Delhi District Court
State vs Vinod Etc on 14 September, 2011
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. FIR No. 541/04 State Vs Vinod etc Police Station Kashmiri Gate Under Section 364/ 302/ 201/ 392/ 120B IPC Convicted u/s 201 / 120B IPC ORDER ON THE POINT OF SENTENCE 14.09.2011 Pre: Ld. APP for the state. Ld. Counsel Sh. Ashutosh Bharadwaj for accused persons namely Vinod s/o Lokpal, Birender, Vinod Master, Kaushlander and Vijay Bahadur. Today, he files vakalatnama in respect of accused persons namely Vinod Master, Kaushlander and Vijay Bahadur to argue the matter on order on sentence. Proxy Counsel Ms. Vasudha Kumar d/o Sh. Sanjeev Kumar, Adv. ld. APP submits that offence of such types are increasing day by day. He again argues and submits that accused persons have already been acquitted for the offences punishable u/s 364/ 302/ 392 IPC by giving them benefit of doubt. FIR no. 541/04 State Vs Vinod etc 1 Ld. APP submits that accused persons namely 1.Birender and 2.Vinod s/o Lokpal have been convicted for the offences punishable u/s 120B and 201 IPC read with sections 364/ 302/392 IPC due to the reasons for destruction of evidence along with criminal conspiracy against section 302 IPC which is the capital offence and punishable under clause I of 201 IPC which prescribes sentence upto 7 years. On these grounds ld. APP submits that both convict persons deserve maximum punishment. Contrary to it, ld. Counsel submits that convict 1.Vinod s/o Lokpal is aged about 31 years old. He has one male child of 8 years old. Parents have already been expired. Ld. Counsel also argues for convict 2.Birender that he is 35 years old. He is also having one male child. His father has also expired. He has old widow mother to look after. There is no one to look after their family except them. They are languishing in custody w.e.f. 16.11.2004 meaning thereby that they are in custody for more than 6 and half years. Ld. counsel again submits that no previous criminal antecedents have borne on record in respect of convict persons. Ld. Counsel further submits that as per clause II of section 201 IPC the punishment is upto 3 years. On these grounds ld. Counsel for accused persons prays for taking lenient view. I have given careful consideration to the submissions of ld. Counsel for both the accused persons namely 1.Vinod /so Lokpal and 2.Birender and ld. APP as well. Since section 302 IPC attracts FIR no. 541/04 State Vs Vinod etc 2 capital punishment and both the accused persons have been convicted for destruction of evidence along with criminal conspiracy read with sections 364/ 302/ 392 IPC therefore, to my view the Clause I of section 201 IPC where punishment is upto 7 years, is applicable in this case. In view of this I award sentence to both the convict persons namely 1.Vinod s/o Lokpal and 2.Birender to undergo 7 years R.I. and fine of Rs.5000/ each in default 6 months further R.I. for the reasons given in the judgment. Again, ld. APP submits that accused persons namely 3.Vinod Master and 4.Koshlander have been convicted for the offences punishable u/s 120B and 201 IPC read with section 302 IPC and due to the reasons for destruction of evidence along with criminal conspiracy against section 302 IPC which is the capital offence and punishment under clause I of 201 IPC is upto 7 years. On these grounds ld. APP submits that both convict persons deserve maximum punishment. Again contrary to it, ld. Counsel submits that convict 3.Vinod @ Master is aged about 45 years old. He has 4 children i.e. two sons and two daughter. Parents have already been expired. He is in custody for more than 4 ½ years. Ld. Counsel also argues for accused 4.Koshlander @ Sanjeev that he is 35 years old. He has two children. He has old parents. He is in custody more than 3 ½ years. There is no one to look after their family except them. Ld. counsel again FIR no. 541/04 State Vs Vinod etc 3 submits that no previous criminal antecedents have borne on record in respect of convict persons. Ld. Counsel further submits that as per clause II of section 201 IPC the punishment is upto 3 years. On these grounds ld. Counsel for accused persons prays for taking lenient view. I have given careful consideration to the submissions of ld. Counsel for both the accused persons namely 3.Vinod @ Master and 4.Koshlander @ Sanjeev as well. Since, both these accused persons have been acquitted for the offences u/s 364/ 302/ 392 IPC therefore, in view of the facts and circumstances of the case and family back grounds of both convict persons I award sentence to both the convict persons namely 3.Vinod @ Master and 4.Koshlander to undergo 5 years R.I. and fine of Rs.5000/ each in default 3 months further R.I. for the reasons given in the judgment. So far as accused no.5.Vijay Bahadur @ Monu is concerned, ld. APP submits that he has been convicted for the offences punishable u/s 120B and 201 IPC read with section 302 IPC due to the reasons for destruction of evidence along with criminal conspiracy against section 302 IPC which is the capital offence and punishment under clause I of 201 IPC is upto 7 years. On these grounds ld. APP submits that convict deserve maximum punishment. Contrary to it, ld. Counsel Sh. Ashutosh Bharadwaj submits that accused Vijay Bahadur has not been charged for the offences punishable u/s 302/364/392/120B IPC and only a charge for the FIR no. 541/04 State Vs Vinod etc 4 offence u/s 201 IPC was framed against him. Ld. Counsel again submits that accused Vijay Bahadur has been convicted u/s 201, 120B read with section 302 IPC so lenient view be taken against him. I have given careful consideration to the submissions of ld. Counsel for the accused 5.Vijay Bahadur therefore, in view of the facts and circumstances of the case and family back grounds of convict Vijay Bahadur I award sentence to convict Vijay Bahadur to undergo 1 year R.I. and fine of Rs.2000/ in default 2 months further R.I. for the reasons given in the judgment. Accordingly, accused persons are sentenced namely 1.Vinod s/o Lokpal and 2.Birender to undergo 7 years R.I. and fine of Rs.5000/ each in default 6 months further R.I. ; Accused persons namely 3.Vinod @ Master and 4.Koshlander are also sentenced to undergo 5 years R.I. and fine of Rs.5000/ each in default 3 months further R.I. ; and convict accused 5.Vijay Bahadur is sentenced to undergo 1 year R.I. and fine of Rs.2000/ in default 2 months further R.I. Benefit of section 428 Cr. PC be given. Copy of this order and judgment be given to the convict at free of cost forthwith. Orders accordingly. ANNOUNCED IN THE OPEN COURT ON THIS 14.09.2011 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi FIR no. 541/04 State Vs Vinod etc 5 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 04/03/08 Assigned to Sessions. 17.02.2005 Arguments heard on 28.07.2011 Date of order. 08/09/11 FIR No. 541/04 State Vs 1. Vinod s/o Lok Pal r/o Village Nauri, PS Sidhpura, Distt. Etah, U.P. 2. Birender s/o Suraj Singh r/o Village Lakhmipur, Distt. Etah, U.P. 3. Vinod @ Master s/o Bhim Singh R/o D9, East Jawahar Nagar, Loni Distt. Ghaziabad, U.P. 4. Koshlender @ Sanjeev s/o Rattan Singh R/o Village Goela, PS Shahpur, Distt. Mazaffar Nagar, U.P. 5. Vijay Bahadur @ Monu s/o Ram Nath Singh R/ko 291/3, Juhi Lal Colony, Kanpur City, U.P. Police Station Kashmiri Gate Under Section 364/ 302/ 201/ 392/ 120B IPC FIR no. 541/04 State Vs Vinod etc 6 Convicted u/s 201 / 120B IPC JUDGEMENT
1. Briefly facts of the case are that on 10.11.2004 when SI Ramjeet Singh (PW16) was posted at PS Kashmiri Gate, he was given the complaint of Shree Bhagwan regarding missing of the Qualis no. HR 38 GT 3590 and its driver Vijay Kumar as the vehicle was taken from M/s Gujral Travels Jamna Bazar Delhi. He made endorsement on Ex. PW16/A and gave rukka to DO to register the case. He went to the Gujral Travels 1876, Fauzi Dharamsala Jamna Bazar and prepared site plan Ex. PW16/B. He recorded the statement of Mohan. Thereafter, Ct. SS Reddy came to the spot and handed over the copy of FIR and teharir.
2. Thereafter SI / PW16 met SI Virdi Chand Gautam. He apprised him the circumstances of case regarding booking of the car and missing of the driver. SI V. C. Gautam informed that on 5.11.2004 a dead body was recovered at near Patyali Dhumari Road. FIR no. 541/04 State Vs Vinod etc 7
3. SI / PW16 obtained the relevant papers from SI VC Gautam vide Ex. PW4/DX, Ex. PW11/DA, collected the postmortem report vide Ex. PW16/C and also obtained the clothes and other articles of the deceased lying in Malkhana of PS Patyali . The same were seized vide seizure memo Ex. PW11/A.
4. SI / PW16 Ramjeet Singh also recorded statement of SI VC Gautam, Ramdass Pachori, Ram Singh, Harpal and public witness Kishan Bir and Kishore Kumar Sarma. Thereafter he along with Mohan and other police officials reached at PS Sidpura where SI K.D. Yadav was apprised of the case and joined in the investigation and went to village Nauri where two boys found outside the village. Mohan identified one of the boys who along with others had booked the Qualis car in Delhi on 4.11.2004. Name of that person came to know Vinod Kumar son of Lokpal and he had given his name as Abhay Kumar while booking the car at Delhi. The other accused Birender was also present there. Both of them were apprehended and arrested, vide arrest memo of accused Birender Ex. PW1/C and of FIR no. 541/04 State Vs Vinod etc 8 Vinod Kumar vide memo Ex.PW1/D. Their personal search was conducted vide memos Ex. PW1/A and PW1/B respectively. Both the accused persons were interrogated vide disclosure statement of accused Vinod Ex. PW16/D and of accused Birender Ex. PW16/E. Both the accused persons also pointed out the place of incident where the dead body was thrown vide pointing out memo Ex. PW16/F. I.O. recorded statements of witnesses who were joined in the investigation. Then he along with accused and police officials came back to Delhi. Section 302/120B/201/394 IPC were added.
5. I.O./ PW16 handed over the accused persons and case file to inspector Randhir. Both the accused Birender and Vinod were produced in the court on 12.11.2004. Their four day's police custody remand was obtained.
6. On 13.11.2004 he along with police party and accused Vinod son of Lokpal departed for Kanpur where it was found that from a village under jurisdiction of PS Shivli a car was lying after its recovery. On FIR no. 541/04 State Vs Vinod etc 9 checking the car, it was found that its Number plate has been changed with number plate HR38G 3590 instead of HR 38GT3590. From the car permit , insurance , fitness , RC and two number plates of front and back bearing no. HR 38GT 3590 were lying in it. Car along with above articles were seized vide seizure memo Ex. PW16/G.
