Delhi District Court
State vs 1. Chintu Malhotra @ Chirag, on 31 March, 2008
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, ADDL. SESSIONS JUDGE,
ROHINI, DELHI
IN RE: Sessions case No.75/2006
FIR No. 786/2000
PS: Uttam Nagar
U/s: 365/302/34 IPC
Date of institution: 08.03.2001
Judgment reserved on:11.03.2008
Judgment pronounced on:24.03.2008
State Versus 1. Chintu Malhotra @ Chirag,
S/o Chaman Lal Malhotra,
R/o W-68/49, JJ Colony,
Pankha Road, Uttam Nagar,
Delhi.
2. Gyan Chand Kashyap @ Kalu Kashyap,
S/o Shri Jagat Narayan,
R/o A-672, JJ Colony,
Pankha Road, Uttam Nagar,
Delhi.
3. Mohd. Tayyab Alam
S/o Shri Mohd. Sameer,
R/o Jhuggi No. 306, T Camp,
Kali Basti, Uttam Nagar,
Delhi
4. Dharminder Singh @ Vijay Singh,
S/o Shri Kalu Prasad,
R/o A-631,JJ Colony,
Pankha Road, Uttam Nagar,
Delhi.
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JUDGMENT
This case was registered on the statement of Shri Jitender FIR No. 786/00 PS Uttam Nagar -: 2 :- son of Shri Krishan Kumar (deceased) dated 29.08.2000. In his statement, the complainant has stated that his father was plying his maruti van No DL3CR 1271 on hire at Kaushik Travels, Main Najafgarh Road. On 26.08.2000 he was present in his house, at about 4 p.m. he received a telephone from his father who told him that he was taking passengers to Haridwar and his clothes should be brought. He went to the office of Kaushik Travels to deliver the clothes of his father where his father and four persons were present. He handed over the clothes to his father and on enquiry he came to know the name said four persons as Kallu, Dharminder, Chintu and Tayyab, who lives in LIG Flats, Hastal and said four persons sat in the vehicle. His father told him that he would come back tomorrow (next day). But his father did not come back on the next day and he got worried, his family members traced his father but he could not be traced. He has suspicion that said four persons kidnapped his father, he can identify the said persons by face and legal action be taken against them. ASI Dal Chand made his endorsement on the aforesaid statement of Jitender Kumar and sent rukka to police station for registration of FIR under Section 365/34 IPC through Ct. Dilbagh. After registration of FIR, investigation was marked to ASI Dal Chand. During investigation said ASI Dal Chand came to know from the complainant Jitender Kumar that a telephonic call was received from Bihar at 3 p.m. and the voice was not of any police official, on enquiry said person (caller) did not inform his name and name of police station, while hearing telephone Anirudh understood the voice was of Dharminder who was studying with him. Out of said four persons, one person namely Tayyab was resident of Purnia, Bihar. On 29.08.2000 said ASI obtained the permission for going to Purnia District, Bihar and FIR No. 786/00 PS Uttam Nagar -: 3 :- reached there on 31.08.2000. Said ASI reached at police station K. Haat, Purnia District and came to know that four persons were apprehended alongwith maruti van No. DL3CR 1271 and FIR No. 330/2000 under Section 413/414 IPC PS K. Haat was registered on 30.08.2000 and name of said four persons was revealed as Chintu Malhotra @ Chirag, Gyan Chand Kashyap @ Kalu, Mohd. Tayyab Alam and Dharminder @ Vijay Singh and the said four persons were in judicial custody. The number of said maruti van tallied with the number of maruti van of deceased. Said ASI obtained the copy of FIR No. 330/2000 PS K. Haat and other documents and the maruti van was also taken into possession and statement of witnesses were recorded.
2. Said ASI moved an application for issuance of production warrants of all the four accused persons and the CJM, Purnia District allowed the said application and the accused persons were ordered to be produced before Ld. MM, Delhi. On 04.09.2000 production warrants were issued but the accused persons were not produced before Ld MM, Delhi. On 04.09.200 said ASI Dal Chand came to know that Shri Chander Kishan son-in-law of Krishan Kumar and neighbourer Shri Govind Singh and other persons had gone to Haridwar on 31.08.2000 for tracing Krishan Kumar. On interrogation said persons disclosed that they had come to know that a dead body was found in Ranipur Canal PS Jwalapur on 27.08.2000 and said persons had gone to PS Jwalapur, Haridwar and SI Rajesh Kumar (IO), showed photographs of the dead body and on the basis of photographs and the clothes of the deceased they identified the dead body of Shri Krishan Kumar. On 12.09.2000 said ASI Dal Chand moved an application for issuance of production warrants FIR No. 786/00 PS Uttam Nagar -: 4 :- and the production warrants were issued for 26.09.2000. But the accused persons were not produced on 26.09.2000
3. On 18.09.2000 said ASI Dal Chand reached at PS Jwalapur, Haridwar and SI Rajesh Kumar, IO accompanied him to the place of incident and site plan was prepared. The photographs of the deceased were obtained and statement of witnesses were recorded. The post mortem report and other documents were received, according to post mortem report the cause of death was opined as shock and hemorrhage as a result of anti mortem injuries. On the basis of investigation, statement of witnesses and post mortem report offence under Section 302 IPC was added and further investigation was marked to Inspector T.P.S. Tomar, Addl SHO.
4. During investigation said Inspector moved an application for issuance of production warrants and on 03.11.2000 ASI Dal Chand alongwith other staff brought all the four accused persons from Purnia, Bihar to Delhi and they were produced in the Court. The accused persons were arrested in this case and they were interrogated and they made disclosure statement. The accused persons pointed out the place of incident and scaled site plan was got prepared. Statement of witnesses were recorded. After completion of investigation, charge sheet for the offence under Section 365/302/34 IPC was prepared and filed before concerned Metropolitan Magistrate, Delhi.
5. After complying with provisions of Section 207 Cr.P.C., the case was committed to Ld. District & Sessions Judge, Delhi vide order dated 23.02.2001.
FIR No. 786/00 PS Uttam Nagar -: 5 :-
6. After hearing arguments on charge my learned predecessor found a prima facie case to try all the accused persons for the offence under Section 364/302/34 IPC and accordingly a charge for the offence under Section 364/302/34 IPC was framed against all the accused persons on 28.08.2001. All the accused persons pleaded not guilty to the charge and claimed trial.
