Delhi High Court
Prem Singh @ Fauzi vs State Of Delhi on 22 May, 2007
Author: R.S. Sodhi
Bench: R.S. Sodhi, H.R. Malhotra
JUDGMENT R.S. Sodhi, J.
1. Criminal Appeal Nos.391 of 2005 and 774 of 2005 seek to challenge a common judgment delivered by Additional Sessions Judge, Delhi in Sessions Case No. 9 of 2001 arising out of F.I.R. No. 126 of 1998, registered at Police Station Alipur, whereby the learned judge vide his judgment and order dated 29.03.2005 has held the appellants, namely, Prem Singh @ Fauzi and Samson @ Raju, guilty for an offence under Section 302/34 IPC. Further by his order dated 31.03.2005, has awarded sentence of life imprisonment together with a fine of Rs. 5,000/- each and in default of payment of fine, to undergo Rigorous Imprisonment for a period of one year to each of the appellants under Section 302/34 IPC. However, the appellants were awarded the benefit of Section 428 of Code of Criminal Procedure.
2. Brief facts of the case as have been noted by the learned Additional Sessions Judge in the judgment under challenge are as under:
...that on 26.4.98 at about 8.40 PM, the duty officer at P.S. Alipur received information from the PCR that one maruti car had thrown a dead body near Community Centre, Village Tigipur. SI Vijender Rana and Const. Balbir and then, Insp. Sajjan Singh with staff reached at the Community Centre, Village Tigipur and found that on the left side of the road, there was grass and in that grass, the body of a young person, aged about 20/25 years was lying in naked condition. There were ligature marks around the neck and head was found shaved recently. The police did the necessary investigation and then, the body was sent to the mortuary, where the postmortem was conducted. The blood sample and scalp hair of the deceased were kept in sealed parcels and were delivered to the police. Later on, the body was identified as that of Agastya, son of Shiveshwar Jha, resident of Village Manik Chak, Distt. Sitamarhi, Bihar.
The case FIR No. 192/97, under Section 302, 201 & 120-B IPC was registered at P.S. Bara Hindu Rao. Insp. Jaan Mohd. and other police officials investigated that case and arrested accused Prem Singh @ Fauzi and Samson @ Raju. They made disclosure about their involvement in the crime of the present case. They got recovered clothes, rope, razor and also the car used for transporting the body and throwing the same in the area of P.S. Alipur. the investigating agency found that one lady, namely, Sunita used to live with accused Prem Singh @ Fauzi as his wife. Whenever she tried to slip away from the hands of accused Prem Singh, the accused took action and even lodged the report of theft against her. Accused Prem Singh @ Fauzi had suspicion that Shadab was having relations with Sunita. Shadab and Arshad Zafri were the persons, who were murdered in regard to case FIR No. 192/97, P.S. Bara Hindu Rao.
Sunita was found missing from the house of accused Prem Singh on 13.2.98 and he lodged the missing report in P.S. Mukherjee Nagar. The accused suspected the Ajay, who was tenant in the house of the accused, had taken away Sunita. According to the allegations, accused Prem Singh @ Fauzi with the help of co-accused Raju @ Samson killed Ajay. It is also the case of the prosecution that Ajay had told accused Prem Singh @ Fauzi that Abhey, brother of Aditya and Agastya had eloped with Sunita. Ajay was killed in the night intervening 15/16.4.98 and his body was found lying in Village Khera. The case FIR No. 271/98, under Section 302/201 IPC was registered at P.S. Sameypur, Badli in that regard.
Agastya and his brother Aditya were with the two accused on 25.4.98 at about 11.30 PM. They were taken to the dairy of accused Prem Singh @ Fauzi at Village Jharoda. Rakesh, Bhim and other persons helped the two accused in interrogating both the brothers. Aditya and Agastya were killed by way of strangulation. Their heads were shaved and the clothes were removed from the body. Thereafter, the body of Agastya was taken in the car No. DL 8C B-4397 of accused Prem Singh in the evening of 26.4.98 and was thrown in Village Tigipur, whereas the body of Aditya was thrown in the area of P.S. Timar Pur. The case FIR No. 204/98, under Section 302/201/34 IPC was registered at P.S. Timar Pur in regard to the murder of Aditya.
