Delhi District Court
State vs (1) Pawan Kumar Pandey on 7 June, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
SC No. 09/12
FIR No. 398/05
PS Sangam Vihar
State versus (1) Pawan Kumar Pandey
S/o Sh. Ram Narayan Pandey
R/o Vill. Pande Baba, Badona
DPS Motipur, Distt. Sultanpur, UP
Present Address : H-166,
Sourabh Vihar, Jaitpur Extn., ND.
(2) Sanjay Kumar
S/o Sh. Prem Chand,
R/o Vill. Asgarpur, PS Akrabad,
Distt. Aligarh, UP
Present Address : H. No. C-245,
Pul Prahladpur, ND.
(3) Shiv Pujan Dwivedi
S/o Sh. Harisharan Dwivedi
R/o Vill. Partapur Kamecha,
PS Chanda, Distt. Sultanpur, UP.
(4) Sandeep, S/o Sh. Ratanlal
R/o Vill Kherpipal, PS Biharipur,
PS Kher, Distt. Aligarh, UP.
(5) Pushpender @ Rinku
S/o Sh. Ram Sharan
R/o H. No. A-64, Shiv Durga Vihar,
Lakkarpur, Haryana.
State v. Pawan Kumar Pandey etc.
FIR No. 398/05
PS Sangam Vihar Page No. 1 of 28
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Date of institution of the case : 08.12.2005
Date of reserving judgment/order : 16.05.2012
Date of judgment / order : 07.06.2012
JUDGMENT :
1 The accused persons have been charge-sheeted u/s 364/365/302 IPC for abducted and committing murder of one Sanjay.
2 The facts in brief are that the accused Sandeep Sharma had hired an Indica car No. HR-51-S-9172 along with its driver Sanjay, deceased on 05.05.2005 from K. D. Taxi Service, Prahlad Pur, New Delhi, for himself and the accused persons, namely Pawan Kumar Pandey, Sanjay and Pushpender, for attending a marriage near Palwal. The accused Pawan Kumar Pandy, Sanjay, Sandeep and Pushpender took the said vehicle along with the deceased but the vehicle failed to return in the night as was excepted. Eventually, a complaint was lodged by Vijay Laxmi, mother of the deceased about her son not having returned back along with the vehicle, on which information DD No. 27 dated 07.05.2005 was recorded at PP Prahlad Pur. Subsequently, an FIR was registered on 10.05.2005 on the complaint of Harish Chand the owner of the Taxi Stand. The investigations were taken over by ASI Umed Singh. During investigations, father of Pushpender @ Rinku informed that after attending the marriage at Palwal, the State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 2 of 28 -3- accused persons had gone to Jhansi, UP to the house of sister of Pushpender @ Rinku. A phone call was made to the house of the sister of the accused, which was answered by a girl, who informed that four boys who were wearing blood stained clothes had come in a vehicle which also had blood stains and they had gone to the tube-well to wash the clothes and the vehicle. On receipt of this information the police went to Jhansi and the accused Pushpender was identified by the photograph but none of the accused were found present. Thereafter, on 06.05.2005, one Jai Prakash, who was working as a Sweeper in PP Panethi noticed the dead body lying on the Sansi Road, near G. T. Road, of a male, aged about 30-35 years and information was given to police post Panethi. The policed reached the said spot and a panchnama of the body was prepared and thereafter it was sent for postmortem to Aligarh, UP. FIR No. 76/05, u/s 302/201 IPC was registered at PS Panethi. SI Umed Singh on 12.05.2005 reached police station Akrabad and came to know about the dead body, which was identified eventually by the mother and the family members of the deceased to be that of Sanjay, the driver.
3 Thereafter, on the basis of secret information accused Sanjay and Pawan were arrested from their house at Saurav Vihar, Jaitpur, Delhi and accused Pawan Kumar Pandey got recovered two original number plates of Indica Car bearing no. HR-51S-9172 from the Taand and house and also got recovered the original documents of the car from a briefcase State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 3 of 28 -4- lying in the room. The accused Sanjay handed over the wrist watch of make Sonata, which was identified by Jaiveer to have been gifted by him to deceased Sanjay. The accused Pawan Kumar Pandey and Sanjay then led to the arrest of accused Shiv Pujan to whom the vehicle Indica Car had been sold. The Indica car was recovered from the possession of accused Shiv Pujan. The accused Sandeep and Pushpender could not be arrested and they were declared Proclaimed Offenders and the charge-sheet was filed in the Court.
4 The original charge-sheet was filed before the Ld. MM on 29.08.2005. Accused Pawan Kumar Pandey, Shiv Pujan and Sanjay appeared before the Ld. MM. The other two accused Pushpender and Sandeep were declared Proclaimed Offenders and the case was committed to the Court of Sessions vide order dated 23.11.2005.
