Delhi District Court
State vs . Dharmender Pandey 1 Of 32 on 14 March, 2013
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.19/2013
FIR No.352/2008
PS Alipur
State
Vs.
Dharmender Pandey @ Chanchal,
S/o Hari Shankar Pandey,
R/o Village Palti Ka Poorva,
PO Jhingpur, PS Mahesh Ganj,
District Pratapgarh, U.P.
Date of institution :17.07.2009
Date when arguments concluded:28.02.2013
Date when Judgment pronounced:08.03.2013
Appearances: Ms. Purnima Gupta, APP for the State.
Mr. Pradeep Rana, Counsel for accused.
JUDGMENT
1. The accused has been forwarded by the police to face trial u/s 302 IPC.
State vs. Dharmender Pandey 1 of 32
2. Facts of the case are that there are two godowns of Hyundai Company in Jindpur, Delhi merely at a distance of about 200 meters but opposite to each other across the road. Shakti Singh complainant was a security guard in one showroom and Prem was a security guard in other showroom. One Dharmender Pandey was Incharge of both godowns for day and night and he used to reside in a room in the showroom but he was addicted to drinking and other vices. Due to these complainant he was removed from night Inchargeship and was replaced by Sunil Kumar. Dharmender Pandey was asked to vacate the room and so, he had to take a room on rent in village Mukhmelpur. He was harboring a grudge against Sunil Kumar thinking that complaints against him were made to Hyndai Management by Sunil Kumar. On 5.12.2008, as usual, Shakti Singh and Prem joined their duty at 7.45 P.M After some time, Dharmender Pandey came there in an inebriated condition and started taking drinks in the office and asked Shakti Singh to join but he refused. Shakti asked Dharmender to leave the office but he was waiting for Sunil Kumar. He asked Shakti Singh to make a call to Sunil Kumar to come speedily to the office, and hence, guard Shakti Singh asked State vs. Dharmender Pandey 2 of 32 Sunil Kumar to come early. After making telephone call, both came to the showroom and started waiting Sunil. Sunil Kumar came at 10.00 P.M. and blew horn. The main gate was opened by Shakti Singh and Sunil Kumar parked the bike inside the showroom. The usual practice was to lock the main gate from inside and its key would be handed over to Prem. So, after closing the main door and locking it, Shakti Singh went to other showroom to give key to Prem. When Shakti was with Prem, he heard the cries of Sunil Kumar and when he reached there running, he saw Sunil Kumar lying on the ground gasping and yearning for life. Blood was oozing from his head and Dharmender Pandey was standing near him with an iron oil dispenser. He placed the oil dispenser on the side after seeing the complainant. In the meantime Prem, i.e. Security Guard/Chowkidar of the other Hyndai godown also came. In the presence of both Security Guards, accused Dharmender Pandey confessed that he had committed a blunder by murdering Sunil Kumar and sought mercy from them saying that he had very little children. They raised noise and pushed Dharmender Pandey inside the showroom. When several persons assembled there, Dharmender Pandey took to State vs. Dharmender Pandey 3 of 32 heels. Police was informed by Shakti Singh by using the telephone of Prem. FIR was registered and investigation was handed over to Insp. Mahender Pal.
3. Charge u/s 302 IPC was framed against accused on 05.12.2009 to which he claimed trial.
4. In order to establish the murder charge, prosecution examined 20 witnesses. In defence, only accused dared to appear in the witness box.
5. PW1 Shakti Singh complainant is witness to motive, last seen, extra judicial confession and recovery of articles from the spot. He admitted that police recorded his statement Ex.PW1/A. He deposed that police seized blood gauze (cotton), two plastic chairs, motorcycle of the deceased, blood of the deceased, blood stained piece of cloth lying on the dead body, earth control, iron oil dispenser, a pair of gloves of the deceased vide memos Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E, Ex.PW1/F, Ex.PW1/G, Ex.PW1/H and Ex.PW1/J respectively. He is also witness to the seizure of PCO receipt Ex.PW1/L vide Memo Ex.PW1/K. It is pertinent to mention that that receipt was generated by a computer kept in PCO when Shakti Singh had called Sunil Kumar at the State vs. Dharmender Pandey 4 of 32 instance of accused, to come as soon as possible. He identified the blood stained iron oil dispenser as Ex.P1, Chairs as Ex.P2 and Ex.P3, blood stained cemented earth as Ex.P6, cemented earth control as Ex.P7 and gloves of deceased as PX3.
