Delhi District Court
State vs Harender Passi on 27 March, 2018
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST: TIS HAZARI COURTS: DELHI
SC No.56107/16
FIR No. 230/11
U/s. 302/201/395/396/412 IPC
P.S Mundka
In the matter of :
State
versus
1. Harender Passi
S/o Ram Kishan
R/o Village Farsar, Tehsil
Gola PS Balhar Ganj,
District Gorakhpur, U.P
2. Haripal Singh @ Palalu
S/o Laxmi Singh
R/o Village Maulapur, Tehsil
Jiyan Pur, Bilaryaganj
District Azamgarh, U.P
3. Sugreev Paswan
S/o Ram Mangal Paswan
R/o Village Riyav, Tehsil
Bass Gaon PS Gagha
District Gorakhpur, UP
Sessions Case No. 56107/16 Page 1/58
4. Birja
S/o Ram Lakhan
R/o Village Marhat, Tehsil
Gola, PS Balhar Ganj
District Gorakhpur, U.P.
5. Vinod
S/o Ram Nath
R/o Village Singhera
PS Mardha District Gazipur, U.P.
6. Manoj
S/o Ram Pyare
R/o Village Farsar Tehsil Gola
PS Balhar Ganj
District Gorakhpur, U.P
Date of Institution : 13.04.2012
Date of reserving Judgment : 15.03.2018
Date of pronouncement : 27.03.2018
Appearances:
For the State : Ms. Reeta Sharma,
Additional Public Prosecutor.
For the accused persons : Shri Tanvir Qaiser, Advocate
namely Hari Pal, Vinod
and Manoj
For the accused persons : Shri Arun Rathi, Advocate.
namely Sugreev Paswan
and Birja
For accused namely, : Shri Kaptan Singh, Advocate.
Harender Passi
Sessions Case No. 56107/16 Page 2/58
JUDGMENT
Accused persons namely, Harender Passi son of Ram Kishan aged 22 years, Haripal Singh @ Palalu son of Laxmi Singh aged 21 years, Sugreev Paswan son of Ram Mangal Paswan aged 21 years, Vinod son of Ram Nath aged 22 years and Manoj son of Ram Pyare aged 25 years were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e. chargesheet submitted on 02.04.2012 and supplementary charge-sheet submitted on 02.07.2012 upon conclusion of investigation into First Information Report (FIR) no. 230/2011 of police station (PS) Mundka for the offences punishable under Sections 302/201/395/396 of the Indian Panel Code, 1860 (IPC). Accused namely, Birja son of Ram Lakhan aged 37 years was sent up for trial for the offence punishable under section 412 IPC.
Sessions Case No. 56107/16 Page 3/58Prosecution Version:
2. According to the prosecution story, vide Daily Diary (DD) No. 17A dated 23.12.2011, an information regarding theft of oil drums from Tyre Wali Gali Mundka, was received. A copy of the above DD was handed over to SI Dinesh Kumar who alongwith Ct. Vishram Meena reached at the place of occurrence i.e. godown under the name and style of Industrial Oil & Chemicals situated at Tyre Wali Gali, Mundka. Complainant namely, Rajesh Garg s/o Ram Rattan resident of E-16, Bhagwan Dass Nagar, Delhi met on the spot who stated that he was doing the business of used transformer oil. His above-mentioned godown was being looked after by a security guard namely, Arjun Mehto @ Baba s/o Dev Dhari Mehto. On 23.12.2011 in the morning, when the complainant reached his godown, he found that security guard namely, Arjun Mehto was not present in the godown and 60 drums containing the oil were also missing from the godown. On the basis of the statement of the complainant namely Rajesh Garg, case FIR no. 230/11 dated 23.10.201 u/s 408 IPC Sessions Case No. 56107/16 Page 4/58 was registered. The place of incident was got inspected and photographed by the crime team. A blood stained shawl, an empty bottle (half) of Goldee Whisky, an iron chain and a blade were taken into possession from the spot and seized by SI Dinesh. During investigation, on 06.01.2012 on the secret information, Harender Passi, Haripal Singh @ Palalu and Sugreev Paswan were apprehended from Mundka Industrial Area. On interrogation, all of them disclosed that in the intervening night of 22/23.12.2011 they, alongwith their two associates namely Vinod and Manoj, made a plan for committing theft and entered in the above-said godown of Rajesh Garg. They overpowered the chowkidar namely, Arjun Mehto and murdered him. Thereafter they stole 60 drums of oil by loading the same in a tempo. They threw the dead body of chowkidar Arjun Mehto into a septic tank of a plot which was situated in the same street.
3. Further investigation of the case was handed over to Investigating Officer (I.O) Inspector Ramesh Chander. Accused persons namely, Harender Passi, Haripal Singh @ Palalu and Sessions Case No. 56107/16 Page 5/58 Sugreev Paswan led the police to the above-said septic tank and dead body of chowkidar Arjun Mehto (deceased) was found in it which was taken out from the septic tank. Accused persons namely Harender Passi, Haripal Singh @ Palalu and Sugreev Paswan were arrested in the present case by the IO. The dead body of Arjun Mehto (deceased) was sent to the mortuary of Sanjay Gandhi Memorial Hospital for postmortem examination. The case property i.e. 60 oil drums were also recovered at the instance of accused persons. The receiver of the stolen property i.e. accused Birja was also arrested.
4. On 21.04.2012, accused Vinod surrendered before the court and thereafter on 17.05.2012, accused Manoj also surrendered before the court.
Subsequently, a supplementary chargesheet was filed qua both the afore-said accused persons on 02.07.2012.
Charge:
5. On 24.09.2012, after hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused persons, charge was Sessions Case No. 56107/16 Page 6/58 framed against the accused persons namely, Harender Passi, Hari Pal Singh, Sugreev Paswan, Vinod and Manoj for commission of offences punishable under section 302/201/34 IPC and under section 395/396 IPC. Vide same order, charge was also framed against accused Birja for commission of offence punishable under section 412 IPC.
6. Separate charges so framed were read over and explained to the accused persons to which they all did not plead guilty and claimed trial.
