Charanjit & Ors. vs State (N.C.T. Of Delhi)
2010 Latest Caselaw 1580 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of Decision: 22nd March, 2010

+        CRIMINAL APPEAL NO. 311/1997

         NARESH                                           ....APPELLANT
                                    Through:   Mr. Harish Khanna, Advocate.

                           Versus

         STATE (N.C.T. OF DELHI)                           ....RESPONDENT
                            Through:           Mr. Sunil Sharma, APP

                                          WITH


         CRIMINAL APPEAL NO. 375/1997

         CHARANJIT & ORS.                                 ....APPELLANTS
                                    Through:   Mr. Harish Khanna, Advocate.


                           Versus

         STATE (N.C.T. OF DELHI)                           ....RESPONDENT
                            Through:           Mr. Sunil Sharma, APP


         CORAM:
         HON'BLE MR. JUSTICE A.K. SIKRI
         HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.       Whether Reporters of local papers
         may be allowed to see the judgment?

2.       To be referred to the Reporter or not ?
3.       Whether the judgment should be
         reported in Digest ?


AJIT BHARIHOKE, J. (ORAL)

1. The above appeals are directed against the impugned judgment

dated 16th July 1997 in Sessions Case No.127/95 FIR No.73/92 P.S.

Zaffarpur Kalan in terms of which the appellants have been convicted

of charges under Section 302 IPC read with Section 34 IPC and Section

364 IPC read with Section 34 IPC as also the consequent order on

sentence dated 17th July 1997.

2. Briefly stated, case of the prosecution is that on 10th September

1992, PW1 Umed Singh visited the P.S. Zaffarpur Kalan at around

12:50 p.m. and reported to Shri Rohtas Singh, SHO that on 05th

September 1992 at around 3:30 p.m., he had gone to meet his cousin

Rakesh (for short "deceased) at Taxi Stand Bahadurgarh. In the

meanwhile, the appellants Naresh Kumar, Kishore Kumar, Charanjit and

Anil came there and asked the deceased that they wanted to hire a

taxi for going to Gurgaon. The taxi rate was settled as Rs. 350/-.

Thereafter, the appellants left for Gurgaon in Maruti Van No.

DL-4C- 4753 alongwith the deceased. The deceased, however, did not

return back and since he often used to stay out of station for 3/4 days,

they did not suspect anything. On 08th September 1992, ASI Raj Kumar

of P.S. Bahardurgarh City told him that he had received an information

from Bara Banki that four boys alongwith Maruti Van No. DL-4C-4753

had been arrested by Bara Banki Police. On receipt of this information,

he (complainant Umed Singh) alongwith PW2 Rajender Singh and PW5

ASI Raj Kumar went to Bara Banki, where they found Maruti Van

DL-4C-4753 of the deceased Rakesh parked at Kotwali Bara Banki. The

appellants were also there at the police station. He took them aside

and talked with the appellants separately and each one of the

appellants disclosed that they had consumed liquor with the deceased

at Gurgaon. Thereafter, they took him to Jhatikra Drain in Delhi, killed

him and after committing the murder, they threw his dead body in the

drain and took the van to Bara Banki for selling it. He also averred in

his complaint that they returned back to Delhi on the morning of 10th

September, 1993 and went to Jhatikra Drain in search of the dead

body, which was found in the drain. SHO Rohtas Singh Yadav (PW27)

recorded his statement Ex.PW1/B.

3. On the basis of the aforesaid complaint Ex.PW1/B, formal FIR

Ex.PW27/B was registered and SHO Rohtas Singh Yadav (PW27) took

over the investigation. On completion of the investigation, he filed

charge-sheet against the appellants.

4. The appellants were charged for the offences of abduction and

murder of the deceased Rakesh. However, it appears that though one

of the charges was for murder, but due to typographical mistake in the

formal draft of charge, it has been described as an offence punishable

under Section 304/34 IPC whereas it should have been under Section

302/34 IPC. Be that as it may, learned counsel appearing on behalf of

the appellants has submitted that while defending the case, he was

conscious of the charge against the appellants and this typographical

error has not caused them any prejudice.

