Dhirender Singh Tomar vs State
2009 Latest Caselaw 4770 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 13th November, 2009
                    Judgment Delivered on: 23rd November, 2009

+                       CRL A 293/2008

       DHIRENDER SINGH TOMAR                 ....Appellant
               Through: Ms.Purnima Sethi, Advocate

                               Versus

       STATE                                      ....Respondent
                    Through:   Mr.M.N.Dudeja, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers 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


PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 15.9.2007,

the learned Trial Judge has convicted Dhirender Singh Tomar

(hereinafter referred to as the appellant) for the offences

punishable under Section 302/307/392/120-B IPC. For the

offence of murder, the appellant has been sentenced to

undergo imprisonment for life and to pay a fine in sum of

Rs.3,000/-. For the offence of attempt to murder, he has been

sentenced to undergo rigorous imprisonment for a period of 7

years and to pay a fine in sum of Rs.2,000/-. For the offence of

robbery, he has been sentenced to undergo rigorous

imprisonment for 7 years and to pay a fine in sum of Rs.1,000/-.

All sentences have been directed to run concurrently.

2. Briefly stated, the case of the prosecution is that

appellant Dhirender and his three associates namely; Dheeraj,

Bahadur Singh Negi and Ajay Kumar (Proclaimed Offenders)

hired a commercial vehicle bearing No.RJ 14 5C 1853 from Raj

Kumar PW-6 the proprietor of Gangawat Travels; the vehicle

being registered in the name of Chottu Ram Meena but

possession thereof entrusted to Banwari Lal PW-5. While hiring

the vehicle the four told Raj Kumar that they had to carry goods

to Delhi. At the time of hire, the driver of the vehicle was

Banwari Lal Vyas (the deceased). When the accused loaded the

goods i.e. 4 drums, at the request of Banwari Lal Vyas, Munna

Lal PW-2 accompanied all in the vehicle which reached Delhi at

late night. Two out of the four drums were left in the house of

Sanjay Verma PW-4, the cousin brother-in-law of the appellant.

Thereafter, all the accused along with the deceased and Munna

Lal PW-2 took food which was purchased en-route by accused

Dheeraj (Proclaimed Offender) and was laced with a stupefying

drug and as a result the deceased and Munna Lal PW-2 lost

conscious. Both of them were strangulated and thrown in a

garbage dump. Whereas Munna Lal PW-2 did not die, the

deceased did. The vehicle took on hire was stolen and could not

be recovered till date. The two drums which were left at the

residence of PW-4 were recovered.

3. Process of law was set into motion, when at about

9.00 AM on 17.3.2001, two bodies were found lying at a

garbage dump at C-1, DDA Market Flat, Mayur Vihar, Phase-III.

Liyakat Ali PW-1 who was running a shop nearby, informed the

police control room about the same. ASI Jawahar Singh PW-10

who was posted in a PCR van stationed near the place of

occurrence, reached the spot and found one dead body and one

injured person lying there. He removed the injured person to

Lal Bahadur Shastri Hospital. In the meantime, information was

conveyed to PS New Ashok Nagar, where DD No.12-A, Ex.PW-

16/A, was recorded. SI Sanjay PW-18 was entrusted the

investigation of said DD and accompanied by Const.Bale Ram

PW-14, he reached the said spot. On learning that an injured

had been shifted to Lal Bahadur Shastri Hospital he went to said

hospital and collected the MLC Ex.PW-7/A of an injured unknown

person. Since the patient was not fit for making any statement,

SI Sanjay made an endorsement Ex.PW-18/B on the copy of DD

No.12-A and sent it for registration of an FIR. After the

registration of the FIR Ex.PW-16/B, the investigation was

transferred to Insp.Ashwani Kumar PW-23. Insp.Ashwani Kumar

got photographed the spot where the bodies were noted and

lifted blood stained control earth from the spot. He seized the

dead body of an unknown person and prepared the inquest

papers and forwarded the body and the papers to the mortuary

at Lal Bahadur Shastri Hospital with a request that the body be

preserved for 72 hours as it was unidentified.

