Delhi District Court
State vs :- 1- Dharambir, on 11 September, 2007
IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI
S.C.NO.102/07
STATE VERSUS:- 1- DHARAMBIR,
S/O SH. SURAJ BHAN,
R/O 479, UDHAN PANA,
NARELA,
DELHI.
2- BEGHRAJ,
S/O SH. PALA,
R/O VILLAGE KANERA,
DISTT. MUZAFFAR NAGAR,
U.P.
3- KIRAN,
S/O SH. BABURAM,
R/O VILLAGE BOKAR HERI,
DISTT. MUZAFFAR NAGAR,
U.P.
FIR NO.48/2004
U/S 363/364A/302/201/120B IPC & 27 ARMS ACT.
PS NARELA.
JUDGMENT
Briefly stated the facts of the prosecution case as unfolded by the Report u/s 173 CrPC are as under.
On 04/02/04, a complaint was lodged with PS Narela by one Radhey Sham about missing of his 8 year old son Deepak. It was stated by him that his son is missing since 03/02/04 from about 12.30 pm. He though stated that his son has probably been kidnapped away but did not express his suspicion upon anyone specifically. Accordingly on the basis of the said complaint, a case for the offence u/S 363 IPC was registered at PS Narela. Investigation of the matter was taken up by SI R.K. Mann. Thereafter on 05/02/04, accused Radhey Sham received a telephone call in the house of one of his neighbourer Gopi Chand and where the caller told him that his son Deepak is in their captivity. He also told him that he will again receive a call at around 12 noon. Thereafter, at around 11/11.15 am, Radhey Sham again received a telephone call at the house of Gopi Chand and where his son Deepak on the other side merely stated "papa papa". The caller thereafter demanded a ransom of Rs. 2 lakhs for the release of his son Deepak and also told him that they will inform again later on about the place of delivery of money. Incidentally, as Gopi Chand was having an ID caller facility on his telephone so both the numbers from where the two calls were received were noted down by Radhey Sham. The matter was thereafter informed to the police and who upon checking found that both the calls have been made from UP. Accordingly the police party along with Radhey Sham and one Dharambir, the father-in-law of Radhey Sham went to Khatoli, UP and from the Telephone Exchange, Khatoli, they procured the addresses of the two places from where the said two telephone calls received at the house of Gopi Chand were made. Both the numbers were found to be of two STD booths.
The first telephone viz. telephone no. 225911 was found to be of village Behda Shahda and the second telephone no. viz. telephone no. 223082 was found to be installed at a STD booth in village Morna. Upon inquiry, the STD booth owner at village "Behda Shahda", Bharat Bhushan, informed the police party that two persons accompanied with one child had come to his booth to make the said telephone call and that the child had also talked on the telephone. Similarly, the owner of the STD booth at village "Morna" namely one Mohd. Irfan also informed to the police party that two persons had come to his telephone booth to make the said call to Delhi. On the basis of the description of the two persons and that of the child Deepak given by the two STD booth owners, Radhey Sham gathered that the said description of the two persons tallied with that of one Beghraj who was the brother in law of his elder brother Dharambir and that of one Kiran who was the brother in law (sandhu) of said Beghraj. Accordingly the police party accompanied with Radhey Sham went to the village of accused Kiran i.e at Bhokar Heri and to the village of Beghraj i.e at Kameda. Though both of them were not found available at their respective houses but they came to know that they are working at a "Gupta Brick Kiln" in village Lalpur, Distt. Meerut. Accordingly they all rushed to said "Gupta Brick Kiln" and where they found both Beghraj and Kiran staying in a Jhuggi over there. On the identification of Radhey Sham, they both were apprehended and were brought to village Behda Shahda and Bharat Bhushan , the STD booth owner over there immediately identified them to be the same persons who had come to their booth to make a telephone call to Delhi along with a child. Similarly, the two accused persons were thereafter taken to village Morna and where again the STD booth owner over there namely Mohd Irfan identified them to be the same persons who had come to his STD booth to make the telephone call to Delhi. Thereafter both accused Beghraj and accused Kiran were interrogated and during the course of their interrogation they allegedly made disclosure statement admitting their guilt. They further disclosed that Deepak was indeed kidnapped by them but also stated that he has since been killed by them. They thereafter led the police party to PS Pothwali, Khatoli, UP. The local police officials namely SI Dharampal of PS-Kothali was thereafter joined in the proceedings. Thereafter both the accused persons, namely, Beghraj and accused Kiran led the police party to National Highway, Khatoli towards Merrut about 200/250 yards inside the sugar cane fields from the road. From over there they got recovered the dead body of a child and which was identified to be that of Sandeep by his father. A pair of sleepers and one T-shirt were also lying near the dead body. The accused persons also got recovered a knife from a distance of about 15/20 yards away from the dead body stating it to be the same knife by which child Deepak was killed by them.