PW2 Mr. Vipin Sharma is Manager(HR) in Himgiri Motors. He proved motive and attendance sheet Ex.PW2/A of deceased dated 05.12.2008 at serial No.81. He also proved the attendance sheet Ex.PW2/B of accused dated 05.12.2008 at serial No.73. Regarding motive, he deposed that deceased Sunil Kumar made complaints to management against accused Dharmender Pandey in his presence and due to that reason, the accused was removed from the post of night Inchargeship and was replaced by the deceased and was also directed to vacate the room. PW3 Mr. Vijay Bahadur and PW4 Uday Bhan, being the father and brother of the deceased, identified his dead body. PW5 Prem Kumar is the other security man and is witness to the extra judicial confession, abscondance of the accused and recovery from the spot. He deposed that he did not see any other person except PW1, accused and deceased in the godown. PW6 Mr. Gaurav Gupta is the Area Security Officer in 24 Guarding Private Ltd. It is pertinent to State vs. Dharmender Pandey 5 of 32 mention that PW1 and PW5 are employed with 24 Guarding Pvt. Ltd. and were deployed at two Hyundai showrooms at Jindpur. He deposed that both these persons were on night duty from 8.00 P.M. to 8.00 A.M. in the night intervening 5th & 6th December, 2008 at Himgiri Hyundai, village Jindpur. He proved their attendance register as Mark PW6/A running into three pages. The original attendance sheet could not be proved as it was mutilated due to rain. PW7 SI Sanjay Gade was the Incharge of the Crime Team who inspected the spot between 11.50 P.M. to 1.10 A.M. in the night of the incident. Name of Shakti Singh, Security Guard is mentioned as complainant in column No.4 in report Ex.PW7/A. PW8 Mahender Singh was MHCM in PS Alipur on 06.12.2008. On that day, Insp. Mahender Pal Singh deposited seven pullandas having seal of MIK and one motorcycle No.DL4SBJ8665 and he made entry Ex.PW8/A in register No.19. Again, on 16.12.2008, Inspector deposited one pullanda with same seal with PW8 who made entry Ex.PW8/B. Three pullandas having seal of KG, BJRM hospital mortuary and one sample seal of KJ, BJRM hospital mortuary were deposited by Inspector with him on 18.12.2008 and he made entry Ex.PW8/C. PW8 himself deposited eleven sealed State vs. Dharmender Pandey 6 of 32 pullandas and one sample seal with FSL on 28.01.2009 vide RC Ex.PW8/D and after deposit, deposited acknowledgment Ex.PW8/E in the malkhana. He did not tamper with the case property till it remained in his possession. PW9 SI Mohd. Ismile received DD No.30 Ex.PW9/A on 05.12.2008 at 10.30 P.M. regarding quarrel near Hyundai godown, Jindpur and he went to spot with Ct. Ashok Kumar where he found dead body of Sunil Kumar lying on the ground inside the boundary wall, in a pool of blood. The CAT's ambulance also came to the spot and on inspection, declared Sunil dead. First IO Surender Sand recorded statement of complainant in his presence and after making endorsement sent it to PS through HC Jaipal for FIR. He further deposed that after registration of FIR, investigation was handed over to Insp. Mahender Pal who took articles lying on the spot vide memos Ex.PW1/B to Ex.PW1/J. After going through the photographs Mark PW9/A1 to PW9/A9, Mohd. Ismile stated that they were of the dead body which was lying on the spot. PW10 SI Mahesh Kumar prepared the scaled site plan Ex.PW10/A on 08.12.2008 on the pointing out of complainant Shakti Singh. PW11 Dr. K. Goel conducted postmortem on 07.12.2008 and prepared report at 11.00 A.M. On State vs. Dharmender Pandey 7 of 32 external examination, he found following injuries: i. laceration 4.5x1.75 cms. over right side forehead with depressed deformity underlying and margins were crushed and contused.
ii. Laceration 3x1.25 cms. with crushed margins over right parieto temporal region with depressed deformity.
iii. Laceration 1.5x0.5 cms. over right upper eye lid. iv. Fracture nasal bone, maxilla bone on the right side and mandible on both sides.
v. Laceration 2x0.5 cms. over left side chin.
vi. Multiple contused abrasions with scratches scattered over forehead, right cheek, nose, between left eye and left ear, chin and below left ear.
vii.Abrasion 3x2 cms. over lower back of left forearm and 3x1 cms. over lower lateral aspect of right forearm.
