Sanjiv vs State Of Delhi [Along With ...
2005 Latest Caselaw 66 Del

JUDGMENT

J.P. Singh, J.

1. These two Criminal Appeals bearing Nos. 400/2000 titled "Sanjiv v. State" and 713/2002 titled "Sanjay v. State", have been preferred against the judgment and order on sentence dated 9.4.2002, convicting both the appellants under Section 302/34 IPC and sentencing them to undergo imprisonment for life and also to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo RI for three months each.

2. Briefly the facts of the case are that on 20.2.1999 at 12.27 P.M. Ct. Prabha gave information from PCR to the Wireless Operator, regarding a dead body lying in a factory in house No. 125, near village Kirari, Delhi, which information was conveyed to the Police Station on intercom and was recorded as DD No. 46-B. Copy of the DD was entrusted to SI C.L. Meena, who along with Ct. Umesh left for the spot. The factory comprised three rooms and a veranda. In the Eastern corner room dead body of a young male was lying. On enquiry the dead body was found to be of Roshan Lal, an employee of the factory, who used to sleep in the factory. His head and neck were having injuries. Beneath the head there was a blood stained towel. The wall was also having blood stains. In a corner of the room there was an open suitcase. Clothes lying in it were ruffled and disturbed. Additional SHO Insp. Sushil Kumar also reached the place. SI prepared the "rukka" and got a case registered under section 302, IPC through Ct. Umesh.

3. The SI called the senior officers, the crime team and the photographer and handed over the investigation to the Addl. SHO. During the course of investigation the Addl. SHO inspected the spot, prepared the site plan, took into possession the incriminating articles, got the dead body photographed, completed the inquest proceedings and after the post-mortem was conducted the dead body was handed over to the relations of the deceased. During the course of further investigation on 26.2.1999 appellant Sanjiv was arrested and on 24.3.1999 appellant Sanjay was arrested. Their disclosure statements were recorded (Ex.PW-9/B, Ex.PW-18/D respectively). Jacket of the deceased was found with the appellant Sanjiv. Wrist watch of the deceased was got recovered by appellant Sanjay. Both the appellants had disclosed that the hammer (one of the weapons of offence) was concealed by them under a heap of bricks. The hammer was got recovered. The post-mortem report as also the opinion regarding the use of the weapon of offence (hammer) were obtained, exhibits of the case were got sent to CFSL, TIP regarding the jacket and the wrist watch was got conducted and after completing the investigation in all respects, the case was sent up for trial. The court framed charge under Section 302/34 IPC against the appellants. They pleaded not guilty and claimed trial. The prosecution examined 24 witnesses.

4. PW-4 Ms. Durga Rajput is sister of the deceased. PW-5 Babu Lal is father of the deceased. PW-6 Uday Raj is the younger brother of brother-in-law (husband of sister) of the deceased. PW-8 Radhey Shyam brother-in-law (husband of the sister) of the deceased is the proprietor of the factory. PW-9 Babu Ram is the brother of the deceased. PW-13 Ram Singh is an employee of the factory. PW-14 Rajinder Singh is brother-in-law (Saala of PW-6 Uday Raj).

5. Out of these public persons PW-6 Uday Raj, PW-13 Ram Singh & PW-14 Rajinder Singh as also the appellant Sanjay were employees of the factory, while PW-8 Radhey Shyam is the proprietor of the factory. PW-3 Dr. Ashok Jaiswal conducted the post-mortem. PW-15 Sh. Harish Dudani is the M.M. in whose presence the wrist watch of the deceased was identified. PW-1 Ct. Umesh Kumar, PW-7 Ct. Rajbir Singh, PW-17 Ct. Ms. Prabha, PW-18 Ct. Pawan Kumar, PW-20 Ct. Miraz Alam, PW-22 SI Sanjay Singh are the police officials who participated in investigation at various stages. PW-21 SI C.L. Meena partly investigated the case and PW-24 Insp. Sushil Kumar was then handed over the investigation. He completed the investigation. DW-1 is HC Ram Avtar, DW-2 is Smt. Longshree, mother-in-law of appellant Sanjiv and DW-3 is HC Balwant Singh.

