Delhi District Court
Accused ( Relied Upon Birdhichand Sarda vs State Of on 11 February, 2011
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IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS
(NORTH) DELHI
SC NO. 29/07
STATE
versus
Dharmender Kumar Pal
S/o Kanoji Lal
R/o vill. Fatehpur Gani
PS Bewer, Distt. Mainpuri
UP
FIR No. : 224/07
Offence U/S : 302/397IPC
& 25 Arms Act
Police Station : D.B.G. Road
DATE OF INSTITUTION: 5.9.07
JUDGMENT RESERVED ON: 20.1.2011
DATE OF JUDGMENT: 7.2.2011
JUDGMENT
1 The accused Dharmender Kumar Pal s/o Kanoji Lal has been facing trial for the offences punishable u/s 302 IPC, 392/394 / 397 IPC and also u/s 27 Arms Act 1959, on the basis of chargesheet filed in case FIR no. 224/07 P.S Deshbandhu Gupta Road, Delhi.
S.C.No. 29/07 Page 1 of 32 pages
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2 The case of the prosecution is that on 14.5.07, accused
was deputed as gunman/guard at NDPL Zonal office, Tibia college (423) New Rohtak Road, Delhi and between 3 pm to 3.40 pm, accused in order to commit theft, caused death of cashier Parmod Pathak by firing at him and also removed Rs 2,75,000/ from the said office. The accused was apprehended shortly after the occurrence and recovery of cash Rs 2,75,000/ was effected from him. The weapon of offence i.e rifle was found lying at the spot itself and was seized during the investigation. The accused was arrested and after completion of investigation chargesheeted. 3 The charge was framed against the accused on 13.9.07 for the offences punishable u/s 302/392/394/397 IPC and U/s 27 Arms Act 1959 and was read over and explained to him to which he pleaded not guilty and claimed trial. 4 Prosecution examined 27 witnesses in all to bring home the guilt of the accused.
5 PW1 HC Satayaveer Singh, recorded FIR of the present case being the duty officer on 14.5.07/15.5.07 vide EXPW1/A. 6 PW2 Satish Yadav is the complainant and have been working as Head, NDPL enforcement Coordination Pitampura, Delhi. He deposed that on 14.5.07 at about 7.15 p.m., he received information that cashier and gunman at Tibia college cash collection centre, were not available and S.C.No. 29/07 Page 2 of 32 pages 3 centre was closed. He was directed to look into the matter and he alongwith his team reached the said office and found that cash collection centre was closed from both sides. The cash collection delivery van was parked outside the centre and custodian Fateh Singh told that since 3.40 pm he was there and the cashier and gunman were not traceable. Vanesh Tyagi, executive revenue NDPL, also reached there with other officials. Meanwhile police was called and the police broke open the lock to enter the cash centre. They found that cashier Parmod Pathak was lying dead on the chair and blood was spread on the floor and bullet wound on the back of the deceased was visible. The right side cabin of the cashier was vacant and the gun was lying under the table of the cabin. The cash amount of Rs 37220/ was lying on the table of the cashier and also one bank deposit slip for Rs 3,12,220/was found there. The rest of the amount of Rs 2,75,000/ was found missing. The gunman Dharmender was not present there. The statement of PW2 was recorded vide EXPW2/A bearing his signatures. He further joined the investigation with IO inspector Umesh Singh and Vanesh Tyagi was also with them. The photographs of the spot were taken and site plan was prepared. The blood of the deceased was collected in gauze piece. The belongings of the deceased were seized from the spot. IO also took into possession pay in slip in duplicate of IDBI bank wherein S.C.No. 29/07 Page 3 of 32 pages 4 amount of Rs 3,12,220/ was filled up. The IO had also taken bullet leads from the customer lobby by the side of the hall and kept in plastic box and was sealed with the seal of US. Rifle from cabin no. 2 having two live cartridges was taken into possession after converting the same in a parcel. The live cartridges were separately sealed in a parcel with the seal of US. The rifle cover of green colour was also taken in possession from the spot. The dead body of Pramod Pathak was sent to mortuary. PW2 further proved the memos prepared in this regard vide EXPW4/A to E. The exhibits were produced and correctly identified by the witness like blood gauze piece, mobile phone of deceased, bullet leads, rifle, two test fired cartridges and belongings of the deceased.
During cross examination, PW2 stated that he has no knowledge where the guard used to keep his rifle/ammunition etc. Their attendance register is not maintained at their office. Mr Panish Dadi and Bhagat
Singh, officers of group 4 informed about the duty of accused Dharmender. The statement of PW2 was recorded at the spot. He could not tell if finger prints were lifted from the spot. He denied the suggestion that accused Dharmender was not on duty on the date of incident or that he has been falsely implicated.