The doctor deposed that on internal examination, he found sub scalp bruising with hematoma over right fronto parieto temporal and occipital regions. Depressed communitted fracture State vs. Dharmender Pandey 8 of 32 right fronto parieto temporal bones into pieces with gapping fracture lying running to right occipital and to left occipital bones. Fracture base of skull anterior and middle cranial fossae. Meninges and brain matter were torn and lacerated at right fronto parieto temporal lobes with blood and clots. Blood and clots present over base at anterior and middle fossae. The doctor opined all injuries as antemortem in nature. Regarding weapon of offence, he stated that injuries Nos.1 & 2 were possible by hard heavy blunt object. Injury Nos.3 & 4 were caused by blunt force impacts. Cause of death was cranio cerebral damage. Injury Nos. 1 & 2 were sufficient to cause death in the ordinary course of nature individually or collectively. Time since death was 3637 hours. Clothes, scalp hair and blood sample of the deceased were preserved, sealed and handed over to the police and postmortem report Ex.PW11/A was prepared. PW12 Ct. Gangadhar, being a special messenger, delivered copies of FIR to area M.M. and senior police officers on the night of 06.12.2008 itself. PW13 HC Yudhvir Singh is witness to disclosure statement, consequent recovery of pant and shirt of the accused and pointing out of the place of murder vide memos Ex.PW13/A, Ex.PW13/B and Ex.PW13/C State vs. Dharmender Pandey 9 of 32 respectively, all dated 16.12.2008. PW14 Insp. Mahender Pal picked up investigation after registration of FIR. Additional facts stated by him are that after postmortem, the doctor handed him over three sealed pullandas and a sample seal which were seized vide memo Ex.PW14/G. Before it, he had prepared rough site plan Ex.PW14/B at the instance of complainant. He sent ASI Shamim Khan to the native village of accused to arrest him but he returned empty handed on 09.12.2008 saying that the accused was not found in his village. Then, he sent a request letter to S.S.P., Pratapgarh i.e. the District of the accused for arresting him. He searched the accused at various places like Hyundai Motors, Wazirpur, Jhingpur village and other places but all efforts to nab Dharmender Pandey fizzled out. Due to pressure mounted by the police, accused surrendered in Court on 15.12.2008 and IO moved an application for interrogation which was allowed happily by the Court. After interrogation, he was arrested vide arrest memo Ex.PW15/A and personal search memo Ex.PW15/B. He was taken on two days' police custody and made disclosure statement Ex.PW13/A. He led the police party to his rented room and got recovered his blood stained shirt and pant having label of Khan State vs. Dharmender Pandey 10 of 32 Tailor, Alipur. These were seized vide memo Ex.PW13/B. These have been identified by PW14 as Ex.X1 and Ex.X2. PW15 SI Bharat Bhushan is witness to the arrest of accused. PW16 HC Ram Karan registered FIR Ex.PW16/A on 06.12.2008 on receipt of rukka brought by HC Jaipal sent by SHO, Surender Singh. Then, he made endorsement Ex.PW16/B and registered DD No.3A Ex.PW16/C regarding the factum of completion of registration of FIR. Before that, he had registered DD No.30A Ex.PW9/A regarding a PCR call that there was a quarrel in village Jindpur near Hyundai godown and that injured was serious. PW17 SHO Surender Singh Sand reached the spot following the PW9 Mohd. Ismile, recorded statement Ex.PW1/A of the complainant, made endorsement Ex.PW17/A on that statement and sent Tehrir to PS through HC Jaipal for FIR. PW18 Mohd.Idris was running that PCO in the vicinity of Hyundai showrooms. He deposed that police had visited that PCO on 06.12.2008 and had taken into possession phone bill Ex.PW1/K vide memo Ex.PW1/L. PW19 Mr. Naresh Kumar, Sr. Scientific Officer, FSL, Delhi proved biological report as Ex.PW19/A and serological report as Ex.PW19/B. PW20 lady Ct. Neelam was posted at CPCR, PHQ, ITO, Delhi in the night State vs. Dharmender Pandey 11 of 32 intervening 5th & 6th December, 2008 as Channel Operator who used to attend the calls received at 100 number. At 10.30 P.M., she received a call to the effect that a quarrel had taken place in village Jindpur, near Hyundai car godown and near Gupta Dharam Kanta on the road and injured was in serious condition. She filled up the form Mark PW14/A and transmitted the call to the concerned network of the District.