7. In support of its case the prosecution has examined as many as 25 witnesses.
Pw-4 Jitender Kumar is the complainant. He has deposed in terms of his complaint Ex.Pw-4/A. He has also deposed that accused persons pointed out the place of occurrence i.e. main Najafgarh Road Mini Bus Stand, Uttam Nagar infront of Kaushik Travels and pointing out memo was prepared which is Ex.Pw-3/B. He has also identified maruti van No. DL3CR 1271 as Ex.P-1. In cross examination he admitted that on 26.08.2000 his father had gone with the passengers to Haridwar and the passengers were the accused persons. He took clothes of his father in a bag and reached near Mini Bus Stand, he stayed there alongwith his father for about 15 minutes. He took back the changed wearing clothes of his father in the same bag. He enquired from accused Dharminder, who is friend of his brother as to where they were going and he replied that they were going to Haridwar. He could not tell the amount on which vehicle was hired. He alongwith his brother Anirudh Kumar made efforts to search is father, at about 7.30/7.45 p.m. they reached at the house of accused Dharmender. On 28/29.08.2000 a telephonic call was received from Bihar and lodged the report with the police after receiving the telephonic call from Bihar. ASI Dal Chand had not recorded statement of FIR No. 786/00 PS Uttam Nagar -: 6 :- any other family member as he had come with the photographs of his father. After about 1/2 days of 29.08.2000 his Jija alongwith cousin had gone to Haridwar and thereafter he came to know about the murder of his father. He could not inform the same to the police as ASI Dal Chand had gone to Bihar. He admitted that on 05.11.2000 SHO produced four accused persons in the court who were identified by him. He admitted that dead body of his father was found at Jwalapur, Haridwar. He also admitted that his Jija had shown him certain photographs of his father and he asked his Jija as to from where he had got those photographs and he replied that he had obtained photographs from PS Jwalapur, Haridwar. Vehicle in question was recovered in Purnia district. He denied that on 26.08.2000 accused Chintu Malhotra and Kalu Kashyap had not gone to Haridwar with his father in vehicle in question. SHO Tomar telephoned him to reach at Mini Bus Stand infront of Kaushik Travels and he reached there and all the four accused persons were present with SHO Mr. Tomar and said Sikh officer. The car which his father was plying was purchased just two months prior to the date of incident. His father was driving vehicle as a private vehicle. He could not tell when the telephonic call was received from Bihar. He personally did not go to Haridwar. He admitted that his family members did not receive the dead body of his father. He denied that van in question was not driven by his father or that accused persons have been falsely implicated in this case.
8. PW-8 Anirudh Kumar is the son of deceased. He has deposed that on 26.08.2000 he came back from duty at about 8.30 p.m. and came to know from his brother Jitender Kumar that his father had FIR No. 786/00 PS Uttam Nagar -: 7 :- gone to Haridwar alongwith four persons in maruti van No.DL3CR 1271. Jitender Kumar told him that he received telephone call from his father and he had gone to Mini Bus Stand, handed over his clothes and one of the person namely Dharminder was his class fellow and his brother disclosed the name of other person as Kalu, Chintu Malhotra and Tayyab. On 29.08.2000 at about 12 noon he received telephonic call from Purnia, Bihar and the person who was making the call told him that he was SHO of Bihar and maruti van of his father has been found in Bihar. He found the voice similar as that of Dharminder and he told him that he appeared to be accused Dharminder but the phone was disconnected and thereafter he rang at number 100. He narrated his suspicion with regard to the accused and his father to the police. On 22.09.2000 he alongwith his brother Jitender went to police station and photographs of his father was shown, which was received by police from Jwalapur, Haridwar police station. He identified the photo as to be the photograph of his deceased father and there were six fingers in the right hand of his father. In cross examination he stated that he had come to know regarding the death of his father on 29.08.2000. He made telephone call at number 100 and two-three police officials including ASI Dal Chand had come at around 1 p.m. ASI Dal Chand had taken him and his brother Jitender Kumar to the office of Kaushik Travels. His first statement was recorded on 29.08.2000 and second statement was recorded on 22.09.2000 and last statement was recorded on 30.01.2001. No caller ID was installed at his telephone. He made telephone call to the police at around 1.00 p.m. on 29.08.2000, he had stated to Delhi police about the arrest of four persons in Bihar for taking immediate action. He denied that he never received any phone from Bihar. He had FIR No. 786/00 PS Uttam Nagar -: 8 :- purchased the vehicle in question on 07.07.2000. Prior to 26.08.2000 his father never gone anywhere outside Delhi. He admitted that his father used to sell vegetables and he was green grocer prior to 26.08.2000. On 29.08.2000 he had taken leave from his office and informed to foreman that he would be on leave. At that time telephone No. 5639118 was installed in his house, in the name of his father. On 30.08.2000 he had accompanied Hari Kishan Agnihotri, his father in law and Joginder Kumar neighbourer to PS K. Haat, District Purnia, ASI Dal Chand and two constables. He had seen the accused persons in police station for the first time except accused Dharminder, who studied with him in school. He came to know that dead body of his father was lying in Jwalapur, Haridwar and same was disclosed by accused Dharminder and Chintu.
9. PW-11 Govind Singh Bhatuni is the neighbourer of the deceased. He has deposed that Jitender Singh son of deceased and wife of deceased came to his house and told that some untoward incident had taken place as he had received phone call from Bihar. He alongwith 3-4 persons accompanied and went to Haridwar, when the reached at Jwalapur they came to know that on 27.08.2000 a dead body of one person was recovered by the police from Canal and the body of deceased had been cremated. Photographs of the deceased were shown, there were six fingers of one of the hand deceased and some clothes were also shown and from the clothes and photographs, body was identified as of Krishan Kumar. Police had also given description of the deceased. Mr. Chander Kishore, son in law of deceased, Bhupinder Dixit, Hansraj and Tarsem Jain went to Haridwar in search of deceased. SI Rajesh Kumar informed them regarding recovery of dead body, FIR No. 786/00 PS Uttam Nagar -: 9 :- cremation, photographs and clothes of dead body were shown by him. In cross examination he could not tell if the deceased was owner of said Maruti Van. Mr. Jitender told him that his father had gone to Haridwar. He admitted that son-in-law of deceased had not told him regarding death of deceased. His statement was recorded by Inspector Tomar. He had seen six fingers on one hand of the deceased Krishan Kumar as same was identified by photograph. He denied that he had not seen the photograph of the deceased having six fingers.
10. PW-12 Chander Kishore is the son-in-law of brother of deceased. He has also deposed that on 26.08.2000 Krishan Kumar had gone to Haridwar in Maruti Van alongwith four persons and he did not return back. The wife of deceased called him and on 29.08.2000 he alongwith 4-5 persons namely Govind, Sharad Lal, Satish Kumar Sharma and Upender Kumar went to Haridwar to enquire about Krishan Kumar. When they reached near Jwalapur, Haridwar, on enquiry from 2-3 persons they came to know that dead body of one person was recovered about one or two days prior to that and they went to PS Jwalapur and police officials asked him if he was able to identify the deceased. Police officials showed photographs of deceased and he identified the photograph as of deceased Krishan Kumar. On 27.08.2000 SI Rajesh Kumar told him that deceased was cremated after post mortem and the photograph which was shown to him was having six fingers in one hand. In cross examination he stated that they reached at PS Jwalapur at about 10/10.30 a.m. Photograph of deceased which he had carried was taken back by him and the same was not given to police officials. In the photograph which was shown by police officials of PS Jwalapur, six FIR No. 786/00 PS Uttam Nagar -: 10 :- fingers were not visible. He denied that he had not gone to Haridwar in search of deceased or that he had not made any statement to the police.
11. PW-16 Sunil Kaushik is from Kaushik Travels. He has deposed that deceased Krishan Kumar used park his maruti van No. DL3CR 1271 infront of his office and he used to deal with the passengers in his own way. He came to know that maruti van was hired by some persons for Haridwar and later on he came to know about his death. In cross examination he stated that he came to know after about 4-5 days that Krishan Kumar has expired. He could not tell the particular place where deceased used to park his vehicle. One Laxmi Chand driver told him in respect of taking the vehicle on hire. He admitted that long journey driver used to keep driving license and other essential documents of the vehicle with him.
12. PW-1 HC Ashok Kumar has deposed that on 29.12.2000 he alongwith Ct. Harinder Kumar reached at PS Jwalapur, District Haridwar and obtained one sealed parcel from MHC(M) sealed with the seal of HMD and came to PS Uttam Nagar on 03.01.2001 and handed over the said sealed parcel to duty officer and same was seized vide seizure memo Ex.Pw-1/A. In cross examination he stated that he was orally directed by the IO. He could on tell the DD entry number regarding his visit to Jawalapur. The DD entry was made in the evening on 29.12.2000. On 29.12.2000 they started at 10 a.m. and reached at Jawalapur at 4 p.m. He met malkhana moharrar at Jawalapur in the evening of 29.12.2000 and pullanda was delivered to him on 30.12.2000 in the evening. They started after lunch from Jwalapur to New Delhi and FIR No. 786/00 PS Uttam Nagar -: 11 :- reached Delhi at 10 p.m. on 01.01.2001 and he visited at house after coming back from Jwalapur. He did not make any entry of arrival at PS Uttam Nagar. He kept the pullanda with him on 01.01.2001 and deposited the pullanda in the malkhana on 03.01.2001 He went to his house after keeping the pullanda at police station, therefore, he did not deposit the same on 02.01.2001.
