Chintu Malhotra @ Chirag vs State
2009 Latest Caselaw 1951 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                                Crl. Appeal No. 406/2008

%                               Judgment reserved on: January 09, 2009
                               Judgment delivered on: May 11, 2009

CHINTU MALHOTRA @ CHIRAG             ..... Appellant
            Through : Mr. Anupam S. Sharma, Adv.

                                         VERSUS

THE STATE                               .....Respondent
                        Through : Mr. Pawan Sharma, APP

+                                Crl. Appeal No. 435/2008


GYAN CHAND KASHYAP @ KALU             ..... Appellant
             Through : Mr. Pankaj Kumar, Adv.

                                         VERSUS

THE STATE                               .....Respondent
                        Through : Mr. Pawan Sharma, APP

+                                Crl. Appeal No. 603/2008


DHARMINDER SINGH @ VIJAY               ..... Appellant
             Through : Ms. Anu Narula, Adv.

                                         VERSUS

THE STATE                               .....Respondent
                        Through : Mr. Pawan Sharma, APP


+                                Crl. Appeal No. 1009/2008


MOHD. TAYYAB ALAM                 ..... Appellant
             Through : Mr. V.K. Raini, Adv.

                                         VERSUS


Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08            Page 1 of 72
 THE STATE                               .....Respondent
                        Through : Mr. Pawan Sharma, APP

CORAM :-
 HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
 HON'BLE MS. JUSTICE ARUNA SURESH

      (1) Whether reporters of local paper may be
          allowed to see the judgment?

      (2) To be referred to the reporter or not?                    Yes

      (3) Whether the judgment should be reported
          in the Digest ?                      Yes

ARUNA SURESH, J.

1. The above captioned appeals have been filed by

the four appellants assailing the judgment and order dated

24.3.2008 passed by the learned Additional Sessions Judge

whereby they were convicted for offence under Sections

364/302/34 IPC and order on sentence dated 31.3.2008

whereby they were sentenced to undergo rigorous

imprisonment for 10 years and fine of Rs.2000/- each, in

default of payment of fine to undergo a rigorous

imprisonment for one month for the offence under Section

364/34 IPC. They were further sentenced to undergo life

imprisonment and fine of Rs.2000/- each, in default of

payment of fine rigorous imprisonment for one month for the

offence under Section 302/34. Both the sentences were

ordered to run concurrently. Benefit of Section 428 Cr.P.C.

was also given to the appellants.

2. Broad features of the prosecution case are that

deceased Krishan Kumar was driver of Maruti Van No. DL-3C R

1271 which was registered in the name of his son Anirudh

Kumar (PW-8). On 26.8.2000 Jitender (PW-4) son of Krishan

Kumar was telephoned by the deceased to bring his clothes to

Kaushik Travels, informing him that the vehicle had been

hired and he was to go to Hardwar. At Kaushik Travels

Jitender came to know the names of the appellants as Kalu,

Dharminder, Chintu and Tayyab, all residents of Hastsal,

Delhi. Deceased Krishan Kumar with the appellants in the

vehicle left Delhi on 26.8.2000 at about 4.30 PM in the

presence of Jitender. Though Krishan Kumar was to return

back to Delhi on the next following day, he did not come

back. Anirudh Kumar received a telephone call on 29.8.2000

at about 12.10 PM from SHO, Bihar that driver of the vehicle

had been killed and all the four persons were apprehended by

him. Anirudh Kumar informed the P.C.R. Police Station Uttam

Nagar was accordingly informed by the P.C.R. This

information was recorded as DD No. 10A at the Police Station.

SI Dal Chand on receipt of DD No. 10A along with const.

Dilbagh Singh went to Kaushik Travels where he recorded the

statement of Jitender on which, he made his endorsement at

about 2.15 PM and got the FIR of this case, being FIR No.

786/2000 registered under Sections 365/2000 IPC.

3. On 29.8.2000 at about 9.15 PM Maruti Van was

intercepted by a patrolling party of Police Station Purnia,

Bihar headed by SI Rajesh Kumar. When the vehicle did not

stop on signal, instead speeded up, it was chased. All the

appellants who tried to flee away after getting down from the

vehicle were overpowered and apprehended. They were

arrested in FIR No. 330/2000 under Section 413/414 IPC,

Police Station Kehat, Bihar, when they could not give any

satisfactory reply regarding their possession of the vehicle. SI

Rajesh Kumar found a slip of paper of Kaushik Travels

containing a telephone number lying in the van and he

accordingly made a phone call on the said telephone number

at Delhi.

4. The dead body of Krishan Kumar was recovered at

Jawalapur, Hardwar on 27.8.2000 at about 10.30 AM on an

information received from Paramjeet by Inspector Kuldeep

Singh in the presence of Hazara Singh, watchman, and other

police officials of police station Jawalapur. A panchnama was

prepared. The inquest papers were prepared by SI Rajesh

Kumar. The dead body was got photographed. The dead

body was got post-mortemed from H.M.G. District Hospital,

Hardwar. After post-mortem, the dead body was got

cremated.

5. On 31.8.2000 PW Govind Singh Bakuni, Upender

Singh Dixit, Chander Kishore Dwivedi and few other persosn

went to Police Station Jawalapur and made inquiries about the

dead body. From the photographs they identified the dead

body of Krishan Kumar. DD No. 7 dated 31.8.2000 at 6.30 AM

was recorded at Police Station Jawalapur regarding the visit of

these persons and also the factum of identification of the

dead body.

6. SI Dal Chand went to Purnia on 29.8.2000 and

reached there on 31.8.2000. From Police Station Kehat he

came to know of the arrest of the appellants and the recovery

of the maruti van and also registration of a case under

Sections 413/414 IPC being FIR No. 330/2000. The appellants

had already been sent to judicial custody. He moved an

application for production warrants of all the appellants. The

appellants in this case were formally arrested on 3.11.2000.

7. Finding sufficient evidence against the appellants

namely; the deceased was last seen in the company of the

appellants by Jitender, recovery of the dead body of deceased

Krishan Kumar from Hardwar, recovery and seizure of maruti

van from Purnia Bihar, arrest of the appellants by police of

Police Station Kehat, Purnia and registration of a case against

them for being found in possession of suspected to be stolen

property and the post-mortem report showing homicidal

death of the deceased, a chargesheet was filed against the

appellants for having abducted and murdered Krishan kumar

with a motive to rob him of his vehicle.

8. The trial court framed following charge against all

the appellants:

"That on 26.8.00 at about 4.30 p.m. near Kaushik Travels, main Najafgarh Road within the jurisdiction of PS Uttam Nagar all of you in furtherance of your common intention deceitfully abducted Sh. Krishan Kumar in order that the said Krishan Kumar might be murdered and thus committed an offence punishable u/s 364/34 IPC.

Secondly, on the night intervening 26/27/8.00 all of your in furtherance of your common intention committed

murder of said Krishan Kumar when all of you had abducted deceitfully the said Krishan Kumar from Delhi to Hardwar and thereafter disposed of his body and thus committed an offence punishable u/s 302/34 IPC and within cognizance of this court."

9. Since three independent investigating agencies are

involved in this case and the crime continued to be

committed from Delhi to Hardwar and finally to Purnia, it is

appropriate to segregate the evidence of the prosecution in

three different parts for just and proper assessment and

appreciation of the prosecution evidence and the

incriminating circumstance as adduced on the record.

10. The relevant witnesses who joined the

investigation at Delhi on receipt of an information from PW-8

Anirudh Kumar son of deceased Krishan Kumar recorded in

DD No.10A on 29.8.2000 at about 12.10 PM and consequent

registration of FIR No. 786/2000 under Sections 365/34 IPC

Ex.PW-9/A on the basis of endorsement Ex.PW-24/A SI Dal

Chand on the statement of PW-4 Jitender son of deceased

Krishan Kumar are:

(1) PW-9 ASI Pushpal Kaur. She recorded FIR No.

786/2000 under Sections 365/34 IPC Ex. PW-9/A on receipt of

rukka with endorsement Ex.PW-24/A of SI Dal Chand on

29.8.2000 at 2.25 PM.