7 PW3 Om Dutt was working as telephone operator at NDPL, zone 423, Tibia college, Delhi. He deposed that on S.C.No. 29/07 Page 4 of 32 pages 5 14.5.07 at about 3.30 pm, the accused who was working as gunman at the said office came out from the cabin of the cashier and passed through from the front of complaint centre. The accused was having two bags with him and was not having his gun at that time. He was in civil clothes. The cash collection team reached there and thereafter again came and tried to open the room of cashier but it could not be opened. The Head Cashier also reached office and tried to contact cashier Pramod pathak on his moble and the ring of the mobile was being heard outside. The police was called and cashier room was opened by breaking the handle of the door and it was found that Pramod Pathak was lying dead on his chair. He came to know that an amount of Rs 2,75,000/ had been robbed from the cabin by the accused. His statement was recorded by the police on 15.5.07. During cross examination on behalf of accused, PW3 stated that there were two gates for reaching the cabin of the cashier. He could not tell as to from where the gun is provided to the gunman or where the same were kept after duty. The distance between the cabin of the cashier and complaint centre was about 30 to 40 metres. PW3 was alone in the complaint centre at that time. He had not heard the sound of gun shot as the office was sound proof. He denied the suggestion that he had not seen the accused on that day or that he is deposing falsely at the intance of the police.
S.C.No. 29/07 Page 5 of 32 pages
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8 PW4 Vanesh Tyagi, has been working as Revenue
Executive with NDPL. He received information on 14.5.07 at about 6.30 pm that gunman and cashier of cash collection centre, Tibia college, were missing and office was closed. He reached there and found certain other NDPL officials present there including Satish Yadav and Fateh Singh, the custodian of the cash collection van. The police was called and on breaking open the lock of cash centre, they found cashier Pramod Pathak lying dead on his chair. PW4 has further supported the fact that amount of Rs 2,75000/ was found missing and the gun was lying at the spot. He also proved various memos preapred at the spot EXPW4/AtoF. He further deposed that entire case property was deposited in the malkhana at about 4 am. Thereafter PW4 alongwith IO and SI Lekhraj and other police officials went in search of accused Dharmender . At about 5 a.m. accused was found standing at the bus stand Ambedkar Nagar and was apprehended with two bags, one containing cash Rs 2,75000/, currency notes bearing stamp of NDPL and 485 counter no. with date 14.5.07, the second bag was containing personal belongings of the accused including ESI card, mobile phone and bullets. Both the bags were converted in cloth parcels and sealed with seal of US and seized vide memo EXPW4/G. The disclosure statement of accused was recorded vide EXPW4/H and he was arrested vide memo S.C.No. 29/07 Page 6 of 32 pages 7 EXPW4/J and personal search memo EXPW4/I. On 17.5.07, PW4 produced one attendance register of guards/gunman and same was taken in possession vide memo EXPW4/K. According to PW4 , the accused Dharmender was deployed at Tibia college office of NDPL at the cash collection centre by him and the duty hours were from 9 am to 5pm. Cash property /exhibits were produced and correctly identified by PW 4 including the cash amount recovered from the accused EXP17. During cross examination , he deposed that lock of the cash collection centre was broken with sarias by the police. The crime team reached the spot at about 9 pm and he has no knowledge if chance prints were lifted. IO recorded the statement of Satish Yadav and thereafter statement of PW4 was recorded. The writing work was done opposite to the cash collection centre. He accompanied the police officials to PS and also alongwith Satish Yadav. Satish Yadav left after 4 am. PW4 left alongwith police officials in official van at about 4.15 am and they reached the bus stop Ambedkar Nagar, at about 5 am. The accused was alone at that time and was overpowered by the police. They remained at the spot for about 30 minutes. The attendance register used to remain in his department and staff had not marked their attendance in the register in his presence. He had not seen the accused on 14.5.2007 nor the signatures were done by the accused in the register in his presence on S.C.No. 29/07 Page 7 of 32 pages 8 that day. The guards used to carry gun either on their shoulders or to keep the same at the corner of the cash collection centre. PW4 has no knowledge that after duty, guns are taken by the guards with them or the same are kept in the department. He has no knowledge about another guard Ajay or that his father and brother are in Delhi Police. He denied the suggestion that accused has been falsely implicated or that nothing was recovered from him. 9 PW5 Surajpal, father of the deceased, identified the dead body of the deceased vide EXPW5/A and received the same after postmortem vide EXPW5/B. 10 PW6 G.C Mukherjee, handed over the application for employment of gunman Ajay and his contract of employment to the IO and also value contract concerning the supply of guards and gunman to NDPL which was seized vide EXPW6/A. He deposed that Ajay Kumar and Dharmender were supplied to NDPL for duties. He also produced original application for employment of Ajay Kumar EXP12 and contract of employment EXP14A. He also produced the original application for employment of accused EXP13A and his original contract for employment EXP15.