Prosecution Witnesses:
7. To bring home the afore-mentioned charges to the accused persons, the prosecution got examined Dr. Manoj Dhingra (PW-1), HC Daya Chand (PW-2), Ct. Suman (PW-3), Raj Nath (PW-
4), HC Sudesh (PW-5), Rajesh Garg (PW-6), Ranjan Kumar (PW-7), Omvir Lakra (PW-8), SI Azad Singh (PW-9), HC Surender (PW-10), HC Udham Singh (PW-11), HC Devender Kumar (PW-12), SI Kalyan Singh (PW-13), ASI Satyawan (PW-14), SI Dinesh (PW-15), Inspector Mahesh Kumar (PW-16), Ct. Vishram (PW-17), Ct. Neeraj Sessions Case No. 56107/16 Page 7/58 Kumar (PW-18), HC Mohinder Singh (PW-19), HC Ashok (PW-20), Dr. Dhruv Sharma (PW-21), Ct. Madan Lal (PW-22) and ACP Ramesh Chander (PW-23).
Documentary Evidence:
8. The prosecution also relied on following documents, tendered into evidence i.e postmortem examination report (Ex.PW-1/A), computerized copy of FIR (Ex.PW-2/A), endorsement on rukka (Ex.PW-2/B), certificate u/s 65 B of the Indian Evidence Act, 1872 (for short, Evidence Act) (Ex.PW-2/C), Police Control Room (PCR) form (Ex.PW-3/A), recovery memo of dead body (Ex.PW-4/A), death report (Ex.PW-4/B), DD entry no. 17A dt. 23/12/2011 (Ex.PW-5/A), statement of complaiant (Ex.PW-6/A), site plan (without scale) (Ex.PW-6/B), seizure memo of empty half liquor bottle (Ex.PW-6/C), seizure memo of one shawl (Ex.PW-6/D), seizure memo of one iron chain, lock and iron cutter (aari) (Ex.PW-6/E), pointing out memo of dead body (Ex.PW-6/F), seizure memo of sixty oil drums (Ex.PW-6/G), seizure memo of bill / invoice of the transformer oil (Ex.PW-6/H), Sessions Case No. 56107/16 Page 8/58 Tax invoice of transformer oil (Ex.PW-6/J), indemnity bond (Ex.PW-6/K), receipt of dead body(Ex.PW-7/A), scene of crime report (Ex.PW-
9/A), negatives of the photographs of the spot (Ex.PW-10/A1 to Ex.PW-10/A11), photographs of the spot (Ex.PW-10A12 to Ex.PW-10/A22), negatives of the photographs of septic tank from where the dead body was taken out (Ex.PW-12/A1 to Ex.PW-12/A24), photographs of septic tank from where the dead body was taken out (Ex.PW-12/A25 to Ex.PW-12/A48), scene of crime report of septic tank from where the dead body was recovered (Ex.PW-13/A), arrest memo of accused Harender Passi(Ex.PW-14/A), arrest memo of accused Hari Pal Singh (Ex.PW-14/B), arrest memo of accused Sugreev (Ex.PW-14/C), personal search memo of accused Harender Passi (Ex.PW-14/D), site plan of the place from where the dead body was recovered (Ex.PW-14/D1), personal search memo of accused Hari Pal (Ex.PW-14/E), personal search memo of accused Sugreev (Ex.PW-14/F, disclosure statement of accused Harender Passi (Ex.PW-14/G), disclosure statement of accused Hari Pal (Ex.PW- 14/H), disclosure statement of accused Sugreev Sessions Case No. 56107/16 Page 9/58 (Ex.PW-14/I), arrest memo of accused Birja Paswan (Ex.PW-14/J), disclosure statement of accused Birja (Ex.PW-14/K), rukka (Ex.PW-15/A), personal search memo of accused Birja Paswan (Ex.PW-15/A), scaled site plan of both places (Ex.PW-16/A), seizure memo of viscera (Ex.PW- 19/A), seizure memo of blood guaze piece and clothes (Ex.PW-19/B), entry at serial no. 342/11 in register no. 19 (Ex.PW-20/A), entry at serial no. 178/12 in register no. 19 (Ex.PW-20/B), entry at serial no. 182/12 in register no. 19 (Ex.PW-20/C), RC no. 101/21/12 pertaining to viscera and sample seal of hospital (Ex.PW-20/D), RC no. 102/21/12 pertaining to other articles (Ex.PW-20/E), acknowledgment of depositing the case property ie. three sealed parcels (Ex.PW-20/F), acknowledgment of depositing the case property i.e. one sealed wooden box (Ex.PW-20/G), biological report (Ex.PW-21/A), serological report (Ex.PW-21/B), arrest memo of accused Manoj Kumar (Ex.PW-22/A), filled up inquest form (Ex.PW-23/A), site plan of the place from where the oil drums were recovered (Ex.PW-23/B1), identification statement of dead body by Ranjan Sessions Case No. 56107/16 Page 10/58 Kumar (Ex.PW-23/C), identification statement of dead body by Navin Kumar (Ex.PW-23/D), site plan from where the oil drums were recovered (Ex.PW-23/D1), request for postmortem examination (Ex.PW-23/E), arrest memo of accused Vinod Singh (Ex.PW-23/F), personal search memo of accused Vinod Singh (Ex.PW- 23/G), disclosure statement of accused Vinod Singh (Ex.PW-23/H), pointing out memo of the place of incident where murder was committed and sixty oil drums were stolen (Ex.PW-23/J), pointing out memo of the septic tank where dead body was thrown (Ex.PW-23/K), pointing out memo of the spot where stolen sixty oil drums were kept (Ex.PW-23/L), personal search memo of accused Manoj Kumar (Ex.PW-23/M) and photographs of the oil drums (Ex.P1 to P3).
Statements of Accused Persons:
9. After conclusion of prosecution evidence, on 19.08.2016, statements of accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against Sessions Case No. 56107/16 Page 11/58 them and stated that they were falsely implicated by the IO in order to solve a blind and clueless case.
10. None of the accused persons desired to lead evidence in his defence and accordingly, case was listed for final arguments.
Final Arguments:
11. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State, Shri Arun Rathi, learned counsel for accused persons namely, Sugreev Paswan and Birja, Shri Kaptan Singh, learned counsel for accused Harender Passi and Shri Tanvir Qaiser, learned counsel for accused persons namely, Haripal, Vinod & Manoj. I also perused the entire material available on record.