IO SI R.K. Mann thereafter prepared the sketch of the knife and seized it after sealing it in a pulanda with the seal of "RPM". The pair of sleepers, T-shirt,blood stained earth, earth control etc were all seized from the spot in separate pulandas and were sealed with the seal of "RPM". The dead body was also taken in to possession and necessary inquest proceedings were carried out. The post mortam examination upon the dead body was thereafter carried out at Babu Jagjeevan Ram Hospital, Jehangir Puri, New Delhi on 7/02/04.
Subsequently, on 8/2/04 accused Dharambir and his son Sonu were also arrested in the present case. It was found during the course of investigation that Deepak was lastly seen in the custody of accused Dharambir and Sonu by his mother namely Smt. Usha w/o Radhey Sham. At that time, both accused Dharambir and accused Sonu had stated that they are taking Deepak to get him toffees. Smt. Usha did not suspect anything at that time as accused Dharambir was none else but the real elder brother of her husband and Sonu was the son of Dharambir. However, consequent to the aforesaid last seen evidence and pursuant to the disclosure statement of accused Beghraj and accused Kiran, these two accused persons namely Dharambir and Sonu were also arrested in this case. Dr. B.N. Acharya who conducted the Post Mortam examination over the dead body of Deepak also examined the impugned knife which as per the accused persons was the weapon of offence and he also opined that the injuries as were found on the dead body of Deepak were possible by the said knife. Later on, the various exhibits were also sent to FSL for examination. Upon completion of necessary further investigation, Challan was prepared and was filed in the court for trial.
The charge sheet qua accused Sonu was however filed before the Juvenile Justice Board as it was found that Sonu was a minor as on the date of offence. Upon committal of the case to the Court of Sessions, charge for the offence u/s 363/364 A/302/201/120 B IPC R/W Section 27 Arms Act, 1959 was framed against all the three accused persons by the then Ld. Predecessor of this court. All the three accused persons namely Kiran, Beghraj and Dharambir however pleaded not guilty to the charge and claimed trial.
Prosecution thereafter in order to prove its case, examined 18 witnesses. The three accused persons were thereafter examined u/s 313 CrPC. While accused Beghraj and accused Kiran did not lead any evidence in their defence but accused Dharambir summoned certain record of his duty from PS Narela where he was posted as a Home Guard Constable at the relevant time of the incident.
PW1, Usha W/o Radhey Shyam was the mother of the deceased child Deepak who had lastly seen him alive in the company of accused Dharambir and accused Sonu. She accordingly reiterated the prosecution story in this regard.
PW2, Radhey Sham was the complainant and the father of deceased child Deepak. He not only reiterated the entire prosecution story in his deposition but also proved the initial complaint Ex PW 2/A lodged by him with the police.
PW3, Gopi Chand was the neighbourer of Radhey Sham and at whose house, the two impugned calls from the kidnappers of Deepak were received by Radhey Sham.
PW4 , Irfan Mohd was the STD booth owner at village Morna, Distt Muzafar Nagar, UP from where the accused persons had made a telephone call at 8.47 am on 05/02/04. He had later on identified accused Beghraj and accused Kiran before the police to be the same persons who had made the said telephone call .
PW5, Bharat Bhushan was the owner of the STD booth at village "Behda Shahda" from where accused Beghraj and accused Kiran had again made a telephone call to Delhi at about 11 am on 05/02/04 and had also made Deepak to talk to his father, Radhey Sham. He also deposed having identified accused Beghraj and accused Kiran before the police as being the same person who had made the said telephone call to Delhi from his telephone booth.
PW6, ASI Ramesh Chand was the Duty Officer PS Narela who had recorded the FIR Ex. PW 6/A in the present matter.
PW10, Jagir SIngh had recorded DD No. 25 A on 03/02/04 at PS Narela being the DD writer and had handed over the same for further necessary action to SI R.K. Mann.
PW12, Ved Prakah was a teacher, MCD Primary School, Narela where accused Sonu used to study and he proved his DOB as per the school record to be 13/08/987.
PW13, SI Manohar Lal was the draftsman who prepared the scaled site plan of the place of recovery of dead body i.e Ex. PW 13/A. PW14,Dr. B.N Acharya had carried out the Post Mortam examination upon the dead body of Deepak vide his report Ex 14/A and he had also later on examined the impugned weapon of offence vide his opinion Ex PW 14/C besides proving the sketch of the said knife as Ex PW 14/B. PW15, Ct. Bilender Singh was the Duty Constable posted in mortuary, BJD Hospital to whom the doctors had handed over the sealed pulanda along with the sample seal after carrying out the Post Mortam examination. He handed over the same to the SHO.
PW17, SI RK Mann was the main Investigating Officer of the case. In his deposition, he reiterated the investigation carried out by him besides proving the various documents/memos prepared by him during the course of investigation.
