Delhi District Court
State vs (1) Hukam Chand S/O Sh. Chidda Singh on 20 July, 2007
1
IN THE COURT OF SH. RAJENDER KUMAR SHASTRI ADDITIONAL
SESSIONS JUDGE : KARKARDOOMA COURTS: DELHI.
S. C. no.88/06
FIR No.14/01
U/s 364-A/302/201/34 IPC
PS: Gokal Puri
State Vs (1) Hukam Chand s/o Sh. Chidda Singh
(2) Chander Pal s/o Sh. Babu Lal
(3) Shiv Prasad s/o Sh. Lakshman
Present:- Sh. Masood Ahmad, APP for State.
All accused in J/C.
Sh. Dasa Ram amicuss currie for accused Hukam
Chand and Shiv Prasad.
Sh. A.K. Singhal advocate for accused Chander Pal.
JUDGMENT
1. As usual, in the morning of 09.1.01, one Bhure Singh (hereinafter referred as deceased) went to office of Mahanagar Telephone Nigam Limited, Janpath, New Delhi, where he was serving as a driver but did not return till evening. Curious wife, waited for him till next day but when there was no trace of him, she lodged a complaint in police station Gokalpuri which was recorded by ASI Arvind (Pw8) as DD 16A (Ex.Pw8/A). The investigation was marked to SI Ajit Malik (Pw15) who flashed a wireless message and gave information to missing persons squad. On 13.1.01 the wife of deceased Smt. Rajeshwari (hereinafter called as complainant) woke up in the morning, she found a letter lying at her gate under its doors which she handed over to the police. The kidnappers had sought a ransom of Rs. 7 lacs for release of her husband. In view of said letter, the complainant along with her brother Shiv Kumar (Pw3) and the police reached at Muzaffarpur railway station but no representative of kidnapper came there and they returned to Delhi.
2. In the morning of 18.1.01 one another letter was found by the complainant lying near her doors. It was also seized by the police. 2 The kidnapper had sought payment of ransom amount i.e Rs. 7 lacs at Rameshwar park, Loni. In order to nab the culprits the police reached there incognito accompanied by complainant and her brother mentioned above. But the effort of police again remained abortive. None from offenders turned up there to receive ransom amount.
3. On 19.1.01 at 15.38 hours HC Bholender informed police control room that a dead body was lying at Khajoori pusta ahead of Delhi police Camp near karawal nagar turning. HC Charan Singh (Pw11) who was on duty in PCR Recorded said information by filling prescribed form Ex. Pw11/A. A beat Ct. Sahansar Veer (Pw21) was on his duty at about 4.00 pm on that day i.e 19.1.01. Some public persons told him about a dead body lying near police training school Wazirabad. Pw21 reached there. Ct. Praveen and ASI Khyali Ram were already present there. The latter i.e ASI Khyali Ram (Pw25) had got information through DD 11A. A dead body was found in a sack curled up like foetus under a culvert (pulia) . Ankles and hips were tied with a muffler. Hands and feet of same were tied by a jute rope. Ears and nose of dead were either hewn or eaten by wild animals/ insects The complainant identified the dead body as belonging to her husband Bhure Singh.
4. During investigation, name of accused Hukam Chand cropped up having been named by the complainant as a suspect. He was apprehended by police from Khajoori Chowk, Delhi. As per case of prosecution, on being interrogated accused Hukam Chand confessed having killed the deceased with the help of co accused Shiv Prasad and Chanderpal. The latters were also arrested and gave similar disclosure statements. Cots from which cords were used in disposal of dead body, a knife used to cut the rope, I-card in the name 3 of deceased, a bicycle and also wearing cloths stated to be of deceased were also recovered by the police.
5. After completion of investigation a challan was filed indicting all three accused persons in this case. All of them were charged by order of this court dated 02.8.02 for the offence of kidnapping deceased for the purpose of ransom, killing the same after having hatched a conspiracy with each other and also causing the evidence of offence to disappear with an intention to screen the offenders, all punishable u/s 364-A IPC r/w section 34, 302/34 r/w 120-B and 201/34 IPC. All of accused pleaded not guilty and claimed trial after hearing charge against them.