12. During the course of arguments, learned Additional Public Prosecutor argued that present is a case based on circumstantial evidence and the prosecution successfully proved the complete chain of circumstances to prove the guilt of the accused persons. Further, initially the case was registered under section 408 IPC therefore, no ill will can be Sessions Case No. 56107/16 Page 12/58 imputed on the part of the IO of the case. All the prosecution witnesses deposed consistently and except some minor contradictions which are bound to occur, there are no material contradictions in the testimonies of prosecution witnesses. Ld. Prosecutor further argued that the dead body of the deceased as well as the stolen 60 oil drums were recovered at the instance of accused Harender Passi, Hari Pal Singh and Sugreev Paswan which are admissible under section 27 of the Evidence Act. The accused persons were also duly identified by prosecution witnesses though PW-4 wrongly identified accused Manoj but the same is not fatal to the prosecution's case as other PWs correctly identified the accused persons. Further, the prosecution proved the motive i.e. commission of robbery on the part of the accused persons. No suggestion was put to any public witness about any enmity with the accused persons. Ld. Prosecutor further argued that as per settled law, joint recovery and joint disclousers are permissible in law. Lastly, the learned Prosecutor argued that the prosecution successfully proved its case beyond all reasonable doubts and all the accused persons deserve Sessions Case No. 56107/16 Page 13/58 conviction. Learned Prosecutor also relied on Kishore Bhadke v. State of Maharashtra decided by the Apex Court on 03.01.2017 in criminal appeal no. 467/2010, B.K.Channappa v. State of Karnataka 2006 (12) SCC 57, Simon & Ors v. State of Karnataka decided by the Apex Court on 29.01.2004 in criminal appeal no. 149-150 of 2002 and Pradeep @ Sanjay & Anr v. State decided by Delhi High Court on 02.05.2011 in criminal appeal no. 09/1998
13. Per contra, learned defence counsel argued that there are not sufficient evidence available on record against the accused persons and the testimonies of prosecution witnesses are contradictory with each other. Further, the IO of the case did not examine the JCB operator or the plot owner where the septic tank was situated. There are contradictions in the testimonies of the prosecution witnesses regarding identity of the accused persons.
Further, learned defence counsel submitted that in all the cases based on circumstantial evidence, last seen evidence is must which is lacking in the present case and accordingly, the chain of the circumstances pointing towards the guilt of the Sessions Case No. 56107/16 Page 14/58 accused persons is not complete. He also argued that joint recoveries are not permissible in law which raises doubts on the entire prosecution story. Learned defence counsel also filed written submissions and relied on Nathiya v. State Rep. By Inspector of police AIR 2016 Supreme Court 5110, Jose @ Pappachan v. Sub Inspector of Police Koyilandy & Anr AIR 2016 Supreme Court 4581, Rambraksh @ Jalim v. State of Chhatisgarh 2016 (2) Crimes 231 (SC), Vijay Thakur v. State of Himachal Pradesh 2014 Cr.L.J 4906 (SC), Ravinder Parkash & Anr v. State of Haryana AIR 2002 SC 3494 and Kishore Chand v. State of Himachal Pradesh AIR 1990 Supreme Court 2140 in support of his contentions.
14. I have given my thoughtful consideration to the submissions of both sides.
Points for Determination:
15. In view of the facts and circumstances of the case and the submissions advanced on both sides, following points for determination are emerging in the present case :-
Sessions Case No. 56107/16 Page 15/581. Whether the dead body recovered in the present case was of Arjun Mehto @ Baba (deceased) s/o Dev Dhari Mehto r/o Village Meghai PS Deep Nagar District Nalanda, Bihar ?
2. Whether the deceased sustained injuries on his person which were sufficient to cause death in ordinary course of nature?
3. Whether the death of the deceased was homicide?
4. Whether all the accused persons except accused Birja inflicted such injuries on the person of the deceased?
5. Whether all the accused persons except accused Birja committed dacoity at the godown of the complainant Rajesh Garg situated at Marwari Tyre Wali Gali, Mundka, Delhi?
6. Whether all the accused persons except accused Birja, while committing the said dacoity, also committed murder of the deceased.
7. Whether all the accused persons except accused Birja caused the evidence of the commission of offence disappear?
8. Whether accused Birja dishonestly received or retained the stolen property, knowing the possession thereof to have Sessions Case No. 56107/16 Page 16/58 been transferred by the commission of dacoity or received from all other accused persons having reason to believe that all other accused persons belonged to a gang of dacoits?
Testimonies of prosecution witnesses:
16. To prove the afore-mentioned charges against the accused persons, the prosecution got examined 23 witnesses in all. For the sake of convenience, a brief description of the testimonies of all the prosecution witnesses in tabular form is as under :-
Sl. No. Name of Nature of testimony Documentary of PW PW Evidence PW-1 Dr. Manoj Conducted the Ex.PW-1/A Dhingra postmortem examination on the dead body of deceased, mentioned injuries and gave subsequent opinion.
PW-2 HC Daya Deposed about Ex.PW-2/A,
Nand registration of FIR Ex.PW-2/B,
(Duty no. 230/11 on the Ex.PW-2/C
Officer) basis of rukka sent
by the initial IO SI
Dinesh Kumar
PW-3 Ct. Suman Deposed about Ex.PW-3/A
(PCR) receiving the call on
23.12.2011 and its
due transmission.
PW-4 Raj Nath Employer of the Ex.PW-4/A,
Sessions Case No. 56107/16 Page 17/58
(Owner of deceased in whose Ex.PW-4/B,
Vishal presence dead body Ex.PW-4/DA,
Security of deceased was Ex.PW-4/DB
Service) recovered on -
06.01.2012.
PW-5 HC Sudesh Deposed about Ex.PW-5/A
(Duty lodging DD No. 17
Officer) A dated 23.12.2011
in daily diary.
PW-6 Rajesh Garg Deposed about Ex.PW-6/B,
(owner of informing the police Ex.PW-6/C,
godown) about the incident. Ex.PW-6/D,
Dead body of Ex.PW-6/E,
deceased as well as Ex.PW-6/F,
the case property Ex.PW-6/G,
were recovered in Ex.PW-6/H,
his presence. Ex.PW-6/J,
Ex.PW-6/K,
PW-7 Ranjan Identified the dead
Kumar body of deceased in Ex.PW-7/A
(Son of the hospital on
deceased) 08.01.2012.
PW-8 Omvir Deposed about
Lakra giving the plot on
(Owner of rent to accused
plot from Birja.
where
stolen oil
drums were
recovered)
PW-9 SI Azad Deposed about Ex.PW-9/A,
Singh inspecting the place Ex.PW-9/DA
(Incharge of incident i.e.
crime team) godown on
23.12.2011 and
preparation of
report.
PW-10 HC Deposed about Ex.PW-10/A1 to
Surender taking photographs Ex.PW-10/A11,
(Photograph of the spot on
er) 23.12.2011. Proved Ex.PW-10/12 to Sessions Case No. 56107/16 Page 18/58 negatives and PW-10/22 photographs.
PW-11 HC Udham Deposed about
Singh lifting the chance
(Finger print from godown
print on 23.12.2011 and
expert) accompanying the
crime team on
06.01.2012 at the
time of recovery of
dead body.