4. No progress could be made for the next 3 days as

the police got no clue. On 21.3.2001, the injured who was

admitted in Lal Bahadur Shastri Hospital, was declared fit to

make a statement. Insp.Ashwani Kumar recorded his statement

wherein he disclosed that his name was Munna Lal and that on

16.3.2001 one Dheeraj @ Chhotu and his 3 other associates

hired a white coloured Mahindra Marshal Vehicle bearing No. RJ

14 5C 1853 from Gangawat Travels to take 4 drums containing

chemicals from Jaipur to Delhi. That the said vehicle was given

on rent by the agency, only at the guarantee of one Kamal. The

vehicle was driven by Banwari Lal Vyas, and at the request of

Dheeraj, he also accompanied them to Delhi. At about 12:30

AM in the intervening night of 16/17.3.2001 they reached Kondli

and visited the house of a brother-in-law (jija) of Dheeraj. They

were carrying packed dinner with them, which they ate outside

the said house and before continuing with their journey, left two

of the four drums at the house of the brother-in-law of Dheeraj.

After that he became unconscious and regained consciousness

only when he was in the hospital.

5. Since on the basis of the said statement of Munna

Lal, Insp.Ashwani Kumar learnt the name of the deceased and

his being a resident of Jaipur, information was conveyed at the

office of Gangawat Travels, Jaipur about the incident and as a

result two relatives of the deceased came to Delhi and identified

the dead body as that of Banwari Lal Vyas. After the dead body

was identified on 21.3.2001 itself, Dr.L.C.Gupta PW-17,

conducted the post-mortem on the body and prepared his

report Ex.PW-17/B. He opined that the death was homicidal and

that the cause of death was asphyxia resulting from sustained

and forceful constriction of the neck with the help of ligature

material, which was sufficient in the ordinary course to cause

death. He recorded the existence of ligature marks on the neck

of the dead body.

6. Munna Lal led the police team to Kondli and from

the house of Sanjay Verma PW-4, got recovered the two drums

left at the house of PW-4 by the accused persons, as recorded in

the seizure memo Ex.PW-4/A. Statement of Sanjay Verma

under Section 161 Cr.P.C. was recorded as per which Chottu

(Dheeraj) was a neighbour of his father-in-law. He disclosed

that Chottu and his brother Kala (the appellant), along with two

other persons had come to his house at late night in the

intervening night of 16th and 17th March 2001 and after

unloading two drums sat outside his house and took meals and

thereafter left.

7. It is apparent that the appellant, his brother Dheeraj,

Bahadur Singh Negi and Ajay Kumar were the persons whose

involvement in the crime has surfaced as per the statement of

Munna Lal.

8. On 24.3.2001, Insp.Ashwani Kumar arrested

Dhirender Singh Tomar i.e. the appellant who confessed to the

crime. Since nothing incriminating has been recovered from the

appellant or pursuant to his statement Ex.PW-18/G, we need not

note further because the statement being a confession to the

police is inadmissible in evidence.

9. The other three co-accused could not be

apprehended and were declared proclaimed offenders.

10. The appellant was put to trial and the prosecution

examined 25 witnesses. Since the case of the prosecution is

based on the last seen evidence given by PW-2 and PW-4, we

note only their testimonies for the reason in convicting the

appellant the learned Trial Judge has held that the testimony of

PW-2 establishes that the appellant along with his three

associates took on hire from Raj Kumar PW-6 vehicle bearing

registration No.RJ 14 5C 1853 which was driven by the deceased

and the journey commenced from Jaipur. The appellant and his

associates travelled in the vehicle to Delhi, in which vehicle PW-

2 was a co-passenger. On reaching Delhi the vehicle parked

outside the house of PW-4 where the appellant and his

associates took food along with the deceased and PW-2, before

that 2 out of 4 drums which were being transported were kept in

the house of PW-4. The food being laced with some stupefying

drug, PW-2 and the deceased lost consciousness. Both were

strangulated and thinking that both were dead, their bodies

were thrown in a garbage dump nearby the house of PW-4. The

motive for the crime was to rob the vehicle, which indeed was

robbed and could not be recovered.

