Delhi District Court
State vs 1. Vijay Partap Singh @ Beenu on 20 July, 2012
1
IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE
INCHARGE/ ADDITIONAL SESSIONS JUDGE:
DISTRICT COURTS ROHINI, DELHI
SESSIONS CASE NO. 114/2010
State Versus 1. Vijay Partap Singh @ Beenu
son of Chander Pal
R/o. Vill. Adauli
P.O & P.S. Mau Darwaja
Distt. Farukhabad (U.P.)
2. Vijay @ Rinku
son of Harshwardhan
R/o Jhuggi No. 25A-12
Lal Bagh, Model Town, Delhi
3. Ashish S/o Chander Pal Singh
R/o Village Udhawali PO & PS Mau Darwaja
District Farukhabad (U.P)
(Proclaimed Offender)
FIR NO. - 532/2007
Police Station - Mukherjee Nagar
Under Section - 364/392/302/201/411/120B/202/216 IPC
Date of institution 28/02/2009
Dates when arguments 20.09.2011, 05.12.2011, 13.12.2011, 11.01.2012
were heard 8.02.2012, 17.03.2012, 31.03.2012, 18.04.2012
16.05.2012, 28.05.2012 and 09.07.2012
Date of judgment 16/07/2012
JUDGEMENT
1. The SHO of Police Station Mukherjee Nagar has challaned the accused persons in the court of Metropolitan Magistrate for the trial of the accused persons for the offences under Sections 364/392/302/201/ 411/120B/202/216 IPC. After supplying the copies to the accused persons and compliance of provisions of the section 207 Cr. P.C. the learned State Vs Vijay Pratap Singh etc 2 Metropolitan Magistrate committed the case to the Court of Sessions under Section 209 Cr. P.C. for trial of the accused persons.
BRIEF FACTS OF THE CASE
2. The prosecution case as disclosed in the challan is that on 03.12.2007 on receipt of FIR No. 0/2007 u/Ss 364/393/302/201 IPC from P.S Patiali District Etah U.P by post, SHO Police Station Mukherjee Nagar made endorsement on it and gave it to duty officer P.S Mukherjee Nagar for registration of the case and handed over investigation to Additional SHO Inspector Shayma. The said FIR was recorded on the basis of zero FIR recorded in P.S Patiali with regard to murder of one Vinod Kumar after looting the Tavera DL-1YA-4120 vehicle. This FIR was lodged on the complaint of one Manoj Kumar intimating SHO Kotwali Patilai Etha that his real brother Vinod Kumar used to drive vehicle no. DL-1YA-4120 Tavera belonging to Golden Tourist. On 31.10.2007 at 9.00 a.m, this vehicle was booked from house no. 21B/16 Lal Bagh Azadpur vide mobile phone no. 9910831326 from Delhi to Aligarh and was to return in the morning. The vehicle did not return as per time schedule and intimation about it was given by the owner of vehicle in the P.S Mukherjee Nagar on 01.11.2007. On 01.11.2007 intimation was received from P.S Patiali District Etah by telephone that dead body of some unknown person was lying in the Bajra field of village on the way between village Sukhri Khera and Jasmai. From the dead body one purse was recovered containing one driving licence and driver bag with the particulars of Vinod S/o D.P. Singh R/o D-325 Nathipura, Delhi. On receipt of this information complainant Manoj Kumar went to P.S Patiali. He identified the dead body of his brother Vinod Kumar. The initial investigation was handed over to Inspector Shayma and thereafter to Inspector Ajay Kumar.
State Vs Vijay Pratap Singh etc 3
3. On 08.12.2007 one FIR no. 0/2007 U/S 411 IPC was received in the office of ACP Model Town in P.S Mukherjee Nagar. This FIR was lodged in P.S Mau Darwaja, District Farukhabad, U.P which showed that the vehicle Tavera no. DL-1YA-4120 was seized by SI Karuna Shankar Vajpayee with his police team from P.S Mau Darwaja and one accused Vijay Pratap @ Beenu was arrested while two other accused Ashish S/o Chander Pal and Vijay @ Rinku were successful in escaping from the vehicle. Due to recovery of the vehicle the offence u/S 411 IPC was also added in the FIR.
4. On 09.12.2007 during investigation accused Vijay @ Rinku was arrested. His disclosure statement was recorded. Accused was produced in the court and five days police remand was obtained. Application for production warrant of co-accused Vijay Pratap Singh @ Veenu was made and production warrant was got issued. SI Chander Bhan collected the documents pertaining to the postmortem of deceased Vinod from P.S Patiali. Accused Vijay @ Rinku pointed out the place of incident about which the memo was prepared. The site plan of the place of recovery of dead body was prepared by SI Chander Bhan on the pointing out of SI Satpal of P.S Patiali. Thereafter SI Chander Bhan came along with accused Vijay @ Rinku to P.S Mukherjee Nagar and deposited the case property in the malkhana and handed over the case file to Investigating Officer. On 15.12.2007 the investigating officer, on accused Vijay Pratap @ Beenu being produced, interrogated him with the permission of the court and arrested him. Thereafter investigation was handed over to Inspector Shyama who got issued NBW against accused Ashish. Thereafter investigation was transferred to District Investigating Unit North West and the matter was investigated there by Inspector Ajay Kumar who after discussing the matter with prosecution branch and senior police officers State Vs Vijay Pratap Singh etc 4 added offences u/S 120B/202/216 IPC. He also seized the copy of the documents from the complainant by preparing a memo and recorded statement of complainant. Thereafter Inspector Ajay Kumar visited P.S Patiali Etha and P.S Mau Darwaja, Farukhabad. He tried to search accused Ashish and recovered vehicle Tavera no. DL-1YA-4120 vide seizure memo and recorded statement of witnesses. He brought the said vehicle to Delhi and deposited it in the malkhana of P.S Mukherjee Nagar. Accused Ashish could not be arrested and was avoiding arrest. The process u/S 82 Cr.P.C was got issued against him. The mobile crime team inspected the vehicle Tavera and the crime team report was received by the IO. The vehicle was got examined by the IO at FSL Rohini, which later on was released to owner Kuldeep Singh on superdari. The finger prints were lifted from rear view mirror. The chance prints from the vehicle were sent to Finger Print Bureau, Malviya Nagar for their matching by the expert. During investigation it was ascertained the accused Vijay @ Rinku and accused Ashish and one of their friends by telephone booked the vehicle Tavera DL-1YA-4120 from Golden Travel and as per the conspiracy in the area of P.S Patiali District Etha the driver Vinod Kumar was murdered and his dead body was thrown in the field and the said vehicle was looted. The statement of witnesses were recorded. The accused Ashish was declared proclaimed offender by the court after proceedings u/S 82 Cr.P.C. On completion of investigation, the accused persons were challaned, as referred above.
CHARGES AND PLEA OF THE ACCUSED PERSONS
5. Prima facie case for the offence punishable under Sections 120B/392/302/120 and under Section 120B IPC against the accused Vijay @ Rinku was found made out and separate charge under Section 411 and 202 IPC also found made out against accused Vijay Partap Singh @ State Vs Vijay Pratap Singh etc 5 Beenu. Accordingly charges were famed against the accused persons on 26/03/2009 to which accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In support of its case, prosecution has examined twenty six witnesses in all namely PW1 V. Shankara Narayanan, PW2 Manoj Kumar, PW3 Kuldeep Singh, PW4 Singh Raj,PW5 Hira Lal Gupta, PW6 Rajan, PW7 Inspector Shyam Pant, PW8 Jwala Parsad, PW8A Dr. Sayed Mohd., PW9 Rameshwar, PW 10 Sub Insp. Satpal, PW11 Constable Raj Narayan, PW 12 Head Constable L.N. Sharma, PW13 Constable Arvind Kumar, PW 14 Sub Insp. Suraj Bhan, PW 15 Assistant Sub Insp. Narender Singh, PW 16 Constable Keshav Parsad Raman, PW 17 Head Constable Surender Kumar, PW 18 Inspector R.C. Dahiya, PW 19 Constable Brij Bihari, PW 20 Head Constable Satish Kumar, PW21 Vishal Gaurav, PW 22 Head Constable Mukesh Sharma, PW 23 Sub Inspector Chander Bhan, PW 24 Sub Insp. Karuna Shankar Vajpayee, PW 25 Addl. Commissioner of Police Indira Sharma and PW 26 Inspector Ajay Sharma. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court. It is given below:
7. PW1 V. Shankara Narayanan deposed that on 03/03/2008, five sealed parcels were received in the office of FSL with regard to the present case and on biologically examination blood was detected on exhibits 1A,1B 1C(i),1C(ii),1D(i),1D(ii),2a,2b,2c,2d,2e,2f,2g and 2h. He prepared his biological report which is Ex PW1/A. He also examined the exhibits serologically and on examination exhibits 1A,1B,1C(i),1C(ii),1D(i), 2e and 2f showed reaction for human origin of blood but, with respect to human blood group, there was no reaction. Exhibits 1D(ii),2a,2b and 2c showed reaction for human blood ground "A". Exhibits 2d,2g and 2h State Vs Vijay Pratap Singh etc 6 showed no reaction with respect to human origin of blood. He prepared serologically report which is Ex PW1/B.
8. PW2 Manoj Kumar deposed that deceased Vinod Kumar was his brother, who was driver with the Golden Tourists of Mukherjee Nagar.