13. PW-2 Ct. Dilbagh Singh has deposed that on 29.08.2000 at about 12.10 p.m. one rukka was handed over to him by the IO and he took the same to police station. After registration of FIR, he returned to the spot and handed over rukka and copy of FIR to IO. In cross examination he stated that there was nobody except him and IO on 29.08.2000. They reached at the Kaushik Travels and at the shop of Kaushik Travel, Mr. Jitender met them. The tehrir was recorded by IO and the writing of tehrir was completed inside the office of Kaushik Travels. He reached back to the spot at 3.05 p.m.
14. PW-3 SI Gurnam Singh has deposed that on the intervening night of 3/4.011.2000 he alongwith IO and four constables left the PS for Haridwar, U.P. and on the way Teerath Raj Singh, draftsman also accompanied them. At about 8.00 a.m. they reached near Bridge Jwalapur and all the accused persons pointed the place of occurrence. SI Rajesh Kumar also reached there and pointing out memo was prepared by IO which is Ex.Pw-3/A. Teerath Raj Singh took the rough notes at the instance of SI Rajesh Kumar. On 05.11.2000 he again joined the investigation with the IO and all the accused persons led the police party to Old Bus Stand, Uttam Nagar at Kaushik Travels and pointed with FIR No. 786/00 PS Uttam Nagar -: 12 :- regard to hiring of the taxi, pointing out memo is Ex.Pw-3/B. In cross examination he stated that they made a departure entry in the PS before proceeding to Haridwar. He could not tell whether they visited to Jwalapur chowki or the PS after completion of their work at Ranipur. They came to Delhi on 04.11.2000 in the night. Accused took them to the Taxi Stand in front of Kaushik Travels. He admitted that accused persons were not in muffled face during the course of investigation. He also admitted that first of all he signed the memos Ex.Pw-3/A and B and the same are in his handwriting. He could not tell the direction of the Bridge at where the dead body was found there. As per pointing out of accused persons the maruti car was hired from infront of Kaushik Travel. He denied that he had not accompanied the IO to Ranipur Bridge, Haridwar. First of all they reached the police post and then reached to Ranipur Jaan, later on the incharge police post reached at the spot.
15. PW-9 ASI Pushpal Kaur is the duty officer. She has deposed that on 29.08.2000 on receipt of rukka sent by ASI Dal Chand, she recorded FIR. She has proved copy of FIR as Ex.Pw-9/A. She has also proved copy of DD No.15A as Ex.PW-9/A.
16. PW-15 HC Deep Kumar has deposed that on 03.01.2001 at about 10.35 a.m. HC Ashok Kumar handed over one sealed parcel sealed with the seal of HMG Haridwar, which was seized vide memo Ex.Pw-1/A. In cross examination he stated that DD No.49B was recorded regarding the case property and arrival entry. He denied that HC Ashok Kumar came to police station on 01.01.2001 with the case property. The duplicate copy of Ex.Pw-1/A was deposited in the malkhana.
FIR No. 786/00 PS Uttam Nagar -: 13 :-
17. PW-6 Sh. Mahadev Kesri and PW-7 Surinder Kumar are from District Purnia. They have deposed that they do not know anything about this case. They were declared hostile and cross examined by Ld. Addl PP. Even during cross examination by Ld. Addl PP they did not support the case of prosecution.
18. PW-5 SI Rajesh Kumar is from District Purnia, Bihar. He has deposed that on 29.08.2000 at about 6.30 p..m. he left the PS alongwith other police officials in the Gypsy and while patrolling reached at Madehpura Road and it was at about 9.15 p.m. they saw one maruti van plying on the road and they signalled that car to stop but that van did not stop and started running at a fast speed, they chased the said maruti van and thereafter four persons got down from that car and started running and they were apprehended. The search of those boys was conducted in the present of public persons Surinder Kumar and Maha Devi Kesri. He enquired from those four persons for the Maruti Van but no satisfactory reply was given and no document relating to the maruti van was shown to him. The number of maruti van was DL 3CR 1271 and said van was seized. He got the case registered vide FIR No. 330/2000 under Section 413/414 IPC. He arrested the said persons. He was not told by those persons as to from where they had taken the van. The said seizure memo is mark X. He was declared hostile and cross examined by Ld. Addl PP. In cross examination by Ld. Addl PP he stated that his statement was recorded by the police. He denied that accused Chintu Malhotra, Kalu Kashyap, Ravinder Singh and Mohd. Tayyab are the same persons who were apprehended by him while driving the said maruti van. In cross examination on behalf of accused persons he stated FIR No. 786/00 PS Uttam Nagar -: 14 :- that it was a residential area from where the maruti van was seized. He admitted that incident is an old one and that is why he had to take the help of written notes which he has brought with him. He denied that he he had given the maruti van number after seeing from his written memo. He admitted that although he was remembering the maruti van number but despite that he had verified that above written memo.
19. PW-14 SI Ajit Kumar is also from District Purnia, Bihar. He has deposed that on 29.08.2000 he alongwith SI Rajesh Kumar Dubey, ASI Ram Vilas Chaudhary, HC Tarkesh Murmum, Ct. Anmol Kumar, Ct. Sushil Kumar, Ct. Jamna Prasad left the police station for patrolling, at about 9.15 p.m. they saw a white colour maruti van going ahead and a signal was given to stop the said vehicle but the said van instead of stopping started driving at the fast speed. They chased the van and said maruti van was stopped at a little distance and the persons sitting in the van got down and started running. They chased them and said persons were overpowered, whose names they came to know as Chintu Malhotra @ Chirag Malhotra, Kalu Kashyap, Dharmender Singh @ Vijay Singh and Mohd. Tayyab, who are the accused persons. The said vehicle bearing No.DL3CR 1271 was seized. The accused persons did not given any satisfactory reply or produce any document in respect of said vehicle and case FIR No. 330/00 was registered. One slip was recovered from the dikky of said van bearing words K.K. Travel and Tour Agency and one telephone number was written. A telephone call was made to Delhi and it was revealed that said van was hired for Haridwar. After one or two days police officials with some public persons from Delhi came and took the FIR from the pons. CJM passed orders for release of FIR No. 786/00 PS Uttam Nagar -: 15 :- the van. He has identified the maruti van No.DL3CR 1271, which was seized vide seizure memo mark X. In cross examination he could not tell the designation of police officials who visited PS Khajanchi Haat. He has stated that he cannot recognize the accused persons by name. He denied that he had not accompanied in the investigation and made statement at the instance of IO. In reply to the Court question he stated that accused persons were apprehended by IO.
20. PW-10 Tirath Raj Singh is the draftsman. He has deposed that on 04.11.2000 he prepared scaled site plan at the instance of SI Rajesh Kumar, same is Ex.Pw-10/A. After preparation of site plan he destroyed the rough notes and measurements. In cross examination he admitted that he was contacted by Delhi Police and he had gone to Ranipur alongwith Delhi Police. The incharge PP Badrabad PS Jwalapur had instructed him regarding the point encircled A to A on document Ex.PW-10/A.