(2) PW-4 Jitender Kumar is the complainant. He

made the complaint Ex.PW-4/A which was recorded by SI Dal

Chand. In his statement he recorded that his father Krishan

Kumar was plying his Maruti Van No.DL 3C R 1271 from

Kaushik Travels, Main Najafgarh Road. On 26.8.2000 he was

present in the house when at about 4.00 PM his father

telephoned that he was carrying some passengers with him to

Hardwar and he should deliver his clothes. He (jitender) went

to Kaushik Travels office to hand over the clothes of his

father, where, he found his father standing with four boys. He

handed over the clothes to his father. He came to know the

names of those boys on inquiry as Chintu Malhotra, Kallu

Kashyap, Dharmender and Md. Tayyab, resident of LIG Flats,

Hastsal. The said four boys sat in the vehicle and he was told

by his father that he would come back on the next following

day but when he did not return back home they were worried

and started searching for him. He suspected that the above

said four boys had kidnapped his father. He identified the

appellants on 4.11.2000 after their arrest near Kaushik

Travels at the time when, the appellants pointed the place,

from where they had hired the maruti van. He also identified

all the appellants in the court.

(3) PW-8 Anirudh Kumar is the son of the deceased.

He has deposed that on 26.8.2000 when he reached home

from his office he was told by PW-9 Jitender that his father

had gone to Hardwar and had carried four passengers with

him and would come back on the next day. Jitender had also

disclosed the names of the said four passengers, one of

whom; Dharmender happened to be his class fellow. He

received a telephone call on 29.8.2000 from Bihar about

recovery of maruti van and apprehension of four boys who

had informed the police that they had killed the driver of the

vehicle. He found the voice similar to the one as that of

Dharmender, that he told the caller that he appeared to be

Dharmender on which the phone was disconnected. He made

a call at 100 number and a DD No.10A was recorded at Police

Station Uttam Nagar. He named the appellants as the

suspects before the police. He along with his brother PW-9

Jitender had identified the photographs of his father shown to

him at the Police Station Uttam Nagar received by the police

from Jawalapur, Hardwar.

(4) PW-11 Govind Singh Bhatuni is the neighbour

of the deceased. He has deposed that on 31 st day, of the year

2000 Jitender and wife of deceased came to him around 5.00

AM and told him that some untoward incident had taken

place. He along with PW-12 Chander Kishore and 3-4 other

persons went to Hardwar. From Police Station Jawalapur he

and other persons came to know that on 27.8.2000 a dead

body of an unknown person had been recovered which had

been cremated. He identified deceased Krishan Kumar from

the photographs shown to him by the police officers of Police

Station Jawalapur. (He had also filed a written application

before the duty officer, Police Station Jawalapur which was

recorded as report No.7 at 6.30 AM dated 31.8.2000 Ex.PW-

21/A.)

(5) PW-12 Chander Kishore is the son in law of the

brother of the deceased. He has deposed that he was called

on 29.8.2000 by wife of the deceased. On 29.8.2000 he along

with PW-11 Govind Singh and 4-5 other persons went to

Hardwar to enquire about Krishan Kumar. While

corroborating the testimony of PW-11 Govind Singh, he has

deposed that he was told by SI Rajesh Kumar that the

deceased was cremated after post-mortem. He had also

identified the dead boy of Krishan Kumar from the

photographs shown to him.

(6) PW-16 Sunil Kaushik is the proprietor of Kaushik

Travels. He has deposed that deceased Krishan Kumar used

to park his maruti van in front of his office and he used to

deal with the passengers independently. He deposed that he

came to know that maruti van was hired by some persons for

Hardwar and later on that Krishan Kumar had died.

(7) PW-10 Tirath Raj Singh is the draftsman. He

prepared scaled site plan Ex.PW-10/A on 4.11.2000 after

inspection of the spot at the instance of SI Rajesh Kumar,

Police Station Jawalapur, Hardwar.

(8) PW-24 SI Dal Chand joined the initial

investigation of this case. He also went to Purnia on the night

of 29.8.2000 where he came to know of the arrest of the

appellants and recovery of the maruti van. He deposed that

he moved an application before the concerned court at

Purnia seeking production of the appellants before the

concerned MM at Delhi. Later on he went to Purnia again on

1.11.2000 and with the permission of the court took the

transit remand of the appellants and produced them in the

court of the Metropolitan Magistrate, Delhi, on 3.11.2000,

where appellants were formally arrested.

(9) PW-25 Insp. T.P.S.Tomar took over the

investigation of this case on 18.10.2000. He formally arrested

the appellants. He obtained their three days‟ police custodial

remand and got them medically examined from DDU hospital,

recorded the disclosure statements of the appellants.

Appellants pointed the place of occurrence on 4.11.2000 from

where the dead body was recovered and they also pointed

out the place from where the vehicle was hired i.e. Kaushik

Travels on 5.11.2000 vide pointing out memo Ex.PW-3/B.

11. PW-1 HC Ashok Kumar, PW-2 const. Dilbagh

Singh, PW-3 SI Gurnam Singh and PW-15 HC Deep

Kumar are formal witnesses.

12. The relevant witnesses examined by the

prosecution, who are witness to the recovery of the vehicle

and the proceedings conducted at Police Station Purnia, Bihar

after maruti van‟s interception are:

a. PW-5 SI Rajesh Kumar Dubey. He has deposed

that on 29.8.2000 he along with SI Ajit Kumar, SI Ram Vikash

Choudhary, HC Tarkeshwar, HC Ashok Kumar and const.

Sushil Kumar were on patrolling duty at Madhopara Road. At

about 9.15 PM when he saw one maruti van plying on the

road, he signalled the maruti van to stop but the car speeded

up, he and the police party chased the said maruti van. Four

persons got down from the car and started running away. He

along with his police party apprehended the said four boys in

the presence of Surender Kumar (PW-7) and Mahadev Kesri

(PW-6). He has given the registration number of the said

maruti van as DL 3C R 1271. On interrogation he suspected

that the vehicle had been stolen. He got registered FIR No.

330/2000 at Police Station Purnia and arrested all the four

persons. However, he failed to identify the appellants as the

four persons whom he had arrested and from whom the

maruti van was seized by him. He identified the maruti van

Ex.P-1 which he had recovered.

b. PW-6 Mahadev Kesri, witness to the recovery of

the vehicle and arrest of the appellants, is completely hostile.

Though he has admitted his signatures on the seizure memo

mark X prepared by SI Rajesh Kumar Dubey.

c. PW-7 Surender Kumar another witness to the

recovery of the vehicle and arrest of the appellants is also

hostile. He admitted his signatures on the seizure memo

mark X but deposed that his signatures were obtained on a

blank paper.

d. PW-14 SI Ajit Kumar was a member of the

patrolling party. In his testimony while corroborating the

statement of SI Rajesh Kumar Dubey that he was a member

of the patrolling party on 29.8.2000 and was present near

Madhopara at about 9.15 PM when, a white colour maruti van

was intercepted and was signalled to stop but, it speeded up

and was chased. He has deposed that the van stopped after

going a little ahead and out of the maruti van four persons

got down and started running. They all chased them and

overpowered them. He has deposed that they came to know

the names of those boys as Chintu [email protected] Chirag

Malhotra, Kalu Kashyap, Dharmender [email protected] Vijay Singh and

Mohd. Tayyab. He identified all the appellants who were

present in the court as the persons who were apprehended by

them. He testified that the vehicle bearing no. DL 3C R 1271

was seized and FIR No. 330/2000 was registered against the

appellants. He has further deposed that from the dickey of

the van a slip of KK Travel and Tour Agency on which a

telephone number was written was recovered and on the said

number a phone call was made at Delhi and they came to

know that the said van was hired for Hardwar. He further

deposed that, after two days the police party along with

public persons came there and took a copy of the FIR. By the

order of learned Chief Judicial Magistrate (C.J.M.) the van was

released. Subsequently Delhi police also took away the

accused persons with them.

As regards the identity of the vehicle, he deposed

that the registration number of the maruti van shown to him

was the same. But sticker of KK Tour and Travel agency was

not on the car when shown to him in the court, whereas the

board bearing words „Zila Adhyaksh Samajwadi Party‟ was not

on the vehicle at the time of the seizure. However, on seeing

the vehicle in the court he could not exactly say if it was the

same maruti van which was seized by them at Purnia though

the number and the colour of the vehicle was same.