PW18 Inspt. Mahipal Singh was the then SHO PS Narela who was also associated with the entire investigation of the present case right from the beginning but had finally taken up the investigation of the case himself after it was found that Deepak has since been killed and offence u/s 302 IPC was added to the case file. He thus reiterated the proceedings carried out by him besides proving the various documents/memos prepared by him during the course of investigation.
PW16 SI Dharampal Singh was the UP police official who was joined in the proceedings by SI RK Mann when they went on in search of the dead body of Deepak at the instance of accused Beghraj and accused Kiran. He thus corroborated the testimony of SI RK Mann in materials particulars while proving the various documents/memos prepared in his presence.
PW7- Ct. Ravinder, PW 8-Ct. Hansraj, PW 9 -Ct. Mange Ram and PW 11 Ct. Ramesh Kumar were the other police officials who remained associated in the investigation of the present case with SI RK Mann and Inspector Mahipal at various stages of the investigation. They all thus reiterated the investigation as was carried out in their presence and thereby corroborated the testimony of PW 17 SI RK Maan and PW18 Inspt. Mahipal Singh in materials particulars. In their statement u/s 313 CrPC, the accused persons however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
DW1 was also SI RK Mann himself as the relevant record sought to be summoned by accused Dharambir from PS Narela was also produced by him. As per the said record, accused Dharambir who was posted as a Home Guard Constable at PS Narela was found to have reported for his duty at PS Narela at about 10 PM on 03/02/04 vide DD No. 43 Ex DW 7/A and again on 04/02/04 vide DD No. 29 Ex DW 7/B at about 9.45 pm. I have heard Ld. APP as well as ld. defence Counsels Sh. Manish Kumar, Ms. Dhaneshwari and Ms. Sadhna Bhatia for the three accused person.
It has been submitted by learned defence counsel for accused Dharambir that except for the last scene evidence as deposed to by PW1 Smt. Usha, the mother of deceased, there was not even a single iota of legally admissible evidence available on record against him. It was submitted that the alleged disclosure statements of the two accused persons is clearly not admissible in evidence. It was further stated that accused Dharambir has been merely implicated in this case on the basis of suspicion. He was thus prayed to be acquitted.
Ld. Counsel for the other two accused persons, namely, Beghraj and Kiran however stated that their clients have also been arrested merely on the basis of suspicion and their involvement in the present offence in question has not been established by the prosecution. It was stated that the alleged recovery of the dead body of Deepak and the other articles including the knife from over there was clearly from an open field and the police party despite availability of a number of public persons failed to join any one of them in their proceedings. It was also stated that the owner of the said sugarcane field from where the dead body was allegedly recovered was also neither joined in the proceedings by the police nor examined by the prosecution during the course of trial. It was also stated that the alleged clothes of deceased Deepak as were recorded by the police were different from the one which were mentioned in the missing report Ex.PW2/A lodged by his father with the police. It was also stated that no TIP of the accused persons or even that of the clothes of the deceased was carried out. It was also stated that the prosecution also could not establish the " time since death of Deepak in as much as there is clearly a time difference of about seven hours in the probable time of death as stated to by the prosecution. It was also stated that in the site plan of the place of recovery of dead body the impugned knife was not shown as having been recovered from over there. It was also stated that even the seal after use was not handed over to anyone by the IO. It was further stated that the two telephone numbers which were noted down by Radhey Shyam on a piece of paper clearly appears to be a forged and fabricated document subsequently created with a view to help the prosecution case. A number of other contradictions/improvements in the testimony of the various prosecution witnesses were also pointed out. It was further emphasized that the prosecution has clearly failed in proving the various circumstances in the circumstantial chain of evidence conclusively to the effect that the only inference arising from out of them is towards the guilt of the accused persons and nothing else. It was also stated that the prosecution has miserably failed to prove the very motive which could have led the accused persons to commit such a ghastly crime. The accused persons were thus prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsels stating that the evidence led by the prosecution was cogent, convincing and reliable in nature. It was further stated that besides the circumstantial nature of evidence led in the present case, there was ample direct evidence available on record which clearly points out towards the guilt of the accused persons. The prosecution was thus stated to be successful in proving its case against all the accused persons. They were thus prayed to be convicted.
I have carefully perused the record including the written submissions filed.
At the outset, I may state that the present case is primarily based on circumstantial nature of evidence and at least as regards accused Beghraj and Kiran, the prosecution has been clearly successful in proving all such circumstances conclusively which forms a complete chain of evidence pointing exclusively to the guilt of the accused persons only and does not lead to any other inference. I shall be herein after delineating all such circumstances which the prosecution has thus led and proved on record while also at the same time considering them in the light of the submissions made by learned defence counsels. However, before I embark upon an analysis and discussion of the testimony of the various prosecution witnesses, it will be worthwhile to reiterate the often stated parameters as laid down by Hon'ble Apex Court of the land in a number of cases to be kept in mind by a court while dealing with a case based on circumstantial evidence exclusively.
