Delhi District Court
State vs Dharmender Etc on 4 September, 2010
FIR no. 123/05
State Vs Dharmender etc
Police Station Khajuri Khas
U/s 302/458/392/ 120B/ 34 IPC and 411 IPC
04.09.2010
Pre: Ld. APP for the state.
Convict persons namely Dharmender and Bhopal @ Bhola are in
JC.
Convict Sandeep on bail.
Ld. counsel Sh. K.N. Sharma - from Legal aid for accused
Dharmender.
Ld. counsel Sh. Sanjay Kumar and Sh. Brahmpal for accused
Bhopal @ Bhola.
Ld. counsel Sh. P.S. Bisht for accused Sandeep.
Arguments on sentence led by Ld. APP at length. Vide separate
order on sentence placed along side in the file, convict persons namely
Dharmender and Bhopal @ Bhola are sentenced to undergo 10 years
R.I. each for the offence u/s 304 Part I with fine of Rs.5000/- each in
default 6 months further R.I. for the reasons that convict persons have
been convicted for removing the iron articles for which no value was got
done by the prosecution agency; and to undergo 5 years R.I. each
with fine of Rs.5000/- each in default further 6 months R.I. for the
offence punishable u/s 392 IPC; to undergo 5 years R.I. each with
fine of Rs.5000/- each in default further 6 months R.I. for the offence
punishable u/s 458 IPC; and to undergo for the period as already
undergone by them (accused Bhopal @ Bhola and Dharmender) for the
FIR no.123/05
State Vs Dharmender etc
PS Khajuri Khas
1/
offence punishable u/s 411/ 120 B IPC. And accused Sandeep is
sentenced to undergo for 6 months R.I. with fine of Rs.5000/- in default
further 2 month R.I. Fine paid.
All the sentences shall run concurrently.
Benefit of section 428 Cr. PC be given to all the convict
persons.
Perusal of the case file reveals that Superdar namely convict
Sandeep during the course of trial could not produce the vehicle no.DL
1 RC - 9083(TSR) so superdarinama of Rs.50,000/- was forfeited. Ld.
counsel for convict submits that convict Sandeep is very poor person
and is under the treatment of psychotic disorder and to this effect ld.
counsel has placed the photocopy of the medical treatment. Heard. In
view of the health and financial position of convict, it is ordered that
Rs.10,000/- be imposed for the recovery of the superdagi amount vide
superdarinama 04.04.05.
The whole amount i.e. fine amount and superdaginama amount
be given to the kith and kin of the deceased Om Prakash.
Copy of the judgment and Order on Sentence be given to
the convict persons forthwith.
File be consigned to record room.
Raj Kapoor/ ASJ-1/NE
KKD/Delhi /04.09.2010
FIR no.123/05
State Vs Dharmender etc
PS Khajuri Khas
2/
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - I : North- East / KARKARDOOMA COURTS:
DELHI.
S. Case No. 28\ 09
FIR No. 123/05
State Vs Dharmender etc
Police Station Khajuri Khas
Convicted Under Section - 304 Part - I / 392/ 458/ 120(b) IPC
accused Bhola @ Bhopal
and Dharmender
Convicted Under Section - u/s 411/ 120 (b) IPC
Sandeep along with
accused Bhopal @ Bhola
and Dharmender.
ORDER ON THE POINT OF SENTENCE
04.09.2010
Pre: Ld. APP for the state.
Convict persons namely Dharmender and Bhopal @ Bhola are in
JC.
Convict Sandeep on bail.
Ld. counsel Sh. K.N. Sharma - from Legal aid for accused
Dharmender.
Ld. counsel Sh. Sanjay Kumar and Sh. Brahmpal for accused
Bhopal @ Bhola.
Ld. counsel Sh. P.S. Bisht for accused Sandeep.
Arguments on sentence led by Ld. APP heard at length. During
the course of arguments he submits that convict persons namely Bhola
and Dharmender have been convicted for the offence u/s 304 Part - I /
FIR no.123/05
State Vs Dharmender etc
PS Khajuri Khas
3/
392/ 458/ 120(b) IPC; and convict Sandeep along with accused
Bhopal @ Bhola and Dharmender, has convicted for the offence u/s
411/ 120 (b) IPC. Ld. APP submits that severe punishment be
awarded to the convict persons namely Dharmender and Bhola as they
have committed heinous crime by killing an innocent person namely Om
Prakash for the goods of Rs.5000/- to Rs.7000/- value approximately.
Contrary to the submissions of Ld. APP, ld. counsel Sh. K. N.
Sharma submits that accused Dharmender is aged about 24 years
old and he has widow mother aged about 70 years old and one sister of
marriage age to look after. He further submits that he is the only bread
earner in his family. There is no other male member in the family to
earn for livelihood. Ld. counsel submits that convict has already
remained in custody for about more than 5 ½ years. Ld. counsel for
convict further submits that if severe punishment is awarded his family
will ruin. On these grounds he prayed for taking leniency in awarding
the sentence.
ld. counsel Sh. Brahmpal submits that convict Bhola is aged
about 32 years old and he has widow mother aged about 75 years old
and one widow sister-in-law (bhabhi) along with her four children to look
after. Ld. counsel further submits that convict himself is having two
small children and wife. He further submits that he is the only bread
earner in his family. There is no other male member in the family to
earn for livelihood. Ld. counsel again submits that convict has
already remained in custody for about more than 5 ½ years. Ld. counsel
for convict further submits that if severe punishment is awarded his
FIR no.123/05
State Vs Dharmender etc
PS Khajuri Khas
4/
family will ruin. On these grounds he prayed for taking leniency in
awarding the sentence.
ld. counsel Sh. P.S. Bisht submits that accused Sandeep is
aged about 42 years old. Ld. counsel further submits that convict
Sandeep is the patient of psychotic disorder with DM and he is still
under treatment. Ld. counsel further submits that he has a
handicapped girl aged about 15 years old. He further submits that he
is the only bread earner in his family. There is no other male member
in the family to earn for livelihood. Ld. counsel submits that convict
has already remained in custody for about 3 months and 4 days. Ld.
counsel for convict further submits that if severe punishment is awarded
his family will ruin. On these grounds he prayed for taking leniency in
awarding the sentence.
I have given careful consideration to the submissions of Ld. APP
for the state and the accused persons. In the facts and circumstances
of the case and family background of convict persons, the court is of the
considered view that ends of justice will be met if convict persons
namely Dharmender and Bhopal @ Bhola are sentenced to undergo
10 years R.I. each for the offence u/s 304 Part I with fine of Rs.5000/-
each in default 6 months further R.I. for the reasons that convict persons
have been convicted for removing the iron articles for which no value
was got done by the prosecution agency; and to undergo 5 years R.I.
each with fine of Rs.5000/- each in default further 6 months R.I. for the
offence punishable u/s 392 IPC; to undergo 5 years R.I. each with
FIR no.123/05
State Vs Dharmender etc
PS Khajuri Khas
5/
fine of Rs.5000/- each in default further 6 months R.I. for the offence
punishable u/s 458 IPC; and to undergo for the period as already
undergone by them (accused Bhopal @ Bhola and Dharmender) for the
offence punishable u/s 411/ 120 B IPC.
Further ends of justice will be met if accused Sandeep is
sentenced to undergo for 6 months R.I. with fine of Rs.5000/- in default
further 2 month R.I. Fine paid.
Accordingly, I sentence convict
persons namely Dharmender and Bhopal
@ Bhola to undergo 10 years R.I. each for
the offence u/s 304 Part I with fine of
Rs.5000/- each in default 6 months further
R.I. for the reasons that convict persons
have been convicted for removing the iron
articles for which no value was got done by
the prosecution agency;
and to undergo 5 years R.I. each
with fine of Rs.5000/- each in default
further 6 months R.I. for the offence
punishable u/s 392 IPC;
to undergo 5 years R.I. each with
fine of Rs.5000/- each in default further 6
months R.I. for the offence punishable u/s
458 IPC;
and to undergo for the period as
already undergone by accused Bhopal @
Bhola and Dharmender for the offence
punishable u/s 411/ 120 B IPC.
Accused Sandeep is sentenced to
undergo for 6 months R.I. with fine of
Rs.5000/- in default further 2 month R.I.
Fine paid.
All the sentences shall run concurrently. Benefit of section 428 Cr.
PC be given to all the convict persons.
FIR no.123/05
State Vs Dharmender etc
PS Khajuri Khas
6/
Perusal of the case file reveals that Superdar namely convict
Sandeep during the course of trial could not produce the vehicle no.DL
1 RC - 9083(TSR) so superdarinama of Rs.50,000/- was forfeited. Ld.
counsel for convict submits that convict Sandeep is very poor person
and is under the treatment of psychotic disorder and to this effect ld.
counsel has placed the photocopy of the medical treatment. Heard. In
view of the health and financial position of convict, it is ordered that
Rs.10,000/- be imposed for the recovery of the superdagi amount vide
superdarinama 04.04.05.
The whole amount i.e. fine amount and superdaginama amount
be given to the kith and kin of the deceased Om Prakash.
Copy of the judgment and Order on Sentence be given to
the convict persons forthwith.
ANNOUNCED IN THE OPEN
COURT ON THIS 04.09.2010
(RAJ KAPOOR)
ADDL. SESSIONS JUDGE-I/NORTH EAST
KARKARDOOMA COURTS: DELHI
FIR no.123/05
State Vs Dharmender etc
PS Khajuri Khas
7/
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - I : North- East / KARKARDOOMA COURTS:
DELHI.
Case ID Number. 02402R0360572005
Sessions Case No. 28 \09
Assigned to Sessions. 06/08/05
Arguments heard on 21.08.2010
Date of order. 30.08.2010
FIR No. 123/05
State Vs 1. Dharmender s/o Rajender,
R/oH. No.123, Gali no.1, West
Kaarawalnagar, Delhi.