21. Pw-13 Dr. Rajeev Verma is the person who conducted autopsy on the body of deceased. He has deposed that on 28.08.2000 he was working as Surgeon District Hospital, Haridwar and dead body of unknown person aged about 45 years was brought by Ct. Sohail Ahmad and Ramesh Chand of PS Jawalpur. He conducted the post mortem and prepared post mortem report which is Ex.Pw13/A. He opined the cause of death as shock and hemorrhage due to anti mortem injuries and time since death was given as 1/2 days prior to the date of post mortem. He handed over the sealed parcel containing seven articles belonging to deceased to the accompanying constable.
FIR No. 786/00 PS Uttam Nagar -: 16 :-
22. PW-17 Hajara Singh has deposed that on 27.08.2000 he had gone to dry canal at Ranipur and some persons had gathered there. He saw a dead body of one male in the said canal, blood was coming from the nose and mouth of said body and there were other signs of injury on the body of deceased. At about 11.30 a.m. police officials from PS Jwalapur came and IO conducted panchnama. There were six fingers in the right hand of the deceased and deceased was wearing white colour kurta pajama, height of deceased was around six feet. IO conducted panchnama and he signed on the same and dead body was sent for post mortem. Later on he came to know that name of deceased was Krishan and was resident of Delhi. Panchnama is Ex.Pw-17/A. In cross examination he stated that there were about 50 persons at the canal, he could not tell their name and addresses. Police officials reached there after about 4/5 minutes of his reaching. Nobody was called from hotel of Chaudhary Anoop Singh. He came to know about the name of deceased and the fact that he was resident of Delhi from a constable. He had seen the dead body from the distance of about 30 feet. Dead body was having all fingers in his legs. He had seen injuries on the dead body at forehead and mouth and except said injuries he had not seen any injury on his body. He was performing his duty as Watchman in the night of 26.08.2000 at a distance of 300/350 meters and he had not heard any type of noise in the said night. 2-3 others persons also signed on the panchnama besides him and out of them one person was Paramjit.
23. Pw-19 Surender Kumar is the photographer. He has deposed that on 27.08.2000 on the call of SI Rajesh Kumar of PS Jwalapur, he reached at Ranipur lake and went beneath the bridge of the said lake.
FIR No. 786/00 PS Uttam Nagar -: 17 :- He took photographs of dead body of a male who was wearing white kurta pajama. He handed over the photographs to the IO. He has proved the negatives of the photographs as Ex.PW-19/A1 to A2 and photographs as Ex.Pw-19/B-1 to B-4. In cross examination he stated that at about 11 a.m. two Constables reached at his shop and he had taken two photographs of dead body and photographs Ex.PW-19/B1 to B4 are developed copies of three snaps.
24. PW-18 Ct. Ramesh Chander is from PS Jwalapur. He has deposed in terms of statement of SI Rajesh Kumar (Pw-23). He has deposed that on 31.08.2000 some persons came from Delhi and identified dead body of deceased. In cross examination he stated that departure entry was made by SI Rajesh Kumar. The place of occurrence is about 5-6 kilometers from the police station. The place of occurrence is on highway, there is 24 hours busy traffic movement. His signatures were obtained on panchnama. They had made enquiry regarding identification of dead body from the persons, who had collected there. The articles of deceased were handed over to him from the hospital.
25. PW-20 Inspector Kuldeep Singh is SHO PS Jwalapur. He has deposed that on 27.08.2000 at about 10.30 a.m. one Paramjit Singh came to police station and informed that a dead body of male in the age group of 40-45 years was lying beneath the bridge of Ranipur lake. He alongwith SI Rajesh, Ct. Sohail Ahmad and Ct. Ramesh Chand reached there and as per his directions SI Rajesh Kumar called photographer, who took photographs of the deceased. The dead body was wearing kurta pajama and there were six fingers on the right hand of deceased.
FIR No. 786/00 PS Uttam Nagar -: 18 :- As per his directions SI Rajesh Kumar conducted panchnama. On 28.08.2000 post mortem was got conducted by SI Rajesh Kumar on the body of deceased, the body was handed over for cremation to Sewa Samiti, Haridwar because of non identification of dead body. On 31.08.2000 Chander Kishore alongwith Govind Singh alongwith 3-4 persons came to police station and he showed photographs of deceased and gave description of clothes of deceased and on the basis of same they identified the dead body of Kishan Kumar and further told him that on 26.08.2000 four persons had hired the maruti from Delhi to Haridwar. On 06.09.2000 he sent report to Delhi which is Ex.Pw-20/A. In cross examination he stated that he had not recorded the statement of informed Paramjit Singh. The message was passed over to PP Badrawad from police station through wireless. There were 2-3 shops near the place of incident, residential area was about 2 k.m. from the place of incident. Informer Paramjit Singh was owner of one of the shop, who also resided in the same vicinity. Nothing was recovered from or around the dead body. He made enquiries from the persons who collected at the spot but none of them identified the dead body in his presence. He made enquiries from five persons, who witnessed the panchnama. He did not take any step to register the FIR. Information to the senior officers was given through RT message, they had published the notice of recovery of dead body in all the local papers, Amar Ujala, Dainik Jagran etc. He never came to know regarding cause of death. He did not record statement of Chander Kishore and Govind Singh. The photographs were kept at both the places i.e. PS Jwalapur and PP Badhrawad. He denied that no proceedings or investigation was conducted by him.
FIR No. 786/00 PS Uttam Nagar -: 19 :-
26. PW-21 Ct. Narinder Singh is also from PS Jwalapur. He has deposed that on 27.08.2000 he recorded DD No.19 on the information received from Paramjeet Singh. On 31.08.2000 he recorded DD No.7 regarding arrival of Chander Kishore and Govind Singh at PS Jwalapur from Delhi, copy of said DDs are Ex.Pw-21/A and 21/B respective.
27. PW-22 Ct. Sohail Ahmed is also from PS Jwalapur. He has deposed in terms of statement of PW-20 Inspector Kuldeep Singh. In cross examination he has stated that he came to know about the information given by Paramjit Singh at PP Badrawad. He had not made departure entry. The place of occurrence is about 3-4 kilometers from police post. No patrolling was being made by police both at or near Ranipur lake. He remained at the place of occurrence for 2-3 hours. He put his signatures on the panchnama, which was prepared by SI Rajesh Kumar. SI Rajesh Kumar took personal search of deceased but nothing was recovered, body was recovered externally. He could not tell how he took dead body to hospital. He took dead body to hospital on 27.08.2000 and post mortem was conducted on 28.08.2000. He remained in hospital till the post mortem was conducted. He denied that he had not gone to the place of occurrence or that that he had not joined the investigation of this case.
28. PW-23 SI Rajesh Kumar is the chowki incharge PP Badrawad PS Jwalapur. He has deposed in terms of statement of PW-20 Inspector Kuldeep Singh. In cross examination he stated that he conducted the inquest proceedings only and did not make enquiry. He had made departure entry in PS but could not tell its number. The place of FIR No. 786/00 PS Uttam Nagar -: 20 :- occurrence was a peaceful area. When he reached at the place of occurrence, there were 50-60 persons gathered but nobody could identify the dead body. He had called the photographer who took 5-10 snaps of dead body. He took personal search of dead body, one match box and two coins of 50 paisa were recovered from the pocket of deceased and he had prepared seizure memo of the said articles. Said articles were deposited in PS Jwalapur. The dead body was sent for post mortem in three wheeler scooter. On 28.08.2000 after post mortem the dead body was handed over to Ct. Sohail Ahmad and Ct. Ramesh Chander for cremation through Ganga Sewa Samiti. On 31.08.2000, two-three persons who introduced themselves as relative of Krishan Kumar came and he had offered external features of dead body and showed photographs of the deceased and they informed that a case was lodged with Delhi Police. He did not have any knowledge regarding registration of case prior to 31.08.2000. He denied that he had not made any enquiry and conducted inquest or dead body was not recovered by him.