11 PW7 Dr. Vinod, conducted the postmortem on the dead body of Pramod pathak on 16.5.07. He examined the injuries and given the details of the same. He opined that S.C.No. 29/07 Page 8 of 32 pages 9 death was due to haemorrage and shock consequent upon firearm injuries which were fresh in duration and could have been caused due to rifled firearm. The injuries were sufficient to cause death in ordinary course of nature. He proved his report EXPW7/A. During cross examination he stated that fire was shot from near range.
12 PW8 constable Jugalkishore, was working as duty constable at PP Dev Nagar on 14.5.07 and recorded DD no 36 and proved the same vide EXPW8/A. 13 PW9 Fateh Singh, was working as cash collector and deposed that on 14.5.07 he alongwith gunman Shiv Kumar and Sanjeev kumar had gone to NDPL office, Tibia college, in a Tata Sumo for collecting the cash. As usual they reached main gate but found the same closed. They entered the premises through sub station and reached towards cashier room but found the said room locked. He knocked the door but there was no response. He came out and inquired from the labourers who told that gunman had left from there. PW9 then informed his supervisor Virender kumar Saini who asked him to wait for some time. Thereafter the supervisor informed him that cashier was not attending his calls and instructed him to collect cash from other centres. PW9 then left the place and and came again at about 8 pm and found NDPL officials present there and came to know about the murder of Pramod Pathak and theft of Rs 2,75,000/.
S.C.No. 29/07 Page 9 of 32 pages
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14 PW10 Sunil kumar was working as cashier at ATM
machine in NDPL office, where the occurrence took place. He stated that on 14.5.07 he was on duty in the office and on the other counter deceased Pramod Pathak was present.. The section of PW10 was separate from the section of the deceased. At about 3 pm the cash collecting vehicle of his section came and after collecting cash, the team went away. PW10 also left the office. He further stated that at the time he left the office, gunman Dharmender pal, the accused, alongwith deceased Pramod Pathak was present at the cash counter and accused had come out of the cabin of the deceased. The accused was not in uniform and was having different gun from what he usually used to have on duty. He specifically stated that when he left the office, there were only two persons in the said office the accused and the deceased Pramod Pathak. During cross examination, he could not tell the name of the gunman who was posted prior to the accused. He admitted that uniform of gunman is compulsory. He stated that he has no knowledge about another gunman Ajay who was also working in the office. He further denied the suggestion that accused Dharmender was not on duty on 14.5.07. The entry of the gunman was visible from his section as the cabin were made of glasses. He was able to identify the gun brought by the accused on the day of incident as it was shorter than the gun which he otherwise S.C.No. 29/07 Page 10 of 32 pages 11 used to carry daily. He denied the suggestion that he has not seen the accused in the office on 14.5.07 or that he is deposing falsely at the instance of police. 15 PW11 constable Ramesh Chand, joined the investigation of the present case and reached the spot of occurrence. He stated that on breaking open the latch of the door, the cashier Pramod Pathak was found dead in his cabin.
16 PW12 HC Murari Lal was working as MHCM at PS DBG Road and deposed about deposition of exhibits/case property in the malkhana on 15.5.07, 16.5.07, 17.5.07 and proved the relevant entires in the register No. 19. PW12 also stated about handing over of the parcels to HC Ramsarup for FSL Rohini on 8.6.07 and also about depositing of pay slip of IDBI bank , one register, one cheque and one application form by the IO in malkhana on 8.6.07. Relevant entries proved as EXPW12/A to D. 17 PW13 Prithvinath Pathak, brother of the deceased identified the dead body after postmortem. 18 PW14 SI Mahesh, draughtsman, Crime branch, proved the scaled site plan prepared by him EXPW14/A on the direction of the IO.
19 PW15 constable Haridass, delivered the copies of FIR of the present case to MM, Joint CP and DCP concerned.
20 PW16 HC Balram joined the investigation of the
S.C.No. 29/07 Page 11 of 32 pages
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present case and visited the spot of occurrence. He got the
case FIR registered on the basis of rukka sent by the IO. 21 PW 17 constable Mahesh Kumar, photographer with the crime team of Central Distt, visited the spot and took the photographs vide EXPW17/1 to 32.