6. We have heard Sh. Rajinder Kumar, Advocate, learned amices Curiae for appellant Sanjiv and Sh. Rajesh Mahajan, Advocate, learned amices Curiae for appellant Sanjay and Sh. Ravinder Chadha, learned Additional Public Prosecutor for the state and have gone through the record.

7. On the first contention raised by learned counsel for the appellant Sanjiv that he was not an employee of the factory and had no business to go there, we have the statements of PWs.6, 8, 13 & 14, who have unequivocally deposed in the court that appellant Sanjiv was a cousin of Roshan Lal (deceased), who used to come to the factory off and on and on the fateful night also he had come there at about 8.00 P.M., when all the above said witnesses were present. On some issue there was heated exchange of words between the appellant Sanjiv and Roshan Lal on which the appellant Sanjiv was told by Roshan Lal to leave the factory. However, appellant Sanjiv was supported by other appellant Sanjay in that quarrel. On intervention of the above said witnesses the matter was pacified, after which all others left except both the appellants and Roshan Lal (deceased). Therefore, in our view, there was no probability of appellant Sanjiv not visiting the factory. We cannot write off the statements of all the four witnesses who have no enmity with appellant Sanjiv and have no interest whatsoever to implicate him if he is innocent. Therefore, we are convinced that the appellant Sanjiv was present at the spot, at the time of altercation between him and the appellant Sanjay on the one side, and Roshan Lal (deceased) on the other side.

8. Second contention is that because appellant Sanjiv had gone to the house of his mother-in-law in Village Fazalpur, PS Pahasu, Tehsil Shikarpur, Distt. Bulandshahar, UP for performing the engagement ceremony of his sister-in-law (Saali) which was fixed for 21.2.1999, there was no possibility of his committing murder on 19.2.1999 at Delhi because he could not be present at both the places at the same time.

9. As we have already observed that he was present in the factory at about 8.00 P.M. on 19.02.1999; there was an altercation, which was pacified and while others left he, co-accused Sanjay and Roshan Lal remained in the factory. PW-6 Uday Raj who was also an employee of factory and was living nearby in the same building had seen both the appellants coming out of the factory and passing from the street at about 11.00 P.M. and on his inquiry they told him that they were to catch the train. Therefore, rather the possibility of the appellant going (absconding) to Bulandshahar, UP after committing the murder cannot be ruled out. However, his presence in the house of his in-laws at Bulandshahar for attending the engagement ceremony of his sister-in-law (saali) on 21.2.1999 may be true and he might have participated in the ceremony as stated by his mother-in-law DW Smt.Longshree but the crucial time is between 8.00 to 11.00 P.M. on the night between 18.2.1999 and 19.2.1999 and not 21.2.1999. The normal time for traveling between Delhi to Pahasu in Distt. Bulandshahar, UP is three hours and even if he reached there on the night between 19th and 20th, that will be immaterial. According to the established law as and when an accused takes even a belated plea of alibi, as in this case because no such suggestion was given to the public witnesses on this aspect, then the accused takes upon himself the burden of proving his presence at a different place and to establish beyond reasonable doubt that he could not be present at the place of occurrence at the relevant time. We may refer to the cases titled "State of Haryana v. Sher Singh" , "State of UP v. Sugar Singh" AIR 1978 HC 1991 & "Doodh Nath Pandey v. State of UP" , on this point. The ratio of the said cases is that the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of occurrence by reason of his presence at another place, the plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.

10. Another case titled "Dhananjoy Chatterjee @ Dhana v. State of West Bengal" reported in 1994 SCC (Crl) 358 is also on the aspect of alibi. It was a case of rape by a security guard who absconded after the occurrence and presented a plea of alibi.

"The Supreme Court held that appellant had offered no explanation of his disappearance after the occurrence for about three days and instead he came forward with a plea of alibi that he had gone to see a movie and after returning he collected his belongings, purchased some fruits and left for his native village to participate in the sacred thread ceremony of his brother. Supreme Court held that it was well settled that a plea of alibi if raised by an accused is required to be proved by him by cogent and satisfactory evidence so as to completely exclude the possibility of the presence of the accused at the place of occurrence at the relevant time. The belated and vague plea of alibi, which was not put to the witnesses during their cross-examination, is an after-thought and a plea of despair. The abscondance of appellant was found to be a material circumstance which was satisfactorily and conclusively established by the prosecution against him."

