Delhi District Court
State vs 1) Surender Kumar @ Sunder S/O on 5 February, 2010
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IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - I : North- East / KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0533272006
Sessions Case No. 206/2007
Assigned to Sessions. 30.05.2007
Arguments heard on 22.01.2010
Date of order. 05/02/10
FIR No. 63/2005
State Vs 1) Surender Kumar @ Sunder s/o
Sri Chand r/o Near Ghondha
Chowk, Village Ghondha, Delhi.
2) Sri Chand s/o Harbans Singh
r/o Near Gondha Chowk, Village
Gondha, Delhi.
Police Station Bhajanpura
Under Section 364/302/201/34 IPC
JUDGMENT
1. Briefly facts giving rise to the present case are that on 17.08.2004 at 9:00 a.m. at C-2/224, Yamuna Vihar, Delhi within jurisdiction of Bhajanpura, Delhi, a FIR was got registered vide FIR no.63/2005 dated 17.02.2005 for the offence u/s 365/34 IPC. Subsequently challan u/s 365/364/302/201/34 IPC was filed against accused persons namely Surender Kumar @ Sunder and Sri Chand for abducting one Naresh Kumar Sharma, husband of complainant Nirmal Sharma in order to commit his murder. Accordingly, accused persons were arrested and booked for the said offences. This case was committed to the court of Sessions on 30.05.2007.
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2. Consequently, a charge was directed to be framed against accused persons namely Surender Kumar @ Sunder and Sri Chand for the offences u/s 364/34 IPC and 302/201 IPC vide order dated 18.09.2007 stating therein that in between 17.08.2004 to 19.08.2004 around 3:00/3:30 p.m. at Gang Nehar, Near Muradnagar, Meerut Road, U.P. both accused persons in furtherance of their common intention committed murder of Naresh Kumar Sharma by throwing him in Gang Nehar and thus caused disappearance of his dead body which could not be recovered.
3. To prove and substantiate its case the prosecution has examined 21 witnesses namely PW1 Smt Nirmal wife of deceased, PW2 Satish Sharma - brother of the deceased, PW3 Chemali Devi - mother of deceased, PW4 Raj Pal , PW5 Rakesh, PW6 Pratap Singh - Neighbour of deceased, PW7 Sheela Sharma - sister of deceased, PW8 Shyam Singh, PW9 Ashok Kumar, PW10 ASI Islamuddin, PW11 Raja Ram, PW12 Shakuntala, PW13 Inspector Varinder Singh, PW14 HC Dev Raj Singh , PW15 HC Sunil Kumar, PW16 Ct. Yogender Singh, PW17 SI Mukesh Kumar, PW18 HC Ajesh Kumar Jain, PW19 M.N. Vijayan, Nodal Officer, PW20 Ct. Sant Kumar and PW21 Inspector S.R. Meena.
The prosecution to prove its case has examined PW1 Smt. Nirmal Sharma who happens to be the complainant and wife of deceased 3 Naresh Kumar Sharma. She was examined by Ld. APP and in her statement she has deposed that on 17.08.2004 her husband deceased Naresh Kumar Sharma had left the home after informing her that he was going to Balaji and this fact was told by her to her mother-in-law after one week as her husband did not return back. She again deposed that having received this information she and her mother-in- law went in search of deceased Naresh Kumar Sharma but she could not find him and thereafter, she went to police station Bhajanpura and lodged a missing report regarding her husband and mother in law. This information was recorded vide DD Number 14A mark X dated 25.08.2004 and thereafter she tried to search her husband and she could not find him. As a result of which she made a complaint in the police station regarding the aforesaid incident in oral and on her statement FIR no.63/2005 was recorded vide Ex. PW18/A. Again she has deposed in her statement that she did not give any name to the police regarding the incident of missing of her husband in mark B and again she deposed that she knew the accused persons and one is Surender Kumar @ Sunder and another is Sri Chand. She denied in her deposition the role of these accused persons in missing of her husband. She has further stated that she did not make any further statement to the police officials except the portion vide mark B. Having found resiled from her statement, Ld. APP cross examined this witness in detailed. In the cross examination regarding the implicity of the accused persons causing missing of deceased or death has been 4 denied in toto by this witness. As a result of which, Ld. Counsel for the accused Sh. A.K. Chaudhary did not cross examine this witness.
4. PW2 Satish Sharma appeared in the witness box. He happens to be the younger brother of the deceased Naresh Kumar Sharma. During the course of his examination he has deposed that on 17.08.2004, his brother Naresh went from his house by saying that he is going to Balaji and after three days his mother Smt. Chameli Devi came to his house and told him that the deceased had gone with one person named Surender Kumar @ Sunder and he did not come back. Regarding this deposition, Ld. Counsel for the accused persons raised an objection being hear-say statement. He again deposed that thereafter, he along with his brother Rakesh and complainant Nirmal Sharma went to Police station and got lodged a missing report after about a week and thereafter, police started the proceedings of this case. Further in his statement, he deposed that even despite of their best efforts they could not locate his brother deceased Naresh and they did not state anything except whatever deposed in the court in his statement. Having being found resiled from his statement recorded u/s 161 Cr. P.C. Ld. APP took permission to cross examine this witness, as a result of which this witness was cross examined at length. He denied all the facts whatever he told in the 5 statement recorded u/s 161 Cr.P.C. regarding the selling of house by deceased Naresh in the sum of Rs.5,50,000/- to one Shyam Sunder and he took Rs.50,000/- in the month of October' 2003 as an earnest money for the aforesaid house. He has affirmed the suggestions that he told the police that his brother has given Rs.50,000/- which was taken by him from Shyam Singh to Sunder as well as his father Sri Chand as earnest money of House No.C- 2/224, Yamuna Vihar, Delhi and this fact was told to him by his deceased brother Naresh Kumar Sharma. Other suggestions has been denied by this witness.
5. PW3 Chameli Devi is also material witness in this case. She happens to be the mother of deceased. In her statement, she deposed that deceased was her son and was leaving separately at Yamuna Vihar. Nirmal Sharma told her that deceased had gone to Balaji but he did not return back. This witness has also been cross examined by Ld. APP having been found resiled from her earlier statement made to the police u/s 161 Cr.P.C. This witness has denied all the suggestions put by the ld. APP to her. She has denied the suggestion specifically that she had made a statement mark 'Z' to the police on 07.03.05. She further denied the suggestion that she told the police that her daughter-in-law Nirmal asked from Sunder regarding her husband who did not return back to the house, Sunder brought clothes of Naresh 6 and told her that Naresh will return within 2-3 days and further she had gone to Ghonda to enquire regarding her son Naresh.
6. PW4 Raj Pal, he happens to be the father-in-law of the deceased. He was also cross examined by Ld. APP on account of having been found resiled from his earlier statement made to the police u/s 161 Cr. P.C. This witness also did not identify any of the accused persons.
7. PW5 Rakesh happens to be the neighbourer of the deceased. This witness has also been got declared completely hostile by Ld. APP as a result of which he was cross examined by him and all suggestions were denied by this witness which are earmarked as confronted portions in the statement recorded u/s 161 Cr. P.C.