22 PW18 HC Ramsarup joined the investigation of the case. They reached NDPL office Keshavpuram and Panish Dadi had shown them the change room of gunman, where gunman used to keep their guns in the almirah. On opening the almirah, one single barrel gun and a pouch with four live cartridges on the butt were recovered. They were seized vide EXPW18/A and one attendance register produced by Vanesh Tyagi was seized vide EXPW4/A . PW18 also joined the investigation on 6.8.07. The documents relating to the employment of accused were seized vide memo EXPW6/A and on 8.8.07 they visited the room of accused and seized armed licence vide EXPW18/B. He identified the register of NDPL EXP8, licence of the accused P9 and the barrel gun EXP10. During cross examination he deposed that keys of the almirah was lying on the table of the room and was opened by Panish Dadi He did not notice any other articles lying in the almirah.
23 PW19 SI Suresh Chand on receipt of DD no. 36, reached NDPL office alongwith constable Ramesh Chand. In his presence, the lock was broken and dead body was S.C.No. 29/07 Page 12 of 32 pages 13 discovered.
24 PW20 Ajay Kumar, was also working with NDPL Keshavpuram distt. office as armour guard. He stated that he was on leave due to illness since 11.5.07. He was having licenced rifle of .315 bore. On 10.5.07, he left the said rifle in the almirah of NDPL Keshavpuram office and one key of the almirah was with him whereas another key was with accused. He stated that accused was also working as armour guard in the office. When he left the rifle in the almirah, there were three live cartridges in the magazine of the rifle. He came to know that accused has used his rifle in the commission of the office. During crossexamination, he stated that attendance register is maintained by supervisor. There were 10 guards including three armed guards at the said office namely accused Dharmender, PW20 himself and one another person. He and accused used to keep their rifles alongwith cartridges in the almirah. His father is working as inspector with communication department of Delhi police and his brother is also working in Delhi police. He denied the suggestion that he used to keep his gun in the almirah of the room of Mr Tyagi or that accused was not having the keys of almirah in which the gun was kept by him. He admitted that he was residing in Ambedkar Colony at that time and was detained at PS up to 67 hrs on 15.5.07. He further denied the suggestion that entire recovery was effected from him or that S.C.No. 29/07 Page 13 of 32 pages 14 accused was falsely implicated. He also denied the suggestion that he had killed the deceased and falsely implicated the accused, being the son of police official. 25 PW21 SI Yashpal, examined the spot of occurrence being incharge of Crime Team and proved his report EXPW21/A. 26 PW22 constable Hari Parshad also joined investigation of the present case and handed over the parcels given by autopsy surgeon to the IO which was seized vide memo EXPW22/A. 27 PW23 inspector Umesh Singh, conducted investigation of the present case and was posted as SHO DBG Road on 14.5.07. He reached the spot and found office of NDPL lying closed. They forced open the door and went inside and found the cashier lying dead there. PW23 called the crime team and got conducted the inspection. He proved rukka EXPW23/A, inquest papers EXPW23/B, site plan EXPW23/C. He also narrated about the other seizure memos with respect to the articles lifted from the spot and also about the personal search and arrest of the accused and recovery of cash from the accused. PW23 deposed that empty cartridge was got recovered by the accused from nearby spot which was seized vide EXPW23/D and prepared site plan of the place vide EXPW23/E. He further proved application moved for postmortem EXPW23/F and sketch of S.C.No. 29/07 Page 14 of 32 pages 15 empty cartridge recovered by accused EXPW23/G. He has given the details of recovery of other articles during the investigation and identified the case property EXP1 to EXP20A. He also produced FSL result of the ballistic division, biology division and document division vide EXPW23/I,J,K and of Hand writing expert EXPW23/L. He also identified the pay slip seized EXP21, register containing admitted handwriting of deceased EXP24. During crossexamination, he denied the suggestion that five almirahs were lying in the guard room or that five guards have been alloted separate almirahs. The gun was private and belonging to the accused. He had not sent the attendance register bearing the signatures of accused to FSL and denied the suggestion that signatures dt. 14.5.07 appearing on the register are not of accused. He denied that accused was on leave on 14.5.07. He had not recorded the statement of Pankaj and Bhagat who were supervisors. PW23 knows that father of another guard Ajay is in Delhi police. They left PS at 4.15 am on 15.5.07 after depositing the case property. The officer of NDPL Vanesh Tyagi was with them. Accused was identified by Vanesh Tyagi at the time of his apprehension. The writing work was done at the bus stop itself. He denied the suggestion that accused was on leave from 12,5,07 to 16.5.07 or that accused has been falsely implicated in the present case. He also denied the suggestion that Ajay has been let S.C.No. 29/07 Page 15 of 32 pages 16 off being the son of police officer or that recovery has been planted on the accused.