29. PW-24 SI Dal Chand is the investigating officer. He has deposed about various steps taken by him. He has deposed that on 29.07.2000 on receipt of DD No.10A he alongwith Ct. Dilbagh reached to the place of occurrence i.e. Main Nazafgarh Road, Kaushik Travels, where he found that some people have collected there. He recorded statement of Jitender Kumar Ex.PW-4/A and made endorsement Ex.Pw- 24/A and gave the same to Ct. Dilbagh for getting the case registered. Thereafter he recored statement of Anirudh brother of complainant under Section 161 Cr.P.C. and he told that he had received one phone call FIR No. 786/00 PS Uttam Nagar -: 21 :- from SHO of Bihar and further informed that four persons have been apprehended and they have killed the driver. He reached at Bihar on 31.08.2000 and came to know that four persons have been apprehended in PS K. Haat, he reached at K. Haat and saw the vehicle No. DL3CR 1271 parked there and four persons were detained in the lock up and he knew one person who is accused Mohd. Tayyab, prior to the incident. On 18.09.2000 he alongwith staff reached at PS Jawalapur, where SI Rajesh Kumar and Kuldeep Singh met him. He alongwith SI Rajesh came to Ranipur Canal, where the dead body was found. He prepared site plan at the instance of SI Rajesh Kumar, which is Ex.Pw-24/B. He collected the photographs of the dead body Ex.Pw-19/B1 to B4. On 10.10.2000 the post mortem report was received by him. On 01.11.2000 accused Chintu Malhotra, Kalu Kashyap, Dharmender and Mohd Tayyab were brought to Delhi. In cross examination he stated that accused Tayyab was residing in the jhuggi of Kali Basti and only one person by the name of Tayyab was residing. On 29.08.2000 he had started for Purnia District and reached there in the morning of 31.08.2000. He denied that in the noon of 31.08.2000 he had seen the accused persons in the lock up of PS K. Haat and in the morning of 31.08.2000 accused persons were sent to JC after their production in the concerned Court. On 31.08.2000 he recorded statement of SI Rajesh Kumar Dubey, SI Ajeet Singh, Surender and Mahadev. He had not made any enquiry regarding the ownership of vehicle No. DL3CR 1271. He admitted that complainant Jitender Kumar had told him that the accused persons had gone in the said vehicle. On 04.09.2000 he came to know regarding the fact that dead body of Krishan Kumar was found at Ranipur. Inspector T.P.S. Tomar had formally arrested the accused persons at about 4/4.30 FIR No. 786/00 PS Uttam Nagar -: 22 :- p.m. on 03.11.2000. He had not conducted any investigation to the effect that whose post mortem report was this i.e. post mortem report No.368. He denied that post mortem report No. 368 is not of deceased Krishan Kumar. He denied that he had not seen the accused persons as well as the vehicle No. DL3CR 1271 at PS K. Haat, Purniya Bihar.
30. Pw-25 Inspector T.P.S. Tomar is the second investigating officer. He has deposed that on 18.10.2000 further investigation of this case was marked to him. On 03.11.2000 ASI Dal Chand alongwith staff and the accused persons came to Delhi. The arrest memo of accused Chintu Malhotra is Ex.Pw-25/A, arrest memo of accused Kalu Kashyap is Ex.Pw-25/B, arrest memo of accused Mohd Tayyab is Ex,.Pw-25/C and arrest memo of accused Dharminder Singh is Ex.Pw-25/D. He alongwith accused persons, Gurnam Singh reached at Ranipur Canal, PS Jawalpur and accused persons pointed out the place where they had thrown the body of deceased vide pointing out memo Ex.Pw-3/A. On 05.11.2000 accused persons pointed out the place from where they had hired the taxi vide pointing out memo Ex.Pw-3/C. On 03.01.2001 HC Ashok Kumar brought one sealed parcel sealed with the seal of HMG Hospital, Haridwar and same was seized vide seizure memo Ex.Pw-1/A. In cross examination he stated that he firstly met the accused persons on 03.11.2000 a PS Vikas Puri at about 10 a.m. He had not investigated regarding the fact that deceased Krishan Kumar was died and his dead body was lying in Ranipur Jhal. However, he tried to inquire about the same, but could not find any clue except the statement of SI Rajesh Kumar. He denied that as the identification of the accused persons was necessary and to falsely implicate them, he had not requested for their FIR No. 786/00 PS Uttam Nagar -: 23 :- TIP. He had not moved any application for obtaining the certified copy of the case file of PS K. Haat, Purniya, Bihar. He denied that firstly the accused persons were falsely implicated in a case at Bihar and thereafter they have been falsely implicated in this case.
31. Thereafter prosecution evidence was closed on 20.04.2005. Statement of accused persons under Section 313 Cr.P.C. was recorded and incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and they have been falsely implicated in this case. Accused persons did not choose to lead any defence evidence.
32. I have heard Shri N.S. Kadyan, Ld. Addl PP for the State and Shri Pankaj Kumar Advocate, Ld. Counsel for accused Chintu Malhotra and Gyan Chand Kashyap and Shri Jafar Abbas Advocate, Ld. counsel for accused Mohd. Tayyab and Dharminder. I have also carefully gone through material on record.
33. Ld. Addl PP submitted that PW-4 Shri Jitender Kumar is the son of the deceased Shri Krishan Kumar and he has deposed that he had lastly seen deceased Krishan Kumar with the accused persons on 26.08.2000. He has also deposed that he had gone to Taxi Stand to hand over the clothes of his father and at that time accused persons were present there and enquiry accused persons told him that they were going to Haridwar. Thereafter, the deceased did not return back and dead body has been identified by PW-17 Shri Hazara Singh at Haridwar. PW-12 Shri Chander Kishore has identified the deceased from the photographs.
FIR No. 786/00 PS Uttam Nagar -: 24 :-
34. Ld. Addl PP further submitted that Pw-`14 SI Ajit Kumar is from police station at Bihar and he has deposed that on 29.08.2000 all the four accused persons alongwith vehicle No. DL3CR 1271 were apprehended by him and FIR No. 330/00 was registered at PS Bihar. One slip in the dikky of the said van bearing words K.K. Tours and Travels Agency was recovered and telephone number was given on the same, he made a telephone call at Delhi and came to know that said van was hired for Hairdwar.
35. Ld. Counsel for the accused persons submitted that dead body has not been recovered and it is not certain whether the post mortem on the body of deceased Krishan Kumar was conducted or not.
36. Ld counsel also urged that FIR in Delhi was registered on 29.08.2000 at 2.25 p.m. but the accused persons were apprehended by the police officials of PS K. Haat at Bihar at about 9.15 p.m. on 29.08.2000 and FIR No. 330/00 was registered at PS K. Haat at 0.20 hours. According to him Mr. Anirudh, son of deceased received a telephone call from police officials of Bihar at about 12 noon on 29.08.2000 and they informed that maruti van No. DL3CR 1271 was recovered and he informed to the police and on the basis of said information FIR was recorded. According to Ld defence counsel the information was received by Mr Anirudh Kumar at about 12 noon but according to Pw-14 SI Ajit Kumar they had apprehended the accused persons alongwith maruti van at about 9.15 p.m. on 29.08.2000 which creates suspicion in the case of prosecution.
