Sarvind Kumar @ Sonu vs State
2010 Latest Caselaw 1427 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on : 11th March, 2010
                    Judgment Pronounced on: 15th March, 2010

+                        Crl.APPEAL No.679/2007

        SARVIND KUMAR @SONU                        ..... Appellant
                     Through:        Ms.Charu Verma, 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 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

01.07.2007 the appellant has been convicted for the offences

punishable under section 394/302 IPC and his brother Hari

Chand has been convicted for the offence punishable under

Section 411 IPC. For the offence of murder, the appellant has

been sentenced to undergo imprisonment for life and for the

offence of robbery he has been sentenced to undergo RI for 7

years. Hari Chand has been sentenced to undergo RI for 9

months.

2. Probably for the reason by the time he was

convicted, Hari Chand had already undergone the sentence

imposed upon him, he has not preferred any appeal

challenging his conviction.

3. In convicting the appellant the learned trial judge

has held that the testimony of PW-7 and PW-8 proved that the

appellant was employed as a helper on the RTV by Anil

Raizada PW-8 and that the appellant used to keep his bag in

house No.C-1, Arjun Nagar where Smt.Raj Rani the mother of

Anil Raizada resided and that the appellant took leave for a

few hours at 3:00 PM on 24.03.2004 but never returned. His

bag was not found in house of Smt.Raj Rani who was found

murdered in her house by PW-7 and PW-8 when they went to

the house of Raj Rani at 9:00 AM on 25.03.2004 and a bag

containing the valuable of the deceased as also the money

which Anil Raizada PW-8 had given to his mother was found

missing; after he was apprehended, as recorded in the

personal search memo Ex.PW-7/B, Rs.80,000/- in denomination

of Rs.1000/- each was recovered from his pocket as also a

chocolate colour diary, a passbook issued by Punjab National

Bank and an election identity card issued by the Election

Commission of India to the deceased were recovered as

entered in the memo Ex.PW-7/B; thereafter the appellant

made the disclosure statement Ex.PW-7/C informing that he

gave Rs.70,000/- out of the loot to his brother Hari Chand upon

whose arrest and pursuant to his disclosure statement Ex.PW-

7/G Rs.70,000/- were recovered the notes being in the

denomination of Rs.500/-. The learned trial Judge has held

that as per Anil Raizada PW-8 he had given Rs.88,000/- to his

mother in denomination of Rs.1000/- each as also two bundles

of notes in denomination of Rs.500/- each and interestingly the

money recovered from the appellant was in denomination of

Rs.1000/- each and that from his brother was in the

denomination of Rs.500/- each.

4. It is apparent that the fate of the appellant would

be decided with reference to the testimony of Anil Raizada PW-

8 and Satpal PW-7, an employee of Anil Raizada, as also with

respect to the evidence pertaining to the recoveries effected

from the appellant at the time of his arrest.

5. Let us deal with the evidence pertaining to the

disclosure statement Ex.PW-7/C of the appellant and the

recoveries shown in the memo Ex.PW-7/B from him when he

was arrested.

6. As per the evidence, when the appellant was

apprehended Satpal PW-7 was present; Satpal is a witness to

the seizure memo Ex.PW-7/B as also the disclosure statement

Ex.PW-7/C. The seizure memo Ex.PW-7/B records the recovery

of a diary Ex.P-1, a voter identity card Ex.P-2, a passbook Ex.P-

4 issued by the Punjab National Bank and Rs.80,000/- in

denomination of Rs.1000/- from the personal search of the

appellant. In the disclosure statement it stands recorded that

he can get recovered the jewellery of the deceased from the

house of his in-laws. None was recovered. As per further

disclosure statement Ex.PW-15/A of the appellant, he informed

that the bag containing the jewellery had been thrown by him

in a canal in Azamgarh U.P. As deposed to by SI Beer Singh

PW-15, on 31.03.2004, the appellant led him to the said spot

and pointed out, as recorded in the memo Ex.PW-15/B, the

spot in the canal where the bag was thrown, but none was

recovered.

7. We note that Anil Raizada PW-8 has deposed in

Court that his mother used to keep jewellery and money in a

bag, he deposed that he gave Rs.1 lac to his mother in

denomination of Rs.500/- each and he gave Rs.88,000/- to his

mother in denomination of Rs.1000/- each, but in his complaint

on basis whereof the FIR has been registered, he has not

stated having given any money to his mother.