13. The relevant witnesses of the prosecution to the

recovery of the dead body of Krishan Kumar at Jawalapur,

Hardwar on 27.8.2000 at 10.30 AM are:

i. PW-20 Inspector Kuldeep Singh was posted at

Jawalapur, Hardwar. He has deposed that on 27.8.2000 at

about 10.30 AM one person by the name of Paramjit Singh

came to the police station and informed him that a dead body

of a male person was lying beneath the bridge, Rani Pur

Nehar. He along with SI Rajesh, const. Sohail Ahmed and

const. Ramesh Chand reached the spot. He further deposed

that SI Rajesh Kumar called a photographer who took the

photographs of the dead body which was having injuries on

its person. He gave the description of the dead body as

wearing white kurta pyajama having six fingers in the right

hand. On his instructions SI Rajesh conducted the

panchnama. On 28.8.2000 he got the dead body post-

mortemed and handed over the dead body to Sewa Samiti,

Hardwar, for cremation because, the dead body could not be

identified. He deposed that on 31.8.2000 Chander Kishore

and Govind Singh along with 3-4 persons came to the police

station. He showed them the photograph of the deceased

and also gave the description of the clothes of the deceased

on the basis of which, they identified the dead body of

Krishan Kumar. He testified that the above named persons

had also informed him that four persons had hired maruti van

for Hardwar from Delhi on 26.8.2000. He sent his report

Ex.PW-20/A to Delhi on 6.9.2000.

ii. PW-23 SI Rajesh Kumar while corroborating the

statement of inspector Kuldeep Singh has deposed that he

tried to get the dead body identified but failed, then he called

the photographer who took the photographs of the deceased.

He deposed that he conducted inquest proceedings Ex.PW-

23/A. He got the dead body post-mortemed from government

hospital Hardwar on 28.8.2000. He further deposed that on

31.8.2000 3-4 persons came to the police station who

identified the dead body as of Krishan Kumar from the

photographs shown to them and they also told him that on

26.8.2000 four persons had hired maruti van for Hardwar.

iii. PW-18 const. Ramesh Chander corroborated

the testimony of Insp. Kuldeep Singh and SI Rajesh Kumar.

iv. PW-22 const. Sohail Ahmed also corroborated

the statement of Insp. Kuldeep Singh and SI Rajesh Kumar.

v. PW-17 Hajara Singh was a watchman and had

gone to Sukhi Nahar, Rani Pur on 27.8.2000 where he found

some persons gathered and he saw a dead body of one male

person lying in the canal. He has testified that there were

injuries on the body of the deceased and also blood was

oozing out from the nose and mouth of that person. At about

11.30 AM police staff from police station Jawalapur reached

there and Investigating Officer conducted the panchnama

Ex.PW-17/A. he signed the panchnama as one of the

witnesses. Later on he came to know the name of the

deceased as Krishan Kumar, resident of Delhi.

vi. PW-19 Surender Kumar had taken the

photographs Ex.PW-19/B1 to Ex.PW-19/B4 of the deceased at

the spot (Rani Pur Nehar, Hardwar) on 27.8.2000 at the

instance of SI Rajesh Kumar.

vii. PW-13 Dr.Rajeev Verma had conducted the

post-mortem of the deceased on 28.8.2000. As per the post-

mortem report Ex.PW-13/A, he found following injuries on the

body of the deceased:-

"External injuries:

1. Lacerated wound 4x2 c.m. on right side of head, 5 c.m. above right ear.

2. Lacerated wound in front of right chin size 2x1 c.m.

3. Traumatic swelling 12x10 c.m. on right side of face.

4. Swelling on right side of chest 15x10 c.m.

Internal injuries:

1. Pelvis fracture

2. Anterior middle cranial fossa fractured.

I gave my opinion with regard to the cause of death as shock and haemorrhage due to ante mortem injuries. And the time since death has been given as 1-2 days prior to the date of post- mortem.

viii. PW-21 const. Narender Singh was working as

DD writer at police station Jawalapur. He deposed that he

recorded DD No. 19 Ex.PW-21/A on receipt of information

from Paramajit Singh about a dead body lying in Rani Pur

Nehar. He also recorded DD No.7 Ex.PW-21/B on 31.8.2000

pertaining to the arrival of Chander Kishore, and Govind Singh

along with other 3-4 persons at police station Jawalapur.

14. We have heard Mr.Anupam S. Sharma, Adv. for

appellant Chintu Malhotra @ Chirag, Mr.Pankaj Kumar, Adv.

for appellant Gyan Chand Kashyap @ Kalu, Ms.Anu Narula,

Adv. for appellant Dharminder Singh @ Vijay, Mr.V.K. Raina,

Adv. for appellant Mohd. Tayyab Alam and Mr.Pawan Sharma,

APP for the State.

15. It is argued by the learned counsel for the

appellants that the van was seized in Purnia, Bihar on

29.8.2000 at about 9.15 PM, surprisingly enough PW-8

Anirudh Kumar claimed to have received a phone call from

SHO, Purnia, Bihar on 29.8.2000 at around 12 noon informing

murder of the driver of the vehicle, apprehension of four

persons and seizure of the maruti van.

16. As per PW-8 the voice of the caller from Bihar

sounded familiar; meaning thereby, he knew the caller.

Counsel urged that when the complaint was lodged with the

Delhi Police, it assumes significance that PW-8 did not inform

that he knew one of the persons i.e. Dharmender as the one

who had hired the van.

17. The last seen evidence was doubtful because PW-4

did not know Dharmender and he wrongly deposed to said

fact. In any case he did not know the other accused and since

he possibly could not have seen them properly when the van

was allegedly booked and PW-4, as claimed by him, went to

give clothes to his father, their identification by PW-4 is

extremely suspicious.

18. PW-16, owner of Kaushik Tours has disclaimed any

knowledge and this shows that the van was not booked from

Delhi as claimed by the prosecution.

19. A dead body was recovered on 27.8.2000 from

Ranipur canal within the jurisdiction of Police Station

Jawalapur, Hardwar. How did said information get transmitted

to the police at Delhi is a mystery. Different witnesses have

spoken about going to Jawalapur and having identified the

deceased. Different dates have been disclosed by them.

20. Counsel urged that the various witnesses who

have deposed of going to Jawalapur have materially

contradicted each other with respect to the time of leaving

Delhi and reaching Jawalapur as also pertaining to the

identification of the dead body; therefrom, counsel urged that

it is apparent that information pertaining to the dead body

being recovered in Jawalapur was known to the police at Delhi

from some other source and not as claimed by them and this

shows that the entire investigation has been manipulated.

21. PW-14 appears to have spoken some truth with

respect to the seizure of the van in Bihar and his testimony

shows that the police at Bihar had seized the van much

before 9.15 PM the time recorded by the poice at Bihar

pertaining to the seizure of the van.

22. Counsel urged that the FIR registered in Bihar was

post dated and post timed and the real culprits were allowed

to go scot free and the appellants were falsely implicated.

23. Counsel urged that Mohd. Tayyab was a resident of

Purnia and the other accused were his friends and this

explains their presence in Purnia.

24. It is submitted by the learned counsel for the

appellants that the case is based on circumstantial evidence

and the evidence adduced on the record has failed to pass

the test of principles of circumstantial evidence as laid down

in Padala Veera Reddy v. State of A.P. & Ors. - AIR 190

SC 79 to bring home the guilt of the appellants and the

evidence adduced by the prosecution but, rather is consistent

with the innocence of the appellants as they had gone to

Purnia because appellant Mohd. Tayyab was permanent

resident of Purnia and they were falsely implicated by Police

Station Kehat, Purnia in FIR No. 330/2000 under Sections

413/414 IPC.

25. While refuting the arguments of the learned

counsel for the appellants, learned APP for the State has

submitted that despite some contradictions in the statements

of public witnesses, the following circumstances have been

proved:

i. PW-4 is the most important witness. He had

gone to Kaushik Travels to deliver the clothes to his father

where he had seen the appellants on 26.8.2000 at about 4.00

PM and also saw the appellants who had hired the van leaving

with his father in the maruti van for Hardwar. Krishan Kumar

thereafter did not come back home. He correctly identified

the appellants in the court. At the time when he made his

statement to the police (complaint) he had no knowledge that

the appellants were caught in Bihar.

ii. The dead body of an unknown person was

recovered by the police of Police Station Jawalapur on

27.8.2000 at 10.30 AM and also that post-mortem was got

conducted and doctor found several injuries on the person of

the deceased which were homicidal in nature.

iii. The dead body of Krishan Kumar was

identified by Govind Singh (PW-11) and Chander Kishore (PW-

12) on the basis of photographs shown to them by the police

at Jawalapur, Hardwar.

iv. All the four appellants were apprehended by

PW-5 SI Rajesh Kumar Dubey and PW-14 SI Ajit Kumar, Police

Station Kehat, Purnia and the maruti van was also seized from

their possession.

v. As the appellants were found absconding

from the day of incident till they were apprehended at Purnia,

Bihar on 29.8.2000 along with the maruti van, the

presumption under Section 114 of the Evidence Act is clearly

attracted against the appellants.

26. Learned counsel has argued that since the chain of

circumstances is complete from the prosecution evidence, the

trial court, therefore, rightly convicted the appellants for the

offences under Sections 364/302/34 IPC.