11. Considering the facts and the law on the point of alibi and the consistent testimony of four witnesses (PW-6,8,13 & 14), we are of the view that the plea of alibi is an afterthought and false and in fact he had absconded after commission of the offence.

12. Then it is argued by the learned counsel for the appellant Sanjiv that the statement of Smt. Longshree DW-2 mother-in-law of the appellant was not given credence that appellant Sanjiv was apprehended by the police on 22.2.1999 at UP. It is emphasized that the police official witnesses were not trustworthy because they had apprehended the appellant Sanjiv in UP and showed his arrest in Delhi. It has come on record that the appellant Sanjiv was apprehended from his in-laws place on 22.2.1999. He was brought to Delhi and his arrest was shown in Delhi on 26.2.1999, the learned trial judge has dealt with this aspect to some extent. The plea of the learned counsel for the appellant is that because the police had manipulated the arrest of the appellant in such a belatent manner and kept him illegally confined in Delhi for three-four days, the entire case should be thrown out on this ground alone. We do not agree to this argument, because some police officials, as is common knowledge, commit willingly or unwillingly many mistakes during the investigation. They violate the rules of investigation. They also indulge in corrupt practices. They also leave so-called weaknesses in the cases according to their wisdom, for ulterior motives and very often present a case mixed with falsehood and truth. In other words, they add to the chaff in order to confuse the courts. At times they assist the criminals by committing technical and factual mistakes. We think that we should not walk into the trap of those unscrupulous police officials who are hand-in-glove with the criminals. The Supreme Court of India has held time and again that if we do so the society will be victim and the criminals and the bad element in the police will have the last laugh.

13. In the case titled "State of West Bengal v. Mir Mohammad Omar and Ors." , there were some lapses in the investigation. Supreme Court has opined as under:

"?.If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill equipped machinery they have to cope with and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities, the police force have to confront with while conducting investigation in almost every case?."

14. The case titled "Karnel Singh v. State of M.P." was also a case of defective investigation and the Supreme Court held as under :

"?.In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective?."

15. We, therefore, have to carefully separate the chaff from the grain. In this case the statements of the PWs 6,13 & 14, who were all employees of the factory and who have consistently stated that appellant Sanjiv had come to the factory, had an altercation with Roshan Lal (deceased) and then both the appellants threatened Roshan Lal. However, the matter was pacified and all others left leaving behind the appellants and Roshan Lal. The next morning Roshan Lal was found brutally murdered. Because the statements of PWs are unimpeachable, the lapses on the part of the police will not come to the help of the appellants.

16. The next contention raised by the learned counsel for both the appellants is that the witnesses are related with each other and are interested witnesses, therefore, they should not be relied upon. In our view, this contention has to be rejected straightaway. The witnesses though related to each other are employees of the same factory. The proprietor of the factory has his office nearby. He was expected to supervise the work and there is nothing unusual and unnatural if he was present at the closing time of the factory at about 8.00 P.M. The relatives of the deceased or public witness had no animus against any of the appellants. PW-6 & PW-14 relatives of the proprietor have not doubted or blamed the proprietor rather they have supported the prosecution version. The learned counsel have submitted that the wife of the proprietor has now deserted him and has remarried and similarly the father-in-law of the proprietor has also deposed that he does not now have any relation with the proprietor. But at the same time they did not say any word against the proprietor. Therefore, the argument that the witnesses being related to each other, should not be believed, in our view, carries no weight. Minor contradictions in the statements of truthful witnesses are natural.

17. As regards accused Sanjay, in addition to the common points raised by both the learned counsel, it is argued that the learned trial judge has not gone deep into the real story of the occurrence and has based the judgment on conjectures and unnatural testimonies of PWs. We find that it is no so.

18. PWs 6, 8, 13 & 14 have categorically stated that appellant Sanjay was an employee of the factory. Sanjay, PW Rajinder and Roshan Lal (deceased) used to sleep in the factory and on the fateful night appellant Sanjiv had come, who earlier also used to come to meet his cousin Roshan Lal. On that day there was an altercation in which appellant Sanjay sided with appellant Sanjiv and they had rather threatened to kill Roshan Lal. All the said witnesses intervened and the matter was pacified. They all left leaving behind appellants and Roshan Lal (deceased). Rajinder who used to sleep in the factory returned at about 10.00 P.M. but the factory door was closed from inside and despite his calling out there was no response. This means that people were inside the factory but were not opening the door. Since the factory door was not being opened, Rajinder went to his brother-in-law ( PW Uday Raj's room) in the same building and slept there. Since the building is the same and the factory premises and the room of Uday Raj could not be far away PW Uday Raj got up at about 11.00 P.M. on hearing some noise and saw both the appellants coming out of the factory on the street. He enquired from them as to where they were going. They replied that they were going to catch the train. There is bound to be noise and commotion when a young boy is being attacked with weapons. There is no reason to disbelieve the testimony of PW Uday Raj as also PW Rajinder because they have no motive to implicate innocent persons. Therefore, in our view, it stands established that Roshan Lal was last seen alive with both the appellants in the factory and thereafter the factory door was found closed from inside. Both the appellants were seen coming out of the factory at 11.00 P.M. and in the morning gruesomely injured and blood stained dead body of the Roshan Lal was found in the factory. We are, therefore, of the opinion that the testimonies of the PWs are natural and trustworthy specially because they have no animosity towards any of the appellants.

19. The next point regarding the defense taken by appellant Sanjay is that he was employed with a scrap dealer in Rajinder Nagar, New Delhi, and was arrested there by the local police is on the face of it sham because all the witnesses including the proprietor have stated in one voice that accused Sanjay was working in the factory and used to sleep there. Instead of admitting atleast this part of the statements of the witnesses the appellant Sanjay has taken an unbelievable defense that he was working in a "Kabadi" Shop in Rajinder Nagar, New Delhi. To none of the witneses any suggestion was given that he never worked in the factory in question. He did not produce proprietor of "Kabadi" shop in support of his half hearted alibi. He was arrested because he was trying to hide himself which shows that he too was wandering about and absconding after committing the murder, because he had no guts either to sleep in the factory with the dead body of Roshan Lal or to report for duty in the morning, in the same factory. Hiding here and there was the only way open to him. In the statement under Section 313 Cr.P.C. the appellants have taken belated pleas of alibi and have denied every incriminating evidence.

20. Learned Additional Public Prosecutor has cited the following cases in support of his contentions on the aspect of statements under Section 313 Cr.P.C. "Kuldeep Singh and Ors. v. State of Rajasthan" . In this case, two of the four accused persons had made disclosure statements leading to recovery of incriminating articles from a hidden place and the appellants in that case could not give any explanation about the recovery of blood stained "darats" recovered at their instance. They gave false answers in the statements under Section 313 Cr.P.C. The Supreme Court opined that the false answers provide the additional link or missing link in completing the chain of circumstances.

21. Another case on this point is titled "Joseph v. State of Kerala" . In the said case the deceased was seen alive in the company of the appellant and jewels worn by her were recovered from the appellant on the basis of information provided by him during the course of investigation. The appellant instead of explaining those incriminating circumstances totally denied everything. It was held that the said denial provided the missing link and connected the appellant with the crime.

22. Another contention raised by learned counsel for appellant Sanjay is that in the disclosure statement Sanjay is alleged to have revealed that he had hidden the wrist watch in the house of Sanjiv at Sasni, UP but he got it recovered from his jhuggi at Zakhira, Delhi. Learned counsel for the appellant has submitted that this is a serious flaw and shows that the wrist watch was planted. Needless to say that criminals more often than not try to mislead the police and make variating statements about the incriminating circumstances and the IO like the present one do not care to write the supplementary disclosure statements, made by the accused persons during the investigation. Again we find that this is a lapse on the part of the IO, who appears to be either a novice or negligent. It is surprising that the prosecutor who checked the challan before clearing it for filing has also been careless. On this aspect when we revert to the statements of the PWs, they have all described the scene of occurrence and what is worth noting is that the suitcase of Roshan Lal was found opened and the clothes lying in it were ruffled and disturbed. Photographs also throw light on the scene of occurrence. It has come on record that under the head of the dead body a towel was found. It is common knowledge that poor people roll or fold a towel and use it as a pillow. Roshan Lal appears to have retired for sleeping and normally any person before sleeping would remove his jacket and wrist watch, specially because other persons also used to sleep in the factory. Therefore, it was quite natural for him to keep the wrist watch and the jacket safely in the suit case or to hang the jacket on a peg or a nail. The accused persons also belong to the poor strata of the society and the wrist watch or a jacket for them was rather a luxury. Therefore, evidently the wrist watch of deceased was taken by accused Sanjay and the jacket was taken by accused Sanjiv. Appellant Sanjay had disclosed that he had thrown the knife with which he caused injuries to Roshan Lal, in a drain which knife could not be recovered despite efforts, but the post-mortem report supports the prosecution case that sharp edged weapon was also used in committing the murder.

23. Appellants have revealed in the disclosure statements that the hammer was used for hitting on the head of Roshan Lal. Hammer being the cause of head injuries was not known to anybody and was revealed only by the appellants and after discovery of this fact appellant Sanjiv also got recovered the hammer from beneath a heap of bricks. The autopsy surgeon has opined that the head injuries are possible with the said hammer. CFSL report (Ex.-PB) shows 'O' group blood on the hammer which is the blood group of the deceased. Therefore, the head injuries and the hammer connect the appellants with the offence.

24. Considering all the facts and the law, we can summarize the chain of circumstances as under :

1. It is established on record that appellant Sanjay was working in the factory. He (appellant Sanjay), Roshan Lal (deceased) and Rajinder used to sleep in the factory.

2. On the fateful night (between 18th and 19th February,1999) appellant Sanjiv (Roshan Lal's cousin), who often used to visit the factory to meet Roshan Lal had come at 8.00 P.M. There was an altercation between him and Roshan Lal in which accused Sanjay sided with accused Sanjiv and they had threatened to kill Roshan Lal. The quarrel was pacified by the PWs present there.

3. After pacifying the quarrel all the PWs went out leaving behind the appellants and Roshan Lal.

4. PW Rajinder who also used to sleep in the factory returned at 10.00 P.M. but the factory door was closed from inside and despite his calls nobody opened the door. Then he left for the room of his brother-in-law's (PW-Uday Raj) and slept there. The said room is nearby in the same building.

5. At about 11.00 P.M. PW-Uday Raj on hearing some noise came out of the room. He saw both the appellants coming out of the factory and on inquiry they told him that they were going to catch the train.

6. The next morning PW Ram Singh & PW Uday Raj (both employees of the factory) went to the factory. Its door was closed but not bolted from inside and inside they saw blood stained dead body of Roshan Lal.

7. At this point of time, none of the appellants could be found in the factory, who had actually absconded and were arrested later on.

8. The jacket and the wrist watch of Roshan Lal were found missing as noticed by the witnesses.

9. The appellants were arrested and they made disclosure statements regarding the use of the hammer and a knife. Accused Sanjiv got recovered the hammer which as per doctor could cause the head injuries. CFSL report (Ex.-PB) shows 'O' group blood on the hammer which was the blood group of the deceased. Incised injuries (by knife) were also found on the body of Roshan Lal. The jacket of Roshan Lal was found in possession of accused Sanjiv. Accused Sanjay got recovered the wrist watch of the deceased. The common intention to commit murder is apparent.

10. Both the accused persons remained absconding and gave sham defenses, which we have rejected in the above discussion.

25. Considering all the facts and circumstances and the law we are convinced that the prosecution has unerringly and beyond reasonable doubt established the guilt of both the appellants. The chain of events against the appellants is complete in all respects and there is no escape from the conclusion that it were the appellants and the appellants only who committed the gruesome murder and there is no other hypothesis which may hint that the appellants are at all innocent. There is total consistency in the evidence against both the appellants. Therefore, we do not find any merit in the appeals. The same are dismissed. A copy of this judgment be sent to the Commissioner of Police and the Director of Prosecution for appropriate action and for future guidance. Once again we reiterate that if crime is to be controlled, the investigation police must be separated from law and order police as recommended by Malimath Committee. One copy of the judgment be sent to the Secretary, Ministry of Home, Government of India for necessary action. Monthly action taken reports be submitted to the Registrar General, High of Delhi. The Registrar General of High Court of Delhi will follow up the matters with the above said three authorities up to the logical conclusion and we be kept informed.