It was observed in the case BODH RAJ @ BODHA & ORS. VS. STATE OF J&K AIR 2002 SC 3164 that :
"For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. There is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are :
1 the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established;
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.
Similarly, as regards the last seen theory also the Hon'ble SC in the same case viz BODH RAJ (SUPRA) observed as under:
"The last seen theory comes into play where the time gap between the point of time when the accused and 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 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 accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
First of all, I propose to deal with the most important aspect of the present case or for that matter of any criminal case viz the motive.
Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with. But, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perperator of the crime alone, who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime.
Coming to the facts of the case in hand, I may state that allegedly the motive which led the accused persons to commit such a ghastly crime is stated to be a property dispute existing between the parties followed by a lust of money viz the demand of ransom money pursuant to the kidnapping of Deepak. No-doubt, the prosecution has not led any evidence qua any such property dispute pending between the parties and at the same time it also cannot be stated that the relationship between the two parties were not cordial. However, this may or may not be the actual or prime motive but the involvement of accused Kiran and Beghraj has been clearly established on record from the testimony of PW2Radhey Shyam, the father of deceased child, PW3 Gopi Chand at whose house the impugned two telephone calls in which a demand of ransom of money was raised for the release of Deepak were received and from the testimony of PW4 Irfan Mohd. and PW5 Bharat Bhushan, the two STD Booth owners. Thus, though in the absence of any evidence having been not led qua the property dispute existing between the parties, it will merely amount to drawing up of a conclusion merely on the basis of conjectures and surmises that the motive to kidnap Deepak was any such property dispute between Radhey Shyam and his brother Dharambir (accused herein) but, it has clearly been proved on record that Deepak was kidnapped with a view to demand ransom from his father for his release. Certainly, as already mentioned herein above the absence of proof of motive however cannot thwart away the prosecution effort to bring home the guilt of the accused persons and all the more when it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to the commission of crime.
Thus, in view of my aforesaid discussion, the un-controverted and clinching evidence led by the prosecution qua the demand of ransom towards the release of Deepak made by accused Kiran and Behgraj from PW2 Radhey Shyam, it clearly stands proved that Deepak was kidnapped with a view to demand ransom. I shall be discussing at a later stage of my judgment that this aspect of the prosecution case could not be by and large assailed at the thresh hold of the cross-examination.
Before I proceed to discuss the prosecution case qua accused Kiran and Beghraj, I would first like to discuss it qua accused Dharambir.
As regards accused Dharambir, the prosecution has primarily sought to prove his involvement in the commission of the present offence from the testimony of PW1 Usha, the mother of deceased child Deepak. She merely saw Deepak last seen alive in the company of accused Deepak and his son Sonu (since facing trial before Juvenile Justice Board) at about 12.45pm on 3-2-2004 when they allegedly stated to her that they are taking Deepak to buy toffies for him. Apart from the aforesaid last seen evidence the only other incriminating evidence sought to be led on record by the prosecution is the alleged disclosure statements of the other two accused persons, namely, Kiran and Beghraj. It was also emphasized by the prosecution that the other two co-accused persons were also close relatives of accused Dharambir.
However, from the aforesaid catena of incriminating evidence led on record against accused Dharambir, I may state that except for the last seen evidence the other piece of incriminating evidence is clearly not admissible against him. The alleged two disclosure statements of the two co-accused persons certainly cannot be relied upon as they are inadmissible in evidence against him. Furthermore, the mere close relationship of accused Kiran and Beghraj with accused Dharambir cannot be held to be an incriminating circumstance against accused Dharambir. However, on the other hand this fact may though act as an incriminating evidence against accused Kiran and Beghraj in as much as this close relationship might have provided to them a knowledge about the possibility of commission of this nature of offence with Deepak and for demanding of ransom from his father for his release. Thus, even if the said last seen evidence is presumed to be true then also the same in itself cannot be considered to be an incriminating evidence against accused Dharambir especially in the absence of any other nature of evidence even worth the name having been not led on record by the prosecution against accused Dharambir. Though, accused Dharambir has also denied this piece of evidence but, I am not entering into a discussion of the same as the same will be an exercise in futility. The chain of circumstantial evidence so led on record by the prosecution does not lead to the sole inference of the guilt of accused Dharambir. The said chain of evidence is not such which is inconsistent with the innocence of accused.
In view of my aforesaid discussion, I am thus of the considered opinion that as regards accused Dharambir the prosecution has miserably failed in proving its case for any of the offences whatsoever.
