they refused.
It has also been observed by Hon'ble Supreme Court in AIR 2003 SC 1311: "There is no principle of law that without corroboration by independent witness the testimony of police personnel cannot be relied upon - Presumption that person acts honestly applies as much in favour of police personnel as of other persons - It is thus not proper judicial approach to distrust and subject them without good grounds."
From the testimonies of PW18, PW20, PW21, PW23 and PW26, it is proved that the dead body of the deceased was recovered at the instance of the accused persons and the accelerated wire Ex. P1 was recovered at the instance of the accused Mahesh.
9. PW19 has proved the postmortem report of the deceased as Ex. PW19/A. In the report, it has been opined that the cause of death was asphyxia consequent upon ligature strangulation. All injuries were antemortem in nature. In the subsequent opinion Ex. PW19/B, PW19 has stated that the ligature mark as mentioned in Ex. PW19/A was possible by the wire Ex. P1 or by similar such type of other material.
SC No. 94/06 Page 17of 20 18 From the evidence of PW19 and from the evidence that Ex. P1 has been recovered at the instance of the accused Mahesh, it has been proved that the death of deceased was caused by strangulation with the wire Ex. P1.
10. One of the circumstance relied upon by the prosecution against the accused persons is that the 'last seen theory'. As per the case of the prosecution, the accused persons has been seen with the deceased at the spot prior to the death of the deceased.
PW3 has deposed that on 26.2.06, after 11 p.m. he had left the deceased in the company of the accused persons. The dead body of the deceased was recovered on 27.2.06. The postmortem on the dead body of the deceased was done on 28.2.06 at about 12.45 p.m.. The postmortem report Ex. PW19/A shows the time since death was about 36/37 hours. The time of the death of the deceased comes to be in between 1 a.m. 2 a.m. in the intervening night of 26/27.2.06.
It has been observed by the Hon'ble Supreme Court of India in (2002) 8 SCC 45:
"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
SC No. 94/06 Page 18of 20 19 The evidence of PW3 is reliable to prove that the accused persons was with the deceased at the godown of Eastern Road Carrier, Delhi/UP Border soon before the death of the deceased, therefore, the prosecution has been able to prove the circumstance of 'last seen' against the accused persons.
11. PW22 has deposed that on 7.3.06, the accused Ajay was produced in J/C for recording his statement U/s 164 Cr.PC. The accused had been given two days time to rethink and he was told about the gravity of the offences. On 10.3.06, the accused Ajay was again produced from J/C and it has been explained to the accused that he was not bound to make confessional statement which might be used as evidence against him. The accused made the statement U/s 164 Cr.PC which is Ex. PW22/C. From the evidence of PW22, it is proved that the statement of the accused Ajay Kumar recorded U/s 164 Cr.PC is voluntary statement. Perusal of the confessional statement Ex. PW22/C shows that the accused had implicated the coaccused Mahesh and Pyare Lal in the murder of the deceased and had exonerated himself from any role in the murder of the deceased and it also shows the presence of all the accused persons along with the deceased in 'truck'.
It is well settled that the confession of the co accused can be taken into consideration if the maker of it substantially implicates himself to the same extent as the coaccused against whom it sought to be taken into consideration (relied upon AIR 1957 (SC) 216).
The confessional statement Ex. PW22/C cannot be relied upon to SC No. 94/06 Page 19of 20 20 link the accused persons Mahesh and Pyare Lal with the with the alleged murder of the deceased, but it can be relied upon to show the presence of all the accused persons in the 'truck' along with the deceased.
12. In view of the above discussion, I am of the opinion that the prosecution has been able to establish the circumstances i.e. circumstance of 'last seen', the arrest of the accused persons in the truck loaded with the tea bags, recovery of dead body of the deceased at the instance of the accused persons, recovery of wire with which the deceased was strangulated against the accused persons. These circumstances proved on record are of conclusive nature and proved beyond reasonable doubt that it is the accused persons who had abducted the deceased in the truck and committed the robbery of truck with tea bags and in committing robbery caused hurt to the deceased and committed the murder of the deceased and thrown the dead body of the deceased to cause the evidence of the murder to disappear. Accordingly, the accused persons are convicted for the offences punishable U/s 394/34 IPC, U/s 364/34 IPC, U/s 302/34 IPC, U/s 201/34 IPC.
Announced in the open court (Rajneesh Kumar Gupta)
today i.e. on 21.02.13 Additional Sessions Judge01/West
Tis Hazari Courts, Delhi
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