Delhi District Court
State vs Sandeep @ Hanuman 1 Of 40 on 31 March, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS): NORTH DISTRICT
ROHINI COURTS: DELHI
SC No.16/2013
FIR No.414/2004
PS Bawana
U/S 302/392/201/34 IPC
State
Vs.
1. Sandeep @ Hanuman,
S/o Ram Chander,
R/o Village Bajitpur, Delhi.
2. Sandeep @ Azad,
S/o Om Kumar,
R/o Village Bajitpur, Delhi.
3. Dharambir @ Ballu,
S/o Suraj Bhan,
R/o Village Bajitpur, Delhi.
4. Jai Kumar @ Jai Kanwar,
S/o Chattar Singh,
R/o Village Bajitpur, Delhi.
Date of Institution:20.08.2005
Date of conclusion of Arguments:26.03.2014
Date of pronouncement of Judgment:29.03.2014
State Vs.Sandeep @ Hanuman 1 of 40
Appearance: Mr. Ashok Kumar, Addl. PP for the State.
Mr. Aseem Bhardwaj, Legal Aid Counsel for
accused Sandeep @ Hanuman, Jai Kumar and
Dharambir @ Ballu.
JUDGMENT
1. All four accused have been forwarded by the police to face trial u/s 392/302/201/34 IPC.
2. Facts are that Praveen Kumar son of complainant Jagdish went missing on 08.11.2004 and he lodged missing report resulting into registration of DD No.13A which was marked to SI Yograj for inquiry. SI Yograj recorded statement of complainant on 11.11.2004 on which case FIR was registered. His statement is to the effect that his son Praveen Kumar of 19 years, 5'6½" height, wheatish colour, medium built, round face, wearing black stripped white shirt, red track pant and slippers, had gone out of the house on 08.11.2004 at 6.00 P.M. but did not return thereafter. He expressed apprehension that his son might have been abducted.
Accused Sandeep @ Hanuman, Jai Kumar and Dharambir @ Ballu were arrested on 11.01.2005 and they made separate disclosure statements consequent to which dead body was recovered from a pit of 4 ft. depth. Accused Sandeep @ Azad was arrested on 19.01.2005 and he got recovered a kassi(spade) and one slipper of the deceased.
State Vs.Sandeep @ Hanuman 2 of 40
3. Charge u/s 392/302/201/34 IPC was framed against the accused on 05.10.2005 to which they claimed trial.
4. In order to substantiate the charge, prosecution examined twenty two witnesses. Accused also examined one witness in defence.
5. PW18 HC Dharamvir registered DD No.13A Ex.PW2/C on 09.11.2004 at 6.10 P.M. on receipt of complaint from Jagdish Chander regarding missing of his son Praveen Kumar on 08.11.2004. PW21 SI Yograj deposed that on 09.11.2004 at 6.10 P.M. on receipt of DD No.13A, he met complainant and made local inquiry about the abducted boy but no clue was found. He sent wireless messages to all the SSPs and got publised "hue & cry"
notice Ex.PW21/A. After obtaining photograph Ex.P9 of the abducted boy, he did every proceedings required to find out the missing person. He further deposed that he recorded the statement Ex.PW3/A of complainant Jagdish Chander on 11.11.2004, made rukka Ex.PW21/B and got registered FIR Ex.PW2/A. Further investigation was assigned to some other police official on 27.11.2004. PW2 ASI Somna registered FIR Ex.PW2/A on 11.11.2004 at 12.55 P.M. on receipt of rukka brought by Ct. Ram Kumar, and thereafter, made endorsement Ex.PW2/B on the rukka.
6. PW17 Anil Kumar was running a photo studio in the name of M/s Nutan Photo Studio at E28, Jahangir Puri, Delhi on State Vs.Sandeep @ Hanuman 3 of 40 12.03.2005 when he was called in BJRM hospital mortuary by the police officials of PS Bawana. He took photographs of a dead body in the neck of which a rope was tied and on the forearm the word "Thakran" was engraved. Photographs are Ex.X1/11 to X1/12 and Ex.PW17/B1 to Ex.PW17/B9 and corresponding negatives are Ex.PW17/C1 to Ex.PW17/C11. PW8 Dr. Anil Shandilya was posted as Sr. Resident, BJRM hospital on 12.01.2005. On that day, he conducted postmortem examination on the body of Praveen Kumar. He deposed that the dead body was found wearing red track pant, shirt, vest & underwear. The body was in putrefying stage but was recognizable. Mud was found sticking to the whole body. Tattoo mark of "Thakran" in English was there on right forearm. A plastic rope was also found tied around the neck in double layer. The doctor found following two ligature marks around the neck :
i. First ligature mark was of the dimension of 34 cm. x 1 cm. 5 cm away from chin, 6.5 cm from right ear and 3.5 cm from left ear.
ii. Second ligature mark was of the same size - 1.5 cm away from first ligature mark, 7.5 cm from right ear and 4.5 cm from left ear.