7. Thereafter, on 15.11.2004 they reached at Roadways bus stand Oraiya U.P. and went in Ambika Lodge. One Akhlesh kumar Dubey met them who produced register from 18.5.2004 to 14.11.2004 and copy of the registers mark A showing entry of Birender , Sanjeev, Vinod and Vinod at portion 'X' was seized vide seizure memo Ex. PW13/A. Akhlesh Dubey had identified accused Vinod son of Lokpal in their custody. Then they came back to Delhi and produced the accused in Court again.
8. On 16.11.2004 one Karan Singh produced accused Kaushlender @ Sanjeev and Vinod @ Master son of Bhim Singh and both were FIR no. 541/04 State Vs Vinod etc 10 arrested vide arrest memo of Kaushlender Ex. PW16/H and his personal search was conducted vide memo Ex. PW16/I and accused Vinod @ Master was arrested vide memo Ex. PW14/A and his personal search was conducted vide memo Ex. PW16/J. Disclosure statement of accused Kaushlender is Ex. PW16/K and of accused Vinod @ Master Ex. PW16/L. Brief facts of the disclosure statements of accused persons :
'Accused persons namely Vinod s/o Lok Pal; Birender s/o Suraj Singh and Vinod @ Master s/o Bhim Singh made a plan that they will keep Koshlender @ Sanjeev with them and would hire a car for their village and on finding a lonely place, they would kill the driver of the vehicle and would run away with the car to sell it. But accused Sanjeev @ Koshlender refused to kill the driver. Anyhow, other accused persons convinced him by saying that they would not kill the driver but they would tie his hands and legs and would throw him. ............. On the way after reaching at lonely place accused Vinod @ Master put a plastic string on the neck of driver namely Vijay accused Vinod and Birender tied the hands of deceased Vijay and strangulated till his death. Deceased before dying asked them not to kill and they may take away the car but accused persons did not hear him.' FIR no. 541/04 State Vs Vinod etc 11
9. This case was committed to this Court and received on 22.02.2005 for trial as it pertains to the heinous crime committed under section 364/ 302/ 201/ 394/ 34 IPC which is exclusively triable by court of Sessions. Ld. predecessor of this court framed a charge on 14.07.2006 for the offence punishable u/s 392/ 302/ 364/ 201/ 120B against accused persons namely 1.Vinod @ Master, 2.Birender ,
3.Koshlender @ Sanjeev @ Damru and 4.Vinod s/o Lok Pal to which accused persons did not plead guilty and claimed trial. A separate charge only for the offence punishable u/s 201 IPC has also been framed against accused 5.Vijay Bahadur @ Monu by ld. Predecessor of this court. He does not plead guilty and claimed trial.
10.To prove and substantiate its case the prosecution has examined 23 witnesses, out of whom PW1 Mohan Kumar, PW2 Kishore Kumar Sharma, PW3 Sri Bhagwan, PW4 Mukesh Joshi, PW5 Rajesh Kumar, PW6 Kishan Vir Singh, PW10 Rajender Singh, PW14 Karan Singh and PW22 Akhilesh Dubey are the public witnesses. FIR no. 541/04 State Vs Vinod etc 12 PW23 is Dr. V.K. Dubey, who had conducted the postmortem, upon the dead body of the deceased Vijay and the remaining witnesses are police officials.
11.That out of these witnesses PW13 H.C. Ramesh Chand, PW16 SI Ramjit Singh and PW19 K.D. Yadav (from U.P. Police) are the witnesses qua arrest of the accused Vinod and Birender in this case.
12.PW1 Mohan is the witness who deals in the business of Tours and Travels by the name and style of Gujrat Travels at Jat Fauji Dharamshala, Zamuna Bazar, Delhi. He has deposed that on 04.11.2004 in the evening hours accused three gents, two ladies carrying two minor children in their lap and one girl aged about 11/ 12 years came at his shop. He further deposed that one of the persons introduced himself as Abhay Kumar and asked for one Tata Qualis vehicle for Aligarh to attend a Tehravi Ceremony and stated that he would return on the next day i.e. on 05.11.2004. An entry was made in the booking register, receipt no.185 for hiring vehicle FIR no. 541/04 State Vs Vinod etc 13 Tata Qualish no.HR - 38 GT - 3590 vide Ex.PW1/E and he gave his address as D8, Uttari Jawahar Nagar, Loni. He also signed in the register and gave his mobile number as 9818771519. He further deposed that afore said vehicle was provided to them along with driver Vijay Kumar for going to Aligarh. He further deposed that on 05.11.2004 the vehicle along with driver Vijay Kumar did not return. On 06.11.2004 the owner of the alleged vehicle enquired about the vehicle and its driver from him. He provided the address to Rajesh, owner of said vehicle and accompanied him at the address given by the accused persons and at the said address i.e. D8, Uttari Jawahar Nagar, Loni, one Karan Singh met them. There he came to know that the actual name of Abhay was Vinod Solanki and they have gone to their native village for birthday ceremony. On 08.11.04 he along with Rajesh, Mukesh Joshi and one other public persons and police officials went to the native village of accused Vinod i.e. village Nauri, PS Sidhpura near Patyali. There accused Vinod and Birender were not found. This witness further deposed that they first they visited PS Sidhpura and then to PS FIR no. 541/04 State Vs Vinod etc 14 Patyali where they were informed that two dead bodies were recovered on 05.11.2004 which have already been cremated. This witness identified the clothes and photographs of deceased Vijay and confirmed that dead body was of deceased driver Vijay Kumar. He got exhibited the photographs as Ex.PW2/A1 to A3 and clothes as Ex.PX1 collectively and shoes as Ex.PX2. This witness has been crossexamined at length by defence counsel. I have perused the same.
13.PW2 Kishor Kumar Sharma is the formal witness being photographer. He deposed that he was called to PS Patyali , Distt. Etah by the Incharge and he took the photograph of the dead body lying in the police station from different angles. This witness got exhibited the positive of the same as Ex.PW2/A1 to A3 and negatives as Ex.PW2/B1 to B3. This witness has not been cross examined.
14.PW3 Sri Bhagwan is the owner of the alleged vehicle i.e. Tata FIR no. 541/04 State Vs Vinod etc 15 Qualis and on 05.11.2004 he made inquiries from PW1 Mohan regarding non return of the aforesaid vehicle along with driver Vijay. He deposed that Mohan/PW1 provided address of accused Birender and thereafter he along with Rajesh Kumar (PW5) went at the address given where PW14 Karan Singh met them. PW14 Karan Singh stated that Santosh brother of accused Birender lives in the same area but they were not found present at the house of Santosh situated in the area of Loni. He reported the matter to the police on 08.11.2004 vide his complaint Ex.PW3/A. This witness has been crossexamined by ld. APP. He corrected himself that one Mr. Abhay had booked the vehicle from Gujrat Travels. The number of telephone was 9818771519. He also corrected himself that address mentioned in Gujrat Travels was D8, Jawahar Nagar, Loni and that on enquiries at the said address , it came to know that actual name of Abhay was Birender . This witness has been crossexamined at length by defence counsel. I have perused the same. FIR no. 541/04 State Vs Vinod etc 16
15.PW4 Mukesh Joshi is the witness to the fact that he along with Mohan and one Rajesh had gone to Distt. Etah , U.P. being neighbourer of Mohan, in search of vehicle. At police station Patyali Distt. Etah they came to know that two dead bodies, one of old man and one of young man were recovered. He affirmed the fact that dead body of young man was of driver of the Tata Qualis, which was identified on the basis of photographs vide Ex.P1 to P3. This witness has also been crossexamined at length by defence counsel. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
16.PW5 Rajesh Kumar is the owner of the vehicle Tata Qualis bearing no. HR - 38 GT - 3590 which is registered in the name of his younger brother Sri Bhagwan and it was attached to Gujrat Travels. This witness affirmed the fact that on 04.11.2004 the vehicle was booked from Gujrat Travels for Aligarh. Deceased Vijay Kumar was the driver. The vehicle was supposed to come back on 05.11.2004 but it did not come. He came to know from Gujrat Travels, one FIR no. 541/04 State Vs Vinod etc 17 Abhay r/o D8, Jawahar Nagar, Loni had booked the vehicle. On 06.11.2004 he made attempts to trace the vehicle and driver. He reached at Jawahar Nagar where near house no. D8, one Karan Singh met who stated that in the said house Birender and Vinod used to live and they have left for their native village. He further deposed that his brother Santosh also lives in the same area. Thereafter, they reached in the house of Santosh but he did not cooperate them. Thereafter, on the following day he along with Mohan reached the house of Santosh and took him to police station Kashmiri Gate, where his brother got lodged a complaint. He further th deposed that on the morning hours of 8 November 2004 he along with Mohan, Joshi and Santosh went in a Taxi to Amapur in the village of Santosh Lakhmipur. PW1 Mohan identified one person in the group photograph in the house of Taj and stated that he was also one of the person who had come to book the car and his name was Vinod. This witness has also deposed that they reached in the house of tau of accused and PW1 Mohan identified Birender from the photograph amongst those person who had come to book car. FIR no. 541/04 State Vs Vinod etc 18 During the search of accused persons, they came to know that one dead body was recovered in the area of Patyali and then they proceeded to Patyali police station where he identified clothes and photograph of driver Vijay Kumar deceased. He got exhibited the written complaint as Ex.PW4/DX written by PW4 Mukesh Joshi. This witness has been crossexamined at length by defence counsel. I have perused the same.
17.PW6 Kishanvir Singh is a formal witness from Etah UP. He affirmed the fact that on 05.11.2004 he came to know that one dead body is lying at road one kilomter away from his house near nala. He went at Nala and noticed that a rope was tied at mouth and around the neck. He informed the local police of police station Patyali . This witness has not been crossexamined.
18.PW7 Ct. Ram Singh is the witness from Etah U.P. and he affirmed the fact with regard to the fact that on 05.11.2004 recovery of a dead FIR no. 541/04 State Vs Vinod etc 19 body lying on the side of road leading towards north from Village Jasmai at a distance of one kilometer. He also affirmed the fact that dead body was found tied with the plastic rope. Photographer was called before sending the dead body for postmortem. He deposed that on 06.11.2004 the body was cremated and till the cremation the body remained unidentified. This witness has been crossexamined by defence counsel.
19.PW8 Ct. Rajinder Singh from Etah, U.P. came to the witness box and affirmed the fact that on 05.11.2004 he recorded GD no.36 vide Ex.PW8/A, regarding lying unknown dead body at Dhoomri Road at a distance of one Kilometer north from village Jaasmai near Nala in a ditch near the road, on the basis of a complaint given by Kishanvir. he assigned the said DD to SI V C Gautam who along with Ct. Ram Singh and Harpal Singh left for the spot. This witness has also been crossexamined. I have perused the same. FIR no. 541/04 State Vs Vinod etc 20
20.PW9 Ct. Harpal has deposed more or less similar facts as deposed by PW7 Ct. Ram Singh. This witness has also got exhibited the punchnama as Ex.PW9/A. He along with Ct. Ram Singh took the dead body for postmortem at Distt. Etah where DH Surgeon Mr. V K Dubey conducted postmortem on the dead body. After postmortem dead body was cremated. This witness has not been cross examined.