On 31.10.2007, his brother had gone somewhere in Uttar Pradesh on Tavera vehicle. He came to know that one Monu had booked Tavera on 31.10.2007 at around 9.00 am
9. He further deposed that on 01.11.2007, he received a telephone call from police station Patiali, Distt Etah that they had received a dead body and one driving licence has been found from it which contained particulars of his brother and residential address. On this information, he went to Mukherjee Nagar and he made inquiry from Kuldeep Singh, owner of the tourist company. Thereafter he made telephone call at police station Patiali and they reached at police station Patiali and he identified the dead body of his brother and had identified the purse and driving licence of his brother Vinod and he made complaint Ex. PW2/A. Thereafter postmortem on the dead body was got conducted and they brought back the dead body to Delhi. Later on case was transferred to police station Mukherjee Nagar by the Uttar Pradesh police and Inspector Shyama Pant made inquiry from him. This witness was hostile so was cross examined by learned Addl. Public Prosecutor and he admitted that vehicle was booked by one Monu resident of N 21 B/16, Lal Bagh, Azadpur and having phone no. 9910831326 and the vehicle was booked from Azadpur to Aligarh and the vehicle had to return to Delhi in the evening.
10. He further admitted that owner of vehicle informed police State Vs Vijay Pratap Singh etc 7 station Mukherjee Nagar that on 01/11/2007 that vehicle has not been returned which was booked for Aligarh. He came to know that dead body of his brother was found at village Sukhti Khera in the fields of "Bajra" on the way to Jasmal and that is why he had mentioned this fact in his complaint. He further admitted that Singh Raj, Manager had left the vehicle at Azadpur and from there Singh Raj had taken the advance from the person who had booked the vehicle. He further admitted that on 17/01/2008, he handed over one copy of driving licence of his brother Vinod Kumar and batch number, one copy of fee slip. He further deposed that police at police station Patiali had handed over him purse Ex P1 of his brother along with documents and it contained one driving licence of Vinod Kumar, some documents, visiting cards Rs.100/- one batch number of Vinod Kumar, some coins. All these items are collectively Ex P2.
11. PW3 Kuldeep Singh deposed that he is running a travel agency in the name of Golden Travel situated at shop no. 113, New Kishore Market, Kingsway Camp, Delhi. On 31/10/2007 at about 8.00/8.15 am, he received a call from Monu on his mobile. Monu demanded one Qualis or Tavera vehicle to go to Aligarh. He inquired from Monu when they will return and Monu told him that they would return on the same day by 5-6 PM as they were going to get the bride. He asked them how many people were to go to and how many would be returning back, on which Monu told him that few people would go from Delhi and they would get the bride from Aligarh.
12. He further deposed that thereafter he told his Manager Singh Ram to send the Tavera vehicle bearing No. DL-1YA-4120 to Lal Bagh on the address which was given to him by Monu. When vehicle reached at Lal Bagh, he spoke to his Manager if there was any problem, on which his State Vs Vijay Pratap Singh etc 8 Manager told him that he has settled the rates with the party at Rs.1000/- out of which Rs.500/- they have received. He instructed the Manager to tell the party to take care of the driver Vinod on the way and to pay the remaining Rs.500/-. He was told by the Manager that three boys were going to Aligarh in the vehicle as they wanted to get the bride. Driver Vinod had been deputed on the said vehicle. Most of his work is done on phone.
13. He further deposed that in the evening neither the vehicle nor the driver came back. He did not find it strange because as a normal practice whenever the vehicle or the driver got late, they were permitted to go back home directly and report on the next day morning. On next morning when Vinod did not come, he gave a call to his wife as to why Vinod had not reported for duty. She told him that Vinod had not returned and she herself was worried. After about 10-15 minutes, he received a call from the wife of Vinod that she had received a telephone call from police station Patiali, Distt Etah that a dead body had been found and she was being called to identify the same, on the basis of licence found in the pocket of the dead body. He himself took the brother and other relatives of Vinod to Patiali and identified the dead body of Vinod which was lying in the police station Patiali. After the identification of the dead body of Vinod, postmortem was conducted and the dead body was handed over to them, which they brought to Delhi on the same day.
14. He further deposed that three boys who had hired the vehicle were missing along with vehicle and therefore, he had very strong suspicion that they had killed his driver, on which he requested the police to Farookhabad and he was informed by SHO concerned about the same and later on he took the same on superdari. He further deposed that on 03/03/2007, he handed over to police, photocopy of the application of State Vs Vijay Pratap Singh etc 9 deceased which he had given to him for taking job and photocopy of the application given to police station Mukherjee Nagar and the same were seized by the police vide memo Ex PW3/A. Registration Certificate of vehicle no. DL-1YA-4120 is Ex P1 and permit is Ex P2. This witness being hostile was cross examined by learned Addl. Public Prosecutor and he admitted that mobile phone on which he received call is 9910831326 and address of Monu is 21/3/16, Lal Bagh Jhuggies, Azadpur, Delhi.
15. PW4 Singh Raj deposed that he was working as Manager at Golden Travels at Shop No. 113, New Kishore Market, Kingsway Camp, Delhi and owner of this shop is Kuldeep Singh. On 31/10/2007, he reached his office and his owner Kuldeep Singh told him that one Tavera vehicle is to be sent at Aligarh from Lal Bagh Jhuggi, Azadpur. Thereafter at around 9/9.30 am, he took Tavera vehicle no. DL-1YA-4120. Thereafter Vinod made telephone call to party on their phone number which was supplied to them by their owner Kuldeep Singh. Party asked them to wait there and after about 15-20 minutes three persons came there and they told them that they had booked the vehicle. He demanded advance from them and out of them one had paid Rs. 500/- to him as advance and told that they will make the remaining payment to the driver. They were saying that they would came in the evening itself as they are going to Aligarh. Thereafter he sat near driver and those three persons sat on the back seat. Thereafter he was left at the red light of Kingsway Camp and driver alongwith those three persons had taken away the vehicle.
16. He further deposed that in the evening vehicle did not return back. Their owner tried to contact the person who booked the vehicle for Aligarh but could not succeed. Next day, he came to know that some incident had taken place with the driver and information has been received State Vs Vijay Pratap Singh etc 10 from the police station Patiali and he came to know that Kuldeep Singh along with brother and other relatives of Vinod had left for Patiali and thereafter Kuldeep Singh brought the dead body of Vinod Kumar. The person who took away the vehicle and their vehicle were found missing and they suspected that those three persons had killed Vinod Kumar and had taken away their vehicle. Later on vehicle was recovered from Farukhabad. He identified the accused Vijay @ Rinku as the person who had given him Rs.500/- as one of the boys who had gone with driver to Aligarh. This witness was hostile and was cross examined by learned Public Prosecutor and he admitted that he had shown the place i.e G.T.K. Road, Noor Alahabad Masjid Jhuggi, Lal Bagh to police and told that accused has taken away the vehicle from here and police had prepared the site plan at his instance. He further admitted that he along with police reached at STD shop in Jhuggi at Lal Bagh where they met one Hira Lal Gupta and he told that on 31/10/2007 one boy Ashish had made a telephone call from his shop No. 9910831326 and booked one vehicle with the name of Monu and thereafter Ashish had make call twice from here and thereafter Ashish along with his associates Vijay @ Rinku and one more associates went away from there. He further admitted that police had searched the accused in the jhuggi but accused were not found.
17. PW5 Hira Lal Gupta deposed that in the year 2007, he was running a STD booth/shop at N-25/A-252, Lal Bagh, Azadpur, Delhi. On 31/10/2007 at about 7/8 AM one boy with the name of Ashish came to his shop and he made telephone call from his booth to the travel agent and booked one vehicle for going outside Delhi with the name of Monu. At around 9/9.15 am, again a call was received at his shop and the same was attended by Ashish and he talked with the caller by the name of Monu. There were two more boys with Ashish. After about half an hour vehicle State Vs Vijay Pratap Singh etc 11 came there and Ashish along with two other boys went away.
18. On 08/12/2007, police came to his shop and he took the police at the jhuggi of Vijay @ Rinku but he was not found there. Ashish was residing on the upper floor of the jhuggi of Rinku. From the jhuggi of Ashish, his photograph was found. He further deposed that on the next day, he along with police went to the jhuggi of Vijay @ Rinku and on his pointing out the accused Vijay @ Rinku was apprehended and he was arrested vide arrest memo Ex PW5/A his personal search was conducted vide memo Ex PW5/B. Accused Vijay @ Rinku made disclosure statement which is Ex PW5/C. He further deposed that accused Vijay had came to his shop with Ashish on 31/10/2007. Accused Vijay remained standing outside the shop when Ashish was talking on telephone.
19. PW6 Rajan deposed that he was driver by profession. On 19/1/2008, he along with police officials of police station Mukherjee Nagar went to police station Mau Darwaja, Distt. Farukhabad. On the next day, he had driven Tavera vehicle no. DL-1YA-4120 to Delhi and left at police station Mukherjee Nagar.
20. PW7 Inspector Shyama Pant deposed that on 3/12/2007, investigation of this case was marked to him as the FIR was registered on the basis of Zero FIR received from police station Patiali Distt Etah. On 4/12/2007, he recorded statement of Kuldeep Singh owner of vehicle bearing no. DL-1YA-4120 and Singh Raj manager of Golden Travels.
21. PW8 Jwala Parsad deposed that he was resident of village Nangla Karan, PO Patiali Distt Kashi Ram Nagar (Uttar Pradesh). On 1/11/2007 at about 3-4 PM during the day Rameshwar who is a police State Vs Vijay Pratap Singh etc 12 chowkidar and is a resident of village Sukti Khera came to him and told him that a dead body has been found at Sukti Khera village in the fields. He had asked him to write down this information to be given to the police.
