Sachin vs State (Gnct Of Delhi)
2007 Latest Caselaw 1279 Del

JUDGMENT

P.K. Bhasin, J.

1. The appellant has challenged his conviction under Sections 302/201 IPC vide judgment dated 8-5-06 passed by the learned Additional Sessions Judge, Rohini Courts, Delhi in Sessions Case No. 42/06 arising out of FIR No. 28/03 registered at Uttam Nagar police station as also the order of the same date whereby the trial Court sentenced the appellant accused to life imprisonment and also to pay a fine of Rs. 10,000/- in default of payment of which to undergo simple imprisonment for one year for his conviction under Section 302 IPC and RI for three years and fine of Rs. 3000/- in default of payment of which to undergo simple imprisonment for three months for his conviction under Section 201 IPC.

2. The appellant accused was tried for the offences punishable under Sections 364/302/201/34 IPC along with one Mukesh who has since been acquitted by the trial Court.

3. The prosecution case as noticed by the learned Trial Judge in para No. 1 of the impugned judgment is as follows:

The complainant Baldev Raj Mahajan lodged a missing report dated 18.12.2002 vide DD No. 7A at PS Uttam Nagar about his son Rajiv Mahajan who was reportedly missing since 13.12.2002 from his plastic factory situated at Nawada, Delhi. Thereafter, on 9.1.2003, complainant preferred a written complaint to SHO, PS Uttam Nagar stating that his son Rajiv Mahajan has been missing since 13.12.2002 with his Maruti Zen Car No. DL 6CD 7949 and carrying two mobiles phones No. 9868208865 and 9891020149. The complainant also named Sachin S/o Daya Nand and Mukesh S/o Chandra Bhan, the accused persons in the present case who had accompanied his son on 13.12.2002. On the basis of the above mentioned complaint dated 9.1.2003, case FIR Under Section 365 IPC was registered and investigation was handed over to SI Deepak Malik. According to the prosecutioin, accused Sachin was apprehended on the basis of secret information on 14.1.2003 who got the dead body of Rajiv Mahajan recovered from a dry well situated under a tree on the road leading towards Kanjhawala. The dead body was taken out from the well and the scene was photographed. Two rings belonging to the deceased were also recovered from the well, disclosure statement of accused Sachin was recorded. Accused Sachin disclosed that he Along with co-accused Mukesh committed murder of deceased Rajiv Mahajan by strangulating him and thereafter, his dead body was burnt and thrown in the well. The car of the deceased was left by the accused persons at Solan which was also recovered. ATM Card belonging to deceased was also recovered at the instance of accused Sachin. On 19.1.2003 accused Mukesh was also arrested and his disclosure statement was recorded. One wrist watch belonging to deceased was recovered at the instance of accused Mukesh.

4. The prosecution had examined thirty witnesses in support of its case against the two accused persons while no evidence was adduced in defense by any of the two accused. After examining the prosecution evidence the learned trial Court found only the appellant accused guilty. His co-accused Mukesh, as noticed already, was, however, acquitted of all the charges.

5. During the course of hearing of this appeal we were taken through the evidence of relevant prosecution witnesses from both the sides which we have examined independently.