21.PW10 Rajinder Singh is the formal witness being brother of deceased Vijay Kumar. He identified the belt, shoes, sweater and photograph of dead body as of his brother Vijay. He got exhibited the articles as Ex.PX1 collectively. This witness has not been crossexamined.
22.PW11 SI Ram Dass Pachori is a formal witness being MHC(R) at police station Patyali , Distt. Etah, U.P. He affirmed the fact that on 11.11.2004 he handed over the clothes of driver Vijay Kumar (deceased) which were deposited in the Malkhana after postmortem. FIR no. 541/04 State Vs Vinod etc 21 He got exhibited the memo in this regard as Ex.PW11/A. He got exhibited the items as Ex.PX1 collectively. This witness has been crossexamined by the defence counsel.
23.PW12 HC Sham Lal is a formal witness being duty officer at police station Kashmiri Gate on 10.11.2004. He affirmed the fact that he received rukka from SI Rambir Singh on which he recorded FIR no. 541/04. He got exhibited the copy of the FIR as Ex.PW12/A. He also got exhibited the Kayani DD no.14/A as Ex.PW12/B. This witness has been crossexamined by the defence counsel. I have perused the same.
24.PW13 HC Ramesh Chand is the witness to the fact that on 11.11.2004 he along with SI Ramjit Singh, Ct. Ram Parkash, Mohan and Rajesh proceeded for Patyali , Etah, U.P. to investigate the case. He deposed that from police station Patyali SI Ramjit Singh took the copy of '0' FIR, the clothes of deceased Vijay and green colour rope vide seizure memo Ex.PW11/A. He deposed that In FIR no. 541/04 State Vs Vinod etc 22 charge SI K D Yadav joined them and then they proceeded to village Neuri, Etah, U.P. and on the way they noticed that two boys were coming from the front side in the meanwhile public witness Mohan identified one of them as Vinod. Both the persons i.e. accused Vinod and Birender were apprehended by them. Accused persons were taken on PC on 13.11.2004 and then they left for Oraya Kanpur, U.P. and met with one Ambika Gauge/ Guest House. They seized the photocopy of register vide seizure memo Ex.PW13/A. In the meantime Insp. Randhir Singh was informed on telephone that wanted vehicle Qualish was deposited in PS Shivli, Distt. Kanpur as unclaimed. Thereafter, they reached there and found that vehicle was not in moving condition. He correctly identified the accused persons and case property i.e. clothes of deceased as Ex.PX1 collectively. This witness has also been crossexamined at length by defence counsel. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. These contradictions do not go to the root of this case.
FIR no. 541/04 State Vs Vinod etc 23
25.PW14 Karan Singh came to the witness box and deposed that accused Vinod @ Master is his brotherinlaw and he is residing at adjacent house in Loni. He affirmed the fact that on 06.11.2004 two persons came and enquired about Abhay. he replied that there is no tenant of Abhay name. After about 5/ 6 days police official brought two persons and enquired that whether they were tenant. He denied the same. He further deposed that after few days police officials again came to his residence and made enquiries about accused Vinod @ Master and told that he was wanted in a case. Accused Vinod @ Master was produced by him in police station Kashmiri Gate, who was arrested vide arrest memo Ex.PW14/A. This witness has been crossexamined by the ld. APP since he has turned hostile. This witness has also been crossexamined by defence counsel.
26.PW15 ASI Raj Kumar is a formal witness being MHCM at police station Kashmiri Gate. He got exhibited the relevant entries with FIR no. 541/04 State Vs Vinod etc 24 regard to the present case vide Ex.PW15/A and PW15/B. He deposed that as long as the case property remained in his supervision it was not tampered in any way. This witness has not been crossexamined.
27.PW16 SI Ramjeet Singh is the material witness in this case. For the sake of brevity and convenience let his statement be re produced verbatim which is as under: "On 10.11.2004 while I was posted at PS Kashmiri Gate I was given the complaint of Shree Bhagwan regarding missing of the Qualis no. HR38 GT 3590 and its driver Vijay Kumar as the vehicle was taken from M/s Gujral Travels Jamna Bazar Delhi. I recorded my endorsement Ex. PW16/A and gave rukka to DO to register the case. I went to the Gujral Travels 1876 Fauzi Dharamsala Jamna Bazar and prepared site plan Ex. PW16/B. I recorded the statement of Mohan . Then Ct. SS Reddy came to the spot and handed over to me the copy of FIR and teharir. Thereafter on 11.11.2004 I along with Ct. Ram Parkash, HC Ramesh, Mohan and Rajesh had gone to Patyali PS at District Etah UP where already a dead body was found by the police of PS Patyali a and postmortem of the dead body was already got conducted . A Zero FIR was already lodged at PS Patyali . I met SI Virdi Chand Gautam . I apprised him of the circumstances of my case regarding booking of the car and missing of the driver. SI V C Gautam informed me that on 5.11.2004 a dead FIR no. 541/04 State Vs Vinod etc 25 body was recovered at near Patyali Dhumari Road. I obtained the relevant papers from SI VC Gautam Ex. PW4/DX, Ex. PW11/DA, collected the postmortem report Ex. PW16/C and I also obtained the cloths and other articles of the deceased lying in Malkhana of PS Patyali . The same were seized vide seizure memo Ex. PW11/A. I also recorded statement of SI VC Gautam, Ramdass Pachori, Ram Singh, Harpal and public witness Kishan Bir and Kishore Kumar Sarma . Thereafter I along with Mohan and other police officials reached at PS Sidpura where SI KD Yadav was apprised of the case and joined in the investigation and when to village Nauri where two boys found outside the village. Mohan identified one of the boys who along with others had booked the Qualis car in Delhi on 4.11.2004. Name of that person found Vinod Kumar son of Lokpal and he had given his name as Abhay Kumar while booking the car at Delhi. The other person was found Birender son of Suraj Singh. Both of them were apprehended and arrested, Birender vide memo Ex. PW1/C and Vinod Kumar vide memo Ex. PW1/D. Their personal search conducted and memos Ex. PW1/A and PW1/B were prepared. Both the accused persons were interrogated and disclosure statement of accused Vinod Ex. PW16/D and of accused Birender Ex. PW16/E were recorded. Both the accused persons also pointed out the place of incident where the dead body was thrown and pointing out memo Ex. PW16/F was prepared. I recorded statements of witnesses who were joined in the investigation. Then I along with accused and our police officials came back to Delhi. Section 302/120B/201/394 IPC were added. I handed over the accused persons and case file to inspector Randhir. Both the accused Birender and Vinod were produced in the court on 12.11.2004 . Their four day's police custody remand was obtained. I remained in the investigation of the case and on 13.11.2004 I along FIR no. 541/04 State Vs Vinod etc 26 with police party and accused Vinod son of Lokpal departed for Kanpur where it was found that from a village under jurisdiction of PS Shivli car was lying after its recovery. On checking the car it was found that its No. plate was changed and bearing No. plate HR38G 3590 instead of HR 38GT3590. From the car permit , insurance , fitness , RC and two number plates of front and back bearing no. HR 38GT 3590 were lying in it. Car along with above articles were seized vide seizure memo Ex. PW16/G it bears my signature at point A. Thereafter on 15.11.2004 we reached at Roadways bus stand Oriya UP and went in Ambika Lodge .
One Akhlesh kumar Dubey met us who produced register from 18.5.2004 to 14.11.2004 and copy of the registers mark A showing entry of Birender , Sanjeev, Vinod and Vinod at portion X was seized vide seizure memo Ex. PW13/A bears my sign at point B. Akhlesh Dubey had identified accused Vinod son of Lokpal in our custody. Then we came back to Delhi and produced the accused in Court again.
On 16.11.2004 one Karan Singh had produced accused Kaushlender @ Sanjeev and Vinod @ Master son of Bhim Singh and both were arrested Kaushlender vide arrest memo Ex. PW16/H and his personal search was conducted vide memo Ex. PW16/I and accused Vinod @ Master was arrested vide memo Ex. PW14/A and his personal search was conducted vide memo Ex. PW16/J. All bear my sign at point B. Disclosure statement of accused Kaushlender is Ex. PW16/K and of accused Vinod @ Master Ex. PW16/L were prepared. My statement was recorded by the IO. I can identify the case property.
At this stage MHCM has produced the case property which is one sweater , one shirt, one Baniyan , one underwear, one pant, one shoe , one pair of shocks , one belt, one half burnt rope . FIR no. 541/04 State Vs Vinod etc 27 Identified by the witness same are Ex. Px1 collectively. MHCM has also produced four no. plates two plates bearing no. HR38G3590 and two bearing no. HR 38GT 3590 . Identified by the witness same are Ex. P1 to P4."
This witness is the initial IO of the case. He was also the IO at the time of arrest of the accused Vinod and Birender and as per case of prosecution both the accused persons were arrested by him. During his examination in chief he has stated that on 10.11.2004 he prepared RUKA and got the FIR in question registered. Thereafter, he went to Gujrat Travels situated at Jamuna Bazar and prepared site plan and thereafter he recorded the statement of PW Mohan. He has further stated that "Ct. SS Reddy came to the spot and handed over to me the copy of FIR and Tehrir". This witness has also stated that "on 11.11.2004 I along with Ct. Ram Parkash, HC Ramesh, Mohan and Rajesh had gone to Patyali PS at District Etah UP, where already a dead body was found by the police of PS Patyali ". This witness has been crossexamined at length. I have perused the same. I found some contradictions but these are FIR no. 541/04 State Vs Vinod etc 28 attributable due to the long duration of time and memory of a human being.