Coming to the case of the prosecution against accused Kiran and Beghraj, I may state that the same has been clearly proved beyond shadows of all reasonable doubts by the prosecution. I may also state that in the entire cross-examination of the various prosecution witnesses as carried out on behalf of accused Kiran and Beghraj, I have been unable to find any circumstance which may lead me to disbelieve the testimony of these witnesses or may favour the accused persons.
It will be worthwhile to reiterate the incriminating pieces of evidence which have been led and proved on record by the prosecution against these two accused persons.
The receipt of the two telephone calls at the house of Gopichand by PW2 Radhey Shyam and consequent noting down of the said telephone numbers from the ID Caller facility available in the telephone installed at the house of Gopichand which finally led the police to the STD Booth of PW4 Irfan Mohd and PW5 Bharat Bhushan is the first such piece of incriminating evidence led on record by the prosecution. The guess made by PW2 Radhey Shyam about the involvement of accused Kiran and Beghraj pursuant to the description of the two persons given to him by PW4 Irfan Mohd. and PW5 Bharat Bhushan, the two STD Booth owners as the persons, who had made the telephone calls to Delhi from their STD Booths was the next piece of such incriminating evidence. Thereafter upon apprehension of the said two accused persons from Gupta Brick Klin, their identification by both PW4 Irfan Mohd. and PW5 Bharat Bhushan as being the same persons, who had come to their STD Booth to make the telephone calls is another important link in the circumstantial chain of evidence. The subsequent interrogation which led to the making of the disclosure statement by the two accused persons stating about their involvement in the present case is another such piece of incriminating evidence led on record by the prosecution. Thereafter, the recovery of the dead body of Deepak along with his T-shirt and sleeper besides the weapon of offence viz the knife from the sugarcane field at the instance of the two accused persons formed another major link in the circumstantial chain of evidence so led on record by the prosecution. The postmortem examination on the dead body of Deepak followed by an opinion by the doctor that the injuries on his person could have been possible by the said knife so recovered from the sugarcane field again forms a subsequent link in the prosecution chain of evidence. The fact that human blood was found on the said knife upon examination at FSL provides yet another link in the prosecution chain of evidence. Lastly, non-explanation of any circumstance by the two accused persons as to why the police and more specifically PW2 Radhey Shyam will like to falsely implicate them in the present case adds upto yet another piece of incriminating evidence.
As regards the receipt of the two telephone calls and the consequent noting down of the said two incoming telephone numbers from the ID Caller facility, I may state that the suggestions merely put to the contrary in this regard by the accused persons were vehemently denied by PW3 Gopi Chand. It cannot be stated that by merely putting certain suggestions whereby stating the deposition of a given witness to be false, the entire worth of the testimony of the said witness stands eroded away and more so when the witness has vehemently denied all such suggestions stating them to be false. It is well settled that mere putting of certain suggestions cannot amount to a cross-examination whereby the testimony of any given witness becomes of no use to the prosecution. The testimony of such a witness thus cannot become inadmissible against the concerned accused on the basis of such suggestions. As already stated by me, the accused persons have been miserably unsuccessful in the cross-examination of either PW2 Radhey Shyam or PW3 Gopi Chand to elicit anything which may favour them in this regard. In fact, PW3 Gopi Chand has been truthful to the extent that he clearly stated that he noted down the said two telephone numbers on a piece of paper subsequently after about one week. This piece of evidence further gets corroboration from the testimony of PW4 Irfan Mohd. and PW5 Bharat Bhushan, who have also proved the receipts in respect of the calls made from their STD Booths allegedly by the accused persons viz Ex.PW4/A, Ex.PW4/B and Ex.PW5/A. This piece of evidence that the said two calls were made from the said STD Booths of PW4 Irfan Mohd. and PW5 Bharat Bhushan also gets corroboration from the fact that finally the dead body of Deepak was found in the sugarcane fields in the nearby area. I may add a word of caution over here that the recovery of dead body from the sugarcanes field has not been disputed by the accused persons though they have claimed that they did not lead the police party to any such place. Moreover, neither as against PW3 Gopi Chand nor as against PW4 Irfan Mohd. or as against PW5 Bharat Bhushan anything could be brought on record by the accused persons which could show as to why they would like to falsely depose against accused Beghraj and Kiran and thereby falsely implicating them in this case. In fact to PW5 Bharat Bhushan, it was merely suggested by learned defence counsel that the police had pressurized him to falsely implicate the accused persons by showing them to him at his STD Booth. However, no such suggestion was at all put to PW4 Irfan Mohd. that he had not identified the two accused persons before the police. It was rather suggested to him that Radhey Shyam was known to him from prior thereto and, therefore, he was deposing falsely at his instance. I may add a word of caution over here that in such type of cases when the prosecution is trying to prove its case by way of circumstantial nature of evidence then in case of putting of such kind of suggestions a duty is casted upon the accused persons to substantiate their such suggestions if there is at all any element of truth in them. They cannot be permitted to put vague suggestions like this unless until there is some element of truth at least in their claim.