6. It was contended by the learned Counsel for the appellant that the prosecution case against the appellant cannot be said to have been established at all since none of the circumstances sought to be pressed into service for securing conviction of the appellant had been established beyond reasonable doubt. It was submitted that the prosecution had sought to establish its case against the appellant by showing that on 13-12-2002 the deceased was in his company and thereafter he was not seen alive and that after his arrest he had got the dead body of the deceased recovered. The prosecution had also relied upon the circumstance of recovery of the car of the deceased as well as his ATM card pursuant to the disclosure statement allegedly made by the appellant. Learned Counsel submitted that in this case even the identity of the charred corpse allegedly got recovered by the appellant accused was not established. The evidence regarding DNA test got conducted by the prosecution to have the charred body identified was highly doubtful since there was no evidence to show that the blood samples of the parents of the deceased before being sent to the Centre for DNA Finger Printing and Diagnostics at Hyderabad were properly preserved and there is also no evidence regarding proper custody of the samples of blood and body parts of the corpse in the laboratory at Hyderabad so as to rule out possibility of contamination of the samples and consequently no reliance could be placed by the prosecution on the DNA report Ex. PW-29/B according to which the dead body got recovered by the appellant accused was that of Rajiv Mahajan. It was also the contention of the learned Counsel for the appellant that in this case even the cause of death could not be given by the Board of Doctors constituted to conduct post-mortem examination on the charred body allegedly got recovered by the appellant accused. It was also contended that as per the prosecution case car belonging to the deceased was recovered from Solan on the basis of information given by the appellant accused but that recovery evidence is not admissible since the Solan police had already seized that car under Section 102 Cr.P.C. before making of the disclosure statement by the appellant accused. Learned Counsel further contended that the recovery of ATM card of the deceased at the instance of the appellant is, in fact, a concoction by the investigating agency and that is clear from the fact that ATM card of the deceased was not of any use to the appellant accused in the absence of the Personal Identification Number (PIN) of that card without which the ATM card could not be used to withdraw money from the bank account of the deceased and there is no evidence adduced by the prosecution to show that the appellant accused knew the PIN of the ATM card. It was also contended by the learned Counsel that in order to introduce into the prosecution story the circumstance of last seen the prosecution had examined brother of the deceased PW-30 Sanjiv Mahajan but actually this witness himself had not seen the deceased in the company of the appellant accused and his testimony is only to the effect that it was the appellant accused who told him on 16-12-02 when enquiry was made from him about Rajiv Mahajan that he(the appellant) was with the deceased Rajiv Mahajan up to 12 noon on 13-12-02.

7. Learned additional public prosecutor for the State, on the other hand, while fully supporting the impugned judgment of the trial Court submitted that the prosecution had been successful in adducing sufficient circumstantial evidence to establish the involvement of the appellant accused in the murder of the deceased and for burning of his dead body in order to destroy the evidence about the commission of the murder and, therefore, the trial Court has rightly convicted the appellant accused. It was also contended that acquittal of co-accused Mukesh also does not entitle the appellant to secure his acquittal from this Court because the acquittal of Mukesh was because of the fact that the only circumstance relied upon by the prosecution against him was the recovery of one wrist watch belonging to the deceased from his possession at the time of his arrest and the learned trial Court had considered that single circumstance to be not sufficient enough to hold him guilty for any offence while against the appellant the prosecution had relied upon many circumstances all of which had been established beyond reasonable doubt and on the basis of those established circumstances the learned trial Court was fully justified in convicting the appellant.

8. In the present case the prosecution is claiming that the appellant accused and the deceased were friends. PW-2 Baldev Raj Mahajan, the father of the deceased, had stated in his evidence that his son Rajiv Mahajan was the friend of accused Sachin. This part of the statement of PW-2 was not challenged in his cross-examination on behalf of accused Sachin and, therefore, it stood admitted by him. Similarly, the statement of PW-2 Baldev Raj Mahajan and that of PW-30 Sanjiv Mahajan, the brother of the deceased, to the effect that Rajiv Mahajan had not returned back to his home on 13-12-02 from his factory where he had gone that day in the morning and that thereafter his whereabouts could not be known also remained unchallenged in their cross-examination. The father of the deceased had also claimed in his examination-in-chief that his son Rajiv Mahajan had left the house on 13-12-02 in Maruti Zen car No. DL-6-CD-7949. This statement of PW-2 has also gone unchallenged in cross-examination on behalf of the appellant accused. Now, the prosecution case is that on 13-12-02 the deceased was with the appellant accused till 12 noon. This part of the prosecution case was sought to be established from the evidence of PW-30 Sanjiv Mahajan, the brother of the deceased. He deposed that when on 13-12-02 Rajiv Mahajan did not come back home from the factory enquiries were made from his factory employees who informed that Rajiv Mahajan had left the factory and that he used to accompany Sachin. Then Sachin was contacted but they could not meet him. PW-2 Baldev Raj Mahajan, the father of the deceased, had deposed that when he went to the house of Sachin to find out about the whereabouts of his son Sachin was not there and his sister met him and told him that Sachin had gone to Punjab on 13-12-02. PW-30 Sanjiv Mahajan has further deposed that Sachin met him on 16-12-02 and when enquiry was made from him about Rajiv Mahajan Sachin had told him that he was with Rajiv Mahajan up to 12 noon on 13-12-02 and thereafter he(Rajiv Mahajan) had left and he himself went to Punjab that day. In cross-examination of PW-30 his statement to the effect that the appellant accused had told him on 16-12-02 that he was with the deceased till 12 noon on 13-12-02 was not challenged at all and, therefore, the same stood admitted by the appellant accused. So, this piece of circumstantial evidence relied upon by the prosecution can be said to have been established from the statement of PW-30 Sanjiv Mahajan.