PW-12 HC Deposed about Ex.PW-12/A1 to
Devender taking photographs Ex.PW-12/A24,
Kumar at the time of
(Photograph recovery of dead Ex.PW-12/A25 to
er) body on 06.01.2012. Ex.PW-12/A48 PW-13 SI Kalyan Deposed about Ex.PW-13/A Singh recovery of dead` (Incharge body in his presence crime team) on 06.01.2012 and preparation of report.
PW-14 HC Deposed about Ex.PW-14/A, Satyawan apprehending and Ex.PW-14/B, arresting the accused Ex.PW-14/C, persons and Ex.PW-14/D, recovery of dead Ex.PW-14/D1, body at their Ex.PW-14/E, instance. Ex.PW-14/F, Ex.PW-14/G, Ex.PW-14/H, Ex.PW-14/I, Ex.PW-14/J, Ex.PW-14/K, PW-15 SI Dinesh Deposed about Ex.PW-15/A, arresting the accused Ex.PW-15/A (Initial persons namely, Investigatio Harender Passi, n Officer) Haripal and Sugreev Pawan on 06.01.2012 and recording their Sessions Case No. 56107/16 Page 19/58 disclouser statements. He further arrested accused Birja, the receiver of stolen property and also seized the case property.
PW-16 Inspector Deposed about Ex.PW-16/A
Mahesh visiting the scene of
Kumar crime on 14.02.2012
and taking
measurement and
handing over the site
plan.
PW-17 Ct. Vishram Accompanied SI
Dinesh on receipt of
PCR call. On
directions of SI
Dinesh, he had
brought the rukka to
the police station for
registration of FIR.
PW-18 Ct. Neeraj Accompanied SI
Dinesh. Deposed
about arrest of
accused persons
outside the godown
on 06.01.2012. In
his presence, dead
body of deceased
was recovered from
septic tank.
PW-19 HC Accompanied SI Ex.PW-19/A,
Mohinder Dinesh. Deposed Ex.PW-19/B
Singh about arrest of
accused persons
outside the godown
on 06.01.2012. In
his presence, dead
body of deceased
was recovered from
septic tank
Sessions Case No. 56107/16 Page 20/58
PW-20 HC Ashok He sent the case Ex.PW-20/A,
MHC(M) property to FSL Ex.PW-20/B,
Rohini on Ex.PW-20/C,
25.01.2012 through Ex.PW-20/D,
Ct. Mahender Singh. Ex.PW-20/E, Ex.PW-20/F, Ex.PW-20/G, PW-21 Dr. Dhruv Deposed about PW-21/A Sharma biological Ex.PW-21/B (FSL) examination of three sealed parcels in connection with the present case PW-22 Ct. Madan Accompanied IO Ex.PW-22/A Lal Inspector Ramesh Chander to Tis Hazari Courts on 17.05.2012 when accused Manoj surrendered before the Ld. MM.
PW-23 ACP Deposed about the Ex.PW-23/B1,
Ramesh investigation. Ex.PW-23/C,
Chander Ex.PW-23/D,
(Investigati- Ex.PW-23/D1,
on Officer) Ex.PW-23/E,
Ex.PW-23/F,
Ex.PW-23/G,
Ex.PW-23/H,
Ex.PW-23/J,
Ex.PW-23/K,
Ex.PW-23/L,
Ex.PW-23/M,
Ex.P1 to P3
Decision on Points for determination no. 1, 2 & 3
17. As per the testimony of Ranjan Kumar (PW-
7), son of the deceased, the deceased was working in Delhi as a security guard. On receiving the Sessions Case No. 56107/16 Page 21/58 information about his death, PW-7 reached at mortuary of SGM Hospital, Mangol Puri, Delhi where he identified the dead body vide his statement Ex.PW-23/C. He also received the dead body of his father vide memo Ex.PW-7/A.
18. Rajnath Yadav (PW-4) who was running a business of providing security services from his office at Sultan Puri Delhi also identified the said dead body to be one of the guards namely, Arjun Mehto who was employed with him. The complainant Rajesh Garg (PW-6), who was running business of oil trading with a godown situated at Marwari Tyre Wali Gali behind Metro yards, Mundka also identified the said dead body to be of security guard Arjun Mehto who was deployed for security of the said godown.
19. Dr. Manoj Dhingra (PW-1) had conducted postmortem examination alongwith Dr. Deepak Sharma on the dead body of Arjun @ Baba s/o Dev Dhari Mehto on 08.01.2012. PW-1 found the said dead body in a state of decomposition due to which it had swollen and greenish colouration was found present all over the body. Further, the skin of the body was peeling off at places, maggots were Sessions Case No. 56107/16 Page 22/58 found present on the body. Hair and skin were coming out on pulling, teeth were loose and marbling of skin was also present. PW-1 also found a laceration of 5x4 cm into bone deep present over right frontal region of the head. Internal injuries in head, neck and chest and fracture of 2nd to 5th ribs on left side and 3rd and 4th rib on right side were also found. PW-1 proved the postmortem examination report Ex.PW-1/A. The cause of death was opined to be due to cerebral damage and asphyxia consequent upon the head injury and strangulation.
20. In view of the testimonies of above- mentioned prosecution witnesses, it is evident that the afore-mentioned dead body was of Arjun Mehto @ Baba s/o Dev Dhari Mehto. As per postmortem examination report Ex.PW-1/A, the deceased had died due to cerebral damage and asphyxia on sustaining head injury as well as strangulation, which establish that the injuries sustained by deceased were sufficient to cause death in ordinary course of nature. Apparently, the death of the deceased was homicidal. As per the prosecution case, the dead body was found inside a septic tank Sessions Case No. 56107/16 Page 23/58 with injuries as mentioned in postmortem examination report Ex.PW-1/A, therefore, the possibility of death of the deceased being accidental or suicidal is completely ruled out.
21. The points for determination nos. 1, 2 and 3 are accordingly decided.
Decision on Points for Determination no. 4, 5 , 6 , 7 and 8.
22. To bring home the guilt to the accused persons, the prosecution got examined 23 witnesses in all. In order to establish culpability on the part of the accused persons, the prosecution sought to prove following circumstances:
(i). Deceased was employed as a security guard at the godown of the complainant situated in Marwari Tyre Wali Gali, behind Metro yard, Mundka, Delhi.
(ii). In the intervening night of 22/23.12.2011, 60 drums containing transformer oil, stored at the said godown, were stolen.
(iii). The deceased was found missing from the said godown.Sessions Case No. 56107/16 Page 24/58
(iv). On 06.01.2012, three accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan were arrested on the basis of secret information.