27. Undoubtedly, the case of the prosecution is

completely based on circumstantial evidence. It has been

consistently laid down in its various judgments by the Apex

Court that, where a case rests squarely on circumstantial

evidence, the inference of guilt can be justified only when all

the incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt of

any other person. These incriminating facts and

circumstances have to be proved beyond reasonable doubt

and it is also required to be proved that there is close

proximity with the principal fact sought to be inferred from

those circumstances. In State of U.P. Vs. Desh Raj - 2006

(3) SCALE 194, it was observed :

"16. By now, it is well settled principle that in order to sustain a conviction of circumstantial evidence, the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and inconsistence with his innocence."

28. In Sharad Birdhichand Sarda Vs. State of

Maharashtra - AIR 1984 SC 1622, while dealing with the

circumstantial evidence, it was held that onus is for the

prosecution to prove that the chain is complete and the

infirmity or lacuna in the prosecution cannot be cured by a

false defence or a plea. The court formulated the five golden

principles constituting the Panchsheel of the proof of a case

based on circumstantial evidence as follows:

1. The circumstance from which the conclusion of guilt is drawn should be fully established, It may be noted here that ... ... ... the circumstances concerned „must or should‟ and not „may be‟ established. There is not only a grammatical but a legal distinction between „may be proved‟ and „must be or should be proved‟... ... ...

2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

3. The circumstances should be of a conclusive nature and tendency,

4. they should exclude every possible hypothesis except the one to be proved, and

5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

29. While laying down the above stated five conditions

which must be fulfilled before the guilt of an accused can be

said to have been established in a case based on

circumstantial evidence, the Supreme Court referred to and

relied upon Hanumant v. State of Madhya Pradesh -

1952 SCR 1091 = AIR 1952 SC 343.

30. These principles have been followed in

Padala Veera Reddy v. State of A.P. & Ors. (supra) as

referred to by the learned counsel for the appellants and

recently in State of U.P. v. Satish - (2005) 3 SCC 114,

Karihai Mishra alias Kanhaiya Mishra v. State of Bihar -

JT 2001 (3) SC 191 and Chattar Singh & Another v.

State of Haryana - 2009 (1) Crimes 11 (SC).

31. Similarly in Pawan Kumar V. State of Haryana,

MANU /SC/0167/2001 while considering the evidentiary

value of the circumstantial evidence, it was recorded:

                "Incidentally,     success      of   the
                prosecution     on     the     basis   of

circumstantial evidence will however depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. While, however it is true that there should be no missing links, in the chain of events so far as the prosecution is concerned, but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts.

Circumstances of strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the

availability of two inferences, the one in favour of the accused must be accepted and the law is well settled on this score, as such we need not dilate much in that regard excepting, however, noting the observations of this Court in the case of State of U.P.

v. Ashok Kumar Srivastava wherein this Court in para 9 of the report observed:

"9. The Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise."

32. Keeping in mind the above said principles of law as

culled out by the Supreme Court in the above said decisions,

we shall now scrutinize scrupulously and examine carefully

the circumstances appearing in this case against the

appellants.

33. Jitender Kumar (PW-4), son of the deceased;

Krishan Kumar had lastly seen his father in the company of

four boys at Kaushik Travels on 26.8.2000 when he went

there to deliver the clothes of his father as the deceased was

to go to Hardwar along with the said four boys being driver of

maruti van No. DL 3C R 1271. The said four boys who went

with Krishan Kumar are the appellants who were identified by

Jitender Kumar in the court. Jitender Kumar as PW-4 has

testified on oath as follows:

"The name of my father is Sh. Krishan Kumar and he was a driver and was driving Maruti Van No. DL3C- R1271. On 26.8.00 I was present in my house and at about 4.00 p.m. one telephone call and it was the call of my father who asked me to come with his clothes in front of Kaushik Travels as he was to go to Hardwar. I took Kurta Payajama of my father behind Mini Bus stand in front of Kaushik Travels. Where I found my father and 4 other young persons were standing. I handed over the clothes to my father and he changed his clothes and the four persons who were standing there are Chintu Malhotra, Kallu Kashyap, Dharmender and Md. Tayyab who are present in the court today. I enquired

from accused persons as to where they were going and they told that they were resident of Hastsal, Uttam Nagar. Thereafter they borded the van and my father told me that he would be coming back the next day. When on the next day he did not returned we started searching our father but we did not find any clue thereafter I lodged the report to police which is Ex.PW4/A. and bears my signature at point A. On 2nd or 3rd day my Jeeja-ji and some nearby persons went to Hardwar to enquire the whereabouts of my father. ASI Dal Chand came to my house with the photographs of my father and I identified as the photo of my deceased father. Perhaps by the end of October or in the beginning of November 2000 I was called near Mini Bus stand where the four accused persons were present and they were identified by me."

34. In his cross-examination to a suggestion put by the

counsel for accused Chintu Malhotra and Kalu Kashyap

(appellants), he replied „it is correct that on 26.8.00 my father

had firstly gone with passengers to Hardwar and they were

the accused persons'. To another question put to him in the

cross examination on behalf of the said two accused persons

(appellants), he replied „when I was standing with my father

at the place I had asked the accused Dharmender who is

friend of my brother that where they are going on which he

replied that they are going to Hardwar as those boys were on

holiday'. To another suggestion put to him in the cross-

examination, he replied „it is correct that I had seen the

accused persons namely Chintu Malhotra and Kalu Kashyap

on 26.8.00 when they were going to Hardwar'. He denied the

suggestion that on 26.8.2000 Chintu Malhotra and Kalu

Kashyap had not gone with his deceased father to Hardwar in

the vehicle in question.

35. When asked by the learned counsel for appellant,

Dharmender in the cross-examination, he replied „it is correct

that I came to know about the names of accused persons on

making the inquiry on 26.8.00'. Appellant Mohd. Tayyab has

not questioned Jitender regarding his identity and Jitender

coming to know of his name on 26.8.2000 itself at Kaushik

Travels. Therefore, the testimony of Jitender qua him

regarding his identity remains undisputed.

36. Learned counsel for the appellants has submitted

that DD No.10A dated 29.8.2000 was recorded on an

information through Anirudh Kumar PW-8. The said DD does

not find mention the place from where the vehicle was hired

and also the names of any of the persons who had hired the

vehicle or, were detained by Bihar police for the simple

reason that till then no one knew the names of any of the

persons who had hired the vehicle. The names were given by

Jitender in his complaint Ex.PW-4/A only after the receipt of

information from Bihar. Had he known Dharmender earlier he

would have stated so in the statement Ex.PW-4/A the fact,

that he knew Dharmender from before. It is also argued that

apparently the names were disclosed in the complaint after

receipt of the information from Bihar as is clear from the

deliberate attempt made by Jitender PW-4 to conceal

knowledge of phone call received from Bihar although, prior

to that, as per his own admission, Delhi police was informed

regarding the commission of offence after receiving message

from Bihar.

37. These submissions do not lead us anywhere. DD

No.10A was never proved in evidence by the prosecution,

though much reliance has been placed on DD No.10A by the

learned defence counsel while pleading innocence of the

appellants. DD No.10A was recorded on an information

received from PCR by the duty officer, Police Station Uttam

Nagar. DD No.10A is nothing but an information which is

recorded at the police station regarding some untoward

incident or crime having taken place. It is not required to

contain all the details as is submitted by the learned counsel

for the appellants. The purpose of registration of a daily diary

is to swing into action the investigation agency to enquire into

the information so received. As discussed above, DD No.10A

was recorded on the basis of an information received from

PCR. No information was received by police station Uttam

Nagar directly from Purnia, Bihar. Details if any regarding the

names and addresses of the persons who had been

apprehended by them could have only been provided by

police officers of Purnia. There is every possibility that

Anirudh Kumar was not informed about the names of the

persons who had been apprehended by police officers of

Police Station Purnia. Under the circumstances, non-

mentioning of names of the persons who had hired the

vehicle and had left Delhi with deceased Krishan Kumar for

Hardwar in the DD No. 10A in no manner is fatal to the

prosecution case.

38. It has come in evidence that Anirudh Kumar (PW-8)

had informed PCR about having received a phone call from

SHO, Bihar pertaining to the recovery of maruti van No. DL 3C

R 1231 hired by four persons on 26.8.2000 for going to Bihar

and also that driver of the vehicle had been murdered and all

the said four persons had been apprehended. In this DD

besides the residential address of deceased Krishan Kumar

his address near Kaushik property dealer, „Delhi‟ is also

mentioned. It is on the basis of this DD that SI Dal Chand

went to Kaushik Travels where he met the complainant

Jitender Kumar and recorded his complaint Ex.PW-4/A. In his

complaint Jitender Kumar has specifically named all the four

appellants who had disclosed their names to him when he had

reached Kaushik Travels to deliver clothes to his father and

from whom he had enquired their names and who had also

disclosed their addresses as LIG Flats, Hastsal. None of the

appellants were found to be residing in LIG Flats, Hastsal.