28.PW17 Insp. Randhir Singh is also the material witness being 2 nd I.O. of the case, who concluded the investigation and subsequently filed the challaan in this case and during his examination in chief he has stated that on 12.11.2004 two accused persons Vinod Kumar and Birender were produced in the court and their four day's police custody remand was obtained. He deposed that on 13.11.2004 he along with SI Ramjeet, Ct. Om Parkash, Ct. Ratnagiri reached at Kanpur. This witness further stated that when they reached Kanpur the vehicle No. HR38GT3590 was seized vide Seizure Memo Ex.PW16/G. On the next day on 15.11.2004 this witness along with others reached Auraiya at Ambika Lodge where Akhilesh Dubey met them. There they seized the Register vide Seizure Memo Ex.PW13/A. This witness further stated that after arrest of Vinod @ Master and Koshalender, he moved application for conducting the TIP of these accused persons but they refused to participate in the FIR no. 541/04 State Vs Vinod etc 29 TIP proceedings vide TIP proceedings Ex.PW17/A and PW17/B. Accused Vijay Bahadur @ Monu was apprehended from Kanpur vide Arrest Memo Ex.PW17/C and his personal search was conducted vide Memo Ex.PW17/D. Disclosure statement was recorded, which is Ex.PW17/E. Pointing out memo Ex.PW17/F was also prepared. This witness identified all the accused persons. That thereafter certain leading questions were put by the Ld. APP in regard to TIP of Vinod @ Master and Koshalender. This witness has been cross examined at length. I have perused the same. During the cross examination this witness stated that he had informed the police officials of Govindnagar Police Station regarding his visit and search of accused. One police official was joined in the investigation from PS Govindnagar. In the crossexamination he denied the suggestion that he did not make any enquiry regarding the ownership of mobile phone no. 9818771519. This witness has also stated in the crossexamination that he has perused the entire police file and did not find the original MarkX. He filed a challan against FIR no. 541/04 State Vs Vinod etc 30 four accused persons but the challan was not filed against Monu and lateron the verbal directions of the predecessor of this court the challan was prepared against Monu but could not be filed as there was no sufficient material against him nor Monu was interrogated as he could not be traced out. After preparation of challan against accused Monu in March 2005. He did not make any further investigation and collected any other evidence against accused Monu upto April 2006. He admitted that he has not diluted in the investigation thereafter as there was no proof during the investigations found against the accused Monu. He prepared the challan against the accused Monu on the directions of the court after due investigation.
29.PW18 is Ct. Ajender Singh, who proved the original FIR, which was lodged at Patyali.
30.PW19 is ASI Keshav Dayal Yadav, in whose presence as per case of prosecution, accused Vinod and Birender were arrested. During FIR no. 541/04 State Vs Vinod etc 31 his examination in chief this witness has stated that on the pointing out of Mohan both the accused persons Vinod and Birender were arrested, though as per case of prosecution Mohan identified only Vinod and again during the course of identification, this witness identified Vinod @ Master as Vinod, who was apprehended from Nauri and also identified Koshalender as Birender. Thereafter the permission was sought by the Ld. APP for putting certain leading questions to this witness and at that time, he stated that he had forgotten the face of accused. This witness has been cross examined at length by defence counsel. During crossexamination this witness stated that Ex.PW1/A to D (Arrest Memo and Personal Search Memo of Vinod and Birender) do not bear his signature. He admitted that the facts regarding his signatures on the Seizure Memos and Arrest Memos of accused Vinod and Birender are wrongly mentioned in his statement Ex.PW16/DE recorded u/s 161 Cr.P.C.
FIR no. 541/04 State Vs Vinod etc 32
31.PW20 is SI Rajesh Kumar Morya. He is the witness to the recovery of vehicle, which was toed away with the help of tractor and was brought to PS Shivali. His testimony cannot be read in evidence since he did not turn up for getting completed his testimony.
32.PW21 is SI Vridhi Chand, who had conducted the proceedings in regard to the recovery of dead body on 05.11.2004 since he was posted at PS Kotwali Patyali . This witness has been cross examined at length by defence counsel.
33.PW22 is Akhilesh Dubey working as Manager in Ambika Lodge in Oraiya District. During his examination in chief he has not identified accused Vinod. He was declared hostile and during his cross examination by the Ld. APP he has stated that he cannot identify accused Vinod S/o Lok Pal to be the same person, who had come with the Police in Ambika Lodge on 15.11.2004 despite being FIR no. 541/04 State Vs Vinod etc 33 pointed out by the APP." During the cross examination by defence counsel this witness has admitted that that there is over writing at point MarkB and B1 on Ex.PW22/A. He also admitted that at the point B and B1 digit 9 is converted to digit 5. Vol. he said that he does not know who has tampered with these entries. It clearly shows that even entries were changed and manipulated by dishonest intentions and that is why entries Ex.PW22/A have been manipulated.
34.PW23 is Dr. V.K. Dubey, who had conducted the postmortem on the dead body of the deceased. He gave opinion that 'death was due to asphyxia as a result of strangulation'. He got exhibited the detailed report as Ex.PW16/C bears his sign at pt. A. This witness has been crossexamined at length by defence counsel. He admitted that there was no abrasion and dragging marks on the body of the deceased. He also admitted that he had not mentioned/commented in the Postmortem report that whether the strangulation was accidental or homicidal. FIR no. 541/04 State Vs Vinod etc 34
35.After recording the statements of prosecution witnesses, statements of accused persons u/s 313 Cr. P. C. were recorded in which they denied all the allegations and stated that they have been falsely implicated in this case to solve the blind case.
36.Thereafter, case was fixed for final arguments. Ld. counsel Sh. Ashutosh Bharadwaj for accused persons namely Vinod s/o Lokpal, Birender and Vijay Bahadur filed written submissions. Accused Vinod Master and Koshlender have also filed their written submissions. I have heard arguments at length addressed by ld. counsel for accused persons and gone through the written submissions. It has been submitted by the ld. counsel for accused persons that four statements of PW Mohan were recorded in this case. First statement was recorded on 10.11.2004 (MarkX) and in that statement he has not stated that any person, who hired the vehicle from him, put his signature as ABHAY nor he has stated that FIR no. 541/04 State Vs Vinod etc 35 three receipts were issued by him. First was given to party and second receipt was given to the driver and the last i.e. third was kept at office of Mohan. In fact this fact was mentioned only in his statement dt.18.11.2004 i.e. after 8 days of the recording of the first statement under Section 161 Cr.P.C. and most importantly after the arrest of the accused persons. It clearly shows that the alleged receipt has been planted by the police officials in this case to fulfill the lacuna in the investigation and that is why it has been specifically admitted by Insp. Randhir Singh IO that he did not prepare any Seizure Memo of any receipt. Besides, in the disclosure statement of any accused, there is no mention that any receipt was given to any of them by PW Mohan. Moreover, no such receipt was recovered from the car or from the possession of the dead body of the deceased nor any such receipt was recovered from any accused nor there is any explanation in the case of prosecution that what happened to the receipts, which were given to the deceased and the accused persons. It clearly shows that the fact of issuance of any receipt and putting of signature by any of the accused as ABHAY are FIR no. 541/04 State Vs Vinod etc 36 totally false and fabricated, which is further proved by this fact that in the complaint and in the FIR and in statement of Rajesh it has been specifically mentioned that it was Birender who has put his signature as ABHAY and subsequently stated that it was Vinod who has put his signature as ABHAY. It would be pertinent to mention here that as per case of prosecution Sri Bhagwan and Rajesh Kumar came to know this fact i.e. the name of Abhay as Birender only from PW Mohan, whereas Mohan himself is not stating that Abhay's name subsequently came to be known as Birender. This is very important and major contradiction even in the case of prosecution that by whom actually the receipt, if any, were signed as Abhay, whether by accused Birender or by accused Vinod and the prosecution has miserably failed to prove this fact because the IO himself admitted during his crossexamination by the defence counsel that he did not seek assistance from handwriting expert to ascertain as to whether the alleged signature was put by Birender or Vinod, nor he obtained the signature/writing of the accused Birender or Vinod for its comparison.
FIR no. 541/04 State Vs Vinod etc 37
37.Ld. counsel further submitted that there are major contradictions in the testimony of this witness. It is very much proved by the version of PW1 that no accused was arrested in his presence nor he ever went to Etah on 11.11.2004. It is further submitted that the pointing out memo Ex.PW16/F is not signed by this witness even the disclosure statement of accused Vinod and Birender Ex.PW16/D & E are not signed by this witness. He has never stated that anybody signed as Abhay whose actual name subsequently came to be known as Vinod. Moreover, the prosecution story is totally different because the prosecution story states that it is Birender who signed as Abhay. In this situation it cannot be held as to who has actually signed the Register in the name of Abhay whether it was Vinod or Birender. It shows that the entire prosecution case is totally false, and frivolous and doubtful in nature.
38.Again it has been argued and submitted by the ld. counsel for the accused persons that PW23 Dr. V.K. Dubey, who had conducted the FIR no. 541/04 State Vs Vinod etc 38 postmortem on the dead body of the deceased, during his cross examination he has admitted that he does not recollect that if any of the Police Officials of PS Kashmere Gate has ever shown him the ropes for taking subsequent opinion on the Postmortem report. He admitted that he has not given a subsequent opinion in the present case. So even from the bare perusal of the postmortem report of the deceased it has not been established by the prosecution that the cause of death was accidental or homicidal and as no subsequent opinion was sought by the IO by showing the rope to the doctor, who conducted the postmortem upon the dead body to bring anything on record that the death of deceased might have been caused by that particular rope.
39.Ld. counsel again argued and submitted that the entire case of prosecution is full of contradictions and vagueness because the initial complaint Ex.PW3/A lodged by Sri Bhagwan and Zero FIR lodged at PS Patyali Ex.PW4/DX clearly states that it was Birender who has put signature as Abhay because it has been specifically FIR no. 541/04 State Vs Vinod etc 39 mentioned in both these documents that subsequently actual name of Abhay came to be known as Birender. This fact is not disputed by the prosecution even when Sri Bhagwan denied to support the case of prosecution. He was crossexamined by the Ld. APP and during the crossexamination this witness has admitted that it is correct that he has mentioned in his complaint that subsequently the actual name of Abhay came to be known as Birender. However, even the prosecution here is relying upon this fact that it is Birender, who has signed as Abhay. On the other hand if we are going to see the prosecution story based upon the disclosure statements, there is a new theory, which has been developed by the prosecution because in those disclosure statements, it has been mentioned that the actual name of Abhay is Vinod and not Birender. So even prosecution itself is totally confused about its own version that by whom actually the name of Abhay was written, whether it is Birender or Vinod.
40.Ld. counsel further argued and submitted that investigation, which was carried out by the main IO PW17, is also totally biased and FIR no. 541/04 State Vs Vinod etc 40 unfair because he himself has admitted in supplementary challan MarkX filed by him at the time of recording the statement of Parmod Kumar Bhadoriya that he did not find any evidence against Vijay Bahadur @ Monu though subsequently after many months he arrested him. Moreover, the original of Supplementary Challan was never filed by him to this Hon'ble Court. He stated that he reached Nauri on 13.11.2004 though no other PW has stated so. He has also stated that he was having no knowledge about the spot of recovery of car, though he has recorded the statement of PW Rajesh Maurya many months prior the arrest of Vijay Bahadur @ Monu, in which place of recovery of car is specifically mentioned. Infact during the examination in chief and crossexamination this witness has deposed false facts shamelessly. When specific question was put to this person, he has not stated specific date on which Vijay Bahadur was arrested by him. He is telling an incorrect distance between Sidhpura and Nauri. He has admitted that he did not investigate regarding comparison of signature of Vinod and Birender though willfully he denied saying that I do not remember that at the FIR no. 541/04 State Vs Vinod etc 41 time of filing of challan there was no evidence against Vijay Bahadur. It clearly shows that he is concealing something from this Hon'ble Court and that is why he declined to identify his own handwriting, though he has stated that "It is incorrect to suggest that I did not make any enquiry regarding the ownership of mobile phone no. 9818771519. It is also incorrect that I did not make any investigation that upto what period the above said mobile no., was in operation. It is correct that the above said information is not on place in the judicial file and the same is lying in the police file". Infact he has stated even a blatant lie.