22. PW8A Dr. Sayed Mohd deposed that on 2/4/2007, he was working as Pathologist at District Hospital Eta and on that day he conducted the postmortem on the dead body of unknown male aged about 37 years vide postmortem report Ex PW8/A. The time since death was about 30 hours. Cause of death in this case was coma, shock and hamarrage as a result of ante mortem injuries. He handed over one T shirt, one baniyan, one pant, one pair of shoe, one pair of socks, one underwear, thread of wrist and one plastic watch after sealing the same with the seal of hospital.
23. PW9 Rameshwar deposed that he was resident of village Sahori, PS Patiali Distt Kashi Ram Nagar. On 1/11/2007, he was working as a chowkidar at village Sahori. While, he was coming to police station from his village, he saw a dead body lying in a Bajra Field between the village Sukti Khera and Jaasmai. When he saw the dead body, he immediately reached at police station and got the information written from Jwala Parsad and handed over this information to the Incharge of police station.
24. PW 10 Sub Insp. Satpal deposed that on 01.11.2007 at about 3.05 PM, chowkidar Rameshwar gave an information that on a Kachha Rasta between the village Sukti Khera and Jaasmai, body of an unknown person was lying in a Bajra field. On receipt of this information DD No. 26 was lodged which is Ex PW10/A. Thereafter he reached the spot along with his staff and prepared the panchnama Ex PW10/B of the dead body.
State Vs Vijay Pratap Singh etc 13 Leather purse containing driving licence and Rs. 100/- was found on the dead body from which the deceased was identified as Vinod. He gave the information to the family of the deceased and the body was sent for postmortem on the same day. The application for conducting postmortem is Ex PW10/C.
25. He further deposed that on 02/11/2007, the postmortem of the body was done at District Hospital Etah. Site plan Ex PW 10/D was prepared by him showing the place from where the dead body was recovered from the Kachha Rasta on the Bajra field. At his instance the photographs of the dead were taken at the spot and application in this regard is Ex. PW10/E. After the family of the deceased came at the police station on 02/11/2007 and brother of deceased identified the body, the FIR Nil/07 under Sections 364/392/302/201 IPC was registered.
26. PW 11 Constable Raj Narayan deposed that on 02/11/2007, he was posted at PS Patiali as Constable Clerk from 6.00 AM to till 6.00 PM. On that day at about 7.00 AM, on the basis of Tehrir he recorded FIR No. 174/2007 Ex PW11/A under Sections 364/392/302/201 IPC.
27. PW 12 Head Constable L.N. Sharma deposed that on 3/12/2007 he was posted at police station Mukherjee Nagar as duty officer from 9 am to 5 pm. On that day at about 12.15 noon, a communication was handed over to him by the SHO of police station Shalimar Bagh which communication was sent by SSP Etah and same is Ex PW12/A. SHO police station Shalimar Bagh made an endorsement on the communication and on the basis of same, he recorded FIR No. 532/2007 and he proved computer copy of FIR which is Ex PW12/B. He proved his endorsement on the communication which is Ex PW12/C. State Vs Vijay Pratap Singh etc 14
28. PW 13 Constable Arvind Kumar deposed that on 04/11/2007, he was posted as Constable Clerk, police station Mau Darwaza, Distt. Farukhabad and on that day at about 22.15 hours, Sub Inspector Karuna Shankar Bajpayee handed over him one seizure memo Ex PW 13/B of Tavera vehicle which was recovered from the possession of accused Vijay Partap Singh. On the basis of which, he recorded FIR under Section 411 IPC bearing serial no. 270/2007 and same is Ex PW13/A.
29. PW 14 Sub Inspector Suraj Bhan deposed that on 24/01/2008, he was posted as Incharge Mobile Crime Team and on that day he received information from police station Mukherjee Nagar. He reached police station Mukherjee Nagar and found white Tavera parked on the gate of police station. He inspected the vehicle and gave his report which is Ex PW14/A. He also deposed that Sub Insp. Narender Singh member of crime team and a finger print expert also lifted the finger prints from the rear mirror of the car.
30. PW 15 Assistant Sub Inspector deposed that on 24/01/2008, he was member of Mobile Crime Team North West District and was posted as Finger Print Expert. They were called by the police station Mukherjee Nagar to examine a Tavera car. On receipt of information, they went to police station Mukherjee Nagar where they found a white Tavera no. DL-1YA-4120. On examining the same, he found two chance prints on the rear view mirror of the car. Finger prints could not be lifted as the photographer has refused to photograph the mirror saying that it was not possible so he handed over the mirror to investigating officer on 31/01/2008. He prepared his report which is Ex PW15/A. Mirror was seized by the investigating officer on 31/01/2008 which is Ex PW15/B. State Vs Vijay Pratap Singh etc 15
31. PW 16 Constable Keshav Parshad Raman deposed that on 20/01/2008, he was posted as Constable in police station Mau Drawaza, Janpad Furakhabad (Uttar Pardesh). On that day, he handed over Tavera car of white colour bearing no. DL-1YA-4120 to two police officers namely Sub Insp. Ram Chander and Inspector Ajay Kumar who had come from police station Mukherjee Nagar and they seized the vehicle and took possession of the said car vide memo Ex. PW16/A.
32. PW 17 Head Constable Surender Kumar deposed that on 28/01/2008, he received the process under Section 82 CrPC against accused Ashish to execute the same. His report in this regard is Ex PW17/A on the basis of which the accused Ashish was declared proclaimed offender.
33. PW 18 Inspector R. C. Dahiya deposed that on 19/01/2008, he along with Insp. Ajay Kumar, Constable Brij Bihari left for investigation of this case for Distt. Eta, Farukhabad( Uttar Pradesh) through taxi. They reached at police station Patiali Distt Eta where Insp Ajay Kumar has recorded the statement of one Jwala Parsad. They took one Sub Insp. Karuna Shankar from the police station and reached at village Adaweli in search of accused Ashish. They found lock on the house of accused Ashish and his whereabouts could not be ascertained. Thereafter they came back to police station Mau Darwaja, Farukhabad. Inspector Ajay Kumar had moved an application for release of vehicle no. DL-1YA-4120 before SO, sub Inspector Kamal Hassan of police station Mau Darwaja. The same was allowed and the said vehicle was already parked in the premises of police station Mau Darwaza was taken into possession vide seizure memo Ex PW16/A. Constable Keshav Parsad Raman of police station Mau Darwaza State Vs Vijay Pratap Singh etc 16 was interrogated and his statement was recorded by Insp Ajay Kumar. Public person who took them to the house of chowkidar was relieved by investigating officer and they left for Delhi along with vehicle and vehicle was got deposited in malkhana of police station Mukherjee Nagar. The 12 photographs of the vehicle are collectively Ex P3.
34. PW-19 is Constable Brij Behari. He deposed that on 19.01.2008 he was posted at DIU North West District and he along with Inspector Ajay Kumar and SI Ram Chander took a private taxi and proceeded for Etah UP and reached at PS Patiali. IO Inspector Ajay Kumar made inquiries in the police station and met one Chowkidar whose name he does not remember. IO recorded the statement of chowkidar. Thereafter they went to district Farukabad, UP and stayed in a hotel and in the morning they went to PS Mau Darwaja. They found the Tavera vehicle No DL-1YA-4120 in the police station. One person who accompanied them from Delhi checked the said vehicle. They made entries regarding their arrival in the police station. They took about 3 or 3 ½ hours in the police station. IO took the vehicle into possession with the permission of SO vide seizure memo Ex PW 16/A. They all came back to P.S Patiali again. Inspector Ajay Kumar made inquiries from chai wala. IO collected the copy of FIR from the police station Patiali and came back to Delhi. The aforesaid vehicle was got deposited in the malkhana of P.S Mukherjee Nagar.
35. It is further stated by PW-19 that on 29.01.2008 they again started investigation of this case and took aforesaid Tavera vehicle from P.S Mukherjee Nagar vide RC No.4/21 and went to FSL Rohini. The said vehicle was got inspected with FSL Rohini through scientist V. Shankarnarayan. He took the exhibits and sealed it in four envelopes which were handed over to the IO. The said envelope was sealed with the seal of State Vs Vijay Pratap Singh etc 17 AK and thereafter seized by the IO vide seizure memo Ex PW 19/A. Scientist V. Shankarnaryanan had also handed over one box containing rear side mirror which is fixed inside the car. The statement of Sh. V. Shankaranarayanan was recorded. He took the Tavera vehicle and said four envelopes and said box and got deposited the same in the malkhana P.S Mukherjee Nagar. His statement was recorded.
36. On 23.02.2008 this witness again joined investigation with IO and took one sealed parcel and report from MHC(M) of P.S Mukherjee Nagar and took the same to finger print bureau, Malviya Nagar. The official of finger print bureau opened the seal and examined the exhibits and thereafter resealed the same. After some time they handed over the exhibits and sample seal to him with the seal of office of finger print bureau, Malviya Nagar. He got the same deposited in the malkhana of P.S Mukherjee Nagar. On 03.03.2008 on the instructions of Insp. Ajay Kumar PW-19 went to district hospital Etah. He took sample seal of the hospital and got the same deposited in malkhana of P.S Mukherjee Nagar. His statement was again recorded. The Tavera vehicle is proved as Ex P3.
37. PW-20 is HC Satish Kumar. He deposed that on 15.12.2007 he was working as constable and had joined the investigation of this case with IO SHO Smt. Indra Sharma and came to Tis Hazari Courts. The accused Vijay Pratap Singh @ Veenu was produced by UP police before the court of Sh. Vinay Singhal the then Ld M.M. After taking permission from the court IO interrogated him and after being satisfied he arrested him vide memo Ex PW 20/A.