6. In order to bring around its case, prosecution examined 25 witnesses in total. The accused persons in their statements recorded u/s 313 Cr PC claimed the incriminating evidence aduced on record as incorrect. All of them claimed themselves as innocent and falsely implicated in this case. Accused Chanderpal examined one Bhagat Singh (Dw1) in his defence.
7. I heard Ld APP as well as ld counsel appearing on behalf of accused.
8. Though the death of deceased Bhura Singh and recovery of his dead body from a sack on 19.1.01 from under a culvert near police training centre was not called in question on behalf of any of accused during arguments. Same is well proved on file. SI Khyali Ram (Pw25) and Ct Praveen (Pw17) found a dead body of a male aged about 45-46 years, kept in a jute bag lying under a pulia. Hands and legs of the same were tied by the muffler as well as by a cord. Deceased was in vest and underwear. Ears, nose and eyes of same were missing. Two bags one of jute and other of plastic and a rope were lying near dead 4 body. There was a finger ring (golden) in left hand of deceased. Pw25 called a photographer. Ct. Padam Singh (Pw12) verified having taken photographs Ex. Pw12/1 to Pw12/6. Negatives of same are Ex. Pw12/1A to Ex. Pw12/6A. SI Mahesh Kumar (Pw10) was a draftsman and deposed about preparation of site plan Ex. PW10/A after taking rough notes from the spot. Inspector K.G Tyagi (Pw24) who was SHO PS Gokalpuri also deposed to have reached at spot on receipt of information and found a dead body wrapped in a gunny bag after tying legs and arms with some rope. This witness also told about ears, nose and eyes of the dead body having been eaten by some insects / animals and also that a golden ring was found in one finger of it. Smt. Rajeshwari (Pw1) and Shiv Kumar (Pw3) who were wife as well as brother in law (wife's brother) of deceased stated to have identified dead body of deceased at spot. Dr Gaurav Vinod Jain (Pw2) deposed to have conducted autopsy on the dead body of Bhura Singh on 20.1.01. This witness observed that dead body was covered with a white plastic bag and a jute rope was tied around it. The body was curled up in a foetal position. Pw2 found several external injuries including four reddish ligature marks around the neck of deceased. In the opinion of this witness, the deceased had died due to asphyxia.
9. There can be no gainsaying that present is a case based on circumstantial evidence. Sh. Ashok Singhal advocate representing accused Chanderpal reminded the court that in such a case chain of events should be so complete that there is no escape from the conclusion that with a all human probabilities the crime should have been committed by the accused and none else. As per ld counsel prosecution has failed to prove its case if weighed on such a scale.
10. As per prosecution case, deceased used to lend money to some persons including accused Hukam Chand. He maintained 5 account in a diary. It is disclosed by wife of deceased Smt. Rajeshwari (Pw1) that she handed over one diary maintained by her husband which was seized vide seizure memo Ex.Pw1/B. It is also stated on oath by this witness that on 13.1.01at about 6.30 am, when she woke up, a letter was found lying near doors of her house. She picked it up and handed over to the police which was seized vide seizure memo Ex. Pw1/A. Pw1 further disclosed that in view of said letter she along with her brother Shiv Kumar (Pw3) and police went to platform no. 2, Muzaffarpur and waited for several hours but nobody came there and hence they returned to Delhi. On 17.1.01 another similar letter (ransom note) was found lying near doors of her house in the morning of 18.1.01 when she awoke. This letter was also handed over by her to the police. They went to Rameshwar park, Loni at about 7.00 pm as were asked to come there alongwith ransom amount but nobody turned up at this time also. Pw1 remembered a telephone call received on 19.1.01 when she was informed about a dead body near khajoori pusta. She identified it as of her husband Bhure Singh.
11. The facts disclosed by Pw1 are also tautologised by her brother Shiv Kumar (Pw3). The latter also claimed himself to have witnessed the arrest of accused and also recovery of case property.