(v). The dead body of the deceased was recovered at the instance of the said accused persons from inside a septic tank in a plot situated near the said godown.
(vi). The stolen 60 drums containing transformer oil were recovered at the instance of the said accused persons which were kept in a plot.
(vii). The said 60 drums containing transformer oil were purchased by accused Birja from the accused persons who had retained them in the said plot.
23. The afore-mentioned circumstances are analysed under the following heads:
(A). Theft of 60 oil drums and missing of security guard.
24. As per the testimony of Ranjan Kumar (PW-
7), Raj Nath Yadav (PW-4) and Rajesh Garg (PW-
6), there is no doubt that the deceased was employed as a security guard and was on night duty Sessions Case No. 56107/16 Page 25/58 on 22.12.2011 at the said godown of the complainant. The deposition of PW-4 and PW-6 is categorical in this regard. Though PW-4 could not produce any document to show that the deceased was working with him for the last about 2 years from the date of incident, his testimony remained intact in this regard. Furthermore, PW-6 in his cross-examination also stated that the deceased was hired from the security agency and he had also documents to show about the employment of the deceased as security guard with him. PW-6 further stated that he had given the monthly bill of the security agency to the police and could also produce the same. PW-6 was not asked by the learned defence counsel to produce those documents. PW-6 further stated in categorical terms that when he left the godown on 22.12.2011 in the evening nobody else except the deceased remained present in the godown. The testimony of PW-6 could not be contradicted in any manner in this regard. Rather, one FIR Ex. PW-2/A under section 408 IPC was got registered by PW-6 vide his statement Ex.PW-6/A whereby he raised doubt on the deceased who was found missing from the Sessions Case No. 56107/16 Page 26/58 godown alongwith 60 drums containing transformer oil when PW-6 reached there on the next day.
25. Ct. Suman (PW-3) of PCR, (Headquarter) deposed about recording of theft of oil drums in the computer network, on 23.12.2011 at about 12.33 p.m. The said information was transmitted to concerned PCR. PW-3 also produced the PCR form Ex.PW-3/A in this regard. Further, HC Sudesh (PW-5) deposed about receiving wireless message from the district control room on 23.12.2011 at about 12.40 p.m regarding theft of oil drums which was recorded by him vide DD No. 17A (EX.PW- 5/A). HC Dayanand (PW-2) deposed about receiving a rukka from Ct. Vishram on 23.12.2011 at about 5.45 p.m on the basis of which he registered FIR Ex.PW-2/A under section 408 IPC. PW-2 had also made endorsement Ex.PW-2/B on the said rukka. Raj Nath Yadav (PW-4) also deposed about the missing of the deceased as well as oil drums from the said godown of the complainant. SI Azad Singh (PW-9) had reached at the said godown alongwith photographer and finger print proficient on 23.12.2011 at about 4.05 p.m on Sessions Case No. 56107/16 Page 27/58 receipt of information from the control room. PW-9 had inspected the site and prepared his scene of crime report Ex.PW-9/A. HC Surender (PW-10) also deposed about taking photographs of the scene of crime on 23.12.2011 vide photographs Ex.PW- 10/A12 to Ex.PW-10/A22 with negatives Ex.PW- 10/A1 to Ex.PW-10/A11. As per the testimony of HC Udham Singh (PW-11), who had also accompanied ASI Azad Singh (PW-9), one empty bottle of plastic with "Goldee" printed on it was found lying in between the drums. PW-11 had lifted 2 chance prints from the same which were sent to Bureau for analysis.
26. In view of the testimonies of above- mentioned prosecution witnesses, it is established that the deceased was indeed employed as a security guard at the godown of the complainant Rajesh Garg (PW-6) and was on duty in the intervening night of 22/23.12.2011. In the morning of 23.12.2011 when PW-6 reached at his godown, the deceased as well as 60 drums containing transformer oil were found missing. PW-6 reported the matter to the police on which FIR Ex.PW-2/A Sessions Case No. 56107/16 Page 28/58 under section 408 IPC was registered in police station Mundka and investigation was carried out.
27. In view of above-discussed facts and circumstances, it is clear that the prosecution succeeded in establishing the afore-mentioned circumstances no. (i), (ii) and (iii) beyond reasonable doubt.
(B). Arrest of accused persons
28. As far as the arrest of the accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan is concerned, the testimonies of SI Dinesh (PW-15), HC Satyawan (PW-14), Ct. Neeraj Kumar (PW-18) and HC Mahender Singh (PW-19) are relevant.
29. As per the testimonies of the afore- mentioned prosecution witnesses, on 06.01.2012 on receipt of secret information the afore-mentioned prosecution witnesses reached at Mundka Industrial area where accused Harender Passi, Hari Pal Singh and Sugreev Paswan were arrested at the instance of a secret informer, who were standing infront of godown of one Munna Lal . The accused persons were arrested vide arrest memo Ex.PW-14/A, Sessions Case No. 56107/16 Page 29/58 Ex.PW-14/B and Ex.PW-14/C respectively. Their personal search was conducted vide memo Ex.PW- 14/D, Ex.PW-14/E and Ex.PW-14/F. Thereafter, PW-15 recorded their disclouser statements Ex.PW- 14/G, Ex.PW-14/H and Ex.PW-14/I. Further, SHO Inspector Ramesh Chand Bhardwaj (PW-23) was informed by PW-15 in this regard who also reached at the said spot. Complainant Rajesh Garg (PW-6) and Raj Nath Yadav (PW-4) were called who also reached at the spot.