2. Bhopal @ Bhola s/o Charan
Singh, R/o H.No. 64, Karawal
Nagar, Delhi.
3. Sandeep s/o Ram Lakhan, R/o
D-94, Ankur Enclave, Khajuri
Khas, Delhi.
Police Station Khajuri Khas
Under Section 302/ 458/ 392/ 120B/ 34 IPC &
411 IPC
JUDGEMENT
1. Briefly facts of the case are that on the night of 24.03.2005 at about 3.30 A.M. Ct. K. R. Saju no.1489/NE and Ct. Ashok Kumar no.1423/NE were on patrolling duty, when they reached to Karawal Nagar Chowk, on suspicion they stopped a TSR no. DL 1 RG - 9083 which was loaded with heavy iron and three persons were inside the FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 8/ said TSR including driver and when Ct. K R Saju interrogated them, one of the fellow namely accused Dharmender, who was sitting at the backside seat of TSR and wearing security guard uniform, told that this is factory goods and he is shifting it on the direction of the owner. In the meantime the third fellow, who was sitting backside of TSR namely accused Bhopal @ Bhola jumped out and tried to flee away but Ct. Ashok caught him. In the interrogation their names and addresses were revealed. The other accused who was driving the alleged TSR, his name was revealed as Sandeep. They were interrogated and in the interrogation they told that they robbed the goods from factory situated in Dakhanewali Gali and when Ct. K R Saju and Ct. Ashok along with these accused persons reached at factory at the instance of accused persons they found that the small gate fitted in big gate was lying open and when they reached inside the factory they found that one male dead body aged about 35 years was lying on the first stair of office building in the pool of blood and found injury mark over head near left eye. One rod fitted with bolt containing blood was also lying there. On further interrogation from accused Dharmender and Bhopal @ Bhola it was revealed that at about 2 a.m. they enter the factory after opening the small gate of the FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 9/ factory to rob, the guard, who was inside the factory tried to stop them but they hold him and killed him with rod fitted with bolt and after killing him they went to Karawal Nagar Chowk and hired a TSR and then loaded the robbed articles in TSR bearing no. DL1 RG - 9083, with the help of driver and later on they were caught hold by the police. After that, Ct. K R Saju called at 100 number.
2. In this regard a DD no.30A vide mark Z was recorded. SI Rakesh Kumar along with Insp. C S Rathi, SI Satinder Mohan, SI Mohd. Salim, SI Om Prakash, Ct. Omveer and other staff reached at the spot i.e. factory situated at Khasra no.293, post office gali, Village Karawal Nagar where Ct.K R Saju and Ct. Ashok along with accused persons were found there. TSR no. DL 1 RG - 9083 was also found standing there along with iron goods. PW20 Insp. C. S. Rathi recorded the statement of Ct. K R Saju and prepared rukka vide Ex.PW20/A. He got registered the case at police station through Ct. Omveer. Crime Team and photographer was called at the spot. Spot was inspected carefully by Crime Team also. Photographer took the photos of the spot vide Ex.PW8/1 to PW8/21. FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 10/
3. Owner of the factory namely Kuldeep Singh and Director of AISF Security namely Jawahar Singh and Supervisor namely Puran Chand Sharma were called at the spot. They identified the dead body of deceased as of Om Prakash. Owner Kuldeep Singh identified his articles lying inside the TSR which was standing outside the factory, articles were seized vide seizure memo Ex.PW7/A. I.O. also seized sample plate vide seizure memo Ex.PW19/K-2. Site plan was prepared by the I.O. vide Ex.PW20/B.
4. Disclosure statements of accused persons were recorded. In the disclosure statement of accused Dharmender vide Ex.PW19/J-2 it was revealed that:-
'About 4 /5 days prior to the incident, he had come from his village Malakpur, PS Anup Sahar, Distt. Buland Shahar to Delhi in search of job. With help of one Rohtash who is residing in West Karawal Nagar got a job in All India Security Service 550-A/ 10 M S Park, Delhi @ of Rs.1600/- per month. Firstly, on 22.03.05 he performed his duty in day time at Preet Engineering Company, K-293, Opp. Mukhiya Market, Karawal Nagar which was lying and thereafter, on the night of 23.03.05 his duty was fixed at Arun Manufacturing, Karawal Nagar and during the course of his duty he came in contact with accused Bhopal @ Bhola, who also belongs to Buland Shahar, U.P. He told him that this small job is insufficient to fulfill his wishes and on 25th April he has to marry so he needs money. He further told him that in the day time he had performed duty at Preet Engineering Company where in huge quantity iron material is lying, to which they would remove it from there and sell it in the market and they would get huge money in return and if Chowkidar would stop them, they would FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 11/ kill him because there is no one to see anything. He further disclosed that accused Bhopal @ Bhola agreed to accompany him.
According to their plan, they reached at Preet Engineering Company, which was lying closed but accused Dharmender managed to open the gate from inside after entering his hand in a whole which was used to look outside the factory. As soon as they started lifting the iron goods, Chowkidar came there. They asked him to run away from there otherwise they would kill him. But as soon as Chowkidar tried to catch them, accused Bhopal @ Bhola caught hold him and then he picked up an iron rod, which was fitted with bolt and tried to hit upon the head of Chowkidar but rod hit upon his left eye and due to impact of rod blow injury Chowkidar fell down(Dher Ho Gaya). Thereafter, they run away from there and reached at Karawal Nagar from where they hired a TSR after telling him that they have to steal some iron goods from factory and would go to Azadpur for selling the same. TSR driver agreed and demanded Rs.160/- as fair. On reaching at the factory, TSR driver on seeing the dead body of chowkidar asked them that he would now charge Rs.1000/-. And after loading iron goods in TSR they proceeded and when they were on the way at Karawal Nagar Chowk, police apprehended them.'
5. Similarly, in the disclosure statement of accused Bhopal @ Bhola vide Ex.PW19-J it has come on record that:
'On the night of 23.03.05 he came in contact with accused Dharmender - security guard, who belongs to Buland Shahar, U.P. They talked to each other and during the course of conversation accused Dharmender told him that there is nothing in the small job and on 25th April 2005 he has to marry so he needs money. He further told him that in the day time he had performed duty at Preet Engineering Company where in huge quantity iron material is lying, to which they would remove it from there and sell it in the market and they would get huge money in return and if Chowkidar would stop them, they would kill him because there is no one to see anything. Accused Bhopal @ Bhola agreed to accompany accused Dharmender.
According to their plan, they reached at Preet Engineering Company, which was lying closed but FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 12/ accused Dharmender managed to open the gate from inside after entering his hand in a whole which was used to look outside the factory. As soon as they started lifting the iron goods, Chowkidar came there. They asked him to run away from there otherwise they would kill him. But as soon as Chowkidar tried to catch them, accused Bhopal @ Bhola caught hold him and then he picked up an iron rod, which was fitted with bolt and tried to hit upon the head of Chowkidar but rod hit upon his left eye and due to impact of rod blow injury Chowkidar fell down and dead. Thereafter, they run away from there and reached at Karawal Nagar from where they hired a TSR after telling him that they have to steal some iron goods from factory and would go to Azadpur for selling the same. TSR driver agreed and demanded Rs.160/- as fair. On reaching at the factory, TSR driver on seeing the dead body of chowkidar asked them that he would now charge Rs.1000/-. And after loading iron goods in TSR they proceeded and when they were on the way at Karawal Nagar Chowk, police apprehended them.'
6. In the disclosure statement of accused Sandeep vide Ex.PW19/J-1 it has also come on record that :-
'On 23.03.2005 at around 3.30 a.m. he was present Karawal Nagar Chowk along with his TSR where two persons namely Dharmender and Bhola @ Bhopal (whose name lateron came to know ) came and hired the TSR telling that they had to load some iron goods from factory and would go to Azadpur. He agreed and demanded Rs.160/- as fair. On reaching at the factory, he noticed the dead body of chowkidar and then he denied them not to take them in Rs.160/- and then in Rs.1000/- the matter was finalized. And after loading iron goods in TSR they proceeded and when they were on the way at Karawal Nagar Chowk, police apprehended them.'
7. A challan was filed against accused persons u/s 458/ 302/ 392/ 411/ 120B/ 34 IPC in the court of ld. MM and after completion of proceedings at the magisterial level the same was committed to the FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 13/ court of Sessions which was received in Sessions Court vide court order dated 10.08.2005.
8. Having heard arguments on charge, the then Ld. ASJ framed a charge u/s 458/ 302/ 392 / 34 IPC against accused persons namely
1.Dharmender and 2. Bhopal @ Bhola. Another separate charge for the offence u/s 120 B and 411 IPC was also framed against accused persons namely 1. Sandeep, 2. Bhopal @ Bhola and
3.Dharmender. Accused persons did not not plead guilty and claimed trial.