41.Ld. counsel for accused persons again argued and submitted that from the bare perusal of the entire evidence it is clear that all the PWs stated different version of the same facts. They have made material improvement from their earlier version given before the IO. They have been confronted with the material points. There have been found various contradictions in depositions regarding the arrest of accused persons, signing of documents, getting knowledge about FIR no. 541/04 State Vs Vinod etc 42 the accused persons, manner in which investigation was carried out, presence of accused persons. So, the prosecution has miserably failed to bring any cogent, clear and consistent evidence against the accused persons. Hence the prosecution has completely failed to prove its case beyond reasonable doubt. Infact from the bare perusal of the entire evidence, the entire prosecution evidence appears to be totally incorrect, doubtful in nature because the persons who have participated in the investigation have given contradictory statements and the investigation has been carried out in a very biased and unfair manner in this case. On these grounds ld. counsel for accused persons submitted that in view of the facts and circumstances of the case and detailed submissions, it is, therefore, most respectfully prayed that since the prosecution has failed to prove its case beyond reasonable doubt, therefore, the accused persons be acquitted in the present case, in the interest of justice. ld. Counsel has also relied upon the following citations in support of his contentions:
1. Musheer Khan @ Badshah Khan & Anr. Vs State of MP FIR no. 541/04 State Vs Vinod etc 43 [SC] - 2010 [3];
2. 2010 [3] Jcc 1842 - Banarsi Dass Vs State of Haryana;
3. Mohd. Sabir Vs State (NCT of Delhi) - 92 (2001) DLT 641 (DB)
4. AIR 2000 SC 369 - C K Reveendran Vs State of Kerala
5. 2010 [2] JCC 1429 - C. Magesh & Ors etc Vs State of Karnataka
6. (2005) 9 SCCs 765 - Anjlus Dungdung Vs State of Jharkhand
7. 2010 [1] JCC 220 - State Vs Nikhil @ Rahul
8. 2010 [3] - Gurcharan V. State [Delhi]
9. 1998 (3) CCCs (SC) 93 - State of Rajasthan Vs Rajendra Singh
10. 1996 (2) CCCs 85 (SC) - State of Haryana Vs Chandvir & Ors.
11. 1998 (2) CCCs (SC) 45 - Jag Narain Prasad Vs State of Bihar In 'Banarsi Dass Vs. State Of Haryana CRIMINAL APPEAL No. 630 OF 2003 decided on on 5 April, 2010' it has been observed that:
"10. It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard. So far as it satisfies the essentials of a complete chain duly supported by appropriate evidence."
Again in another case ' Mohd. Sabir & Anil Khanna Vs State (NCT Of Delhi) on 29 May, 2001' it has also been observed that:
1. the circumstances from which the conclusion of guilt FIR no. 541/04 State Vs Vinod etc 44 is to be drawn must or should be and not merely 'may be' fully established,
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty,
3. the circumstances should be of a conclusive nature and tendency,
4. they should exclude every possible hypothesis except the one to be proved; and
5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In 'C. K. Raveendran vs State Of Kerala ' again it has been observed that:
4. It is contended on behalf of appellant Raveendran that the circumstances relied upon by the High Court not only have not been established by the p prosecution beyond reasonable doubt, but also even if all the circumstances can be said to have been established, all of them taken together do not complete the chain and they do not unequivocally point to the guilt of the accused and exclude any hypothesis consistence with his innocence. It is not necessary for us to discuss in detail the law relating to the circumstantial evidence, suffice it to say that prosecution must prove each of the circumstances, having a definite tendency pointing towards the guilt of the accused and though each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused.
When we examine the circumstances said to have been established in the light of the aforesaid principle, we find FIR no. 541/04 State Vs Vinod etc 45 sufficient force in the contention of the learned Counsel for the appellant that the circumstances thus proved, do not point out unerringly to the guilt of the accused. It is in this context, the most important question is the medical evidence. The dead body of Yeshoda was found on 30th of March, 1988 and the postmortem was conducted on 1.4.1988. The doctor PW19, who conducted the autopsy, while issuing the postmortem certificate Exh. P10, categorically stated that the exact cause of death cannot be ascribed and reserved his opinion, pending the result of chemical analysis. On getting the report of the Assistant Chemical Examiner Exh. P11, the said doctor PW19 gave a final report as per Exh. P12, which indicated that the deceased sustained head injury, which if antemortem, could result in death and the injury, if antemortem, could be caused by hitting with stones like M.Os. 11 or 12. The said report further revealed that nobody could say that there was violence on the neck of the deceased or not. When the doctor itself has not been able to give a definite opinion as to the injuries found on the dead body, whether could be antemortem or postmortem and the dead body itself was found on 30th of March, 1988 and Yeshoda alleged to have been seen in the company of accused last on 3.3.88, it is difficult for us to sustain the conclusion of the High Court that the death C of Yeshoda can only be homicidal. There is not an iota of material from which the High Court could have jumped to the aforesaid conclusion and we, therefore, have no hesitation to hold that the conclusion of the High Court that Yeshoda met a homicidal death is wholly erroneous. The extrajudicial confession as deposed by PW15 has not been relied upon by the learned Sessions Judge and High Court also came to the conclusion that it is difficult to rely upon the same, as the exact words or even the words as nearly as possible have not been reproduced by PW15. That apart, as has been stated earlier, even the evidence of PW15 indicates that Raveendran and he went to arrack shop and consumed liquor, whereafter Raveendran disclosed the entire incident and therefore, such statement cannot be said to be a voluntary and FIR no. 541/04 State Vs Vinod etc 46 truthful one and on the other hand it is the outcome of the consumption of liquor, both by the witness as well as the accused, if at all he can be said to have made the statement. In this view of the matter, the socalled extra judicial confession has to be excluded from the purview of consideration for bringing home the charge. The most important circumstance which can be said to have been established by the evidence of PWs 7 and 8 is that they saw Raveendran with Yeshoda on 3rd of March, 1988 in a jeep and that jeep was found to be moving around on different places on the same day. While analysing the different witnesses who deposed about seeing the jeep on 3rd of March, 1988 at different places at different point of time, the High Court itself has noticed that the witnesses do not agree with each other, so far as the time factor is Q concerned. That apart, the socalled evidence of PWs 10 and 11 who had deposed that at 5 P.M. on the same day, some people came in a jeep and took tea from the Grant Hotel, is of no consequence and cannot be held to be incriminating in nature, as they never knew accused Raveendran nor had there been any earlier test identification parade and, therefore, the said evidence cannot be utilised to bring home the charge against accused Raveendran. Necessarily, therefore, the only evidence of PWs 7 and 8 is to the effect that on 3rd of March, 1988 at 9.30 A.M., Yeshoda was seen with Raveendran in the jeep. So far as the motive is concerned, the prosecution case is rather hazy and the High Court itself has brushed aside the same on the ground that the motive is not an essential ingredient of an offence. It is no doubt true that through some witnesses, the prosecution wanted to establish that on an earlier occasion, Raveendran made an attempt to kill Yeshoda by hitting her with jeep but could not succeed and Yeshoda escaped, but that circumstance also is through the evidence of PW15, who had testified the so called extrajudicial confession and has not been relied upon and it would be highly unsafe to rely upon the testimony, even for the alleged conduct of accused Raveendran. PW23 who was living in an adjacent house of Yeshoda at Kappad, in his evidence, made a FIR no. 541/04 State Vs Vinod etc 47 statement that mother of Raveendran had once offered Raveendran that she would purchase a van for him, if he agrees to divorce Yeshoda but that by itself can hardly be said to be establishing a motive on the part of accused Raveendran. In our opinion, therefore, on the materials on record, the prosecution has not been able to establish any motive on the part of the accused Raveendran for committing the crime. In this state of affair, the socalled recovery of the wrist watch of the deceased, on the basis of statement made by accused Raveendran can hardly be said to be a clinching circumstance for coming to the conclusion that the prosecution case has been proved beyond reasonable doubt. In view of our conclusion, as aforesaid, we have no hesitation to come to the conclusion that the prosecution case has not been proved beyond reasonable doubt as against accused Raveendran and, therefore, the conviction of Raveendran of the charge under Section 302 as well 201 IPC, cannot be sustained. We accordingly, set aside the conviction and sentence of accused Raveendran and acquit him of the charges leveled against him. He be set at liberty forthwith, unless required in any other case." In '' C. Magesh & Ors. Vs. State Of Karnataka on 30 April, 2010 IN THE SUPREME COURT OF INDIA again it has been observed that:
40. There was no occasion for the High Court to have passed order of conviction on the same, that too without removing the doubts with regard to correctness, legality and propriety of two dying declarations.
48. The majority of witnesses assigned him the role of assaulting with clubs. However, PW9, PW13 assigned different role to him but FIR no. 541/04 State Vs Vinod etc 48 Doctor's evidence does not disclose anywhere that the injuries sustained by any of the injured persons could have been caused with clubs, meaning thereby there was no mention with regard to cause of injury. Thus, he can also be given benefit of doubt. In view of the aforesaid inconsistencies available on record, it would not be safe to convict him.
In 'Anjlus Dungdung vs State Of Jharkhand on 4 October, 2004 Appeal (crl.) 360 of 2004 it was also observed that : "Thus, from the aforesaid discussion, it would be clear that out of the five circumstances, the prosecution has failed to prove the recovery of blood stained balwa and tangi upon the disclosure statement of accused Rajesh Yadav @ Raju Gowala by credible evidence. The circumstance that the appellant came to his village from Punjab four to five days before the date of the alleged occurrence and was seen by PW 18 in village Simdega cannot be said to be an unnatural conduct on the part of the appellant, as such the same cannot be taken as a circumstance against him. Recovery of one torch cell and knife from the pocket of appellant after the date of alleged occurrence cannot be used as a circumstance against him, especially when neither there is any case nor evidence that the knife recovered was stained with blood. The other circumstances which remain are motive and letter written by the appellant giving false information to his brother that he was dead. These two circumstances raise strong FIR no. 541/04 State Vs Vinod etc 49 suspicion against the appellant, but it is well settled that suspicion howsoever strong it may be cannot take the place of proof. In any view of the matter, on the basis of these circumstances, it is not possible to draw an irresistible conclusion which is incompatible with innocence of the appellant so as to complete the chain. It is well settled that in a case of circumstantial evidence, the chain of circumstances must be complete and in case there is any missing link therein, the same cannot form the basis of conviction. For the foregoing reasons, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt against all the accused persons, much less the appellant."