FIR No. 786/00 PS Uttam Nagar -: 25 :-
37. Another submission of Ld defence counsel is that according to the case of prosecution, the accused persons were apprehended by the police officials of PS K. Haat, Bihar and the prosecution has examined PW-5 SI Rajesh Kumar, PW-6 Mahadev Kesri and PW-7 Surinder Kumar and they have been declared hostile and have not supported the case of prosecution. Pw-14 SI Ajit Kumar is also from PS K. Hatta and he could not identify the maruti van which was seized by him.
38. Yet another submission of Ld defence counsel is that clothes of deceased and articles recovered from his pocket have neither been seized nor produced by the prosecution.
39. Ld. defence counsel also submitted that the TIP of the accused persons was not conducted. The accused persons were not known to the prosecution witnesses. According to him non holding of the Test Identification Parade is fatal to the case of prosecution.
40. Ld counsel for the accused persons also contended that neither weapon has been recovered from the accused persons nor blood stained clothes of the accused persons have been recovered. Ld defence counsel pointed out that the chain of circumstances has not been proved by the prosecution. There is possibility that the deceased Krishan Kumar, who was driving the van had dropped the accused persons at Jwalapuri and later on he had expired.
41. The last submission of Ld counsel for the accused persons is that there is no misrepresentation or force and offence under Section 364 IPC is not made out.
FIR No. 786/00 PS Uttam Nagar -: 26 :-
42. In order to buttress his case, Ld defence counsel cited Judgments in case titled as Bharat Vs. State of M.P. reported as 2003 (1) C.C. Cases (SC) 145, State of U.P. Vs.Arun Kumar Gupta AIR 2003 Supreme Court 80, Sunny Kapoor Vs. State (U.T. Chandigarh) reported as AIR 2006 Supreme Court 2242 and State of Kerala Vs. Hariharan reported as 2006 (2) Crimes 176.
43. I have given my thoughtful consideration to the submissions made by Ld. Addl PP for the State and Ld counsel for the accused persons. I have also gone through the Judgments cited by Ld counsel for the accused persons. In Bharat's case (supra), the conviction was based on two circumstances i.e. of last seen together and recovery of ornaments and there was alleged extra judicial confession. It was held that evidence of recovery of ornaments was not worth accepting, there was no proper and legal identification of the ornaments and therefore the chain of circumstances was incomplete. In State of U.P.'s case supra, the blood stained earth and weapon recovered from the house of accused were not sent for examination, there was no independent witness to the recovery. It was held that except motive most of other circumstances have not been established. It was also held that witness belonging to biradari of deceased and he was friend of father of deceased and he was taking extra ordinary interest in investigation. In Sunny Kapoor's case (supra), the evidence of witness who had last seen deceased in company of accused was not trustworthy. There was glaring discrepancies in regard to date and time of recovery of dead body and name of another person who ran away with belongings of deceased was never figured during investigation. There was no evidence that all FIR No. 786/00 PS Uttam Nagar -: 27 :- accused were present at the time when deceased was strangulated. It was held that on the basis of such evidence it would not be safe to uphold the conviction. In State of Kerala's case (supra), there was dying declaration made by deceased to police constables. It was held that even though there is no bar in relying on dying declaration made to police official, it should be recorded and at least be attested by an independent witness if others were present. Serious doubt as to authenticity of dying declaration was raised due to non examination of independent witnesses. It was also held that declaration given to police constables was different from version given to doctors and state of mind of injured was also not proved.
44. First of all, I will deal with the submission of Ld defence counsel that TIP of the accused persons was necessary and effect there of. In order to appreciate the foundation of this argument, it is necessary to consider the reasons for holding the identification proceedings and scope thereof. The facts which establish the identity of any person or thing whose identity is relevant are, by virtue of Section 9 of Evidence Act, always relevant. During the investigation of a crime the police has to hold the identification parade for the purpose of enabling the witnesses to identify the properties which are subject matter of the offence or to identify the persons who are concerned therein. They have, thus a two fold object; first, to satisfy the investigating authorities that a certain person not previously known to the witnesses was involved in the commission of the crime or a particular property was the subject matter of the crime. It is also designed to furnish the evidence to corroborate the testimony which the witness concerned tenders before the Court.
FIR No. 786/00 PS Uttam Nagar -: 28 :- The identification is almost, always a matter of opinion or belief. Thus in order to have some assurance of the truth, a test identification is held that is to say, the witness at an earlier stage is confronted with the alleged offendere not standing alone but mixed mixed with a number of innocent persons of the same age group and of similar built and features; or suspected stolen article is mixed with the number of other articles which resemble it. That is to say, it is to give credence to the evidence of a witness who does not know the accused from before, or who has not seen the articles subsequent to the commission of the offence, that a test identification is held, without it the evidence of the witness concerned would have little value.
45. In the present case Shri Jitender Kumar (PW-4) and Shri Anirudh Kumar (PW-8) are the sons of deceased. PW-4 Jitender Kumar has categorically deposed that on 26.08.2000 he received a telephone call of his father and he went at Mini Bus Stand infront of Kaushik Travels to hand over the clothes of his father. He handed over the clothes to his father and at that time accused Chintu Malhotra, Kalu Kashyap, Dharminder and Mohd. Tayyab were present there, on enquiry the accused persons told him that they were resident of village Hastal, Uttam Nagar and they had boarded the van. He has also deposed that he knew accused Dharminder who is his friend of his brother. Similarly PW- 8 Shri Anirudh Kumar has deposed that he knew accused Dharminder prior to the incident as he was his friend. Moreover, it was suggested to Shri Jitender Kumar (Pw-4) on behalf of the accused persons, in his cross examination dated 04.07.2002 that he had seen the accused persons namely Chintu Malhotra and Kalu Kashyap on 26.08.2000 when FIR No. 786/00 PS Uttam Nagar -: 29 :- they were going to Haridwar. The accused persons were previously known to Mr. Jitender Kumar and Mr. Anirudh Kumar and, therefore, it was not necessary to hold Test Identification Parade.
46. The other submission of Ld counsel for the accused persons is that weapon of offence has not been recovered, blood stained clothes of the accused persons were not recovered and belongings and clothes of deceased have not been seized by the Investigating Officer. In this regard it may be mentioned that P-23 SI Rajesh Kumar who is from PP Badrawad has deposed that he took personal search of the dead body and one match box and two coins of 50 paisa were recovered from the pocket of deceased. The non seizure of said articles is of no consequence. It is settled principle of law that non recovery of weapon is not fatal to the prosecution case. The accused persons were not arrested at the spot. The accused persons were arrested on 29.08.2000 by the police officials of PS K. Haat, Bihar. The accused persons had ample opportunity to conceal the weapon of offence. In this regard reliance can be placed on a Judgment in case reported 1988 Criminal Law Journal NOC 1928 wherein it has been held that non recovery of weapon does not dilute the case of prosecution.
47. As regards the submission of Ld defence counsel that Mr. Anirudh Kumar (PW-8), son of deceased Krishan Kumar received telephonic call from the police officials of Bihar on 29.08.2000 at about 12 noon, FIR was registered at Delhi on 29.08.2000 at about 2.20 p.m. But the accused persons were apprehended by the police officials of PS K. Haat, Bihar at about 9.15 p.m. on 29.08.2000 and FIR No. 330/2000 FIR No. 786/00 PS Uttam Nagar -: 30 :- was registered at PS Bihar at 0.20 hours. In this regard Ld. Addl PP for the State pointed out that there may be some clerical mistake or failure on the part of the investigating officer with regard to time by the police officials at Delhi or police officials at Bihar. It is settled principle law that defective investigation or lapses on the part of the investigating agency are not sufficient to acquit the culprits and cannot be made base of acquittal. The prosecution case cannot be made to die at the hands of the police officials. In any case it is not the case of accused persons that they were not apprehended by the police officials of PS K. Haat on 29.08.2000. In this regard reliance can be placed on a Judgment in case titled as State of West Bengal Vs. Mir Mohd Omar & Ors reported as JT 2000 (9) SC 467 and another case titled as State of U.P. Vs. Hari Mohan & Ors reported as 2001 Criminal Law Journal 170 (SC). In Mir Mohd. Omar's case (supra) it has been held that flows in investigation, if made basis of acquittal, criminal justice would be a victim.