5 Subsequently, on 03.05.2007, on the basis of secret information, accused Pushpender was arrested from near the gate of Batra Hospital and also led the police to the arrest of accused Shandeep Sharma from near Badarpur Border. The supplementary charge-sheet was filed against the two accused in the Court.
6 Vide order dated 10.04.2006, charge u/s 364/34, 302/34 and 201/34 IPC was framed against all the three accused besides which charge u/s 411/482 IPC was also framed against accused Shiv Pujan, to which they all pleaded not guilty.
State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 4 of 28 -5- 7 The charges against the other two accused Pushpender and Sandeep were framed vide order dated 10.01.2008, u/s 364/302/201 r/w Section 34 IPC, to which they pleaded not guilty.
8 The prosecution in support of its case examined 33 witnesses in all.
9 PW1 Jaiveer was the son of the owner of the Taxi Stand M/s K. D. Taxi Services from where the accused Sandeep and Pushpender had hired the car Indica taxi to attend a marriage at Palwal. The said vehicle along with the driver Sanjay, deceased, was made available to the accused persons on 05.05.2006, but the vehicle and the driver failed to return in the night and even on the next day. The efforts were made for tracing out the vehicle and the driver on 06/07.05.2005 but to no avail. Eventually, mother of the deceased lodged a complaint with the police on 07.05.2005 and when the vehicle of the deceased could not be traced, Harish Chand, owner of the taxi got the FIR registered on 10.05.2005. Thereafter, it is deposed by him that he had joined investigations with the police on 11.05.2005 for tracing out the accused persons. Again on 12.05.2005, he had accompanied the police to Aligarh for inquiries and at PS Akrabad they came to know that one dead body had been recovered, whom they identified from the clothes and photographs to be that of driver Sanjay. The photographs and the clothes of the deceased and other articles were obtained by the police from the police officials of PS State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 5 of 28 -6- Akrabad, which were seized vide memo Ex.PW1/B. He again joined investigations with the police on 29.05.2005 and was a witness to the arrest of accused Sanjay and Pawan Kumar Pandey, from their house at Saurav Vihar, Jaitpur Extension. He was also a witness to the recovery of watch from Sanjay and recovery of number plates and documents of the Indica Car at the behest of the accused Pwan Kumar Pandey. The disclosure statement of the accused Pawan Kumar Pandey and Sanjay were recorded by the police by Ex.PW1/B and Ex.PW1/C. The watch was seized vide memo Ex.PW1/D. The number plate was seized vide memo Ex.PW1/E and the documents of car were seized vide memo Ex.PW1/F. He further joined the investigations with the police in the arrest of accused Shiv Pujan from Badarpur Border along with the Indica Car, which was seized by the police by memo Ex.PW1/G. The Toll Tax receipt for the money paid by Shiv Pujan to cross the Toll Gate on the said date to come towards Delhi was seized vide memo Ex.PW1/H. The warranty card Ex.PW1/2 of the wrist watch was seized from the possession of Sanjay vide memo Ex.PW1/J. 10 PW2 Harish Chand, the father of the PW1 was the owner of Taxi Stand M/s K. K. Taxi Service, Prahlad Pur, New Delhi, who has corroborated the testimony of PW1 in respect of the hiring of the Indica Car by one Deepu on behalf of the accused Sandeep and Pawan. He has proved his complaint Ex.PW2/A in regard to the missing of the driver deceased Sanjay, on which the FIR was registered. The photocopy of the State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 6 of 28 -7- RC and insurance was supplied by him to the Investigating Officer on 10.05.2005, which were seized vide memo Ex.PW2/B. 11 PW3 Narender Kumar was the owner of the Indica car, which was being used as a taxi at the Taxi Stand, by the name of M/s K. D. Taxi Services which was being run by his uncle. He had got the car Ex.P1 released on superdari vide superdarinama Ex.PW3/A. The photographs of the car were taken which are Ex.PW7/A1 and Ex.PW7/A2 and the negatives of the photographs are Ex.PW7/A3 and Ex.PW7/A4. 12 PW6 is Vijay Laxmi, the mother of the deceased, who had initially lodged a complaint on 07.05.2005 when her son Sanjay, who was working as a taxi driver failed to return along with the taxi which he had taken on 05.05.2005. Eventually, a hue and Cry notice was published by the police, which was Ex.PW7/E. She identified the photograph and the clothes, which the deceased was wearing at the time of his death to be those of her son.