On dissection of the neck, the underling tissues were found contused with hematoma and there was extravasation of State Vs.Sandeep @ Hanuman 4 of 40 blood vessels. Trachea and laryngeal cartilages were found fractured. The doctor opined the cause of death as asphyxia resulting from antemortem strangulation by means of ligature. The doctor preserved ligature material, clothes and sternnum for DNA analysis, sealed them and handed over to the police. Postmortem report is Ex.PW8/A. The doctor identified the shirt, track pant, vest, underwear and bedsheet(chaddar) of the deceased as Ex.P3, Ex.P4, Ex.P5, Ex.P6 & Ex.P7 respectively. The doctor identified the plastic rope as Ex.P8 which was found tied around the neck of the deceased at the time of postmortem. PW11 SI Manohar Lal is draftsman and he prepared scaled site plan Ex.PW11/A on 08.04.2005 of the site of recovery of dead body i.e. the fields of Shamma Kaur situated in Khasra No.28/24, Village Bajitpur. PW12 Patwari Dharmanand appeared in the witness box to prove the ownership of the land falling in khasra No.28/24, Bajitpur Thakran. He placed on record khatauni as Ex.PW12/A, Khasra Girdawari as Ex.PW12/B and Aks Sijra as Ex.PW12/C. He deposed that the land in question was owned by Shamma Kaur wife of late Tek Chand, R/o House No775, Bawana, Delhi. PW15 ASI Mohinder Singh was MHCM on 11.01.2005 when SI Avnish Tyagi deposited with him three pullandas sealed with the seal of AKT and he made entry No.14 in register No.19. He further deposed that on 12.01.2005, SI Avnish Tyagi deposited with him State Vs.Sandeep @ Hanuman 5 of 40 three more pullandas sealed with the seal of BJRM hospital, Jahangir Puri and he made entry no.17 in the same register. SI Avnish Tyagi deposited two more pullandas having seals of AKT and he made entry No.25. He further deposed that on 08.04.2005, he handed over to Ct. Rajesh five pullandas - three sealed with the seal of AKT and two sealed with the seal of BJRM vide RC No.61/21/05 for deposit in the FSL. Four pullandas and FSL result were brought to malkhana on 28.02.2008 by Ct. Surender and he made entry against entry No.16 in register No.19. Consolidated entries are Ex.PW15/A, receipt acknowledgement is Ex.PW15/B and RC is Ex.PW15/C. PW13 HC Rajesh Kumar deposited the exhibits in FSL on 08.04.2005. MHCM and exhibit carrier to the FSL did not tamper with the case property till it remained in their possession. PW14 Sh. Purshottam Singh, SSA (Physics) had examined the case property which was received in the FSL on 08.04.2005. He deposed that he compared the soil samples of exhibit1, exhibit2 and exhibit3 with the soil sample stuck to clothes exhibit4A to 4E of deceased, physically and instrumentally and they were found possessing similar physical characteristics. His report is Ex.PW14/A. PW1 Ct. Neeraj Kumar did not get opportunity to depose because he was dropped by APP.
7. PW20 Ct. Arun, PW19 HC Naresh, PW16 HC Rishi Kumar, PW22 IOSI Avnish Tyagi and PW6 public witness State Vs.Sandeep @ Hanuman 6 of 40 Dharamvir are witnesses to the arrest of accused Sandeep @ Hanuman, Jai Kumar, Dharambir @ Ballu, their disclosure statements, pointing out memoes of the place where they had burried the dead body etc. PW20 Ct. Arun deposed that on 11.01.2005, he along with Ct. Rishi, Ct. Neeraj, Ct. Vijay and Ct. Naresh joined investigation with SI Avnish Tyagi. On that day, they were on patrolling in govt. vehicle No. DL1LD5019 in the area of PS Bawana and when they reached at village Bajitpur crossing, a secret informer met SI Avnish Tyagi and told that the suspect Jai Kumar wanted in the murder case was standing at Bajitpur bus stand. It was a big lead, and hence, police party reached the stated place and asked 45 passersby to join the forthcoming arrest but no public witness agreed and left the spot without disclosing their names and addresses. After reaching Bajitpur mod, the official vehicle was parked at some distance and all members of police party along with informer moved towards bus stop Bajitpur and a person, whose identity later on came to be known as accused Jai Kumar, was apprehended on the pointing of the secret informer. He further deposed that on sustained interrogation by the IO, accused Jai Kumar confessed having murdered Parveen on 08.11.2004 itself and that his companions were accused Dharambir @ Ballu, Sandeep @ Hanuman and Sandeep @ Azad. His disclosure statement Ex.PW16/C was State Vs.Sandeep @ Hanuman 7 of 40 recorded, and was arrested vide arrest and personal search memos Ex.PW16/A and Ex.PW16/B respectively. These witnesses further deposed that accused Jai Kumar disclosed them that dead body of Parveen was buried in the fields and he can get recovered the same.
Accused Jai Kumar was taken to village Bajitpur in official vehicle. When the police party reached near culvert just before the village, IO asked some public persons to join the forthcoming arrest of more accused but only Dharamvir joined the investigation. Police party accompanied by Dharamvir reached the house of complainant Jagdish and he was also joined in the investigation and then, the police party was led by accused Jai Kumar to the house of accused Dharambir @ Ballu and at his instance, Dharamvir was arrested vide arrest and personal search memos Ex.PW3/H and Ex.PW3/I respectively and his disclosure statement Ex.PW3/B was recorded. He further deposed that accused Jai Kumar and Dharambir @ Ballu led police party and public witnesses to the house of third accused Sandeep @ Hanuman who was arrested vide arrest and personal search memos Ex.PW3/J and Ex.PW3/K respectively and his disclosure statement Ex.PW3/C was recorded. These two accused also confessed their complicity in the murder and told that they had buried the dead body in the fields of Shamma Kaur and that they can get the same State Vs.Sandeep @ Hanuman 8 of 40 recovered. Thereafter, all these three accused led the police party to the house of fourth accused Sandeep @ Azad but he was found absconding.
All accused, police party and public witnesses reached near the pond of village Bajitpur and the official vehicle was parked near the wall of the stadium. More public persons assembled there due to curiosity, and hence, IO requested them to join the investigation but only Hari Singh agreed. At that time, accused Jai Kumar was in the custody of Ct. Rishi, accused Dharambir @ Ballu in the custody of Ct. Naresh and accused Sandeep @ Hanuman in the custody of Ct. Neeraj. It was accused Jai Kumar who led the police party and public witnesses Hari Singh, Dharamvir and Jagdish towards the fields where they had buried the dead body of Praveen. He led them to the North Western corner of the fields and pointed out the place where the dead body was buried by him and his associates, and hence, pointing out memo Ex.PW3/D was prepared. Thereafter, accused Jai Kumar was brought back and was to made stand separately in police custody. PW20 further deposed that accused Dharambir @ Ballu, who was in the custody of Ct. Naresh, led the police party towards the field and pointed out the place where dead body was buried. It was the same place pointed out by accused Jai Kumar, and hence, pointing out memo Ex.PW3/E was prepared. After State Vs.Sandeep @ Hanuman 9 of 40 completing the process, the accused Dharambir @ Ballu was brought back and was made to sit in the official vehicle. He was not allowed to meet the third accused Sandeep @ Hanuman. Thereafter, accused Sandeep @ Hanuman led the police party and public witness and pointed out the same place as the place where dead body was buried, and hence, pointing out memo Ex.PW3/O was prepared.
He further deposed that all police officials, public witnesses Hari Singh, Jagdish and Dharamvir along with all accused persons went to the pointed out field. IO procured a kassi(spade) from one Sonu and started digging the place with the spade. Public witnesses had also helped the IO in digging the pit of 4 ft. A dead body was recovered from the pit. A plastic rope of blue colour was found tied around the neck. The body was found wearing black stripped white shirt, red track pant and it was duly identified by Jagdish, Hari Singh and Dharamvir. The body was taken out from the pit and it was further found wearing half sleeves vest and blue underwear on which the word "club" was written. The word "Thakran" was found tattooed on the right hand of the body. PW20 further deposed that IO lifted the soil(mud) from the upper portion of the body. Thereafter, mud was lifted from the pit and the field. Pullandas of the mud were prepared and were sealed with the seal of AKT and after use, seal was State Vs.Sandeep @ Hanuman 10 of 40 handed over to public witness Dharamvir and pullandas were seized vide memo Ex.PW3/G. The dead body was seized vide seizure memo Ex.PW3/B(also Ex.PW3/U). He further deposed that dead body was given in his custody for transporting the same to the mortuary of BJRM hospital. The body was deposited there on the same day. He further deposed that postmortem was conducted on the next day and after postmortem, the doctor handed him over three sealed pullandas and a sample seal of hospital which he handed over to the IO. IO seized pullandas and sample seal vide seizure memo Ex.PW20/A. After postmortem, the body was handed over to complainant Jagdish.
PW20 next deposed about arrest of accused Sandeep @ Azad on 19.01.2005. On this issue, he deposed that on that day, he accompanied the IO to the village Bajitpur and complainant Jagdish produced the accused Sandeep @ Azad before him who was arrested vide arrest and personal search memos Ex.PW3/L and Ex.PW3/M respectively. Thereafter, he confessed complicity in the crime and made disclosure statement Ex.PW20/B. He further deposed that accused Sandeep @ Azad, in pursuance to the disclosure statement, led the police party to the place from where the dead body was retrieved and pointed out it the same place where he along with his associates had buried the dead body and in this way, pointing out memo Ex.PW3/O was prepared.
State Vs.Sandeep @ Hanuman 11 of 40 Thereafter, accused Sandeep @ Azad made disclosure statement that he can get recovered the Kassi from the room situated in the fields of Shamma Kaur & slippers of the deceased from a place near the wall of the stadium. PW20 further deposed that in pursuance to the disclosure statement, accused Sandeep @ Azad led the police party to the room situated in the fields from where dead body was recovered and where coaccused Jai Kumar used to work and got recovered a kassi used for digging the earth for the burial of dead body after commission of crime. Pullanda of the Kassi was prepared which was sealed with the seal of AKT and pullanda was seized vide memo Ex.PW3/P and seal after use was handed over to him(PW20). He further deposed that accused Sandeep @ Azad further led the police party near the wall of the stadium and pointed out one chappal of the deceased. That chappal was lifted, pullanda was prepared, seal of AKT was affixed on the pullanda which was seized vide memo Ex.PW3/Q. PW20 identified the photographs from Ex.X1/A1 to A10 as the photographs of the spot. He identified the Kassi as Ex.P2, one slipper of the deceased as Ex.P1, shirt, track pant, vest and underwear of the deceased as Ex.P3, Ex.P4, Ex.P5 and Ex.P6 respectively. He identified the rope found tied around the neck of the deceased as Ex.P7.
8. PW6 public witness Dharamvir deposed that on 11.01.2005, he was present outside his house when SI Avnish State Vs.Sandeep @ Hanuman 12 of 40 Tyagi, other police officials and accused Jai Kumar came there in Tata 407. SI Avnish Tagyi, after narrating the facts to him, asked to join the investigation and he agreed happily. He accompanied the police team to the house of complainant Jagdish to whom SI Avnish Tyagi told that he had arrested accused Jai Kumar and that he had confessed that he along with coaccused Sandeep @ Hanuman, Dharambir @ Ballu and Sandeep @ Azad had murdered Praveen by strangulating with a rope and that the dead body had been buried in the fields of Shamma Kaur. Thereafter, Jagdish also joined the investigation and all persons reached the house of accused Dharambir @ Ballu. He deposed all the facts of arrest of accused, their disclosure statements, pointing out of the place of burying of the dead body, its retrieval, etc. To the same effect is the evidence of PW16 HC Rishi Kumar. PW19 HC Naresh and PW24 SI Avnish Tyagi.
PW9 Hari Singh deposed that he was present in his house on 11.01.2005 at 3.00 P.M. when he saw villagers going towards the pond of the village and on inquiry, they told him that police officials had come there. Due to curiosity and anxiety, he also reached the pond and found SI Avnish Tyagi, 56 other police officials and accused Jai Kumar, Dharambir @ Ballu and Sandeep @ Hanuman in police custody. He joined the investigation on the asking of SI Avnish Tyagi. At that time, complainant Jagdish and State Vs.Sandeep @ Hanuman 13 of 40 Dharamvir were also with SI Avnish Tyagi This witness further deposed about the pointing out of place of burying of dead body, its retrieval and identification of dead body and clothes worn by deceased Praveen. PW5 deposed that on seeing a huge crowd in the fields of Shamma Kaur on 11.01.2005, he also reached there and found police officials and all three accused. Pit of 4 ft. was dug and dead body of Praveen was recovered. The dead body was having a rope around the neck. PW4 Rajesh is the cousin brother of deceased Praveen Kumar. He deposed that Praveen went missing on 08.11.2004. He joined the investigation on 11.01.2005 when the body of Praveen Kumar was recovered from a pit on the lead given by accused Jai Kumar, Dharambir @ Ballu and Sandeep @ Hanuman from the fields of Shamma Kaur. He identified the body of his cousin brother. He further deposed that some clothes were found on the body which Praveen Kumar was wearing on 08.11.2004 when he had left his shop at 3.00 P.M. It is pertinent to mention that PW4 is running a grocery shop in the house of complainant Jagdish Kumar.
PW7 Satyadev @ Satyavrat had taken agricultural land of Shamma Kaur of Bawana on rent for ploughing in 2005. He was sowing that land since 1997. He deposed that on 11.01.2005, on seeing a big crowd on his land, he reached there and the body of Praveen Kumar son of PW3 Jagdish was recovered from a pit of 4 State Vs.Sandeep @ Hanuman 14 of 40 ft. At that time, Jagdish, Hari Singh and Dharamvir were also present. He further deposed that accused Jai Kumar used to work in his fields on daily wages for last several years. PW10 Rajbir Singh is also an agriculturist who used to plough fields near the fields of Shamma Kaur from where dead body was recovered. He was present in the fields on 11.01.2005 at 1.00 - 1.50 P.M. when he saw accused Sandeep @ Azad coming out from the room(kotha) in the fields of Shamma Kaur with a Kassi(spade). On inquiry, accused Sandeep @ Azad became perplexed and went away from there saying that he had an urgent work. He further deposed that 23 persons came to him from the village after 1520 minutes and told that police had come in the village as the murderers of Praveen had been traced out. So, he also reached the pond of the village at 3.00 P.M. He found the police officials present there along with accused and public witnesses Hari Singh, Dharamvir and Jagdish.
9. PW3 is the complainant and father of deceased Praveen Kumar. He deposed that he was present in his house on 08.11.2004 at 6.30 P.M. His son Praveen Kumar was also present on the shop in his house but he left the shop at 6.30 P.M. and at that time, he was wearing red stripped white shirt, red track pant and plastic slippers. Praveen did not return the whole night. He was untaceable despite search and so, he went to PS Bawana and State Vs.Sandeep @ Hanuman 15 of 40 lodged missing report on 09.11.2004. He further deposed that he again went to PS Bawana on 11.11.2004 where his statement Ex.PW3/A resulting into registration of abduction FIR was recorded. He suspected some persons like Karamvir, Dushyant, etc for the kidnapping of his son but police did not conduct the investigation properly, and hence, he requested the transfer of the same and ultimately, it was transferred to the Special Staff. Then, he deposed the facts which occurred on 11.01.2005 and those facts have already been discussed in the evidence of various witnesses. He further deposed about the arrest of accused Sandeep @ Azad saying that he came to know on 17.01.2005 or 18.01.2005 that fourth accused Sandeep @ Azad had come to his house to meet his family members and so, he informed the police about his presence. Police reached to his house and arrested him at his instance vide arrest and personal search memos Ex.PW3/L and Ex.PW3/M respectively. He made disclosure statement Ex.PW3/N and pointed out the place of burial of body of body vide pointing out memo Ex.PW3/O. Thereafter, he led the police party to a room(kotha) in the fields of Shamma Kaur and on his pointing out, a spade(Kassi) was recovered which was seized vide memo Ex.PW3/P. Accused Sandeep @ Azad then got recovered a chappal of his son Praveen from a park in the bushes and the same was seized vide memo Ex.PW3/Q. He had identified the body of his son on 11.01.2005 State Vs.Sandeep @ Hanuman 16 of 40 vide identification statement Ex.PW3/F. He identified the chappal, shirt, track pant, vest and underwear of his son as Ex.P1, Ex.P3, Ex.P4, Ex.P5 and Ex.P6 respectively and the Kassi(spade) as Ex.P
2. The rope found tied around the dead body ha been identified as Ex.P7.
10. Ld. APP argued that the murder was committed on the day of abduction itself i.e. on 08.11.2004 and the dead body was recovered on 11.1.2005 on the pointing out of accused Jai Kumar, Sandeep @ Hanuman and Dharambir @ Ballu. He submitted that accused Sandeep @ Azad had come to know on 11.01.2005 about arrest of remaining accused, and hence, he fled away from the village along with Kassi with the help of which the pit was dug for the burial of the dead body. At last, he was arrested on 19.01.2005 and got recovered the said Kassi and Chappal of the deceased. Next circumstance relied upon is that accused Jai Kumar is the labourer in the field of PW7 for last several years, and hence, he was very much aware as to what was happening in the fields of PW7 and Shamma Kaur. All accused are of the same village. He further submitted that motive behind the murder was robbery. Dead body was recovered after two months of the incident and that fact rules out the possibility of false implication of the accused because if the police was already aware of the burial of the dead body, it could have dug it out quite earlier.
State Vs.Sandeep @ Hanuman 17 of 40 On the other hand, Ld. defence counsels argued that the recovery of dead body at the instance of accused cannot be believed because it is the case of the police that the three accused made joint disclosure statement consequent to which the body was recovered. Counsels argued that joint disclosure statements are inadmissible in evidence. Regarding recovery from accused Sandeep @ Azad, it is submitted that it has not been stated by any witness that it was the same Kassi with which the pit was dug for the burial of the body. For chappal, it is stated that it was recovered from an open place accessible to everybody. As per defence counsels, prosecution did not allege any motive. The counsels assailed the prosecution version that word "Thakran" was found engraved on the right hand of the deceased, saying that that fact was not mentioned in the missing DD and FIR. They further submitted that all accused are the covillagers of the deceased but there is no explanation why the IO visited the places like Unnao, Mujjafarnagar, Meerut and Gujarat etc. for investigation. Recovery of dead body has been assailed on the ground that as per the deposition of PW16 Ct. Rishi Kumar media persons were already present at the place of recovery of body when police reached the said fields. Also, there is no opinion from the doctor PW8 that Praveen was killed by strangulating with the rope found tied around his neck. Last submission is that prosecution has failed to State Vs.Sandeep @ Hanuman 18 of 40 establish the identity of the deceased because the doctor had preserved sternum for DNA analysis but police never got the DNA done.
MOTIVE
11. Motive as set out in chargesheet is that all the accused were aware that the deceased Praveen used to carry Rs.15,000 20,000/ with him all the time and that is why, he was abducted and murdered to rob Rs.15,00020,000/. Neither public witnesses nor police witnesses deposed a single word about the motive behind the commission of the crime. The motive stated in the chargesheet finds place only in the disclosure statements of four accused. It is the law of land that only that portion of disclosure statement/confessional statement is admissible in evidence which leads to the discovery of a fact(physical). So, the disclosure statement of all accused regarding motive is inadmissible. There is no other document on the file which may say a single word about the motive. Hence, the prosecution has failed to establish the motive.
JOINT DISCLOSURES
12. Contention of the defence counsels is that all accused had made joint disclosure statements and such disclosure State Vs.Sandeep @ Hanuman 19 of 40 statements are inadmissible in evidence. On the other hand, APP argued that disclosures were joint but one after another and hence are very much admissible in evidence u/s 27 of Indian Evidence Act.
It was held by the Apex Court in State (NCT of Delhi) Navjot Sindhu & Ors., Appeal (Crl.) 373375 of 2004 decided on 04.08.2005, that some of the High Court have taken the view that the wording "a person" excludes the applicability of the section to more than one person but that is a narrow view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, perse, are not inadmissible u/s 27 of Evidence Act. "A person accused"
need not necessarily be a single person but it could be plurality of the accused. The Apex Court further held that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. It further held that, in fact, joint or simultaneous disclosures is a myth because two or more accused persons would not have uttered informatory word in chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later or the second person would have given unequivocal nod to what has been said by the first person or, State Vs.Sandeep @ Hanuman 20 of 40 two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to discovery of facts. Or, in rare cases, both the accused may reduce the information into writing and handover the written notes to the police officer at the same time. The Hon'ble Supreme Court propounded the law that if information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, there is no reason to eschew such evidence from the range of Section 27. So, it has been held by the Hon'ble Supreme Court that joint or simultaneous disclosure statements are admissible in evidence u/s 27 of Evidence Act if the discovery of fact is made out.
Ld. defence counsels next argued that the simultaneous disclosure statements/confessional statements do not inspire any confidence, and hence, these should not be taken into account. They have further submitted that it is never possible that one accused would make a disclosure statement and then, the second and third accused would make the similar statements in succession. They relied upon Mohd. Abdul Hafeez Vs. State of Andhra Pradesh, AIR 1993 SC 367. In the cited case, the prosecution has sought to rely upon the evidence that the appellant along with two other accused gave information to the IO that the ring was sold to State Vs.Sandeep @ Hanuman 21 of 40 the jeweller in whose possession the ring was. Jeweller deposed that four accused persons whom he identified in the Court, came to his shop and that they sold the ring for Rs.325/ and some days later, the police inspector accompanied by accused No.1, 2 and 3 came to his shop and the said accused asked him to produce the ring which they sold. Then, he took out the ring from the showcase and it was seized by the police inspector. The difficulty in accepting such kind of evidence was projected by the Hon'ble Supreme Court in following words :
"Does this evidence make any sense? He says that accused 1 to 4 sold him the ring. He does say who had the ring and to whom he paid the money. Similarly, he stated that accused 1, 2 & 3 asked him to produce the ring. It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If it is admissible u/s 27 of Indian Evidence Act, it is obligatory upon the IO to state and record who gave the information, when he is dealing with more than one accused, and what words were used by him so that the recovery pursuant to information received may be connected to the person giving the information as to provide incriminating evidence against the person"
In the case in hand, it has been deposed by PW6, PW16, PW19, PW20 and PW22 that it was the accused Jai Kumar State Vs.Sandeep @ Hanuman 22 of 40 who was arrested first and he made disclosure statement. Thereafter, he led the police party to the house of second accused Dharambir @ Ballu. Dharamvir was arrested and he made disclosure statement and both accused led the police party to the house of third accused Sandeep @ Hanuman who also made similar disclosure statement. Chronology of arrest and disclosure statements show that these statements were written after some time of the other. So, these disclosure statements cannot be termed as joint disclosure statements. Rather, these are the contemporaneous disclosure statements. After these statements, it was accused Jai Kumar who led the police party first to the place where dead body was buried. Thereafter, he was taken to a place near pond and he was given in the custody of a constable and was made to stand separate from the remaining two accused. Thereafter, accused Dharambir @ Ballu led the police party and pointed out the same place. He was also brought back to the pond and custody was handed over to a police official. Then, the third accused Sandeep @ Hanuman led police party and pointed out the same place.
Evidence of PW6 and PW20 shows that when accused Jai Kumar led the police party to point out the place of burial of the dead body, remaining two accused were kept apart. When accused Jai Kumar was brought back after pointing out, he did not State Vs.Sandeep @ Hanuman 23 of 40 meet the other accused. After pointing out the place by accused Dharambir @ Ballu, he did not meet the third accused Sandeep @ Hanuman. All three accused met first time after apprehension only when they were taken to the place of burial when the pit was being dug. So, the said citation is not applicable to the facts of the present case because evidence of public and police witnesses is quite clear about the time gap in the arrest of accused, making disclosure statements and pointing out of place of burial of body.
The first requisite condition for utilizing Section 27 in support of prosecution case is that IO should depose that he discovered a fact in consequence of the information received from the accused present in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is exclusively clarified in the section that there is no taboo against receiving such information in writing merely because it amounts to confession. At the same time, last clause makes it clear that it is not the confessional part that is admissible but it is only such information State Vs.Sandeep @ Hanuman 24 of 40 or part of it which relates distinctly to the fact discovered by means of information furnished. The rational behind this provision that if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can, therefore, be safely allowed to be admitted in evidence as an incriminating factor against the accused. In the case in hand, the dead body of Praveen was recovered consequent to the disclosure statement. So, the facts discovered are the physical object i.e. dead body, the place from where it was retrieved and knowledge of the accused to that effect.
Hence, prosecution has successfully proved a vital circumstance of retrieval of dead body on the disclosure statement of accused Jai Kumar, Dharambir @ Ballu and Sandeep @ Hanuman and it shall go a long way. Argument of the defence counsel that media persons were already present when the accused were taken to the field is of no consequence because by that time, the place has already been pointed out by the police. Presence of media persons at that place was because the murder was committed in the capital city of the country and despite it, police was unaware of the dead body and murderers for two months. There is nothing on the file to suggest that police was already aware of the place of burial of dead body before making of disclosure statements by the three accused.
State Vs.Sandeep @ Hanuman 25 of 40 ACCUSED JAI KUMAR - A LONG TIME LABOURER IN THE SAME FIELDS
13. PW7 Satyadev @ Satyavrat deposed that accused Jai Kuamar had been working in his fields on daily wags for last so many years. In cross examination, he deposed that he was cultivating the fields of Shamma Kaur on Batai basis(share basis) since 1997 for which no rent agreement was ever executed between them.
Praveen went missing on 08.11.2004. It is the month of sowing of wheats in the fields. On that day, either the wheat had already been sown or the land was ready for sowing the wheat crop. After sowing of the crop, the crop is to be irrigated. The dead body was found buried under a pit of 4 ft. The colour of the soil under the ground is quite different from the soil above ground. It is due to the presence of moisture in the underground soil. A person who visits his fields daily, comes to know definitely that a new colour soil was lying in his field. As accused Jai Kumar was regularly working in that field, he might have been aware of the change of the colour of the soil but he did not intimate anybody. It is big circumstance against him.
When the fields are irrigated, the new soil(dug out soil) gives way and sinks inside. Even the person visiting the field first State Vs.Sandeep @ Hanuman 26 of 40 time comes to know after irrigation of the fields that soil at the dug place had given way. It was accused Jai Kumar who used to irrigate the field and he might be aware of such giving way of the soil but he did not intimate anybody about such change in the soil.
RECOVERY OF BODY AFTER TWO MONTHS
14. Praveen went missing on 08.11.2004 and his body was retrieved on 11.01.2005 i.e. after nearly two months. Complainant PW3 Jagdish had no clue about the fate of his son and that is why, he moved application before police authorities that police was not investigating the case properly, and thereafter, the case was transferred to Special Cell. During these two months, the police was clueless about the murderers and the dead body. The body was recovered from the fields which were being looked after by accused Jai Kumar. It was recovered at the instance of three accused. It means that only these three accused were in the exclusive knowledge of the burial of dead body otherwise, it would have been retrieved earlier. Retrieval of the body after two months rules out the possibility of false implication of accused Sandeep @ Hanuman, Jai Kumar and Dharambir @ Ballu.
State Vs.Sandeep @ Hanuman 27 of 40
ACCUSED, DECEASED AND WITNESSES ARE CO
VILLAGERS.
15. All accused are covillagers. It is not disputed either by prosecution or defence that deceased, public witnesses and accused are of the same village. Why so many public persons would depose falsely against their covillagers. As the accused are of the same village, they had opportunity and time of meeting with Praveen. They had also opportunity of winning his confidence.
IDENTITY OF DEAD BODY
16. Ld. defence counsels argued that the bone of the deceased was preserved for DNA analysis so that the dead body may be identified properly but no DNA analysis was got done by the police and in this way, the dead body could not be identified as it was in totally decomposed state at the time of retrieval. About the tattooing of name "Thakran" on the right forearm of the deceased, the counsels submitted that it is an afterthought story because that fact was not stated by PW3 in missing report and FIR.
The dead body was identified not only by PW3 but also by PW4 Rajesh, PW5 Surender, PW7 Satyadev @ Satyavrat, PW9 Hari Singh and PW10 Rajbir Singh. So many persons cannot be said to have failed in identifying their villager. Moreover, it had been stated by PW3 in missing DD and FIR that when his son went State Vs.Sandeep @ Hanuman 28 of 40 missing on 08.11.2004, he was wearing black stripped white shirt and red track pant. When the body was retrieved, it was found wearing same clothes and those clothes have been identified by PW3 Jagdish and PW4 Rajesh. It is pertinent to mention that deceased was sitting with PW4 just before he left the house. Another blow to the argument of defence counsel is coming from the evidence of PW8 Dr. Anil Shandilya who deposed that the body was recognizable. Photographs of the body are on the file and these suggest that the word "Thakran" was engraved on the right forearm. That fact was not mentioned in the DD or FIR but it does not mean that the said word was not tattooed on the forearm. PW8 also deposed that there was a tattoo mark "Thakran" in English on the right forearm. So, it is held that the body was definitely recognizable and it has been identified properly by all the covillagers.
MISCELLANEOUS
17. Ld. Amicus Curiae argued that it is the case of the prosecution that accused Praveen made call to Dharamvir, and thereafter, they both left the house. The objection of the counsel is that there is no CDRs of the landline telephone number of the deceased and the mobile phone of accused Dharambir @ Ballu. It is true that prosecution did not file the CDRs of any landline or State Vs.Sandeep @ Hanuman 29 of 40 mobile phone number and that is why, it has no where been argued by the APP that Praveen had called accused Dharambir @ Ballu on phone and had accompanied him.