Again in case 'Gurcharan vs State on 8 January, 2010' it has been observed that : "41. In offences inviting extreme penalty of imprisonment for life or death, it is expected that every point urged would be dealt with by razor sharp precision and sound logical reasoning and not on the ipsit dixit of a Judge."
In 'Jag Narain Prasad vs The State Of Bihar on 31 March, 1998' observed that :
6. As stated earlier, we are now not concerned with the conviction of Om Prakash and the only question to be considered is whether the appellant had really exhorted his son to kill any one from the other side . According to PW1 Raj Kumar, the appellant had stated: " why are you watching their faces, kill those FIR no. 541/04 State Vs Vinod etc 50 persons". This witness was contradicted by his police statement wherein he had not stated that the appellant had exhorted his son to fire a shot. He was also contradicted by his police statement wherein he had not even referred to the name of appellant jag Narain as one of the accused present at the time of the incident. PW3 Martin Sarfin stated before the court that the appellant had given an order and upon his order Om prakash had fired a shot. He did not refer to the exact words spoken by the appellant. Moreover, we find that he had tried to make an important improvement by stating that Arun had a pistol in his hand at the time of the incident. No other witness had stated like that. This deliberate improvement made by the witness indicates that he was not an impartial and truthful witness and had tried to falsely implicate Arun by ascribing a positive role to him by stating that he was carrying a pistol at the time of the incident. PW4 Regina Martin had stated before the court that the appellant had told his son: " What are you seeing, fire." Apart from the other inconsistencies as regards the sequences of the events, we find that she had also tried to make an improvement by stating that she had tried to prevent Om Prakash from firing his gun bu Om Prakash gave her push with the butt of his gun and had them fired at Prabhakar. PW5 Shailendra deposed that the words uttered by the appellants were: " What are you seeing, shoot a bullet. " He had lodged the FIR . Therein what he had stated was that the appellant had told his son "what were they seeing and to kill them" . From the above narration of what the witnesses had stated, it clearly appears that there is not consistency as regards the words spoken by the appellant before Om Prakash had fired his gun. PW1 had not stated before the police that the appellant was present when Om Prakash fired a shot. Though there is no evidence to show that there was any previous enmity between the prosecution witnesses and the appellant and his sons, they having lost one of their family members had tried to FIR no. 541/04 State Vs Vinod etc 51 implicate all the three accused. Their version also appears to be improbable and unnatural because the appellant being an aged person would not have told his son to fire a shot, kill the neighbour and get himself involved in a serious offence of murder. What appears to have happened is that having noticed that his son was going out with a gun, he followed him with a view to see what was happening and also to prevent him from committing any offence. There is no evidence to show that the appellant had started along with his son from his house. The evidence also discloses that houses of the prosecution witnesses and the accused were very close to each other. Possible believing that mere presence of the father at the time of the incident will not be regarded as sufficient to involve him, PWs 3 to 6 who are all family members appear to have attributed certain words to him.
7. All these aspects have not been considered by the High Court. We are of the view that the prosecution has not proved beyond reasonable doubt that the appellant had exhorted his son to kill Prabhakar and therefore the High Court was not right in confirming the conviction of the appellant. We, therefore, allow this appeal, set aside the judgment and order passed by the High Court and acquit the appellant of the charge levelled against him. His bail bonds are ordered to be discharged.
In judgment '2003 (1) C.C. Cases (SC) 145 - Bharat Vs. State of M.P.' it has been observed that: "Mere nonexplanation by the accused regarding the prosecution evidence cannot lead to the proof of guilt against the accused. The prosecution has to prove its case beyond doubt."
FIR no. 541/04 State Vs Vinod etc 52 I have perused the above said citations carefully. The sum and substance of the above said citations is that facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must be create a network from which there is no escape for the accused. When a murder charge is to be proved solely on circumstantial evidence, the presumption of innocence of the accused must have a dominant role. For convict the accused there should be cogent evidence. The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence FIR no. 541/04 State Vs Vinod etc 53 of the accused and must show that in all human probability the act must have been done by the accused. Extrajudicial confession made by accused is not reliable. There should be any motive. In offences inviting extreme penalty of imprisonment for life or death, it is expected that every point urged should be dealt with by razor sharp precision and sound logical reasoning and not on the ipist dixit of a judge.
42.Contrary to it, ld. APP argued and submitted that there is sufficient material on record to hold the accused persons guilty for the offences punishable u/s 392/302/364/201/120B IPC precisely for the reasons that PW1 Mohan has correctly identified accused Vinod Solanki @ Abhay and Birender who were arrested from village Patiyali on 10.11.2004. Ld. APP again submitted that it was accused Vinod who had hired the vehicle in question disclosing his name as Abhay, as per version of PW1. Ld. APP again argued and submitted that deceased was strangulated by a plastic rope which has been FIR no. 541/04 State Vs Vinod etc 54 exhibited as Ex.PX1 along with other articles of deceased. Ld. APP further argued and submitted that deceased was lastly seen with accused persons when they hired the alleged vehicle and proceeded for Aligarh. Thereafter, Tata Qualis and driver Vijay (now deceased) were found missing. Dead body of deceased Vijay was found by Patyali Police of District Etah, U.P. lying at Dhoomri Road at a distance of one Kilometer north from village Jaasmai near Nala and postmortem of the dead body was got conducted, in this regard a 'Zero' FIR was already lodged at PS Patyali . Alleged vehicle has also been recovered in this case. Ld. APP submitted that accused persons hired the said vehicle for looting and for this purpose they made conspiracy to hire the Tata Qualis no. HR - 38 GT 3590. Thereafter, committed the murder of deceased Vijay on the way. On these grounds ld. APP submitted that accused persons be convicted.
43.In this case there is no direct evidence so the case will revolve around circumstantial evidence. In this regard the principles of FIR no. 541/04 State Vs Vinod etc 55 circumstantial evidence have been well illustrated by Hon'ble Supreme Court in 'Padala Veera Reddy Vs State of A. P. and Ors.' that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
44.Time and again Hon'ble Apex Court reiterated the principles and explaining the magnitude of conviction on the basis of circumstantial evidence through catena of judgments reduced the above principles into the following three principles i.e. in case titled as 'Chandmal V FIR no. 541/04 State Vs Vinod etc 56 State of Rajasthan AIR 1976 SC 917':
i) The circumstances from which evidence is drawn must be cogently and firmly established;
ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else.
45.The sum and substance of illustrations of the above bottom line principles is that as and when any conviction is recorded on the basis of the circumstantial evidence the court must take extra cautions to evaluate each and every aspect of the act of the accused and a chain of facts as well as artifacts which can give only one conclusion i.e. of inevitable finding and no scope of doubt remains in the chain of facts and artifacts.
46.Having gone through the whole case file and submissions of ld. counsel for accused persons, I perused the Section 106 of the Evidence Act which itself is unambiguous and categorical in laying FIR no. 541/04 State Vs Vinod etc 57 down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the FIR no. 541/04 State Vs Vinod etc 58 Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search out, the court have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court within permissible limit to find out the truth.
47.It may be observed here that it is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence FIR no. 541/04 State Vs Vinod etc 59 would be assailed as vague and evasive, on the contrary if they speak to all events very well and correctly their evidence becomes vulnerable to be attached as tutored. Both approached are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person.
48.There are several overwhelming inconsistencies, blemishes and glaring contradictions in the evidence of the prosecution witnesses which remain unexplained by the prosecution and these blemishes are fatal to the prosecution version as they strike at the root of the case. It is clear from the record that there is no direct eye witness to the incident of murder of deceased and the prosecution case is based on circumstantial evidence and last seen theory. FIR no. 541/04 State Vs Vinod etc 60
49.In the present case, there is no direct eye witness, the entire case hinges on circumstantial evidence. Regarding cases based on circumstantial evidence, it has been held in 2009 111 AD (SC) 389 as follows : "when a case rests on circumstantial evidence, such evidence must satisfy of quoted tests viz: the circumstance from which an inference of guilt is sought to be drawn, must be cogently and firmly established; those circumstance should be of definite tendency unerringly pointing towards the guilt of accused; the circumstance taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and in capable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
50.Having gone through the whole case file and perusal of the arguments led by the ld. counsel for the accused persons my findings in this case are as follows:
During the course of deposition of PW1 Mohan identified accused Vinod s/o Lokpal as Abhay who visited with his associates at the time of hiring the vehicle in question bearing no. HR 38 GT - 3590 on 04.11.2004. Contrary to it, PW3 Sri Bhagwan, owner of TATA Qualish identified accused Birender as Abhay.FIR no. 541/04
State Vs Vinod etc 61
a) The above contradictions leave the status of Abhay whether Abhay was accused Vinod s/o Lokpal or accused Birender. This finding whether accused Abhay was Birender or Vinod s/o Lokpal will impact the case of the prosecution precisely for the reasons that both the accused persons Vinod s/o Lokpal and Birender have been identified by PW1 Mohan. Photocopy of Vehicle booking slip contains the name of Abhay Kumar by whom the vehicle was got booked vide receipt no.185 dated 04.11.2004. On 05.11.2004 two dead bodies were recovered in the area of PS Patyali near Nauri Village Distt. Etah, U.P. These dead bodies were cremated / disposed of by the police officials of PS Patyali after obtaining the photographs and keeping articles in safe custody belonging to deceased persons vide deposition of PW1.
'Zero' FIR Ex.PW11/DA dated 09.11.2004 u/s 302/201/394/120B IPC was registered at PS Patyali at the instance of PW Rajesh brother of PW3 Sri Bhagwan against accused persons namely Birender Singh s/o Suraj Singh, Vinod s/o Lekhpal, Smt. Maju, Paveneeta and Rita Devi.
At the instance of PW3 Sri Bhagwan an FIR no. 541/04 dated 10.11.2004 u/s 365 IPC vide Ex.PW12/A of the present case was registered at PS Kashmiri Gate. The challan was filed for the offences u/s 302/364/201/120B IPC against accused persons namely Vinod s/o Lokpal, Birender s/o / Suraj Singh , Vinod Master s/o Bhim Singh and Koshlander @ Sanjeev s/o Rattan Singh.
FIR no. 541/04 State Vs Vinod etc 62 Accused person namely Vinod s/o Lokpal, Birender, Vinod Master and Koshlander @ Sanjeev along with one advocate Pramod visited in Ambika Lodge on 05.11.2004 vide their visiting entry at Ex.PW22/A vide deposition of PW22 Akhilesh Dubey. But he could not identify accused Vinod due to lapse of long time.
Deceased Vijay Kumar was the driver of above said vehicle on 04.11.2004 vide deposition of PW3 Sri Bhagwan and PW1 Mohan.