38. PW-21 is Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. He brought the original record of subscriber Shailender Kumar having State Vs Vijay Pratap Singh etc 18 mobile no. 9910831326 and proved the copy of application form as Ex PW 21/A. In support of the address, the subscriber had submitted the copy of election identity card, copy of which is proved as Ex PW 21/B.
39. PW-22 is HC Mukesh Sharma. He deposed that on 13.12.2007 he was working as MHC(M) at P.S Mukherjee Nagar and on that day SI Chander Bhan had deposited one pulanda duly sealed with the seal of hospital. He received the same vide entry no. 2620 of register no.
19. On 20.01.2008 Inspector Ajay Kumar had deposited one Tavera Vehicle bearing no. DL 1 YA 4120 white colour. He received the same vide entry no. 2395.
40. On 29.01.2008 Inspector Ajay Kumar had deposited pulandas duly sealed with the seal of AK. He received the same vide RC no. 2401. He sent the aforesaid vehicle to FSL Rohini through Constable Brij Bihari vide RC No. 4/21. He brought back the vehicle on the same day and received the same from Constable Brij Bihari.
41. On 30.01.2008 he released the aforesaid vehicle on superdari. On 31.01.2008 Inspector Ajay Kumar had deposited one pulanda containing two chance prints. He received the same vide RC No. 2404. The finger print/chance print were sent to FSL Malviya Nagar through Constable Brij Bihari on 22.02.2008 who brought the aforesaid exhibits and received the same from him vide entry no.2404.
On 03.03.2008 Inspector Ajay Kumar had deposited the sample seal duly sealed with the seal of hospital. He received the same vide entry no 2428.
42. On 27.02.2008 he sent the exhibits to FSL Rohini through State Vs Vijay Pratap Singh etc 19 Constable Brij Bihari vide RC no. 16/21 which could not be deposited by him and he brought the same. He received the same from him with intact seal. On 03.03.2008 he sent the same exhibits again to FSL, Rohini through Constable Brij Bihari vide RC NO. 17/21. He received the copy of the receipt from him. On 22.09.2009 he received the exhibits and one envelope duly sealed with the seal of FSL and deposited the same in the malkhana. The copy of entry is proved as Ex PW 22/A. The photocopies of aforesaid entries are proved by this witness as EX PW 22/A-1 to Ex PW 22/A-5. The copy of RC NO. 4/21 and RC No. 17/21 are proved as Ex PW 22/B and Ex PW 22/C respectively.
43. PW-23 is SI Chander Bhan. He deposed that on 08.12.2007 he joined the investigation of this case with Inspector Indra Sharma. On that day he along with Inspector Indra Sharma, HC Narender, Constable Yogesh and Manager of Travel Agency namely Singh Raj were present at Noor-ul-Huda Masjid, Lal Bagh, GT road and Inspector Indra Sharma prepared the site plan at the instance of Singh Raj vide Ex PW 23/A in his presence. Heera Lal, the STD owner was interrogated by the IO/SHO Indra Sharma. Heera Lal had shown the jhuggi of Ashish and Vijay Pratap @ Rinku but they could not be traced there. IO recorded the statement of both the aforesaid persons. They came back to the police station where his statement was recorded.
This witness corroborated with the statement of PW-5 Hira Lal Gupta with regard to arrest and disclosure statement of accused Vijay @ Rinku.
44. PW-23 further stated that on 10.12.2007 further investigation of this case was handed over to him. He was having production warrant of accused Vijay Pratap Singh @ Veenu. On that day he along with HC State Vs Vijay Pratap Singh etc 20 Narender and Constable Rajeev Tomer and the accused Vijay @ Rinku left the police station for out station. On 11.12.2007 they all reached at police station Patiali Distt. Etah UP. He took pulanda firstly from the police station Patiali stated to have contained clothes of deceased duly sealed with the seal of hospital and seized the same vide seizure memo Ex PW 23/B. Thereafter he along with police staff, SI Satpal of PS Patiali and the accused reached in a field pointed out by the accused as the field in which he along with his co-accused Ashish and Vijay @ Veenu had thrown the dead body of the deceased after killing him. He prepared the site plan Ex PW 10/D. He prepared the memo of pointing out vide memo Ex PW 23/C. He recorded statement of SI Satpal and left for Fatehgarh, Distt. Farukhabad leaving SI Satpal of PS Patiali. On 12.12.2007 he got the production warrant of accused Vijay @ Veenu served in Fatehgarh Jail. Thereafter they all including the accused Vijay @ Rinku reached at P.S Mau Darwaza and from there they took SI Karuna Shanker Vajpayee and started the search for accused Ashish in village Adhevli but he could not be traced. Statement of Karuna Shanker Vajpayee was recorded and was relieved and they left for Delhi.
45. It is further deposed by this witness that on 13.12.2007 they came at Delhi and got the medical examination of accused done. They came back in the police station and deposited the case property in the malkhana. He recorded the statement of witnesses. Further investigation of this case was handed over to the then SHO and thereafter he handed over the case file to IO/SHO.
46. PW-24 is SI Karuna Shankar Vajpayee. He deposed that on 04.11.2007 he was posted in police station Mau Darwaja as SI and on that day he along with Constable Shashi Bhan Tiwari and Constable Vijay State Vs Vijay Pratap Singh etc 21 Shankar were on patrolling. They were persent at the crossing of Hathiapur village. At about 8.20 p.m, he received information that a car make Tavera No. DL 1-IA-4120 which has been stolen from Delhi and occupant would sell the said car in Kanpur. On this information, he called Constable Ranjan Singh and Mukesh Dubey who were already in the patrolling in the said area. Thereafter they all went to Adevli Tarun near Hatiapur turn and make the nakabandi there i.e at Adevli turn. At about 8.30 p.m, the said car was found coming from the side of Farukabad. The said car was stopped. Accused Vijay Partap @ Beenu was driving the said car and two other persons had managed to escape from the car. Accused Vijay Partap was apprehended at the spot who was driving the car. On interrogation, accused did not produce any ownership documents and disclose that they had robbed the said car from Delhi and the driver of the said car has been murdered and thrown his dead body in the jurisdiction of police station Patiali Distt Etah (UP) having no option. He prepared seizure of the said car and apprehending of accused persons vide memo Ex PW 7/B. Thereafter he got the case registered against the accused at PS Mau Darwaja Distt Farukabad vide Nil FIR u/S 41/411 IPC read with Section 411 IPC. Thereafter IO of FIR Nil gave the information to the IO of the concerned case. When accused Vijay Partap Singh apprehended, he disclosed the name of persons who managed to escape were Ashish and Vijay Singh.
47. PW-25 is ACP Indira Sharma. She deposed that on 3/12/07 she was posted as SHO in PS Mukherjee Nagar. On that day FIR Nil/2007 u/S 364/392/302/201 IPC PS Patiyali Distt Etah (U.P) total 29 papers was received at the police station Mukherjee Nagar through officer of the ACP Model Town as the same were sent to the office of ACP by SSP Etah (U.P) The papers are proved as Ex PW 12/A, Ex PW 11/A, Ex PW 2/A (complaint State Vs Vijay Pratap Singh etc 22 of Manoj Kumar), Ex PW 10/A, Ex PW 10/B, Ex PW 10/C, mark Ex PW 25/A, Ex PW 10/E and Ex PW 8/A. She made endorsement over Ex PW 12/A and marked the case to Addl. SHO Inspector Shyama Pant for necessary action and investigation after registration of FIR. Pursuant to her endorsement over Ex PW 12/A, duty officer recorded FIR no. 525/07 which is proved as Ex PW 12/B. On 06.12.2007 since Inspector Shyama Pant went on leave, therefore, she took over the case file of the present case FIR for further investigation. She perused the case file and on 08.12.2007 another Nil FIR PS Mau Darwaja Distt Farukhabad (U.P) regarding recovery of vehicle Tavera no. DL 1YA 4120. The Nil FIR is proved as Ex PW 7/A and its seizure memo as Ex PW 7/B. In that case permit and RC of said Tavera also received to him and the permit is proved as Ex P2 and RC is proved as Ex P1. The Uttar Pradesh police of PS Mau Darwaja had already arrested the accused Vijay Pratap. He placed the documents on file and called the manager of Golden Travel Agency namely Singh Raj.
48. This witness corroborated with the statement of PW-23 SI Chander Bhan with regard to preparation of site plan. This witness further deposed that he made call on mobile no. 9910831326 and the phone was attended by the person namely Hira Lal Gupta who told him that the STD booth and the said mobile number belongs to him. Thereafter they reached at the said STD booth of Hira Lal Gupta at Lal Bagh Jhuggies. He involved him in the investigation and made inquiries from him and in pursuance to the information collected from said Hira Lal Gupta they reached at Jhuggi No. N 25/A 12 Lal Bagh Azadpur Delhi for the search of Vijay @ Rinku and Ashish but in vain. The jhuggi of Ashish was on the roof of Vijay @ Rinku. One photograph of Ashish was there in his jhuggi and Hira Lal identified him through photograph as Ashish. He recorded statement of Hira Lal Gupta and relieved him. He came back to the police station and recorded State Vs Vijay Pratap Singh etc 23 supplementary statement of Singh Raj and relieved him. He also recorded statement of his accompanying police staff.
49. This witness corroborated with the statement of PW-5 Hira Lal Gupta with regard to arrest, personal search and disclosure statement of accused Vijay @ Rinku.