28 PW24 R.K Swami, was posted as HOD with NDPL. He received information that gunman and cashier of cash collection centre, Tibia college, were missing on 14.5.07. He in turn informed Satish Yadav to reach the spot and to take further action.
29 PW25 Naresh Pal is the landlord of the accused and confirmed that police had come to the room of the accused and seized his licence vide memo EXPW18/B. 30 PW26 SI Lekhraj, participated in the investigation of the present case and narrated about the circumstances and the investigation and also about the recovery and arrest of the accused. He has also been cross examined during which he stated that Vanesh Tyagi was with them during the investigation. He denied that guard Ajay has been let off being son of police official or that accused has been falsely implicated.
31 PW27 Panish Dadi was working as branch manager with G4 S Company and reached the spot on receipt of information. He stated that gunman Dharmender was missing and he tried to contact him on mobile but there was no response. He handed over personnel files of the accused Dharmendar and his brother Ravinder to the IO after collecting the same from the office. He also accompanied the S.C.No. 29/07 Page 16 of 32 pages 17 IO on 17.5.07 to Keshavpuram district centre from where gun of the accused and four live cartridges were recovered from his locker. PW 27 deposed that on 14.5.07, duty of the accused was at Cash Collection Centre, NDPL office, Tibia college. During cross examination, he stated that his statement was recorded on 15.5.07 when he handed over personnel files. He admitted that gunman always carries his gun to home when he is not on duty and whenever a gunman goes on leave, he carries the gun with himself and does not leave it back in any locker or almirah. They have not provided any almirah to any gunman and the almirah fromwhere gun and cartridges were recovered was arranged by the accused on his own. There was only one almirah fromwhere the gun and cartridges were recovered. At the relevant time, there were 56 gunmen provided to Keshavpuram District Centre. He denied the suggestion that all the gunmen were provided one almirah each. He also denied the suggestion that Bhagat Singh had told the IO that accused had gone on leave from 14.5.07 to 20.5.07. He stated that they had information only about Ajay. The register EXP8 was maintained by NDPL. He has no knowledge as to who marks attendance in the attendance register EXP8. He denied to be deposing falsely.
32 Sh. Devakram, Sr. Scientific officer, (documents) FSL, Rohini, has been examined as CW1. He examined the S.C.No. 29/07 Page 17 of 32 pages 18 attendance register of NDPL and signatures of accused Dharmender and stated that signatures on the register on 14.05.07 and admitted signatures of the accused were written by different persons. During cross examination by Ld APP he denied the suggestion that if he had taken into consideration the character subsequent to D, his opinion would have been different. He opined that skill of questioned signatures is better than the skill of admitted signatures. Thereafter prosecution evidence was closed. 33 Statement of accused Dharmender was recorded u/s 313 CrPC wherein entire incriminating evidence has been putforth and explained to him to which he pleaded innocence and stated that he has been falsely implicated. According to the accused, he was on leave from 12.5.07 to 16.5.07. The police officers have falsely implicated him in order to let off other guard Ajay because he was son of a inspector of Delhi police. He preferred not to lead any evidence in defence.
34 I have heard Ld APP for State Sh Ramesh Kumar and amicuscuriae Ms Sadhna Bhatia for the accused and given due consideration to the facts and circumstances of the case, evidence and the record. Ld APP raised following points in his arguments: 35 The case of the prosecution rests on circumstantial evidence and all the circumstances proved on record are S.C.No. 29/07 Page 18 of 32 pages 19 incriminating in nature and clearly point out towards the guilt of the accused. Each and every circumstance has been individually proved like presence of accused lastly with the deceased, access to the weapon of offence, recovery of stolen cash and also used cartridge from the accused. The medical and scientific evidence confirm the version of the prosecution. The investigation has been properly established by means of documentary evidence. The motive to commit the offence has also been proved on record. All the circumstances are conclusive in nature and exclude every possibility of innocence of the accused. The conviction of the accused be recorded forthwith.
36 On the other hand, Ld amicus curiae arguing on behalf of accused raised following points : There is no direct evidence to prove commission of offence by the accused and no document or other material has been brought to prove the attendance of accused at the spot. The accused has been falsely implicated in order to save another guard Ajay who has actually committed the offence. The weapon of offence used in commission of the crime does not belong to the accused and rather belongs to another guard Ajay. The attendance register EXP8 has been examined by hand writing expert CW1 and according to his opinion the signatures appearing on the attendance register on 14.5.07 are not of the accused. It is further alleged that S.C.No. 29/07 Page 19 of 32 pages 20 entire recovery was effected from Ajay and the same has been planted upon the accused.