Dead Dead body of deceased Vijay Kumar was recovered on 05.11.2004 vide GD no.36 vide Ex.PW8/A, regarding lying unknown dead body at Dhoomri Road at a distance of one Kilometer north from village Jaasmai near Nala in a ditch near the road vide depositions of PW8 Ct. Rajinder Singh, from Etah, U.P. and PW6 Kishanvir Singh.
PW10 Rajinder Singh identified the dead body of deceased Vijay Kumar as of his younger brother on the basis of photographs Ex.PW2/A1 to A3. He has also identified the belt, shoes, sweater etc of the deceased.
PW23 is Dr. V.K. Dubey, conducted the postmortem on the dead body of the deceased. He gave opinion that 'death was due to asphyxia as a result of strangulation' vide postmortem report Ex.PW16/C. Vehicle in question bearing no. HR 38GT3590 was recovered in the jurisdiction of PS Shivli as unclaimed vide seizure memo Ex. PW16/G and deposition of PW13 HC Ramesh Chand.
The dead body of deceased was thrown in the area FIR no. 541/04 State Vs Vinod etc 63 of PS Patyali, neither any scaled plan nor the area where from the dead body was recovered by the Patylai police for its cremation / disposal was prepared by Patyali Police or by Delhi Police. However, the pointing out memo was prepared at the instance of accused Vinod and accused Birender. In this pointing out memo Ex.PW16/F the place of recovery has been shown a ditch as told by the accused persons.
Accused persons namely Vinod @ Master and Koshalender refused to participate in the TIP proceedings vide TIP proceedings Ex.PW17/A and Ex.PW17/B and deposition of PW17 Insp. Randhir Singh.
The signature for the purpose of identification in respect of accused Abhay neither were sent to CFSL / FSL nor the signatures of accused Vinod s/o Lokpal or Birender were obtained to clarify the identity of Abhay.
Accused Vijay Bahadur @ Monu also got prepared the pointing out memo Ex.PW17/F of the place where he had left the vehicle in question in the area of PS Shivli.
On 08.11.2004 a complaint was reduced in the DD entry.
Accused Birender and Vinod were arrested from Village Nauri, Distt. Etah vide arrest memo Ex.PW1/C and Ex.PW1/D respectively.
Disclosure statement of accused Vinod and Birender were recorded vide Ex.PW16/D and PW16/E respectively. Consequent upon the disclosure FIR no. 541/04 State Vs Vinod etc 64 statement of accused persons, accused Vinod Master and Koshlaneder @ Sanjeev were arrested vide arrest memos Ex.PW14/A and PW16/H respectively. Their disclosure statements are Ex.PW16/K and PW16/L respectively.
Accused Vijay Bahadur was arrested on 26.04.2006 vide arrest memo Ex.PW17/C. His disclosure statement was recorded vide Ex.PW17/E and at his instance pointing out memo with respect to abandonment of vehicle in question was prepared vide Ex.PW17/F dated 27.04.2006.
51.It has come on record in the statement of PW17 that accused Vinod @ Master and Koshalender refused to participate in the TIP proceedings vide TIP proceedings Ex.PW17/A and PW17/B. This fact also indicates that accused persons have something in their minds for not having participated in TIP proceedings. But the accused persons did not lead any defence witness contrary to the statement of witnesses disclosing his defence with regard to depart of accused with deceased as deceased was seen with accused persons namely 1.Vinod @ Master, 2.Birender, 3.Koshlender and
4.Vinod s/o Lokpal when they hired the vehicle from M/s Gujrat Travels at Jat Fauji Dharamshala, Zamuna Bazar, Delhi and FIR no. 541/04 State Vs Vinod etc 65 proceeded with driver / deceased Vijay Kumar vide deposition of PW1 Mohan. Since in every case of abduction there either force is exercised or deceitful means are applied. In the present case deceitful means were applied to abduct the deceased Vijay Kumar with vehicle bearing no.HR 38 GT 3590 (Tata Qualis). To this effect charge u/s 364 IPC was framed against the accused persons vide dated 14.07.2006.
52.Now this court may consider to apply bottom line principles as laid down by the Apex Court in the judgment '2009 111 AD (SC) 389' for evaluation of the conduct of accused to determine the conviction or acquittal of accused on the basis of circumstantial evidence.
53.Largely and precisely circumstantial evidence refers to the cases when no direct testimony comes on record, the court may examine circumstances under which the offence was committed and role of each and every accused connected with the incident and deduction on the basis of patches brought on record by the prosecution. These FIR no. 541/04 State Vs Vinod etc 66 principles have been laid down by the Apex Court to apply with care, caution and circumspection and only when no conclusion other than that in all circumstances nothing is proved except with the probability of committal of offence by the accused persons and none else accused can be convicted.
54.In the present case it has been brought on record that accused Vinod s/o Lokpal hired the vehicle from M/s Gujrat Travels situated at Jat Fauji Dharamshala, Zamuna Bazar, Delhi for Aligarh by introducing himself as Abhay vide deposition of PW1 Mohan. To my view the arguments of ld. counsel for the accused persons that prosecution itself is confused with regard to identity of Abhay whether he was accused Vinod s/o Lokpal or Birender who hired the vehicle in question hold some water to consider.
55.It has also been brought on record that dead body of deceased Vijay was recovered on 05.11.2004 lying on the side of road leading towards north from Village Jasmai at a distance of one kilometer and FIR no. 541/04 State Vs Vinod etc 67 on 06.11.2004 the body was cremated and till the cremation the body remained unidentified vide deposition of PW7 Ct. Ram Singh from Etah U.P. It has also been proved on record that dead body was of deceased Vijay vide deposition of PW10 Rajinder Singh who identified the dead body of deceased Vijay Kumar as of his younger brother on the basis of photographs Ex.PW2/A1 to A3. He has also identified the belt, shoes, sweater of deceased. Accused Vinod s/o Lokpal and accused Birender pointed out the place where dead body of Vijay was thrown vide pointing out memo Ex. PW16/F.
56.So long as accused persons namely Vinod @ Master and Koshlender are concerned, it has come on record in the deposition of PW17 Insp. Randhir Singh that accused Vinod @ Master and Koshlander refused to participate in the TIP proceedings vide TIP proceedings Ex.PW17/A and PW17/B. FIR no. 541/04 State Vs Vinod etc 68
57.It has come on record in the deposition of PW3 that the name of Bhagwan happens to be Sri Bhagwan and he stated in his deposition that he is the owner of the alleged vehicle i.e. Tata Qualis bearing no. HR 38 GT - 3590 and this vehicle was deployed with Gujrat Travels Agency. On 05.11.2004 when vehicle did not turn up he enquired from PW1 Mohan, owner of M/s Gujrat Travels regarding non returning of the aforesaid vehicle along with its driver Vijay. PW1 Mohan provided him the address of accused Birender. Thereafter he along with Rajesh Kumar (PW5) went at the given address where PW14 Karan Singh met them. PW14 Karan Singh stated that Santosh brother of accused Birender lives in the same area but they were not found present at the house of Santosh situated in the area of Loni. He reported the matter to the police on 08.11.2004 vide his complaint Ex.PW3/A. This witness has been cross examined by ld. APP. He corrected himself to the fact that one Mr. Abhay had booked the vehicle from Gujrat Travels. The number of telephone of accused Abhay was 9818771519. He also corrected FIR no. 541/04 State Vs Vinod etc 69 himself that address mentioned in Gujrat Travels was D8, Jawahar Nagar, Loni and that on enquiries at the said address , he came to know that actual name of Abhay was Birender while PW1 Mohan, owner of M/s Gujrat Travels has deposed that Abhay was Vinod s/o Lokpal . It is interesting to note that in his deposition he stated that accused Vinod s/o Lokpal had signed the receipt himself as Abhay vide Ex.PW1/E. It is also interesting to note that it has come on record in the deposition of PW3 Sri Bhagwan that when he enquired from PW1 Mohan regarding his vehicle and driver deceased Vijay Kumar and he made a complaint vide Ex.PW3/A in which it was stated by him that at the time of booking the vehicle in question, 3 gents, 2 ladies and 3 children had come to book the alleged vehicle on 04.11.2004 and his vehicle was supposed to come back on 5.11.2004 and consequently , upon his complaint FIR of the present case Vide PW12/A was registered. Further, perusal of the statement of PW1 and PW3 reveals material contradictions which go to the root of this case.
FIR no. 541/04 State Vs Vinod etc 70
58.So long as accused Vijay Bahadur @ Monu is concerned, no concrete evidence has come on record. But it has come on record in the crossexamination of PW17 Insp. Randhir Singh, I.O. that first he filed a challan against four accused persons but the challan was not filed against Vijay Bahadur @ Monu. Subsequently, on verbal directions of the then predecessor of this court the challan was prepared against Vijay Bahadur @ Monu. After preparation of challan against accused Vijay Bahadur @ Monu in March 2005 he neither made any further investigation nor collected any other evidence against him upto April 2006. He admitted that he has not diluted the investigation thereafter as there was no proof during the investigations found against accused Vijay Bahadur @ Monu. Besides, PW Parmod Kumar who has been cited as witness by the I.O. in respect of accused Vijay Bahadur could not be examined. He could have been the star witness in this case in respect of accused Vijay Bahadur @ Monu since he is an advocate by profession at Orayya to whom accused Vijay Bahadur @ Monu along with co FIR no. 541/04 State Vs Vinod etc 71 accused persons approached to sell the vehicle in question but on knowing the facts he asked the accused persons to go away from his house along with the alleged vehicle. A careful perusal of the disclosure statement of accused Vijay Bahadur @ Monu reveals that he left the vehicle bearing no. HR 38 GT 3590 at Shivli and to this effect a pointing out memo was prepared at the instance of accused Vijay Bahadur @ Monu vide Ex.PW17/F, which was taken away by coaccused persons. It is interesting to note that accused Vijay Bahadur was arrested by the I. O. on 26.04.2006 and a supplementary challan was filed before this court on 17.05.2006 and a charge was directed to be framed against him for the offence u/s 201 IPC vide dated 14.07.2006.
59.It is pertinent to mention here that though the pointing out memo with respect to vehicle no.HR 38 GT 3590 was prepared at the instance of accused Vijay Bahadur @ Monu by PW17 I.O. and duly witnessed by Ct. Brij Lal and Ct. Beant Singh and it has been FIR no. 541/04 State Vs Vinod etc 72 exhibited as Ex.17/F yet the sight of the fact cannot be lost in this regard that the vehicle was found unclaimed by the police of police station Shivli, Kanpur and no witness has been examined from PS Shivli. I find in the deposition of PW17 regarding the fact that the place of recovery of vehicle was not in the knowledge of I.O. prior to the preparation of pointing out memo vide Ex.PW17/F.