30. The testimonies of afore-mentioned prosecution witnesses regarding receiving secret information, proceeding to the Mundka Industrial Area in pursuance thereof and arrest of the afore- mentioned three accused persons at the instance of secret informer remained intact in their respective cross-examination and no material contradiction could be brought forth by the learned defence counsel. During arguments, it was submitted by the learned defence counsel that Raj Nath Yadav (PW-
4) wrongly identified accused Manoj which raises doubt on the prosecution case. I am not satisfied with the submissions of the learned defence counsel. It was held in Simon (supra) case that Sessions Case No. 56107/16 Page 30/58 wrong identification by one witness is not fatal to the case of prosecution by itself. Moreover, Rajesh Garg (PW-6), ASI Satyawan (PW-14), SI Dinesh (PW-15), Ct. Neeraj Kumar (PW-18), HC Mohinder Singh (PW-19) and ACP Ramesh Chander (PW-23) duly identified all the three accused persons and their respective testimonies could not be contradicted in this regard. In cross- examination, learned defence counsel asked about the sequence of making arrest and personal search of the accused persons as well as about not joining any public witness while making arrest. In this regard, suffice it to say that all the three accused persons were arrested simultaneously and, therefore, the sequence of making arrest is of no significance. As per settled propositions of law, absence of any public witness at the time of arrest of the accused person is also not fatal to the prosecution case if the testimonies of police witnesses are not contradictory. A police witness is also equally competent witness and absence of any public witness in the proceedings conducted does not make the testimony of such police witness less credible. Further, though PW-14 could not Sessions Case No. 56107/16 Page 31/58 remember the registration number of private vehicle used by them to reach at the godown of Munna Lal, PW-18 stated about the use of three different motorcycles to reach at the said spot whereas PW-19 stated about the use of Hyundai i10 car belonging to SI Dinesh Kumar (PW-15), the deposition of prosecution witnesses cannot be construed to be contradictory with each other, more so, when the other facts deposed by them could not be contradicted in any respect. It was also held in B.K Channappa (supra) case that such contradictions are bound to occur in the statements of the prosecution witnesses who depose in the court after substantial period of time. As far as the discrepancies pointed out by the counsel for the accused in the testimonies of the prosecution witnesses and the infirmities in carrying out the investigation are concerned, suffice it to say that as per the settled propositions of law on the subject, minor discrepancies not going to the root of the case, do not affect and are not fatal to the prosecution's case. Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai V. State of Gujarat (AIR 1983 SC 753) considered the defence Sessions Case No. 56107/16 Page 32/58 argument about discrepancies in the evidence and observed as under:
"5............Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental facilities therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect Sessions Case No. 56107/16 Page 33/58 people to make very precise or reliable estimate in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-
Perhaps it is a sort of a psychological defence mechanism activated on the spur of moment".
31. In view of above-mentioned law laid down by the Apex Court, by no stretch of imagination such contradiction can be held as going to the root Sessions Case No. 56107/16 Page 34/58 of the prosecution case so as to discard the entire testimonies of the witnesses.
32. In view of the testimonies of afore- mentioned prosecution witnesses, it is evident that all the three accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan were arrested on 06.01.2012 from infront of godown of Munna Lal situated in Mundka Industrial Area. The prosecution therefore, also established circumstance no. (iv) beyond reasonable doubt.
(C). Recovery of dead body and 60 oil drums
33. On scrutiny of testimonies of SI Dinesh (PW-
15), HC Satyawan (PW-14), Ct. Neeraj Kumar (PW-18), HC Mahender Singh (PW-19), Raj Nath Yadav (PW-4) Rajesh Garg (PW-6) and ACP Ramesh Chander (PW-23), it is revealed that pursuant to the disclouser statements Ex.PW-14/G, Ex.PW-14/G and Ex.PW-14/I, accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan led the police party to a septic tank situated in the same gali in which godown of PW-6 was situated. PW-23 peeped into the hole of the said septic tank to find dead body of a male person Sessions Case No. 56107/16 Page 35/58 inside the said tank which was about 15 feet deep. One JCB machine was called at the said spot and the concrete cover (slab) of the septic tank was got removed through the said JCB machine and a decomposed dead body of a male was taken out of the said septic tank. The said dead body was duly identified by both PW-4 and PW-6 to be of the deceased.
34. In their respective cross-examination, all the above-mentioned prosecution witnesses deposed consistently with regard to recovery of decomposed dead body of the deceased from inside the septic tank at the instance of the accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan. Such recovery of the dead body at the instance of the said accused persons is covered within the definition of "fact discovered" so as to come within the purview of section 27 of the Evidence Act and is a relevant fact. No contradiction worth the name of it could be brought in the testimonies of afore-mentioned prosecution witnesses by the learned defence counsel in this regard.
Sessions Case No. 56107/16 Page 36/5835. As far as the submission of learned defence counsel that the owner of the plot where the said septic tank was situated and the JCB operator were not made a witness in the present case, is concerned, in view of unrebutted testimonies of prosecution witnesses, this submission does not hold much ground. With regard to discrepancies in evidence and lapses in investigation, Hon'ble Supreme court in its judgment titled as Yogesh Singh v. Mahabeer Singh & Anrs AIR 2016 SC 5160 laid down that if the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. Further, it needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradiction, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The Apex Court, relying upon C. Muniappan & Ors v. State of Tamilnadu AIR 2010 SC 3718 further laid down that there may be highly defective investigation in a case. However, it is to be examined as to whether there is Sessions Case No. 56107/16 Page 37/58 any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. Further, where there has been negligence on the part of the investigating agency or omissions etc which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth.
36. In view of the above-mentioned settled propositions of law regarding contradictions in testimonies of prosecution witnesses and defective investigation, I do not find any merit in the contentions of the learned counsel for the accused persons. The contradiction brought forth in the testimonies of prosecution witnesses are minor contradictions which do not go to the root of the prosecution case. Such contradictions in the testimonies of the prosecution witnesses are but Sessions Case No. 56107/16 Page 38/58 natural, which may creep in when the prosecution witnesses are examined after a gap of time.
37. Even otherwise, HC Devender Kumar (PW-
12) proved the photographs Ex.PW-12/A25 to Ex.PW-12/A48 with their negatives Ex.PW-12/A1 to Ex.PW-12/A24 wherein a JCB machine is clearly visible in use while breaking the concrete cover (slab) of the said septic tank and thereby leaving no room to raise any doubt in this regard. Needless to say, the presence of PW-4 and PW-6 during proceedings of recovery of dead body of the deceased from inside the septic tank, at the instance of the said accused persons, also lend credence to the testimonies of other police witnesses.
38. During the course of arguments, learned defence counsel also submitted that if the JCB machine was used to lift the concrete cover (slab) of the septic tank, it was not possible for the accused persons to lift the same and to throw the dead body inside it. He further argued that as per the prosecution version, all the said three accused persons got the dead body recovered jointly which is not permissible in law. I do not find any merit in such contentions. As is clear from the photographs Sessions Case No. 56107/16 Page 39/58 Ex.PW-12/A25 to Ex.PW-12/A48, that there were two big open spaces in the slab of the spetic tank which usually are covered separately. PW-23 had peeped inside the tank from such open space. PW- 14 and PW-15 also categorically deposed about the hole/space in the cemented cover of the septic tank and it can be easily inferred that the dead body, in all probability, would have been thrown through such open space/hole, inside the tank. The broken ribs of the dead body, observed vide postmortem examination report Ex.PW-1/A further strengthen this. With regard to joint recoveries, Learned prosecutor also pertinently relied upon Kishore Bhadke (supra) case wherein it was held in categorical terms that joint recovery at the instance of two or more accused persons is admissible in evidence. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600, the law laid down regarding joint recoveries is relevant to be referred which is as under:
"Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single Sessions Case No. 56107/16 Page 40/58 person, but it could be plurality of accused. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27."