9. The next circumstance relied upon by the prosecution against the appellant accused is that after his apprehension on 14-1-03 by PW-25 Sub-Inspector Deepak Malik from Palam Road he had made a disclosure statement about the murder of Rajiv Mahajan and had claimed that his dead body had been thrown in a well. Thereafter the appellant accused had taken the police team to a well which was at some place between Kanjhawala village and Sawda village. From that well, which was dry, a burnt dead body was recovered which the prosecution is claiming to be that of the deceased Rajiv Mahajan. To establish this circumstance of recovery of burnt body at the instance of appellant accused the prosecution has relied upon the evidence of PW-25 Sub-Inspector Deepak Malik and PW-10 Constable Virender. Both these witnesses have deposed that on 14-1-2003 accused Sachin was apprehended from old Palam Road. In their cross-examination on behalf of accused Sachin this part of their statements was not challenged. These witnesses had also categorically deposed that accused Sachin had then taken them to a well on the Ladpur Shawdah road where he claimed to have thrown the dead body of the deceased Rajiv Mahajan and from inside that well, which was dry, a dead body was found. Although in cross-examination of these two witnesses it was put to them that accused Sachin had not disclosed that he had murdered Rajiv Mahajan and had thrown his dead body into the well nor had he pointed out any well but in our view simply on the basis of the bare suggestion put to these witnesses on behalf of accused Sachin their evidence cannot be disbelieved. They had no reason to depose falsely against accused Sachin nor any motive was attributed to them in their cross-examination for falsely implicating accused Sachin. If actually after being apprehended from Old Palam Road, as claimed by PWs 10 and 25 and which statement of theirs has remained unchallenged in cross-examination, accused Sachin had not led the police officials to the place from where they claimed to have recovered a dead body then it should have been put to these witnesses in cross-examination as to what actually had happened after his apprehension and where he was taken from the place of his arrest. That was, however, not done and on the contrary from whatever was put to these witnesses in their cross-examination it stands confirmed that whatever they had claimed was, in fact, correct. It was put to PW-10 on behalf of accused Sachin in cross-examination that the dead body was found in pieces which were burnt and further that the dead body was not identifiable. The witness denied the suggestion. Similarly, it was also put to PW-25 that the dead body was not identifiable which the witness denied. These suggestions put to these two witnesses on behalf of accused Sachin could not have been put to them if actually he had not got recovered the dead body. We have, therefore, no hesitation in accepting the evidence of PWs 10 and 25 to the effect that accused Sachin had taken them up to the well on Ladpur Sawdah Road and on his pointing out a dead body was recovered from that well.