8. That Anil Raizada claims for the first time while

deposing in Court that he gave Rs.1,88,000/- to his mother a

few days prior to when her dead body was found on

25.03.2004 and he not having given said information in his

statement Ex.PW-8/C to the Investigating Officer who reached

the house of his mother on being informed about his mother's

death, throws considerable doubt whether at all he spoke the

truth. Rs.1,88,000/- is not so small amount and could not have

been ignored by Anil Raizada when he gave the statement

Ex.PW-8/C to the Investigating Officer in the morning of

25.03.2004. There is every possibility that the recovery from

the appellant and his brother of Rs.80,000/- and Rs.70,000/-

respectively was planted with Anil Raizada actively

participated in the plant. It is in this connection it is relevant

that Anil Raizada's servant Satpal PW-7 is a witness to both

the recoveries.

9. Anil Raizada has given no explanation as to why he

gave Rs.1,88,000/- to his mother. He has given no proof of

being possessed with so much money. His claim that he sold a

vehicle a few days prior, without any particulars of the vehicle

and his claim that he gave the money to his mother is doubtful

for the reason why would he do so, assuming he sold the

vehicle? His mother, as per him was staying alone and why

would Anil Raizada entrust so much money with his old mother

and not keep the money with him in his house which was

better fortified as his wife was in the house. His house was

better guarded than his mother's.

10. That apart, we find it strange that the appellant

would go to Azamgarh and throw the stolen jewellery articles

in a canal and retain with him useless but highly incriminating

articles such as the identity card issued by the Election

Commission of India, the personal diary of the deceased and

the passbook issued by Punjab National Bank in the name of

the deceased.

11. Qua the recoveries attributable to the appellant and

his brother, we hold that the same do not inspire any

confidence for the reasons noted hereinabove. It is

unfortunate that the learned trial Judge has ignored that in his

statement Ex.PW-8/C Anil Raizada did not tell the Investigating

Officer that he had given Rs.1,88,000/- to his mother. Further,

the learned Trial Judge has not even bothered to discuss as to

why appellant would retain with him useless incriminating

articles and would throw in the canal the valuable jewellery

items.

12. No doubt, the testimony of Satpal PW-7 and Anil

Raizada PW-8 establishes that the appellant was employed by

Anil Raizada as a helper in the RTV van owned by Anil Raizada

and that his employment was about two months old and that

he took leave on 23.03.2004 and probably never came back,

but we find it strange that the appellant would be keeping his

bag in the house of the deceased with whom the appellant had

nothing to do. As per Anil Raizada, the appellant used to keep

his i.e. the appellant's bag in the house of his i.e. Anil

Raizada's mother. Why would the appellant do so?

Appellant's brother Hari Chand, as per the evidence led by the

prosecution, was a resident of Sangam Vihar, Delhi.

13. Sangam Vihar is a colony in South Delhi. As per

Anil Raizada, his RTV van was attached with the DAV School

Yusuf Sarai, New Delhi, which is a colony in South Delhi. Thus,

the natural place for the appellant to keep his personal

belongings was the house of his brother in Sangam Vihar. It is

not that the work place of Anil Raizada was far removed from

Sangam Vihar. Had this been so, we could have understood

the necessity for the appellant to keep his personal belongings

not in the house of his brother but elsewhere.

14. Under the circumstances the sole incriminating

evidence against the appellant of being the employee of Anil

Raizada and the appellant absconding since the afternoon of

23.03.2004 needs to be weighed with reference to the claim of

the appellant that he left employment on 20.03.2004 because

Anil Raizada was not paying his salary.

15. Conscious of the fact that Anil Raizada is a small

time transport operator and was probably carrying on business

inofficiously and was not maintaining the record of his

business as required by the Income Tax Laws, but not even an

unofficious document being proved that he gave salary to the

appellant, if not more, requires the benefit to be given to the

appellant of the finding that he told the truth of having left

employment inasmuch as he was not given proper wages. We

note that as per Satpal PW-7 and Ani Raizada PW-8, the

appellant was employed on 10.02.2004 and one would expect

that after one month, some money would be paid by way of

wages to the appellant and an informal receipt obtained if not

a formal one.

16. Even otherwise said evidence of the appellant

absconding after 24.03.2004 would be insufficient evidence

wherefrom it can be said that the chain of circumstances is

complete from which circumstances the inference of guilt

alone and innocence being ruled out can be inferred.

17. It would be interesting to note that when the

Investigating Officer deposed and the requirement of

identifying the money recovered from the appellant and his

brother as claimed by the prosecution arose, it was reported

that from the Malkhana of the police station the money which

was recovered had been stolen.

18. Well, we can only sympathize with Anil Raizada and

hope that in future he would not help in planting, if indeed he

has done so in the instant case.

19. The appeal is allowed. The impugned judgment

and order dated 01.02.2007 convicting the appellant is set

aside. The appellant is acquitted of the charge framed against

him.

20. Since the appellant is in jail we direct that a copy of

this decision be sent to the Superintendent Central Jail, Tihar

for necessary action.

PRADEEP NANDRAJOG. J

SURESH KAIT. J

MARCH 15, 2010 'mr'