13 PW8 Dharam Veer was the brother of the wife of deceased, who had joined the police in search of deceased on 07.05.2005 and had accompanied them to District Jhansi, UP, to the house of the sister of the accused Pushpender, where the deceased as well as the accused persons were identified from the photographs. Eventually, on 12.05.2005, on receipt of information about recovery of dead body within the jurisdiction of PS Akrabad, he had gone there and had identified the State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 7 of 28 -8- deceased from his photograph and his clothes. 14 PW10 Pradeep Sehgat @ Deepu had arranged the Indica car at the behest of accused Sandeep Sharma. 15 PW24 Ct. Janardan had recorded the missing report of the deceased Sanjay on the information given by his mother Vijay Laxmi on 07.05.2005 vide DD No. 27, copy of which is Ex.PW24/A. 16 PW4 HC Jagram was handed over the rukka on 10.05.2005 by ASI Umed Singh, which he took to PW9 Duty Officer HC Daya Ram, who registered the FIR Ex.PW9/A and handed over the same to HC Jagram for giving it to ASI Umed Singh.
17 PW5 HC Suresh Chand had joined SHO Rajender Saini, SI Sunil, Ct. Surender in the arrest of accused Sanjay and Pawan Kumar Pandey on 01.06.2005.
18 PW7 ASI Umed Singh had joined the investigations on 29.05.2005 with PW26 SI Sunil, Ct. Suresh and Jaiveer in arrest of accused Sanjay and accused Pawan. 19 PW11 SI Subhash Chand Tyagi, PS Akrabad, had recorded the information about the recovery of a dead body of an unknown person from the road going towards Sashni vide DD No. 16 vide Ex.PW11/A. Again on 12.05.2005, he had accompanied ASI Umed Singh from Delhi along with his police team and public persons Dharam Veer and Jaiveer to the police station where they were shown the clothes and photographs of the deceased from which the deceased was identified.
State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 8 of 28 -9- 20 PW12 SI Radhey Shyam of PS Akrabad deposed that on 06.05.2005 at about 09.25 a.m. he received wireless information that Sweeper Jai Parkash had seen a dead body lying on the road side near Village Nanau at a distance of about 500 to 600 meters away from the triangular Chowk going towards Shansi Road. He along with two Constables Vijender Singh and Bir Pal and Sweeper Jai Prakash (PW21), who met him at outpost Paneti, went to the said spot where some public persons had already gathered. He found sharp edged weapon wounds on the dead body. A panchnama was prepared by him, which is Ex.PW12/A. The site plan was prepared by the SHO Subhash Tyagi, which is Ex.PW11/A. The photocopies were also taken of the scene and the dead body was sealed and sent to District Hospital. The earth control soil with blood and without blood were lifted and sealed and seized vide memo Ex.PW12/B. The pants of the deceased was seized vide memo Ex.PW12/C. Case FIR No. 76/05 u/s 302/201 IPC was registered by PW18 SI Rachpal Singh, copy of which is Ex.PW18/A. The entry was also made in General Diary at Serial No. 17 in regard to the registration of FIR, copy of which is Ex.PW18/B. Postmortem was got done and on 01.06.2005 one Inspector came from PS Sangam Vihar and he had handed over the articles, photographs and the postmortem report. 21 PW17 Nem Singh was the Photographer, who had taken the photographs of the dead body on 06.05.2005 at the instance of SI Radhey Shyam. The said photographs are State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 9 of 28
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Ex.PW17/B1 and Ex.PW17/B2 and their negatives are Ex.PW17/A1 and Ex.PW17/A2.
22 PW22 Dr. Heera Singh, Medical Superintendent, District Hospital, Kannoj, UP, had conducted the postmortem on the dead body and his report is Ex.PW22/A. He also identified the clothes which the deceased was wearing and the Kachcha is Ex.PW22/A-1, two vests in torn condition Ex.PW22/A2, belt is Ex.PW22/A-3, one pair of sandle are Ex.PW22/A4.