10. The other circumstance relied upon by the prosecution is that the dead body got recovered by accused Sachin was that of the complainants son Rajiv Mahajan. In this regard the submission of the learned Counsel for the appellant was that there is no reliable evidence adduced by the prosecution to establish the identity of the dead body to be that of Rajiv Mahajan. The prosecution case is that PW-25 Sub-Inspector Deepak Malik had informed the SHO PW-26 Inspector Surender Singh about the disclosure made by accused Sachin. PW-26 has deposed that on 14-1-2003 he had been informed by Sub-Inspector Deepak Malik that he had apprehended Sachin Kumar and he had pointed out the place where a dead body was lying in a dry well and thereafter he(PW-26) went to the house of the complainant and from there he went to the place of occurrence and then the dead body was taken out from the well and Sanjiv Mahajan(PW-30) identified the same to be that of his brother Rajiv Mahajan. PWs 10 and 25 have also deposed that the dead body was identified to be that of Rajiv Mahajan by Sanjiv Mahajan and his uncle(PW-4 Hari Om Mahajan). PW-4 Hari Om Mahajan is the uncle of the deceased and he has also deposed that the dead body which was taken out from the well in his presence was that of Rajiv Mahajan who was his nephew. In the cross-examination of none of these witnesses it was put on behalf of accused Sachin that the dead body recovered from the well was not that of Rajiv Mahajan. These witnesses have also deposed that from the well two rings were also recovered. PW-4 Hari Om Mahajan and PW-30 Sanjiv Mahajan have both claimed that those rings(Ex. P-2 and P-3) were of Rajiv Mahajan. Although in their cross-examination it was put to them that no rings were recovered from the well as claimed by them but we see no reason to disbelieve their testimony in this regard. Learned Counsel for the appellant had also contended that these witnesses had falsely claimed the dead body to be that of Rajiv Mahajan and that is evident from the fact that the autopsy surgeon PW-6 Dr. Anil Kumar had admitted that the dead body was not in an identifiable condition and that he had examined only charred remains of a human body. However, in our view just because the autopsy surgeon had claimed so the evidence of PW-4 Hari Om Mahajan that he could recognize the dead body after looking at the face of the dead body as also from the recovery of two rings which his nephew was wearing and also the statement of the brother of the deceased to the effect that he had found the face of the dead body resembling with the face of Rajiv Mahajan and that the two rings recovered from the well were of his brother cannot be disbelieved and it cannot be accepted that from their evidence the identity of the dead body was not established. PWs 4 and 30 would not have falsely claimed the corpse to be that of Rajiv Mahajan just to implicate the accused. No motive was attributed to these two witnesses also for claiming falsely that the recovered corpse was that of Rajiv Mahajan.

11. As far as the identity of the recovered dead body is concerned the investigating agency had also got DNA test conducted during the investigation. For that purpose blood samples of the parents of the deceased Rajiv Mahajan were taken and sent to the Centre for DNA Finger Printing and Diagnostics (CDFD) at Hyderabad along with the muscle tissue and pieces of humerous bone of the dead body which were preserved at the time of post-mortem examination. The DNA report is Ex. PW-29/B which has been proved by PW-29 Shri D.S. Negi who was posted as Technical Examiner with CDFD, Hyderabad and had conducted the DNA test. He has deposed that after examining the blood samples of Smt. Rajrani(mother of the deceased) and Shri Baldev Raj Mahajan(father of the deceased) and the tissue and humerous bone pieces which were received at CDFD on 24-1-2003 he had found that the source from which the muscle tissue and humerous bones were taken was the biological offspring of the persons whose blood samples had been received and examined, namely, Smt. Rajrani and Shri Baldev Raj Mahajan. Nothing could be elicited from this witness in his cross-examination which could throw any doubt about the genuineness of the DNA test conducted by him. It was not even suggested to him on behalf of the accused that the blood samples and the muscle tissue and the humerous bones had not been kept properly in the laboratory or that there were chances of contamination of the samples during the period of their custody with him or in the laboratory. PW-2 Baldev Raj Mahajan, the father of the deceased had also deposed that on 22-1-2003 his blood as also that of his wife was taken in DDU Hospital. PW-3 Dr. Mandeep Singh of DDU Hospital has also deposed that on 22-1-2003 he had taken the blood samples of Shri Baldev Raj and his wife Rajrani and after sealing the same had handed over to the investigating officer vide Ex. PW-3/C & D. In cross-examination this doctor admitted that when he took the blood samples no DNA expert was present. However, in view of this statement of the doctor that there was no DNA expert present at the time of taking of the blood samples it cannot be said that there was any irregularity committed by the doctor by not ensuring the presence of a DNA expert at the time of taking of the blood samples, as was the submission of the learned Counsel for the appellant, and it also cannot be said that the DNA test was not conducted in a proper manner. We are, therefore, of the view that prosecution had also succeeded in establishing that the dead body recovered at the instance of appellant accused Sachin was that of the complainants son Rajiv Mahajan.