As per biological report Ex.PW19/A, cemented earth,, oil dispenser, pair of gloves, handkerchief, vest, sweater, shirt, thermal wear and pant of the deceased were found stained with the blood. The same report says that pant and shirt Ex.X1 and Ex.X2 of the accused were also found stained with blood. As per serological report Ex.PW19/B, chair, oil dispenser and clothes of the deceased were found stained with the blood Group 'A'. Blood stained gauze i.e. blood sample of the deceased taken by doctor in the hospital was also found of 'A' group. It means that blood group of the deceased was 'A'. Cause of worry for the accused is that his pant and shirt were also found stained with blood group 'A'.
6. The accused admitted u/s 313 Cr.P.C that PW1 and PW5 were on night duty from 8.00 P.M. to 8.00 A.M. on State vs. Dharmender Pandey 12 of 32 05.12.2008 and that they were employees of 24 Security Guarding Private Limited, Rohini. He also admitted that Hyundai company has two godowns by the name of Himgiri Motors in village Jindpur, opposite to each other across the road. In answer to Question No.6, he admitted that in the night intervening 5th and 6th December, 2008, he was on duty vide duty register Ex.PW2/B and his name is figuring at serial No.73. He admitted arrest vide arrest memo Ex.PW15/A and personal search memo Ex.PW15/B. Lastly, he stated that he has been falsely implicated in this case.
7. The accused appeared as a defence witness u/s 315 Cr.PC as DW1 and deposed that on 05.12.2008, he was on a day shift as a security guard n Himgiri Motors and night shift was to be done by deceased Sunil Kumars. His duty came to end at 8.00 P.M. but till then, Sunil Kumar had not arrived. PW1 Shakti Singh suggested him at 9.00 P.M. to make a telephone call to deceased for his arrival and on such call, Sunil told that he would be arriving soon. He came to the godown at 10.00 P.M., and thereafter, PW1 went to PW5 to handover keys of the godown and accused went inside the office to change clothes. At that moment, he heard some noise and saw threefour persons beating Sunil Kumar and one of State vs. Dharmender Pandey 13 of 32 them had an oil pump in hand. These persons were wearing monkey caps and when he made noise, these unknown persons inched towards him and so, he ran towards the main gate in fear to save himself. He went to other godown where PW1 and PW5 were present and apprised them of the incident. At that time, he was in grip of fear and trauma. Prem and Shakti Singh called chowkidars of nearby factories as it was risky to go inside the godown. They all went into the godown and saw some movement(Halchal) towards the shorter wall as there were some persons towards that side. Prem Kumar made a call to the police which reached the spot. He claimed that all persons available in the godown including him were interrogated by police till 2.003.00 A.M., and thereafter, they were set at liberty. He left for native place next day as his Gauna ceremony was already scheduled. During stay in the village, he came to know that he had been falsely implicated in this case and so, he immediately surrendered before the Court of Metropolitan Magistrate. He deposed that after securing his custody, police obtained his signatures on some papers and planted some clothes upon him despite the fact that they did not belong to him.
State vs. Dharmender Pandey 14 of 32
8. Ld. APP argued that prosecution has established motive, last seen, extra judicial confession, abscondance of accused. She submitted that pant and shirt of accused were found stained with blood group `A' of the deceased. On the other hand, the defence counsel argued that prosecution has failed to establish even a single circumstance.