50. It is further deposed by PW-25 that the Manager Sing Raj came in the P.S of his own and he identified accused Vijay @ Rinku as one of the said three boys to whom the vehicle was handed over near Noor ul Hada Masjid. He recorded supplementary statement of Singh Raj and relieved him. He also recorded statement of his accompanying staff. On 10.12.2007 accused was produced before ld M.M at Tis Hazari court and moved application for five days PC remand of accused which is proved as EX PW 25/B. He also moved application for issuing the production warrant for accused Vijay Pratap who was already arrested by PS Mau Darwaja Farukhabad (U.P.)which is proved as Ex PW25/C . Thereafter he came back to PS and discussed the case with his senior officers and handed over the case file to SI Chander Bhan who took the accused out station with police party.
51. On 14/12/07 SI Chander Bhan along with his staff and accused came back to Delhi and they told him about the investigation carried out by him and also produced the documents. Accused Vijay @ Rinku was produced before the court and he was sent to judicial custody.
On 15/12/07 accused Vijay Partap @ Beenu was produced by local police before court of ld MM Tis Hazari Delhi and he moved application for interrogation and arrest and application is proved as Ex PW25/D. He interrogated the accused and formally arrested him.
State Vs Vijay Pratap Singh etc 24 Interrogation report is proved as Ex PW 25/E. Accused was sent to judicial custody.
52. On 16/12/07 Insp Shyama Pant joined her duties and he handed over case file to her for further investigation.
53. On 4/12/09 brother of deceased namely Manoj Kumar had produced purse containing some documents of deceased in the court of Sh Bharat Parsahar and the said purse was seized in pursuant to the direction of court. This witness has identified the purse which is proved as Ex P1 which is containing DL of Vinod, some documents, visiting cards, Rs 100/-, one batch of Vinod Kumar, some coins which are proved as Ex P2 collectively.
54. PW-26 is Inspector Ajay Kumar SHO Rani Bagh. He deposed that on 10/1/08 he was posted at DIU North West as Inspector. On that day he received case file of the present case as the case was marked to him for further investigation. He perused the case file and during investigation Sections 120B/202/216 IPC were added. He seized photostat copy of the driving license of deceased, his driver batch and copy of receipt issued by transport department from the brother of deceased vide memo Ex PW2/B and photostat copy of driving license which is proved as Ex PW26/A, driver batch is proved as Ex PW26/A1 and receipt of transport department is proved as Ex PW 26/A3. He recorded supplementary statement of Manoj Kumar .
55. On 19/1/2008 he along with SI Ram Chander, Ct Brij Bihari after taking permission for out station went to PS Patiyali Distt Etah where he recorded statement of witness and thereafter went to PS Mau Darwaja State Vs Vijay Pratap Singh etc 25 Distt Farukhabad (UP) where they made search for accused Ashish and seized Tavera vehicle no. DL1YA 4120 vide memo Ex PW 16/A. He recorded statement of witnesses. On returning to Delhi, they reached at PS Patiyali again and there statement of one another witness was recorded by him. After reaching at PS Mukerjee Nagar, he deposited case property in malkhana and recorded statement of his accompanying staff. The vehicle was got inspected by the crime team on 24/1/08 and Incharge crime gave his report which is proved as Ex PW14/A. The crime team possessed the rear view mirror on which two chance prints appeared. The said vehicle Tavera also got inspected through scientific expert of FSL Rohini, Delhi at office of FSL, who lifted some stains and kept the same in envelopes and all four envelopes were sealed with the seal of AK separately. He seized the same through seizure memo Ex PW19/A. So long as the Tavera vehicle remained with him during transit it remained intact and not tampered with. After getting the vehicle examined by the FSL expert he deposited the same in malkhana and also deposited the said four envelopes in malkhana. He recorded statement of witnesses.
56. On 31/1/2008 crime team finger print experts handed over him the rear view mirror which was converted in a pullanda and sealed with the seal of AK and seized through seizure memo Ex PW15/B. He sent the mirror to Finger Print Bureau Malviya Nagar for examination through constable Brij Bihari. During the course of investigation on 3/3/08 he seized sample seal of civil surgeon office Etah which was produced before him by Ct Brij Bihari vide seizure memo Ex PW 26/B On the same day, he seized the application of deceased for seeking employment which was produced by Kuldeep Singh and seized it vide memo Ex PW3/A and photostat copy of application having photograph of deceased vide memo Ex PW26/D. He also seized photostat copy of the complaint which was made by Kuldeep to State Vs Vijay Pratap Singh etc 26 police station and copy of the same is proved as Ex PW26/D1. He tendered report of finger print expert which is proved as Ex PW26/E. MHCM on his direction sent the exhibits to FSL. This witness identified car no. DL1YA 4120 as Ex P1 and the photograph of the car as Ex P3 collectively.
57. PW-26 has also identified one rear view mirror which is proved as Ex PW26/P-1. Crime scene report which was prepared by Sr. Scientific Asstt, FSL and he tendered the same as Ex PW26/F.
58. During investigation, one of the accused Ashish could not be arrested and proceedings under sections 82/83 CrPC were initiated against him through ASI Ved Parkash on his instruction and accused Ashish was declared proclaimed offender. His application for issuing the process under section 82/83 CrPC is proved as Ex PW26/G. During investigation he had also collected the details of the service subscriber of mobile phone no 9910831326 and tendered the same as Ex PW26/H and the name of subscriber came to know as Shailender Kumar. He recorded statement of witnesses during the course of investigation.
PLEA AND DEFENCE OF ACCUSED PERSONS
59. In his statement under Section 313 Cr.P.C. the accused persons have either denied the prosecution case or have expressed their ignorance about the incriminating evidence emerging from prosecution case put to them by way of different questions. Accused Vijay @ Rinku stated that he is innocent and has been falsely implicated in this case on the disclosure of co-accused Vijay Partap @ Beenu as he is brother of Ashish who has picked quarrel with him in October 2007 and also gave beatings to him and this disclosure was made by accused Vijay Partap due State Vs Vijay Pratap Singh etc 27 to the enmity between brother of Vijay Partap @ Beenu and him.
60. Accused Vijay Pratap Singh @ Beenu stated that he is innocent and has been falsely implicated in this case, the truth is that Ashish is his brother and police came to his house and took away to him at local police station and pressurized him to produce his brother and also retained him at PS wrongfully and the police told his father that if he (his father) will not produce Ashish before him he will also implicate his son i.e he (accused) in this case.
61. DW-1 Harpal Singh deposed that on 31.10.07 Vijay Singh @ Rinku came to his house. The accused Vijay Singh @ Rinku stayed at his house for three days and returned to his house on 2 nd of Nov,2007. On 10.10.07, he went to the house of Vijay Singh @ Rinku as he is his nephew( Bhanja). At that time both Ashish and Vijay Singh @ Rinku were quarreling with each other. Thereafter both Vijay and Rinku came down from first floor. In his presence accused Ashish threatened Vijay Singh to finish his life and also for implicating him in a false case. After 15-20 minutes, accused Ashish left the house of Vijay Singh @ Rinku. He stayed there upto1-2 hours and till then accused Ashish did not return to the house of Vijay Singh. Even after 10.10.07, he use to go the house of Vijay Singh @ Rinku and he came to know by the neighbours of Vijay Singh @ Rinku that Ashish did not return after 10.10.07 to the house of Vijay Singh. On the day of arrest he was with the accused Vijay @ Rinku and accompanied Vijay Singh @ Rinku as he was to purchase stool (small table). The accused Vijay Singh @ Rinku was arrested from near bus stand Bhajan Pura. The police officials who arrested the accused told him that accused Vijay Singh @ Rinku was being taken to the police station for the purpose of inquiry. Thereafter he informed to the family members of State Vs Vijay Pratap Singh etc 28 accused Vijay Singh @ Rinku. Police has arrested Vijay Singh @ Rinku at about 5-6 in the evening. The exact date of arrest was 9th but he did not remember the month. The year of arrest was 2007. After the quarrel between accused Ashish and Vijay Singh @ Rinku, accused Ashish left the house of Vijay Singh. He used to go to the house of Vijay Singh @ Rinku after 10-15 days. Accused Vijay Singh was working at the shop, however, he cannot tell the exact location of the shop.
62. DW-2 is Zabar Singh son of sh. Mohar Singh Badhoria. He deposed that on 10.10.07 at about 7 pm, accused Ashish picked quarrel with accused Vijay @ Rinku on the issue of demanding rent as Ashish was tenant of Vijay @ Rinku. As he was neighbour of Vijay @ Rinku therefore, intervened in the dispute between Vijay @ Rinku and Ashish. Due to their intervention the dispute was mitigated, however, the accused Ashish threatened accused Vijay @ Rinku for implicating his name in a case. Since then accused Ashish did not return to the house of Vijay @ Rinku. On the day of arrest accused Vijay was out of his house as he went to Trans Yamuna near Bhajanpura to the house of his maternal uncle. The accused Vijay went to the house of his mama on 8.12.2007 and while returning he was arrested on 9.12.2007 and he (this witness) came to know this fact through maternal uncle of accused Vijay @ Rinku.
63. DW-3 is Kailash son of Sh Bhajan Lal. He deposed that on 10.10.2007, both Vijay Singh @ Rinku and Ashish picked quarrel on the issue of demand of rent. He was present at the time of quarrel. Due to the interference of people of locality including him, the quarrel was mitigated. At the time of departure from the house of Vijay @ Rinku, accused Ashish threatened Vijay @ Rinku for implicating him in a false case and also for dire consequence. He was residing in front of the house of Vijay @ Rinku.
State Vs Vijay Pratap Singh etc 29 After threatening to Vijay @ Rinku, accused Ashish did not return. He did not enter into the tenanted room ,however, he was on the roof. Accused Ashish was residing on the second floor. Quarrel took place at the third floor of the house. In the evening, he heard from the people residing near by his house and they told him about the arrest of Vijay @ Rinku from Bhajan Pura. This was apprised to him by the ladies of locality.