12. Another circumstance relied upon by the prosecution for establishing the guilt of the appellant accused is the recovery of car of the deceased from Solan and one ATM card in the name of the deceased at the instance of the appellant pursuant to his disclosure statement Ex. PW-25/D. The witnesses examined by the prosecution to prove the recovery of the ATM card at the instance of the appellant - accused are PW-8 Constable Devender, PW-17 Constable Rajender Singh and the two investigating officers PW-25 Sub-Inspector Deepak Malik and PW-26 Inspector Surender Singh. All of them have deposed that accused Sachin had got recovered ATM card Ex. P-1 in the name of Rajiv Mahajan from his house pursuant to his disclosure statement. Nothing could be elicited from these witnesses in cross-examination which could discredit their evidence and we have no reason to disbelieve them. The witnesses about the recovery of the Zen car from Solan are PW-12 Sub-Inspector Tejpal and PW-19 ASI Balbir Singh from Dharampur police station in Solan District. PW-12 Sub-Inspector Tejpal has deposed that he had gone to Solan along with accused Sachin to recover the Maruti Zen car which according to this accused had been abandoned on Gurudwara Safrul Road in Solan but the car was not found there and, in fact, it was found deposited in Solan police station under Section 102 Cr.P.C. and then after obtaining order from the Court of ACJM car No. DL-6CD-7949 was brought to Delhi. PW-19 ASI Balbir Singh has deposed that on 19-12-2002 while he was on patrolling duty along with one constable in his Ilaqa which was under Sadar police station, District Solan they had found one maruti Zen car No. DL-6CD-7949 lying abandoned on the road and since its owner could not be found out and there was no document of the car in it the same was seized under Section 102 Cr.P.C. and deposited in the malkhana. PW-20 Head Constable Mast Ram was the in-charge of the malkhana of the Sadar police station in Solan and he has deposed about the deposit of the said maruti Zen car in the malkhana and he also proved the entry about that in the malkhana register copy of which is Ex. PW-20/B. PWs 19 and 20 were both not cross-examined on behalf of the accused and, therefore, it stood admitted by the accused that the maruti Zen car No. DL-6CD-7949 was found lying abandoned in Solan District by the Solan police on 19-12-2002. PW-25 Sub-Inspector Deepak Malik and PW-26 Inspector Surender Singh have both deposed about making of disclosure statement Ex. PW-25/D by accused Sachin pursuant to which, as per the prosecution case, the car of the deceased was recovered from Solan. Both these police witnesses also could not be discredited in cross-examination on the point of making of disclosure statement by accused Sachin as had been claimed by them in their respective chief-examination. These recoveries have been attacked by the learned Counsel for the appellant being of no value. It was submitted that as far as the Maruti Zen car No. DL-6-CD-7949 is concerned it is the prosecution case itself that the same was not recovered from the place where according to the appellant accused he had left it after the crime but it was recovered from the police station at Solan(Himachal Pradesh) and, therefore, it cannot be said that the car was recovered pursuant to the information given by the appellant accused. Regarding the recovery of ATM card the only submission by the learned Counsel for the appellant was that the recovery is doubtful as it is highly improbable that the appellant accused would have removed the ATM card of the deceased from his possession after killing him because that ATM card was of no use at all for the appellant since it could not be used without the Personal Identification Number. In our view, these submissions are devoid of any substance and have to be repelled. As far as the recovery of the Maruti Zen car of the deceased from a police station at Solan is concerned it cannot be said that the car was not recovered at the instance of the appellant. The appellant had claimed that he had abandoned the car on road at some place in Solan. The prosecution has examined a police official from Solan police station who has deposed about the recovery of the Maruti Zen car No. DL-6-CD-7949 which was found to be lying abandoned on 19-12-02 and its seizure under Section 102 Cr.P.C. It could not be brought out in cross-examination of the investigating officer of the present case that he had any knowledge about the seizure of the said car by Solan police before the arrest of the appellant accused nor was it put to PW-19 ASI Balbir Singh that after taking into possession the abandoned car he had informed the Delhi Police about its seizure. The fact is that the appellant accused had claimed that after the crime he had abandoned the car of the deceased in Solan area and it was as a result of that information only that the car could be traced out. In any case, even if we were to ignore this evidence of recovery of the car from Solan the prosecution case would not get affected and the chain of circumstances would not get broken. As far as the recovery of ATM card is concerned it is also a strong incriminating circumstance against the appellant accused. Whether or not he could have utilized the ATM card of the deceased is not for the prosecution to answer. All that which was required to be shown is that something belonging to the deceased was recovered pursuant to the information given by the appellant accused and which the prosecution has succeeded in establishing.