37 I have given due consideration to the rival contentions and perused the record. The present case is based on circumstantial evidence and according to settled legal position where the evidence is of circumstantial nature, the following principles are to be followed and before conviction could be based on such evidence, it must be fully established that :
(I) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of 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 S.C.No. 29/07 Page 20 of 32 pages 21 accused ( relied upon Birdhichand Sarda Vs State of Maharastra, (1984) 4 SCC 116).
38 Coming to the present case, following circumstances have been highlighted and relied upon by the prosecution to bring home the guilt of the accused:
a) The accused was last seen in the company of the deceased.
b) The easy access by the accused to the weapon of offence.
c) Recovery of stolen cash of Rs 2,75,000/ from the possession of the accused shortly after the occurrence.
d) On the basis of disclosure made by the accused, the used cartridge was recovered.
e) The medical and scientific evidence connect the recovered used cartridge with the weapon of offence.
f) The motive to commit the offence is clear and apparent.
39 The occurrence took place at NDPL office, Tibea college, new Rohtak road, Delhi on 14.5.07. As per testimony of witnesses and also the postmortem report, the time of occurrence was after 3 p.m. The murder was detected at about 8.30 p.m. FIR was registered on the basis of statement of PW2 Satish Yadav and rukka was sent around mid night 12.30 a.m. on 15.5.07. Dealing with the first circumstance of S.C.No. 29/07 Page 21 of 32 pages 22 last seen, I find that testimony of prosecution witnesses namely PW3 OmDutt, PW4 Vanesh Tyagi, PW10 Sunil Kumar and PW27 Panish Dadi is important and significant. The Place of occurrence was NDPL office and it is the admitted case that accused was deputed with the said office. The accused was employed with group 4 security as evident from the testimony of PW6 G.C Mukherjee and documents proved by him. According to PW6, accused Dharmender and another guard Ajay Kumar were deputed at NDPL office at the relevant time. PW3 Om dutt has been the telephone operator at the NDPL office and he categorically stated that on 14.5.07 at about 3.30 p.m., he saw accused coming out from the cabin of cashier (deceased) and passed through the front of complaint centre. The accused was having two bags with him. PW4 Vanesh Tyagi stated that on 14.05.07 he deployed the accused at Tibia College centre and his duty hours were 9 a.m. to 5p.m. PW10 Sunil Kumar has been working as cashier at ATM machine in the same NDPL office. The deceased was also working as cashier on the other counter as stated by PW10. It is clearly testified by PW10 that accused Dharmender was present at the cash counter of the deceased at about 3 p.m. and he had seen him coming out of his cabin. PW10 even specifically stated that accused was having a different gun from what he used to carry daily. According to PW10, when he left office, accused and S.C.No. 29/07 Page 22 of 32 pages 23 deceased were the only two persons present there. During cross examination, he even clarified that he was able to see the accused from his section as cabin were made of glasses. He was able to identify the gun on the day of incident as it was shorter than the gun otherwise carried by the accused. PW27 Panish Dadi has been branch manager with group 4, security company. . He confirmed that accused was so deputed at NDPL office on the date of occurrence. PW27 even reached the spot on the day of occurrence and gave the details of accused. Even in the first information report ExPW2/A, the name of accused has been mentioned as given by PW27.