The fact that PW2 Radhey Shyam was able to make a guess about involvement of Kiran and Beghraj from the description given by the two STD Booth owners about the persons, who had come to make a call does not arouses any suspicion in as much as they were admittedly known to him from prior thereto being his close acquaintances.
Coming to the most important aspect of the present case viz the recovery of the dead body of Deepak along with the pair of sleeper, T-shirt and the knife, I may state that the said fact is clearly admissible U/S 27 Indian Evidence Act. It cannot be stated that a place about 200 to 250 yards inside the sugarcane field from the road can be termed to be an open accessible place to the public in general. This knowledge was exclusively to the two accused persons and the police could trace out the dead body and the other articles only when the two accused persons pointed out the said place. As I have already stated herein above that the recovery of dead body from the said sugarcane field has not been disputed on behalf of the accused persons. However, some other lacunas in the said proceedings carried out by the IO have been pointed out by learned defence counsels viz non-joining of public independent witnesses or the impugned knife having been not shown in the relevant site plan etc. but, the same in my considered opinion are merely careless and negligent omissions on the part of the investigating officer which however cannot shake the ground beneath the prosecution story.
Often it is seen that the investigating officers in order to present a coherent sequence of investigation carried out by them in contrast to the one which is actually carried out tries to manipulate the facts & circumstances in their own way. Certainly such kind of manipulations are not difficult to be ascertained and some of which have been very rightly pointed out by learned defence counsels. However, if any lacunas are found to be existing in the investigation of any given case then it does not follows as a necessary corollary or as a universal rule that the prosecution case needs to be thrown overboard. What is required to be seen is as to whether the said lacunas in the prosecution case raises such kinds of doubts as to the veracity of the prosecution case which could be termed as reasonable doubts. It is not every kind of doubt arising in any given case which may necessitate that the entire prosecution case should be disbelieved irrespective of the nature of the testimony of the various prosecution witnesses or the overall facts & circumstances of the case.
In fact, the latest trend of the Criminal Jurisprudence is moving adrift from the earlier view of proof beyond reasonable doubt to be the golden principle. It is now held that it is public duty of the Judge that guilty should not escape. If there is ring of truth around the prosecution case, the same cannot be rejected. This was the view of the Hon'bleSupreme Court in State of UP Vs. Anil, reported in AIR 1988 Supreme Court-1998, In State of Punjab Vs. Karnail Singh reported as 2004,SCC (Cri.)-139 The Hon'ble Supreme Court has held as under :
"Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh Vs. Satpal Singh). The prosecution is not required to meet any and every hypothesis put forward by the accused (See State of UP Vs. Ashok Kumar Srivastava).
A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish (See Inder Singh Vs. State (Delhi Admn.). Vague hunches cannot take place of judicial evaluation.
"A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties (Per Viscount Simon in Stirland Vs. Director of Public Prosecution quoted in State of UP Vs. Anil Singh, SCC page 692 para 17). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth (See Shivaji Sahabrao Bobade Vs. State of Maharashtra, State of UP Vs. Krishna Gopal and Gangadhar Behera Vs. State of Orissa)".
No-doubt, the investigating officer ought to have joined certain public independent witnesses in his proceedings but, the said omission cannot in itself be sufficient to throw overboard the entire prosecution story. As regards the "time since death" of Deepak as opined to by PW14 Dr.BN Acharya, who carried out the postmortem examination, I may state that the said difference of seven hours is hardly of any importance in the overall facts & circumstances of the present case. Clearly, Deepak was missing from 3-2-2004 onwards and his dead body was finally recovered on 6-2-2004 so this much difference in the "time since death" can always occur in the overall facts & circumstances of the present case. This issue thus cannot be given any importance which may shake away the veracity of the prosecution case. In the cross- examination of PW14 Dr.BN Acharya also it was simply put to him that such kind of injuries could have been caused by similar kind of other sharp edged weapons also and which he rightly replied in affirmative. However, he was not put any suggestion or question that he did not examine any such knife or did not give any opinion qua it. Similarly, the FSL report viz Ex.PW18/L and Ex.PW18/K which was clearly admissible in evidence has also remained un-controverted at all. The fact that human blood stains were found on the said knife further lends ample corroboration to the prosecution story.
Lastly, as regards the alleged recovery of dead body of Deepak recovered at the instance of accused Beghraj and Kiran, the same irrespective of the applicability of Section 27 Indian Evidence Act does invoke Section 8 Indian Evidence Act.
