Bhupinder Kumar vs State
2010 Latest Caselaw 1011 Del

R-81 & 82
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision: 22nd February, 2010

+                     CRL.APPEAL NO.375/2006

       BHUPINDER KUMAR                                ..... Appellant
               Through:              Mr.Harsh Jaidka, Advocate.

                                     versus

       STATE                                         ..... Respondent
                      Through:       Ms.Richa Kapoor, A.P.P.

+                     CRL.APPEAL NO.390/2006

       PRAVEEN KUMAR                                  ..... Appellant
                Through:             Mr.R.M.Tufail, Advocate.

                                     versus

       STATE                                         ..... Respondent
                      Through:       Ms.Richa Kapoor, A.P.P.


       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. (Oral)

1. Vide impugned judgment and order dated

31.3.2006, while acquitting accused No.3 Alok Kumar, accused

No.1 and accused No.2 i.e., Bhupinder Kumar and Praveen

Kumar have been convicted for the offences punishable under

Sections 364/394/302/201/34 IPC.

2. Vide order on sentence dated 7.4.2006, they have

been sentenced to undergo imprisonment for life for the

offence of murder. For the offence of abduction they have

been sentenced to undergo imprisonment for 10 years. For

the offence of robbery they have been sentenced to undergo

imprisonment for 10 years and for the offence of destroying

evidence they have been sentenced to undergo imprisonment

for 7 years.

3. It has been directed that all sentences shall run

concurrently. We understand this to mean that save and

except the sentence for life imprisonment, all sentences would

run concurrently and upon undergoing imprisonment for 10

years the sentence for the offence punishable under Sections

201/394/364 would be treated to have been undergone.

4. As we would be proceeding to note the facts of this

case pertaining to the investigation and the evidence led, it is

apparent that the same profiles a very gloomy picture of how a

crime has been treated by the police, not only in the Union

Territory of Delhi but even in the State of Uttar Pradesh.

5. But before that, we may note that in convicting the

appellants, the learned Trial Judge has held that the testimony

of Anubhav Rana PW-3 proved the fact that the appellants

were a group of 3 persons who had hired a Tata Indica car

used as a taxi bearing registration No.DL-9CC-5521 in the

early hours of the night of 15.5.2002. The driver of the taxi

Kamakhyya Mahato was found murdered en-route to Aligarh,

the destination as per Anubhav Rana PW-3. After the

appellants were apprehended they made disclosure

statements and pursuant to the disclosure statement of the

appellant Bhupinder, three documents, being photocopies of

the registration certification, certificate of insurance and the

insurance policy of the car were got recovered by him from his

house. After Praveen was apprehended and even he having

made a disclosure statement, got recovered the key of the car

as also the battery thereof. Thereafter, both appellants jointly

got recovered the number plate of the car as also a belt used

to strangulate Kamakhyya Mahato. In a nutshell, the

conviction of the appellants has been sustained with reference

to the last seen evidence and the recoveries afore-noted. The

recoveries being linked to the car in question. It is apparent,

the motive for the crime was to steal the car and thereafter

sell the same.

6. It is interesting to note that while deposing in Court

Anubhav Rana PW-3, also stated that co-accused Alok was the

third person seen by him in the company of the appellants

when they hired the taxi, but on account of no recoveries

being effected pursuant to the disclosure statement of Alok, on

the sole evidence of his being last seen, the learned Trial Judge

has given him the benefit of doubt.

7. That a crime was committed within the jurisdiction

of PS Dadri in the State of UP finds official mention for the first

time on 3.7.2002 when pursuant to a written complaint Ex.PW-

7/1 signed by Rajender Yadav S/o Mool Chand PW-2, a '0' FIR

No.256/2002 was registered. Prior thereto, some DD entries,

not proved at the trial, must have been recorded at the said

police station on 16.5.2002 for the reason on said date the

dead body of a male was found in an open area in the

jurisdiction of PS Dadri. From the pocket of the dead body a

visiting card was found and as deposed to by Rajender Yadav

PW-2, the visiting card was his. Somebody from PS Dadri

informed him that a dead body had been found, having in the

pant pocket, his visiting card. He went to PS Dadri and

identified the dead body as that of his driver Kamakhyya

Mahato.