12. It is further deposed on oath by Pw3 that on 22.1.01 he along with police went to Sherpur Chowk. An informer told about accused Hukam Chand having been present at Khajoori chowk. They went there and apprehended accused Hukam Chand. Accused Hukam Chand led them to his house and got recovered two cots and one knife which were seized by the police vide seizure memo Ex. Pw3/E. These were sealed with seal of 'AM'. On 21.1.01 at the instance of Hukam Chand accused Chander Pal was apprehended by the police from Bhagat Singh Market. He gave disclosure statement Ex.Pw3/F. 6 Accused Chander Pal took them to a place and produced one panni (polythene bag) from under the stones. It contained a shirt, shoes and socks which were seized by police vide seizure memo Ex. Pw3/G. Pw3 again disclosed that at about 2.00 A.M. on that day (22.1.01) accused Shiv Prasad was arrested from near Badarpur border. He gave disclosure statement Ex. Pw3/H and pointed out place of occurrence. Accused Shiv Prasad produced one diary and an identity card of deceased from a box which was lying in his house. He had also produced one bicycle belonging to deceased. All these articles were seized vide seizure memo Ex. Pw3/J. This witness identified said diary (Ex.P-6) having been produced by accused Shiv Prasad and also a pair of shoes (Ex.P-7), pair of socks (Ex.P-8) and shirt (Ex.P-9) as belonging to deceased Bhura Singh.
13. SI Ajit Malik (Pw15) verified the fact that on 13.1.01 wife of deceased Bhura Singh, Smt. Rajeshwari (Pw1) came to police station and handed over an envelop, one diary and one letter (ransom note) to him which was seized by him vide seizure memo Ex.Pw1/A and Ex. Pw1/B (diary). It is also disclosed by this witness that the complainant had expressed her doubt upon accused Hukam Chand having been involved in crime in question. Pw15 again stated about a police team sent to Bihar on 14.1.01 in search of accused but none was found and again that on 18.1.01 complainant came to police station and handed over one ransom letter and an envelop which were seized vide seizure memo Ex. Pw1/C. They went at pointed place at Loni but none from kidnappers came there. This witness also stated about having gone to PS Khajoori Khas on 14.2.01 and brought seven exhibits from MHC(m) of that police station which were seized by IO in this case vide seizure memo Ex. Pw15/A. He was sent to FSL, Malviya Nagar on 02.3.01 along with aforementioned exhibits and other documents which were 7 deposited by him there. He again went to FSL, Malviya Nagar on 05.3.01 and deposited other exhibits, handed over to him by the IO. Pw15 identified diary Ex. P-1, two letters Ex. P-2, Ex. P-3 and envelop Ex. P-4 as seized in this case on being produced by the complainant. He also identified envelop Ex. P-7 having been handed over to him by the same (complainant).
14. Inspector Harpal Singh (Pw13) who was Addl. SHO PS Gokalpuri at that time also corroborated fact that wife of deceased has handed over a letter (ransom note) to SI Ajit Malik. It is further stated by this witness that he along with HC Nand Kishore, Ct Inder Pal,Ct Ram Naresh, Ct Rishi Raj, Smt Rajeshwari and Shiv Kumar went to Muzaffarpur by Lichhvi Express train with a suitcase containing paper packet in the shape of currency notes. They waited till 12.00 night for the arrival of offenders but none came there. They returned to Delhi. He recorded statements of complainant Rajeshwari and Shiv Kumar which were handed over to SI Ajit Malik.
15. SI Sanjeev (Pw16) joined investigation of this case on 22.1.01. He disclosed about arrest of accused Hukam Chand from Khajoori chowk. He also verified the fact that said accused (Hukam Chand) led them to his house and got recovered two cots (one wooden and other made of iron), some strings from those cots were removed and the gap created by same was filled by threads of blue and green colors. The same were covered by blue color plastic sheets. Accused Hukam Chand also produced one knife. All were seized and sealed by seal of 'AM'. Pw16 again stated about arrest of accused Chander Pal on that day on the pointing of accused Hukam Chand and also of about arrest of accused Shiv Prasad on 23.1.01 on the pointing of both of other accused. Pw16 also reminded accused Chander Pal having produced one polythene bag containing one shirt having red strips, 8 black color canvas shoes having cuts of blade, one black color pant and a pair of socks after removing one stone. The polythene bag was of white color and word 'Muskan' was written on it in Hindi. All these articles were seized and sealed by seal of AM. Pw16 again deposed about disclosure statement given by accused Shiv Prasad and about latter having produced one diary, one I card and one bicycle belonging to Bhura Singh. The witness disclosed that pages from 12th June to 15th June in that diary were missing. All these articles were seized and sealed by seal of 'AM'. Pw16 identified articles of case property as same which were seized in this case. Pages from 12th June to 15th June in that diary were missing when the same was produced in court.