23 PW26 SI Sunil Kumar was the Investigating Officer, who had conducted the investigations in this case and was joined by PW5 HC Suresh Chand and PW7 ASI Umed Singh. He had got the FIR registered and thereafter along with his police team had arrested accused Sanjay and Pawan Kumar Pandey on 01.06.2005. The two accused had made their disclosure statements admitting that they had committed murder of Sanjay and had thrown his body at Sansi Road, Akrabad and had sold the car to one Shiv Pujan. A wrist watch was recovered from the wrist of accused Sanjay, which was sealed in a pullanda and seized vide memo Ex.PW1/D. 24 PW23 Pawan Kumar Jain had also proved the said wrist watch as having been sold by him on 21.10.2004 to Jaiveer vide cash memo, copy of which is Ex.PW23/A. Accused Pawan Kumar Pandey got recovered two number plates of Indica car from the slab/Taand of his room which was sealed in pullanda and seized vide memo Ex.PW1/A. The accused Pawan State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 10 of 28
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Kumar Pandey also took out the original documents i.e. a RC and insurance policy from the attachi case of black colour kept on the cot lying in the room which was pertaining to the Indica car and was seized vide memo Ex.PW1/F. Both the accused then led the police team to Badarpur Border, where the accused Shiv Pujan arrived in the stolen Indica Car having No.HR-51T-4515 and accused Shiv Pujan was apprehended along with the car at the instance of accused Sanjay and Pawan Kumar Padney. The Toll Tax Receipt is Ex.PW1/M was recovered from the possession of the Shiv Pujan. The said Toll Receipt was proved by PW25 Girwar Singh as had been issued by their company BANAS SANDS TT CJV on 30.05.2005 at the Toll Tax of Dadarpur-Delhi Border. The said receipt recovered from Shiv Pujan is Ex.PW25/A. The disclosure statement of Shiv Pujan is Ex.PW1/K. The taxi Indica Car was seized vide memo Ex.PW1/G which was subsequently released on superdari to PW3 Narender Kumar, the owner of the taxi.
25 PW26 SI Sunil also went to Akrabad, District Aligarh, UP, and collected the relevant sealed parcels from MHCM, PS Akrabad and also the pants which was kept open by the police officials vide memo Ex.PW26/A. The site plan of the place where the body was recovered was prepared, which is Ex.PW26/B. 26 PW27 ACP Jai Singh Saini took over the investigations from 17.05.2005 and had been associated in the investigation along with SI PW26 SI Sunil Kumar and other State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 11 of 28
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police officials. He had collected the FSL report, which is Ex.PW27/C. 27 PW28 Inspector Sushil Kumar had deposed that on 03.05.2007, he had joined investigations along with PW33 SI Lokender of PS Sangam Vihar, who had informed him that the accused Pushpender @ Rinku, who was a Proclaimed Offender in this case had been arrested from near Batra Hospital. Accused Pushpender made a disclosure statement Ex.PW28/A. Thereafter, SI Lokender had apprehended the other accused Sandeep at about 09.00 p.m. from Badarpur Border at the instance of accused Pushpender, who had made a disclosure statement Ex.PW28/B. 28 PW29 HC Anil Kumar and PW13 HC Sanjeev Kumar had joined PW33 SI Lokender Singh in the arrest of the accused Pushpender @ Rinku and Sandeep. 29 PW31 was Sh. Satish Kumar, Secretary, Legal Aid, who had proved the TIP proceedings of accused Pushpender and Sandeep, which are Ex.PW31/B and Ex.PW31/C respectively. Both the accused had refused to join the TIP proceedings on the ground that their photograph had already been shown to the witnesses.
30 PW32 Sh. Rajender Kumar, Addl. Registration Clerk, Office of Registering Authority, Faridabad, Haryana, had deposed that the Indica Car bearing No. HR-51F-9172 was originally registered on 05.04.2000 in the name of Rajpal and was subsequently transferred in the name of Narender vide State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 12 of 28
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endorsement dated 01.04.2003 and the copy of the register containing the relevant entry is Ex.PW32/A. 31 The statement of all the accused persons were recorded separately u/s 313 Cr.PC, in which they pleaded their innocence.
32 Ld. Additional PP on behalf of the State had argued that the evidence led by the prosecution sufficiently proves the culpability of the accused persons of having committed the murder of Sanjay.
33 Ld. counsel on behalf of accused persons Pushpender @ Rinku and Sandeep has argued that there is no direct witness to the commission of the alleged offence and the case of the prosecution rests on circumstantial evidence. The first link in the sequence of events, which is required to be proved is the motive, but there is no evidence whatsoever led by the prosecution in respect of the motive. There is also no prosecution witness examined, who had last seen the deceased in the company of the accused persons. The only testimony is that of PW10 Pramod Sehgal, who had deposed that the Indica Car had been hired by accused Sandeep. However, there is no evidence further to show that accused Sandeep had ever travelled in the said vehicle or that he was ever seen in the company of the other accused persons and the deceased. As per the prosecution, Sandeep had been accompanied by accused Pushpender for hiring of Indica Car from PW10 Pramod Sehgal, but PW10 Pramod Sehgal had State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 13 of 28
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failed to identify accused Pushpender. There is no incriminating evidence against accused Pushpender @ Rinku and Sandeep except that of PW10 Pramod Sehgal, which also cannot be considered to be sufficient to bring home the guilt of murder against the accused persons.