9. Investigating Officer prepared a list of 24 witnesses and all these witnesses have been examined such as PW1 Vir Singh - formal witness who identified the dead body of deceased Om Prakash being son vide memo Ex.PW1/A and receipt vide Ex.PW1/B, PW2 Jageshwar - another formal witness who identified the dead body of deceased Om Prakash being brother vide memo Ex.PW2/A, PW3 Jawahar Singh - is the person who is running All India Security Services, (he affirmed the fact that accused Dharmender [security guard] was missing from his duty) PW4 Puran Chand Sharma - FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 14/ Supervisor - All India Security Services, PW5 Satyadev - Guard in All India Security Services - this witness has been got declared hostile by ld. APP who deposed that police did not enquire anything from him and did not record his statement in this case, PW6 Ct. Ashok - the most material witness who apprehended accused persons, PW7 HC Yash Pal - formal witness being duty officer, PW8 Ct. Sanjeev Kumar - formal witness being photographer, PW9 Ct. Digambar Singh - formal witness who took the special report to hand over to CP, Joint CP, DCP concerned and area Magistrate on 24.03.2005, PW10 Ct. K. R. Saju - another most material witness who also apprehended accused persons, PW11 ASI Anand Prakash - formal witness being MHC(M) in police station Khajuri Khas, PW12 ASI Rajender - another formal witness being duty officer on 24.03.2005, who recorded DD no.12 A - i.e. information regarding delivering of dak by Ct. Digamber to concerned officials, PW13 Ct. Ombir Singh
- formal witness who accompanied the SHO C. S. Rathi on receiving DD no.30A, PW14 Ct.Brijesh - formal witness who took the sealed pulanda on 27.04.05 to deposit in FSL Rohini, PW15 Dr. S. Lal - Specialist - Fornsic Medicine, Sabzi Mandi Mortuary, PW16 SI Mukesh Kumar - Draftsman - another formal witness who proved the FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 15/ scaled site plan vide Ex.PW16/A, PW17 Kuldeep Singh - factory owner in whose factory murder was committed by accused persons, - hostile witness who deposed that he has not made any statement to the police, PW18 Jaswant Kumar - LDC Transport Authority Burari - another formal witness, he got exhibited the ownership documents of alleged TSR no. DL 1 RG - 9083, which was in the name of one Madan Lal, PW19 SI Rakesh Kumar - is the witness to whom DD no.30A was marked for investigation, PW20 Chander Pal Singh Rathi - ACP, PW21 Insp. Satender Mohan - another witness who joined SI Rakesh Kumar, PW22 Parshuram Singh - Sr. Scientific Officer Physics, FSL, Rohini, Delhi, PW23 Insp. M S Shekawat
-SHO and PW24 V. Shankarnarayan, Sr. Scientific Assistant (Bio) , FSL Rohini, Delhi.
10.Let us take first formal witnesses i.e. PW1 Vir Singh - formal witness who identified the dead body of deceased Om Prakash being son vide memo Ex.PW1/A and receipt vide Ex.PW1/B. PW2 Jageshwar - another formal witness who identified the dead body of deceased Om Prakash being brother vide memo Ex.PW2/A. PW7 HC Yash Pal - formal witness being duty officer on 24.03.05 from 12 FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 16/ mid night to 8 a.m., he got exhibited the photocopy of FIR vide Ex.PW7/A. PW8 Ct. Sanjeev Kumar - formal witness being photographer and he got exhibited the photographs vide Ex.PW8/1 to PW8/21. PW9 Ct. Digambar Singh - formal witness who took the special report to hand over to CP, Joint CP, DCP concerned and area Magistrate concerned on 24.03.2005. PW11 ASI Anand Prakash - formal witness being MHC(M) in police station Khajuri Khas - he has proved all the entries with regard to deposit of case property and sending the same to FSL. In this regard he has got exhibited the photocopy of register no.19 vide Ex.PW11/A. PW12 ASI Rajender - another formal witness being duty officer on 24.03.2005, who recorded DD no.12 A - i.e. information regarding delivering of dak by Ct. Digamber to concerned officials. PW14 Ct.Brijesh - another formal witness who took the sealed pulanda on 27.04.05 to deposit in FSL Rohini. PW16 SI Mukesh Kumar - Draftsman - another formal witness who proved the scaled site plan vide Ex.PW16/A. PW18 Jaswant Kumar - LDC Transport Authority Burari - another formal witness, he got exhibited the ownership documents of alleged TSR no. DL 1 RG - 9083, which was in the name of one Madan Lal. FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 17/ All these witnesses have been cross-examined by the defence counsel. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. No contrary evidence has come on record which can suggest that these witnesses are false one.
11.Now, I come to the witnesses who have turned hostile in this case and they are : PW5 Satyadev - Guard in All India Security Services
- this witness has been got declared hostile by ld. APP who deposed that police did not enquire anything from him and did not record his statement in this case. However, he is the witness who was on duty along with accused Dharmender on the night of 23/ 24.03.05 at Arun Manufacturing Company and who informed to Supervisor that accused Dharmender has left him and did not turn back since last one hour. PW17 Kuldeep Singh - factory owner in whose factory murder of deceased Om Prakash was found to have been committed. This witness has also been got declared hostile by ld. APP who deposed that he has not made any statement to the police. Now, I will discuss the testimony of material witnesses. FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 18/
12.PW3 Jawahar Singh came to the witness box and gave his statement. On careful perusal of his testimony it was revealed that he was running a registered Security Agency in the name and style of All India Security Services in the partnership of one Yashpal Singh at 550/A/10, M S Park, Delhi He deposed that one Satyadev - security guard informed to Puran Chand - Supervisor that accused Dharmender is missing from his duty on the night of 23/ 24.03.05 where Satyadev and accused Dharmender was on duty. This witness further deposed that on 24.03.2005 he received a telephone call from police that a murder had taken place at Preet Engineering, Karawal Nagar. He went there where supervisor Puran Chand was already present. This witness identified the dead body of deceased Om Prakash, who was security guard and attached with his Security Agency. After careful perusal of his testimony it has come on record that he identified one of the accused Dharmender who was in the custody of police at that time. This witness deposed that accused Dharmender was wearing Security Guard's Uniform. This witness deposed that deceased Om Prakash was working with him since 1995. He has also deposed that accused Dharmender had worked at Arun Manufacturing near SBIBank on 20.03.05 and 21.03.05 and FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 19/ on 22.03.05 he had worked as security guard at Preet Engineering as security guard since Om Prakash was on leave on that day. On careful perusal of his testimony it reveals that he is unable to identify other two accused persons but he identified them on the basis that they are appearing in the court in this case and he had seen them hardly for one or two minutes. This witness further got exhibited the photocopy of the employment register in respect of Pooran Chand- supervisor, Satyadev, Om Prakash- deceased and accused Dharmender vide Ex.PW3/A, PW3/B, PW3/C and PW3/D respectively. He has also got exhibited the photocopy of attendance sheet in respect of accused Dharmender and deceased Om Prakash vide Ex.PW3/E and PW3/F. He deposed that all these photocopies were seized by the police vide seizure memo Ex.PW3/G. This witness has also got exhibited the attested copy of registration of his firm vide Ex.PW3/H. This witness has been cross-examined at length. I have perused the same. On careful perusal of his cross- examination I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 20/
13.PW4 Puran Chand Sharma - supervisor of All India Security Services came to the witness box and gave his statement. I have perused his testimony very carefully. It has come on record that deceased Om Prakash was doing the job as guard in the said agency for last 10 or 12 years. He deposed that accused Dharmender was employed in All India Security Services as Guard on 19.03.05 and he assigned the duty of guard to accused Dharmender for 20th and 21st of March 2005 in Arun Manufacturing Company. This witness further affirmed the fact that on 22.03.05 deceased Om Prakash was on leave so he had assigned the duty of accused Dharmender in place of him at Preet Engineering Company. He further deposed that on 23.03.2005 he assigned the duty of Satyadev and accused Dharmender at Arun Manufacturing from 9 pm. to 9 a.m. and duty of deceased Om Prakash at Preet Engineering Company on 23.03.2005 from 9 p.m. to 9 a.m. This witness further deposed that he used to check the guards on duty. This witness deposed that at around 1.30 a.m. in night he checked Arun Manufacturing Company where Satyadev - Guard met him and accused Dharmender was not present there. On making inquiry he came to know that accused Dharmender has left him at around 11 p.m. So, he reported the FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 21/ same to Director regarding absence of accused Dharmender from his duty in Arun Manufacturing Company. This witness further deposed that he came to know the incident in the morning through his Director Jawahar Singh. He went to the site and identified the dead body of deceased. He deposed that after some time police brought accused Dharmender and he identified him. This witness has been got declared hostile by ld. APP with regard to the identification of other two accused persons. He corrected himself and identified other both accused persons.
14.On careful perusal of testimony of PW6 Ct. Ashok and PW 10 Ct. K R Saju it is revealed that on 24.3.2005 they were on patrolling duty in Karawal Nagar area and when they reached at Karawal Nagar Chowk, one TSR number DL-1RG-9083 was spotted while coming from the side of Johripur. On suspicion, the said TSR was stopped. There were three occupants in the said TSR. TSR driver was asked from where he was coming and going. The other occupant of the TSR who was sitting on the rear seat told that he was carrying the goods from the factory on asking of owner but he did not disclose where he was going. The name of said person, which he came to FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 22/ know as Dharmender. It has also come on record that one of the accused jumped over from the TSR and started running. Ct. Ashok chased him and apprehended. He was brought back. They asked from him why he had run. He told that they had stolen the goods from a factory situated at Telephone exchange road. Accused persons took them to the said factory. The three wheeler was containing iron goods.