5. In order to bring home the guilt of the appellants, prosecution has

examined as many as 27 witnesses. The important witnesses, however

are PW1 Umed Singh, Complainant, PW2 Rajender Singh, who

supposedly accompanied the complainant to Bara Banki on 08th

September, 1992, PW3 Dharme, PW5 ASI Raj Kumar of P.S.

Bahadurgarh City and the officials of police station Bara Banki who

purportedly recovered the Van and arrested the appellants, namely

PW7 Constable Girja Shankar, PW9 SI Vijay Raj Singh, PW23 Inspector

Shalender Bahadur Chand, PW25 Constable Suresh Dutt Tiwari and

PW26 SI Shiv Prasad Yadav.

6. The appellants were examined under Section 313 Cr.P.C. to

explain the incriminating circumstances appearing against them. They

pleaded innocence and stated that prosecution has foisted a false case

upon them.

7. The learned Trial Judge, on appreciation of evidence, found the

appellants guilty of the offence of abduction of the deceased Rakesh

and his murder, and convicted the appellants under Section 364/34 IPC

as well as Section 302/34 IPC.

8. The case of the prosecution rests on the circumstantial evidence.

As per the impugned judgment, the prosecution relied upon the

following circumstances:

(i) Deceased Rakesh was last seen alive on 5.9.92 at 3.30 p.m. at Bahadurgarh Taxi Stand in the company of the four accused persons.

(ii) On 9.9.92 at 11.00 p.m. all the four accused persons were arrested at the Police Check Post, Mohammad Pur, P.S. Kotwali, Bara Banki, U.P. when they came there from the side of Lucknow in Maruti Van No. DL-4C-4753.

(iii) On interrogation at P.S. Kotwali Bara Banki the accused persons disclosed that they had thrown the dead body of Rakesh in Jhatikra Drain at Delhi.

(iv) Recovery of dead body of Rakesh from Jhatikra Drain on 10.9.92.

(v) The post-mortem examination conducted by Dr. L.K. Baruah (PW8), who found 23 incised wounds on the dead body and opined that the injuries were caused by a sharp edged weapon and the cause of death was due to haemorrhagic shock as a result of the injuries and he fixed the probable time of death as 5 or 6 days prior to the post-mortem examination.

9. It transpires on perusal of the impugned judgment that the

learned Trial Judge did not find the circumstance number (iii) firmly

established on the record. Existence of circumstances No. (iv) and (v) is

not disputed. Thus, the prosecution case rests on two incriminating

circumstances i.e. the deceased was last seen alive on 5th September

1992 at 3.30 p.m. at Taxi Stand Bahadurgarh in the company of the

appellants and on 9th September 1992 at about 11:00 p.m., the

appellants were arrested at the police check post Mohammad Pur, P.S.

Kotwali Bara Banki, U.P, when they were coming from the side of

Lucknow in Maruti Van No. DL-4C-4753.

10. Learned counsel for the appellants has submitted that the Trial

Court has committed a grave error in appreciation of evidence by

ignoring the fact that in a case based on circumstantial evidence, the

prosecution, in order to succeed, is under obligation to establish the

relied upon incriminating circumstances firmly and the circumstances

so proved on record must form a chain so complete as to lead to an

irrefutable inference of guilt of the accused and rule out any possibility

of the accused being innocent. Learned counsel submitted that in the

instant case, the prosecution has neither been able to establish the

recovery of Maruti Van from the appellants, as stated in the charge-

sheet nor the last seen circumstance has been firmly established,

therefore, the Trial Court ought to have extended at least the benefit of

doubt to the appellants.

11. Learned counsel for the State, on the other hand, has argued in

support of the impugned judgment. He contended that the learned

Trial Court has rightly relied upon the testimony of PW1 Umed Singh

and PW3 Dharme to conclude that the deceased was last seen in the

company of the appellants at Taxi Stand Bahadurgarh on 05th

September 1992. He also submitted that the learned Trial Court has

rightly relied upon the testimony of the officials of U.P. Police posted at

P.S. Kotwali Bara Banki namely SI Ram Babu (PW21), Inspector

Shalender Bahadur Chand (PW23), Head Constable Rama Shankar

Singh (PW24), Constable Suresh Dutt Tiwari (PW25) and SI Shiv Prasad

Yadav (PW26) to conclude that the appellants were arrested at Bara

Banki on the night of 09th September 1992 while coming in Maruti Van

No. DL-4C-4753 from the side of Lucknow. Thus, he urged us to

dismiss the appeal.