The conduct of accused persons in leading the police to the place from where the dead body of Deepak was finally recovered is clearly admissible U/S 8 of the Indian Evidence Act. In fact, the dead body and other belongings of deceased Deepak were also recovered in pursuant to the disclosure statement made by the two accused persons. Thus, I may once again state that irrespective of any other statements made at that point of time by the two accused persons which may or may not stand admissible U/S 27 Indian Evidence Act, the aforesaid conduct in pointing out the said place by the two accused persons is clearly an important piece of incriminating evidence admissible against them U/S 8 of the Indian Evidence Act. In the case PRAKASH CHAND VS STATE AIR 1979 SC 400, it was observed by the Hon'ble SC that "There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to the Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by Police Officer during the course of investigation. For example, the evidence of the circumstance simpliciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden would be admissible as conduct U/S 8 of the Evidence Act irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act (vide Himachal Pradesh Administration V. Om Prakash (AIR 1972 SC 975)".
I also find support in my aforesaid view from the case A.N. VANKATESH AND ANOTHER VS. STATE OF KARNATKA AIR 2005 SC 3809.
Finally, as regards the charge of criminal conspiracy, I may state that conspiracies are always hatched in secrecy and it is always impossible to adduce direct evidence of the same. The offence can only be proved largely from the inferences drawn from the acts for illegal omissions committed by the conspirators in pursuance of a common design.
In the case in hand also the incriminating circumstances which have been cogently proved on record by the prosecution clearly provide sufficient evidence of the existence of a criminal conspiracy between the present two accused persons to kidnap Deepak and to thereafter demand ransom and failing which they killed him.
The Hon'ble SC in the case AMAR SINGH VS. BALVINDER SINGH AND OTHER 2003 (2) observed:
"if primacy is given to any designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions the fate and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice".
Thus, in the light of the aforesaid observations of Hon'ble SC of India and the various incriminating circumstances as stands proved on record against the accused persons, I may further quote certain other observations of Hon'ble SC of India as were made in the case STATE (NCT OF DELHI) VS. NAVJOT SANDHU 2005 SCC (CRL.) 1715 "While dealing with the aspect of criminal conspiracy and circumstantial evidence, the commulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt".
In regard to the apprehension of evidence relating to the conspiracy, the court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infere their concurrence as to the common design and its execution.
Thus, from an overall analysis of the circumstances that have been discussed above and held to have been proved beyond any doubt by unimpeachable evidence, I am of the view that these circumstances form a chain so complete which leads me to the only conclusion that it was accused Beghraj and Kiran and none else, who kidnapped the child Deepak with a view to demand ransom and upon being unsuccessful in their said attempt they committed his murder. They both thereafter caused the disappearance of their aforesaid act of kidnapping and committing murder of Deepak by concealing his body and other belongings besides weapon of offence in the sugarcane fields. The circumstantial evidence in the present case is thus absolutely inconsistent and incompatible with the innocence of the accused persons. There is no circumstance brought on record by the accused persons suggesting their innocence or the possibility of anyone else having committed the said ghastly acts.
In view of my aforesaid discussion I am thus of the considered opinion that while the prosecution has failed in proving its case against accused Dharambir but, it has been completely successful in proving its case against accused Beghraj and Kiran for the offence U/S 363/364A/302/201/120B IPC R/W Section 27 Arms Act, 1959.
I accordingly hereby convict accused persons, namely, Beghraj and Kiran for the offences u/S 363/364A/302/201/120B IPC and under Section 27 Arms Act, 1959 while acquitting accused Dharambir in the present case of all the offences.
Announced in the open court on 6-9-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI:DELHI IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI S.C.NO.102/07 STATE VERSUS:-DHARAMBIR ETC.
FIR NO.48/2004U/S 363/364A/302/201/120B IPC & 27 ARMS ACT.
PS NARELA.
ORDER ON SENTENCE Vide my separate detailed judgment dated 6-9-07 accused persons, namely, Beghraj and Kiran both have been convicted for the offences U/S 363/364A/302/201/120B IPC and 27 Arms Act, 1959.
I have heard ld. Counsels-Ms. Sadhna Bhatia and Sh. Manish Kumar for both the convict persons as well as ld. APP for the State on the point of sentence.
It has been submitted by learned defence counsel for convict Beghraj that he is a young boy, aged about 25 years and has no previous criminal record of any nature whatsoever. It was further submitted that he is the sole bread earner of his poor family, comprising of his old aged parents and his young wife. It has been submitted convict Beghraj has remained in jail during the course of entire trial i.e since 6-2-2004. A lenient view was thus prayed for.
As regards convict Kiran, it was submitted that he is aged about 38 years and is the sole bread earner of his poor family, comprising of his old aged parents, his wife and five minor children. It was further stated that he too has no previous criminal record and has been in jail during the course of entire trial i.e for a period of more than 3½ years. A lenient view was thus prayed for.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsels stating that the cruel hands of the two convict persons took away the life of a young boy and the sole ray of hope of the parents of said boy. It was also submitted that the facts & circumstances of the present case does not call for taking of any lenient view qua the present two convict persons. It was thus prayed that a severe sentence be imposed upon them.