16. Arrest of all three accused and recovery of case property on being produced by them is also corroborated from the statement of Inspector K.G Tyagi (Pw24) who was SHO PS Gokal puri at the time of incident.
17. Inspector K.G Tyagi (Pw24) disclosed that after arrest of accused persons he had taken sample handwriting of all three accused which were sent to FSL, Malviya Nagar for the opinion of handwriting expert. Similarly, this witness stated about sending of all exhibits to FSL, Malviya Nagar on 05.3.01 through ASI Ajit Malik and MHC(M). Pw15 also verified having deposited aforementioned exhibits in FSL, Malviya Nagar. SI Kailash (Pw19) deposed on oath that on 07.3.01 on the direction of Inspector K.G Tyagi he took 21 sheets,one unsealed envelop and one diary along with a forwarding letter to FSL Malviya Nagar. This witness again stated that he did not allow any tempering in the case property till it remained with him.
18. Dr. Madhulika Sharma (Pw23) verified having received a parcel marked 5 in their office (FSL) which was handed over to her for 9 chemical examination. After examination of same, she submitted a report Ex. Pw23/A. This witness also identified signatures of Dr. Swaroop Vedanand on report Ex. Pw23/B. Again Pw3 identified signatures of Dr. Dhruv Sharma on report Ex. Pw23/C and Ex. Pw23/D. Dr. Madhulika Sharma claimed to have seen both of said doctors writing and signing before her being her colleagues.
19. Ld defence counsels vehemently opposed the taking of specimen handwriting of accused persons by the IO in this case. As per ld counsels it was not a proper way to take sample handwriting as same is contrary to the requirement of section 73 of Indian Evidence Act, 1872. In the opinion of ld counsels it was only for the court to direct accused persons to give specimen handwriting and IO (Police) had no such power. Sh. A.K. Singhal advocate relied upon a case titled as Rakesh Kumar Vs State 2004 (1) JCC 110 where our own High Court while referring a case decided by apex court titled as Sukhvinder Singh and Ors Vs State of Punjab 1994 (5) SCC 152 held that specimen handwriting / thumb impression/ finger print impression of appellant Sri Chand, Chander Shekher would not be made use of during trial. Same having been obtained during investigation by the IO without prior permission of the court.
20. As stated above, Inspector K.G Tyagi (Pw24) deposed to have taken specimen handwriting of all three accused. An expert of forensic science laboratory, Govt of NCT of Delhi in his report Ex. PW22/A found that writings Q1 to Q3 i.e envelop addressed to complainant Rajeshwari and a letter (ransom note) Ex.P-2 were of the same person who wrote writings S1 to S7. S1 to S7 are stated to be the specimen handwriting of accused Chander Pal. Similarly, writing on Q4 and Q5 i.e another ransom note Ex. P-3 and writing S13 to S19 were written by same person. Specimen handwriting S13 to S19 are of accused 10 Shiv Prasad. Both of said accused in the statements recorded u/s 313 Cr PC admitted to have given specimen handwriting to the IO. It is case of none of said accused that his specimen handwriting was taken forcibly or against his wishes. No such suggestion was given during cross examination of Pw24 who deposed to have taken sample handwriting of all accused including both of said accused. There is no dispute over the finding of our own High Court as well as of the apex court given in case which was referred by my-lords. It is well settled that precedent is binding in exact similar facts of the case.