3. The prosecution in order to establish their case examined as many as 38 witnesses. The case, according to the learned trial court is based on circumstantial evidence. The circumstances which were required to be proved have been enumerated as follows:
i) Deceased Agastya and his brothers Aditya and Abhey @ Guddu were residing in House No. 80, Village Dhaka and that accused Prem Singh @ Fauzi was residing in House No. 81, Village Dhaka, Delhi;
ii) Agastya and his brother Aditya were seen last time in the company of accused Prem Singh and Samson and they were not seen thereafter;
iii) Recovery of the body of Agastya and the identification of the body;
iv) White maruti car was spotted near Community Centre, Tigipur on 26.4.98 and the seizure of the maruti car of accused Prem Singh;
v) No delay in recording of the FIR;
vi) Postmortem report of deceased Agastya;
vii) Smt. Roshni is wife of accused Prem Singh @ Fauzi whereas Sunita @ Shamim was a keep of Prem Singh and accused Prem Singh was possessive of Sunita @ Shamim;
viii) In the year 1998, Sunita @ Shamim eloped with Abhey @ Guddu, brother of deceased Agastya;
ix) Motive for the crime;
x) Arrest of accused Prem Singh and his disclosure statement;
xi) Arrest of accused Raju @ Samson and his disclosure statement;
xii) Recovery of the incriminating articles at the instance of accused Prem Singh @ Fauzi;
xiii) Recovery of the incriminating articles at the instance of accused Raju @ Samson; and
xiv) Identification of the recovered clothes of deceased Agastya.
4. Learned Counsel for the appellants have argued that out of the 14 circumstances relied upon by the trial court, the relevant one's are last seen, the disclosure statement made by the accused and the recoveries pursuant thereto. Learned Counsel contends that PW-28, Pawan Kumar, who has deposed to, deceased Agastya and Aditya being in the company of the accused persons on 25.4.1999 at 11:30 p.m., cannot be believed. This witness, according to the counsel, has come into the picture, for the first time, 72 days after the incident, namely, his statement was recorded on 7.7.1998 and cannot be treated as a reliable witness. Learned Counsel also contends that the so-called disclosure statement is alleged to have been made in a case arising out of F.I.R. No. 192 of 1997, Police Station Bara Hindu Rao under Section 302/201/120-B IPC. In that case, the appellants were acquitted and the so-called statement was made on 29.4.1998 whereas recoveries were effected on 3.5.1998. He contends that a statement of the accused made in another case cannot be used as a disclosure statement in the present case, when the appellant was arrested in the present case on 8.5.1998. He also contends that the recovery itself is doubtful.
5. Learned Counsel for the State, on the other hand, contends that PW-28, Pawan Kumar, is a reliable witness and has also identified the clothes of the deceased recovered at the instance of the accused pursuant to a disclosure statement made soon after the incident, even though, made in a different case. Learned Counsel contends that the chain of circumstances is complete to bring about the conviction of the accused under Section 302/34 IPC.
6. We have heard counsel for the parties and with their assistance have exhaustively been taken through the record of this case. We find from the judgment under challenge that the trial court itself while dealing with the circumstance No. 4, namely, the use of the vehicle in the commission of the crime, has held it to be not proved. We also find that the trial court while dealing with the last seen evidence has placed implicit reliance on PW-28, Pawan Kumar, to establish that the accused and the deceased were last seen together in the night of 25.4.1998 at about 11:30 p.m. The trial court also placed reliance on the recoveries effected pursuant to the disclosure made by the accused and therefore, held the appellants guilty for the offence under Section 302 IPC.
7. On a careful analysis of the material placed before us, we find PW-28, Pawan Kumar, states that the deceased Agastya and Aditya were known to him and were his nephews. In 1998, he resided in Wazirpur Village, Ashok Vihar, Delhi. On 25.4.1998, the witness had gone to visit Agasthya and Aditya at about 11:30 p.m. at Village Dhaka where he saw Agasthya standing with accused Raju in the street. He enquired of his well being and went ahead. Thereafter, he saw Aditya coming with accused Prem Singh. The witness told Aditya that he had come to visit him on which Aditya informed him that it would not be possible to meet on that date and that the witness should come some other time. Both Aditya and Agastya left the spot in white Maruti car along with Prem Singh and Raju. The witness goes on to say that on 29.4.1998, he came to know that both Agastya and Aditya had been murdered. This information was given to him at the mortuary by one Rakesh. In the mortuary, he identified the dead bodies of Agastya and Aditya. On 27.6.1998, he identified the clothes of both the deceased Agastya and Aditya in the court of learned Metropolitan Magistrate. He testifies to the seizure memo taking into possession Exhibit PW 26/C and PW 26/A. In cross-examination, this witness states that on 7.7.1998, he visited Tis Hazari Court and saw both the accused persons in custody of Inspector Sandeep Bayala. He identified the accused persons in the court. He admits to the suggestion that he identified the persons on the asking of Inspector Bayala and that the police had recorded his statement when he had identified the accused persons on 7.7.1998.