48. Moreover, the Apex Court in case titled as State of H.P. Vs. Lekh Raj & Anr reported as JT 1999 (9) SC 43 has observed that the traditional dogmatic hyper technical approach has to be repealed by rational, realistic and genuine approach for administering justice in a criminal trial.
49. Now coming to the submission of Ld defence counsel that dead body of deceased has not been recovered and autopsy on whose body was conducted and post mortem report Ex.Pw-13/A pertains to deceased Krishan Kumar or not. In this regard it may be mentioned that Mr. Hazara Singh (PW-17) has deposed that on 27.08.2000 he had seen FIR No. 786/00 PS Uttam Nagar -: 31 :- dead body of a male lying at dry canal at Ranipur, Jwalapur, deceased was in the age group of 50 years and there were six fingers in the right hand of deceased. A panchnama was prepared and he signed on the same which is Ex.Pw-17/A. Later on he came to know the name of deceased as Shri Kishan. Similarly, PW-17 Hajara Singh, Pw-18 Ct. Rajesh Kumar, Pw-20 Inspector Kuldeep Singh and PW-22 Ct. Sohail Ahmed have deposed that deceased was having six fingers in his right hand. The prosecution has also proved the photographs of the deceased which were taken before conducting autopsy on the body of deceased. Surinder Kumar has been examined as PW-19 and he has proved the photographs as Ex.Pw-19/B-1 to B-4. In the photographs the face of deceased is visible and identifiable.
50. Moreover, Mr. Jitender Kumar (PW-4), Mr. Anirudh Kumar (PW-8) and Mr. Chander Kishore (Pw-12) have categorically deposed that they went to Jwalapur, Haridwar and police officials told them that a dead body of male was recovered and the police officials showed photographs of the deceased. They have also deposed that deceased Krishan Kumar was having six fingers in his right hand and they identified the photographs as of deceased Krishan Kumar. Thus on the basis of identification by Shri Jitender Kumar (PW-4), Anirudh Kumar (Pw-8), son of deceased, Shri Chander Kishore (Pw-12), son-in-law of brother of deceased, PW-17 Hajara Singh, Pw-18 Ct. Rajesh Kumar, Pw-20 Inspector Kuldeep Singh and PW-22 Ct. Sohail , the identity of deceased Krishan Kumar stands established. However, it is true that in the post mortem report the name of deceased is not mentioned. The same has not been mentioned because by the time the post mortem on the body of deceased was got conducted, no person identified the dead body.
FIR No. 786/00 PS Uttam Nagar -: 32 :-
51. In case titled as Ramjee Rai & Ors Vs. State of Bihar reported as 2006 (8) SCALE 440. In the said case it was held :
"It is now a trite law that corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law. In the event, there exists strong circumstantial evidence, a Judgment of conviction can be recorded even in absence of the dead body".
52. Now coming to the other submission of Ld defence counsel that PW-5 SI Rajesh Kumar, Pw-6 Sh. Mahadev and PW-7 Surinder Kumar have turned hostile, which creates suspicion in the case of prosecution and Mr Paramjeet Singh who gave information at PS Haridwar has not been examined. According to Ld defence counsel Mr. Paramjeet Singh is a criminal and has been declared pro-claimed offender by the Court at Haridwar. He was a material witness and he has not been examined by the prosecution, which creates grave suspicion in the case of prosecution. In this regard it may be mentioned that law does not require a particular number of witnesses to be examined for proving the fact.
53. Section 134 of Indian Evidence Act clearly provides that no particular number of witnesses, in any case, to be required for proving any fact. It means that conviction can be based on the solitary witness which is trust worthy and what means is quality. The Apex Court in case titled as Sheelam Ramesh & Anr Vs. State of A.P. Reported as JT 1999 (8) SC 537 has observed that:
"Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on sole evidence of a witness, if it inspires confidence".
FIR No. 786/00 PS Uttam Nagar -: 33 :-
54. A similar question cropped up before Hon'ble Apex Court in case titled as Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh reported as 1991 Criminal Law Journal 2653. It was held that evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile witness and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the the extent their version is found to be dependable on a careful scrutiny thereof.
55. Now I will deal with the offence under Section 364 IPC. The offence of kidnapping and abduction has been defined in Section 359 and 362 of IPC. Same read as under:-
Section 359. Kidnapping- Kidnapping is of two kinds:
kidnapping from [India], and kidnapping from lawful guardianship.
Section 362. Abduction - Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Section 364 of IPC reads as under:
Section 364. Kidnapping or abducting in order to murder:- Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
56. The scope of Section 364 IPC cropped up before the Apex court in a recent case titled as Badhah & Ors. Vs. State of U.P. reported as 2008 III AD (SC) 15, in the said Judgment, in para No.11, it has been FIR No. 786/00 PS Uttam Nagar -: 34 :- held:-
Ingredients of the said offence are (1) Kidnapping by the accused must be proved; (2) it must also be proved that he was kidnapped in orders to; (a) that such person may be murdered; or (b) that such person might be disposed of as to be put in danger of being murdered.
The intention for which a person is kidnapped must be gathered from the circumstances attending prior to, at the time of and subsequent to the commission of the offence. A kidnapping per se may not lead to any inference as to for what purpose or with what intent he has been kidnapped.
57. In the instant case the prosecution has established on record by examining PW-4 Shri Jitender Kumar that the accused persons hired maruti van No. DL3CR 1271 for going to Haridwar which was being driven by his father Shri Krishan Kumar (now deceased) on 26.08.2000 at about 4 p.m. On 27.08.2000 the deceased did not return back and his family members made efforts to trace him. Pw-4 Shri Jitender Kumar and PW-8 Anirudh Kumar went to the house of the accused Dharminder to trace their father but he was not available. On 28.08.2000 Mr. Jitender Kumar, Mr. Anirudh Kumar and Mr. Chander Kishore went to Haridwar in search of deceased Krishan Kumar and the police officials of PS Jwalapur (Haridwar) informed that a body of male was recovered, the post mortem was conducted after obtaining photographs of the deceased. After seeing the photographs, Mr. Jitender Kumar and Mr. Anirudh Kumar identified the body as that of their father Shri Krishan Kumar. Thus the prosecution has established that deceased went with the accused persons on 26.08.2000 at 4 p.m. and the body of deceased Krishan Kumar was recovered on 27.08.2000 i.e. on the next day. The FIR No. 786/00 PS Uttam Nagar -: 35 :- post mortem on the body of deceased was conducted by PW-13 Dr. Rajeev Verma. Same leads to a reasonable conclusion that the accused persons kidnapped deceased Krishan Kumar and killed him.
58. In case titled as Gurnam Singh Vs. State of Punjab reported as JT 1998 (5) SC 444 there was no direct evidence to show that any of the accused had killed the deceased. The death of Inder Singh, Puran Singh and Baldev Singh had taken place within a short time after they were kidnapped. It was held that the same leads to a legitimate inference that the persons who had kidnapped had killed them. The conviction should be under Section 302/34 IPC since medical evidence established death within short period of kidnapping.