34 Ld. counsel on behalf of accused Pawan has argued that as per the prosecution accused Pawan was arrested on 30.05.2005 by SI Sunil, but in fact he had been lifted from his house on 25.05.2005, for which a telegram had also been sent by his further to the Superintendent of Police. The claim of SI Sunil that he arrested accused Pawan and Sanjay on 29.05.2005 from their tenanted premises stands totally falsified. Once the arrest itself has been held to be fabricated, the subsequent alleged recovery of the original number plates and the original RC and Insurance cover of the Indica Car itself become suspect. It is further argued that the only incriminating evidence against accused Sanjay was the wrist watch which Sanjay was allegedly wearing at the time of his arrest and actually belonged to the deceased. However, there is no evidence whatsoever to show that the said watch was belonging to Sandeep. PW23 Pawan Jain had also deposed that the said watch had been sold to Jaiveer. Jaiveer had deposed in his testimony that he had given the said watch to the deceased, but that in itself is not sufficient to prove that the wrist watch recovered from the Sanjay was actually that of the deceased. In this context, it has been further argued that State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 14 of 28
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there was no mention that the deceased was wearing watch when he left and the recovery of the watch has also been shown from Sanjay after almost a month. Therefore, the presumption u/s 114 (a) of Indian Evidence Act cannot be drawn against the accused Sanjay. Also, it does not appeal to reason as to why the accused Sanjay would retain the wrist watch of the deceased so that he could be easily implicated in this case. It is, therefore, argued that there is no cogent evidence against any of the accused persons and they are all entitled to be acquitted.
35 So far as accused Shiv Pujan is concerned it is submitted that he was a bona fide purchaser of the Indica Car and was not even aware of the car being involved in any commission of offence.
36 It is further submitted that the first missing report had been lodged by the mother of the deceased only after two days. There is no explanation forthcoming as to why the report had not been lodged by the taxi owner, who had sent his car along with deceased. Furthermore, there is no documentary evidence to show that Harish was the taxi owner or that he had given the said taxi on hire to the accused Sandeep and Pushpender @ Rinku. The taxi, as per the prosecution, had been hired by PW10 Sh. Deepu @ Pradeep Sehgal, but there is no explanation even as to why Pradeep Sehgal did not join in the search of the Indica car. It is, thus, submitted that all the accused are entitled to be acquitted for want of evidence.
State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 15 of 28
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37 I have heard the arguments and gone through the evidence led therein. My observations are as under : 38 There is no direct evidence of the commission of the offence. It is a case, which is based on the circumstantial evidence. The principles which guide the appreciation of evidence in such cases has been reiterated in time and again in various cases by Supreme Court and High Courts, but it would still be appropriate to reiterate those principles for the proper appreciation of the facts in this case. 39 In "Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116", the Supreme Court has laid down the five tests to be satisfied in a case based on circumstantial evidence :
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, 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 State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 16 of 28
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consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
40 In the light of these parameters the evidence of the prosecution needs to be appreciated to conclude if the incriminating facts made a complete chain leading to the irresistible conclusion in regard to the guilt of the accused persons.
41 The first most crucial witness examined by the prosecution is PW10 Pradeep Sehgal, who has deposed that accused Sandeep had approached him for hiring of a taxi to go to Palwal to attend a marriage at Palwal along with his friends as they had missed the bus. Pradeep Sehgal had only a Maruti Van available to him but accused Sandeep wanted a car and on his insistence he contacted Jaiveer of K. D. Taxi Services, who was known to him since last many years and asked him to send an Indica Car and on his request one Indica Car along with a driver was sent which was taken away by accused Sandeep @ Sanju. It was further deposed by the witness that the accused Sandeep was accompanied by another person, but he did not recognize the said person. He also failed to identify accused Pushpender @ Rinku as the same person, who had accompanied Sandeep on the said day.