8. Post-mortem was got conducted of the dead body

of Kamakhyya Mahato on 17.5.2002 at the District Hospital

Ghaziabad. As deposed to by Ashutosh Mishra PW-1, he found

5 injuries on the dead body caused by a sharp edged weapon

as also a blunt object. Injury No.4 was the most dangerous

injury. The frontal and the parietal bones of the skull were

depressed. Brain matter was lacerated. Cause of death was

shock due to laceration of the brain as recorded in the post-

mortem report Ex.PW-1/1. No evidence of strangulation with a

ligature material has been noted.

9. One would have expected that an FIR for the

offence of murder was registered at PS Dadri on 16.5.2002.

No FIR was registered till 3.7.2002 when Rajender Yadav made

a written complaint Ex.PW-7/1 to the SHO PS Dadri. It was

only on 3.7.2002 that FIR No.256/2002 was registered at PS

Dadri and that too a '0' FIR.

10. It appears that Rajender Yadav PW-2 kept on

running here and there. The police at Uttar Pradesh washed

its hands off for the reason he had informed them that his

motor vehicle, a Tata Indica car bearing registration No.DL-

9CC-5521 was being used as a taxi and on 15.5.2002, 3

persons had hired the same from Delhi to go to Aligarh.

11. As deposed to by HC Dashrath Singh PW-9, when he

was posted at PS Vasant Kunj (Delhi), on 14.9.2002 he

registered FIR No.495/2002 pertaining to the offence in

question.

12. Things happened at a fast pace thereafter.

13. The only thing in the knowledge of Delhi Police was

that 3 persons had committed the crime. This fact was to the

knowledge of the police at Delhi with reference to the written

complaint Ex.PW-7/1, which was obtained by the police at PS

Vasant Kunj from their counterparts at PS Dadri UP.

14. No description of the three persons was given in the

complaint. Their age, their height, their built, their physical

features, their complexion; none whatsoever was given.

15. Even the car had not been recovered.

16. Unknown to the police at PS Dadri UP and the police

at PS Vasant Kunj (Delhi); as deposed to by Const.Ram Pal

Sharma PW-10, the car in question which was found

abandoned was deposited in the maalkhana of PS Sihani Gate

on 15.6.2002.

17. Who found the car? Who informed the police at PS

Sihani Gate? None of these question has been answered for

the reason no evidence has been brought on record save and

except the fact, as proved by PW-10, that the car was

deposited in the maalkhana of PS Sihani Gate on 15.6.2002.

18. It is obvious that three persons had to be caught.

19. But what did the police do at PS Vasant Kunj?

20. One would have expected that at least on

14.9.2002 or soon thereafter the statements of Rajender

Yadav PW-2 and that of his employee Anubhav Rana PW-3

should have been recorded under Section 161 Cr.P.C. Nothing

of this sort was done.

21. The statement of Anubhav Rana PW-3 should have

been immediately recorded for the reason in the written

complaint Ex.PW-7/1 dated 3.7.2002, Rajender Yadav had

mentioned the fact that the three persons who had taken on

hire his car were seen by his employee Anubhav Rana when he

had gone with the driver to Vasant Kunj on receipt of a

telephonic call that a car be sent at the address C-2/1213

Vasant Kunj. After three persons boarded the car, the driver of

the car dropped Anubhav Rana at R.K.Puram, the place where

Anubhav Rana resided.

22. Surprisingly, the police at Vasant Kunj did nothing

and never recorded the statement of Anubhav Rana PW-3 till

4.10.2002, the date when his statement was recorded under

Section 161 Cr.P.C. for the first time.

23. What happened prior thereto is interesting.

24. As claimed by the investigating officer SI Bane

Singh PW-11, he was informed that one Manoj who had been

arrested in FIR No.602/2002 PS Jahangirpuri had confessed to

the crime and had named one Joginder @Joga as his co-

conspirator and co-participator in the crime. He also disclosed

that a third person who used to be with Joginder was involved

in the crime. SI Bane Singh obtained a copy of the aforesaid

confession Ex.PW-11/DA of Manoj.