11. At the trial Raj Kumar PW-6 the proprietor of

Gangawat Travels deposed that the vehicle was with him

through Banwari Lal PW-5 and that on 16.3.2001 he let on hire

the vehicle to Dheeraj on the guarantee of one Kamal, a driver.

He was told that some goods had to be transported to Delhi. He

deposed that the vehicle was being driven by the deceased

Banwari Lal Vyas. Banwari Lal PW-5 deposed that the vehicle in

question was registered in the name of Chottu Ram Meena but

he was the owner thereof. The driver of the vehicle was

Banwari Lal Vyas. On 16.3.2001 his vehicle was hired by

someone through Munna Lal but the vehicle never returned. We

may note that both the witnesses were not cross examined.

12. Munna Lal PW-2 deposed that accused Dheeraj was

known to him since a year prior to the incident. On 16.3.2001

accused Dheeraj and his three friends visited him and asked

him to arrange for a vehicle to carry drums to Delhi. Appellant

Dhirender was one of the three associates of Dheeraj. He took

them to Gangawat Travels, where on an assurance given by a

driver Kamal, Gangawat Travels agreed to provide them with a

vehicle. The vehicle assigned to them was a Mahindra Marshall

bearing registration No.RJ 14 5C 1853 and it was to be driven by

Banwari lal. On the request of Dheeraj, he i.e. Munna Lal also

agreed to go to Delhi with them. Dheeraj and his associates

loaded four drums in said vehicle. At around midnight, they

reached Kondli and visited the house of a brother-in-law of

Dheeraj. The accused persons were carrying packed food with

them, which they ate outside the house of the brother-in-law of

Dheeraj. After eating, he i.e. PW-2 became unconscious and

regained consciousness only at the hospital where he learnt that

the driver Banwari Lal had died.

13. Sanjay Verma PW-4 deposed that he knew appellant

Dhirender @ Kala and his brother Chhotu as they were distant

relatives of his wife Poonam. At around 12.30 midnight in the

intervening night of 16/17.3.2001, Chhotu and Kala visited him

at his residence in Kondli with 2/3 other persons. They left two

drums of pesticide at his house, which drums, after 2/3 days

were handed over by him to the police when police visited his

house for investigation of the present case.

14. The post-mortem report of the deceased was proved

through the testimony of Dr.L.C.Gupta PW-17, which

conclusively establishes that the deceased died due to manual

strangulation i.e. his death was a clear case of murder.

Dr.Tapas Chatterjee PW-7 proved the MLC Ex.PW-7/A of Munna

Lal PW-2 which clearly establishes that an attempt was made to

murder Munna Lal.

15. At the hearing of the appeal, learned counsel for the

appellant made a two-fold submission. First, it was urged that

Munna Lal PW-2, in his statements i.e. the one made to the

investigating officer and the other made in court, repeatedly

named Dheeraj and his associates as the ones whom he

accompanied. In his testimony in Court, he first identified the

appellant as Dheeraj and only later on, corrected himself by

stating that the appellant was Dhirender. That even while

describing the incident, at most of the places, he names Dheeraj

and not Dhirender. As such, the learned counsel urged that

Dhirender was not the culprit and since he is the brother of

Dheeraj, he has been wrongly inculpated by the prosecution.

The second argument of the counsel was that the two crucial

witnesses; being, Kamal, the driver on whose guarantee

Gangawat Travels gave the accused persons the vehicle on hire

and who had also seen the accused persons, the deceased and

Munna Lal PW-2 together before they left for Delhi; and

Poonam, the wife of Sanjay Verma PW-4 who was also present

at the house when the accused persons left two drums there;

being material witnesses ought to have been examined and

they not being examined entitled the appellant to be acquitted.