8. PW6 Pratap Singh is a formal as well as most material witness in this case. He happens to be the last seen evidence but he has been completely declared hostile as a result of which he was also cross examined by Ld. APP. He was got confronted for the portions of his statement recorded u/s 161 Cr. P.C. This witness has denied the material suggestion that on the intervening night of 18/19.08.2004 at about 8;00 p.m. when he reached at Ghonda Chowk Maujpur on foot in connection with some work, he saw accused Sri Chand in the market, present in the court. He has also denied the suggestion that he saw accused Surender present there and made sit his nephew Naresh on 7 rear seat of Maruti Car at that time. He has also denied the suggestion that he did not enquire from them about the same because his nephew used to remain in the company of accused persons. This witness is the most material witness in this case precisely for reason that he only happens to be the last seen evidence having the company of both the accused persons with the deceased Naresh. Therefore, his hostileness with regard to his last seen statement cannot be taken in isolation and the same is required to be looked into along with the testimony of IO Islamuddin who recorded the statement of this witness along with the disclosure statement of both the accused persons. PW IO ASI Islamuddin took the investigation of this case on 06.03.2005 from SI Rishi Om posted at Police Station Bhajanpura and PW ASI Islamuddin was posted as ASI at DIU unit and he further deposed that ACP, DIU Unit marked the present case to him. This witness has not been cross examined by the Ld. defence counsel.
9. PW7 Sheela Sharma who happens to be the sister-in-law of deceased wife Nirmal. She resiled partly from her statement recorded u/s 161 Cr.P.C. This witness partly supports her version during her testimony. Hence, this witness is a very crucial witness to examine along with the other witnesses.
10.PW8 Shyam Singh is an Instrumental witness in this case. In his 8 statement he has confirmed the transaction of sale of house situated in Yamuna Vihar between the accused persons and deceased. In his statement the element of threat has come on record. He further testified that documents regarding purchasing of property of house of Yamuna Vihar was not got executed by the accused persons on the pretext of marriage of his daughter. However, the possession of the said house was lying with the deceased. This witness further stated that on 17.08.04 deceased had left the house by saying that he is going to Balaji with accused Sunder. He further testified that on 18.08.2004 wife of deceased Nirmal told him that deceased had not returned to the house. (Ld. counsel objected this being hear-say statement). He further deposed that wife of deceased in the presence of his sister and mother told that accused Sunder and Ashok had brought the clothes of deceased and handed over the same to his wife by saying that deceased would come back within one day or two. (again it was objected by Ld. defence counsel being hear-say statement). It is interested to note here that this witness has given written complaint (date of which he did not remember) to the police commissioner regarding missing of deceased but there is no such complaint on the judicial file which was given by this witness to the Commissioner of Police. This witness has been got declared hostile by Ld. APP. In the cross-examination he admitted that wife of deceased Nirmal Sharma informed him that accused persons Sunder and Sri Chand used to threatened her to vacate the premises and if 9 she vacates the premises her husband would return back within 2 days. He further deposed in the cross-examination done by ld. APP that wife of deceased told him that her husband had been concealed or killed by the accused persons namely Sunder and his father Sri Chand (again it was objected by defence counsel being hear-say statement). This witness has been cross-examined by the defence counsel. I have perused the cross examination done by Ld. counsel for the accused. In the cross-examination it has come on record that he got the information about deceased Naresh going to Balaji and not returned back from Balaji on 18.08.04. He further deposed in the cross-examination that he never accompanied the wife of deceased for lodging any missing report at any point of time in the local police station nor he accompanied the wife of deceased for the search of deceased to Balaji or anywhere else. He further deposed that police recorded his statement after 10 / 11 months from the date of missing of deceased i.e. on 18.08.04. (After perusal of the judicial file the ld. APP has stated that no such statement is placed either on judicial file or in police file).
11.PW9 Ashok Kumar who happens to be the Uncle of the deceased and he has also been cross examined by the Ld. APP on account of the fact that he has also resiled from his statement. Subsequently, this witness on the very first day was examined but at the request of Counsel for the accused his examination-in-chief was deferred on 10 account of certain allegations on the Naib Court. Again this witness was examined on 27.10.2009. On appearing before the court he deposed that he did not accompany the deceased Naresh to ISBT in a TSR. This witness further deposed that he accompanied the deceased to Loni to purchase liquor where accused Sunder met them in the way and got stopped TSR and took them on the top floor (Third floor) in the market, where they made to sit on a cot and Sunder made a call to the wife of deceased Naresh that he had not gone to the Balaji. He further stated that after some time, Sunder told him to go to house as deceased Naresh was called by his wife and he is also leaving the place. On enquiry deceased Naresh told him that he is going to his house and asked him to go also. Since, this witness has resiled from his earlier statement given to the police u/s 161 Cr. PC so he was cross-examined by ld. APP. In the cross-examination done by ld. APP he denied the suggestion that he had made statement Ex.PW9/A to the police on 15.03.05 that about 8 / 9 months ago his nephew Naresh has been kidnapped or killed by Sri Chand and Surender @ Sunder. This witness has also denied the suggestion that he had told the police in his statement that in the evening mother of deceased Naresh, Chameli Devi came to his house and asked him that why Naresh had not reached to the house. He again denied the suggestion that he had told the police in his statement that Chameli Devi told him that accused Sunder came to house of Naresh and delivered his clothes at his house and also informed that Naresh would return back to the 11 house within 2 / 3 days as they were going to Balaji and after two days Naresh did not reach to the house so far.
12.PW10 Islamuddin appeared in the witness box. He happens to be the material witness being Investigating Officer in this case. He is most material witness, due to the fact that disclosure statements of the accused persons namely Sri Chand and Sunder were recorded by him consequent upon their arrest made by him vide Ex.PW10/A and PW10/B and their personal search memo were prepared vide Ex.PW10/C and PW10/D. He got exhibited the disclosure statement of Sri Chand Ex.PW10/E and of Surender Ex.PW10/F. He deposed in his deposition that during police remand accused were taken to Haridwar and Murad Nagar for pointing out the place where accused had taken the deceased. He proved the pointing out memo of Murad Nagar as Ex.PW1/G and of Haridwar as Ex.PW10/H. He has also prepared and got executed the site plan Ex.PW10/J and scaled site plan vide Ex.PW17/A. In his statement, he stated that no recovery has been effected from accused persons during police remand. He got exhibited the site plan Ex.PW10/J prepared by him at Murad Nagar at the instance of accused. This witness was cross examined by Ld. APP on certain material points. In the cross-examination done by ld. APP he got exhibited the another site plan of second floor room where accused persons took the deceased initially as Ex.PW19/K. He further proved the calls details of mobile phone no. 9212238535 vide 12 seizure memo Ex.PW10/L and his request to Nodal Officer to TATA Indicom as Ex.PW10/L1. He further proved the search proceedings of the house of accused persons as Ex.PW10/L 12 where nothing was recovered. This witness has been cross-examined at length by defence counsel also. In the cross-examination it has come on record that whatever he had stated in the court in his examination chief and also in cross-examination of ld. APP that is not mentioned in the Ex.PW10/DA.
Further careful perusal of the testimony of this witness Investigating Officer appears to have made contrary and contradictory versions since he stated in his cross-examination that he does not know as to why the investigation of this case was marked to him. He was also unable to remember that after taking investigation of the present case whose witness statement he has recorded the statement and similarly he could not tell regarding other witnesses. It has also come on record in the cross-examination that foot notes mentioned on Ex.PW10/J are different to Ex.PW10/X. He has also admitted that Ex.PW10/J having two references with mark A and B respectively and the reference note on Ex.PW10/X having only one reference note mark A. The mark of signs of directions mentioned in Ex.PW10/J and mark PW10/X are contrary to each other (they are contrary to its site directions).