25. Thinking that he had got the first fish, SI Bane Singh

arranged for a test identification of Manoj and brought along

with him Rajender Yadav to carry out the test identification.

26. The hopes and aspirations of SI Bane Singh got

dashed when Rajender Yadav PW-2 made a categorical

statement during test identification proceedings that Manoj

was not the boy who was a part of the three who took his car

on hire.

27. Obviously, the case had to be started afresh. Manoj

and the two other boys named in the disclosure statement of

Manoj could obviously not be put in the net.

28. What we wish to highlight is how the police

managed to extract a false confession from Manoj. It speaks

for the manner in which the investigation, at least in the

instant case, proceeded.

29. The next crucial day is 1.10.2001 when as claimed

by SI Bane Singh PW-11, on a secret informer giving him

information, he arrested appellant Bhupinder and recorded his

confession-cum-disclosure statement Ex.PW-3/3 on 1.10.2002

as per which Bhupinder told him that after killing the driver of

the car the original registration papers and the insurance

papers were handed over to one Davinder PW-4 for car to be

sold and that photocopies thereof were retained by him. He

also told him that he could get recovered the number plate of

the car and a belt with which the deceased was strangulated.

He thereafter led SI Bane Singh to his house and as recorded

in the seizure memo Ex.PW-3/4 got recovered photocopy of

the registration certificate Ex.PW-5/1 of the car; photocopy of

the policy of insurance Ex.PW-5/2 of the car and photocopy of

the certification of insurance Ex.PW-5/3 of the car.

30. Bhupinder disclosed that Praveen and Alok were his

co-participants in the commission of the crime. Praveen was

the next person to be apprehended as claimed by SI Bane

Singh, on 2.10.2002. He made a disclosure statement Ex.PW-

5/4 and admitted to the crime. He informed that the key of

the car was with him and as also the battery of the car which

he had removed. He told that the number plate of the car and

the belt used to strangulate the deceased could be got

recovered by him. He led SI Bane Singh to his house and as

recorded in the seizure memo Ex.PW-3/6 got recovered a key

Ex.P-3 and a battery Ex.P-4 from his house, both of which were

identified by Rajender Yadav PW-2, when he deposed in Court,

as the key of his car and the battery of his car. Thereafter

Bhupinder and Praveen led the police to a place near a drain

and got revered the number plate Ex.P-1 which was seized as

per memo Ex.PW-2/2 and a belt which was seized as per

memo Ex.PW-2/3. The last to be apprehended was co-accused

Alok. He was apprehended on 4.10.2002. He made a

confessional statement Ex.PW-11/F. He got recovered nothing.

31. Surprisingly, after apprehending the three accused

and after recording their disclosure statements, SI Bane Singh

recorded statement of Anubhav Rana PW-3 under Section 161

Cr.P.C. It is interesting to note that the said statement is a

narrative of the past events which had already transpired

including the narrative of the fact that the three accused were

shown to him in the police station and he had identified them

as the ones who had taken on hire the TATA Indica Car.

32. Rajender Singh PW-2, who has stated in his written

complaint Ex.PW-7/1 that he and Anubhav Rana PW-3 had

gone to Vasant Kunj after they had received a telephone call to

send a taxi has deposed at variance in court. He does not

claimed to have gone to Vasant Kunj when a call was received

at his office to send a taxi. He stated that only Anubhav Rana

went with the driver to the Vasant Kunj after the call in

question was received. Anubhav Rana PW-3 deposed that he

went along with the driver to C-2/1213, Vasant Kunj to deliver

the taxi to the caller who has desired to go Aligarh and that

when they were looking for the flat in question accused

Bhupinder met them and said that he had rang up. He had

desired to hire a taxi and that appellant Praveen and co-

accused Alok were with him. The three sat in the car. Even he

sat in the car. He was dropped at Sector-1, R.K.Puram.

33. But, we cannot lose sight of the fact that the

statement of this witness was recorded under Section 161

Cr.P.C. on 04.10.2002 i.e. after all the accused were

apprehended and their disclosure statements-cum-

confessional statements were recorded.