Jitender Kumar is categorical when he said that the appellants

boarded the van and his father, deceased, drove away the

van telling him that he would come back on the next following

day. From the prosecution evidence, it is clear that at the

time when SI Dal Chand recorded the statement of Jitender

Kumar, he had no knowledge about receipt of any information

regarding recovery of the van and apprehension of the

appellants at Bihar, since this information was received by

Anirudh (PW-8). Anirudh Kumar had not met Jitender till the

complaint was lodged. From the testimony of Jitender as well

as Anirudh, it is apparent that one of the appellants

Dharmender was known to them as he happened to be the

class-fellow of Anirudh.

39. Thus, it is established on the record that Jitender

Kumar PW-4 had come to know the names of the appellants

on the day when they hired the maruti van of the deceased

Krishan Kumar for going to Hardwar and he saw all the

appellants leaving Delhi in the maruti van driven by Krishan

Kumar for Hardwar.

40. In State of UP v. M.K. Anthony - 1985 SCC

505, it has been laid down:

"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking

sentences torn out of context here or there from the evidence attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."

41. The other discrepancies as pointed out by the

learned counsel for the appellants, which have crept in during

the examination and cross-examination of Jitender Kumar and

also in the testimonies of SI Dal Chand and Anirudh Kumar

when read in context with complaint Ex.PW-4/A are minor

discrepancies and are of no consequence to the defence of

the appellants.

42. Dead body of Krishan Kumar was spotted at Rani

Pur Nehar beneath the bridge by Paramjeet Singh at about

9.00 AM in the morning of 27.8.2000. He informed SHO;

Inspector Kuldeep Singh, Police Station Jawalapur, Hardwar

about the same. The dead body was recovered by Inspector

Kuldeep Singh (PW-20) in the presence of SI Rajesh Kumar

(PW-23), const. Ramesh Chand (PW-18), const. Sohail Ahmed

(PW-22) and independent public witness Hajara Singh, a

watchman (PW-17) at about 10.30 AM. As per the post-

mortem report, which was conducted on 28.8.2000 by Dr.

Rajiv Verma (PW-13), the time since death was 1-2 days prior

to the date of post-mortem. Deceased Krishan Kumar had

left Delhi around 4.30 or 5.00 PM on 26.8.2000. They must

have reached near Hardwar around 11.00 PM. The time

since death as given by Dr. Rajiv Verma also clearly indicates

that Krishan Kumar had succumbed to his injuries on the

intervening night of 26-27.8.2000 may be early morning of

27.8.2000. The cause of death was given by Dr. Rajiv as

„from shock and haemorrhage due to ante mortem injuries‟.

43. SI Rajesh Kumar (PW-23) had prepared the

panchnama after the recovery of the dead body which was

signed by five witnesses one of whom being Hajara Singh

(PW-18). In the panchnama the description of the deceased

and the position in which his dead body was found has been

given in detail. SI Rajesh Kumar got the dead body

photographed at the spot. Panchnama also describes the

nature of injuries which were noticed on the person of the

deceased, they are:-

"lacerated wound on the right side of head, blood oozing out from nose and mouth, left side of the face compressed, swelling on chest and abdomen at various places."

44. The deceased was wearing white terricot pyajama

without string and white colour kurta, white colour vest and

readymade underwear. Since the dead body was of an

unknown person it was cremated by Sewa Samiti, Hardwar on

28.8.2000. The deceased was identified from the

photographs Ex.PW-19/B1 to B4 by Govind Singh (PW-11) and

Chander Kishore (PW-12), who happened to be neighbour and

son in law of the deceased, in police station Jawalapur on

31.8.2000 at 6.30 AM. The appellants have not disputed that

the dead body recovered by police of police station Jawalapur,

Hardwar was that of deceased Krishan Kumar. Hence the

identity of the dead body recovered at Jawalapur as that of

Krishan Kumar is established.

45. The last seen theory comes into play where the

time gap between the point of time when the deceased and

the accused were seen last alive by the witnesses and the

time when the deceased was found dead eliminates the

possibility of any person having committed murder other than

the accused becomes impossible. Undoubtedly it would be

difficult in some cases to positively establish that the

deceased was last seen with the accused when there is long

gap and possibility of other person coming between existed.

In such cases in the absence of any other positive evidence

which come to the conclusion that the accused and the

deceased were last seen together, it would not be safe for the

court to come to the conclusion of guilt.

46. In Yuvaraj Ambar Mohite v. State of

Maharashtra - 2006 (10) SCALE 369, the theory of last

seen together has been explained in the following words:

"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when 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."

Reference can also be placed on State of U.P. v.

Satish (supra) and Ramreddy Rajeshkhanna Reddy v.

State of Andhra Pradesh - 2006 (3) SCALE 452.

47. The last seen theory also becomes applicable in

certain circumstances where the deceased and the accused

were last seen together and the crime was committed soon

thereafter, even though the corpus delicti was recovered

much later. In Basant Singh v. State of Punjab - 1980

Supp. SCC 467 where the corpus was found buried in a pit

after about two or three days of the accused and the victims

were last seen together, the Supreme Court applied the last

seen together theory to uphold the conviction.

48. The last seen theory was also applied in Sudama

Roy v. State of West Bengal -1998 SCC (Cri.) 391 where

the body of the deceased was found after about two or three

months of her last seen in the house of the accused despite

the huge time lag of about two-three months, the Supreme

Court upheld the conviction.

49. As regards the testimony of Jitender, we find no

reason to discredit his testimony simply because in his

complaint Ex.PW-4/A he did not state that he knew appellant

Dharmender from before being class-fellow of his brother

Anirudh (PW-8), nor we can presume that the names were

given by the complainant in the complaint only after getting

the full information and names of the appellants from Purnia

where they were arrested. We also do not concur with the

submissions of the learned counsel for the appellants to

discredit the testimony of Jitender because of certain other

discrepancies which have been pointed out in the DD No.10A

based on the information given to the police by Anirudh

Kumar PW-8 and also that how could SI Dal Chand (PW-24)

reach Kaushik Travels directly when only the residential

address of the deceased was noted in the DD. The reasons

for disagreeing with the counsel for the appellants have

already been discussed above in detail.

50. It is natural that every person who faces crises

reacts differently. Therefore no standard reaction can be

attributed to anyone. There is no set rule that a person must

react in a particular way under a particular circumstance.

Natural reaction or behaviour of a person is unpredictable.

Human nature is such that every one reacts in his own way in

a given situation. Therefore such natural human behaviour

becomes difficult to be proved by multiple evidence. The

evidence has to be appreciated in the context and light of the

facts and circumstances of each case.

51. In State of Uttar Pradesh v. Devendra Singh -

(2004) 10 SCC 616, the Supreme Court observed:

"Human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted.

Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Some may remain tightlipped, overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a

wholly unrealistic and unimaginative way."

52. The appellants in this case, as discussed above,

were last seen with the deceased by Jitender (PW-4) at about

26.8.2000 at 4.30 PM when he saw the appellants and the

deceased leaving Delhi from Kaushik Travels for Hardwar in

maruti van Ex.P1. On 27.8.2000 the dead body of Krishan

Kumar was spotted and recovered from Rani Pur Nehar by

police of police station Jawalapur, Hardwar. The time gap

between the point of time when the appellants and the

deceased were last seen alive by Jitender PW-4 and when the

deceased was found dead is very small and the possibility of

any person other than the appellants being the author of the

crime becomes impossible. The chain of circumstance of last

seen of the deceased with the appellants and recovery of

dead body of Krishan Kumar soon thereafter has been

successfully proved by the prosecution.

53. Maruti van No. DL3C R 1271 was intercepted by SI

Rajesh Kumar Dubey on 29.8.2000 at about 9.15 PM when he

was patrolling the area of Madhopara Road, Purnia along with

SI Ajit Kumar, SI Ram Vikash Chaudhary and others. The

vehicle had to be chased by the police officers as, instead of

stopping on signal it gained speed. As per the testimony of SI

Rajesh Kumar Dubey four persons got down from the said

vehicle and started running. They were overpowered and

apprehended by them in the presence of public persons

namely Surender Kumar and Mahadev Kesari. Since on

inquiry none of those persons could give any satisfactory

reply nor could produce any document relating to the van, he

seized the van suspecting it to have been stolen. He got FIR

No. 330/2000 under Section 413/414 IPC registered at police

station Kehat, Purnia and arrested all the four persons.