Thereafter defence evidence was closed on behalf of accused.
ARGUMENTS AND FINDINGS
64. Ld Additional Public Prosecutor has argued that the prosecution has proved by the statement of PW-3 to PW-5 that the accused persons have hired the Tavera vehicle No. DL-1YA-4120 on 31.10.2007 and they went with the victim driver on the said vehicle to District Aligarh where the victim was murdered. The car in question was subsequently recovered from possession of one of the accused Vijay Pratap @ Veenu who is brother of the accused Ashish. Accused Ashish and accused Vijay Pratap @ Rinku fled from the vehicle at the time of its recovery by the local police in Village Hathiapur by PW-24 Karuna Shankar Vajpayee. The finger print of accused Vijay Pratap @ Rinku was found on the rear view mirror of the car which as per the report of the Forensic Expert Ex PW 26/E matched with the left hand thumb print of accused Vijay @ Rinku. Accused Vijay @ Rinku was identified by PW-4 Singh Raj as well as PW-5 Hira Lal Gupta, so his identity is established in this case. PW-4 Singh Raj, the Manager of PW-3 Kuldeep Singh has also stated that accused Vijay @ Rinku has given part payment for hiring the vehicle in the sum of Rs 500/- to him. There is nothing in the cross-examination of PW-3 to PW-6 which may discredit their statements. PW 5 has also stated in the cross-examination that the brother of accused made telephone call for State Vs Vijay Pratap Singh etc 30 compromise showing involvement of accused in the crime in question. Therefore, all the necessary parts of the chain of circumstances are clearly established in this case against the accused persons and they are liable to be convicted for the charges framed against them. It is also pointed out that co-accused Ashish is proclaimed offender and would be connected with the case to face trial as and when he will be arrested.
65. The argument on behalf of accused Vijay @ Rinku are that the mobile phone used for booking the Tavera car is not in the name of accused Vijay @ Rinku but is in the name of one Shailender who is not arrested. It is argued that the main accused is Ashish who is proclaimed offender and accused Vijay @ Rinku is falsely implicated in this case. It is also argued that PW-4 Singh Raj has, in the cross-examination, failed to tell which colour of clothes were worn by accused Vijay @ Rinku. When he could not give this particular of accused, how can he give his name in his statement. It is also argued that PW-4 has stated in the cross-examination that Vijay Pratap was not driving car but PW-24 has stated that he was driving the car so statement of PW-4 and PW-24 should be read together which are contradictory. It is argued that the statements of PW-3, PW-4 and PW-5 are not credit worthy so they should not be believed. It is further argued that the main accused Ashish could not be arrested by the police. The other two accused persons are falsely implicated. The chain of circumstances appearing against them is not clearly established. The finger print evidence is not worthy of credit so accused Vijay @ Rinku is entitled to be acquitted of the charges framed against him. It is also argued that in fact the co-accused Ashish was living with accused Vijay @ Rinku and accused Ashish who is the main accused threatened accused Vijay @ Rinku to finish his life and also implicating him in a false case. This fact is proved by the three defence witnesses produced by the accused and State Vs Vijay Pratap Singh etc 31 shows that it is due to co-accused Ashish, the accused is falsely implicated in this case. Reliance is placed upon Padala Veera Reddy Vs State of Andhra Pradesh and others 1990 CRLJ 605 SC, Musheer Khan @ Badshah Khan and another Vs State of M.P I (2010) SLT 465 SC, Eknath Ganpat Aher Vs State of Maharashtra and ors IV (2010) SLT 609, Abdul Sayeed Vs State of A.P 2007 CrLJ 1890 AP (DB) and Mohd Aman and anr Vs State of Rajasthan AIR 1997 SC 2960.
66. On behalf of accused Vijay Pratap @ Veenu, it is argued that the recovery of Tavera vehicle is not proved from him and he is falsely implicated as he is brother of co-accused Ashish who could not be arrested by the police. It is argued that accused Vijay Pratap @ Veenu is entitled to be acquitted.
67. I have heard Ld Additional P.P for the State, ld counsel for accused Vijay @ Rinku and ld counsel for accsued Vijay @ Veenu and have gone through the evidence on record, authorities cited on beahlf of accused Vijay @ Rinku and relevant provisions of law. The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
State Vs Vijay Pratap Singh etc 32 " 29. It is settled law that circumstances play very important role in the appreciation of evidence.
The conduct of witnesses is a very important facet to determine their creditworthiness. "
68. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence. {See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) In Padala Veera Reddy v State of AP, AIR 1990 SC 79 relied upon by Ld. counsel for accused, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of State Vs Vijay Pratap Singh etc 33 guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully State Vs Vijay Pratap Singh etc 34 proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down State Vs Vijay Pratap Singh etc 35 the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
State Vs Vijay Pratap Singh etc 36
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
LAST SEEN EVIDENCE
69. The evidence of PW-4 Singh Raj is very important on this State Vs Vijay Pratap Singh etc 37 aspect of accused and victim seen last prior to death of the victim Vijay. PW-4 Singh Raj has stated that he was working as Manager of Golden Travels. On 31.10.2007 he reached the office and the owner Kuldeep Singh (PW-3) told him that one Tavera vehicle is to be sent at Aligarh from Lal Bagh Jhuggi, Azadpur. Thereafter he took Tavera vehicle no. DL-1YA-4120 along with driver Vinod at Lal Bagh and parked it near Masjid. His statement is corroborated by the owner of travel agency PW-3 Kuldeep Singh who has stated that on 31.10.2007 at about 8/8.15 a.m he received a phone call from Monu on his mobile phone who wanted to take one Qualis or Tavera vehicle to Aligarh to bring the bride.
70. PW-4 Singh Raj has stated that he demanded advance and was paid Rs 500/- thereafter he sat near driver and three persons on the back seat of the vehicle. PW-4 Singh Raj has also identified accused Vijay @ Rinku as the person who had given him Rs 500/- and also as one of the boys who had gone to Aligarh.
71. PW-3 Kuldeep Singh, owner of the vehicle has also stated that the Manager has told him that he has settled the rate with the party at Rs 1000/- out of which Rs 500/- have been received. Both PW-3 and PW-4 have by corroborative statements have proved that the victim Vinod was deputed as driver on the said vehicle therefore the statement of PW-4 establishes accused Vijay @ Rinku and victim driver Vijay were last seen prior to murder of the victim driver and PW-4 has received a sum of Rs 500/- from accused Vijay @ Rinku as part payment of hiring charges of vehicle in question.
72. PW-5 Heera Lal Gupta who runs STD booth/shop at N-25/A-252 Lal Bagh Azadpur, Delhi has stated that accused Ashish with State Vs Vijay Pratap Singh etc 38 two more boys came to his shop. He also stated that accused Vijay had come to his shop with Ashish on 31.10.2007 but he remained standing outside the shop when Ashish was talking on telephone. He also identified accused Vijay @ Rinku in the court at the time of his statement before the court. He further stated that on 08.12.2007 police came to his shop and he took the police at the jhuggi of vijay @ Rinku but he was not found there. On the next day at his pointing out accused Vijay @ Rinku was arrested vide memo Ex PW 5/A, his personal search was conducted vide memo Ex PW 5/B and his disclosure statement Ex PW 5/C was recorded. Therefore PW-5 Heera Lal Gupta has also corroborated with the statement of PW-4 Singh Raj that accused Vijay @ Rinku was amongst the three persons who hired the Tavera vehicle in question to go to Aligarh. PW-5 Heera Lal has also named accused Ashish as the person who has talked with the travel agent on phone from his shop but neither PW-4 nor PW-5 have identified accused Vijay Pratap @ Beenu as one of the three persons who hired the Tavera vehicle in question. Therefore, the prosecution in my view, has been able to prove that accused Vijay @ Rinku was amongst the three persons who had hired the Tavera vehicle no. DL-1YA-4120 belonging to PW-3 Kuldeep Singh through his Manager PW-4 Singh Raj to go to Aligarh and accused Vijay @ Rinku had made part payment of Rs 500/- out of total amount of Rs 1000/- to PW-4 Singh Raj.
MOTIVE
73. The accused Vijay Pratap @ Rinku, accused Ashish and one other person, as already stated, have hired the Tavera vehicle to go to Aligarh on the false pretext of bringing bride from Aligarh on the same day on 31.10.2007. It is established by prosecution that the dead body of driver Vinod Kumar was found in the Bajra field on the way between village Sukti Khera and village Jasmai, PS Patiali, Distt. Etah, UP by PW-9 Rameshwar.
State Vs Vijay Pratap Singh etc 39 The motive for the crime which assumes importance in the cases based on circumstantial evidence as per prosecution case was to rob the victim driver of the vehicle in question. The facts and circumstances of the case leads to the presumption in favour of this prosecution case, therefore, the important circumstance of motive of crime is proved by the prosecution against accused Vijay @ Rinku.
FINGER PRINT OF ACCUSED ON REAR VIEW MIRROR
74. PW-26 IO Inspector Ajay Kumar has proved the rear view mirror of the vehicle Tavera no. DL-1YA-4120 as Ex PW 26/B1. He stated that this rear view mirror was sent by him to Fingerprint Bureau, Malviya Nagar. He tendered the report of Fingerprint expert forwarded by Director Fingerprint Bureau as Ex PW 26/E. As per result of examination, the expert found that the chance print mark P-1 which is identical with chance print Q-2 was identical with the left hand thumb impression marked S1 on the specimen finger impression slip of Vijay @ Rinku.