34. It is apparent, in any case, this probability cannot

be ruled out that Anubhav Rana's statement under Section

161 Cr.P.C. was recorded to tailor make the same to suit the

convenience of the prosecution.

35. Under the circumstances, it would be most unsafe

to rely upon the testimony of Anubhav Rana, who has

incidentally, on being cross-examined made hesitating

statements regarding his identifying appellant Praveen, for the

reason he stated that when he and the driver reached Vasant

Kunj, it was dark and that the person whom he was identifying

as Praveen in court was on the other side. We understand that

what he intends to say was that Praveen sat in the rear seat of

the car by opening the door from the other side of the car.

36. Thus, the evidence of last seen would be very

shaky.

37. On the issue of recoveries, suffice would it be to

state that as held in the decisions reported as JT 2008 (1) SC

191 Mani Vs. State of Tamil Nadu, 1999 Crl.LJ 265 Deva Singh

Vs. State of Rajasthan, AIR 1994 SC 110 Surjeet Singh Vs.

State of Punjab, AIR 1977 SC 1753 Narsinhbhai Haribhai

Prajapati etc. Vs. Chhatrasinh & Ors. and AIR 1963 SC 1113

Prabhu Vs. State of UP recovery of ordinary objects is treated

as very weak evidence.

38. We find it strange that Bhupinder would be

retaining with him photocopies of useless documents. We find

it strange that Praveen would be retaining with him the battery

of a car. The battery Ex.P-4 has been identified by Rajender

Singh Yadav PW-2 as the battery of his car. We wonder how?

The prosecutor has not brought on record the fact that the

battery had any distinct mark thereon, in relation to which,

Rajender Singh Yadav could have said with some degree of

assurance that the battery was of his car. Further, no Test

Identification Proceedings were conducted with respect to the

battery. As regards the key Ex.P-3 got recovered from

Praveen, the possibility of the same being planted cannot be

ruled out. We take judicial notice of the fact that whenever a

motor vehicle is purchased, two keys thereof are handed over

to the owner. Thus, the key in question being the second key

with Rajender Singh Yadav PW-2 and the same being planted

cannot be ruled out.

39. As regards the recovery of the number plate Ex.P-1

of the car as recorded in the seizure memo Ex.PW-2/2 and the

recovery of the belt as entered in the seizure memo Ex.PW-

2/3; both being recovered at the joint instance of Praveen and

Bhupinder, we note that both recoveries are from an open

space accessible to all. The date of recovery is 02.10.2002.

The crime was committed on 15.05.2002. The time lag and the

place of recovery as also nature of the articles recovered

would render it most unsafe to sustain the conviction of

Bhupinder and Praveen with reference to the said recoveries.

40. It is also of importance to note that the car was

abandoned and recovered on 15.06.2002. It is obvious that

those who had stolen the car had abandoned it and had not

desired to sell the same. Under the circumstances, what use

would be the title documents of the car or their photocopies or

the key of the car to any person? We note that Davinder PW-4

has not admitted to have received any papers of the car.

41. Unfortunately, the learned trial Judge has ignored

the aforesaid circumstances and especially the fact that there

are traces of a desperate police force attempting to nab

someone or the other. The confession got recorded from Manoj

highlights the aforesaid supposition which is in the realm of a

probable reality.

42. It is settled law that pertaining to serious crimes,

the standard of proof has to be higher, for the reason even

death may be the penalty which the court can impose in a

case of abduction followed by murder.

43. It is unfortunate that a crime has gone unpunished

but the same is due to the callous manner in which the crime

was treated and investigated.

44. The appeals are allowed. Impugned Judgment and

order dated 31.03.2006 convicting the appellants for the

offences for which they were charged is set-aside. The order

of sentence dated 07.04.2006 is quashed. The appellants are

acquitted of the charges punishable under Sections

364/394/302/201/34 IPC.

45. Since the appellants are in jail, we direct that a

copy of the present decision be sent to the Superintendent,

Central Jail, Tihar for compliance. Needless to state if not

required in custody in any other case, the appellants are

directed to be set free forthwith. The fine, if any, deposited by

the appellants pursuant to the sentence imposed is directed to

be returned to the appellants.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE February 22, 2010 dkb / nks