42 PW1 Jaiveer of K. D. Taxi Services in his testimony has corroborated the testimony of PW10 Pradeep and had State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 17 of 28
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deposed that on 05.05.2005 on the request of Deepu (Pradeep) he had sent his taxi Indica car bearing no. HR-51F-9172 of which deceased Sanjay was the driver. It was also deposed by him that Deepu had disclosed that the taxi was required by the persons known to him viz. Sandeep and Rinku as they were to attend a marriage at Palwal. The vehicle was taken by the driver Sanjay at about 07.00 p.m. on 05.05.2005 but the driver along with the car failed to return on 06.05.2006 and a search was commenced by the family members of the driver Sanjay in which he also joined and they went to the houses of Sandeep and Rinku, but they were not found present and they came to know that accused Sandeep and Rinku along with two other persons viz. Pawan Kumar and Sanjay had gone to Palwal. The rooms of accused Sanjay and Pawan were found to be locked. However, when they were unable to trace the driver and the vehicle, a complaint was made on 07.05.2005 by the mother of the driver Sanjay, on the basis of which DD No.27 Ex.PW24/A was registered. When ultimately the vehicle could not be traced till 10.05.2005, his father Harish lodged a complaint with PS Sangam Vihar, which is Ex.PW1/A. 43 Testimony of PW1 is corroborated by PW2 Harish, who is the father of Jaiveer and owner of K. D. Taxi Services. He had also deposed that the efforts were made to trace out the accused persons, but they were not available at their houses and eventually he made a complaint to the police on 10.05.2005.
State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 18 of 28
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44 PW6 Vijay Laxmi, is the mother of the deceased, who has deposed on similar lines as PW1 Jaiveer and PW2 Harish. She has further deposed that when her son did not return in the night, she had called him on a mobile phone provided to him by the owner of the Taxi Stand, and her son had told him that he was hungry and that he shall come back early in the morning. However, he failed to return and then she got in touch with Jaiveer and Harish, the Taxi owners and they all made a search for the car and the driver. They went to the house of accused Pushpender @ Rinku and from there Jaiveer told that he had got a telephone number of Jhansi, UP, from the father of accused Pushpender, who had told that after attending the marriage at Ballabhgarh, they had gone to the house of his sister at Jhansi. She made a phone call at the given number and the phone was picked up by one girl, who disclosed that four boys had come in the vehicle and their clothes were blood stained and some blood stains were also there on the seat of the vehicle and that they all had gone to wash their clothes and vehicle. She confronted Jaiveer and hot words were exchanged between them. She again made a call to Jhansi and was assured by father of Jaiveer that the boys had gone to Vaishno Devi and would come after 3 - 4 days but eventually she gave complaint in the police station. Ishtahare Shoregoga Ex.PW7/E was issued by the police for tracing out her son.
45 Dharambir along with one person was sent by State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 19 of 28
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father of Pushpender had then gone to Village Illiyas, District Jhansi, UP, and shown the photographs of accused Pushpender @ Rinku, to which she had replied that Pushpender @ Rinku along with his two associates had come to her house in the Indica Car, but deceased Sanjay was not with them. 46 PW1 Jaiveer, however, in his testimony has deposed that after meeting the father of accused Pushpender @ Rinku on1 1.05.2005, they had gone to the house of accused Sandeep, where they met his father Radha Kishan, who informed them that accused Pushpender @ Rinku, Sandeep, Sanjay and Pawan Kumar Pandey had gone to Aligarh and their whereabouts may be ascertained from Aligarh. 47 The testimony of these witnesses, therefore, bring out that on 05.05.2005, Indica car bearing No. HR-51F-9172 of which deceased Sanjay was a driver, had been sent by PW1 Jaiveer to PW10 Pradeep Sehgal on his request as it was required on hire by accused Sandeep for himself and his friends, who wanted to go to Palwal for attending the marriage. 48 What needs to be examined is what are the incriminating facts which emerged from the testimony of these witnesses. Testimony of PW10 Pradeep Sehgal brings forth for the Indica car had been hired by accused Sandeep on 05.05.2005. He was unable to identify the accused Pushpender @ Rinku, who according to the prosecution was accompanying Sandeep on that evening.
49 There apparently seems to be a contradiction in State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 20 of 28
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the testimony of PW1 Jaiveer, PW8 Dharamveer and PW6 Vijay Laxmi. As per information received by PW6 telephonically after attending the marriage at Ballabhgarh, they had gone to house of his sister at Jhansi. However, as per PW1 they were informed by the father of accused Sandeep that they had gone to Aligarh. First and foremost, there is no independent evidence to show that all the four accused persons had travelled together in the car to attend marriage in Ballabhgarh. There is no evidence to show that there was in fact a marriage at Ballabhgarh, which was attended by the accused persons or that vehicle had travelled Aligarh or Jhansi. The testimony of PW10 may have established that the vehicle was hired by Sandeep, but beyond that there is no evidence whatsoever to show that after hiring the vehicle accused Sandeep along with the other three accused persons had in fact travelled to Ballabhgarh. The hiring of the vehicle by Sandeep may be an incriminating fact, but in itself is not sufficient to conclude that he was guilty of murder of deceased Sanjay. 50 The only other evidence against accused Sandeep was his arrest by PW33 SI Lokender on 03.05.2007, i.e. after about two years, from near Badarpur Border and his disclosure statement Ex.PW28/D. There is no other independent evidence which could have connected the accused Sandeep with the commission of the offence.