Unfortunately, he did not identify the appellants as the

persons who were apprehended by him and from whose

possession the vehicle was recovered. He did identify the

maruti van Ex.P1 as the same which was seized by him.

Ironically Mahadev Kesari (PW-6) and Surender Kumar (PW-7),

the independent public witnesses in whose presence the

appellants were apprehended and the vehicle was recovered

also turned hostile. However, they did admit their signatures

on the seizure memo of the maruti van. Despite being cross-

examined by learned APP for the State, neither SI Rajesh

Kumar nor Mahadev Kesari and Surender Kumar identified the

appellants and boys who were apprehended and arrested

along with the maruti van at Madhopara Road, Purnia.

54. We note the conduct of SI Rajesh Kumar Dubey as

deprecable and unworthy of a police officer. Not only that his

testimony in the court in this case in not identifying the

appellants is an attempt to demolish the prosecution case,

but must have also come to the rescue of the appellants in

FIR No. 330/2000 under Sections 413/414 IPC in which he

himself is the investigating officer and a witness in the FIR.

55. SI Ajit Kumar (PW-14) another member of the

patrolling party at Madhopara Road has fully supported the

prosecution case. He deposed that he came to know the

names of the appellants as Chintu [email protected] Chirag

Malhotra, Kalu Kashyap, Dharmender Singh @ Vijay Singh and

Mohd. Tayyab. He identified all the appellants in the court as

the persons who were apprehended and arrested by SI Rajesh

Kumar Dubey in his presence on 29.8.2000 at about 9.15 PM.

From his testimony, it is clear that a telephone call was made

at the telephone number mentioned on a slip of KK Travel and

Tour Agency recovered from the dickey of the van and it was

on this call that they came to know that the van was hired for

Hardwar. He has also spoken about the registration of the FIR

No. 330/2000 against the appellants at Bihar. True that, he

could not exactly identify the maruti van Ex.P1 but, he did

confirm the registration number and colour of the vehicle

which was recovered from the appellants. He was confused

probably because of the sticker of KK Tours and Travel

Agency not on the van when shown to him in the court.

Instead, one board bearing words „Zila Adhyaksh Samajwadi

Party‟ was seen by him on the vehicle which according to him

was not there at the time of its seizure. It is obvious that the

appellants were not apprehended from inside the maruti van.

They were overpowered when they got down from the maruti

van and started running away from the police party. They

were chased and apprehended.

56. SI Dal Chand reached Purnia on 31.8.2000. On

coming to know of the arrest of the appellants in FIR No.

330/2000 and also that appellants were in judicial custody he

filed an application in the court of Chief Judicial Magistrate on

the same day seeking the production of the appellants in the

concerned court at Delhi. The appellants remained in judicial

custody in the said case registered against them at Purnia for

being found in possession of stolen maruti van Ex.P1 for

about two months before they were brought to Delhi by SI Dal

Chand (PW-24) on 1.11.2000 and were formally arrested in

this case after they were produced in the court on 3.11.2000.

57. In their respective statements recorded under

Section 313 Cr.P.C. appellant Chintu Malhotra in answer to

question no.35 admitted that he was detained by police

officials of police station Kehat. In reply to question no.39

though he said that he was falsely implicated, has admitted

that he was arrested in this case on 3.11.2000 when he was

produced in the court. However, in reply to question no. 15 he

replied that he did not know driving nor holds any driving

licence.

58. Similarly appellant Gyan Chand Kashyap @ Kalu

Kashyap in reply to question no.19 has said that he was

falsely implicated in FIR No.330/2000. Same is his reply to

question no.35 when he said that he was detained by police

officials of P.S. Kehat. In reply to question no.39 though he

said that he was falsely implicated, has admitted that he was

arrested in this case on 3.11.2000 when he was produced in

the court. However, in reply to question no. 15 he replied that

he did not know driving nor holds any driving licence.

59. Appellant Dharmender in tune with the other

appellants in reply to question no. 19 and question no. 35 has

stated that he was falsely implicated in FIR No. 330/2000 and

also in this case on his arrest on 3.11.2000. In reply to

question no.15 he has stated that he does not know driving or

holds any driving licence.

60. Appellant Mohd. Tayyab Alam has also not denied

that he was arrested in FIR No.330/2000 at Police Station

Kehat though, he said that he was falsely implicated. In reply

to question no.39 he said that he was falsely implicated.

However he has admitted that he was arrested in this case on

3.11.2000 when he was produced in the court. In reply to

question no.35 also that he has deposed that he was falsely

implicated and he was detained by police officials of Kehat.

Unlike other appellants in reply to question no.15 he only

replied that he was falsely implicated and was not

accompanying any of the accused persons in the alleged

maruti van.

61. Thus, it is clear that all the appellants in their

statements under Section 313 Cr.P.C. did not deny the factum

of their apprehension and arrest by police officials of police

station Kehat, Purnia, Bihar in case FIR No. 330/2000.

62. Examination of an accused under Section 313

Cr.P.C. not only affords opportunity to the delinquent to

explain incriminating circumstances against him but also to

help the court to appreciate the entire evidence adduced

before it during the trial. The answer to a question given by

an accused sometimes may be a flat denial or an outright

repudiation of the circumstance put to him. It is also that in

certain cases accused would offer some explanations to

incriminative circumstances. Possibility of accused admitting

or owning incriminating circumstance adduced against him

are also there, may be for the purpose of adopting legally

recognised defences.

63. All the appellants in their statements have taken a

defence that maruti van Ex.P1 was not recovered from them

nor they were driving the said vehicle. Even if the defence of

the appellants is accepted that three of the appellants did not

know driving and did not possess driving licence, the fact

remains Mohd. Tayyab Alam one of the appellants knew the

driving and must be the person who was driving the maruti

van when it was intercepted by SI Rajesh Kumar Dubey at

Madhopara Road, Kehat, Purnia. Also he being native of

Purnia was fully in the geographical know how of his place.

64. The admission on the part of the appellants that

they were apprehended and arrested at Purnia, is in

consonance with the registration of FIR No. 330/2000 under

Sections 413/414 IPC for being found in possession of stolen

maruti van DL 3C R 1271, arrest of the appellants, disclosure

of their names to the investigating officer, their remaining in

judicial custody for two months and their arrest in this case on

execution of production warrants on 3.11.2000, their

identification by complainant Jitender and recovery of maruti

van No. DL 3C R 1271 from their possession clearly

establishes their identity as the persons who had hired maruti

van Ex.P1 driven by deceased Krishan Kumar on the pretext

of going to Hardwar.

65. Simply because SI Rajesh Kumar Dubey has not

supported the case of the prosecution in full, his testimony

cannot be completely discredited. Though Mahadev Kesri

PW-6 is totally hostile but he admitted his signatures on the

seizure memo Mark X of maruti van Ex.P1. Surender Kumar

PW-7 while admitting his signatures on the seizure memo

Mark X deposed that he had signed the seizure memo Mark X

after maruti van was seized in his presence. Therefore, he

admitted the seizure of maruti van by SI Rajesh Kumar Dubey

in his presence. His testimony also therefore cannot be

completely ignored. It is cardinal principle of law that unless

the credibility of the witness is completely shaken and he

does not stand the test of cross-examination by the party who

called in evidence, that part of his statement, which in the

opinion of the court is creditworthy can be relied and acted

upon provided it finds corroboration from the other evidence

on the record.

66. In Sat Paul v. Delhi Administration - AIR 1976

SC 294, it was laid down by the Supreme Court as follows:

"It emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence

of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto."

67. Thus it is clear that trivial discrepancies are not

fatal to the otherwise acceptable evidence.

68. Learned counsel for the appellants has

emphasized that from the evidence of the prosecution as

adduced on the record, especially the document Ex.PW-21/B

it can be safely inferred that the vehicle was recovered on

28.8.2000, that a phone call was received from Bihar on

28.8.2000 and that the whereabouts of Krishan Kumar were

known on 29.9.2000 before DD No.10A was recorded.

69. It is argued that report no.7 Ex.PW-21/B and DD

No.10A totally demolishes the prosecution case of arrest of

the appellants with maruti van at around 9.15 pm on

29.8.2000. These documents are in consistence with the plea

of the appellants of recovery of vehicle on 28.8.2000 and

vehicle being planted on them the next night which is the

apparent reason for the delay in recording of FIR No.

330/2000 at Police Station Kehat, Purnia at 2.00 AM on

30.8.2000.

70. Govind Singh (PW-11) had given an application in

writing in the police station Jawalapur disclosing the names of

the persons who had visited the police station along with him.