13.PW11 Raja Ram who also happens to be the uncle of the deceased. 13 This witness has turned hostile and thus he was also cross examined by Ld. APP on account of the fact that he has resiled from his statement recorded u/s 161 Cr.P.C.
14.PW12 Shakuntala who happens to be the neighbourer and doing the work of washing the clothes. She has also been cross examined by the Ld. APP on account of the fact that she has resiled from her statement made to the police. In her cross-examination done by ld. APP she denied the suggestion that she had stated to the police that deceased Naresh was kidnapped by some one or he might have been killed by the owners of said house namely Sri Chand on account of some money dispute. She further denied the suggestion that wife of deceased Nirmal Sharma told her that Sri Chand is putting pressure upon her for vacating the house and he would inform her after vacating the house regarding her husband. This witness has not been cross- examined by the defence counsel.
15.PW13 IO Inspector Virender Singh Punia who happens to be the second / formal Investigating Officer in this case and he received this case from the earlier IO and during investigation he recorded statement of witnesses and made efforts to trace out abducted/missing person Naresh Kumar but no clue came forward. Thereafter, this case was transferred to DIU Unit, North East District. This witness was cross examined by Ld. defence witness.
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16.PW14 HC. Dev Raj happens to be the official of DIU Unit. In his statement it has come on record that he took accused persons at Kumar Dharamsala at Haridwar. He also came to know from accused persons that deceased Naresh was confined there in a room. In this regard pointing out memo of the said room was prepared vide Ex.PW1/H. This witness further affirmed the fact that he also came to know from accused persons that cloth of the deceased were thrown by them in canal by keeping in a blue colour polythene and dead body was also thrown down by accused persons in that canal. This witness has affirmed the facts of disclosure statements of accused persons. I have perused the disclosure statements of both accused persons but this witness has not been mentioned as witness on these statements for authentication of disclosure statement nor he had signed the same, vide disclosure statement Ex.PW1/E and PW1/F. Though, disclosure statements of both accused persons have been authenticated by HC Sunil Kumar and Ct. Yogender Singh by Investigating Officer Islamuddin. Thus, statement of this witness appears contradictory. This witness has been cross examined at length by Ld. defence counsel Sh. A.K. Chaudhary. After perusal of his cross-examination carefully I found that this witness has narrated all the story with regard to visit at Haridwar and Dharamshala but again I am surprised as to why he has not authenticated the disclosure statements of accused persons. This part of evidence also shows the conduct of the IO Islamuddin that he was doing the investigation of this case in a very 15 casual manner.
17.PW15 HC. Sunil Kumar conducted the personal search of both accused persons vide Ex.PW10/C and PW10/D and proved the disclosure statements of the accused persons vide Ex.PW1/E and PW1/F. He deposed that on 23.03.2005 the police party along with accused persons went to Khumar Dharamshala, Haridwar and accused persons pointed out a room in Khumar Dharamshala on the first floor and told that they had stayed with deceased Naresh in the said room on 19.08.2004. He proved the pointing out memo of the said room Ex.PW1/H. He also proved the pointing out memo Ex.PW10/DB of the place from where the accused persons pushed Naresh in the canal. This witness has been cross examined by Ld. defence counsel at length. I have perused the cross-examination very carefully and found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
18.PW16 Ct. Yogender affirmed the fact as deposed by PW15 HC Sunil Kumar. He testified that on 21.03.2005 he joined investigation of the present case with ASI Islamuddin and after interrogation both accused persons namely Shri Chand and Surender were arrested vide arrest memo Ex.PW10/A and PW10/B and IO recorded their disclosure statement vide Ex.PW1/E and PW1/F in his presence. This witness has been cross examined at length by Ld. defence counsel. I have 16 perused the cross-examination very carefully and found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
19.PW17 SI Mukesh Kumar, Draftsman is a formal witness. He deposed that he visited the spot i.e. Muradnagar Gangnehar, U.P. where he inspected the spot, took measurement and prepared rough notes on the pointing out of ASI Islamuddin and a scaled site plan was prepared by him vide Ex.PW17/A. This witness has been cross examined by Ld. defence counsel at length. I have perused the cross-examination very carefully and found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
20.PW18 HC Aajesh Kumar Jain is a formal witness. He proved the carbon copy of FIR Ex.PW18/A u/s365/34 IPC which was recorded by him on 17.02.2005. This witness has been cross examined at length by Ld. defence counsel.
21.PW19 M.N. Vijayan who is the Most Material witness in this case being nodal officer. In his statement, it has come on record that one of the accused made a telephone call from his mobile phone No. 9219938535 at mobile phone No. 9212070940 which belongs to the deceased. He placed on record the attested copies of aforesaid calls details which are Ex.PW19/A and PW19/B. This witness has been 17 cross examined by Ld. defence counsel. No material contradictions i the deposition of this witness come on record during the course of cross examination.
22.PW20 Ct. Sant Kumar is a formal witness. He deposed that he collected the calls details from the office of TATA Tele Services Ltd as he was directed by IO ASI Islamuddin to collect the calls details. He testified that he was handed over a letter in this regard which is already Ext. as PW10/L-1 and after collecting the calls details from the aforesaid office, he handed over same to the IO who seized the same vide seizure memo Ex.PW10/L. This witness has been cross examined by Ld. defence counsel. This witness has been cross examined by Ld. defence counsel. No material contradictions i the deposition of this witness come on record during the course of cross examination.
23.PW21 Inspector S.R. Meena, who recorded the statement of nodal officer of TATA Telecom Services and after completion of investigation sent the file back to the SHO Police Station Bhajanpura for filing of challan. I have perused his cross examination very carefully. In the cross examination, no fact has come on record contrary to his testimony.
24.Thereafter, prosecution evidence was closed and statement of 18 accused u/s 313 Cr. P.C. was recorded. Accused denied all the allegations by submitting that they are innocent and they have been falsely implicated in this case. They expressed their willingness to lead defence evidence. He produced one defence witness namely DW1 Arjun Dass Arora, UDC, Record Room (Civil), Karkardooma Courts, Delhi. I have gone through his testimony carefully and it does not come to rescue the accused.
25.Ld. APP for the state argued and submitted that it has been proved reasonable doubt that deceased sold house to the accused persons and received an amount of Rs.5,50,000/-. There was a dispute on the transaction with regard to the property in question.
26.After closure of the arguments of the Ld. APP, Ld. Counsel for the accused Sh. A.K. Chaudhary led his argument and submitted that there is no direct evidence in this case and the whole case is based on the circumstantial evidence and the factor of motives, last seen evidence, circumstantial death of the deceased and complete chain regarding the series of the acts committed by the accused is to be looked into and he further submits that in this case the delay of five months regarding the lodging of the FIR is on record on controverting the argument of Ld. APP. The FIR was got recorded at the instance of the senior officers as the police official did not record the FIR of kidnapping which can be seen from the statement of PW6 Pratap Singh.
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27.Ld. counsel Sh. A.K. Chaudhary again proceeding with the arguments drew my attention at the time of final arguments on the segment of delay. In this regard, he submitted that a DD No.13A dated 28.08.2004 was made by the wife of the deceased who has been examined as PW1 and there is no mention of conversation between deceased and wife, between deceased, wife and accused persons. The mention of these conversation neither is in the DD entry nor in the FIR.
28.Again Ld. counsel proceeded with the arguments and submitted that IO ASI Islamuddin is a lower rank official who is not eligible for investigation of the case and other IO SI Rishi Om who is very vital in this case has not been made a witness in this case.
29.Expanding the scope of series of facts-chain Ld. counsel for the accused persons submitted that PW10 IO ASI Islamuddin in his cross- examination had made number of contradictions regarding visit of spot/occurrence place. He further argued and submitted that no witness from the spot has been made witness neither at Haridwar or from Murad Nagar.
30.He again submitted that there is vital distinction between rough site plan prepared by IO ASI Islamuddin and scaled plan prepared by Draftsman, SI Mukesh.
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31.Ld. counsel further argued that disclosure statements of both the accused persons are not admissible as neither any recovery was effected from them nor it was got signed and authenticated by any of the public persons.
32.He again submitted that he examined one defence witness and there is no mention of telephone call as per exhibit in the Court order passed by Sh. Talwant Singh while passing the order of bail of accused persons vide Ex.DW1/10.
33.Ld. counsel for accused has filed certain citation with regard to the point of circumstantial evidence, which are as follows :
1. Ld. counsel for accused relied upon the citation i.e. 'AIR 1991 SC 1674, Inderjit Singh and another Vs. State of Punjab' and another citation i.e. 'I (1994) CCR 26 (SC), Bhalinder Singh Vs. State of Punjab', regarding circumstantial evidence and extra judicial confession.
2. In citation i.e. '1996 JCC 596 Radhey Shyam Vs. The State', Ld. counsel for accused pointed out regarding prove of case on the basis of circumstantial evidence and motive also and peculiar aspects of the case are that trial judge himself who visited the site of occurrence.
3. In citation i.e. '1997 JCC 354, Rajan @ Raj Kishore Vs. State', Ld. counsel for accused submitted that in case of no eye witness circumstantial evidence along with motives play an important role along with the last seen evidence.
4. In citation i.e. '1997 JCC 450, Raj Mani Vs. State', Ld. counsel pointed out about importance of the last seen evidence and circumstantial evidence.
5. In citation i.e. '1998 AD (Cr.) Delhi 753 Chander Pal Vs State', Ld. counsel pointed out towards the weightage of circumstantial evidence along with last 21 seen evidence etc.
6. In citation i.e. '2000 (1) JCC (SC) 20 C.K. Reveendran Vs. State of Kerala', Ld. counsel for accused pointed out regarding circumstantial evidence and extra judicial confession and homicide.
7. In citation i.e. '2001 (2)JCC (Delhi) 313, Shiv Narayan Vs. State (NCT of Delhi', Ld. counsel submitted regarding the motive and weightage to contradiction along with circumstantial evidence.
8. In citation i.e. '2005 (1) JCC 53, Kavinder & Others Vs. State (NCT of Delhi)', Ld. counsel submitted that he himself was the counsel in Hon' ble Delhi High Court at the time of arguments of this case and submitted that it is a classic judgment regarding the circumstantial evidence and the legality and credibility on the disclosure statement and joint disclosure statement of the accused has been discussed at length.
9. In citation i.e. '2009 (3) JCC 2436 Sohan Sahai Vs. State', Ld. counsel drew my attention regarding circumstantial evidence.
10.In citation i.e. 'State Vs. Nikhil @ Rahul' downloaded from internet, Ld. counsel for accused submitted regarding circumstantial evidence and motive.
36.Again Ld. counsel for accused has relied upon the citation with regard to point of Homicidal death/last scene evidence, which are as follows :
1. Ld. counsel relied on citation i.e. '2007 (2) JCC 1358 Nanhe @ Ram Chander Vs. NCT of Delhi' which refer to homicidal death.
2. In citation i.e. '2007 (2) JCC 1249 Hatti Singh Vs. State of Haryana', Ld. counsel referred to last seen evidence and linkage with regard to complete chain by way of circumstantial evidence.
3. In citation i.e. 'AIR 1991 SC 967, State of Rajasthan Vs. Smt. Kamla', Ld. counsel for accused drew my attention the fact that in the case of murder holding accused guilty the homicide of the deceased must be proved.
4. Ld. counsel for accused quoted the citation i.e. '1994 JCC 388 (SC), Arjun Marik & Others Vs. State of 22 Bihar' and import of the last seen evidence and complete chain of evidences.
5. In citation i.e. '1996 JCC 460 citation i.e. Bhagat Bhadur Vs. The state', Ld. counsel pointed out towards importance of the last seen evidence together and nature of the disclosure statement etc.
6. In citation i.e. '1997 JCC 450, Raj Mani Vs. State, Ld. counsel pointed out about importance of the last seen evidence and the circumstantial evidence.
7. In citation i.e. '2000 (1) JCC (Delhi) 115, State Vs. Ravi @ Munna', Ld. counsel for accused submitted that in this case question of homicidal death discussed in length and recovery of dead body was also discussed in length along with last seen evidence theory.
8. In citation i.e. '2002 IV AD (Cr.)SC 265, Ravinder Parkash and Another Vs. State of Haryana', Ld. counsel for accused submitted regarding the circumstantial evidence, last seen evidence and identification of body of deceased and filing of complaint etc.
9. In citation i.e. '2008 (3) JCC 1966 Rai Singh Vs. State', Ld. counsel for accused submitted regarding the last seen theory which was denied in this case and drew my attention to para 19 of judgment on the last seen evidence.
10.In citation i.e. '2008 (2) JCC 1193, Dinesh Borthakur Vs. State of Assam', Ld. counsel submitted regarding the last seen evidence at length and regarding circumstantial evidence also.
11.In citation i.e. '2009 (3) JCC 1760 Jahid @ Lambu Vs State (GNCT of Delhi)', Ld. counsel for accused impressed upon the last seen evidence on the recovery of dead body.
12.In citation i.e. '2009 (3) JCC 2428 Babuddin Vs. State', Ld. counsel mentioned para 13 regarding last seen evidence, in which it was observed that :
" 13. The deceased has obviously not returned home in the night of 4.9.1998. It is strange that the mother of the deceased would not bother if her son i.e. the deceased would remain outside the home the entire night and would not come back. The natural reaction of a mother would be to be concerned if her son does not return by midnight and with 23 each passing hour, the anxiety would grow. The mother is bound to express her concern to the other family members and such of them would had seen her son outside the house would certainly tell said fact to the mother. Daleep is conscious of the fact that he has to say something about said issue. He has done so. When cross examined whether he had told the mother of the deceased at Bhatiara Chowk, he replied: I have stated to the mother of deceased Pradeep in the evening in 5.9.1998 that deceased Pradeep met me at Bhatiara Chowk. This is in direct conflict with his categorical statement in the examination- in-chief that " I learnt this when I returned home in the next day" ."
37.Further Ld. counsel for accused relied upon the citations with regard to motive of murder/suspicion, which are as follows :
1. He relied upon citation i.e. 'AIR 1973 SC 501, Padala Veera Reddy Vs. State of Andra Pradesh and others' and drew my attention that mere suspicion cannot take the place of legal proof.
2. In citation i.e. '1995(2) CC Cases 122 (SC), Akhilesh Hajan Vs. State of Bihar', Ld. counsel impressing upon that reversal of findings as the circumstantial evidence is incomplete in the absence of motive/recovery/disclosure statement.
3. In citation i.e. '1995JCC 280, Kamal Kumar Vs. State', Ld. counsel submitted on motive and nature of hypothesis proved.
4. Ld. counsel for accused referred the case of '1994 JCC 614 (SC), Tarseem Kumar Vs. Delhi Administration' and pointed out regarding the role of the motive which is presumed as vital to decide the case either for the conviction or acquittal.
5. In citation i.e. '1996 JCC 579, Chet Ram Vs. The State', Ld. counsel drew my attention that motive is not sufficient and pointing out memo is doubtful.
6. In citation i.e. '2009 (1) JCC 91, Ravinder Singh Vs. Govt of NCT of Delhi', Ld. counsel for accused drew my attention regarding the finding based on legal proof not on their strong suspicion.
7. In citation i.e. '2009 (1) JCC 101, Surmila Devi Vs. 24 State', Ld. counsel for accused submitted regarding corroborative evidence and impression of suspicion.
8. In citation i.e. 'State Vs. Nikhil @ Rahul', Ld. counsel submitted regarding role of motive in the completion or non completion of chain.
38.Further Ld. counsel for accused has relied upon the citations with regard to the point of recovery of dead body/postmortem of body, which are as follows :
1. In citation i.e. '2002 IV AD (Cr.)SC 265, Ravinder Parkash and Another Vs. State of Haryana', Ld. counsel for accused submitted regarding the circumstantial evidence, last seen evidence and identification of body of deceased and filing of complaint etc.
2. In citation i.e. '2009 (3) JCC 1760 Jahid @ Lambu Vs State (GNCT of Delhi)', Ld. counsel for accused impressed upon the last seen evidence on the recovery of dead body.
3. In citation i.e. '2009 (3) JCC 2121 Shyam Bir Vs. State', Ld. counsel mentioned para 18 of judgment regarding postmortem evidence of the body wherein it was observed that :
" 18. In any event, since the doctor, who conducted the postmortem report has not been produced as a witness, his opinion cannot be relied upon by the prosecution to the detriment of the appellants. There is, therefore, no evidence before us which would suggest that the said axe was indeed the weapon which was used for commission of the crime. The only piece of evidence which has been relied upon by Mr. Sunil Sharma was the factum that the CFSL report showed traces of human blood group 'O' which was also the blood group of the deceased. It is common knowledge that blood group 'O' is not a rare group and, even if it were so, it cannot be ruled out that there are other person having the same blood group. It can only be regarded as a circumstances and by itself cannot be considered to lead to the conclusion that the blood on the axe was that of the deceased."25
4. In citation i.e. '2007 (2) JCC 1358 Nanhe @ Ram Chander Vs. State of Delhi', Ld. counsel for accused drew the attention of the court regarding decomposition of the dead body and evidence value of the same.
39.Again Ld. counsel for accused has relied upon the citations with regard to the point of delay in FIR, which are as follows :
1. In citation i.e. 'AIR 1973 SC 501 Thulia Kali Vs The state of Tamil Nandu' Ld. counsel for accused pointed out the impact of delay in FIR regarding giving information and quoted para No12 in which it was observed that :
" 12.First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated fro the standpoint of the accused. the object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is circumstances in which the crime was committed. The names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. it is therefore. essential that the delay in the lodging of the first information report the present case Kopia daughter-in-law prosecution case was present when the accused made murderous assault on the deceased. Valaniiaraju. Step-son of the deceased is also alleged to have arrived near the scene of occurrence on being told by Kopia. neither of them nor any other villager. Who is stated to have been told about the occurrence by Valenjiaraju and Kopia. made any report at the police station for more than 20 hours after the occurrence even though the police station is only two miles from the place of occurrence. The said circumstance in our opinion would raise considerable doubt 26 regarding the veracity of the evidence of those that evidence as would render it unsafe to base the conviction of the accused-appellant upon it."
2. In citation i.e. '2001 (1) JCC (SC) 61, State of U.P. Vs. Mundrika and others', Ld. counsel for accused submitted regarding material omission in the FIR and statements of the witnesses and the weightage in the evidence.
3. In citation i.e. '2009 (1) JCC 191, N.H. Muhammed Afras Vs. State of Kerala', Ld. counsel submitted regarding contradiction inconsistency in statement and documents coupled with delay in FIR. He also referred and drew the attention of the court to the testimony of PW10, PW14 and PW15 regarding delay of FIR.
4. In citation i.e. '2009 (1) JCC 528 Om Prakash Vs State of U.P.', Ld. counsel for accused submitted regarding delay in FIR and discrepancies.
5. In citation i.e. '2009 (4) JCC 2669 (SC), Pannayar Vs. State of Tamil Nandu', Ld. counsel for accused submitted that delay in recording the statement of witnesses is vital to the case of prosecution and in this regard he quoted para-7 of the judgment. In which it was observed that :
" 7. We would take up th first circumstance. The witness Alwarsamy (PW4), in his evidence, very clearly admitted that he was not on the talking terms with Thilagavalli, who was none else, but his own sister. At the time when he saw the accused, he (Alwarsamy) was accompanying his real elder brother, namely Ramasubbu, though his statement was also recorded. It has come in the cross examination of this witness that he attended the funeral, though he was on cross terms with the family of the deceased and during the whole funeral, the accused was actually present. What surprises us is that in spite of this, this witness did not say anything either to Subbiah (PW1), the husband of Thilagavalli or even to the police and his statement was not recorded for good long three days. Now, if the witness had seen the accused following Thilagavalli and he also knew about the violent death of Thilagavalli, and had seen the accused at the funeral, one wonders as to why the witness kept quiet without telling it to anybody. As if this is not sufficient, Krishnasamy (PW13), the Investigating Officer was specifically asked the question as to why these witnesses, namely 27 Alwarsamy (PW4), one Perumalsamy and Ramasubbu were not examined by him. The Investigating Officer has admitted that he could not give any reason for not examining any of these witnesses on the same day. He also claimed that the Investigating agency had suspected the accused only after the examination of Alwarsamy (PW4) and Ramasubbu. It is an admitted position that the statement of these witnesses were not recorded till 21.01.1995. It was obvious, therefore, that the delay in recording the statement of these witnesses and the stony silence maintained by Alwarsamy (PW4) would make him an extremely unreliable witness. In our opinion, the Trial, as well as the Appellate Court have not given the due weight to this weighty circumstance. The Appellate Court has almost apologetically observed that the prosecution would have done better by examining Alwarsamy (PW4) without any waste of time. However, the Appellate Court chose to accept his evidence. Unfortunately, the Appellate Court has not even applied its mind to the circumstance that according to this witness, the accused was present in the funeral. That crucial circumstance seems to have been escaped the notice of the Appellate Court. Ordinarily, we would not discuss the evidence in our appellate jurisdiction, however, when it is found that the crucial circumstances have escaped the notice of the Appellate Court and/or the Trial Court, this Court would consider the evidence lest any injustice is caused. In our opinion, the evidence of Alwarsamy (PW4) should not have been believed. This takes care of the first circumstance."
40.Ld. counsel for accused further relied upon a citation i.e. 'I (2000) CCR 460 (DB) Jagarnathmahrana Vs. State of Bihar' and submitted that hear-say evidence has no value in case of oral evidence.
41.On the strength of above mentioned citations, Ld. counsel for accused persons prayed that prosecution has failed to prove the offence of accused persons beyond reasonable doubt.
28
42.After completion of arguments of Ld. Counsel for accused persons, Ld. APP rebutted the arguments of the Ld. Counsel for accused persons and submitted that in this case the delay in FIR took place on account of the negligence of police officials as it has come on record in the statement of PW6 Pratap Singh that he was ready to give the statement but the same was not got recorded by the police officials.
43.Ld. APP again referred to PW2 Satish Sharma and submitted that clothes of deceased were handed over by accused Surender @ Sunder but in this regard neither any seizure memo was put on record nor any sort of recovery has been shown. Ld. APP again rebutted the arguments of Ld. Counsel for accused regarding procurement of sale documents. In this regard, he submitted the prosecution has already agreed and it has also come on record that no document was executed between deceased and accused persons as sale transaction was not complete.
44.Again Ld. APP for the state submitted that in the recent judgment pronounced by Hon' ble Supreme Court of India the recovery of dead body is not pre-condition for holding accused persons guilty. In support of his contention, Ld. APP has filed the citation i.e. 2010 AD (CRI.) (S.C.) 173 State of U.P. Vs. Ram Sajivan & Others.
45.Again Ld. APP submitted that while pronouncing the judgment the 29 most material witnesses are PW2 Satish Sharma, PW6 Pratap Singh, PW7 Sheela Sharma, PW8 Shyam Singh, PW9 Ashok and PW19 M.N. Vijayan with regard to the fate of this case.
46.Before reaching at any conclusion let the relevant sections i.e 364, 302, 201 and 34 IPC be re-produced verbatim as the charge was framed under these sections and the same are as follows :-
Section -364 IPC Kidnapping or abducting in order to murder - Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger or being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
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 201 IPC -
" Causing disappearance of evidence offence, or giving false information to screen offender. - Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence. -shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life. - and if the offence is punishable with 30 [imprisonment for life] , or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years' imprisonment - and if the offence is punishable with imprisonment for any term not extending to then years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, 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.
47.I have given my careful consideration to the submissions of Ld. Counsel for accused persons and Ld. APP as well. The sum and substance of the arguments of Ld. Counsel for accused persons is that most of the citations are repeated citations with regard to ascertain the motive, nature of extra Judicial Confession, the conviction based on circumstantial evidence, discovery of dead body and last seen evidence. Now I may discuss each and every aspect one by one.
31
48.With regard to motive, Ld. Counsel for the accused persons relied upon the following citations :
1. AIR 1973 SC 501, Padala Veera Reddy Vs. State of Andra Pradesh and others.
2. 1995(2) CC Cases 122 (SC), Akhilesh Hajan Vs. State of Bihar.
3. 1995JCC 280, Kamal Kumar Vs. State.
4. 1994 JCC 614 (SC), Tarseem Kumar Vs. Delhi Administration.
5. '996 JCC 579, Chet Ram Vs. The State.
6. 2009 (1) JCC 91, Ravinder Singh Vs. Govt of NCT of Delhi',
7. 2009 (1) JCC 101, Surmila Devi Vs. State.
8. State Vs. Nikhil @ Rahul.
49.In this regard, it is found that motive is such a factor for committal of offence which remains within minds of individual being and the same can only be gathered or inferred from the other allied and collateral facts by way of collection and collation from the facts on records. In the present case, it has come on record in the statement of PW8 Shyam Singh that a transaction with regard to the property i.e. house No.2/224, Yamuna Vihar. was entered into between the accused persons and deceased but it was not completed however, Rs.50,000/- were given to accused persons by the deceased and possession was lying with the deceased. This fact goes to indicate that there was a commercial relationship between accused and the deceased with regard to the property i.e. house No.2/224, Yamuna Vihar. Therefore, the element of motive can be inferred from this transaction for 32 monetary gains. But it is well settled proposition of law that role of motive is only to show a pathways to proceed with the case to find out the next course of action. Therefore, the conviction solely on the basis of motive cannot be made unless some substantive parts of evidence comes on record.
50.So long as the other material aspect with regard to last seen evidence are concerned, Ld. Counsel for accused persons relied upon the following citations :
1. 2007 (2) JCC 1358 Nanhe @ Ram Chander Vs. NCT of Delhi.
2. 2007 (2) JCC 1249 Hatti Singh Vs. State of Haryana.
3. AIR 1991 SC 967, State of Rajasthan Vs. Smt. Kamla.
4. 1994 JCC 388 (SC), Arjun Marik & Others Vs. State of Bihar.
5. 1996 JCC 460 citation i.e. Bhagat Bhadur Vs. The state.
6. 1997 JCC 450, Raj Mani Vs. State.
7. 2000 (1) JCC (Delhi) 115, State Vs. Ravi @ Munna.
8. 2002 IV AD (Cr.)SC 265, Ravinder Parkash and Another Vs. State of Haryana.
9. 2008 (3) JCC 1966 Rai Singh Vs. State.
10.2008 (2) JCC 1193, Dinesh Borthakur Vs. State of Assam.
11. 2009 (3) JCC 1760 Jahid @ Lambu Vs State (GNCT of Delhi).
12. 2009 (3) JCC 2428 Babuddin Vs. State.33
51.Last seen evidence is such type of piece of evidence which renders help to arrive at the conclusion either for the conviction or acquittal and to ascertain the sequential conduct of the accused on the basis of patches of evidence brought on record by prosecution. In the present case it has come on record in the statement of PW2 Satish Sharma who happens to be the brother of deceased Naresh Kumar that on 17.08.2004 his brother Naresh went from his house by saying that he is going to Balaji and after three days his mother Chameli Devi came to his house and told him that deceased had gone with one person named Sunder and he did not come back. Ld. Counsel for accused objected to this deposition on the ground that it cannot be taken on record being hear-say evidence. However, this witness was cross examined by Ld. APP as he has resiled from his earlier statement recorded u/s 161 Cr. P.C. Being the knowledge of this fact from Chameli Devi the same is not admissible being hear-say evidence.
52.Another witness in this regard is PW6 Pratap Singh who happens to be the last seen evidence but he has been got declared hostile by Ld. APP. This witness was cross examined by Ld. APP. He has denied all the material suggestions put by ld. APP regarding that on the intervening night of 18/19.08.2004 at about 8:00 p.m. when he reached Ghonda chowk Maujpur on foot in connection with some work, he saw accused Sri Chand in the market. He has also denied the suggestion that he saw accused Surender present there and made sit 34 his nephew Naresh on rear seat of Maruti Car at that time. In this way his testimony happens to be fatal to the fact of last seen evidence. In absence of clear deposition by this witness the conclusion with regard to the fact that the deceased was seen with accused persons cannot be established unless some other facts are proved. It is interesting to note that most material witness PW1 Nirmal wife of deceased and other relatives of the deceased have been got declared hostile by Ld. APP in toto. Therefore, the conclusion that last seen evidence with regard to the company of the deceased with the accused persons suffers from illegality.
53.Another crucial witness PW7 Sheela Sharma who happens to be sister-in-law of deceased. She was also declared partly hostile by Ld. APP. This witness has deposed in her statement that she had given Rs. 5 lacs to Naresh when he purchased his house at Yamuna Vihar from accused persons and her testimony was objected to by Ld. Counsel for accused persons on the ground that this witness is hear- say evidence regarding leaving Delhi for Balaji by deceased. This witness has been cross examined by Ld. APP due to the fact that she resiled from her earlier statement made to the police u/s 161 Cr.P.C. and it has also come on record in the cross examination of Ld. APP that her Bhabhi told her that accused Surender Kumar @ Sunder and Shri Chand used to say to vacate the house otherwise they would have to face consequences. This was again objected by Ld. Counsel for 35 accused persons. This witness is also not of much significance for the purpose of ascertaining the fact of threat.
54.Another crucial witness in this regard is PW8 Shyam Singh, in his deposition it has come on record that he had purchased house No.2, Gali No.1, Shyam Gali, Maujpur from deceased for a sum of Rs.5,50,000/-. He had given Rs.50,000/- as earnest money for aforesaid house and rest of the payment was made by him to the deceased in month of November' 2003. Documents of this property were also to be executed in the month of November' 2003 or as and when he made payment to deceased. He gave said payment to accused Surender Kumar @ Sunder because deceased Naresh had purchased a house from accused persons for a sum of Rs.8,50,000/- and house was situated in the area of Yamuna Vihar. He has categorically stated that in his presence deceased made payment of Rs.5,50,000/- to accused Surender @ Sunder in lieu of purchase of their house and rest of the payment was not made to the accused persons by the deceased in his presence and the document with regard to the property in question which was purchased from accused persons could not executed by accused persons on the pretext of marriage of her daughter. However, possession of the said house was lying with the deceased. In the deposition PW8 again it has come on record that on 18.08.2004 the wife of deceased, Nirmal told him that deceased had not returned the house. This was also objected by Ld. 36 Counsel for the accused persons being hear-say statement. He further deposed that he was told by wife of deceased that in presence of his sister and mother accused Surender @ Sunder and Ashok had brought the clothes of deceased and handed over to his wife by saying that deceased would come back in one or two days. Again it was objected by Ld. Counsel for accused being hear-say evidence. Thereafter, police case was registered after great efforts by the family of deceased. This witness was cross examined by Ld. APP on certain material facts after seeking the permission of the court and in cross examination it has come on record that in the statement u/s 161 Cr.P.C. Ex. As PW8/A that the wife of deceased Nirmal Sharma informed him that accused Surender Kumar @ Sunder and Sri Chand used to threaten her to vacate the premises and if she vacates the premises her husband would return back in two days. It was also objected by Ld. Counsel for accused persons. Again similar deposition regarding threat has come in his statement and these have been objected to by Ld. Counsel for the accused persons on account of arguments that this statement being the hear-say. During the cross examination certain contradictions with regard to the procurement of money for purchasing the house from deceased Naresh for Rs.5,50,000/- has come on record regarding filing of return in MCD or Income Tax return etc. It has also come on record in cross examination that no paper with regard to the property purchased from accused Surender were executed in his presence. So long as 37 arguments of Ld. Counsel for accused are concerned that on 17.08.2004 he has gone for Balaji, in this regard fact of going to Balaji by deceased is a hear-say evidence being told to him by wife of deceased.
55.The other arguments of Ld. Counsel for accused is that in the circumstantial evidence there must be a unbreakable chain to convict the accused and no other hypothesis should come on record except that accused in all possible circumstances have committed the offence. In this regard, he relied upon the following citations:
1. AIR 1991 SC 1674, Inderjit Singh and another Vs. State of Punjab.
2. I (1994) CCR 26 (SC), Bhalinder Singh Vs. State of Punjab.
3. 1996 JCC 596 Radhey Shyam Vs. The State.
4. 1997 JCC 354, Rajan @ Raj Kishore Vs. State.
5. 1997 JCC 450, Raj Mani Vs. State.
6. 1998 AD (Cr.) Delhi 753 Chander Pal Vs State.
7. 2000 (1) JCC (SC) 20 C.K. Reveendran Vs. State of Kerala.
8. 2001 (2)JCC (Delhi) 313, Shiv Narayan Vs. State (NCT of Delhi.
9. 2005 (1) JCC 53, Kavinder & Others Vs. State (NCT of Delhi).
10. 2009 (3) JCC 2436 Sohan Sahai Vs. State.
11. State Vs. Nikhil @ Rahul' downloaded from internet.38
57.The sum and substance of these citations are that Hon' ble Apex Court in the case 'Chandmal V State of Rajasthan- AIR 1976 SC 917', observed that where a case rests entirely on circumstantial evidence it must satisfy three tests:-
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.
58.In this case PW19 M.N. Vijayan is most material witness and in his statement it has come on record that Mobile No.9219938535 belongs to accused Surender Kumar @ Sunder and mobile No.9212070940 belongs to the deceased. In this regard statement with regard to receiving and outgoing calls have been got exhibited as Ex.PW19/A. Careful perusal of the Ex.PW19/A reveals that calls were made from mobile No. 9219938535 to mobile No. 9212070940 during the period 01.08.2004 to 31.08.2004. This is the most crucial evidence of this case which is to be examined with testimony of other witnesses. The relationship of calls between accused and mobile number 9212070940 through the above cell numbers were put to the accused persons in the statement u/s 313 Cr.P.C but accused persons failed to rebut the 39 receiving or making calls from his telephone number 9219938535 which is proved in the statement of PW19 M.N. Vijayan to the mobile No. 9212070940 which belongs to deceased.
This piece of evidence is very vital piece of evidence which sufficiently indicates that there was some call contacts between two these mobile numbers i.e. between accused and the persons who owns the cell phone of the deceased during 01.08.2004 to 31.08.2004. Besides, the FIR was got registered by the wife of deceased, Smt. Nirmal Sharma and in the FIR it was mentioned by the wife of deceased Naresh Kumar Sharma who has been got declared hostile by Ld. APP that accused persons used to threaten and they concealed her husband. FIR was got lodged for the offence u/s 365/34 IPC at police station Bhajanpura. The arguments of Ld. Counsel for accused persons that contents of FIR bears cutting under mark X and thus FIR goes to suggest that some super-addition in the contents of FIR has taken place. But bare perusal of the statement Ex.PW18/A, FIR reveals that there exists no super-addition with regard to the contents of the FIR, only super-addition or cutting appears to have been made with regard to date which is shown as 18.08.2004 from 17.02.2005.
59.Again PW9 Ashok Kumar is the material witness in this case. In his statement it has come on record that on 17.08.2004 at about 10/10:30 p.m. deceased Naresh Kumar Sharma came to his dairy at Maujpur and asked him to accompany him at Balaji and he told him that it was 40 too late and he would accompany him in the morning. He accompanied him to ISBT Sarai Kale Khan in a TSR but in the way he told him that he wanted to go first to Loni. The said TSR driver was asked first to go to Loni from there Naresh purchased half bottle of liquor from Theka. From there he proceeded towards Sarai Kale Khan, ISBT and when TSR reached near Maujpur, Naresh told him that they should proceed after taking bath. The same TSR brought them to his dairy. On the way near Ganga dairy accused Surender @ Sunder met and got stopped the TSR and he took both of them on the first floor. Again in his statement it was deposed by him that accused Sunder met them and took them on the top floor (third floor) in the market. Thus testimony of this witness appears to have been given some contradictory versions. Ld. APP requested for cross examination of this witness as he resiled from his earlier statement given to the IO u/s 161 Cr.P.C. This witness has denied the material suggestions regarding kidnapping and killing by Surender @ Sunder and Sri Chand.
60.Another arguments of Ld. Counsel for accused persons regarding recovery of dead body is concerned, in this regard, he has filed the following citations :
1. 2002 IV AD (Cr.)SC 265, Ravinder Parkash and Another Vs. State of Haryana.41
2. 2009 (3) JCC 1760 Jahid @ Lambu Vs State (GNCT of Delhi)',
3. 2009 (3) JCC 2121 Shyam Bir Vs. State.
4. 2007 (2) JCC 1358 Nanhe @ Ram Chander Vs. State of Delhi.
62.Perusal of the case file reveals that the dead body of the deceased has not been recovered in the present case. However, this argument of Ld. Counsel for accused persons has been rebutted by Ld. APP arguing that the recovery of dead body is not mandatory for the purpose of holding the conviction of the accused persons based on circumstantial evidence and in support of his contention he has relied upon citation i.e. '2010 AD (CRI.) (S.C.) 173 State of U.P. Vs. Ram Sajivan & Others' where in was observed :
21. Most of the prosecution witnesses have turned hostile. Kallu PW14 who was one of the victims of dacoity and abduction and whose death was attempted by the accused persons, has fully supported the prosecution case. Head Constable Kashi Prasad Tiwari PW27 has also supported the prosecution case.
He had seen accused Lallan Singh, Munna, Mathura Singh, Vijai Karan, Chhalia Singh and Dhirendra Singh on 9.9.1979 at 6 p.m. at the road running towards east of the police ou post Chheolaha. According to him accused Mathura Singh and Vijai Karan Singh had rifles. He stated that he enquired from Lallan Singh alias Udai Bhan Singh as to where they were going or whether they were going to do some big job and then in reply accused Lallan Singh told him that they were going to village Lohari.
23.The other witness who has partly corroborated the prosecution story, though he has also been treated as a hostile witness by the prosecution and subject to cross examination is Dashrath PW28. He stated that about 1 = years ago he was going to his village within police station Hussainganj from Fathepur and when he reached mile no.7 at 6:30 p.m. he saw 5-6 persons sitting on the bridge. Out of these 506 persons he recognized accused Mathura Singh, resident of Lohari, Chandra, resident of Gaura, but he could not identify the remaining persons. He stated that he heard these 42 persons talking that they would go to Lohari and kill the residents of Lohari and to throw away dead bodies in the river Ganges. He also stated that the father of Ram Prasad of Lohari be killed and his body be thrown in the Ganges. He has named Dhirendra Singh Thakur, Man Singh Thakur and Vijai Karan Singh Thakur who were armed with rifles."
63.I have given careful consideration to the submissions of Ld. Counsel for accused persons and Ld. APP as well. In the present case after careful analysis of the case file I found that on the one hand PW8 Shyam Singh and PW19 M.N. Vijayan are material witnesses and on the other hand PW10 IO ASI Islamuddin, PW13 IO Inspector Varinder Singh Punia, PW18 HC Aajesh Kumar Jain, who recorded FIR, and PW15 HC Sunil Kumar and PW16 Ct. Yogender Singh are also material witnesses who authenticated the disclosure statements of accused persons.
64.Now evidence on record is to be examined to ascertain the role of accused persons. It has come on record that mobile phone No.9212238535 belongs to accused Surender @ Sunder and mobile phone No. 9212077940 belongs to deceased and the calls from 9212077940 to 9212238535 have been shown as received in between period 01.08.2004 to 31.08.2004 45 times which has been got Ex.PW19/X and outgoing calls to mobile phone no.9212077940 from mobile No.921223835 in the same period was 10 times . This piece of evidence sufficiently indicates that during the period of 01.8.2004 to 31.08.2004 calls at the deceased mobile of accused 43 persons were in constant process through mobiles. This piece of evidence was put to the accused u/s 313 Cr.P.C. but accused failed to rebut this positive evidence which very vital to decide the connection of the accused persons with regard to the presence incident. The accused has not discharged the burden of proof on this account. Another material witness in this case happens to be PW Shyam Singh and statement was also put to him.
65.I find only minor contradictions and these contradictions do not form the basis on which it can be disbelieved that accused persons had no contact on the mobile of deceased Naresh. Other material witnesses PW1 Nirmal, PW2 Satish Sharma, PW3 Chameli Devi, PW4 Raj Pal, PW5 Rakesh, PW7 Sheela Sharma, PW9 Ashok Kumar, PW11 Raja Ram, PW12 Shakuntala are the hostile witnesses.
66.The Hon'ble Supreme Court of India in case titled 'State of U.P. Vs. Ram Sajivan & Others' - 2010 I AD (Cri.) (S.C.) 173 quoted the judgment 'Harijana Thirupala & Others Vs Public Prosecutor, High Court of A.P., Hyderabad (2003) 6 SCC 470 observed on the point of dealing with the settled principles of law:
" 11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the 44 case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case. "
67.The careful analysis of all the witnesses and careful perusal of the file reveals that in this case most material witness is PW1 Nirmal Sharma, who is deceased's wife and she has got mentioned in the FIR that accused persons used to cause threat to the deceased which has already been got Ex.PW18/A but she has become completely hostile with regard to the threat and call received at the mobile of deceased Naresh Kumar Sharma, so these facts are not sufficient to conclude that in all possibilities the accused persons were making call to 45 deceased's wife at the deceased's mobile particularly in view of the fact that dead body of the deceased has not been recovered and no recovery with regard to this case from the accused persons has been proved by the prosecution, so it also causes to believe some breaking point in the sequence of event to conclude that deceased was kidnapped by the accused persons and murdered by them.
68.Further, in this case, it is interesting to note that IO has not made any witness from the place where allegedly deceased and accused persons stayed either at Haridwar or at Murad Nagar where allegedly the dead body was thrown. Other witnesses PW6 Pratap Singh, PW7 Shyam Singh, PW9 Ashok Kumar are the hear-say witnesses with regard to the fact that deceased left the place by saying that he is going to Balaji with the accused persons. The deceased was more than 18 years therefore, the offence of kidnapping of secretly confining the deceased is also not proved beyond reasonable doubt as it has not come on record that he was taken away by the accused persons by deceitful means or under threat. So by giving benefit of doubt in view of the above discussed facts and judgments (supra) I acquit both accused persons namely Surender Kumar @ Sunder and Sri Chand for the offences u/s 364/302/201/34 IPC. Their bail bonds are cancelled and sureties are discharged.
69.Before parting with the judgment I would like to make a note with regard to the conduct of the IOs with regard to the proceedings 46 conducted by them. It has been noted during the course of trial that investigation of this case was handed over to several IOs but the most of the important part of the investigation was assigned to IO/ ASI Islamuddin who recorded disclosure statements of both accused persons namely Surender Kumar @ Sunder and Sri Chand. This witness i.e. IO/ ASI Islamuddin was got declared hostile by ld. APP. Thus, the conduct of the IO/ASI Islamuddin was found very strange. Further, after perusal of the case file I found inadequate preparatory measures, adopting measures, communicative measures and implementative measures with regard to the investigation at the initial point till the conclusion of the investigation.
Besides, the testimony of PW1 Smt. Nirmal Sharma who happens to be the wife of deceased found false from the contents of her statement recorded u/s 161 Cr. P.C. wherein she told that on 17.08.04 accused Sunder came to her house and took her husband with him and subsequently on 18.08.04 accused Sunder at 11 a.m. got her conversion with her husband on phone. The fact regarding leaving the place by deceased with accused was told by her to PW2 Satish Sharma, PW3 Chameli Devi, PW6 Pratap Singh and PW8 Shyam Singh but in the court she has refused to have made this statement to any of the witnesses. This part of the statement appears to be false. The role of IO/ ASI Islamuddin and PW1 Smt. Nirmal Sharma found to have been in collusion to each other. Therefore proceedings u/s 344 47 Cr. PC be initiated against both of them. A separate file be opened after keeping the copy of this judgment and their relevant statements. In view of this Issue Show Cause Notice to them to appear in person on 22.02.2010 as to why they should not be punished summarily u/s 344 Cr. P.C. Copy of this judgment be sent to respectful DCP/NE to initiate measures with regard to regulate and supervise the functions of IOs and to prevent further recurrence of such incidents. ANNOUNCED IN THE OPEN COURT ON THIS 05.02.2010 (RAJ KAPOOR) ADDL. SESSIONS JUDGE-I/NORTH EAST KARKARDOOMA COURTS: DELHI.