59. The question as to on whom the onus lies when the facts of last seen has been proved, came up for consideration in various Judgments. In case titled as Ram Gulam Chaudhary & Ors Vs. State of Bihar reported as 2001 (8) SCC 311, it has been held that in the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellant. It was for the appellant to have explained what they did with him after they took him away. When the abductors withheld that information from the Court there is every justification for drawing the inference that they had murdered the boy.
60. In case titled as Sucha Singh Vs. State of Punjab reported as (2001) 4 SCC 375, Section 106 of the Evidence Act was held to be applicable to cases where the prosecution had succeeded in proving FIR No. 786/00 PS Uttam Nagar -: 36 :- facts for which a reasonable inference can be drawn as regards existence of certain other facts unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference.
61. In case titled as State of West Bengal Vs. Mir Mohammad Omar & Ors reported as 2000 (9)_SC 467 it has been held that the Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.
62. In case titled as Sahadevan alias Sagadevan Vs. State reported as 2003 Criminal Law Journal 424, it has been held that this is one of the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted the company. In this regard reliance can also be placed on a recent Judgment in case titled as Badshah & Ors Vs. State of U.P. reported as 2008 III AD (S.C.) 15.
63. At this juncture it may be mentioned that it is not necessary to prove the motive. In this regard reference may be made to a Judgment AIR 1976 SC 2032. In the said case it has been held that absence of FIR No. 786/00 PS Uttam Nagar -: 37 :- motive goes not to disprove the case of prosecution if prosecution succeeds in proving the same.
64. In another case titled as Sahadevan alias Sagadevan Vs. State reported as 2003 Criminal Law Journal 424, it has been held that absence of motive would not hamper a conviction when the circumstances relied upon by the prosecution were proved beyond reasonable doubt.
65. In case Title as State of Haryana Vs. Sher Singh & Ors reported as AIR 1981 SC 1021, in para No.18 of the Judgment it has been held that prosecution is not bound to prove motive of any criminal case, in as much as motive is known only to the preprators of crime and may not be known to others.
66. In a recent case titled as Badshah & Ors. Vs. State of U.P. reported as 2008 III AD (S.C.)15, in para No.19, it has been held that in the event of murder of an abducted person, either by direct or presumptive evidence, an inference of murder can safely be drawn in respect whereof, it would not be necessary to prove the corpus delicti.
67. The accused persons and deceased were last seen together on 26.08.2000 at 4 p.m. and subsequently deceased was found dead on 27.08.2000. The circumstances of last seen fact stands established on the basis of material on record. The time gap between the accused persons and deceased Krishan Kumar were last seen together and subsequently deceased was found dead is so small that possibility of any other person other than the accused persons being author of crime FIR No. 786/00 PS Uttam Nagar -: 38 :- becomes virtually impossible. Thereafter, maruti van bearing registration No. DL3CR-1271 belonging to deceased, which was hired by the accused persons, was recovered from accused persons on 29.08.2000 i.e. after two days of incident. The same also goes to indicate that accused persons committed murder of Krishan Kumar and took the van to Bihar.
68. As already noted above, the circumstances of last seen together stands established on the basis of material on record. The same is clear from the cross examination of PW-4 Jitender Kumar wherein the accused persons have suggested to the witness and witness has admitted that he had seen the accused persons on 26.07.2000 (sick) it should be 26.08.2000 when they were going to Haridwar. The circumstance of last seen together having thus been established, it was obligatory on the part of the accused persons, to show where they parted with the company of deceased Krishan Kumar who was driving maruti van No. DL3CR-1271. The accused persons in their statement under Section 313 Cr.P.C. have made simple denial. The accused persons have miserably failed to discharge their duty when the opportunity was given to them in their examination under Section 313 of the Code. In answer to all the relevant questions put to them, the accused persons have replied that "it is incorrect" or "I do not know". This shows that the accused persons have failed to satisfactorily explain the circumstances in which they parted the company with the deceased. Such failure on the part of the accused persons, has to be taken as supplying missing link in the chain of circumstances. Even though there is no missing link in the chain of circumstances, the failure of accused persons to explain the FIR No. 786/00 PS Uttam Nagar -: 39 :- circumstances in which they parted with the deceased may well serve as an additional link in the chain of circumstances thereby fortifying the prosecution case. In this regard reliance can be placed on a Judgment in case titled as Sahadevan @ Segadevan Vs. State reported as 2003 Criminal Law Journal 424
69. The whole gamut of aforesaid facts and circumstances goes to reveal that the prosecution has successfully proved its case beyond reasonable doubt that the accused persons had abducted Shri Krishan Kumar in order to commit murder and caused the death of Shri Krishan Kumar. Hence the accused persons are held guilty and convicted for the offence under Section 364/34 IPC and Section 302/34 IPC .
Announced in open Court (V.P. VAISH)
Dated: 24.03.2008 ADDL. SESSIONS JUDGE
ROHINI: DELHI
FIR No. 786/00 PS Uttam Nagar
-: 40 :-
IN THE COURT OF SHRI V.P. VAISH, ADDL. SESSIONS JUDGE, ROHINI, DELHI IN RE: Sessions case No.75/2006 FIR No. 786/2000 PS: Uttam Nagar U/s: 365/302/34 IPC State Versus 1. Chintu Malhotra @ Chirag, S/o Chaman Lal Malhotra, R/o W-68/49, JJ Colony, Pankha Road, Uttam Nagar, Delhi.
2. Gyan Chand Kashyap @ Kalu Kashyap, S/o Shri Jagat Narayan, R/o A-672, JJ Colony, Pankha Road, Uttam Nagar, Delhi.
3. Mohd. Tayyab Alam S/o Shri Mohd. Sameer, R/o Jhuggi No. 306, T Camp, Kali Basti, Uttam Nagar, Delhi
4. Dharminder Singh @ Vijay Singh, S/o Shri Kalu Prasad, R/o A-631,JJ Colony, Pankha Road, Uttam Nagar, Delhi.
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ORDER ON SENTENCE I have heard Shri G.S. Guraya, Ld. Addl PP for the State and Shri Pankaj Kumar Advocate for convicts Chintu Malhotra and Gyan Chand Kashyap @ Kalu Kashyap and Shri Zafar Abbas Advocate for FIR No. 786/00 PS Uttam Nagar -: 41 :- accused Dharmender and Tayyab Alam. It is stated that convict Chintu Malhotra is unmarried and is alone in the house. Convict Kalu Kashyap has one female child and has to maintain his old father. It is also stated that convict Dharmender has to maintain his old father aged about 70 years and two unmarried sisters. It is also stated that convict Mohd Tayyab has to maintain his sister. A request for taking lenient view has been made on behalf of all the convicts.
2. All the convicts have been convicted for the offence under Section 364/34 IPC and Section 302/34 IPC. It is not a rarest of rare case.
3. Keeping in view the facts and circumstances of the case all the convicts are sentenced to undergo rigorous imprisonment for ten years and fine of Rs.2000/-each (Rs. Two thousand only), in default of payment of fine to undergo rigorous imprisonment for one month, for the offence under Section 364/34 IPC. All the convicts are also sentenced to undergo life imprisonment and fine of Rs.2000/- each (Rs. Two thousand only), in default of payment of fine rigorous imprisonment for one month, for the offence under Section 302/34 IPC. Both the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. be given to all the convicts.
4. A copy of Judgment and order on sentence be given to all the convicts. File be consigned to record room.
Announced in open Court (V.P. VAISH)
Dated: 31.03.2008 ADDL. SESSIONS JUDGE
ROHINI: DELHI
FIR No. 786/00 PS Uttam Nagar