In the said application, as recorded in Ex.PW-21/B, he penned

down that on Monday, 28.8.2000 a telephone call was

received from police station Purnia, Bihar at the residence of

Krishan Kumar Dixit informing that their maruti van along

with four persons had been intercepted at Purnia. On

interrogation the said boys disclosed that they had thrown

away the driver of the vehicle about 20 kilometers before

Hardwar beneath the bridge (pul). He also noted in the

application that on seeing photograph of the deceased at the

police station he and the other persons who accompanied him

have identified the dead body of Krishan Kumar. He also

stated the fact that on 29.8.2000 FIR No.786/2000 under

Sections 365/34 IPC was got registered and that police party

had already left for Purnia on 30.8.2000. Except this

document there is no evidence on the record to indicate that

any telephone call was received at the residence of Krishan

Kumar Dixit, the deceased, on 28.8.2000.

71. It is possible that a telephone call was received as

alleged and it was on receipt of this call the search of the

deceased was made by Jitender and Anirudh from the house

of Dharmender who was class-fellow of Anirudh and was

known to them from before. True that, some contradictions

have come in the cross-examination of these two witnesses

regarding the visit to the house of Dharmender, but those are

minor and in no manner demolish the testimony of these two

witnesses regarding their visit to Dharmender‟s house.

72. It is pertinent that Govind Singh was contacted by

the wife and son (Jitender) of the deceased only in the early

morning of 31.8.2000. While disclosing the details of the

incident and the information received in the application

submitted at police station Jawalapur, he noted down the

dates on his memory, may be gathered impression. Be that

as it may the contents of his application are based on hearsay

and are therefore inadmissible in evidence.

73. It was only when Jitender and Anirudh failed in

their efforts to search Krishan Kumar or to find out his

whereabouts, it seems that DD No.10A was got recorded at

police station Uttam Nagar. Hypothetically it is possible that

the police officers of Purnia spotted the vehicle with the

appellants on 28.8.2000 and after coming to know driver of

the vehicle having been thrown away near Hardwar and

locating a telephone number from the vehicle itself, that a

telephone call was made at Krishan Kumar Dixit‟s house on

28.8.2000. It is also possible that a telephone call was

received by Anirudh at his office.

74. Significantly, DD No.10A does not find mention of

any specific place at Bihar from where the telephone call was

allegedly received. As per testimony of Anirudh (PW-8) he

found the voice of the caller similar to that of Dharmender. It

is possible that this call was made by appellant Dharmender

only with a view to inform the family members of Krishan

Kumar that they (the boys travelling in the vehicle) had killed

the driver of the vehicle and had gone to Bihar. Had the

vehicle been intercepted or seized by police station Kehat,

Purnia, before receipt of DD No.10A, by Anirudh, the caller of

the telephone who described himself as SHO would have

given his name as well as the name of place where the

vehicle was intercepted to Anirudh, thereby giving specific

information about the seizure of the vehicle. DD No.10A

does not find mention of the date of the telephone call which

was received by Anirudh regarding the seizure of the vehicle

and apprehension of the four persons and murder of the

driver of the vehicle. Any information recorded in the Daily

Diary does not assume the characteristic of an FIR for the

simple reason that the information is so recorded in the DD

through various channels and information so recorded might

not be very accurately given under the facts and

circumstances of a case. Under these circumstances,

therefore, much authenticity cannot be attached to the

contents of DD No.10A which, even otherwise has not been

proved in evidence though, much relied upon by the counsel

for the appellants.

75. The police officers of police station Kehat, Purnia,

registered an FIR against the appellants probably after

coming to know that the said vehicle was a stolen vehicle

may be on interrogation from the appellants or after they had

a conversation with Anirudh at the telephone contact number

which was traced out from maruti van. There is a serious

lapse, sheer callousness on the part of the investigating

officer SI Rajesh Kumar Dubey when he belatedly got

registered FIR No.330/2000 against the appellants on the

intervening night of 29-30/8/2000 only after informing the

family members of Krishan Kumar at Delhi. This explains the

discrepancies which have appeared regarding the date when

the information was received at Delhi, the time of recording of

the DD No.10A at 12.10 PM and the registration of FIR

No.330/2000 both on 30.8.2000 which are only attributable to

SI Rajesh Kumar Dubey.

76. Naturally on receipt of DD No.10A SI Dal Chand

(PW-24) proceeded with the investigation of the case. He

visited Kaushik Travels where he recorded the statement of

Jitender and he also recorded the statement of Anirudh at his

residence. As pointed out, when these two statements were

recorded, Anirudh and Jitender had not conversed with each

other and therefore Jitender was not in the know of any

information received on telephone by Anirudh and also

recording of DD No.10A at police station Uttam Nagar.

77. It is pertinent that since SI Dal Chand knew Mohd.

Tayab Alam from before being resident of the ilaqa and also

the fact that he was resident of Purnia he decided to go to

Purnia on coming to know of his name as one of the persons

who had hired the vehicle while recording complaint Ex.PW-

4/A and with the permission of the senior authorities he left

Delhi on the night of 29.8.2000 itself and reached Purnia on

31.8.2000. It was only when he went to police station Kehat

that he came to know of the registration of FIR no. 330/2000

under Sections 413/414 IPC against the appellants, seizure of

the vehicle and also that the appellants were in judicial

custody. He made every endeavour to ensure that the

appellants were brought to Delhi with the permission of the

CJM Purnia for further investigation of this case.

78. The manner in which the PCR was informed by

Anirudh, recording of the DD No.10A and the recording of

statement of Jitender Kumar and Anirudh by the investigating

officer on receipt of telephone call speaks volumes of the

mental condition of Jitender, the complainant, Anirudh (PW-8)

and of their anxiety to find out the whereabouts of their

father. In this whole process how they reacted to the

situation is obvious from the record.

79. Much has been argued by the learned counsel for

the appellants that the FIR No.330/2000 is ante dated and the

actual culprits were someone else who have been scot free

and appellants have been falsely implicated in this case.

However, we find no force in these arguments. As discussed

above, SI Dal Chand (PW-24) had reached Purnia only in the

morning of 31.8.2000. When he reached Police Station FIR

was already registered against the appellants. Not only this,

appellants had been produced before the C.J.M. Purnia and

were remanded to judicial custody in the said FIR registered

against them at Purnia. He had moved an application before

the C.J.M. Purnia, seeking transfer of the appellants to Delhi

as they were wanted in this case. C.J.M. vide his order dated

1.9.2000, had allowed the application so filed by SI Dal

Chand. Therefore, under these circumstances, there was no

occasion or cogent reason for SI Rajesh Kumar Dubey of

Police Station Purnia to ante date the FIR and falsely implicate

the appellants in this case by planting the recovery of the

vehicle from them after recovering it from someone else. As

discussed above, all the appellants in their statements under

Section 313 Cr.P.C. did admit that they were arrested at

Purnia on 30.8.2000.

80. Learned APP for the State has submitted that any

lapse in the investigation of the case and follies committed by

the prosecution should not weigh in the mind of the court and

should not be allowed by the court to become escape route

for the criminal especially when there is sufficient evidence of

guilt by broader probabilities. It is also argued that since the

appellants were found absconding from the day of incident till

29.8.2000 when they were apprehended along with the

maruti van of the deceased a presumption under Section 114

of the Evidence Act is clearly made out against them.

81. In State of West Bengal v. Mir Mohammad

Omar and Ors. - 2000 SCC (Cri.) 1516, it was held that 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.

Court should bear in mind the time constraints of the police

officers in the present system, ill-equipped machinery they

have to cope with, and the traditional apathy of respectable

persons to come forward for giving evidence in criminal

cases. These defects have to be faced by police officers when

they conduct investigation in almost every case.

82. In Visveswaran v. State = 2003 Rajdhani Law

Reporter 350 (SC) where the victim was raped by a police

official in a hostel and the case was based on circumstancial

evidence, it was observed:

"Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.

83. In the present scenario the conduct of SI Rajesh

Kumar Dubey has already been highlighted and deplored by

us. It seems that either he tried to save the appellants and in

that endeavour committed serious follies after apprehending

the appellants till the time he thought the necessity of taking

a legal action against them. Even otherwise, the appellants

were detained and vehicle was seized by SI Rajesh Kumar

Dubey on suspicion and he thought of registration of a case

against the appellants only when it was revealed on

investigation that the vehicle was stolen one. These serious

lapses in the investigation of the case and the follies

committed by the prosecution do not weigh in our mind nor

can the appellants be allowed to highlight these discrepancies

to make an escape route for themselves especially when

there is sufficient evidence adduced on record by the

prosecution and proved against the appellants of their guilt of

having kidnapped Krishan Kumar and murdered him with an

intention to steal away maruti van from his possession. To

execute their plans in furtherance of their common intention,

they hired the vehicle for Hardwar on 26.8.2000 from Krishan

Kumar who also happened to be the driver of the vehicle.