40 On proper and careful evaluation of testimony of PW3, PW4,PW10 and PW27 read with the testimony of PW6, I am of the opinion that they are natural and probable witnesses of the presence of the accused at the spot of occurrence and also of the position of the accused at the relevant time. The position of these witnesses is evident from scaled site plan and it is clear that they must have come across the accused at the relevant time. Their statements are interse corroborative and in conformity with each other. I find no reason to disbelieve these witnesses as they have no reason or interest to depose falsely against the accused or to create false evidence to implicate the accused. The name of the accused was mentioned in the FIR itself which was S.C.No. 29/07 Page 23 of 32 pages 24 recorded immediately on discovery of offence and leaves no scope of manipulation or alteration. It is established with the statement of PW10 that it was only the accused who was present with the deceased in the office. Even the possibility of presence of any third person is excluded. In this way, presence of accused at the spot and lastly in the company of the deceased stands fully established by sufficient evidence. 41 Coming to the second circumstance of link evidence concerning, weapon of offence, the perusal of postmortem report makes it clear that death of deceased has been consequent upon fire arm injuries that were caused from near range with rifled firearm. The weapon of offence was lying at the spot and it was also seized during the investigation. The bullet lead was also found and lifted from the spot. The weapon of offence belonged to Ajay Kumar who was also working as guard at NDPL office but allegedly he was on leave on 14.05.07. Ajay Kr, PW20 stated that he left the rifle in the almirah at NDPL office, Keshavpuram on 10.5.07. One key of the said almirah used to remain with accused Dharmender as he was also working as armor guard. According to PW20, there were three live cartridges when he left the said rifle in the almirah. It is further proved that the said rifle was seized from the spot and at that time it was carrying two live cartridges. Also during the investigation, the used cartridge was got recovered by the S.C.No. 29/07 Page 24 of 32 pages 25 accused vide EXPW23/D on 15.5.07. Also on 17.5.07, the gun of the accused and four live cartridges were recovered from his almirah from NDPL office, Keshavpuram as is evident from the testimony of PW27 Panish Dadi and PW23 inspector Umesh Singh. In view of testimony of PW10 Sunil Kumar, who noticed different gun in hands of accused and PW20 Ajay Kumar whose gun was used by the accused , and also in view of CFSL report EXPW23/I, it is clear that the weapon of offence used by the accused was accessible to him. The recovery of gun of accused from NDPL office Keshavpuram further indicates that accused carried the rifle of PW20 Ajay Kumar on the day of occurrence. The testimony of these witnesses is implicit and trustworthy and I find no reason to disbelieve them. There is no reason given as to why official witnesses like PW10 and PW27 would depose against the accused. It is further evident from register EXP8 that PW20 guard Ajay Kumar was not on duty on 11.05.07 & 14.05.07 and therefore his statement that he was on leave since 11.5.07 stands corroborated. In these circumstances, there is clear possibility that accused laid hands on the rifle of Ajay Kumar and used the same while committing the offence. 42 Coming to the third circumstance of recovery of stolen cash, I find that there is ample evidence on this aspect pointing towards the guilt of the accused. It is evident from the statements of prosecution witnesses, photographs and S.C.No. 29/07 Page 25 of 32 pages 26 the memos prepared during investigation that murder was committed with the motive to steal the cash from the cashier/deceased. The pay in slip of IDBI bank EXP21 was found on the table of the cashier wherein the amount of Rs 3,12,220/ was filled. The cash of Rs 37220/ was found lying with the deposit slip whereas rest of the amount of Rs 2,75,000/ was found missing. It is established by way of report of handwriting Expert EXPW23/L that pay in slip was filled up by the deceased. It is therefore clear that deceased had kept aside Rs 2,75,000/ and while he was in the process of handling remaining cash, he was killed. It is further evident that after completion of proceedings at the spot, police party alongwith Vanesh Tyagi proceeded to apprehend the accused and he was apprehended in the early morning at 5 am from Ambedkar Nagar Bus stand and was found in possession of two bags. Cash of Rs 2,75,000/ was recovered from one of the bag and all the currency notes were bearing stamp of NDPL of counter no. 485 with date 14.5.07. The case property/cash was seized and produced during the trial. The testimony of PW4 as well as police officials about the recovery of cash from the accused has been clear and categorical. No contradictions or infirmities have appeared despite lengthy cross examination on behalf of accused. The possession of stolen cash with the accused and recovery of the same is very much proximate in point of time to the S.C.No. 29/07 Page 26 of 32 pages 27 death of deceased. In view of proximity of time within which the act of murder was supposed to have been committed and body found and the cash recovered from the possession of accused, presumption can be drawn not only of the fact that accused was in possession of stolen cash after committing robbery but also that he committed the murder of the deceased. The murder and robbery were integral part of the same transaction giving rise to the presumption against the accused u/s 114 Evidence Act. (relied upon Mukand @ Kundu Mishra and another Vs State of MP, AIR 1997, Supreme court 2622.) The recovery of cash belonging to NDPL office proved by the prosecution is strong and positive circumstance pointing out towards guilt of the accused.
43 The medical and scientific evidence brought on record also confirm the version of the prosecution. The reports of autopsy surgeon and Ballistic expert connect the other circumstantial evidence established on record. The used cartridge recovered at the instance of accused was of the rifle (.315 bore) which was used to commit the offence. There is nothing to affect the credibility of medical and scientific evidence which has further strengthened the case of the prosecution.