39. With regard to the recovery of 60 drums containing transformer oil which were kept in a plot situated in the street adjoining Ranbir Dharam Kanta at the instance of said accused persons, the Sessions Case No. 56107/16 Page 41/58 testimonies of afore-mentioned prosecution witnesses except HC Mahender Singh (PW-19) and Raj Nath Yadav (PW-4), could not be impeached in any material terms. Both PW-4 and PW-19 are not a witness of such recovery. Rajesh Garg (PW-6) also witnessed the seizure memo Ex.PW-6/G whereby the said drums were seized. PW-6 identified those drums vide photographs Ex.P1, Ex.P2 and Ex.P3. PW-6 had also handed over the bill/invoice Ex.PW-6/J of the transformer oil which were seized vide seizure memo Ex.PW-6/H.
40. With regard to the judgments relied on by the learned defence counsel, it suffice to say that all the judgments reiterate the already settled propositions of law regarding essentials to be looked for in a case based on circumstantial evidence which were laid down by the Apex Court in its celebrated judgment Sharad Biridhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 (1).
41. In the above-discussed circumstances, it is evident that the prosecution successfully proved the circumstance no. (v) and (vi) beyond reasonable doubt.
Sessions Case No. 56107/16 Page 42/58(D). Possession of 60 oil drums with accused Birja.
42. In order to prove the circumstance that accused Birja had purchased 60 oil drums from the accused persons and kept the same at the plot from where the said drums were recovered at the instance of accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan, the prosecution got examined Omvir Lakra (PW-8) who deposed that accused Birja had approached him for taking his plot no.4 situated in Khasra no. 752/2 Mundka on rent which he had rented out to accused Birja on a monthly rent of Rs. 4000/-. Besides the oral testimony of PW-8, there is no other evidence available on record to show if the said plot was owned by PW-8 or was indeed rented out by him to accused Birja. In cross-examination, PW-8 admitted that he was not having any documentary proof regarding such tenancy. PW-8 had also not informed to the police when enquiries were made from him that accused Birja was his tenant. PW-8 had never issued any rent receipt to accused Birja.
Sessions Case No. 56107/16 Page 43/5843. From the testimony of PW-8, it is not clear what was the duration of such tenancy or if there was any written or even oral agreement qua such tenancy. PW-8 did not depose for what purpose accused Birja had taken the said plot on rent.
44. In the given circumstances, in my considered opinion, there is no legally admissible evidence available on record to establish that the plot from where the said 60 oil drums were recovered, was under the tenancy of accused Birja. Admittedly, accused Birja was not arrested from the said plot at the time of recovery of oil drums. In these circumstances, it is clear that the prosecution could not establish the circumstance no. (vii) that accused Birja had purchased the said oil drums from the accused persons and had kept them in the said plot.
45. During arguments, another contention made by the learned defence counsel was that in all cases of circumstantial evidence, the "last seen" evidence assumes significance which is lacking in the present case and, therefore, the prosecution story is not worth believable. I do not find any force or merit in the contention of learned defence counsel. The law is settled that "last seen" evidence is but Sessions Case No. 56107/16 Page 44/58 one circumstance in a case based on circumstantial evidence and the absence of "last seen" evidence does not make the case of the prosecution weak so as to absolve the accused persons. In Pradeep @ Sanjay (supra) case relied upon by the learned Prosecutor, it was also held that in cases based on circumstantial evidence, conviction can be sustained even in the absence of such "last seen"
evidence.
46. To sum up, in view of the above discussion, following circumstances have been proved by the prosecution beyond reasonable doubt:
(i). Deceased was employed as a security guard at the godown of the complainant situated in Marwari Tyre Wali Gali, behind Metro yard, Mundka, Delhi.
(ii). In the intervening night of 22/23.12.2011, 60 drums containing transformer oil, stored at the said godown, were stolen.
(iii). The deceased was found missing from the said godown.
(iv). On 06.01.2012, three accused persons namely, Harender Passi, Hari Pal Sessions Case No. 56107/16 Page 45/58 Singh and Sugreev Paswan were arrested on the basis of secret information.
(v). The dead body of the deceased was recovered at the instance of the said accused persons from inside a septic tank in a plot situated near the said godown.
(vi). The stolen 60 drums containing transformer oil were recovered at the instance of the said accused persons which were kept in a plot.
47. However, the prosecution could not establish the circumstance that the 60 drums containing transformer oil were purchased by accused Birja from the accused persons who had retained them in the said plot.
Motive:
48. From the scrutiny of entire material available on record, it is also evident that the prosecution successfully proved the motive on the part of accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan i.e. committing robbery of drums containing transformer oil from the godown of Rajesh Garg (PW-6). At the instance of Sessions Case No. 56107/16 Page 46/58 said accused persons, 60 drums containing transformer oil were also recovered which further strengthen the prosecution version.
49. Let us now discuss the essential ingredients of offences with which the accused persons have been charged with vis a vis the circumstances proved on record.
Section 302/34 IPC:
50. The substantive offence which the accused persons have been charged with are referred as under:
302.Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
51. The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or -
Sessions Case No. 56107/16 Page 47/58Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
52. Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299.Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
53. In the present case, accused persons namely, Harender Passi, Hari Pal Singh, Sugreev Paswan, Vinod and Manoj have been charged with commission of offence punishable under section 302/34 IPC. In the light of above-discussed facts and circumstances, it is evident that the prosecution Sessions Case No. 56107/16 Page 48/58 could successfully prove all the circumstances against accused Harender Passi, Hari Pal Singh and Sugreev Paswan only. There is no legally admissible evidence available on record to connect accused Vinod and accused Manoj with the commission of offence u/s 302 IPC. As per record, after their respective surrender before the court, accused Vinod and Manoj were interrogated and disclouser statement Ex.PW-23/H of accused Vinod only was recorded. IO had also prepared the pointing out memo Ex.PW-23/J, Ex.PW-23/K and Ex.PW-23/L at the instance of accused Vinod. Needless to say such disclouser statement and pointing out memos in respect of accused Vinod are not admissible in evidence being hit by section 162 Cr.P.C. Besides, the said disclouser statement and pointing out memos, no other evidence is available on record against accused persons namely, Vinod and Manoj to indicate their involvement in commission of murder of the deceased. Even the disclouser statement of accused Manoj was not revealed by the IO.