They reached at the factory, the gate of the same was already in open condition. One dead body of a male person was lying near staircase. On the left side of the said dead body there was fresh blood and injury mark. At a distance of 8 steps from the dead body, one iron rod in the shape of bolt was lying having blood stained marks. Thereafter, Ct. K R Saju made a call to PCR by his mobile phone no.9810508604. From the Police Station SHO C.S. Rathi and SI Satender Mohan and Inspector Bhalender Singh, SI Rakesh Kumar, SI Om Prakash reached at the spot. Accused persons along with the TSR containing stolen articles were handed over to the SHO and apprised him regarding the facts. They conducted proceedings at the spot. Site plan was prepared and photographer was called. FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 23/ Statement of Ct.K R Saju was recorded vide Ex.PW10A which bears his signature at point A. They identified all the three accused persons, who were apprehended in the TSR. The case property consist of 16 plates in the round circle, two plates of big size in round circle, two bearing attached together, two bearing separately, one iron plate of big size and nine spring iron. The witness identified all the articles made of iron metal which accused persons were taking in a TSR at the time of apprehension. The same is Ext. as P1 collectively. One iron rod in the shape of bolt produced from malkhana in unsealed condition. Same has been shown to the witness who identified the same vide Ex.P2 which was seized from near the dead body. Ld. APP cross examined PW10 Ct. K R Saju as he was unable to tell certain material facts as stated by him in his statement to the police. PW10 Ct. K R Saju corrected himself by submitting that he had told IO in his statement vide Ex.PW10/A that the time when they reached Karawal Nagar Chowk was about 3:30 a.m. He further corrected himself that he had also told the IO that the name of the TSR driver was Sandeep. Further, it is corrected that he had told to the IO that one of the person was wearing security guard uniform and the name of said person later come to know as Dharmender. It is FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 24/ again corrected that he had told the IO that the name of third person came to know Bhopal @ Bhola who started running. He had told the IO that Dharmender and Bhopal during interrogation told that they had looted the goods from the factory and they were carrying the goods in the TSR. It is again corrected that the age of dead person was about 35 years. He further corrected himself that he had told the IO that accused persons told him regarding the dead body that they had entered the factory with the intention to commit looting after opening its latches and when the chowkidar raised alarm they struck the iron rod in the shape of bolt on his head and took the goods from the factory in the TSR. The witness has been shown the photographs already on the judicial file Ext. as Ex.PW8/1 to PW8/21 which were taken at the spot. Both these witnesses have been cross- examined at length. Having perused their cross-examination I found some contradictions but these do not go to the root of this case. However, these contradictions are attributable due to the long duration of time and memory of a human being.
15.PW13 Ct. Ombir came to the witness box and deposed that on 24.03.2005 he was posted as Ct. at Police Station Khajuri Khas. On FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 25/ that day, DD No.30A was handed over to SI Rakesh. He along with SI Rakesh, SI Satinder Mohan, SHO Inspector C.S. Rathi and SI Om Prakash went to Karawal Nagar Chowk, Telephonewali gali where Ct. K.R. Saju and Ct. Ashok Kumar were found present there. Ct. Saju got recorded his statement to I.O. C.S. Rathi. A rukka was prepared by the IO and same was handed over to him for getting the FIR registered at Police Station Khajuri Khas. He took rukka to the Police Station and got the FIR registered. After registration of FIR, he reached at the spot and handed over copy of FIR and rukka in original to the I.O. The dead body was taken by him to the mortuary of GTB Hospital in a Govt. Vehicle along with Ct. of Delhi Home Guard. He got preserved the dead body for 72 hours. He further deposed that on 27.03.2005, after postmortem the dead body was handed over to the relatives of deceased. He received three sealed parcels after postmortem from the mortuary with the seal of SR, which he handed over same to the IO who seized the same vide seizure memo Ex.PW13/A which bears his signature at point A. This witness has been cross-examined by Sh. P.S. Bisht, Adv. for accused Sandeep. IN the cross-examination it has come on record that they left Police Station for spot at around 2:20 a.m. in a government vehicle. Again FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 26/ said they left Police Station at 4:20 a.m. The log book entry was made before leaving the police station but he could not tell the same. He took rukka to Police Station at 6:20 a.m. and went to Police Station on foot. He reached at the Police Station around 6:40 a.m. He remained at the Police Station for about 75 minutes. He reached at the spot around 8:20 a.m. alone. Ld. counsel Sh. Braham Pal, Adv. for accused Bhopal adopted the same cross examination as conducted by Sh. P.S. Bisht, Counsel for accused Sandeep. Having perused the testimony of this witness I found some contradictions which are attributable due to the long duration of time and memory of a human being.
16.PW15 Dr. S. Lal, Specialist, Forensic Medicine, Subzi Mandi Mortuary, Delhi is the most material witness in this case. For the sake of brevity and convenience let his statement be re-produced verbatim which is as under:-
" On dated 27.3.2005 I was posted as a Senior Demonstrator in GTB Hospital Mortuary. On that day, I conducted a postmortem on a dead body of Om Prakash, 45 years male s/o Late Sh. Rameshwar Chaurasia. The dead body was brought by Inspector Bhalinder Singh, Police Station Khajuri Khas with alleged history of being found dead in factory Khasra No.293, Telephone Exchangewali gali, Village Karawal Nagar, Delhi FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 27/ on dated 24.3.2005 at 9:14 a.m. After that his body was brought to GTB Hospital mortuary for postmortem examination.
General Observation :
A dead body of adult, middle age man, average built wrapped in body bag bearing yellow green colour sweator, grey shirt, green baniyan, grey pant, Nalatype Kachha and loose muflor present over body. Both eyes closed, cornea hazy, and state of all other natural orifices were NAD. Rigormortis present in passing stage, postmortem staining present on back and fixed. Greenish disclouration present over chest and lower abdomen.
Ante-motrem Injury :
1. Lacerated wound 6 x 4 cm x cranial cavity deep present over left side forehead placed above the outer angle Just left and of left eye and 4 cm left to midline and 5 cm medial to ear lobule associated with depressed fracture of frontal bone, margin of bones are contused and abraded.
2. Lacerated wound 2 x 0.5 cm x bone deep present on left cheek 1 cm below the injury no.1 and 5 cm in front of ear lobule.
3. Reddish abrasion 10 x 5 cm present on left side upper back abdomen placed 15 cm medial to midline.
Internal Examination :-
Scalp : Sub scalpal extravassation of blood seen in left frontal area. Underline depressed fracture of size 5 x 4 cm and linear fracture radiate to frontal bone, multiple fracture seen in left side anterior cranial fossae over orbital plate.
Brain : Meninges torn underline depressed fracture with laceration and contusion seen on left side frontal lobe and sub arrachnoid hemorrhage seen at places.FIR no.123/05
State Vs Dharmender etc PS Khajuri Khas 28/ Rest of the viscera were congested and the stomach contain semi digested food material and wall - NAD.
All clothes along with deceased blood soaked on gauze piece were sealed under seal of SL and hand over to IO alongwith sample seal.
OPINION :
The cause of death was shocked due to antemortem damage cranio-cerebral produced by heavy blunt force impact and sufficient to cause death in ordinary course of nature.
Time since death was about three and half days. My detailed report is Ex.PW15/A which bears my signature at point A. I received a request from SI Rakesh Kumar of Police Station Khajuri Khas on 12.04.2005 regarding subsequent opinion in the same matter along with sealed parcel containing said weapon of offence. The sealed parcel containing seven seals of CSR and written FIR No.123/05 Dated 24.3.2005 u/s 458/302/392/411/120B/34 IPC over the parcel.
After opening the parcel, a heavy iron rod with nut bolt on the other hand, rust stain was present all over the rod and query? blood stained present on bolt end side. Diagrammatic examination is given on the back of application which is at point X on Ex.PW15/B/ At this stage one envelope in the torn condition produced from malkhana containing one bolt shape iron rod. Shown to the witness and after seeing the same, he deposed that it was the same weapon which was examined by me during my subsequent opinion. The injury No.1 and 2 are possible with the said weapon or similar like weapon. The weapon was resealed with the seal of SL and handed over to IO with sample seal.
FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 29/ This witness has been cross-examined by defence counsel. In the cross-examination he denied the suggestion that he did not give subsequent opinion on his own. He further denied the suggestion that he gave his subsequent opinion at the instance of the police. He again denied the suggestion that he did not see the rod while giving subsequent opinion. Having perused his testimony carefully, it reveals that cause of death of deceased Om Prakash was damage produced by heavy blunt force impact and sufficient to cause death in ordinary course of nature. This witness has also established on record that injury No.1 and 2 are possible with the bolt shape iron rod or similar like weapon. I do not find any contrary evidence in the cross-examination of this witness.
17.PW19 SI Rakesh Kumar, PW20 Chander Pal Singh, PW21 Insp. Satinder Mohan are the material witnesses who reached at the spot on receiving DD no.30 A for investigation. All these witnesses have deposed more or less on similar lines. They deposed that on 24.03.2005 after receiving DD No.30A mark Z reached at factory situated at property No.K-293, post office gali, village Karawal Nagar. There they found that accused persons were in the custody of Ct. FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 30/ K.R. Saju and Ct. Ashok. One TSR bearing No. DL-1RG-9083 was also found standing at the spot and there were some iron goods of heavy quantity in the said TSR. There was a small gate on the main door of factory and it was in the open condition. The police team entered the factory through said gate. One dead body was lying near staircase. There was mark of injury on the left side of the dead body. There was also pool of blood near the said place. One wrist watch make he did not recollect and one pair of slipper were also lying at the spot. At the distance of about 8 steps from the dead body one iron rod with the bolt fitted in the same was lying there. Some pieces of flesh were also lying there. Ct. Saju was interrogated by Inspector C.S. Rathi and he recorded his statement. On the basis of statement of Ct. Saju a rukka was prepared by the I.O. and Ct. Omveer took the same to Police Station Khajuri Khas for registration of FIR. Regarding owner of factory enquiry was made. The name of the factory owner was revealed as Kuldeep Singh Chauhan. A call was made to him. He came at the factory and told that his iron goods were lying inside the factory and his factory is not in working condition. He identified the heavy iron goods lying in the TSR belonging to his factory. The Director of Indian Security Services FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 31/ was also called at the spot. He also reached at the spot. He identified the dead body of security guard from his security agency. The Supervisor of the said factory was also called at the spot who also identified the deceased as security guard.
18.The supervisor as well as Director of the aforesaid security agency also told the police party that accused Dharmender is also employee of their security agency and his duty on the day of incident was with Arun Industries at Karawal Nagar. Ct. Omveer came at the spot with the copy of FIR and rukka in original and handed over same to the I.O. Crime Team as well as photographer were also called at the spot who reached there. The goods loaded in the said TSR were taken into possession vide seizure memo already Ex.PW17/A. The blood sample was also lifted from the spot and seized vide seizure memo Ex.PW19/A. The earth control and blood stained earth control and iron rod with the bolt and some soil, earth control were seized from the spot through different seizure memos Ex.PW19/B, Ex.PW19/C, Ex.PW19/D, Ex.PW19/E, Ex.PW19/F. All the memos bears his signature at point A. Accused Dharmender was wearing his security guard uniform and on his uniform there were blood marks. The shirt of accused Bhopal of red colour with strips was also having blood stained FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 32/ marks. The clothes of both the accused were taken into possession by the IO after converting the same into parcels. The seizure memo of the said parcels are Ex.PW19/G and PW19/H. Accused persons were interrogated by the IO and they were arrested. The arrest memos of accused persons Bhopal, Dharmender and Sandeep Ex.PW19/H1, PW19/H2 and PW19/H3 were prepared at the spot. The personal search memos of the accused persons were also prepared vide Ex.PW19/H-4, PW19/H-5 and PW19/H-6. The disclosure statement of accused were also recorded separately vide Ex.PW19/J, PW19/J1 and PW19/J2. The documents of TSR were also seized at the spot vide seizure memo Ex.PW19/K. The TSR was also seized vide seizure memo. Ex.PW19/K1. One piece of sample of iron was also seized from the factory vide seizure memo. Ex.PW19/K2. The wrist watch and slippers were also seized vide seizure memo Ex.PW19/K3. Accused persons were brought to Police Station along with case property and case property was deposited in malkhana. The statement of witnesses were recorded by the I.O. at the spot. TSR no DL 1 RG - 9083 was not produced by the superdar during the course of trial which is also a fact of importance for conclusion. Ld. counsel for accused persons cross-examined them at length. I have FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 33/ perused the same and found contradictions which are bound to be occurred due to lapse of long time and memory of a human being.
19.PW-22: Sh. Parshuram Singh, Sr. Scientific Officer Physics, FSL Rohini, Delhi came to the witness box and deposed that on 04.08.2005, two sealed envelops were received in his office from Biology Division, FSL Rohini, Delhi. The seals were found intact as per the forwarding note. He opened the parcels. Parcel No.7 was found containing cemented material described as earth control. Parcel No.8 was found containing cemented material described as blood earth control. He examined both the exhibits physically and instrumentally. They were found to be possessing different physical characteristics. The remnants of the exhibits were sent to biology division with the seal of PS-FSL Delhi. This witness got exhibited his report in this regard dated 22.08.2005 vide Ex.PW-22/A, which bears his signature at point A. This witness has been cross-examined. I have perused the same. In the cross-examination it has come on record that he did not mention the seal impression which were affixed on the seal pullandas received in his division. He did not personally FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 34/ received the seal pullandas in his division . He personally examined the exhibits in the laboratory.
20.PW23 Insp. M S Shekhawat, SHO Police Station Patel Nagar, Delhi came to the witness box and deposed that on 12.04.05 he was working as SHO of Police Station Khajuri Khas. The investigation of the present case was taken over by him from Insp. C S Rathi. He asked SI Rakesh Kumar to take subsequent opinion on the weapon of offence recovered in the present case from the doctor who conducted postmortem. SI Rakesh took the weapon as well as request to the doctor and got obtained subsequent opinion on the weapon of offence. On 18.04.05 Jawahar Singh, In-Charge of Security Agency came in the Police Station and handed over him documents regarding employment of deceased as well as accused persons. He seized the said documents vide seizure memo already exhibit PW3/G. He has seen the photocopy of these documents already on judicial file vide Ex.PW3/H i.e. registration of the firm, All India Security Services, Ex.PW3/C - Employment Form of one Om Prakash, Ex.PW3/D - employment form of accused Dharmender and Ex.PW3/A - employment from of Satya Dev, Ex.PW3/B - employment form of FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 35/ Puran Chand Sharma and Ex.Pw3/E and PW3/F - Form G-15, Register Employment and Remuneration of All India Security Services. This witness further deposed that he recorded statement of Jawahar Singh u/s 161 Cr. PC. This witness further deposed that on 25.04.2005 he asked SI Rakesh to accompany Sub- Insp. Mukesh Kumar, Draftsman to the place of incident for preparation of scaled site plan and recorded his statement. On 27.04.2005 he sent Ct. Brijesh along with exhibits for deposit of same to FSL Rohini, Delhi. Thereafter, he prepared challan and file was submitted in the court. This witness has been cross-examined at length by Sh. K N Sharma, counsel from legal aid for accused Dharmender. In the cross-examination it has come on record that before 18.04.05 Jawahar Singh did not meet him. Jawahar Singh came to Police Station Khajuri Khas in noon time but he could not tell exact time. He stayed in Police Station with him for about one hour. This witness admitted that no specific date has been mentioned on the attestation of aforesaid documents which were handed over to him by Jawahar Singh. He has also denied the suggestion that accused Sandeep has been falsely implicated in this case as he refused to be a witness in the present case.
FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 36/
21.PW24 V. Shankarnaryanan, Sr. Scientific Assistant (Bio), FSL, Rohini, Delhi, is the most material witness in this case. He came to the witness box and deposed that on 27.04.2005 ten sealed parcels were received in the office of FSL, Rohini, Delhi in connection with case FIR No.123/05, u/s 458/302/392/411/120-B/34 IPC, Police Station Khajuri Khas. The seal on the parcels were intact as per forwarding authority letter. The above said parcels were opened by him and examined the exhibits biologically. On biological examination blood was detected on Ex. 1a, 1b, 1c, 1d, 1e, 1f, 2,4, 5, 6, 8, 9, and 10. Whereas blood could not be detected on Ex.7 and
11. He proved his detailed biological report in this respect vide Ex. PW24/A which bears his signature at point A, B and C. He further deposed that the above said exhibits were also examined by him serologically. On serological examination, Ex.1b, 1c, 1e, 4, 5 and 6 showed reaction for human blood group 'O'. Whereas the rest the exhibits 1a, 1d, 1f, 2, 8 and 9 showed reaction for human origin of blood only but Ex. 7, 10 and 11 showed no reaction for human origin of blood. This witness got exhibited the detailed serological report in this respect vide Ex.PW24/B which bears his signature at point A and FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 37/ B. The remnants of the above said exhibits after examination were sealed with the seal of VSN, FSL, Delhi. This witness has been cross-examined by defence counsel for accused persons. I have perused the same. No contrary evidence has come on record which can suggest that this witness is false one. However, on perusal of his report Ex.PW24/A it is revealed that details of exhibits such as Ex. 1a (one sweater having brown stains) , 1b (one shirt having brown stains) , 1c (one banyan having brown stains), 1d (one muffler having darker stains) , 1e (one pant having darker stains), 1f (one underwear having brown stains), 2 (brown gauze cloth piece as 'Blood soaked in gauze piece), 4(one shirt having darker stains), 5 (One uniform shirt having brown stains), 6 (Gauze cloth piece having brown stains, kept in a plastic container), 7(earth control) 8(cemented material having brown stains, 9(one iron rod with bolt and nut having rusty brownish stains) 10 (Dark brownish material described as 'Small piece of meat') and 11 (Earthy material described as Earth control) and blood was detected upon Ex. 1a, 1b, 1c, 1d, 1e, 1f, 2,4, 5, 6, 8, 9, and 10.
FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 38/
22.After completion of prosecution evidence, statements of accused persons under section 313 Cr. P. C. were recorded in which they have denied all the allegations as leveled by the prosecution by stating that they are innocent and they have been falsely implicated in this case. Accused persons did not lead any defence evidence.
23.Arguments were heard at length. During the course of arguments Ld. counsel for accused Bhola submitted that in this case there is no direct evidence therefore, the case of the prosecution is based on the circumstantial evidence, which is not applicable to the facts and circumstances of the case and hence conviction cannot be based upon the same. In view of his contentions ld. counsel for accused Bhola submitted that to prove the circumstantial evidence four things are essential :-
1. The circumstances from which the conclusion is drawn be fully established;
2. that all the facts should be consistent with the hypothesis;
3. that the circumstances should be of a conclusive nature and tendency; and
4. that the circumstances should, to a moral certainty, actually exclude every hypothesis but the one purpose to be proved.FIR no.123/05
State Vs Dharmender etc PS Khajuri Khas 39/ Again ld. counsel for accused Bhola argued and submitted that in Alamgir Vs State (NCT of Delhi), AIR 2002 SC 282 it was held by the Hon'ble Apex Court that in case of circumstantial evidence the court should be watchful and should ensure that conjectures and suspicions do not take place of legal proof. He further argued that if any of the circumstances brought out makes it probable that somebody else might have committed the crime, and if there is an element of doubt the benefit of doubt must go to the accused. Relying upon the citations ld. counsel for accused Bhola drew the attention of the court on the following submissions:-
1. Name of PW-10 not mentioned in the DD no 30-A. There is no evidence at all, which can show that Ct. Saju PW-10 was on duty at that night as presented by the Prosecution.
2. No evidence that the informant of the information mentioned in DD no. 30-A was given by the witness PW-10 Saju.
3. No evidence that the mobile no. 9810508604 belongs to Ct. Saju. Prosecution fail to place any record which can prove that this mobile no. was used by PW-10.
4. The spot where the TSR was allegedly stopped falls in the area of division 9 of the police station as stated by PW-6 Ct. Ashok Kumar. It is important to mention here that PW-10 Ct. Saju on his cross examination stated that on the day of incident I was not posted at division no. 9, but I was posted in division no. 3.