The next argument is that it has been admitted by IO that first suspect list was given by PW3 only on 27.11.2004 and that included the names of Karamvir and Dushyant and not the name of Jai Kumar. The counsel asked a question that he was unable to find the reason why the police was zeroing in on accused Jai Kumar as he was not the suspect.
It can be deducted from the whole judicial file that no villager had any clue about Praveen till 11.01.2005. PW3 was naming the covillagers as suspect and one such list was given on 27.11.2004. The said list went unanswered as the body was not retrieved by police. Complainant was feeling harassed and aggrieved by the investigation being conducted by the police, and hence, he was complaining against them and ultimately, the investigation was assigned to Special Cell. By that time, every villager was suspect and that is why accused Jai Kumar was apprehended and he gave police a big success. Before 11.01.2005, the police was unable to crack the case and that is why it visited various places like Unnau, Mujaffarnagar, Meerut and Gujarat for clue.
The defence counsel next argued that prosecution has State Vs.Sandeep @ Hanuman 30 of 40 failed to prove the charge of 392. That charge has been framed for having committed robbery of Rs.200/ from deceased Praveen. No witness spoke a single word on this incident, and hence, it went unproved. So, prosecution has failed to prove the charge u/s 392 IPC.
The counsels next argued that prosecution has failed to prove the cause of death because there is no opinion of the doctor that Praveen was strangulated with the rope found tied around his neck.
It is pertinent to mention that all witnesses have deposed that when the dead body was dug out, a blue plastic rope was found tied in the neck. PW8 Dr. Anil Shandilya deposed that there were two ligature marks of the identical size of 34x1 cm. on the neck. Distance between both ligature marks was 1.5 cm. PW8 opined the cause of death as asphyxia resulting from strangulation by means of ligature. Defence counsels are not justified to argue that prosecution has failed to prove the cause of death. It has been opined by PW8 as asphyxia. The doctor did not depose specifically that ligature marks were caused by the rope recovered from the neck of the deceased but all witnesses deposed that the rope was found tied in the neck when dead body was retrieved. So, the rope was as old as the dead body. It was found tied in the neck, and hence, the irresistible inference is that Praveen was strangulated State Vs.Sandeep @ Hanuman 31 of 40 with the said rope.
CASE AGAINST ACCUSED SANDEEP @ AZAD
18. Prosecution is seeking the head of this accused on four points. First point is the evidence of PW10 Rajbir Singh who used to cultivate fields near the fields from where the dead body was recovered. He deposed that on 11.01.2005, he saw accused Sandeep @ Azad at about 1.00 - 1.50 P.M. coming out of the kotha(room) situated in the fields of Shamma Kaur with Kassi and on inquiry, he got perplexed and went away towards the main road. Second point is that he absconded from house on 11.01.2005 and remained at large till 19.01.2005. Third fact is the recovery of the Kassi and fourth one is the recovery of a plastic slipper of the deceased at his instance.
As per the witnesses of the facts of 11.01.2005, the body was exhumed on that day by 3.00 P.M. Before it, the three accused were arrested, their disclosure statements were recorded, they pointed out the place of burial of dead body and then, the pit was dug. As per PW6, police met him in the village at about 12.00
- 1.00 P.M. It means that police had reached the village by that time. It is pertinent to mention that before reaching the village, it had already arrested accused Jai Kumar and had written its disclosure statement. So, police was active in that area right from State Vs.Sandeep @ Hanuman 32 of 40 the morning. No accused knowing presence of police in his area would remain there fearing arrest. Case of the prosecution is that Kassi carried by accused Sandeep @ Azad was the same Kassi with which the pit was dug in order to bury the dead body. No accused of reasonable mind would conceal the ordinary agriculture implement like Kassi in the room near the place of burial of dead body.
It has been deposed by public witnesses that after arrest of third accused Sandeep @ Hanuman, police has visited the house of accused Sandeep @ Hanuman also but he was found absent. So, police was armed with three disclosure statements and consequent recovery of dead body but it has no explanation why it did not move any application for issuance of warrants of accused. Why did it not issue any notice u/s 160 Cr.PC to him. Simply saying that the accused absconded is not sufficient.
It has been deposed by PW7 that accused Jai Kumar was the daily wages labourer permanently in his fields owned by Shamma Kaur. It means that the fields were being taken care of by Jai Kumar. It further follows that he was the custodian of the room(kotha) constructed in the fields. On 11.01.2005, accused Jai Kumar was in the police custody at 1.00 - 1.50 P.M. So, accused Sandeep @ Azad could not have collected key of the said room from Jai Kumar. Despite it, he entered the room and concealed a State Vs.Sandeep @ Hanuman 33 of 40 Kassi there. It means that the room was not locked. Had it been locked, that fact would have been deposed by PW10 Rajbir as he would have heard the sound of breaking of the lock. Hence, the room was accessible to everybody. Anyone could have kept said Kassi in that room. Prosecution has failed to prove the conscious possession of the Kassi with accused Sandeep @ Azad. Kassi is a general implement used in farming. It is needed in every stage of cultivation. That implement is available in the kotha and house of every farmer. Prosecution could not prove as to how it was connected with the offence. It did not examine any witness to prove that it was the same Kassi used in digging the pit for burial of the body or that it was the same Kassi which was used by accused Jai Kumar when he used to work in the fields.
Next recovery is of chappal of the deceased from a place near the wall of the stadium. The recovery has been effected after two months of the incident. No reasonable person of ordinary prudence can agree that a slipper would keep on lying on the same place even after two months. Moreover, PW3 had not given the vivid description of the slippers in missing DD and FIR. Absence of description in those papers, it is presumed, paved way for the police to plant the slipper on accused Sandeep @ Azad. Hence, prosecution has either failed to prove any circumstance against accused or if proved, it is of no relevance.