21. Section 73 of The Indian Evidence Act, 1872 provides about the power of the court to give directions to any person present in court to give specimen handwriting for the purpose of enabling it to compare the words or figures so written with any words or figures alleged to have been written by such person. I am unable to find out anything in aforesaid provision (Section 73 ) or in any other law which bars any police officer to take specimen handwriting of an accused or to get it compared with any disputed handwriting or which makes opinion of handwriting expert taken about specimen handwriting obtained by police in the way as has been done in this case.
22. True, it would have been better if IO had taken specimen handwriting of accused persons after taking permission from the court, but keeping in view the facts discussed above and also the fact that both of said accused have admitted to have given their specimen handwriting to the IO during investigation of the case and none of them has alleged to have been compelled by the police to give specimen handwriting. I see no legal impediment in relying upon the opinion of handwriting expert Ex. Pw22/A.
23. As stated above, in the opinion of Ld defence counsels the recovery of case property i.e two cots and knife, at the instance of 11 accused Hukam Chand, one polythene beg containing shirt, shoes and socks of deceased at the instance of accused Chander Pal and, one identity card and one diary used in taking out paper to write ransom note, one identity card and a bicycle, both belonging to deceased from the possession of accused Shiv Prasad have not been proved on file. Ld counsels pointed out that Shiv Kumar (Pw3) in whose presence aforesaid articles are stated to have been seized, refused to identify aforesaid bicycle and one of cots as same which were seized before him. Similarly, Sh. Ashok Singhal advocate contended that recovery of cloths alleged to be worn by the deceased is also not proved beyond reasonable doubt. As per Ld counsel, neither the wife of deceased (Pw1) nor his brother in law Shiv Kumar (Pw3) had disclosed in his / her statement to police as what cloths the deceased was wearing at the time when he went out of his house. In such a circumstance, even if both of said witnesses have claimed the cloths of case property as same which were worn by the deceased, has no value.
24. Pw3 disclosed in his evidence that from the house of accused Hukam Chand two cots, frame of one of which was made of wood and of other of iron were seized. This witness refused to identify one of cots stating that wooden cot was weaven by jute cords but the cot which was produced in the court was weaven by 'san' cords. Moreover, particulars of the case were not written on the cords.
25. 'San' is also a variety of jute. It is pointed out that there is not much difference between 'san' and jute and the rope made either of jute or of 'san' when becomes old by the process of time, hardly remains identifiable. Similarly when dust and other dirt stick to the frame of cot, the particulars even if written hardly remain legible. Both of said cots were seized after sealing the same by seal of 'AM'. This fact is verified from the statement of Pw3 as well as the police officers 12 in whose presence same were seized. Pw9 HC Prem Chand deposed that these cots when deposited in FSL were also sealed by same seal i.e AM and this fact is verified from report Ex. Pw23/C.
26. True, neither complainant who is wife of deceased nor Shiv Kumar (Pw3) who is brother in law of latter has disclosed to the police as what type of cloths the deceased was wearing at the time when the same was kidnapped/left the house. I find weight in the submission of Ld APP stating that it could not have been expected before hand that the offenders will remove the wearing cloths of the deceased or the same will be recovered from the heap of stones having been concealed by the culprits. There is no gainsaying that a witness narrates the incident as is questioned by the police. If the IO had not inquired aforesaid two witnesses about the description of cloths which the deceased was wearing, there is no reason to reject the deposition of said witnesses about the description of the cloths given later on outrightly. It can lend support to other evidence on record. Even otherwise, it is not surprising that a wife or a close relative like wife's brother had identified the wearing cloths of a person, even if they had not seen his cloths at the time of latters last depart. Recover of said cloths has been well established from the statements of SI Sanjeev Kumar (Pw16), Inspector K.G Tyagi (Pw24) and SI Khyali Ram (Pw25) apart from brother in law of deceased namely Shiv Kumar (Pw3).
27. It is further the plea of ld defence counsels that there was no motive on the part of accused persons to kill the deceased. Ld counsels also ridiculed the plea that accused Hukam Chand did not want to repay a loan taken by him from the deceased and hence done the latter to death. Ld counsels pointed out that it is disclosed by complainant (Pw1) that her husband had advanced a sum of Rs. 10,000/- to accused Hukam Chand. He had also advanced a sum of 13 Rs. 5000/- which was already paid. A golden ring was found in a finger of deceased. As per ld counsels, said golden ring was worth more than Rs. 10,000/- and hence there was no question to kill a person who was already known to the accused to avoid payment of Rs. 10,000/- and that after leaving a finger ring worth more than that.