Significantly one of the appellants Dharmender who was

known to the sons of Krishan Kumar must be also known to

him. Absence of appellants since the evening of 26.8.2000 till

their arrest by SI Rajesh Kumar Dubey at Purnia is also an

aggravating circumstance against them. Therefore, lapses in

the investigation of the case and mistakes committed by SI

Rajesh Kumar Dubey in no manner can be considered fatal to

the prosecution case in view of the prosecution having

succeeded in bringing home the guilt of the appellants.

84. From the circumstances established by the

prosecution this Court has every power to presume the

existence of certain facts like the vehicle being driven by one

of the appellants from Hardwar to Purnia after having

disposed of the body of the driver, interception of the vehicle

at Purnia, the efforts of the appellants to abscond but their

apprehension by local police at Purnia and their arrest in a

case of having found in possession of stolen property. There

are the circumstances which raise adverse inference against

the innocence of the appellants. We therefore legitimately

draw presumption not only to the fact that the appellants

from whose possession the stolen vehicle was recovered,

committed robbery but also to the fact that they committed

the murder of Krishan Kumar.

85. In State of West Bengal v. Mir Mohammad

Omar and Ors. (supra) where a person was abducted and

was taken out of the sight witnesses and was wearing a

particular colour of short and within couple of hours the

murdered body of such person was found in a hospital without

the shirt and the said shirt was concealed by one of the

appellants and the abductors failed to give any explanation as

to what happened to the deceased after he was abducted by

them, it was observed that when the prosecution succeeded

in establishing such circumstances the court has to presume

the existence of certain facts as presumption is a course

recognised by the law for the court to rely on the conditions

such as this. It was observed:

"33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the

court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."

Accordingly, the appeal of the State was allowed

and the appeals of the convicted persons were dismissed.

Conviction was maintained under Section 364 and 302 read

with Section 34 IPC.

86. In this case the chain of incriminating

circumstances proved against the appellants are:

a. Appellants hired maruti van No. DL 3C R 1271

Ex.-P1 at 4.00 PM on 26.8.2000 at Kaushik Travels for going to

Hardwar.

b. Victim Krishan Kumar was the driver of the

said maruti van.

c. Complainant Jitender last saw the appellants

along with deceased Krishan Kumar leaving Delhi in the said

maruti van at about 4.30 PM for Hardwar.

d. Krishan Kumar did not come back on

27.8.2000 as informed by him to Jitender on 26.8.2000 while

leaving for Hardwar with the appellants.

e. Dead body of an unknown person (later on

identified as Krishan Kumar) was recovered from Rani Pur

Nehar, Jawalapur, Hardwar, at about 10.30 AM on 27.8.2000

by Inspector Kuldeep Singh (PW-20) and SI Rajesh Kumar

(PW-23) in the presence of other police officials and

independent public witness Hajara Singh (PW-17).

f. The dead body was got photographed by SI

Rajesh Kumar (PW-23) at the spot from photographer

Surender Kumar (PW-19). He prepared panchnama which

was signed by five witnesses, including Hajara Singh.

g. The dead body was post-mortemed by Dr.

Rajiv Verma (PW-13), H.M.G. District Hospital, Hardwar on

28.8.2000.

h. The doctor found various injuries on the

person of the deceased. He opined the cause of death as

shock and haemorrhage due to ante mortem injuries.

i. The dead body was identified as that of

Krishan Kumar by Chander Kishore (PW-12) and Govind Singh

(PW-11) from the photographs Ex.PW-19/B1 to B4 shown to

them at police station Jawalapur and also by Jitender (PW-4)

and Anirudh (PW-8) when shown to them by SI Dal Chand at

police station Uttam Nagar.

j. The maruti van was intercepted at

Madhopara Road, Kehat, Police Station Purnia by SI Rajesh

Kumar Dubey in the presence of SI Ajit Kumar and other

witnesses.

k. The appellants were apprehended and the

vehicle was recovered from them by SI Rajesh Kumar Dubey

and other police officials.

l. Appellants were arrested in FIR No. 330/2000

for being found in possession of suspected to be stolen

property i.e. the vehicle and were sent to judicial custody.

m. They remained in judicial custody in the said

case for two months and were arrested in this case only on

3.11.2000 after they were brought to Delhi by SI Dal Chand in

execution of production warrants.

n. The appellants have been identified as the

persons who had left Delhi with Krishan Kumar in the evening

of 26.8.2000 and the persons who were apprehended at

Purnia along with the vehicle.

87. From the proved circumstances as above we are

satisfied that appellants had abducted Krishan Kumar with a

motive to rob him away of his vehicle after murdering him.

The appellants are the only persons who knew what

happened to Krishan Kumar till he was with them. The dead

body of Krishan Kumar was found soon after the abduction,

the recovery of the vehicle from their possession and their

apprehension after 2-3 days of the abduction of Krishan

Kumar clearly draws the presumption that appellants had

murdered Krishan Kumar specially when the appellants have

not disclosed as to what happened to Krishan Kumar till he

was with them. Therefore, the presumption of fact that

appellants had murdered Krishan Kumar in the intervening

night of 26-27.8.2000 at Jawalapur, Hardwar can be inferred

under the existing facts and circumstances of this case,

specially, when the truth of such inference has not been

disproved by the appellants.

88. Principles embodied in Section 106 of the Evidence

Act that when any fact is within the knowledge of any person,

the burden of proving that fact is upon him, also becomes

applicable in the circumstances of this case. This section in

no manner relieves the prosecution of its burden to prove the

guilt of the accused beyond reasonable doubt but, this section

does apply to cases of the like nature where the prosecution

has succeeded in proving facts from which a reasonable

inference can be drawn regarding the existence of certain

other facts and circumstances, unless the accused by virtue

of his special knowledge regarding such facts, failed to offer

any explanation which might drive the court to draw a

different inference.

89. Section 106 of the Evidence Act is so designed as

to meet certain exceptional cases in which it would be

impossible, or at any rate disproportionately difficult for the

prosecution to establish facts which are especially within the

knowledge of the accused and which he could prove without

difficulty or inconvenience.

90. In a case of circumstantial evidence, an accused

offers an explanation which is found to be untrue then the

same offers an additional link in the chain of circumstances to

complete the chain. As discussed above, the explanation

given by the appellants in their statement is found to be

untrue and therefore, their untrue statement and explanation

also finds an additional link to the chain of circumstances to

complete the chain.

91. In Trimukh Maroti Kirkan v. State of

Maharashtra - JT 2006 (9) SC 50, it was observed:

"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh MANU/SC/0585/2003). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case

would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

It was further observed that : -

"In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."

92. In the present case none of the appellants have

disputed that they were present at Purnia when they were

apprehended by the patrolling party of police station Kehat.

The recovery of the vehicle from them also stands proved on

the record. They took false defence in their respective

statements under Section 313 Cr.P.C. that they did not know

driving. As already discussed above, one of the appellants

Mohd. Tayyab Alam has not stated that he does not know

driving or was not having any driving licence. Therefore, one

of the appellants did know driving and was the person who

drove vehicle to Purnia where it was intercepted and seized.

For the theft of the vehicle the appellants have already been

arrested in case FIR no. 330/2000 by police authorities of

police station Kehat for which the appellants faced trial and

also remained in custody for substantial period. It was in

their knowledge as to what happened to Krishan Kumar till he

remained in their company upto Hardwar. However no such

explanation has been offered by any of the appellants, except

their total denial of having hired the vehicle for going to

Hardwar and recovery of the vehicle from them. The various

links in the chain, when taken in isolation, might not connect

the appellants with the commission of the crime but when

taken together they unmistakably point out the guilt of the

appellants.

93. From the evidence of the prosecution as

successfully adduced on the record, we find the chain of

circumstances leading to the abduction of Krishan Kumar and

his murder by the appellants and recovery of vehicle Ex.P1

from their possession is complete. Consequently, we reach to

an irresistible conclusion that appellants had abducted

Krishan Kumar with an intention to murder him and also that

they had murdered him and disposed of his body and robed

him of his maruti van. They have been rightly convicted and

sentenced for offences under Sections 364/302/34 IPC by the

trial court.

94. We find no merits in these appeals. These are

accordingly dismissed.

ARUNA SURESH, J.

PRADEEP NANDRAJOG, J.

May 11, 2009 jk