State Vs.Sandeep @ Hanuman 34 of 40
CONCLUSION
19. The dead body was recovered on the lead given by accused Jai Kumar, Dharambir @ Ballu and Sandeep @ Hanuman. It was recovered after two months of the incident. They are the covillagers of the deceased. Why the covillager witnesses would depose against them. The body was recovered from a pit of 4ft. depth and so, body's presence there was in their exclusive knowledge. Accused Jai Kumar was the care taker of the fields.
In Deepak Chander Kant Patil Vs. State of Maharashtra (2006) 10 SCC 151, the Hon'ble Supreme Court upheld the conviction u/s 302 IPC as the dead body and motorcycle of the deceased were recovered at the instance of the accused. In Ningappa Yallappa Hosamani & Ors. Vs. State of Karnataka & Ors., (2009) 14 SCC 582, there was recovery of dead body pursuant to disclosure of appellant from the canal. The Hon'ble Supreme Court held as under :
9. "As regards accused Nos.1 & 2, since the dead body of Namdev was recovered in furtherance of voluntary information furnished by them, the natural presumption, in the absence of explanation by them, is that it was those two persons who had murdered Namdev and had buried the dead body."
Following was held by the Apex Court in State of State Vs.Sandeep @ Hanuman 35 of 40 Maharashtra Vs. Suresh, (2000) 1 SCC 471 :
"three possibilities are there when an accused points out the place where dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it and third one is that he would have been told by another person that it was concealed there. But, if the accused declines to tell the criminal Court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal Court can presume that it was concealed by accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is well justified course to be adopted by the criminal Court that the concealment was made by him. Such an interpretation is not inconsistent with the principal embodied in Section 27 of Indian Evidence Act."
Division Bench of Hon'ble High Court of Delhi in Prithipal Singh Vs. State, Crl. Appeal No.75/04 decided on 12.03.2010 held as under :
"Recoveries of objects and dead bodies lying hidden in the soil at the instance of a person have always been treated as highly incriminating evidence for the reason save and except a person telling State Vs.Sandeep @ Hanuman 36 of 40 the police its whereabouts, the police can never reach out to the same."
To the same effect were the decisions of Division Bench of Hon'ble High Court of Delhi in (1) Crl. Appeal No.385/2008 decided on 01.02.2010 titled as Dost Mohd. & Anr. Vs. State and (2) Harvinder Singh VS. State (Govt. of NCT), Crl. Appeal No.979/2010 decided on 02.06.2011.
Taking into account all these facts, accused Sandeep @ Hanuman, Jai Kumar and Dharambir @ Ballu are convicted u/s 302/201/34 IPC.
Accused Sandeep @ Azad is acquitted of the all charges levelled against him.
Announced in the open Court On this 29th day of March, 2014.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North:Rohini Courts:Delhi
State Vs.Sandeep @ Hanuman 37 of 40
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS): NORTH DISTRICT
ROHINI COURTS: DELHI
SC No.16/2013
FIR No.414/2004
PS Bawana
U/S 302/392/201/34 IPC
State
Vs.
1. Sandeep @ Hanuman,
S/o Ram Chander,
R/o Village Bajitpur, Delhi.
2. Dharambir @ Ballu,
S/o Suraj Bhan,
R/o Village Bajitpur, Delhi.
3. Jai Kumar @ Jai Kanwar,
S/o Chattar Singh,
R/o Village Bajitpur, Delhi.
Date of Institution:20.08.2005
Date of conclusion of Arguments:26.03.2014 Date of pronouncement of Judgment:29.03.2014 Appearance: Mr. Ashok Kumar, Addl. PP for the State.
Mr. K.K.Vijay, proxy counsel for Mr. Aseem Bhardwaj, Amicus Curiae for all convicts.
1. The three accused have already been held guilty u/s 302/201 of IPC.
State Vs.Sandeep @ Hanuman 38 of 40
2. Mr. K. K. Vijay argued that Jai Kumar is only of 29 years. He has a elder brother who is residing separately from his father of 75 years. His mother has already expired. He has three sisters who have already been married off. Counsel further submitted that accused maintained a good conduct in the jail. He passed Sr. Secondary Examination and also obtained a Diploma in Computer application.
About convict Dharambir @ Ballu, it is submitted that he is a young man of 30 years having two brothers. His parents are of 74 and 71 years respectively. They are living separately from his elder brother and hence they need the company of the convict. Two sisters have already been married off.
About convict Sandeep @ Hanuman, it is submitted that he is of 29 years. His brother is younger to him. His father has not returned home for long time and his mother has already expired. He has no sister. He is to lookafter his younger brother.
It is argued for all convicts this is the only FIR registered against them.
3. On the other hand APP argued that capital sentence be pronounced against all because they not only murdered Parveen and also breached the confidence which Parveen reposed in them. He submitted that convicts did not tell anybody about their concealing of dead body in nearby fields and that the body was recovered after two months when they gave lead to the police.
4. Case of death is asphyxia. The blue plastic rope was found tied around the neck of the deceased. Murder was committed by State Vs.Sandeep @ Hanuman 39 of 40 strangulation with the help of that rope. There is nothing on the file which may suggest that any of the convict acted in cruelty. So it is not the case of capital sentence.
5. Taking into account all these facts and circumstances, all the convict are sentenced to undergo life imprisonment and a fine of Rs.10,000/ (Rupees ten thousand only) each is imposed, in default of payment of fine they shall further undergo SI for two years for the offence punishable u/s 302 of IPC.
All the convicts are sentenced to undergo RI for five years and a fine of Rs.5,000/ (Rupees five thousand only) each is imposed, in default of payment of fine they shall further undergo SI for six months for the offence punishable u/s 201 of IPC. Benefit of section 428 Cr. PC be given to the convict. Both the sentences shall run concurrently.
5. Fine not deposited.
6. Let a copy of Judgment and Order on Sentence be given to convict.
7. File be consigned to Record Room.
Announced in the open Court On this 31th day of March, 2014.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North:Rohini Courts:Delhi
State Vs.Sandeep @ Hanuman 40 of 40