I have carefully perused the record.
Before I advert on to the nature of quantum of punishment which may be inflicted upon the two convict persons, it will be worthwhile to mention that during the course of arguments on the point of sentence convict Beghraj specifically sought permission to address the court and upon being granted permission to do so, he stated that though he has in fact committed the present crime but, his co-convict Kiran is completely innocent. He also stated that the said crime was committed by him at the instigation of accused Dharambir (since acquitted). However, he was told by the court that it was too late in the day to make such a submission as after the passing of the final judgment, the court cannot go back into an analysis of the said aspect of his confession of his guilt irrespective of the fact as to whether the same is a correct admission of his guilt by him or not or whether the same is feeble attempt on his part to save co-convict Kiran, who is none else but his brother-in-law (jija).
Be that as it may be, keeping in view the overall facts & circumstances of the case, coupled with the submissions made, I am of the considered opinion that the present case does not fall in the category of "rarest of rare" cases. I accordingly hereby sentence both the convict persons, namely, Beghraj and Kiran to rigorous imprisonment for life and to pay a fine of Rs.2,000/- each for the offence U/S 302/120B IPC .
In default of payment of fine, each of the two convict persons shall further undergo simple imprisonment for a period of two months each.
As regards offence U/S 120B IPC for the offence of entering into a criminal conspiracy to kidnap Deepak for demand of ransom and to commit murder and to thereafter cause disappearance of the evidence of their crime, I sentence both the convict persons, namely, Beghraj and Kiran to rigorous imprisonment for life and to pay a fine of Rs.2,000/- each.
In default of payment of fine, the two convict persons shall further undergo simple imprisonment for a period of two months each.
As regards the offence U/S 363/120B IPC , I sentence both the convict persons, namely, Beghraj and Kiran to rigorous imprisonment for a period of five years each and to pay a fine of Rs.1,000/- each.
In default of payment of fine, the two convict persons shall further undergo simple imprisonment for a period of one month each.
As regards the offence U/S 364A/120B IPC, I sentence both the convict persons, namely, Beghraj and Kiran to rigorous imprisonment for life and to pay a fine of Rs.2,000/- each.
In default of payment of fine, the two convict persons shall further undergo simple imprisonment for a period of two months each.
As regards the offence U/S 201/120B IPC , I sentence both the convict persons, namely, Beghraj and Kiran to rigorous imprisonment for a period of three years each and to pay a fine of Rs.1,000/- each.
In default of payment of fine, the two convict persons shall further undergo simple imprisonment for a period of one month each.
As regards the offence U/S 27 Arms Act, 1959 , I sentence both the convict persons, namely, Beghraj and Kiran to rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- each.
In default of payment of fine, both the convict persons shall further undergo simple imprisonment for a period of two months each.
Benefit of Section 428 Cr.PC shall be given to both the convict persons.
It is further directed that all the substantiative period of sentences of imprisonment shall run concurrently.
A copy of the Judgment as well as that of Order on Sentence be given free of costs to both the convict persons and another copy be attached with their jail warrants.
File be consigned to Record.
Announced in the open court on 11-9-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI:DELHI FIR NO.48/2004 U/S 363/364A/302/201/120B IPC & 27 ARMS ACT.
PS NARELA.
6-9-07 Pr. Addl. PP for the State.
All accused are present in JC with ld. Counsels Ms. Sadhna Bhatia and Sh. Manish Kumar on behalf of all the convict persons.
Vide my separate detailed judgment dated 6-9-07 accused persons, namely, Beghraj and Kiran both have been convicted for the offences u/S 363/364A/302/201/120B IPC and under Section 27 Arms Act, 1959 while acquitting accused Dharambir in the present case of all the offences. Accused Dharambir be released from JC, if not required in any other case.
Case is now adjourned for Arguments on on Sentence to 10-9-07.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI FIR NO.48/2004 U/S 363/364A/302/201/120B IPC & 27 ARMS ACT.
PS NARELA.
10-9-07 Pr. Addl. PP for the State.
Convict Beghraj and Kiran are present in JC with ld. Counsels Ms. Sadhna Bhatia and Sh. Manish Kumar on behalf of both the convict persons. Arguments on Sentence heard.
Case is now adjourned for Order on Sentence to 11-9-07.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI 11-9-07 Pr. Addl. PP for the State.
Convict Beghraj and Kiran are present in JC with ld. Counsels Ms. Sadhna Bhatia and Sh. Manish Kumar on behalf of both the convict persons. Vide a separate detailed order dated 11-9-07, Order on Sentence has been announced.
File be consigned to record room.
Announced in the open court on 11-9-07.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI