Delhi District Court
State vs Hakim Singh on 10 January, 2024
IN THE COURT OF V. K. BANSAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
SC No.102/2022
FIR No.531/1998
Police Station: Gokalpuri
under Section: 302/365/201/34 IPC & 174-A IPC
CNR no.DLNE01-001058-2022
In the matter of:
State
Versus
Hakim Singh
S/o Thakuri
R/o Village Hathi Ka Nagala,
PS Amanpur, District Etah,
Uttar Pradesh. .........Accused
Date of registration of case: 13.04.2022
Date when the case was received by this Court: 13.04.2022
Date of conclusion of arguments: 15.12.2023
Date of pronouncement of judgment: 10.01.2024
JUDGMENT:
1. The story of the prosecution in brief is that Rajesh, brother of Rajender married with Rachna daughter of Narayan Lal, VIRENDER resident of Village Kasganj, Etah, UP, in the court and started KUMAR BANSAL residing with Rajender Singh at village Sherpur, Delhi. The Digitally signed by VIRENDER KUMAR BANSAL family members of Rachna were not happy with the marriage. Date: 2024.01.10 17:31:58 +0530 Rajesh and Rajender both used to drive TSR. On 05.08.1998, Rajender was present with his TSR at Sherpur Chowk. At about 12:30 pm. Rajender noticed that one Tata Sumo bearing SC no.102/22 State Vs. Hakim Singh Page 1 of 34 registration no.UP-82-1192 came from the side of Bhajanpura and went towards Karawal Nagar Chowk, wherein Pappu brother of Rachna and 2-3 other persons were sitting. Rajender suspected that they may commit something wrong to his brother. Therefore, he started following the Tata Sumo, but as the Tata Sumo was moving at high speed, the distance between the two vehicles increased. When his TSR was at some distance from Karawal Nagar Chowk, he saw that the occupants of the TSR i.e. Pappu and Guddu, brothers of Rachna, along with other persons, got down from the Tata Sumo and caught hold of his brother Rajesh. They forcibly made his brother Rajesh to sit in the Tata Sumo and fled away towards Johripur. He tried to chase them, but failed. He made call at 100 number. On the basis of which DD no.10 at PS Gokalpuri was recorded about abduction of Rajesh in Tata Sumo bearing registration no.UP-82-1192. The DD no.10 was assigned to HC Omveer Singh, who reached the spot, but none was found present there. He returned to the PS where Rajender came. His statement was recorded and on the basis of his statement, FIR no.531/1998 for offence punishable under Section 365 read with Section 34 of IPC was registered at PS Gokalpuri.
2. Further investigation was assigned to SI Chander Bhan. Message was flashed. Police visited Kasganj, Etah, UP, where they came to know that FIR No.195/19998 under Section VIRENDER 363/366 IPC had been registered at PS Kasganj, UP on the KUMAR BANSAL allegations that Rajesh @ Suraju with the support of his family Digitally signed by VIRENDER KUMAR BANSAL Date: 2024.01.10 members abducted daughter of Narayan Lal. 17:32:11 +0530
3. It was also informed that one Mohar Singh, driver of Tata SC no.102/22 State Vs. Hakim Singh Page 2 of 34 Sumo no.UP-82B-1827 resident of Sikanderpur, District Aligarh, UP, had lodged report at PS Dholna that Guddu @ Yuvraj, Ranvir @ Pappu, Hakim Singh and Lakhan Singh had abducted Rajesh from Karawal Nagar in a TSR forcibly and Rajesh had died due to beatings given to him by those persons. He also told that the dead body had been put at the bank of Hazara river. FIR no.148/1998 under section 304 IPC was registered at PS Dholna. The dead body was recovered from the place pointed out by Mohar Singh.
4. SI Chander Bhan went to PS Dhokna, collected the documents and also prepared the site plan of the place of recovery of the dead body. He collected the post mortem report. The doctor opined the cause of death as shock as a result of ante mortem injuries. On the basis of the documents and evidence collected, Section 302/201 read with Section 34 of IPC was added.
5. Initially, only accused Guddu @ Yuvraj, Ranvir @ Pappu and Lakhan Singh were arrested. They refused to participate in TIP. Accused Hakim Singh could not be arrested and was declared proclaimed offender vide order dated 12.03.1999. The proceedings against him continued under Section 299 Cr.P.C. Charge sheet against accused Ranvir @ Pappu, Yuvraj @ Guddu and Lakhan Singh was filed. These accused persons were tried by VIRENDER the Sessions Court and were charged for offences punishable KUMAR BANSAL under Sections 365 read with Section 34 of IPC, 302 read with Digitally signed by VIRENDER Section 34 of IPC and 201 read with Section 34 of IPC to which KUMAR BANSAL Date: 2024.01.10 17:32:20 +0530 they pleaded not guilty and claimed trial.
6. To prove its case, prosecution examined 22 witnesses.
SC no.102/22 State Vs. Hakim Singh Page 3 of 34Thereafter, prosecution closed its evidence.
7. Statement of accused persons were recorded under Section 313 Cr.P.C wherein, they denied the entire evidence and stated that they have been falsely implicated and they that are innocent. Thereafter, the case was fixed for final arguments.
8. After hearing the arguments, the Court passed the order of acquittal and all the accused persons were acquitted vide judgment dated 11.05.2001.
9. Later on accused Hakim Singh was arrested on 05.07.2016 and the supplementary charge sheet against him was filed. Learned MM after complying with the provisions of Section 207 Cr.P.C committed to the Sessions Court as offence punishable under Section 302 IPC is exclusively triable by the Sessions Court.
10. Accused Hakim Singh was charged for offences punishable under Section 365 read with Section 34 of IPC, 302 read with Section 34 of IPC and under Section 201 read with Section 34 of IPC and was also charged for offence punishable under Section 174-A IPC by my learned Predecessor. Accused pleaded not guilty and claimed trial. As the witnesses were also examined under Section 299 Cr.P.C, their statements could be read against the accused without examination of the witnesses. The prosecution and the defence wanted to re-examined few witnesses i.e Mohar Singh, Ashok Kumar, Rajender Singh, IO of VIRENDER the case SI Chander Bhan, SI Sanjeev Kumar, who arrested KUMAR BANSAL accused and Yusuf. They were recalled and examined. Digitally signed by VIRENDER KUMAR BANSAL
11. Mohar Singh was examined as PW1. Earlier he was Date: 2024.01.10 17:32:27 +0530 examined as PW3 under Section 299 Cr.P.C. He deposed that he SC no.102/22 State Vs. Hakim Singh Page 4 of 34 does not remember the exact date. He was driver by profession and used to drive Tata Sumo bearing no.UP-82-2718. On that day, he along with 5-6 persons came from Kasganj to Delhi. Those 5-6 person kidnapped one boy from Delhi, but he does not know from where they kidnapped that boy from Delhi. They put that boy in his vehicle and thereafter started moving towards Kasganj, UP. The name of that boy was Rajesh. The body of that boy was thrown near Kasganj Canal, UP and thereafter they went to Kasganj and those boys deboarded from his vehicle at Sabar Gate Chowraha near Kasganj, UP. He went to the house of the owner of the vehicle situated at Soro Gate, Kasganj. They went to Kotwali PS City Kasganj, UP, where he told all the facts to the police. Police officials of PS Dholna, Kasganj, UP took him to the spot, where body of that boy was thrown and the dead body was recovered. From there the dead body was shifted to Etah, UP for post mortem. Thereafter, he went to his village. So far as the identity of the accused is concerned, he stated that he does not know accused Hakim Singh present in the Court.
12. He was cross-examined by Ld. Addl. P. P at length as he was resiling from his earlier statement given to the police. During cross-examination, he admitted that his vehicle was booked at the rate of Rs.700/- per day plus diesel. He denied the suggestion that Ashok Kumar, Pappu and one doctor came to the house of VIRENDER Abdul Gaffar, who hired the vehicle. He stated that he has not KUMAR BANSAL told to police that Ashok Kumar, Pappu and doctor were sitting in Digitally signed by VIRENDER KUMAR BANSAL that car. He did not tell the police that Pappu and Pappu's nana Date: 2024.01.10 17:32:35 +0530 and the said doctor had kidnapped one boy, who was in a three wheeler in Delhi.
SC no.102/22 State Vs. Hakim Singh Page 5 of 3413. Dr. V. K. Gupta, who conducted the post mortem on the body of Rajesh Kumar was examined as PW2. He examined the dead body and found following ante mortem injuries on the body:
"i) abrasion 4 cm x 2 cm over the back of right ear pinna.
ii) multiple abraded contusion in an area of 16 cm x 12 cm over fronto parietal regions on detection meningis congested, homotoma present and clotted blood present in brain tissues.
iii) abraded contusion 4 cm x 2 cm over nose. On detection nasal bone fractured
iv) abraded contsion 8 cm x 4 cm over left side cheek on detection, underneath haematoma present.
v) abrasion 2 cm x 1.5 cm over lower libs.
vi) contusion 6 cm x 2.5 cm over right elbow joint,
anterior aspect.
vii) multiple abrasion in an area of 20 cm x 16 cm over
back of chest."
14. He proved the post mortem report as Ex.PW2/A. The doctor opined the cause of death as shock consequent to ante mortem injuries. The testimony of the witness has gone unchallenged and uncontroverted.
15. Ashok Kumar was examined as PW3. He deposed that on 04.08.1998, he was running shop PCO/STD at Laxmi Talkies, Bilram Gate, Kasganj, UP. Dr. Surender Kumar Gupta is his family doctor, who used to reside and run his clinic near his house. Dinesh was compounder of Dr. Surender Kumar Gupta.
On that day, Dinesh came to his house on 04.08.1998 at about 10:30 pm and informed that he has to immediately rush to Delhi VIRENDER and urgently need a vehicle as his sister is seriously ill. As KUMAR BANSAL Dinesh was not able to arrange vehicle, he took Dinesh to the Digitally signed by VIRENDER KUMAR BANSAL house of Abdul Gaffar for arranging vehicle, where they met Date: 2024.01.10 17:32:43 +0530 Yusuf, younger brother of Abdul Gaffar. On his request, Tata SC no.102/22 State Vs. Hakim Singh Page 6 of 34 Sumo no.UP-82B-1827 was engaged for Dinesh at the charge of Rs.700/- per day plus diesel. The Tata Sumo was identified by him which was produced by the Superdar. Mohar Singh was the driver of the Tata Sumo and he drove the vehicle along with Dinesh at about 12:00 am/12:30 am on the intervening night of 04/05.08.1998.
16. On 06.08.1998, in the morning at about 6:00 am/7:00 am, he came to know that a boy was killed in the said vehicle and the driver Mohar Singh had lodged FIR at PS Dholna, UP. He stated that he does not know accused Hakim Singh and has never seen him prior to the registration of the case. The testimony of the witness has gone unchallenged and uncontroverted.
17. Rajender Singh was examined as PW4. He deposed that he was residing at Mohalla Mohan, Ganda Nala, Nadri Gate, Kasganj, District Etha, UP, along with his family members in a room. He was TSR driver and used to drive TSR. His younger brother Rajesh Kumar, aged 25/26 years also used to reside with him and used to drive TSR. Rajesh was married with Rachna d/o Narayana Lal of their village in the Court. After the marriage, Rachna also started living with them.
18. On 05.08.1998 at about 12:30 pm, he was present at Chowk along with his TSR, when he noticed that his brother Rajesh going in his TSR towards Karawal Nagar. In the meantime, he also saw a Tata Sumo no.UP-82-1192, wherein Rachna's brother Pappu and Guddu along with 2-3 other persons VIRENDER KUMAR including Hakim Singh were also present going towards Karawal BANSAL Digitally signed by Nagar. He correctly identified accused Hakim Singh in the Court. VIRENDER KUMAR BANSAL Date: 2024.01.10 17:32:50 +0530 Hakim Singh is the maternal grand father of Rachna. He was not SC no.102/22 State Vs. Hakim Singh Page 7 of 34 happy with the marriage of Rachna with Rajesh. On seeing the Tata Sumo, he suspected that Pappu, Guddu and Hakim Singh and other persons may kidnap his brother. He chased the Tata Sumo in his TSR, but the Tata Sumo escaped. When he reached Karawal Nagar Chowk, he noticed TSR of his brother Rajesh parked at Karawal Nagar Chowk. He saw that his brother Rajesh is kidnapped in the Tata Sumo by accused persons including Hakim Singh. There were two more persons with them whose name he does not know. They took his brother in Tata Sumo. He made call at 100 number and also reached PS Gokalpuri, but his statement was not recorded. He was advised to go to Police Post Khajuri and from there, he was sent to Police Post Karawal Nagar, where his report was recorded which is Ex.PW1/A. Thereafter he was sent back by the police with advice that if he receives any information, he shall inform the police. At about 7:00 am, he received a call from the house of his relative at Karawal Nagar, who informed him that his brother has been murdered. He informed the police at Police Post Karawal Nagar. Police accompanied him to PS Kasganj, where he came to know that the police had already recovered the dead body of his brother. He received the dead body of his brother after the post mortem. He stated that he has suspicion that accused Hakim Singh along with other co-accused persons had killed his brother Rajesh Kumar after kidnapping him.
19. During cross-examination by learned defence counsel, he VIRENDER KUMAR stated that accused Hakim was his neighbour in Kasganj. He BANSAL Digitally signed came to Delhi in 1998. He denied the suggestion that he had by VIRENDER KUMAR BANSAL Date: 2024.01.10 17:32:57 +0530 quarreled with him after consuming liquor in Kasganj when he SC no.102/22 State Vs. Hakim Singh Page 8 of 34 was his neighbour. He denied the suggestion that there was previous enmity between him and accused Hakim Singh or that is why he falsely implicated him. He admitted that he named only two accused in his statement to the police and did not mention the names of other culprits. He stated that "I do not know who were the other occupants in the Tata Sumo car other that Pappu and Guddu whom I named in my statement before the police."
20. Following court question was put to the witness:-
Court Question: How you named that Hakim Singh was also in that Tata Sumo when your brother was kidnapped when you had only seen Pappu and Guddu and were not knowing the other persons who were occupying Tata Sumo at the relevant time?
Ans: I had not seen Hakim Singh sitting in that Tata Sumo when my brother was kidnapped but I named him before the court as earlier also he had come to me and threatened me.
21. Thereafter, Ld. Addl. P. P sought permission to re-examine the witness as he made contradictory statement. During cross- examination by Learned Addl. P. P, he deposed as follows:-
"I have not seen the faces of the other persons who were accompanying Pappu and Guddu, however, there was a person wearing cap similar to the cap which Hakim Singh usually wear and therefore, I said that Hakim Singh was also accompanying Guddu and Pappu at the time when my brother was kidnapped. It is wrong to suggest that I am deposing falsely and deliberately not telling the truth about the involvement of Hakim Singh in the commission of crime and not identifying him".
22. Sh. Chander Bhan Singh, Retired Inspector, IO of the case was examined as PW5. He deposed that on 06.08.1998, he was VIRENDER KUMAR BANSAL posted as SI in PS Gokalpuri and was Incharge of Police Post Digitally signed by VIRENDER Karawal Nagar. The investigation of this case was assigned to KUMAR BANSAL Date: 2024.01.10 17:33:05 +0530 him. On that day, he along with Ct. Vijender went to the spot.
SC no.102/22 State Vs. Hakim Singh Page 9 of 34One wireless message was flashed all over India regarding abduction of Rajesh. Copy of which is Ex.PW18/A. He also recorded statement of Rachna, which is Ex.PW18/B and that of Ct. Vijender.
23. On 07.08.1998, he along with complainant Rajender @ Raju, Ct. Vijender, Ct. Mukesh, HC Jage Ram and Ct. Radhey Shyam went to Kasganj in a private vehicle. They reached PS Kasganj, where they came to know that one FIR no.195/98 under Section 363/366 IPC was registered in PS Kasganj, wherein deceased Rajesh was the accused. He collected the copy of the FIR.
24. He also came to know that one FIR no.148/1998 was also registered in PS Dholna under section 304 IPC regarding death of Rajesh. He along with staff and the complainant reached at PS Dholna and met SI Devender Singh. He collected copy of FIR no.148/98. He went to the spot i.e Hazara Nehar, from where the dead body was recovered and prepared the site plan Ex.PW18/D at the instance of SI Devender. He recorded the statement of police officers of PS Dholna. He also recorded the statement of Abdul Gaffar and Mohar Singh. Thereafter, they returned to Delhi.
25. On 20.08.1998, he received documents from PS Dholna of case FIR no.148/98. Thereafter, he changed section in FIR no.531/1998 by adding Section 302/201 of 34 IPC. On 25.08.98, VIRENDER he recorded supplementary statement of complainant Rajender. KUMAR BANSAL
26. On 11.11.1998, accused persons i.e Ranvir, Lakhan Chand Digitally signed by VIRENDER and Yuvraj were arrested and their personal search were KUMAR BANSAL Date: 2024.01.10 17:33:12 +0530 conducted vide memos Ex.PW8/E, Ex. PW8/F and Ex.PW8/G SC no.102/22 State Vs. Hakim Singh Page 10 of 34 respectively. He interrogated accused persons and they made disclosure statements Ex. PW8/B, Ex. PW8/C and Ex. PW8/D respectively. They also pointed out the place of kidnapping vide pointing out memo Ex. PW8/H.
27. On 14.11.1998, he again interrogated accused persons and they made disclosure statements Ex. PW15/A, Ex PW15/B and Ex. PW15/C. Accused persons also pointed out the place where they had thrown the dead body vide memo Ex. PW15/D. He searched for accused Hakim Singh in village Bilram, but he was not found available at his address. On 14.01.1999, he also obtained NBW of accused Hakim Singh, but the same could not be executed. He got prepared scaled site plan Ex. PW5/A from SI Mukesh Jain of the spot of recovery of dead body (total six site plans).
28. During cross-examination by learned defence counsel, he denied the suggestion that he did not conduct fair investigation or none of the accused persons named accused Hakim Singh in their disclosure statements. He denied the suggestion that he obtained signatures of accused Lakhan, Ranvir and Yuvraj on blank papers. He denied the suggestion that accused Hakim Singh was always available at his address and no summons/warrant was ever tried to be served upon him.
29. SI Sanjeev Kumar was examined as PW6. He deposed that on 05.07.2016 while he was posted at PS R. K. Puram, South District, he received secret information that one person, who had VIRENDER KUMAR been declared proclaimed offender in case FIR no.531/1998 BANSAL Digitally signed by VIRENDER under Section 302/201/365 read with Section 34 of IPC PS KUMAR BANSAL Date: 2024.01.10 17:33:19 +0530 Gokalpuri namely Hakim Singh was present at his village Hathi SC no.102/22 State Vs. Hakim Singh Page 11 of 34 Ka Nagla, District Etah, UP, and he could be arrested. He verified the facts and found that Hakim Singh was declared proclaimed offender. Thereafter, he along with SI Surender, ASI Rakesh, HC Ritesh and Ct. Manoj left for the said village. Firstly, they went to PS Amanpur and from there they sought the assistance of local police. Thereafter, they reached his village and accused was apprehended, who was standing in front of his house. He was arrested vide arrest memo Ex. PW6/A and his personal search was conducted vide memo Ex. PW6/B. Information of his arrest was given to the Pradhan of the village and to his family members. Accused was brought to Delhi and on the next day, he was produced before the Court vide kalandra under Section 41.1
(c) Cr.P.C Ex.PW6/C. He correctly identified the accused. The testimony of the witness has gone unchallenged and uncontroverted.
30. Yusuf was examined as PW10. He deposed that in the year 1998, he was doing the business of manufacturing of trolley for tractor. His elder brother Abdul Gaffar was the owner of Tata Sumo bearing no UP-82B-1827. On 04.08.1998, one Ashok Kumar along with Dinesh came to him and requested to borrow Tata Sumo as some known person of Ashok was seriously ill and he has to take that person to the hospital. He gave that vehicle to Ashok Kumar. The identity of the Tata Sumo is not disputed by the defence, but as he did not support the prosecution case, he was cross examined by Ld. Addl. P. P. VIRENDER
31. During cross-examination by Ld. Addl. P. P, he denied the KUMAR BANSAL suggestion that the other name of Dinesh is Hakim Singh. Hakim Digitally signed by VIRENDER KUMAR BANSAL Singh was pointed to the witness, but he failed to identify him. Date: 2024.01.10 17:33:28 +0530 SC no.102/22 State Vs. Hakim Singh Page 12 of 34
32. The other witnesses in this case could not be served or traced despite efforts being made, who were examined under Section 299 Cr.P.C as accused was declared proclaimed offender. As per Section 299 Cr.P.C, which reads as follows:
299. Record of evidence in absence of accused:
(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.
33. The twin requirements of this Section are that the person is absconding and there is no immediate prospect of his arrest, then the evidence can be recorded in his absence. Secondly, if after the arrest, during trial, person whose evidence has been recorded is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without amount of delay, expenses or inconvenience same can be read against him.
VIRENDER
34. In the present case, the accused was absconding. Firstly, KUMAR BANSAL NBW against him was issued, but he could not be arrested then Digitally signed by VIRENDER KUMAR BANSAL proclamation under Section 82 Cr.P.C against accused was issued Date: 2024.01.10 17:33:35 +0530 SC no.102/22 State Vs. Hakim Singh Page 13 of 34 which was executed. Despite that he failed to put appearance, hence, thereafter vide order dated 16.03.1999, he was declared proclaimed offender. Therefore, the first condition is fulfilled that he was absconding and there was no prospect of his immediate apprehension. Proceedings under Section 299 Cr.P.C were continuing against him and other accused persons and statements of witnesses were recorded.
35. Summons were sent the witnesses, some witnesses were served and examined. The other witnesses could not be traced and served. A long period has also passed as the incident is of the year 1998 and he was apprehended in the year 2016. Recording of evidence started in the year 2023 i.e after 25 years, hence, most of the witnesses were not traceable at all. Therefore, the second condition is also fulfilled. The law is well settled as laid down by the Hon'ble Supreme Court in the case of Nirmal Singh Vs. State of Haryana, 2000, Volume 4 Page 41 wherein the Hon'ble Supreme Court examined the provision of Section 299 Cr.P.C and laid down as follow:-
"Section 299 of the Code of Criminal Procedure consists of two parties. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act in as much as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-
Digitally
examine is not legally admissible. Being an exception, it is signed by
VIRENDER
necessary, therefore, that all the conditions prescribed must be VIRENDER KUMAR
KUMAR BANSAL
strictly complied with. In other words, before recording the BANSAL Date:
2024.01.10
statement of the witnesses, produced by the prosecution, the 17:33:42 +0530 Court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided SC no.102/22 State Vs. Hakim Singh Page 14 of 34 under first part of section 299(1) of the Code of Criminal Procedure, 1973. In the case in hand, there is no grievance about non-compliance of any of the requirements of the first part of sub-section (1) of Section 299 Criminal Procedure Code, 1973 When the accused is arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable."
36. Similar view is taken by the Hon'ble Supreme Court in case Central Bureau of Investigation v Abu Salem Ansari, (2011) 4 SCC 426 wherein it was held that:
"4. Section 299 Criminal Procedure Code reads as under :-
"299. Record of evidence in absence of accused. - (1) If it is proved that an accused person has ab-
sconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the of- fence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be un- reasonable.
(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court VIRENDER KUMAR or the Sessions Judge may direct that any BANSAL Magistrate of the first class shall hold an inquiry Digitally signed by and examine any witnesses who can give evidence VIRENDER KUMAR BANSAL concerning the offence and any depositions so taken Date: 2024.01.10 17:33:50 +0530 may be given in evidence against any person who is subsequently accused of the offence, if the deponent SC no.102/22 State Vs. Hakim Singh Page 15 of 34 is dead or incapable of giving evidence or beyond the limits on India."
5. As regards the first respondent, sub-section (1) of Section 299 would apply as he, an accused person, was absconding, his case is already split up and has to undergo the trial. Obviously, the evidence adduced in the earlier trial cannot be used against the first respondent except as provided in sub-section (1) of Section 299 Criminal Procedure Code In the circumstances of the absconding accused appears again, the prosecution witnesses have to be examined afresh. But, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, the prosecution would be justified in relying on the evidence already on record taken in the earlier trial in the absence of the absconding accused."
37. Keeping in view the law laid down by the Hon'ble Supreme Court in the facts of the case, it is clear that in this case, the circumstances under which statements recorded in the absence of accused can be used against him had been fulfilled. The circumstance, when evidence can be recorded in the absence of accused is, when he is absconding and there are no immediate prospect of his arrest, which is there in this case that he absconded in the year 1998-1999 and was declared proclaimed offender on 16.03.1999 and thereafter, he could not be arrested, hence, statements were recorded by the Ld. Predecessor under Section 299 Cr.P.C as trial against other co-accused persons continued and witnesses qua him were recorded under Section 299 Cr.P.C.
38. The second requirement is that when accused is arrested VIRENDER KUMAR during the trial for offence for which he is charged, witnesses, BANSAL Digitally signed who are either dead or incapable of giving evidence or cannot be by VIRENDER KUMAR BANSAL Date: 2024.01.10 17:33:57 +0530 found or their presence cannot be procured without amount of delay and expense of inconvenience.
SC no.102/22 State Vs. Hakim Singh Page 16 of 3439. In the present case, as mentioned above except witnesses already detailed, the other witnesses could not be found and their presence could not be procured hence, the requirement and circumstances under which statement of the witnesses, who were examined in the absence of the accused can be relied upon under Section 299 Cr.P.C. These witnesses have deposed as follow under Section 299 Cr.P.C which in my opinion in view of the law laid down by the Hon'ble Supreme Court can be relied upon for deciding the trial of the present accused Hakim Singh.
40. SI Mukesh Jain was examined as PW6. He deposed that on 03.02.1999 on the request of IO, he went to Kasganj, PS Dholna. He took rough notes and measurement on the pointing of SI Chander Bhan Singh. On the basis of rough notes and measurement, he prepared scaled site plan Ex.PW6/A using scale ¼ cm equal to one meter. After preparing rough site plan, he destroyed rough notes and measurement. He also deposed that he has wrongly mentioned the year on the siteplan as 1998 whereas it is 1999. The testimony of the witness has gone unchallenged and uncontroverted.
41. Ct. Krishan Kumar was examined as PW7. He was working as DD writer in Police Post, Karawal Nagar on 05.08.1998. On that day, he received an information through wireless from Woman ASI Nageshwari that Rajesh, brother of Rajender, was kidnapped by some persons in Tata Sumo no. UP- 82-1192 from Karawal Nagar Chowk. He recorded DD no.10 and VIRENDER KUMAR proved copy of the same as Ex.PW7/A. The DD was assigned to BANSAL Digitally signed by HC Omvir Singh and was sent through Ct. Vijender Kumar. The VIRENDER KUMAR BANSAL Date: 2024.01.10 17:34:05 +0530 testimony of the witness has gone unchallenged and SC no.102/22 State Vs. Hakim Singh Page 17 of 34 uncontroverted.
42. HC Omvir Singh was examined as PW8. He deposed that on 05.09.1998, he was posted as PP Karawal Nagar, PS Gokalpuri. He along with SI Chander Bhan were in the investigation of the case FIR no.526/1998 under Section 324 IPC at Pusta Road, Karawal Nagar. In the meanwhile, he received DD no.10 through Ct. Vijender Kumar, on which he along with Ct. Vijender went to Karawal Nagar Chowk, but no witness was found available there and thereafter they came back to PP Karawal Nagar. The DD was kept pending for inquiry. On the same day at about 11:00 pm, Rajender Kumar/complainant came at PP Karawal Nagar and he recorded his statement. He made endorsement on the statement and prepared rukka Ex.PW8/A. He sent the rukka to the Duty Officer, PS Gokakpuri on which FIR was registered. Further investigation was assigned to SI Chander Bhan.
43. On 11.11.1998, he joined investigation of the case along with SI Chander Bhan and Ct. Vijender. They went to Gagan Cinema, Nand Nagri, where SI Chander Bhan received an information that accused persons namely Guddu, Pappu and Lakhan will come to Kasganj from Anand Vihar Bus Stand. On this information, he requested public persons to join the investigation, but none agreed. Thereafter, they went to Anand Vihar Bus Stand, where on the pointing out of the secret informer VIRENDER all the three accused persons were apprehended. They disclosed KUMAR BANSAL their names as Ranvir Singh @ Pappu, Lakhan Singh and Yuvraj Digitally signed by VIRENDER KUMAR @ Guddu. IO interrogated them. They confessed their crime. BANSAL Date: 2024.01.10 17:34:12 +0530 Disclosure statement of accused Lakhan is Ex.PW8/B, that of SC no.102/22 State Vs. Hakim Singh Page 18 of 34 Yuvraj is Ex.PW8/C and of accused Ranvir Singh is Ex.PW8/D. Those accused persons were arrested and their personal search were conducted vide memos Ex.PW8/E, Ex. PW8/F and Ex. PW8/G. Accused persons also pointed out the place of kidnapping vide memo Ex.PW8/H. He correctly identified all the three accused persons.
44. During cross-examination, he stated that police chowki, Karawal Nagar is situated at a distance of 200 meter from Karawal Nagar Chowk. A PCR van remains stationed at Karawal Nagar Chowk, but there is no fixed time. Police also patrols Karawal Nagar Chowk, but there are no fixed times for patrolling. Karawal Nagar Chowk is the main Chowk of the jurisdiction. Pusta is at a distance of about 200 yards from the Chowki, Karawal Nagar. PS Gokalpuri is at a distance of 2 ½ kms from Karawal Nagar Chowki. The distance between PP Khajuri Khas and PP Karawal Nagar is about 3 kms.
45. He received DD no.10 at Pusta road at about 1:15 PM. He came to know about the person kidnapped and his particulars, when complainant came at Chowki, Karawal Nagar at about 11:00 PM. On receipt of DD no.10, he asked police officials at the Chowki if any person came for lodging of report regarding kidnapping or not. Before returning to Police Post, Karawal Nagar, he also went to PS Gokalpuri to inform the SHO regarding DD no.10.
46. No clue was found at Karawal Nagar Chowk. He admitted VIRENDER KUMAR that there are shops around and near Karawal Nagar Chowk and BANSAL Digitally signed by hawkers and rehriwalas also remain present there. Rajender VIRENDER KUMAR BANSAL Date: 2024.01.10 17:34:20 +0530 informed him that he had come to Chowki earlier also regarding SC no.102/22 State Vs. Hakim Singh Page 19 of 34 lodging of report about kidnapping of his brother. He was cross- examined with respect to the arrest of other accused persons, but the same is not relevant for deciding the present case, hence, I am not dealing with the same.
47. Evidence of witness Ashok Kumar has already been discussed, hence, I am not dealing with the same here.
48. Subhash was examined as PW11 in the main case. He was running barber shop at Karawal Nagar Chowk. He stated that he does not know anything about this case, however, police officer came to his shop and asked him for his name, parentage and address and went away. Police officer told him that his particulars are required as some incident had taken place, but despite his protest, police officer threatened him, hence, he gave his particulars.
49. During cross-examination by Ld. Addl. P. P, he denied the suggestion that he gave his statement to the police that one Tata Sumo no.UP-82-1827 came at Chowki Karawal Nagar and 3-4 persons got down at the Chowk or that one TSR driver had forcibly been taken in Tata Sumo towards Johripur. He was confronted with his statement given to the police. The testimony of the witness has gone unchallenged and uncontroverted.
50. HC Ram Kishan was examined as PW12. He deposed that on 06.08.1998 he was working as Duty Officer at PS Gokalpuri. On the basis of rukka brought by Ct. Vijender, he registered FIR VIRENDER no.531/1998 under Section 365/34 IPC and proved the copy of KUMAR BANSAL the same as Ex.PW12/A. He sent the original rukka and copy of Digitally signed by VIRENDER KUMAR BANSAL the FIR to HC Ombir through Ct. Vijender. The testimony of the Date: 2024.01.10 17:34:27 +0530 witness has gone unchallenged and uncontroverted.
SC no.102/22 State Vs. Hakim Singh Page 20 of 3451. Ct. Rajender Singh was examined as PW13. He deposed that on 06.08.1998, he was posted at PS Dholna. He joined the investigation of this case with SI Ram Narayan Lal. The dead body of Rajesh @ Raju was recovered from bushes of Kikar. On the instruction of SI Ram Narayan Lal, he along with Ct. Om Prakash took the dead body to the mortuary, Etah, UP, where post mortem was conducted. Panchnama was also prepared by SI Ram Narayan Lal at the Patri, Hazara Nehar. Till the dead body remained in their possession, nobody tampered with the same.
52. During cross-examination by Ld. defence counsel, he stated that he joined investigation of the case at 4:00 am along with SI Ram Narayan Lal. They reached the place from where the dead body was recovered at 3:00 am, along with SO Devender Singh, Ct. Gajender Singh, Ct. Om Prakash, Ct. Rajender Singh. He along with Ct. Om Prakash took the dead body to mortuary at 3:00 am. They reached the spot by Mahindra Jeep. The dead body was taken to mortuary in a private jeep. The number of which he cannot tell. The mortuary was at a distance of about 34 km from the place of recovery of the dead body. They reached the mortuary at about 9:00 am.
53. Ct. Jai Pal Singh was examined as PW14. He deposed that on 06.08.1998, Mohar Singh came to PS and gave document to him i.e written complaint, on the basis of which FIR no.110/1998 was registered. Photocopy of the same is Ex.PW14/A. The attested copy of the document is Ex.PW14/B, which was VIRENDER prepared by HC Chaiter Pal Gautam. Reference was made in the KUMAR BANSAL GD no.4 at 2:30 am and the photocopy of the same is Digitally signed by VIRENDER KUMAR BANSAL Ex.PW14/C. Mohar Singh informed that he is driver of Tata Date: 2024.01.10 17:34:35 +0530 SC no.102/22 State Vs. Hakim Singh Page 21 of 34 Sumo no.UP-82B-1827 and had taken the said vehicle from Kasganj to Delhi with Lakhan Singh, Guddu and Pappu and three other persons. Investigation was marked to SO Devender Singh. The original copy of the FIR is Ex. PW14/D. Nothing material came in the cross-examination of the witness to discredit the witness.
54. Ct. Vijender Kumar was examined as PW15. He deposed that during the intervening night of 05/06.08.1998, he was posted at PP Karawal Nagar, PS Gokalpuri. HC Omvir handed over rukka to him for giving the same to Duty Officer, PS Gokalpuri for registration of the case. He took the rukka to PS, got the case registered and came to Police Post Karawal Nagar. He handed over the rukka and the copy of the FIR to SI Chander Bhan. Thereafter, he along with SI Chander Bhan Singh reached Karawal Nagar Chowk, where inquiries were made but no clue was found about Rajesh or any of the accused persons.
55. He deposed about arrest of accused Ranbir, Lakhan and Yuvraj on 11.11.1998, their disclosure statements and their further disclosure statements on 14.11.1998. I am not referring to same as their trial is already over and not relevant for deciding the present case.
56. During cross-examination by Ld. defence counsel, he stated that he had taken rukka at 11:45 PM on 05.08.1998 to PS Gokalpuri. He went to PS in TSR. He handed over carbon copy VIRENDER KUMAR of the FIR to SI Chander Bhan Singh at about 2:30 pm on BANSAL Digitally signed by 06.08.1998. Thereafter, he went to Karawal Nagar Circle VIRENDER KUMAR BANSAL Date: 2024.01.10 17:34:42 +0530 (Chowk) along with SI Chander Bhan Singh on feet.
57. Rest of the cross-examination of the witness is with respect SC no.102/22 State Vs. Hakim Singh Page 22 of 34 to arrest of other three accused persons and disclosure statements made by them, which is not relevant for deciding this case, hence, I am not referring to same.
58. Ct. Om Prakash was examined as PW16. He deposed that on 06.08.1998, he joined the investigation of case FIR No.148/1998 under Section 304 IPC. He along with Ct. Rajinder and SO Devinder Singh went to village Barkudar Pur, Hazara Nehar Patri. There they found the dead body of Rajesh @ Sawraju near Patri. They inspected the spot. Panchnama was prepared by SO Devinder Singh. On the instruction of SO Devinder Singh, he along with Ct. Rajender Singh took the dead body to mortuary for post mortem. The testimony of the witness has gone unchallenged and uncontroverted.
59. SI Devender Singh was examined as PW17. He deposed that on 06.08.1998, he was posted at PS Dholna, District Etah, UP. He deposed that on that day at about 2:30 am, Mohar Singh S/o Daryao Singh came to PS and produced before him an application on which case FIR No.148/1998 under Section 304 IPC was got registered. He recorded statement of Mohar Singh. Thereafter, he along with Mohar Singh went to Patri Hazara Nehar. He found dead body in the bushes near Hazara Nehar Patri. The dead body was identified by Mohar Singh and he came to know the name of the deceased as Swaraj @ Rajesh. Panchnama was filled in by SI R. N. Lal. He prepared documents VIRENDER and the dead body was sent to CMO, Etah, for post mortem KUMAR BANSAL through Ct. Om Prakash and Rajender Singh. He searched for Digitally signed by VIRENDER KUMAR BANSAL accused persons, but failed to find any clue. He took into Date: 2024.01.10 17:34:49 +0530 possession photocopy of DL of Mohar Singh. He prepared the SC no.102/22 State Vs. Hakim Singh Page 23 of 34 site plan Ex.PW17/A. He proved the copy of FIR Ex.PW14/D bearing his signature at point B. He took possession of Tata Sumo no.UP-82-1827 and deposited the same at Chowki Bilram vide DD no.32, copy of which is Ex.PW17/A. He proved case diary as Ex.PW17/B, the second case diary as Ex. PW17/C, his transfer report as Ex. PW17/D and letter of SSP as Ex. PW17/E.
60. During cross-examination by Ld. defence counsel, he stated that Mark 'Z' is the application given to him by Mohar Singh on the night of 06.08.1998. It was already written and signed by Mohar Singh. He cannot say if anybody accompanied him to the PS. He deposed that the owner of the vehicle came to the PS of his own after getting order from the court to release the vehicle, on which he released the vehicle. He did not record statement of the owner of the vehicle.
61. They reached the place, where dead body was found at about 4:00 am. The 'panchnama' was filled on the spot by SI R. N. Lal. He cannot say who had signed the panchnama, however, many villagers from the surrounding villages have reached there. They reached the place of recovery of dead body at about 7:00 am on 06.08.1998. They searched for the accused persons as their names and particulars were given by Mohar Singh, but none of them was found available. They did not come to Delhi to trace the accused persons. He denied the suggestion that the dead body was not recovered in his presence or that same was not recovered VIRENDER from the place as deposed by him. He denied the suggestion that KUMAR BANSAL the deceased was taken from Delhi by the police officer of UP as Digitally signed by VIRENDER KUMAR BANSAL he was wanted in case of kidnapping in FIR No.195/1998 Date: 2024.01.10 17:34:57 +0530 registered at PS Kasganj.
SC no.102/22 State Vs. Hakim Singh Page 24 of 3462. Ct. Gajender Singh was examined as PW19. On 06.08.1998, he was posted at PS Dholna. He deposed that on that day, he joined the investigation with SO Devender Singh and other staff and deposed about the recovery of dead body. Nothing material came on record to discredit the witness during cross- examination.
63. Ct. Digamber was examined as PW20. He was in the investigation of the case with SO Devender Singh and PW19 Ct. Gajender Singh. He deposed on the same lines.
64. Ct. Om Singh was examined as PW21. He deposed that on 31.05.1998, he was posted at PS Kasganj and was working as Writer. Narayan Lal came to the PS and lodged FIR No.126/1998 Crime Serial No.195/1998 about kidnapping of his daughter and case under Section 363/366 IPC was registered on complaint which was written by him. He proved the copy of the same as Ex.PW21/A.
65. Ms. Navedita Anil Sharma, the then M.T.C, Tis Hazari Courts, Delhi, who conducted the TIP of accused, was examined as PW22, but as same is not relevant for deciding this case, hence, I am not referring to her testimony.
66. After examining the prosecution witnesses and making efforts to summon the others witnesses, who could not be served despite best efforts, the prosecution evidence was closed.
67. Statement of accused was recorded under Section 313 Cr.P.C, wherein he denied the entire evidence and stated that he VIRENDER has been falsely implicated. He did not wish to lead evidence in KUMAR BANSAL defence. Thereafter, the case was fixed for final arguments. Digitally signed by VIRENDER KUMAR BANSAL
68. I have heard the Ld. Addl. P. P for the State, Ld. defence Date: 2024.01.10 17:35:07 +0530 SC no.102/22 State Vs. Hakim Singh Page 25 of 34 counsel for the accused and perused the record.
69. Learned Addl. P. P submitted that the present case is based upon circumstantial evidence. It is a case of last seen together based on the testimony of Mohar Singh examined as PW1 that accused herein along with other co-accused kidnapped the deceased Rajesh. There is recovery of the dead body from the place as pointed out by Mohar Singh PW1. Witness Rajender Singh examined as PW4 has also fully supported the prosecution case that it was the accused herein who along with other co- accused, who kidnapped Rajesh from Karawal Nagar Chowk and took him towards Johripur.
70. Learned Addl. P. P submitted that as there is a witness of last seen in the form of Rajender Singh PW4, then there is evidence of Mohar Singh PW1 on the basis of which FIR no.148/1998 under Section 304 IPC was registered at PS Dholna, coupled with the recovery of the dead body completes the chain. It is prayed that under the circumstances, as the prosecution has completed the chain and these circumstances point towards the guilt of the accused, hence, it is prayed that the accused be held guilty and convicted.
71. Learned defence counsel submitted that the onus was upon the prosecution to prove the guilt of the accused, which the prosecution has miserably failed. Mohar Singh PW1 has not supported the prosecution case. He has failed to identify Hakim Singh, who is accused herein, being also one of the accused VIRENDER KUMAR persons in Tata Sumo in which allegedly Rajesh was kidnapped. BANSAL Digitally signed by
72. Learned defence counsel submitted that so far as the VIRENDER KUMAR BANSAL Date: 2024.01.10 17:35:15 +0530 circumstance of last seen is concerned, there is no evidence as SC no.102/22 State Vs. Hakim Singh Page 26 of 34 Rajender Singh when examined as PW4 though stated in his examination-in-chief that Hakim Singh was also present in the Tata Sumo along with other accused persons, but during cross- examination, he stated that he has seen only Guddu and Pappu and no other person. This fact he has clarified when court question was put to him that he had seen only Guddu and Pappu and no other occupant in the Tata Sumo.
73. During re-examination by learned Public Prosecutor, the witness has stated that he had not seen Hakim Singh, but as there was a person, who was wearing same turban as accused is wearing, therefore, he has named him as accused. Learned counsel submitted that in view of these facts, it is clear that the prosecution has not been able to prove the circumstance of last seen. PW1 Mohar Singh has not supported the prosecution case meaning thereby that accused was not the person, who kidnapped Rajesh from Karawal Nagar. The dead body was recovered from the jurisdiction of PS Dholna, but there is no evidence that it was the accused herein, who has dumped the dead body at that place. The chain is not complete. It is prayed that the benefit of the same be given to the accused and he be acquitted.
74. After hearing the arguments and going through the record, I found that the prosecution case is based upon eye witness account and on circumstantial evidence. There are two witnesses of kidnapping i.e Mohar Singh and Rajender Singh. Mohar Singh VIRENDER KUMAR BANSAL has been examined as PW1 and Rajender Singh, who is real Digitally signed by VIRENDER KUMAR BANSAL brother of deceased Rajesh, who was kidnapped on 05.08.1998 at Date: 2024.01.10 17:35:22 +0530 about 12:30 pm from Karawal Nagar Chowk, has been examined as PW4.
SC no.102/22 State Vs. Hakim Singh Page 27 of 3475. PW1 has supported the prosecution case to the extent that Rajesh was kidnapped from Delhi in Tata Sumo bearing no. no.UP-82B-1827 by some persons, who had hired his Tata Sumo. But according to him, Hakim Singh, the present accused, was not there in that Tata Sumo. He was confronted with his statement Ex.PW3/A, but he did not support the same and stated that he has not made any such statement to the police that accused Hakim Singh was also there along with other accused persons, who kidnapped Rajesh from Delhi, forcibly put him in the dicky of Tata Sumo car and took him towards Kasganj, UP.
76. The other witness is Rajender Singh, who is the real brother of the deceased. He deposed that his brother Rajesh was married with Rachna, daughter of Narayan Lal in Court one month prior to the incident. After the marriage, Rajesh and Rachna started living with him. He supported the prosecution case that on 05.08.1998 at about 12:30 pm, he was present at the Chowk along with his TSR. He noticed that his brother Rajesh had gone in his TSR towards Karawal Nagar. In the meantime, he noticed Rachna's brothers namely Pappu and Guddu along with 2-3 other persons including accused Hakim Singh in a Tata Sumo going towards Karawal Nagar. Hakim Singh is the maternal grandfather of Racha and was not happy with the marriage of Rachna with Rajesh. On seeing Tata Sumo, Rajender Singh got suspicious and he followed that Tata Sumo towards Karawal Nagar Chowk in which side Rajesh had gone. He saw that VIRENDER KUMAR accused persons had forcibly put his brother Rajesh in that Tata BANSAL Digitally signed by Sumo and thereafter they fled away in the said Tata Sumo VIRENDER KUMAR BANSAL Date: 2024.01.10 17:35:30 +0530 towards Johripur. He called the police at 100 number and went to SC no.102/22 State Vs. Hakim Singh Page 28 of 34 PS, but his statement was not recorded. Thereafter, he went to Police Post Karawal Nagar, where his report was recorded, which is Ex.PW1/A. Police thereafter sent him and asked to inform the police, if he get any information about his brother and the vehicle. At about, 7:00 am, a telephone call was received by his relative that his brother had been killed. He informed Police Post, Karawal Nagar. Thereafter, he along with police went to Kasganj, UP, where he came to know that dead body of his brother had already been recovered. Post mortem was conducted and after the post mortem, he received the dead body of his brother and returned to Delhi.
77. During cross-examination by learned defence counsel, he stated that in his statement to the police, he only named two persons and he has not named any other person. He stated that he does not know, who were the other occupants of the Tata Sumo except Pappu and Guddu, whom he has named in his complaint to the police. A court question was put to him as to how he named Hakim Singh that he was also there in that Tata Sumo, when his brother was kidnapped, when he had only seen Pappu and Guddu and was not knowing the other occupants and he answered that:-
" I had not seen Hakim Singh sitting in that Tata Sumo when my brother was kidnapped but I named him before the court as earlier also he had come to me and threatened me."
78. Learned Addl. P. P requested that he be allowed to re- VIRENDER KUMAR examine the witness, which was allowed, wherein he deposed as BANSAL follows: Digitally signed by VIRENDER KUMAR BANSAL "I have not seen the faces of the other persons who were Date: 2024.01.10 17:35:40 +0530 accompanying Pappu and Guddu, however, there was a person SC no.102/22 State Vs. Hakim Singh Page 29 of 34 wearing cap similar to the cap which Hakim Singh usually wear and therefore, I said that Hakim Singh was also accompanying Guddu and Pappu at the time when my brother was kidnapped. It is wrong to suggest that I am deposing falsely and deliberately not telling the truth about the involvement of Hakim Singh in the commission of the crime and not identifying him."
79. There is no other witness to the offence of kidnapping. The onus was upon the prosecution to prove and establish that it was accused, who kidnapped Rajesh from Karawal Nagar on 05.08.1998 along with his co-accused, which the prosecution has failed to prove and establish.
80. The other offences are of murder and destruction of the evidence. So far as the offence of murder is concerned, there is no direct evidence available in this regard. It is a case of circumstantial evidence. It is settled law as held in the case of Sharad Birdichand Sarda Vs. State of Maharastra (1984) 4 SCC 116 that in a case based on circumstantial evidence, all the circumstances have to be proved and established. Each circumstance so proved and established shall point towards the guilt of the accused. Each circumstance proved and established shall be inconsistent with any hypothesis of innocence of the accused and the circumstances so proved and established shall form complete chain and points towards towards the guilt of the accused.
81. The Supreme Court in the case of Hanumant Govind Nargundkar and Anr. v State of Madhya Pradesh, AIR 1952 VIRENDER KUMAR BANSAL SC 343), has held as follows:
Digitally signed"It is well to remember that in cases where the evidence is of a by VIRENDER KUMAR BANSAL circumstantial nature, the circumstances from which the Date: 2024.01.10 17:35:47 +0530 conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be SC no.102/22 State Vs. Hakim Singh Page 30 of 34 consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
82. In the present case, the only circumstance which the prosecution intend to establish and prove against the accused is the circumstance of last seen. The Supreme Court in the case of Reena Hazarika v State of Assam, (2019) 13 SCC 289 "8. The essentials of circumstantial evidence stand well estab- lished by precedents and we do not consider it necessary to re- iterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prose- cution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and in- escapable conclusion of the accused being the assailant, incon- sistent or incompatible with the possibility of any other hypoth- esis compatible with the innocence of the accused. Mere invo- cation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act,1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possi- bility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given."
83. In State of U P v Satish, (2005) 3 SCC 114 the Apex Court has noted as follows:
"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so VIRENDER KUMAR small that possibility of any person other than the accused be- BANSAL ing the author of the crime becomes impossible. It would be Digitally signed by difficult in some cases to positively establish that the deceased VIRENDER KUMAR BANSAL was last seen with the accused when there is a long gap and Date: 2024.01.10 17:35:54 +0530 possibility of other persons coming in between exists. In the SC no.102/22 State Vs. Hakim Singh Page 31 of 34 absence of any other positive evidence to conclude that the ac- cused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in ad- dition to the evidence of PW-2."
84. In Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 the Supreme Court has noted as follows :
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corrobora- tion."
85. In the present case, the prosecution intends to prove circumstances of the last seen by examining Mohar Singh and Rajender Singh, but both these witnesses have not supported the case of the prosecution in this regard. Mohar Singh has not supported the prosecution case at all on the point of last seen and so far as the other witness Rajender Singh is concerned though he stated in his examination-in-chief that accused Hakim Singh was there in Tata Sumo in which his brother Rajesh was kidnapped, but during cross-examination, he stated that he had seen only Guddu and Pappu and has not seen any other person and he was not knowing any other accused, who were there in that Tata Sumo. The court question was put to him as to how he named Hakim Singh, when he was not knowing him and has also not seen his face, to which he replied as under:
" I had not seen Hakim Singh sitting in that Tata Sumo when my VIRENDER KUMAR brother was kidnapped but I named him before the court as BANSAL earlier also he had come to me and threatened me." Digitally signed by VIRENDER KUMAR BANSAL Date: 2024.01.10 17:36:01 +0530
86. In view of this testimony of Rajender Singh, it is clear that SC no.102/22 State Vs. Hakim Singh Page 32 of 34 he is also not able to prove and establish that his brother Rajesh, who was ultimately killed was last seen in the company of Hakim Singh. The onus was upon the prosecution to prove and establish, the circumstance of last seen which the prosecution has miserably failed.
87. There is no recovery at the instance of the accused Hakim Singh. The dead body has also not been recovered at his instance, hence, the chain of circumstances is not established. The kidnapping had taken place from Delhi, but the recovery of the dead body has been effected from a distant place in UP i.e Kasganj. It clearly shows that there is no proximity of time and space from the spot of kidnapping, last seen to the recovery of the dead body, hence, the circumstance of last seen has not been proved and established. Keeping in view the above discussion, in my opinion, the onus which was upon the prosecution has not been discharged.
88. The only evidence with respect to the destruction of the evidence i.e. throwing the dead body at the bank of Hazara Canal near Kasganj is of Mohar Singh examined as PW1. He though stated that the dead body was thrown there, but he does not say that Hakim Singh was also among those persons, who had thrown the dead body at the banks of Hazra Canal. There is no other witness or circumstantial evidence to establish that the dead body was thrown by Hakim Singh at that place. In view of the above position of the evidence, in my opinion, there is no Digitally signed by evidence on record that accused Hakim Singh played any role in VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
the destruction of any evidence i.e throwing the dead body or 2024.01.10 17:36:09 +0530 removing any evidence from Tata Sumo. Infact, there is no SC no.102/22 State Vs. Hakim Singh Page 33 of 34 incriminating evidence recovered from the Tata Sumo about kidnapping or death in the Tata Sumo. It was for the prosecution to prove that it was the accused, who made evidence of offence to disappear to screen himself and the other accused/offenders from legal punishment. The onus was on the prosecution to prove the fact that accused made some evidence of offence to disappear which the prosecution has miserably failed.
89. So far as the offence punishable under Section 174-A IPC is concerned, this offence came into force w.e.f 23.06.2006. It being a penal provision cannot be from retrospective effect. The application of this provision is prospective i.e. from 23.06.2006. In this case, the accused Hakim Singh was declared Proclaimed Offender on 12.03.1999. At that time as Section 174-A IPC was not in force, hence, in my opinion, he cannot be held guilty and convicted for the offence punishable under section 174-A IPC.
90. Keeping in view the above discussion, as the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt, hence, the accused is acquitted. He is directed to furnish bail bond in the sum of Rs.25,000/- with one surety in the like amount within seven days from today. Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL Date:
BANSAL 2024.01.10
Announced in the open (V. K. BANSAL) 17:36:20 +0530
court today i.e on 10th Principal District & Sessions Judge,
Jaunary, 2024 North East, Karkardooma Courts, Delhi.
SC no.102/22 State Vs. Hakim Singh Page 34 of 34