44 Coming to the motive, according to the prosecution, the accused has committed this grave offence of murder for S.C.No. 29/07 Page 27 of 32 pages 28 the purpose of enriching himself and there is no doubt that murder was committed for gain. On consideration of entire evidence and material appearing on the record, I find that motive is apparent and also stands reasonably proved. The cash of Rs 2,75000/ was found missing from the place of occurrence and the same was recovered from the possession of the accused shortly thereafter. The accused has not given any reasonable or plausible explanation about the possession of the cash. The recovery was effected in presence of independent witness PW4 Vanesh Tyagi, who had no reason to depose against the accused. His testimony therefore cannot be doubted. I therefore conclude that prosecution has been able to establish that accused committed the offence with the clear motive to commit robbery of cash. 45 Coming to the defence taken by accused Dharmender, it is pleaded that he was not on duty on 14.5.07 being on leave. He further stated that another gunman deputed at the office Ajay Kumar has been let off being the son of Delhi police official. Accused has also relied upon register EXP8 wherein his signatures of 14.5.07 do not tally with the signatures done prior to 14.5.07 to mark his presence. The accused has also relied upon testimony of CW1 to support this plea. On giving due consideration to the facts and circumstances of the present case, testimony of witnesses, documentary evidence appearing on the record, I find that S.C.No. 29/07 Page 28 of 32 pages 29 defence pleas taken by the accused have no merit or substance. There is strong evidence in the form of testimony of PW3, PW10 andPW27 that accused was very much present in the office on 14.5.07. The register EXP8 shows that another guard Ajay Kumar was not on duty on 11.5.07 and on 14.5.07, whereas the presence of accused has been marked for 14.5.07, although the signatures appearing there are different. In these circumstances, I feel that the different signatures of accused cannot be a conclusive proof of the fact that he was absent on 14.5.07 particularly when there is no leave application brought on record by the accused of 14.05.07 or prior to that. It is significant to note that place of marking attendance of accused is not blank whereas, that of Ajay Kumar is blank The accused had used the rifle of another gunman Ajay for committing the offence and if he could do so, he could also manipulate his signatures on the attendance register. I therefore conclude that different signatures appearing on attendance register and testimony of CW1 is not of any assistance to the accused.
46 In view of aforesaid discussion and observations, I hold that circumstances proved and established form a complete chain and are incriminating in nature and connect the accused to the commission of the offence individually as well as collectively. Prosecution has been able to bring home S.C.No. 29/07 Page 29 of 32 pages 30 the guilt of the accused beyond reasonable doubt. The chain of circumstances so established is consistent and compatible towards guilt of accused and at the same time inconsistent with the hypothesis of innocence of accused. I therefore hold the accused guilty for the offences punishable u/s 392/397 & 302 IPC and u/s 27 Arms Act, 1959.
ANNOUNCED IN THE OPEN COURT ON 7.2.2011. (ANJU BAJAJ CHANDNA) ADDL. SESSIONS JUDGE DELHI S.C.No. 29/07 Page 30 of 32 pages 31 IN THE COURT OF MS. ANJU BAJAJ CHANDNA ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH) DELHI.
S.C No. 29/07 FIR No. 224/07PS Deshbandhu Gupta Road U/S 392/397 &302 IPC & 27 Arms Act.
S/V Dharmender Kumar Pal 11.2.2011.
ORDER ON SENTENCE PRE: Sh Ramesh Kumar, APP for State.
Amicus curiae Ms Sadhna Bhatia, Convict Dharmender from JC.
I have heard submissions on behalf of convict as well as on behalf of State on the point of sentence. Accused Dharmender stands convicted for the offences punishable u/s 392/397 & 302 IPC & 27 Arms Act 1959.
It is submitted that convict is 31 years of age and not a previous convict nor involved in any other criminal case. He is sole bread winner of his family consisting of his father, wife and two children. Lenient view is prayed for.
On the other hand, Ld APP has argued that convict has committed grave and serious offences only for the purpose of enriching himself and therefore no leniency should be shown to him.
On consideration of facts and circumstances of the case and also antecedents of the convict, I find that present case does S.C.No. 29/07 Page 31 of 32 pages 32 not fall in the category of the rarest of the rare cases and as per guidelines laid down by Hon'ble supreme court in various judgments, the present case does not call for the capital punishment. I, therefore, sentence the convict to rigorous imprisonment for 7 years for the offence punishable u/s 392/397 IPC and fine of Rs 5000/, in default of payment of fine S.I for two months.
I further sentence the convict to rigorous imprisonment for life and fine of Rs 20,000/ for the offence punishable u/s 302 IPC, in default of payment of fine, S.I for 9 months.
The convict is further sentenced to rigorous imprisonment for five years u/s 27 arms Act 1959 and fine of Rs 5000/, in default of payment of fine, S.I for two months. All the sentences to run concurrently.
Copy of the judgment and order on sentence be given to the convict. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 11.2.2011.
(ANJU BAJAJ CHANDNA)
ADDL. SESSIONS JUDGE
DELHI
S.C.No. 29/07 Page 32 of 32 pages