9. MOTIVE The defence counsel argued that motive was to be proved by PW1 and PW5 and both have been declared hostile and so, motive remained unproved. It is correct that PW5 did not mince a single word which may suggest that it was related to a motive. But, PW1 Shakti Singh deposed in examination in chief that when he joined the duty at the godown of Hyundai Motors, accused was Incharge and he used to stay in a room situated in godown itself. About twothree days prior to the incident, deceased was deputed as night Incharge in place of the accused and room which was earlier allotted to accused was later allotted to the deceased and accused had to take a rental accommodation in a nearby village. After going through this evidence, no person of reasonable prudence can say that PW1 is hostile in respect of motive. Moreover, there is State vs. Dharmender Pandey 15 of 32 another witness PW2 Mr. Vipin Sharma who spoke volumes about the motive. He deposed that when he joined Hyundai Himgiri Motors, accused was Incharge of two godowns and a room in the godown was provided to him for residence purpose. That room was got vacated by the management and was allotted to deceased. He further deposed that deceased had made complaint against accused that he was in the habit of consuming liquor during duty hours and also used to take vehicles of the company for personal purpose for which he was not authorized. On these complaints, the management directed deceased to keep a strict vigil on the activities of the accused. In cross examination by APP, he admitted it correct that initially accused was the day and night Incharge of the godown but after receipt of complaints, the accused remained only day Incharge and night Inchargeship was handed over to deceased and so, room in the godown was got vacated and was allotted to the deceased. In cross examination, PW2 admitted that accused was never issued any show cause notice, memo or warning in regard to complaint against him by the deceased. It is a matter of common knowledge that no such show cause notice etc. are issued in a private company and the defaulting party is shown the State vs. Dharmender Pandey 16 of 32 door straightway and in the same way, the accused was stripped of night inchargeship. After going through the evidence of PW1 and PW2, the reasonable conclusion is that motive has been proved to the hilt.
10. LAST SEEN PW6 Gaurav Gupta is the Area Security Officer of Twenty Four Guarding Private Limited. He deposed that PW1 and PW5 were working as security guards in his company at the car godown of Himgiri Motors, Jindpur and both guards were on duty in those showrooms in the night intervening 5th & 6th December, 2008 from 8.00 P.M. to 8.00 A.M. He proved the attendance sheet as Ex.PW6/A. This attendance sheet is bearing the signature of both material witnesses. The original of this attendance sheet could not be produced because it was mutilated due to rain. Moreover, presence of PW1 and PW5 in those two showrooms on the night of incident has been admitted by accused u/s 313 and 315 Cr.PC PW2 proved the presence of accused and deceased in the said godown on the day of the incident. The relevant entry regarding deceased is Ex.PW2/A and his name is appearing at serial No.81 and in the same way, the name of the accused is State vs. Dharmender Pandey 17 of 32 appearing at serial No.73 of attendance sheet Ex.PW2/B. Presence of the accused and deceased at that place has not been doubted even by the accused. But case of the accused has been spelled out in cross examination at page No.3 of PW1 in which he deposed that both godowns were in a factory area. He stated on oath that in the godown where Sunil Kumar was murdered, there was Halchal of some persons across the shorter wall and the oil dispenser was also found lying near the drum where it used to be kept usually. He further deposed that accused pointed out towards the shorter wall saying "Chacha, mere chhotechhote bachche hai, mujhe bacha lo" and on his pointing out, they went towards that side. PW1 did not depose what did they saw towards the shorter wall on the pointing out of the accused. DW1 deposed that he went in the office to change clothes after arrival of the deceased and when he came out of the office, he saw threefour unknown persons wearing monkey caps beating Sunil Kumar and when he made noise, those persons started moving towards him and so, he ran towards the other godown where he found PW1 and PW5 and brought them to the main godown. PW5 deposed that he did not see anybody else than the accused and deceased in the said godown. PW1 also did not State vs. Dharmender Pandey 18 of 32 depose specifically about the presence of third person in the godown. He merely deposed that he had seen some activities on the shorter wall side. So, version of PW1 and DW1 is that the side wall of the godown was shorter one and both explored possibility that real culprits might have scaled down that wall and killed Sunil Kumar but they are not supported by scaled site plan. Place of murder is a service shed of vehicles having length as 830cms. = 27.6 ft. Though roof of tin can be fixed by placing tin sheets on two opposite walls keeping the height of side wall low. But, that cannot be work for long as it can be easily flown by strong wind coming from the side of shorter wall. No owner of new branded cars shall expose his stock to such unwanted situation. For the sake of argument, if it is presumed that height of the side wall was low, even then, it was very difficult for a trespasser to scale down chardiwari because its height, as per scaled site plan, is 550 cms. = 18.3 ft. Scaled site plan Ex.PW10/A shows only two gates for ingress and egress - small and main. Main gate was locked by PW1 from the inside and small gate was latched by him from outside when he went to PW5 to handover the key as per usual practice. So, only entry point was the small gate of the godown.