28. Per contra, as per Ld APP, repayment of said loan was not a motive which prompted accused persons to kill the deceased rather as admitted accused Hukam Chand in his disclosure statement, there were illicit relations between the wife of accused Hukam Chand and the deceased and former had seen his wife in a compromising position with the deceased. Same induced the latter to do illegal act, alleged against him.
29. Most of times, Motive remains embedded in the hinterland of the mind of the wrong doer, it rarely comes out. Sometimes even circumstances are not enough to tell about the bad intention of a wrong doer. Case in hands is such type of case where even circumstances did not suggest as what was in the mind of the offenders which prompted them to kill the deceased. Despite all this, it is not necessary that motive should always be proved on record. I find support in my view from a case titled as Nachittar Singh Vs State of Punjab, 1974 SCC (Cri.) 874 where it was held by the apex court that the failure of the prosecution to establish motive for the crime does not mean that the entire prosecution case has to be thrown over board. It only casts a duty on the court to scrutinize the other evidence, particularly of the eye-witnesses, with greater care. And Sohan Lal Vs State, 1986 (3) Crime 242 where it was observed that the absence of motive is not of much value if there is clear evidence to implicate the accused with the commission of the crimes charged with.
30. From the evidence discussed above, it is well proved on the 14 file that at the instance of accused Hukam Chand two cots were recovered. As per report of Forensic Science Laboratory Ex. Pw23/B cut ends of jute cords in Ex. 6/A and Ex. 6/B were similar in respect of color, texture, thickness, number of strands, twist and general appearance with jute cords Ex. 1 C and Ex 3 A. Needless to say that jute cords Ex. 6-A and Ex.6-B were cords of two cots sent to FSL i.e the cots seized from the house and at the instance of accused Hukam Chand while Jute cords Ex. 1 C and Ex 3 A were pieces of cords recovered from the spot i.e near dead body.
31. As per prosecution, accused Hukam Chand apprehended illicit relationship between his wife and deceased. To take a revenge he confided with co-accused, all of them hatched a conspiracy and called the deceased to a liquor party. When latter came under influence of liquor accused throttled him to death. All of them disposed off the dead body near aforesaid pulia, carrying it on a bicycle after putting it in a taat bag. The body was curled up so that it can fit in the sack properly. In order to extort money from wife of deceased, they retained I-card of latter. Now what is established on file is enumerated as under:-
Deceased had good relations with accused Hukam Chand, having advanced some loans and being visitor of latters house. As per FSL report Ex. Pw23/A Ex. 5-C (blood sample of deceased) was found containing ethyl alcohol. Wearing cloths including shoes and socks of deceased were recovered at the instance of one accused, having found concealed in a heap stones. Cord by which dead body was tied and another cord having found lying near dead body were found having been removed from cots belonging to and produced by another accused from his house. An identity card of deceased which was mentioned in ransom note and a bicycle of latter were produced by 15 third accused having concealed in his house. Handwriting expert of FSL, Govt of Delhi opined one of accused as responsible to write a ransom note and envelop in which said note was delivered to complainant and other accused as having written another ransom note dropped at the house of same complainant. All these facts lead to an irrefutable presumption that it were all three accused persons who, with their common intention committed murder of deceased Bhure Singh. It has also been established on record that accused Chander Pal had concealed wearing cloths including shoes and socks of the deceased with intention to screen the offenders i.e themselves from legal punishment. Similarly accused Shiv Prasad had concealed identity card of deceased having same intention i.e to screen the offenders. Both of them i.e accused Chander Pal and Shiv Prasad are hence convicted for offence punishable u/s 201 IPC also. Announced in the open court today (Rajender Kumar Shastri) i.e on 20th day of July, 2007. Additional Sessions Judge, Karkardooma Courts, Delhi