8. From an analysis of the deposition of PW-28, Pawan Kumar, what emerges is that the witness, for the first time, narrates the fact that he saw the deceased and the accused together on 25.4.1998, to the police on 7.7.1998. In other words, prior to 7.7.1998, this witness had not named the accused persons nor had stated that they were last seen with the deceased on 25.4.1998. We repeatedly made inquiries from the learned Public Prosecutor to be sure on this fact of the matter. The learned Public Prosecutor conceded that it was only on 7.7.1998 that this witness informed the police that the deceased were seen with the accused on 25.4.1998. It is rather strange that this witness, who claims to have identified the dead bodies of Agastya and Aditya on 29.4.1998 in the mortuary, did not state this fact of the deceased being in the company of the accused on 25.4.1998. This strange recollection on 7.7.1998, to say the least, is not credible and does not inspire confidence. PW-28, Pawan Kumar, is allegedly the only witness of this last seen circumstance. Having found PW-28 not to be a reliable witness, the circumstance of last seen remains unproved.
9. Coming to the disclosure statement made by the accused persons allegedly on 29.4.1998 in case arising out of F.I.R. No. 192 of 1997, Police Station Bara Hindu Rao, would certainly be admissible in the present case and it cannot be said that such a statement cannot be used since the accused were arrested in this case on 8.5.1998 and their disclosure statement was not made while they were in custody in this case. A reading of Section 27 of Evidence Act makes it clear that there is no ban against admissibility of statement of the accused made to a policeman, if a fact is discovered in consequence of information received from an accused of an offence in custody when he supplies the information. The fact so discovered should have been deposed to by a witness. If these conditions are satisfied that part of the information given by the accused which leads to discovery becomes admissible in evidence. It is immaterial whether the information was supplied in the same case or a connected case.
10. In the present case, we find that the statement of the accused relied upon as disclosure was recorded on 29.4.1998. The recoveries pursuant to this disclosure were effected on 3.5.1998. The unexplained long delay in effecting recoveries makes the recoveries a suspect. Foul play cannot be ruled out. We also find from the evidence on record that the date in the recovery memos is tampered with, in other words, 3.5.1998 is made to appear as 1.5.1998. Witnesses throughout depose to recoveries having been effected on 1.5.1998 whereas the document speaks otherwise. A certified copy of the recovery memos was obtained by the accused which did not have the overwriting, however, the original, when inspected by the court, was found to have the interpolation which gives rise to a deduction that the original was tampered with after the certified copy had been obtained by the accused person. The so-called initialing of the cut by the Investigating Officer cannot take the case any further. Added to this is the fact that even though four days had elapsed from the so-called disclosure statement, no public witness was associated to effect the recoveries.
11. Another aspect to which our attention had been drawn is that PW-37, Inspector Jan Mohd., in his statement in court states that both the accused persons got the clothes recovered which indicates that it was a joint recovery. Even otherwise, there is no evidence on record to show that the clothes alleged to have been recovered were worn by the deceased persons, when they were allegedly last seen by PW-28, Pawan Kumar. Another attack to the disclosure statement itself is the contradictions in the statements of PW-17, SI Dinesh Kumar, and PW-37, Inspector Jan Mohd., in respect of the place where the disclosure was recorded. PW-17, SI Dinesh Kumar, says it was at the office of the AATS and not at Police Station Bara Hindu Rao whereas PW-37, Inspector Jan Mohd., says that the same was recorded in the Police Station Bara Hindu Rao and not at AATS.
12. PW-34, Inspector K.G. Tyagi, deposed that the disclosure was made at 5 p.m. on 29.4.1998 whereas PW-37, Inspector Jan Mohd., says that it was made at 2 p.m. Surely, with all these discrepancies shrouding the discoveries, make this circumstance not proved beyond doubt.
13. Out of 14 circumstances which have been enumerated by the trial court, if the circumstances relating to last seen as also the making of the disclosure statements and recovery of the incriminating articles is taken away, the chain of circumstance stands shattered. Proved links cannot sustain a conviction under Section 302 IPC. We need hardly proceed further with this case and belabor on each circumstance individually suffice it to say that with the essential links missing in the chain of circumstances, the case of the prosecution fails.
14. In the result, we set aside the judgment and order of conviction dated 29.3.2005 as also the order on sentence dated 31.3.2005. We acquit the appellants of the charges framed against them and allow Criminal Appeal Nos.391 of 2005 and 774 of 2005. The appellants, namely, Prem Singh @ Fauzi and Samson @ Raju, who are in custody, shall be released forthwith unless wanted in any other case.