State vs. Dharmender Pandey 19 of 32 But, the case of the accused is that real culprits had come after scaling chardiwari which is not possible.
Accused and deceased were working in the same company. If accused did not have any illwill towards the deceased, he would have tried to save him from the intruders and in that case, they would have attacked him also but as per PW1 and PW5, they did not see any injury on the person of the accused when he came to them after the murder of Sunil Kumar.
PW1 Shakti Singh deposed that deceased had come in the godown at 10.30 P.M. Then, he closed he main gate and went to PW5 to handover the keys in which hardly 1015 minutes were consumed. At that time, accused stated to him "Uncle, mujhe bacha lo". When they all went to the godown, Sunil was found dead in a pool of blood. So, as per PW1 and PW5, accused and deceased were together for fifteen minutes and during this period, Sunil was killed. Postomortem was conducted on 07.12.2008 and Report was prepared at 11.00 A.M. and it is mentioned in Postmortem Report that time since death was 3637 hours. It suggests that murder had taken place on 05.12.2008 between 10.00 - 11.00 P.M. when accused and deceased were together.
State vs. Dharmender Pandey 20 of 32
11. EXTRA JUDICIAL CONFESSION PW1 deposed in examinationinchief that when he had gone to other godown to handover key to PW5, accused came there in a very nervous state and told that "Uncle, mujhe bacha lo" and asked Prem Kumar to bring some Gutka etc. When PW1 asked him what had happened, the accused pointed out towards the godown in which PW1 was deputed and where accused and deceased were present together some time ago. Then, PW1 deposed about the extra judicial confession made by accused prior to leaving the spot, saying "Chacha, mere chhotechhote bachche hai, mujhe bacha lo". Ld. Counsel for accused argued that evidence of PW1 cannot be believed because he has contradicted himself on confession part. Such contradiction is appearing at page No.1 & 2 of the cross examination of PW1 dated 17.01.2012. But comparison of his examinationinchief and statement to police u/s 154 Cr.PC Ex.PW1/A shows that there is no contradiction in relation to the words "mujhe bacha lo". The contradiction is in relation to the place of making of such confession and in regard to the pointing out towards the godown where accused and deceased were together earlier. It is pertinent to mention that in statement State vs. Dharmender Pandey 21 of 32 Ex.PW1/A, PW1 had stated to the police that extra judicial confession was made in his godown itself but in examinationin chief, he deposed that said confession was made in the other godown i.e. in the godown where PW5 was deputed. So, it is held that there is no contradiction in respect of material issue i.e. extra judicial confession by accused before PW1.
PW5 deposed that at 10.00 P.M., PW1 came to him to handover keys of godown. At that time, Shakti Singh was alone and after two minutes, when he opened the door of the godown and came out, he saw PW1 and accused talking to each other standing on the road between both godowns. He also reached there and heard Dharmender Pandey saying and requesting Shakti Singh "mujhe bacha lo, mujhe bacha lo". Ld. Defence counsel stated that these words do not amount to extra judicial confession and were really the outcome of fear and trauma caused by the beating of Sunil Kumar by the unknown trespassers. The theory of the accused regarding assault on Sunil Kumar by threefour unknown persons has already been discarded by the Court. Such kind of words are uttered by any person either to seek help from somebody from the onslaught of assailants or to save him from the State vs. Dharmender Pandey 22 of 32 punishment after doing some wrong. So, the probable reason of uttering such words is that accused was remorseful that he had done a wrong act by killing Sunil, and thereafter, he became cognizant of the legal punishment which may be handed down to him. That is why, he said to PW1 while leaving the spot "Chacha, mujhe bacha lo, mere chhotechhote bachche hai". In other words, he was repenting after committing the murder and was begging mercy from PW1 and PW5 so that they may not disclose true facts to the police. So, extra judicial confession is duly proved.