51 The only incriminating evidence that has been produced against accused Sandeep was only of having hiring State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 21 of 28
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the vehicle, but besides that there is no independent evidence from where it could be concluded beyond reasonable doubt that accused Sandeep had committed the murder of deceased Sanjay.
52 Similarly, the only incriminating evidence against accused Pushpender @ Rinku was of having accompanied accused Sandeep on 05.05.2005, but the sole witness to this fact was PW10 Pradeep Sehgal, who in his testimony failed to identify Pushpender @ Rinku. In his cross-examination he had deposed that accused Pushpender @ Rinku was known to him from before as he used to accompany accused Sandeep when he used to come to him for repair of batteries. But he stated that the person, who had accompanied accused Sandeep on 05.05.2005 was not Pushpender @ Rinku. Besides this, the only other evidence against accused Pushpender @ Rinku was his arrest by PW33 SI Lokender on 03.05.2007 from Near Batra Hospital and his disclosure statement Ex.PW28/A was recorded. Again, the disclosure statement per se is not admissible in evidence and there is no other evidence to show that Pushpender @ Rinku had travelled in the Indica Car, which had driven by deceased Sanjay or that he was in any way involved in the commission of the offence. In the absence of any independent witness linking the accused Pushpender @ Rinku with the commission of the murder, he has to be given the benefit of doubt.
53 The other two accused are Pawan Kumar Pandey State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 22 of 28
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and Sanjay. PW7 ASI Umed Singh was posted at PP Pul Prahlad Pur and was handed over the DD no. 27 Ex.PW1/A in regard to missing of deceased Sanjay on 07.05.2005. During the investigations, he had made the efforts to trace out the accused persons as well as the deceased and the vehicle. On 12.05.2005, he along with the PW8 Dharamveer, PW1 Jaiveer and Ct. Pradeep had gone to Aligarh, UP in search of accused Sandeep and Pushpender @ Rinku and reached PS Akrabad of District Aligarh, UP, where they came to know that a dead body was recovered within their jurisdiction and they had shown photographs of the deceased from which Dharamveer and Jaiveer identified the person to be the present deceased Sanjay. An FIR u/s 302/201 IPC was, thus, registered. 54 On 29.05.2005, he joined investigations with PW26 SI Sunil Kumar, PW27 Inspector Jai Singh Saini, HC Pratap and Ct. Pradeep and public witness Jaiveer in search of the accused persons. On the basis of the secret information they all reached to the room in House No. 166, Jaitpur Extension, Saurav Vihar, New Delhi, where accused Sanjay and Pawan Kumar Pandey were found sitting outside the room on a cot and both were apprehended. Accused Pawan Kumar Pandey made a disclosure statement Ex.PW1/B and got recovered two number plates of Indica car from a Taand / slab and handed over the same to the Investigating Officer, which were seized and sealed vide memo Ex.PW1/E. Thereafter, he also produced the original documents of the vehicle i.e. RC and Insurance State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 23 of 28
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Policy from a ataichi case of black colour which was lying on the cot, which was seized vide memo Ex.PW1/F. 55 The accused Sanjay had also made a disclosure statement Ex.PW1/C and he was found to be wearing a watch which was identified by Jaiveer to be one which he had given to deceased Sanjay. Thereafter, the two accused i.e. Sanjay and Pawan Kumar Pandey led the police to Badarpur Border and got apprehended Shiv Pujan along with the Indica Car, which they had stated that they had sold to the accused Shiv Pujan and they were to get the balance amount from Shiv Pujan and also were to handed over the original documents of the vehicle to him.