16. The second submission is without any legal basis.

Suffice would it be to state that it is the quality of the evidence

and not the quantity thereof which is relevant at any trial. A

single truthful witness carries more weight than a thousand

liars. Repeatedly stated lies never become truth and a truth

once stated is sufficient.

17. There is no need to duplicate witnesses. There is no

need to cite two witnesses who deposed to the same fact. What

would have Kamal deposed if brought as a witness? He would

have, at best, deposed that at his guarantee the vehicle was

given on hire by Raj Kumar to Dheeraj and at that time the

appellant was with his brother and so were the two other co-

accused. This has been deposed to by PW-2. There was no

need to duplicate the evidence. Similarly, what would Poonam

the wife of Sanjay Verma have deposed? She would have

simply deposed that the appellants were the neighbours of her

father, a fact deposed to by PW-4 Sanjay Verma.

18. Now, Sanjay Verma is a close acquaintance of

Dheeraj and his brother, the appellant. He has no axe to grind.

Why should he depose falsely? He has not even been cross

examined. No suggestion has been put to him that he has

deposed falsely. The evidence establishes that the appellant

along with his brother Chottu had come to his house at 12:30 in

the intervening night of 16th and 17th March, 2001 along with

two or three persons. They had travelled in a white Marshal

vehicle. They had brought their meals with them. They kept

two drums in his house and after taking meals left the place and

that after 2-3 days the police recovered two drums Ex.P-1 and

P-2 from his house. It is apparent that the testimony of Sanjay

Verma establishes the presence of appellant in the house of PW-

4 and that the vehicle in question was outside the house of PW-

4.

19. No doubt, PW-2, has fumbled with words in that he

referred to the appellant as Dheeraj at the first instance but

immediately corrected himself by stating that he was referring

to Dhirender i.e. the appellant, went on to depose as noted

above. It is true that in his further deposition he kept on

referring to Dheeraj. But, therefrom it cannot be urged that the

witness was lying.

20. A perusal of the testimony of PW-2 evidences that for

unexplainable reasons he got stuck up with the name Dheeraj

and kept on talking about Dheeraj. The reason is obvious. His

testimony as also the testimony of Raj Kumar shows that

Dheeraj was playing an active role. It does happen that where

out of a group, one of them plays an active role, the witnesses

keep on referring to him and his associates with the difference

that the said person is named and the others are referred as the

associates.

21. The testimony of PW-2 establishes that the appellant,

his brother Dheeraj and two more accused were with the

deceased and PW-2 when they took food. The DD entries and

the testimony of SI Sanjay PW-18 establishes that the dead

body of the deceased was recovered from a garbage dump at

Mayur Vihar Phase III which is near village Kondli where the

accused took meals along with PW-2 and the deceased. This

was the place where PW-2 was picked up in an unconscious

condition. The theory of last seen evidence clearly comes into

play. So proximate is the time when the crime was committed

to the place of last seen that any reasonable person would

conclude that the appellant and his three co-accused who are

proclaimed offenders are the offenders unless the appellant

explains when did he part company with the deceased and the

injured [AIR 1955 SC 801 Deonandan Mishra Vs. State of Bihar,

(2002) 8 SCC 45 Bodhraj @ Bodha & Ors. vs. State of Jammu &

Kashmir and (2003) 7 SCC 37 Babu S/o Raveendran vs. Babu S/o

Bahuleyan & Anr., 2003 (8) SCC 93 Amit @ Ammu Vs. State of

Maharashtra and 2005 (3) SCC 114 State of UP Vs. Satish]. The

testimony of PW-2 clearly establishes that he lost consciousness

immediately when he ate the food. At that point of time, the

appellant was present.

22. The vehicle which was took on hire is missing and

has till date not been traced.

23. We find no merit in the appeal which is dismissed.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 23, 2009 mm