54. As far as the involvement of accused Harender Passi, Hari Pal Singh and Sugreev Sessions Case No. 56107/16 Page 49/58 Paswan in commission of murder of the deceased is concerned, all the circumstances sought to be proved by the prosecution against them have been proved beyond reasonable doubt which also make the chain of circumstances complete. None of the accused persons led any evidence in their respective defence so as to infer otherwise. Accordingly, accused Harender Passi, Hari Pal Singh and Sugreev are held guilty for commission of offence of murder of the deceased in furtherance of their common intention which is punishable under section 302 read with section 34 IPC. Accused Vinod and Manoj are acquitted of the charge for the offence punishable under section 302/34 IPC.
Section 201/34 IPC:
201. Causing disappearance of evidence of offence, or giving false information to screen offender - Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;Sessions Case No. 56107/16 Page 50/58
if a capital offence. - shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years , and shall also be liable to fine;
55. In view of above-discussed facts and circumstances, accused Harender Passi, Hari Pal Singh and Sugreev Paswan are also held guilty for causing disappearance of evidence of offence in order to screen themselves from legal punishment as the prosecution successfully proved that all the above-said three accused persons, after committing murder of the deceased, in furtherance of their common intention, had thrown the dead body into a septic tank which could not have been discovered but for the information provided by all the three accused persons. As discussed above, discovery of dead body of the deceased from inside the septic tank, pursuant to their disclouser statements is relevant under section 27 of the Evidence Act. Accused persons Vinod and Manoj could not be connected even with the discovery of dead body of the deceased in any manner. Accordingly, accused Sessions Case No. 56107/16 Page 51/58 persons Harender Passi, Hari Pal Singh and Sugreev Paswan are held guilty for commission of offence punishable under section 201 para 1 read with section 34 IPC. Accused Vinod and Manoj are acquitted of the charge for the offence punishable under section 201/34 IPC.
Section 395 and section 396 IPC:
56. Accused persons namely, Harender Passi, Hari Pal Singh, Sugreev Paswan, Vinod and Manoj were also charged with commission of offence punishable under section 395 and 396 IPC, which are reproduced as under:
395. Punishment for dacoity -
Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder - If anyone of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, everyone of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may Sessions Case No. 56107/16 Page 52/58 extend to ten years, and shall also be liable to fine.
57. The definition of dacoity as stipulated under section 391 IPC is relevant to be referred here which is as under:
391. Dacoity - When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
58. It is thus, clear that for commission of dacoity, there must be five or more persons involved in commission of offence. In the light of above-discussed circumstances, it is clear that the prosecution could not establish that five or more accused persons were involved in commission of murder of the deceased. As observed above, there is no evidence available on record to connect the accused persons namely, Vinod and Manoj with commission of any offence in the present case.
Sessions Case No. 56107/16 Page 53/58Therefore, in my considered opinion, commission of offence under section 395 IPC or under section 396 IPC is not made out in the present case.
59. However, at this juncture, it is useful to refer to the definition of Robbery as stipulated under section 390 IPC. Section 390 and section 392 IPC are reproduced here under:
390. Robbery - In all robbery there is either theft or extortion.
When theft is robbery- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery -
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Explanation-xxxxxxxxxxxxxxxxxxxxxxx
392. Punishment for robbery - Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between Sessions Case No. 56107/16 Page 54/58 sunset and sunrise, the imprisonment may be extended to fourteen years.
60. Taking the entire facts and circumstances into consideration where the prosecution could not prove the involvement of accused persons namely, Vinod and Manoj in the present case, in my considered opinion, accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan can be held accountable for committing robbery of the 60 drums containing transformer oil belonging to Rajesh Garg (PW-6), which were also recovered at the instance of said accused persons. Hence, accused persons namely, Harender Passi, Hari Pal Singh and Sugreev Paswan are held guilty for commission of offence punishable under section 392 IPC. Accused persons namely, Vinod and Manoj stand acquitted of the charge for the offence punishable under section 395 and 396 IPC.
Section 412 IPC:
61. Accused Birja only was charged for commission of offence punishable under section 412 IPC in the case in hand which is reproduced as under:Sessions Case No. 56107/16 Page 55/58
412. Dishonestly receiving property stolen in the commission of a dacoity -
Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall be liable to fine.
62. As per the settled propositions of law, the essential ingredients for commission of offence under section 412 IPC are that the person dishonestly receives or retains any stolen property, he knows or has reason to believe that the possession of such stolen property have been transferred by the commission of dacoity or he dishonestly receives such property from a person whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits.
63. As discussed above, the prosecution miserably failed to prove circumstance no. (vii) Sessions Case No. 56107/16 Page 56/58 regarding purchase and possession of 60 oil drums by accused Birja. The prosecution could not establish that it was accused Birja who had retained 60 oil drums which were recovered from a vacant plot at the instance of accused Harender Passi, Hari Pal Singh and Sugreev Paswan. There is no evidence available on record to indicate towards any knowledge on the part of accused Birja that said 60 drums containing transformer oil were transferred by the commission of dacoity or accused Birja received the said drums from any person who belonged to a gang of dacoits. There is practically nil evidence to hold accused Birja guilty for commission of offence under section 412 IPC. In fact the prosecution could not lead sufficient evidence to hold accused Birja guilty even for commission of offence under section 411 IPC. Accordingly, accused Birja is acquitted of the charge for the offence punishable under section 412 IPC.
64. The points for determination no. 4 to 9 are decided accordingly.
Sessions Case No. 56107/16 Page 57/58Conclusion:
65. The upshot of the entire discussion is that accused persons namely, Harender Passi s/o Ram Kishan, Hari Pal Singh s/o Laxmi Singh and Sugreev Paswan s/o Ram Mangal Pawan are held guilty for commission of offences punishable under section 302, 201 para 1 and section 392 read with section 34 IPC and are hereby convicted.
66. Accused Vinod s/o Ram Nath and Manoj s/o Ram Pyare are acquitted of the charge for the offences punishable under section 302, 201, 395 and 396 read with section 34 IPC.
67. Accused Birja s/o Ram Lakhan is acquitted of the charge for the offence punishable under section 412 IPC.
68. Let the convicts namely, Harender Passi, Hari Pal Singh and Sugreev Paswan be heard on the quantum of sentence.
Digitally signed by KULDEEP NARAYANKULDEEP Date:
NARAYAN 2018.03.27 15:33:42 +0530 (Pronounced in the open (Kuldeep Narayan) Court on 27.03.2018 ). Addl. Sessions Judge (Pilot Court) West : Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 56107/16 Page 58/58