56 From the testimony of these prosecution witnesses, the incriminating evidence that has brought against accused Pawan Kumar Pandey is recovery of number plates and original documents of the Indica car of which the deceased was the driver. The recovery had been effected on 29.05.2005 i.e. after about 20 days of this vehicle had been taken by deceased on 05.05.2005. The recovery of number plates and the original documents is not beyond suspicion or it is difficult to accept that any person, who is actually involved in commission of offence, would preserve and hide the original number plates and the documents in his own house for the police to conveniently recovery from the accused. Moreover, if the vehicle was sold to accused Shiv Pujan then the original documents would have naturally been handed over to him at State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 24 of 28
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the time of the sale of car and there was no reason for the original documents to have been preserved by the accused Pawan Kumar Pandey. The recovery of original number plates and the original documents from the house of accused Pawan Kumar Pandey is not beyond suspicion. Moreover, except this recovery of number plates and original documents of the case, there is no other incriminating evidence against the accused Pawan Kumar Pandey. From this recovery simplicitor it cannot be concluded that accused Pawan Kumar Pandey had travelled with the other accused persons in the car or was in any manner involved in the murder of deceased Sanjay. The recovery of number plates and documents from accused Pawan Kumar Pandey is not above suspicion and there is no other incriminating evidence against him. 57 Accused Sanjay had been apprehended on 29.05.2005 along with accused Pawan Kumar Pandey. Besides his disclosure statement Ex.PW1/C, he was found wearing a watch, which was identified by PW1 Jaiveer as belonging to deceased since he had given him as a gift. To corroborate the testimony of PW1 Jaiveer in regard to purchase of watch by him, PW23 Pawan Kumar Jain has been recorded, who was the owner of a watch shop and deposed that he had sold the watch to PW1 Jaiveer and had also given a guarantee card, which is Ex.PW1/2. The testimony of PW23 Pawan Kumar Jain coupled with that of PW1 Jaiveer only proves that the said watch had been purchased by PW1 Jaiveer. However, there is no evidence State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 25 of 28
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on record to show that same was gifted by PW1 Jaiveer to the deceased driver Sanjay except the testimony of PW1 Jaiveer himself. There is also no evidence to show that deceased Sanjay was wearing the said watch when he had left along with the Indica car on 05.05.2005. Moreover, as already mentioned above it is difficult to accept that after murder, the accused Sanjay would have kept the watch of the deceased with himself for his easy identification. There is no evidence led by the prosecution which could establish that the watch recovered from accused Sanjay was in fact worn by deceased at the time he was killed. The said recovery of watch from accused Sanjay is also not believable.
58 Besides the recovery of this watch from accused Sanjay and his disclosure statement, there is no other incriminating evidence against him including any last seen evidence from where the accused Sanjay could be held guilty. 59 The accused Pawan Kumar Pandey and Sanjay had led to the arrest of accused Shiv Pujan in the morning on the next day, from the Badarpur Border. Accused Shiv Pujan was found in possession of the Indica car.
60 Accused Shiv Pujan may have been found in possession of the car at Badarpur Border, but there is no evidence on record to show that Shiv Pujan had purchased this car knowing it to be stolen car or that he was aware that it was stolen properly. In the absence of any evidence on this aspect it cannot be said that accused Shiv Pujan had purchased this State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 26 of 28
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property knowing it to be a stolen property and hence, no offence u/s 411 IPC is made out against accused Shiv Pujan. 61 Besides all the evidence discussed above against all the accused persons, it is pertinent to mention that the deceased was carrying a mobile phone and the accused persons were also having mobile phones. The call details of these mobile phones of the accused persons and the deceased could have established with reasonable certainty the location of the accused persons and the deceased. Moreso, PW6 Vijay Laxmi had deposed that when she did not receive a call from her son on the day when he had gone out of Delhi, she had called him on the mobile and he had told her that he was hungry and was going to have his food. The call details were, thus, an important piece of evidence, but for the reasons best known to the Investigating Officer, the call details of neither the deceased nor the accused persons, had been collected. 62 To sum up there is no incriminating evidence brought against accused Sandeep and Pushpender @ Rinku except their disclosure statements, which could establish their complicity in the commission of murder of deceased Sanjay. Likewise, against accused Pawan Kumar Pandey besides his disclosure statement there was only a recovery of number plates and original documents of the car even if considered to be incriminating were not sufficient to prove the offence u/s 365/302 IPC. Likewise, against accused Sanjay besides his disclosure statement and recovery of the watch of the State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 27 of 28
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deceased, which he was wearing, which again is not sufficient to prove his guilt. The prosecution has also not been able to prove that Shiv Pujan had purchased the car knowing it to be the stolen property and no offence u/s 411 IPC is made out. No offence u/s 365 IPC made out against any of the accused persons as deceased had not been abducted; in fact, it was the case of the prosecution that the vehicle and its driver had been taken on hire by the accused persons. No offence of the abduction or of conspiracy to abduct and murder the deceased has been proved against any of the accused persons. 63 The prosecution though has brought some incriminating evidence against accused persons, like hiring of taxi by accused Sandeep and recovery of taxi at the instance of accused Pawan Kumar Pandey and Sanjay, but is not sufficient to arrive at a conclusion of abduction and murder of deceased Sanjay by the accused persons. The benefit of doubt has to be extended to the accused persons, who are hereby acquitted. Bail bond and surety bond of accused Shiv Pujan is discharged.
64 File be consigned to the Record Room.
Announced in the open Court on 07th Day of June,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi State v. Pawan Kumar Pandey etc. FIR No. 398/05 PS Sangam Vihar Page No. 28 of 28