12. ABSCONDANCE FROM SPOT PW1 deposed that he sounded alarm and knocked the doors of nearby factories for help, and thereafter, some employees of the factories came there but by that time, Dharmender Pandey had already left the spot. PW5 reposed in examinationinchief dated 28.08.2010 that Dharmender Pandey had left the spot before the arrival of the police. But, version of DW1 is that he was very much present on the spot till 2.00 - 3.00 A.M. as inquiries were being made by the police from the persons who were available there. As per PCR form Ex.PW4/A, police reached the spot at 10.55 P.M. There is no mention in PCR form State vs. Dharmender Pandey 23 of 32 and crime team report Ex.PW7/A that accused was present there. No prosecution witness stated so. No document prepared at the spot bears his signature. So, his claim that he was present on the spot till 3.00 A.M. is absolutely false.
13. ABSCONDANCE FROM HOME Murder was committed on 05.12.2008 and he surrendered in the Court on 15.12.2008 i.e. he remained at large for ten days. Defence counsel argued that the accused was not wanted in this case and police was zeroing in on PW1 and PW5 as suspect and referred to the cross examination of PW1 and PW5. PW5 deposed that he was released by the police earlier but PW1 was summoned twothree times. PW1 deposed that he was released in the evening by the police. There is not a single document on the file and there is no evidence of any prosecution or defence witness that police was suspecting PW1 and PW5 as the killers. Simply calling a witness twothree times in police station does not suggests that that person was a murder suspect. It may be possible that PW1 might have been summoned in police station in order to test the veracity of his statement Ex.PW1/A. The defence counsel went through the cross examination of PW14 dated State vs. Dharmender Pandey 24 of 32 01.11.2012 to suggest that accused was never a murder suspect. This witness deposed that he did not give any notice either to the employer or family members of the accused to produce him. He did not move any application for issuance of warrants against him. He did not make any inquiry or give any notice to the landlord of the accused to know his recent whereabouts. But, PW14 deposed in examinationinchief dated 01.10.2012 that he sent ASI Shamim Khan to the native village of accused and he returned on 09.12.2008 without Dharmender Pandey as he was not found in the village. He sent a request letter to the SSP of the District of the accused for arresting Dharmender Pandey. He searched various places like Himgiri Motors, Wazirpur, village Jindpur and other places but all efforts were in vain. As per crime team report Ex.PW7/A, the name of the complainant is Shakti Singh. As per statement Ex.PW1/A of Shakti Singh, the murder suspect was Dharmender Pandey right from day one. So, it is not correct to say that he was not wanted by police and that is why, he went to his village to attend Gauna ceremony which was prescheduled.
14. RECOVERY It is again stated at the cost of repetition that artiles like State vs. Dharmender Pandey 25 of 32 blood, two chairs, cemented earth and oil dispenser seized from the spot were found stained with blood group 'A'. Clothes of the deceased handed over to police by doctor were also found stained with blood group 'A'. The accused made disclosure statement Ex.PW13/A and got recovered his own pant and shirt vide seizure memo Ex.PW13/B on 16.12.2008. These pant and shirts were also found stained with blood group 'A'. The counsel for accused argued that no accused shall keep evidence against him alive for 1011 days as he was cognizant of the fact that police was after him. He contended that evidence of PW13 does not inspire confidence. PW13 was with IO when accused made disclosure statement and got recovered his own pant and shirt from a rented house. In cross examination, he deposed that he joined the investigation at 10.00 A.M. on 16.12.2008 but IO had told him before hand at 9.00 A.M. that he was to accompany him to village Jindpur for the recovery of pant and shirt of the accused. Admittedly, the accused was interrogated at 10.00 A.M. but police was already preparing to recover the pant and shirt of the accused. The house from where recovery was effected is owned by one Ashok. He was not joined in the investigation. No neighbour was State vs. Dharmender Pandey 26 of 32 joined at the time of recovery. There is no statement of any witness on the file that accused was the tenant of Ashok. No police official visited the house of Ashok in order to know his or any of his family members availability. As per PW13, the room was found locked and it was opened by breaking open the lock but as per PW14, it was not locked. 34 public persons assembled near that room when the lock was being broken but none of those persons were joined in the investigation. PW13 is not aware of the measurement of the room or if the floor of the room was of marble, mud or brick. He is not aware of any window, almirah, ceiling fan or colour in the room. He is not aware if the electricity meter was installed inside or outside the room. Testimony of PW13 is of wavering nature and cannot be believed. On recovery point, the counsel for the accused relied upon Veer Pal @ Raju @ Veera Vs. The State of NCT of Delhi 2011 XAD (Delhi) 132. In this case, it was held by the High Court that it was not believable that an accused would retain the incriminating articles against him for long period. Similarly, the recovery was held doubtful by the Hon'ble Apex Court in Sattatiya @ Satishrajanna Kartalla Vs. State of Maharashtra (2008) 3 SCC 210. So, circumstance of pant and State vs. Dharmender Pandey 27 of 32 shirt of the accused found stained with blood group 'A' of the deceased, cannot be relied upon because recovery of those articles is highly doubtful.