60.The latest technical questions while deciding a case on the circumstantial evidence, Hon'ble Supreme Court has observed in case 'Musheer Khan @ Badshah Khan & Anr. Vs. State Of M.P. 2010 [3] JCC 1648' it has been observed that:
49. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. {See Raghav Prapanna Tripathi and others vs. State of U.P. AIR 1963 SC 74}.
51. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali vs. Emperor (43 Indian Cases 241 at para 14) that when in a criminal case there is conflict between presumption of FIR no. 541/04 State Vs Vinod etc 73 innocence and any other presumption, the former must prevail.
53. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy vs. King Emperor (11 CWN 1085) it was held the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Indian Evidence Act may have in civil or in less serous criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence."
Hon'ble Supreme Court in this case ruled that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. Similarly, it was also observed by the Hon'ble Apex Court that all links in the chain of evidence must be proved beyond reasonable doubt and they must excludes the evidence of guilt of any other person than the accused. Again, it was observed that inter alia that when there is conflict between the presumption of innocence and any other presumption, FIR no. 541/04 State Vs Vinod etc 74 the former must prevail and when a murder charge is proved solely on the circumstantial evidence, the presumption of innocence of the accused must have a dominant role.
61.In judgment 'State vs Nikhil @ Rahul, 27 November, 2009' Hon'ble Mr. Justice Sanjay Kishan Kaul in the High Court of Delhi quoted as follows: "39. Pulukuri Kottayya v. King Emperor is an authority for the proposition that "fact discovered"
envisaged under Section 27 of the Indian Evidence Act, 1872, embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given in that behalf must relate distinctly to that effect, stating:
"The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as related distinctly to the fact thereby discovered may be proved."
62.It is noted from the finding as mentioned above that there is no direct evidence against the accused persons for causing the death of deceased Vijay Kumar. In view of this the case is required to be FIR no. 541/04 State Vs Vinod etc 75 decided on the basis of circumstantial evidence. The top line principles to decide such type of cases, Hon'ble Supreme Court in a latest judgment 'Musheer Khan @ Badshah Khan & Anr. Vs. State Of M.P. 2010 [3] JCC 1648' (supra), in this case it has categorically been observed by the Hon'ble Court that the presence of innocence of accused has a dominant role in deciding such cases.
63.It is further interesting to note that the evidence brought on record against the accused persons is that that three persons came to book the alleged vehicle in question in the office of PW1 Mohan on 04.11.2004 and to this effect a slip was for booking the vehicle was issued to the accused persons who visited the spot and it was duly signed and acknowledged by one of the accused who signed as Abhay.
64.After non returning of vehicle as per the booking schedule, the search for vehicle and driver was initiated at the instance of owner of FIR no. 541/04 State Vs Vinod etc 76 vehicle on 05.11.2004 when vehicle did not turn up he enquired from PW1 Mohan, owner of M/s Gujrat Travels regarding non returning of the aforesaid vehicle along with its driver Vijay. PW1 Mohan provided him the address given by accused persons. Thereafter, he along with Rajesh Kumar (PW5) went at the given address where PW14 Karan Singh met them. PW14 Karan Singh stated that Santosh brother of accused Birender lives in the same area but they were not found present at the house of Santosh situated in the area of Loni. He reported the matter to the police on 08.11.2004 vide his complaint Ex.PW3/A. Thereafter, two accused persons namely Accused Birender and Vinod @ Abhay were arrested from village Nauri Distt. Etah vide Arrest Memo of accused Birender Ex.PW1/C and arrest Memo of accused Vinod s/o Lokpal Ex.PW1/D on their disclosure statements no recovery was effected except a pointing out memo which was prepared by the I.O. vide Ex.PW16/F at the instance of accused persons Birender and Vinod s/o Lokpal. In view of the judgment 'State vs Nikhil @ Rahul, 27 November, 2009' FIR no. 541/04 State Vs Vinod etc 77 Hon'ble Mr. Justice Sanjay Kishan Kaul deciding this case mentioned the case 'Pulukuri Kottayya v. King Emperor ' discussed (supra) in view of this judgment the pointing out memo is admissible against both the accused persons but the question remains who was accused Abhay Kumar out of them creates a doubt in the whole story brought on record by the prosecution and the I.O. as no TIP was got conducted in respect of these two accused persons and no signatures of any of the accused was collected by the I.O. for verification from the FSL/ CFSL. This state of affairs creates hole to conclude that Abhay Kumar named person was either Birender or Vinod s/o Lokpal or someone else. Similarly, on the disclosure statements of these two accused persons the investigation in respect of other two accused persons namely Vinod Master and Koshlander @ Sanjeev was proceeded and consequently these accused persons were arrested and TIP applications in respect of them was moved but they denied to participate in the TIP vide TIP proceedings Ex.PW17/A and PW17/B. FIR no. 541/04 State Vs Vinod etc 78 The disclosure statement of both these accused persons were also recorded but nothing was recovered at their instance. In the chain of these events one of the accused Vijay Bahadur also arranged to get the vehicle disposed of but he got pointed out the place where from the vehicle was recovered vide pointing out memo ExPW17/F.
65.So long as the evidence part on the disclosure statement of accused persons is concerned, the pointing out memos prepared at their instance and no discovery of fact consequent upon their disclosure statement except that one of the coaccused persons namely Vijay Bahadur was arrested who pointed out the place where he had left the vehicle in question vide Ex.PW17/F. Careful perusal of this part of the evidence reveals that conviction solely on these grounds in view of the case law discussed supra, I am of the view prosecution has failed to prove the case beyond reasonable doubt against any of the accused persons for the conviction u/s 364/ 302/ 392/ 120B IPC. Other witnesses have already been discussed at length, in light of FIR no. 541/04 State Vs Vinod etc 79 the preceding discussion the deposition of other witnesses does not impinges upon the substantial part of the evidence which can prove the case against the accused persons for conviction beyond reasonable doubt.
66.Any how if we believe the missing mark of this link in the chain weaving the clean and smooth circumstances leading to afford only the one hypothesis that in all probabilities accused persons have committed the offence of murder, it may impact the rule of prudence and miscarriage of justice. However, it can firmly and reasonably be concluded that the accused persons were in association of each other prior to immediately committing the offence precisely for the reasons that when accused persons were taken on PC on 13.11.2004 they led to Ambika Lauge/Guest House from where I.O. seized the photocopy of register vide Ex.PW22/A wherein names of accused persons Birender, Sajeev@Koshlander, Vinod Master and Vinod s/o Lokpal have been found mentioned and signed with regard FIR no. 541/04 State Vs Vinod etc 80 to their staying in Ambika Lauge on 05.11.2004. They were got stayed there with the help of one Pramod vide deposition of PW17 and Ex.PW22/A (copy of register from Ambika Lauge). Accused Vijay Bahadur @ Monu after his arrest, on the disclosure statements of other coaccused persons namely 1.Vinod s/o Lokpal, 2.Birender,
3.Koshlander @ Sanjeev and 3.Vinod Master vide their disclosure statements Ex.PW16/D, PW16/E, PW16/K and PW16/L, got prepared the pointing out memo vide Ex.PW17/F where he had left the vehicle in question in abandoned condition and this vehicle bearing no. HR 38GT3590 was recovered in the jurisdiction of PS Shivli as unclaimed vide seizure memo Ex. PW16/G and deposition of PW13 HC Ramesh Chand. This part of material and evidence on record hold some water that all the accused persons guilty for the offence of entering into criminal conspiracy within the meaning of section 120B IPC to destroy the evidence u/s 201 IPC as the recovery of vehicle in question directly links with the deceased and this chain of facts clearly and cogently gives only one inference that FIR no. 541/04 State Vs Vinod etc 81 accused persons if not committed the murder of deceased they have definitely committed the offence to destroy the evidence after a criminal conspiracy u/s 120 B and 201 IPC in view of the deposition of PW17 and pointing out memo Ex.PW17/F and vide Ex.PW16/F.
67.In judgment 'Begu V. K.E.;
1925 ILR 6 Lah 226 (PC);
Mohammad V. State of Kerala, (1988) 2 Ker LJ 470;
Kalawati, 1953 SCR 546, 557' it has been observed that: "The person charged with the main substantive offence can be convicted under Section 201 without specific charge"
In another case 'Basanti V. State of H.P., 1987 Cr LJ 1869 (SC) :
AIR 1987 SC 1572. Such disposal must be proved as a fact. State of Rajasthan V. Kamla, 1991 Cr LJ 602 (SC) : AIR 1991 SC 967' it has also been observed that: "Where the main offence is proved to have been committed by X, and Y (also charged as coaccused for main offence of murder) is acquitted for want of evidence, it can still be convicted under Section 201 for assisting in disposal of dead body if guilty knowledge is proved."FIR no. 541/04
State Vs Vinod etc 82
68.Therefore, in light of the above discussed facts and circumstances of the case I acquit accused persons namely 1.Vinod s/o Lokpal,
2.Birender, 3.Koshlender and 4.Vinod Master for the offences punishable u/s 364/ 302/ 392 IPC by giving them benefit of doubt. However, in light of the judgments discussed ( supra ) I convict accused persons namely 1.Birender and 2.Vinod s/o Lokpal for the offences punishable u/s 120B and 201 IPC read with sections 364/ 302/392 IPC for the reasons as discussed above. I also convict accused persons namely 3.Vinod Master, 4.Koshlander and
5.Vijay Bahadur @ Monu for the offences punishable u/s 120B and 201 IPC read with section 302 IPC for the reasons as discussed above.
Accordingly, I acquit accused persons namely
1.Vinod s/o Lokpal, 2.Birender, 3.Koshlender and
4.Vinod Master for the offence punishable u/s 364/ 302/ 392 IPC by giving them benefit of doubt; and I convict accused persons namely 1.Birender and
2.Vinod s/o Lokpal for the offences punishable u/s 120B and 201 IPC read with sections 364/ 302/392 IPC for the reasons as discussed in the preceding paras;
FIR no. 541/04 State Vs Vinod etc 83 I also convict accused persons namely 3.Vinod Master, 4.Koshlander and 5.Vijay Bahadur @ Monu for the offences punishable u/s 120B and 201 IPC read with section 302 IPC for the reasons as discussed above.
COURT OBSERVATIONS Before parting with the judgment the court would like to record the conduct of the IO. In this regard it is on record that I.O. has not got conducted TIP in respect of accused Vijay Bahadur nor he made the witnesses from PS Shivli. I.O. has also not placed the rope before concerned doctor to obtain subsequent opinion. The conduct of the I.O. with regard to preparatory, adoptive, communicative and implementative framework was found inadequate with regard to conduct of investigation of the case. Copy of the judgment be sent to DCP concerned to take necessary steps into the matter so as to prevent the recurrence of such incidents.
ANNOUNCED IN THE OPEN COURT ON THIS 08.09.2011 (RAJ KAPOOR) ASJ02/West Distt.
THC : Delhi FIR no. 541/04 State Vs Vinod etc 84