75. In Mohd Aman's case (Supra) relied on behalf of accused Vijay @ Rinku, the Hon'ble Supreme Court found that the prosecution has failed to establish that the seized articles were not or would not be tampered with before it reached the Bureau for examination. No evidence was led to indicate what was mark given in the seal, whether Bureau received the packages with the marked seals intact. The other circumstances appearing on the record also made prosecution case doubtful in this regard, in that case before Hon'ble Supreme Court. These circumstances are that the articles were kept in the police station for five days, the IO admitted that the seal, mark of which was put upon the article was with him since the time of seizure and the letter of IO forwarding the seized articles to the Bureau contained and overwriting as regard to date of State Vs Vijay Pratap Singh etc 40 writing/dispatch with no proper explanation for the same. Further, the article i.e brass jug on which fingerprints of accused were found, was not produced during trial and the fingerprints of accused were not taken before Magistrate.
76. Unlike Mohd. Aman's case (supra) in the present case, the seized articles i.e. rear view mirror Ex. PW-26/B-1 of the vehicle in question on which the thumb impression of the accused Vijay @ Rinku was found is produced in the court during evidence. The other distinguished feature is that in the present case the statement of PW-19 Ct. Brij Bihari corroborated by PW-22 MHC(M) HC Mukesh Sharma shows that duly sealed parcels containing rear view mirror were sent to Fingerprint Bureau, Malviya Nagar for Expert's report. The witness has stated that he did not tamper with the seal of the exhibits during the period, the same remained in his possession. The Expert's report Ex. PW-26/E also does not show any overwriting and there is no overwriting as regards date of writing/ dispatch in the present case. There is no convincing evidence to suggest that the seal after use was remained with the IO. Further, in the present case PW-15 ASI Narender Singh, the Fingerprint Expert who was member of the Mobile Crime Team on 24.01.2008 has examined the vehicle Tavera No. DL-1YA-4120 in PS Mukherjee Nagar and has found two chanceprints on the rear view mirror of the car. The fingerprints could not be lifted by him as the photographer has refused to photograph the mirror, so he handed over the mirror to the IO on 31.01.2008 which was seized by the IO vide memo Ex. PW-15/B. This witness PW-15 has stated that he has advised the IO to get the mirror photographed by an Expert from Fingerprint Bureau, Malviya Nagar. The report of PW-15 with regard to examination of vehicle has indicated two chanceprints on the rear view mirror is Ex. PW-15/A. State Vs Vijay Pratap Singh etc 41
77. PW-14 SI Suraj Bhan who has inspected the vehicle and has given his report Ex. PW-14/A which shows that on the rear view mirror the chanceprints Q-1 and Q-2 were found and the vehicle was photographed. IO PW-26 has corroborated with the statement of PW-15 that on 31.01.2008 crime team's fingerprint expert has handed over to him the rear view mirror and he has converted it into a pullanda and sealed with the seal of AK and seized it vide memo Ex. PW-15/B. He stated that he has sent the mirror for fingerprint expert's report to Fingerprint Bureau, Malviya Nagar through Ct. Brij Bihari. Therefore, when the fingerprint expert from Crime Team has pointed out the two chanceprints on the rear view mirror and the mirror was sent to Fingerprint Bureau with signature of the accused persons which tallied with the thumb impression of accused Vijay @ Rinku, I see no reason not to rely upon this evidence produced by the prosecution. Mohd. Aman's case (supra) is distinguishable on facts and does not help the accused Vijay @ Rinku.
78. On behalf of accused Vijay @ Rinku reliance is placed upon Musheer Khan's case (supra) in which it was held that the evidence of fingerprint expert is not substantive evidence. The evidence of fingerprint expert falls under the category of expert's evidence under Sec. 45 of the Indian Evidence Act, 1872. It was also held that such evidence can only be used to corroborate of such evidence of substantive evidence which are otherwise on record. Therefore, the expert's report on fingerprint Ex. PW-26/E can be viewed as a corroborative evidence in the present case.
BLOODSTAINS FOUND IN THE VEHICLE & CLOTHES OF DECEASED
79. The vehicle Tavera No. DL-1YA-4120 was got inspected through Scientific Expert of FSL Rohini, as per statement of IO PW-6 Insp. Ajay Kumar. The Crime Team report of the vehicle prepared by Sr. State Vs Vijay Pratap Singh etc 42 Scientific Expert is Ex. PW-26/F. This report indicates that blood was detected inside the vehicle and lifted from different articles inside car as follows for expert analysis :-
1. Blood stained cutting and blood stains were taken/lifted from DRIVER'S SEAT (left hand side bottom).
2. Blood stains were lifted from inside of Middle Doors of the vehicle.
3. Blood stains lifted from DRIVERS side door (inside the door).
4. Blood stains cuttings were taken from hand rest cover (near Driver's seat).
80. These bloodstains were seized by the IO vide memo Ex. PW-19/A. These articles alongwith the bloodstained clothes of the victim driver were sent to FSL Rohini and PW-1 Sh. V. Shankara Narainan from FSL has proved the detailed biological report Ex. PW-1/A which shows that the blood was detected on the articles. The serological report is proved by this witness as Ex. PW-1/C and shows that the human blood was found on majority of these articles including pieces of seat cover, T-shirt, baniyan, pant, pair of socks and underwear of victim driver. As regards, the blood group, the blood on the T-shirt, baniyan and pant was found to be of A group and with regard to other articles, the blood group could not be detected. In the absence of non detection of blood group on the several articles and also matching of blood group with that of the victim on the other articles T-shirt, baniyan and pant with that of the victim, the evidence as to the blood found on the different articles is not of higher credibility. The prosecution at the most has been able to show that human blood was found on different articles including different parts inside the vehicle Tavera No. DL-1YA-4120 and the clothes of deceased, though, the evidence could have been more convincing has it been established that the blood found was that of the victim or any of the accused persons. In any case, the State Vs Vijay Pratap Singh etc 43 shortcoming in the prosecution case in this regard, cannot be said to be of any real benefit to the accused as the prosecution is able to establish human blood inside the car and on the clothes of victim driver. This also leads to presumption that victim driver Vinod was murdered in the car. RECOVERY OF VEHICLE
81. PW- 24 SI Kruna Shankar Vajpayee has stated that on 04.11.2004, he was posted in PS Mau Darwaja. They were present at the crossing of Hathiapur Village, he received information that a car make Tavera No. DL-1YA-4120, which was stolen from Delhi would be sold by its occupant in Kanpur. At about 08.30 pm, the said car was found coming from the side Farrukhabad. The car was stopped and accused Vijay Pratap @ Beenu was driving the said car and two other persons in it managed to escape from the car. Accused Vijay Pratap @ Beenu was arrested and could not produce ownership documents. The said car was seized vide memo Ex. PW-7/B and the car was identified by the witness as Ex. P1. In the cross examination, the witness has stated that the said car was being driven by Vijay @ Rinku as told to him by Vijay Pratap @ Beenu, so in the cross examination, this witness has also stated that accused Vijay Pratap has disclosed him that said car was robbed by Ashish and Vijay Singh @ Rinku. He could not tell whether Vijay Pratap @ Beenu was with them at the time of robbery. Therefore, so far as accused Vijay Pratap @ Beenu is concerned this witness has stated nothing as regard of offences of murder and robbery are concerned. However, in the cross examination, this witness has stated that accused Vijay Pratap @ Beenu on being arrested has informed him that Vijay @ Rinku was driving the car in question and he and co-accused Ashish has escaped from the car and only accused Vijay Pratap @ Beenu was arrested by PW-24.
82. The recovery of stolen car from Vijay Pratap @ Beenu is State Vs Vijay Pratap Singh etc 44 proved by this witness vide memo Ex. PW-7/B. After the investigation of the case was transferred to Delhi, the said car was taken into possession by IO Insp. Ajay Singh of this case vide memo Ex. PW-16/A, therefore, recovery of stolen vehicle from the possession of accused Vijay Pratap @ Beenu is established on record.
83. The argument on behalf of Vijay @ Rinku that there is contradiction between the statements of PW-4 Singh Raj and PW-24 Karuna Shankar Vajpayee as the former has stated that car in question was not being driven by Vijay Pratap @ Beenu while PW-24 has stated that it was being driven by him. This argument in my view, does not hold any water as PW-4 Singh Raj is not witness of recovery of vehicle Tavera car in question. He is only witness of hiring of the car which obviously was being driven by deceased driver, when the journey started from Delhi to Aligarh. PW-24 is Karuna Shankar Vajpayee, the witness of recovery of stolen car in question after the victim driver had been murdered. Therefore, there is no question of any contradiction between the statements of PW-4 and PW-24 as stressed during the arguments by Ld. counsel for accused Vijay @ Rinku.
CRUCIAL CIRCUMSTANCE
84. The crucial circumstances appearing against the accused Vijay @ Rinku are that he, as already discussed, is proved to be amongst the persons who have hired the Tavera vehicle in question and accompanied the victim driver Vinod to Aligarh. It is proved by PW4 Singh Raj that he also made part payment of Rs.500/-. This accused escaped from the vehicle in question i.e. Tavera No. DL-1YA-4120 at the time of arrest of co-accused Vijay Pratap Singh @ Beenu and recovery of the vehicle by PW-24 SI Karuna Shankar Vajpayee and other police officials of State Vs Vijay Pratap Singh etc 45 his police party. Therefore, prosecution having established on record that accused Vijay @ Rinku was last seen with the deceased driver accompanied with co-accused Ashish (PO) in the vehicle in question and it is also proved that dead body of deceased driver Vinod was found on 01.11.2007 in the Bajra field of village on the way between village Sukhri Khera and Jasmai of District Etah, UP showing his homicidal death. The fact of death of the victim can be taken to be within the special knowledge of the accused Vijay @ Rinku and co-accused Ashish (PO). Therefore, it was the duty of the accused Vijay @ Rinku to explain under what circumstance the victim driver Vinod died unnatural death. He having not explained it either in the statement under Section 313 Cr.P.C. or in his defence, though the burden to prove this fact within his special knowledge was upon him as per Section 106 of Evidence Act, the strong presumption arises that the victim Vinod was murdered by the accused Vijay @ Rinku and co-accused Ashish.