15. CONCLUSION So, the State has successfully proved motive, last seen, extra judicial confession and abscondance of the accused from spot just after the incident and from home for ten days. The defence counsel submitted that abscondance from home is not a huge incriminating circumstance against his client and referred to Kalloopasi Vs. State Crl. Appeal No.413/2001 decided by the Hon'ble High Court of Delhi on 01.04.2009. In that case, the recovery was doubtful and prosecution has failed to establish the motive also. In those circumstances, the High Court held that mere abscondance by itself does not necessarily leads to the conclusion of the guilty mind. In the case in hand, several other incriminating circumstances have already been established. The counsel relied upon Shakuntala Vs. State of Delhi 2011 (2) JCC 1001. In this case, motive was not proved, recovery was doubtful and last seen evidence was also not reliable. In the case in hand, motive and last seen circumstance have been duly proved. In Muhibur Rahaman State vs. Dharmender Pandey 28 of 32 Vs. State of Assam (2002) 6 SCC 715. The Apex Court propounded that there may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances, the victim suffered death or should own the liability for the homicide. In the case in hand, the accused put the defence that Sunil Kumar was murdered by 34 unknown intruders but he has failed to establish this defence. The other possibility is that he himself committed the murder. In State of Goa Vs. Sanjay Thakran (2007) 3 SCC 755, the Supreme Court had another occasion to propound the law on last seen evidence stating that if the prosecution proves that in the light of facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. The Supreme Court further held if it can be demonstrated by showing that the accused persons were in the exclusive possession of the place where the State vs. Dharmender Pandey 29 of 32 incident had occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then, a relatively wider gap would not affect the prosecution case. In the case in hand, PW1 had left accused and deceased together in the godown and when he returned within fifteen minutes, he found Sunil dead. 18.6 ft. height chardiwari of the godown was preventing any intruder to scale down the wall. It further strengthens the fact that only accused and deceased were present in the godown at the time of murder.
16. In view of above discussion, the accused is held guilty for the offence u/s 302 IPC. He shall be heard on point of sentence separately.
Announced in the Open Court on 8th day of March, 2013.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
State vs. Dharmender Pandey 30 of 32
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.19/2013
FIR No.352/2008
PS Alipur
u/s 302 IPC
State
Vs.
Dharmender Pandey @ Chanchal,
S/o Hari Shankar Pandey,
R/o Village Palti Ka Poorva,
PO Jhingpur, PS Mahesh Ganj,
District Pratapgarh, U.P.
Date of institution :17.07.2009
Date when arguments concluded:28.02.2013
Date when Judgment pronounced:08.03.2013
ORDER ON SENTENCE
Present: Ms. Purnima Gupta, APP for the State.
Mr. Pradeep Rana, Counsel for accused.
Convict produced from JC.
1. The accused has already been held guilty u/s 302 of IPC.
State vs. Dharmender Pandey 31 of 32
2. Counsel for convict argued that accused is a first offender and is of 34 years. He has his wife, one unmarried sister and a married brother living separately and old parents to lookafter. Counsel submitted that convict is to maintain his parents and family.
3. There is no allegation against the convict that he acted with cruelty. Minimum punishment provided for murder is life imprisonment.
4. Taking into account all these facts and circumstances, the convict is sentenced to undergo life imprisonment and a fine of Rs.10,000/ (Rupees ten thousand only) is imposed, in default of payment of fine he shall further undergo SI for two years for the offence punishable u/s 302 of IPC. Benefit of section 428 Cr. PC be given to the convict.
5. Fine not deposited.
6. Let a copy of Judgment and Order on Sentence be given to convict.
7. File be consigned to Record Room.
Announced in the Open Court on 14th day of March, 2013.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
State vs. Dharmender Pandey 32 of 32