5. Information not given to the police station directly when PW-10 was allegedly carrying FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 40/ wireless and also knew all the numbers of the police station and SHO, being beat officer of the area.
6. Information not given to the police station at the earliest point of time. PW-10 was a constable and not authorized to conduct investigation himself but he did not inform the police station about the apprehension of the TSR along with stolen iron at Karawal Nagar Chowk.
7. No departure entry of the witnesses PW-6 and PW-10 is placed on record to establish that they were actually present in the area at the relevant time in connection with patrolling of the area. This creates doubt regarding actual presence of the aforesaid police officials in the area.
Again he argued at length and submitted that accused Bhopal was falsely implicated by the police as the name of accused Bhola was not mentioned in the D.D No. 30A. It is pertinent to mention here that as per the DD no 30-A the police officials apprehended the TSR and TSR driver and there is no mention that some other persons were also sitting in the TSR. The receipt of the information and the departure of the police officials to the spot find mentioned in the DD no 30-A which only suggest that the same has been recorded later on. Original of the DD no 30-A not produced in the court. DD no 30-A has not been exhibited and same has been placed on record as " Mark -Z" . It is the case of the prosecution that PW-7 Ct. Yashpal is the author of the same. But PW-7 Ct. Yashpal did not uttered single FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 41/ word about the receipt of any information vide DD no. 30-A. He only mentions about the receipt of the rukka and registration of the FIR. Hence a doubt is created about the authenticity of the recording of the DD no. 30A. Ld. counsel further argued and submitted that no one can imagine that after committing the murder the person would go to hire a mode of transportation and come back with the driver who can easily make alarm. Ld. counsel again pointed out the contradictions in the statement of between PW16 SI Mukesh Kumar, PW19 SI Rakesh Kumar and PW10 K R Saju and these are re-produced in accordance with the submission that :-
PW-16 SI Mukesh Kumar on his statement before court has stated that " on 29.03.2005 I was posted as SI Draftman, North East District, Delhi on that day, I was summoned by IO Insp. M.S. Sheikhawat to reach at police station Khajuri Khas. Accordingly, I reached there. From there I along with SI Rakesh Kumar and Ct. K.R Saju reached at the spot, and took measurements and prepared rough notes on pointing out of Ct. K.R.Saju and S.I. Rakesh Kumar."
PW-19 SI Rakesh Kumar on his statement has stated that " on 25.04.2005 I again joined investigation. SI Mukesh Jain, Draftman was called by the IO In the police station. I along with Ct. Saju accompanied him to the place of occurrence, and he took rough notes and later on he prepared, scaled site plan and submitted with the IO."
PW-10 Ct. K.R Saju did not say any word about the same which creates serious doubt. M.S Shekhawat on his statement stated that " on 25.04.2005 I asked S.I Rakesh to accompany Sub-insp. Mukesh Kumar, Draftman to place of incident for preparation of scaled site plan. However, on scaled site plan date of visiting the place of occurrence is 29.03.2005."FIR no.123/05
State Vs Dharmender etc PS Khajuri Khas 42/ Again he pointed out the contradictions in the statement of PW19, PW20 and PW21. The same are as follows:-
PW19 SI Rakesh Kumar, Ct. Saju met me out side the factory Gate. Al the three accused were also found out side the gate.
PW20 ACP C. S. Rathi on his cross -examination stated that Ct. Saju produced the accused before me inside the factory.
Accordingly only Ct. Saju produced the accused persons. But PW21 Insp. Satinder Mohan on his cross- examination stated that accused persons met me outside the factory gate in the custody of Ct. Saju and Ct. Ashok Kumar.
PW19 SI Rakesh Kumar on cross-examination stated that there was visible street light outside the factory. Again he stated that there was a bulb in the factory and same was on. Vol. near the dead body there was some light. The dead body was visible from distance of only 5 to 7 feet. The dead body was lying at a distance of 25 to 30 steps from the main gate.
PW20 C.S. Rathi on his cross-examination stated that there was darkness in the factory. The visibility was around 3 to 4 feet inside the factory by the light coming outside the factory. Again said there was a bulb inside the factory. The distance between the place of apprehension of accused and dead body was around 10 to 12 feet. PW21 Insp. Satinder Mohan on his cross- examination stated that there was some darkness. The visibility was four to five feets. there was light in the factory. There was one bulb installed inside the factory. the light of bulb was not touching towards the dead body as it was towards the side of staircase.
Again he argued at length and submitted that nothing has come on record which can show that after arrest of accused Bhopal to whom and where telegram was sent. In column no.8 of the arrest memo Ex.PW19/H-1, only mentioned is sent through telegram. Even on FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 43/ telegram receipt to whom and where it was sent is not mentioned.
This creates doubt on the prosecution that information was given to his family. Section 50 A(1) - Every police officer or other person making any arrest under this court shall forthwith give the information regarding such arrest and place where the arrested person being held to any of his friend, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. Again ld. counsel in support of his contentions relied upon the citation i.e. Rama Chandra SAO and Anr. Vs State of Bihar - 2001 SC Cases (Cri.) [1492 ] and submitted that it was held in Shekhar & Anr. Vs NCT of Delhi and Sunil @ Pandit Vs NCT of Delhi 2008 (2) JCC 871 that:-
"conviction based on - Sustainability of - chance catch of one accused persons by constable concerned not being supported by D. D. entries - List of robbed items not furnished with lodging of FIR nor at any time even thereafter - Seal of seizing police officer with which recovered articles were alleged to have been sealed continued to be retained by such officer himself all the time - material contradictions in statements of prosecution witnesses - unexplained delay in sending chance finger prints bureau for comparison. Conviction based on such unreliable circumstantial evidence not sustainable and consequently set aside."
In the present case also there is chance catch of the accused by Ct.
PW10 K R Saju and PW6 Ct. Ashok Kumar here also DD entry was FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 44/ made regarding their patrolling. In FIR here also list of stolen article not furnished. In the present case also Seal of seizing police officer with which recovered articles were alleged to have been sealed continued to be retained by such officer himself all the time which brings to show the material contradictions in the statement of prosecution witnesses. it is important to mention here that in the present case no chance finger print was sent by the prosecution for matching the same. Hence, conviction based on such unreliable circumstantial evidence is not sustainable.
24.Ld. counsel Sh. K N Sharma for accused Dharmender from legal aid argued at lengh and submitted on the lines of counsel for accused Bhopal and submitted that no person can commit a crime of murder for stealing a small iron material for which no value has been got worked out by the investigative agency. He further argued that it is also impossible that after committing a crime of murder a person will go to bring a TSR for lifting the articles in question in an ordinary course of action of such petty amount. On these grounds he prayed that there is no evidence which form a unbreakable chain for the conviction of accused persons.
FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 45/
25.Ld. counsel Sh. P S Bisht for accused Sandeep deposed that only the charge u/s 411 and 120B IPC has been framed against him and at the most he can be convicted for the offence u/s 187 IPC, if the case is proved beyond reasonable doubt.
26.The aforesaid contradictions pointed out by ld. counsel for the accused persons are attributable to the complexities of administrative duties performed by the officials in the field. Therefore, mentioning each and every minute detail while on field duty is unimaginable therefore, all the detailed can not be recorded as such like in DD entry, rukka, apprehension of accused persons, arrest details and in the depositions of PW10, PW16, PW19, PW20 and PW21. Hence, the aforesaid contradictions pointed out by the ld. counsel are not of substantive nature which may indicate towards the demolition of the case completely.
27.Contrary to the submissions of ld. counsel for accused persons, ld. APP submitted that contentions of ld. counsel for accused persons are not sustainable since there is crystal clear evidence on FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 46/ record against accused persons in respect of committing the heinous crime. Ld. APP further argued and submitted that accused persons have failed to bring on record any defence evidence regarding their arrest with the alleged robbed iron goods which they had lifted from the factory where accused Dharemender had worked for one day prior to the incident and it was in his knowledge that there was some iron goods lying in the factory and said factory i.e. Preet Engineering Company. Ld. APP further argued that motive in this case has also been brought on record since accused Dharmender was in need of money to marry so he committed this offence vide his disclosure statement PW19/J-2. Accused Bhola agreed to commit the said offence and they decided if Chowkidar would interfere, they would kill him. Therefore, when chowkidar, deceased Om Prakash tried to stop them not to do so, they killed him with the help of one iron rod which has also been proved on record vide Ex.P2 and PW15 Dr. S. Lal has also given his opinion that injury No.1 and 2 are possible with the iron rod, to which he has examined vide his detailed report Ex.PW15/A. Ld. APP further argued and submitted that role of accused Sandeep is also crystal and clear since he assisted the principal accused persons namely Bhola and Dharmender in FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 47/ removing the robbed articles on the night of 24.03.2005, being driver of TSR bearing no. DL1 RG - 9083 and he tried to conceal the fact of death of deceased Om Prakash. Ld. APP further argued and submitted that however there is no direct evidence but circumstantial evidence which are available on record, are sufficient to hold the accused persons guilty for the offences u/s 302/ 458/ 392/ 120B/ 34 IPC & 411 IPC. On these grounds ld. APP prayed for conviction of accused persons.
28.Careful perusal of the statement of PW Ct. Ashok and Ct. K.R. Saju reveals that investigating machinery came into motion for the alleged offence on their statements. In the deposition of both these witnesses it has categorically come on record that on the intervening night of 24.03.05 on suspicion they stopped a TSR bearing no. DL 1 RG - 9083 which was loaded with heavy iron and three persons were inside the said TSR including driver and when Ct. K R Saju interrogated them, one of the fellow namely accused Dharmender, who was sitting at the backside seat of TSR and wearing security guard uniform, told that these are factory goods and he is shifting it on the direction of the owner. In the mean time the third fellow, who FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 48/ was sitting backside of TSR namely accused Bhopal @ Bhola jumped out and tried to flee away but Ct. Ashok caught him. Their names and addresses were revealed in the interrogation. The other accused who was driving the alleged TSR, his name was also revealed as Sandeep. They were interrogated and in the interrogation they told that they robbed the goods from factory situated in Dakhanewali Gali and when Ct. K R Saju and Ct. Ashok along with these accused persons reached at factory at the instance of accused persons they found that the small gate fitted in big gate was lying open and when they reached inside the factory they found that one male dead body aged about 35 years was lying on the first stair of office building in the pool of blood and found injury mark over head near left eye. One rod fitted with bolt containing blood was also lying there. On further interrogation from accused Dharmender and Bhopal @ Bhola it was revealed that at about 2 a.m. they enter the factory after opening the small gate of the factory to rob, the guard, who was inside the factory tried to stop them but they hold him and killed him with rod fitted with bolt and after killing him they went to Karawal Nagar Chowk and hired a TSR and then loaded the robbed articles in TSR bearing no. DL1 RG - 9083, with the help of driver FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 49/ and later on they caught hold by the police. After that, Ct. K R Saju called at 100 number. Other material witnesses are PW19 I.O./ SI Rakesh Kumar and PW15 Dr. S. Lal. In the deposition of PW15 Dr. S. Lal it has come on record that cause of death was shocked due to antemortem cranio-cerebral damage produced by heavy blunt force impact and sufficient to cause death in ordinary course of nature. Time since death was about three and half days vide detailed report Ex.PW15/A. The I.O. who happens to be the most material witness has deposed all the facts connecting to all the three accused persons related to this case. The most material witness is the owner of the factory i.e. PW17 Kuldeep Singh but he has been got declared hostile on the ground that he has not made any statement to the police. PW5 Satyadev has also been got declared hostile and he was the most material witness in this case being having joined the duties with accused Dharmender on the night of incident i.e. 23.03.2005 at Arun Manufacturing from 9 p.m. to 9 a.m.
29.Careful perusal of these material witnesses it is revealed that in the present case no direct evidence has come on record against any of the accused persons. However, some pieces of evidence in the form FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 50/ of addition and deletion have come on record. In view of this state of affairs the following findings have been established against the accused persons relating to the occurrence in the questions:-
a) That accused Dharmender was working as Security Guard with Satyadev vide Ex.PW3/D (photocopy of employment register);
b) That accused Dharmender was put on duty at the place of occurrence on account of leave by deceased on 22.03.2005 as per deposition of PW4 Puran Chand, supervisor of All India Security Services;
c) That on the date of incident accused Dharmender was deputed at Arun Manufacturing on 23.03.05 from 9p.m. to 9 a.m. along with PW5 Satyadev vide deposition of PW4 Puran Chand, supervisor and PW5 Satyadev;
d) That accused Dharmender left the original place of duty on the date of occurrence and remained absent since 11 p.m. onwards vide deposition of PW4 and PW5; and
e) That accused Dharmender and Bhola had a meeting prior to the incident on account of their relationship being native of same village vide their disclosure statement Ex.PW19/J-2 and Ex.PW19/J. These findings are of substantive in nature with regard to alleged incident.
30.So long as the other pieces of evidence are concerned, they belong to corroborative type of evidence and in this regard court reached to the following findings:-
a) That deceased Om Prakash was found having Lacerated wound 6 x 4 cm x cranial cavity deep present over left side forehead placed Just left and above the FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 51/ outer angle of left eye and 4 cm left to middline and 5 cm medial to ear lobule associated with depressed fracture of frontal bone, margin of bones are contused and abraded vide Ex. PW15/A.
b) That recovery of iron rod from the place of incident is the pointer towards the fact of causing injury with the rod vide recovery memo Ex.PW19/D and the cause of death of deceased Om Prakash was damage produced by heavy blunt force impact and sufficient to cause death in ordinary course of nature vide deposition of PW15 and his report Ex.PW15/A.
c) That clothes wearing by accused Bhola and Dharmender were found having bloodstains of 'O' group i.e. the blood of deceased vide detailed report Ex.PW24/A and PW24/B.
d) That accused persons were found on the night of incident i.e. 24.03.05 at around 3:30 A.M. at Karawal Nagar Chowk in a TSR bearing no. DL 1 RG - 9083 with the stolen/ robbed articles.
31.In light of the aforesaid facts and circumstances of the case the decision of the case rests upon the principles of circumstantial evidence as no direct evidence with regard to indulgence of the accused persons has come on record due to non presence of any eye-witness with regard to the alleged incident. The following principles decided by Hon'ble High Courts on the circumstantial evidence have been evolved in 'Padala Veera Reddy Vs State of A. P. and Ors.' it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :-
FIR no.123/05
State Vs Dharmender etc PS Khajuri Khas 52/
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
Time and again Hon'ble Apex Court reiterated the principles and explaining the magnitude of conviction on the basis of circumstantial evidence through catena of judgments reduced into the following three principles i.e. in case titled as 'Chandmal V State of Rajasthan- AIR 1976 SC 917':
i) The circumstances from which evidence is drawn must be cogently and firmly established;
ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
iii) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else.FIR no.123/05
State Vs Dharmender etc PS Khajuri Khas 53/ The sum and substance of illustrations of the above principles is that as and when any conviction is recorded on the basis of the circumstantial evidence the court must take extra cautions to evaluate each and every aspect of the act of the accused and a chain of facts as well as artifacts which can give only one conclusion i.e. of inevitable finding and no scope of doubt remains in the chain of facts and artifacts.
32.Before reaching at any conclusion let the relevant sections i.e. 299 IPC, 300 IPC and 302 IPC be re-produced verbatim which are as under:-
Section - 299 IPC Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death,or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1. - A. person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.FIR no.123/05
State Vs Dharmender etc PS Khajuri Khas 54/ Explanation 3. - The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
Section - 300 IPC Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.- If it is done with the intention of causing bodily injury to any persons and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Section - 302 IPC " 302 Punishment for murder - Whoever commits murder shall be punished with death, or (Imprisonment for life), and shall also be liable to fine."
Section 392 IPC " Punishment for robbery - Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to then years, and shall also be liable to find; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
Section 411 IPC " Dishonestly receiving stolen property -
Whoever dishonestly receives or retains any FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 55/ stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Sec.34 IPC:-
" When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Careful perusal of the section 34 IPC reveals the following important ingredients :
i. That there must be a criminal act.
ii. The act must have been done by several persons in furtherance of their common intention.
" Stolen Property" - has been defined u/s 410 IPC which makes it clear that - Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as " stolen property" , [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without {India}]. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.FIR no.123/05
State Vs Dharmender etc PS Khajuri Khas 56/ It has been observed in 'Harish Chandra Vs State of UP - AIR 1976 SC 1430' that :
" Robbery - The offence of robbery is defined in section 390 IPC. The robbery is punishable under section 392 IPC. When force is used to enable another to carry away the booty, it amounts to robbery."
33.In the present case if we evaluate the evidence on record and analyses the same, the court comes to the conclusion that the presence of accused persons in the night of 24.03.2005 in TSR is indicative of the fact that the recovered articles i.e. 13 iron Tikkies of 11" , one Iron Tikki of 14" one iron Tikki of 8" , one iron Tikki of 24" , four bearings of 10" , nine springs and one iron Thiya of 10" were lifted from the factory Preet Engineer, Karawal Nagar i.e. place of incident. The dead body of deceased was found lying near staircase along with iron rod which was having bloodstains and in this regard the opinion of Dr. PW15 who has opined that injury No.1 and 2 are possible with the iron rod. This part of proceedings is concerned for committing the offence by accused persons under section 392 / 34 IPC in light of the observations made in judgment 'Harish Chandra Vs State of UP - AIR 1976 SC 1430' by Hon'ble Apex Court.
34.It has also come on record that accused Dharmender had earlier worked at place of occurrence on 22.03.05 and it was in his knowledge that there is some costly iron goods lying in the factory FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 57/ but no value of the recovered articles has been got done by the IO. Therefore, this aspect of the evidence is required a detailed analysis. If we analysis the recovery of these recovered iron goods we come to the conclusion that it poses a question to my mind that the injury to cause murder can be caused for such articles or theft. However, the presence of accused Dharemender at the place of incident can be inferred from the deposition of PW4 Puran Chand, Supervisor and PW5 Satyadev that accused Dharmender was put on duty at Arun Manufacturing on 23.03.05 along with Pw5 Satyadev but he was found missing from there since 11 p.m. onwards. This fact of evidence goes to indicate the inference with regard to the presence of accused Dharmender at the place of scene of occurrence and this aspect of the evidence is further corroborated with the fact that his clothes were found having bloodstains of 'O' group i.e. blood of deceased vide detailed report Ex.PW24/A. Similarly, the presence of accused Bhola can also be inferred from the fact that his clothes were also found bloodstains of 'O' group i.e. blood of deceased vide Ex.PW24/A. So long as the relation of accused Dharmender and Bhola are concerned, it is on record that accused Dharmender and Bhola are of the same native place so, it can be inferred that FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 58/ possibility of their being presence at the place of occurrence for theft cannot be ruled out. So long as the value of iron goods is concerned, there can not be a fixed formula of moral and ethical standard for the theft. It depends upon upon various internal and external factors.
35.So long as the third accused Sandeep is concerned, it has come on record that he was apprehended by PW8 and PW10 along with 2 accused persons and iron goods / articles were recovered from his TSR. Therefore, his role of conspiracy with regard to removing the articles also can be inferred and it also goes to point out that he helped in concealing the fact of death of deceased and theft. If we stretch these bullet points of evidence on record we reached to the conclusion that accused Dharmender and Bhola had a plan to remove the iron goods/ articles which was also in the knowledge of one of the accused Dharmender being the fact that he was deputed for one day i.e. on 22.03.2005 on duty at Preet Engineering Co. by his Supervisor namely PW4 Puran Chand. Accused Bhola helped accused Dharmender in committing the alleged offence. FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 59/
36.In light of the above findings I have given careful considerations to the submissions of ld. counsel for accused persons and ld. APP. The prosecution has proved beyond reasonable doubt the substantive pieces of evidence as discussed in preceding paras no.29 and 30. So long as the contradictions pointed out by ld. counsel for accused persons are concerned, undoubtedly they bring some contradictions in the statements of witnesses as argued at the preceding pages yet the evidence brought on record by the prosecution is of such a nature that in all probability the presence of accused persons at the place of occurrence is proved beyond reasonable doubt in view of the substantive findings by this court against the accused persons. However, it is a matter of deep thought and consideration that the act of causing death falls within the domain of u/s 302 IPC or u/s 304 IPC.
37.In the catena of judgments Hon'ble Apex Court and Hon'ble High Courts have observed that the circumstantial evidence are of weak type of evidence and unless unbreakable chain is proved the conviction is bad in law. Therefore, the essential aspects which are important to record the conviction of the accused persons based on FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 60/ the circumstantial evidence against the heinous crimes pertaining to life and death, kidnapping for ransom etc. must be proved beyond reasonable doubt and with certainty. In this regard the motive, homicide, recovery of dead body and unbreakable chain are essential components to prove the fact of inferential circumstances. In the present case it is on record that accused Dharmender and Bhola were arrested along with the looted iron articles in a TSR bearing no. DL 1 R G- 9083 which were seized vide seizure memo PW7/A on the night of 24.03.2005. This fact of recovery and their apprehension by PW6 Ct. Ashok and PW10 Ct. K R Saju clearly indicate that the motive was to gain something either committing the offence of theft or robbery or otherwise.
38.So long as the second element homicide is concerned, in this regard the death of deceased has been proved vide postmortem report Ex.PW15/A and identification of dead body by PW1 Vir Singh and PW2 Jageshwar vide identification memos Ex.PW1/A and PW2/A. Dead body of deceased Om Prakash was handed over to his son PW1 Vir Singh vide receipt Ex.PW1/B. FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 61/
39.Now, so long as the chain is concerned, the same has been discussed at length in my findings at para no. 29 to 38 in the judgment. These all facts give only one hypothesis that accused persons namely Bhola and Dharmender have committed culpable homicide of deceased in agreement to each other. No other hypothesis comes on record except the minor contradictions brought on record by ld. counsel Sh. K N Sharma, Sh. P S Bisht and Sh. Sanjay Kumar for accused persons namely Dharmender, Sandeep and Bhola respectively, which I have already dealt with at length at pages no. 32 to 39 of the judgment.
40.So long as the role of accused Sandeep is concerned, it is on record that he was also apprehended with both principal offenders namely accused Bhopal @ Bhola and Dharmender. It is also on record against him that he assisted principal accused persons in removing the robbed articles within the agreement of co-accused persons. It is also on record that articles i.e. 13 iron Tikkies of 11" , one Iron Tikki of 14" one iron Tikki of 8" , one iron Tikki of 24" , four bearings of 10" , nine springs and one iron Thiya of 10" were recovered from his TSR FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 62/ bearing no. DL1 RG - 9083 vide seizure memo Ex.PW7/A and depositions of PW6 and PW10.
41.In this case a charge for the offence u/s 458 IPC has also been framed which refers to punishment for lurking house trespass. The pre-requisite for lurking house trespass is the criminal house tres- pass. The house trespass has been defined u/s 442 IPC along with explanation and lurking house trespass has been defined u/s 443 IPC. Hence, both sections are re-produced as under:-
Section 442 IPC House-trespass - Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building, used as a place for worship, or as a place for the custody of property, is said to commit " house-trespass" .
Explanation - The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
Section 443 IPC Lurking house-trespass - Whoever commits house- trespass having taking precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit 'lurking house-trespass'.
Sec. 458 IPC Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint. - whoever commits lurking house-trespass by night, or house-breaking by night having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 63/ any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine."
Having perusal of section 442 and 443 IPC it reveals that house trespass has taken place precisely for the reasons that offence of house trespass is complete as soon as the introduction of any part of the criminal trespasser's body is entering sufficient to constitute it.
And offence of lurking house trespass is complete as soon as a person enters the premises of the category described in section 442 having taken precautions to conceal such house-trespass in the manner mentioned in the section. In this regard, in case AIR 1971 SC 1254: 1971 Cr LJ 1073 - it has been observed that:-
" Lurking house-trespass - A person is said to commit 'lurking house-trespass' when a person enters the premises of the category described in section 442 having taken precautions to conceal such house-trespass in the manner mentioned in the section."
42.In the case in hand, the recovery of iron goods recovered from all three accused persons on the night of incident i.e. 24.03.05 vide seizure memo Ex.PW7/A is indicative of the factor of their presence on the day of incident.
FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 64/
43.Now, I may discuss the liability for committing the culpable homicide by accused Bhola and Dharmender. In this regard in ' R. Punnyaya V State AIR 1977 SC 45: 1977 Cr. LJ 1' it has been observed that :-
" Whenever the court is confronted with the question whether the offence is murder, or culpable homicide not amounting to murder on the fact of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death leads to he second stage for consideration whether that act of the accused amounts to culpable homicide as defined in section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of sec. 300, Indian Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four classes of the definition of murder contained in sec. 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder punishable under the first or the second part of sec. 304 depending, respectively, on whether the second or the third clause of sec. 299 is applicable. If this question is answered in the affirmative but the case comes within any of the Exceptions \enumerated in sec. 300, the offence would still be culpable homicide not amounting to murder punishable under the First Part of Sec. 304, Indian penal Code."
44.Taking into consideration the depositions of PWs PW6 and PW10, recovery of the stolen/ robbed articles, and having found bloodstains on the shirts of accused persons it lend assurance to arrive at the conclusion that accused persons were present at the spot. It is FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 65/ proved on record that an iron rod fitted with bolt vide Ex.P2 was recovered from the place of occurrence along with dead body of deceased Om Prakash. This aspect of the finding directly relates to the facts of recovery of iron rod at the instance of accused persons and it lend some assurance to believe that the presence of the accused persons causing injury cannot be ruled out precisely for the reasons that clothes of accused persons namely Dharmender and Bhola @ Bhopal were found having bloodstains of 'O' group of deceased Om Prakash's blood. In light of the parameters as laid down to convict the accused persons on circumstantial evidence by Hon'ble Apex Court in case 'Chandmal V State of Rajasthan- AIR 1976 SC 917' , are met out and no hypothesis except the presence of accused persons at the spot on the night of 24.03.2005 for committing culpable homicide not amounting to murder with iron rod Ex.P2 can be inferred precisely for the reasons that the injury suffered by deceased was not the intended injury u/s 300 of IPC on account of the reasons given in previous pages. However, injury was caused with the knowledge to cause death in the ordinary course of nature. So, accused persons namely Dharmender and Bhopal @ Bhola are convicted for the offences punishable u/s 304 Part - I / 392/ 458/ 120 FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 66/
(b) IPC and accused Sandeep along with accused Bhopal @ Bhola and Dharmender, is convicted for the offences u/s 411/ 120 (b) IPC.
45.So long as the role of third accused namely Sandeep is concerned, in this regard it has come on record that he was brought at place of occurrence with two principal offenders namely Dharmender nad Bhola @ Bhopal and after having seen the dead body of deceased and the articles he agreed to transport those articles to Azadpur which afford an assistance to believe that he agreed to enter into a criminal conspiracy for the removal of robbed goods which falls within the definition of Section 410 IPC read with Section 411 IPC. The citations as relied by the ld. counsel for accused Sandeep such as:-
a) P.K. Narayan Vs State of Kerala Crimes (3) 850 S.C. ; and
b) Devender Singh & etc Vs State of Himachal Pradesh JCC 2003 (3) 1577 S.C. The judgment / citation 'P.K. Narayan Vs State of Kerala Crimes (3) 850 S.C.' refers to section 120 B r/w 302 IPC for offence of conspiracy. There shall be an agreement to do an illegal act. In the present case the agreement between the principal offenders and accused Sandeep can be inferred unerringly as he was caught in the TSR with the stolen goods and in the disclosure statement it is admitted by him, thus, it lend some assurance to arrive at the conclusion for the FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 67/ purpose of entering in the criminal conspiracy u/s 120 B IPC. The another citation 'Devender Singh & etc Vs State of Himachal Pradesh JCC 2003 (3) 1577 S.C.' it refers to section 27 i.e. with regard to the disclosure statement of accused. In this regard it is on record that accused Sandeep did not produce the TSR bearing no. DL 1 RG - 9083, which was used for transporting the goods. This conduct of superdar directly goes to indicate that he had knowledge of fact of the goods removal from the place of occurrence by the accused persons.
Accordingly, accused persons namely Dharmender and Bhopal @ Bhola are convicted for the offences punishable u/s 304 Part - I / 392/ 458/ 120(b) IPC ; and accused Sandeep along with accused Bhopal @ Bhola and Dharmender, is convicted for the offence u/s 411/ 120 (b) IPC.
OBSERVATION:
Before parting with the delivery of the judgment I would like to make a note with regard to the conduct of the IO in this case. I.O. in this case has not got done the value of the recovered articles and he has not collected the circumstantial evidence properly. Although this was within the discretion of Investigating Officer/ authority yet I found that communicative, implementative, adoptive and preparatory measures are inadequate as taken by the IO / authority for the collection of the evidence. ANNOUNCED IN THE OPEN COURT ON THIS 30.08.2010 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: DELHI FIR no.123/05 State Vs Dharmender etc PS Khajuri Khas 68/