In Prabhakar Jasappa Kanguni v. State of Maharashtra, A.I.R. 1982 (SC) 1217 it was held:
"16. The other circumstances listed above had also been finally established, once circumstance
(a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Malti's death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accused-appellant and none else, who had murdered the deceased by strangulating her to death."
In State of U.P. v. Dr. Ravindra Prakash Mittal, A.I.R.1992 (SC) 2045 the following observations were made:
"41. Even though we are not finding the respondent guilty solely on his false explanation, yet that State Vs Vijay Pratap Singh etc 46 explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning."
85. In the present case human blood was found inside the Tavera vehicle No. DL-1YA-4120 leading to presumption that the murder of the deceased driver Vinod was committed in the vehicle in question. Therefore, accused Vijay @ Rinku who was one of the occupants of the car was required to explain as to how and under what circumstances the unnatural death of victim driver has occurred and who committed his murder. Therefore, in the light of Prabhakar Jasappa Kanguni's case (supra) and Dr. Ravindra Prakash Mittal's case (supra), the inescapable conclusion is that accused Vijay @ Rinku and co-accused occupying the car with him have committed murder of deceased driver.
86. The legal position is that silence of inmates of the house about cause of the death of the victim, would become additional link in chain of circumstances. (See Trimukh Maroti Kirkan v State of Maharashtra, 2007 Cr LJ 20 (SC).) The accused absconding after incident is an additional circumstance which reinforces prosecution case, no explanation given by the accused as to where they were, indicates their guilty mind. (See Vaman Jaidev Raval v State of Goa, 2007 Cr LJ (NOC) 431 (Bom).)
87. It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is State Vs Vijay Pratap Singh etc 47 found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).)
88. The non explanation of accused Vijay @ Rinku about how death of victim driver occurred in the statement under Section 313 Cr.P.C. served as a missing link to complete chain of circumstances appearing against him or additional in the chain of incriminating circumstances appearing against him.
DEFENCE
89. The defence is produced by accused Vijay @ Rinku by producing three witnesses DW1 Harpal Singh, DW2 Jabbar Singh and State Vs Vijay Pratap Singh etc 48 DW3 Kailash to show that co-accused Ashish picked quarrel with accused Vijay @ Rinku on 10.10.2007 and while leaving the house of accused Vijay @ Rinku, the co-accused Ashish threatened him to implicate him in a false case and also threatened him to kill. This fact of enmity of accused and co- accused to falsely implicate accused Vijay @ Rinku in this case does not stand to reason. It is hard to believe that co-accused Ashish who himself is absconding and was declared proclaimed offender and is running away from the police would collude with the police of both Delhi and Farukabad/Aligarh to falsely implicate accused Vijay @ Rinku. Therefore, defence of accused Vijay @ Rinku is not able to create any dent in the prosecution case, to create any reasonable doubt.
RESULT OF THE CASE:
90. Abdul Sayed's case (Supra) and Eknath Ganpath Ahir's case (Supra) relied upon on behalf of accused Vijay @ Rinku are distinguishable on facts and do not help the accused.
91. In the light of above discussion, I am of the view that prosecution has been able to prove the entire chain of circumstances appearing against accused Vijay @ Rinku for charge under Section 302 IPC and also the fact that offence of conspiracy with co-accused Ashish and other co-accused whose particulars are not established on record to commit robbery of vehicle Tavera and murder of victim driver Vinod. The deceitful manner in which the driver Vinod and travel agency was induced to make driver Vinod (deceased) to go from Delhi to Aligarh amounts to abduction of victim driver Vinod within meaning of Section 362 IPC and his subsequent murder shows that conspiracy was not only for the purpose of robbery of the vehicle but also for abducting driver Vinod for this purpose.
State Vs Vijay Pratap Singh etc 49 Therefore, prosecution case against accused Vijay @ Rinku for the charge for the offence u/S 120-B IPC and of offences under Sections 392/302/364 read with Section 120B IPC is proved beyond reasonable doubt. The accused Vijay @ Rinku is convicted of the said charges.
91. As regard, accused Vijay Pratap Singh @ Beenu the stolen vehicle was recovered from him is established on record. However, there is no evidence on record to suggest that he was present at the time of hiring the vehicle Tavera bearing No. DL-1YA-4120 or accompanied the co- accused persons and victim driver Vinod to Aligarh from Delhi or was last seen with the victim driver. But, he certainly concealed the information about robbery of Tavera Vehicle being brother of accused Ashish so he can be presumed to know about robbery of the vehicle and has concealed this fact from the police. Charges under Section 411/202 IPC are established beyond reasonable doubt against him. He is convicted of the said charges. Let the accused persons be heard on the point of sentence.
Announced in the open court on this 16th day of July, 2012 ( S.K. SARVARIA ) District Judge/Add. Sessions Judge Incharge, North West District Rohini, Delhi State Vs Vijay Pratap Singh etc 50 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE INCHARGE/ ADDITIONAL SESSIONS JUDGE:
DISTRICT COURTS ROHINI, DELHI SESSIONS CASE NO. 114/2010 State Versus 1. Vijay Partap Singh @ Beenu son of Chander Pal R/o. Vill. Adauli P.O & P.S. Mau Darwaja Distt. Farukhabad (U.P.)
2. Vijay @ Rinku son of Harshwardhan R/o Jhuggi No. 25A-12 Lal Bagh, Model Town, Delhi FIR NO. - 532/2007 Police Station - Mukherjee Nagar Under Section - 392/302/364 read with Section 120B IPC and 411/202 IPC ORDER ON SENTENCE Vide separate judgment dated 16.07.2012, both the accused persons were convicted. Accused Vijay @ Rinku was convicted under Sec.
392/302/364 read with Section 120B IPC and accused Vijay Pratap Singh @ Beenu was convicted u/S 411/202 IPC.
Ld. Addl.PP for the State has argued for deterrent punishment against them as offence of robbery should be viewed seriously.
Ld counsel for accused Vijay @ Rinku has argued that father of accused is suffering from T.B since 2011 and this accused is sole bread earner of the family. It is argued that accused is the first offender and he is in custody for the last about 4 ½ years so lenient view should be taken State Vs Vijay Pratap Singh etc 51 against him.
Ld counsel for accused Vijay Pratap Sigh @ Beenu has argued that accused remained in the custody for about 13 months, major part of which he remained in custody in District Jail, Farukhabad after allegedly he was arrested with stolen vehicle on 04.11.2007 and was released on bail on 28.11.2008. He is a poor fellow and has to look after his family consisting of his parents and wife so by taking lenient view he should be sentenced to the period of imprisonment already undergone.
I have heard Ld Addl. P.P for the State and Ld counsel for convicts on the point of sentence.
Punishment should be proportionate to the severity of offence committed however benefit should be given to accused persons to the period of detention during the investigation and trial.
Keeping in view the overall facts and circumstances of the case, the present case does not look to be a case which can be said to be rarest amongst rare cases to attract capital punishment, moreso when it is a case base on circumstantial evidence. Therefore, convict Vijay @ Rinku is sentenced to undergo life imprisonment under Section 302/120-B IPC and also directed to pay fine of Rs 2000/- In default of payment of fine, the convict is sentenced to undergo simple imprisonment for six months. In addition the convict is also sentenced undergo rigorous imprisonment for a term of 10 years each u/S 364 and 392/120-B IPC. He is also directed to pay fine of Rs 2000/- each for the said offences, In default of payment of fine, the convict is sentenced to undergo simple imprisonment for six months each.
As regards sentence of accused on the charge u/S 120-B IPC the legal position is that where the accused is charged for conspiracy u/S State Vs Vijay Pratap Singh etc 52 120-B and also for the offence committed in furtherance of the conspiracy and is convicted on both the counts, it is not necessary to award a separate sentence u/S 120-B IPC. (See Mohd. Hussain Kochara Vs K.S. Dalip Singhji AIR 1980, Ismail Vs Emperor AIR 1947 Lahore 220) As regards Convict Vijay Pratap is concerned, this convict was arrested in Farukhabad on 04.11.2007 and remained in custody in Farukhabad Jail and also in Tihar Jail upto 19.12.2008. Therefore he remained in custody for more than 1 year and 1 month. He is sentenced to undergo rigorous imprisonment for one year and one month under Section 411 IPC and he is also directed to pay fine of Rs 2000/- In default of payment of fine, the convict is sentenced to undergo simple imprisonment for six months. He is further sentenced to undergo rigorous imprisonment for a period of six months u/S 202 IPC and he is also directed to pay fine of Rs 1000/- In default of payment of fine, the convict is sentenced to undergo simple imprisonment for three months. The sentences of imprisonment awarded to convict persons shall run concurrently.
The period of detention already undergone by convicts during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convicts by this order, as provided u/s 428 Cr.P.C.
Judgment and order on sentence be sent to server(www.delhidistrict courts. nic.in). Copy of judgment and order of
sentence be supplied to convict/accused persons free of cost. File be consigned to record room.
Announced in the open court on
this 20th day of July, 2012 ( S.K. SARVARIA )
District Judge/Add. Sessions Judge
Incharge, North West District
Rohini, Delhi
State Vs Vijay Pratap Singh etc