13. It was also contended by the learned Counsel for the appellant that even if it is accepted that the appellant had got recovered the dead body of the deceased Rajiv Mahajan he can still not be held guilty for the offence of murder since the prosecution has not been able to establish that the deceased died a homicidal death and in this regard he drew our attention to the post-mortem report where the autopsy surgeon had observed that the cause of death could not be given because only charred remains of the body were available. We, however, find this submission also to be devoid of any merit. There is no doubt that the autopsy surgeons could not give the cause of death of the person whose corpse they had examined but for this reason it cannot be said that the prosecution has failed to establish that the complainants son had, in fact, been murdered or that there could also be a possibility of his having committed suicide by first setting himself ablaze and then jumping into the well, as was also the contention of the learned Counsel for the appellant. It was held by the Honble Supreme Court Rama Nand and Ors. v. The State of Himachal Pradesh that the fact of homicidal death needs to be established before seeking to prove that the accused concerned is the perpetrator of the murder and that the fact of homicidal death can be established by direct ocular account of an eye witness or by circumstantial evidence. It was also held that where the homicidal death is sought to be established by circumstantial evidence alone the circumstances must be of a clinching and definitive character unerringly leading to the inference that within all human probability the victim had been murdered by the accused concerned. In the present case, the various circumstances which we have found to have been established beyond any doubt clearly establish that the deceased had met with a homicidal death and that it was the appellant accused only who was responsible for that. We have accepted the prosecution case that the deceased Rajiv Mahajan was with the appellant accused till 12 noon on 13-12-2002 and thereafter the deceased was not seen alive and also that it was pursuant to the information given by the appellant accused to the police that a dead body in burnt condition was recovered from inside a well and that dead body was of the complainants son Rajiv Mahajan. The autopsy surgeon had opined that the time since death of the deceased could be about one month. Post-mortem examination was conducted on 17-1-2003 and the deceased was alive till 13-12-2002 and thereafter he was never seen alive. In these circumstances it can be accepted that the deceased had died either on 13-12-2002 or a few days thereafter. The appellant accused had not come out with any explanation as to where and under what circumstances he had parted with the company of the deceased on 13-12-2002 and how he came to know about the presence of the dead body of Rajiv Mahajan in the well as also regarding the recovery of the ATM card of the deceased from his possession as well as the recovery of the deceaseds car at his instance. All these facts were within the special knowledge of the appellant and so it was for him to have given some explanation to rule out the possibility of his being the murderer of the deceased. In these circumstances, we have also no hesitation in concluding that it is a case of homicidal death and we cannot accept the submission of the learned Counsel for the appellant that it could also be a case of suicidal death.

14. We have, thus, no hesitation in concluding that from the aforesaid circumstances relied upon by the prosecution and which we have found to be established beyond any shadow of doubt the only conclusion which could be arrived at is that it was the appellant accused only who had killed the deceased Rajiv Mahajan. We do not find any infirmity in the findings of the learned trial Court holding the appellant accused guilty and consequently this appeal is liable to be dismissed and the conviction of the appellant accused needs to be affirmed.

15. In the result, we dismiss this appeal and affirm the judgment and the order on sentence dated 8-5-2006 of the learned Additional Sessions Judge, Rohini Courts, Delhi.