Circumstance (i)

12. In order to prove this circumstance, the prosecution examined

three witnesses namely PW1 Umed Singh, PW3 Dharme and PW4

Kartare. PW4 Kartare turned hostile and he did not support the case of

the prosecution. The other two witnesses have testified that on 05 th

September, 1992 at around 3.30 p.m., the appellants had come to

Bahadurgarh Taxi Stand to hire a Taxi. They hired Maruti Van No.

DL-4C-4753, which the deceased Rakesh used to ply. They further

stated that Rakesh left with the accused persons in said Maruti Van and

never returned thereafter. Learned Trial Court has believed aforesaid

version of PW1 Umed Singh and PW3 Dharme. Learned counsel for the

appellants submitted that aforesaid version of the witnesses is not

reliable as it is belied by the report of the Crime Team Ex.PW14/DA

wherein it is recorded in the column of „advice to the Investigating

Officer‟ that the dead body was identified by the cousin brother of the

deceased Umed Singh (PW1) and he narrated that "the deceased had

left the house by the Maruti Van on 05th September, 1992".

13. The learned Trial Judge has dealt with the above argument in

Para „8‟ of the impugned judgment and he has, inter alia, observed

thus:

"8. The accused have relied on the crime team report Ex.PW14/D-A to discredit Umed Singh. In column 13 of the report, the incharge of Crime Team writes that Umed Singh narrated that the deceased had left the house by the Maruti Van on 5.9.92. From this recital ld. Counsel wants me to conclude that Umed Singh had seen Rakesh for the last time at the house and not at the Taxi Stand. I don't think that the recital in the Crime Team Report can be used to discredit the witness. It is not a statement under 161 Cr.P.C. which could be used for purpose of contradiction. Moreover Umed Singh states that he made no statement to the Crime Team. The incharge of Crime Team was merely giving a gist of the information gathered by him at the spot and he was not expected to be very meticulous".

It is true that the observation in the Crime Team Report Ex.PW14/DA is

not in the nature of the statement of PW1 Umed Singh under Section

161 Cr.P.C. However, the fact remains that in his report Ex.PW14/DA,

the Incharge, Crime Team has mentioned that Umed Singh (PW1)

identified the dead body of Rakesh and narrated that the deceased had

left his house in Maruti Van on 05th September, 1992 which raises a

strong doubt against the version of PW1 Umed Singh and PW3 Dharme

that they last saw the deceased alive in the company of the appellants

on 05.09.1992 at around 03:30 p.m. at Taxi Stand Bahadurgarh. The

aforesaid doubt is further compounded by the fact that PW5 ASI Raj

Kumar has stated that on 06th September, 1992, PW1 Umed Singh met

him and told that his cousin Rakesh has not returned home for 3 or 4

days. If the aforesaid version of ASI Raj Kumar is true, then the

deceased was missing since much prior to 05th September 1992, as

such, witnesses could not have seen him alive on 05th September 1992

at Bahadurgarh Taxi Stand. Thus, we do not find the last seen

evidence produced by the prosecution reliable.

Circumstance (ii)

14. Constable Girja Shankar (PW7), Head Constable Rama Shankar

Singh (PW24), Constable Suresh Dutt Tiwari (PW25) and SI Shiv Prasad

Yadav (PW26) are the witnesses of arrest of the appellants and

recovery of the Maruti Van. All these witnesses were posted at Police

Post Mohd. Pur, P.S. Kotwali Bara Banki on 09th September, 1992. They

have stated in the court that while they were checking the vehicles, the

appellants came from the side of Lucknow in Maruti Van No.

DL-4C-4753. The van was stopped at the check barrier and the

appellant Charanjit, who was driving the van, on enquiry, gave his

name as Ramesh. However, on sustained interrogation, he disclosed

his real name but could not produce the driving licence. They further

stated that a "karoli" was recovered from the possession of the

appellant Kishore and knives were recovered from appellants Anil and

Naresh. Thus, all three of them were booked under Section 27 of the

Arms Act and appellant Charanjit was arrested under Section 117/181

of the Motor Vehicles Act. FIR Nos. 1000/92 to 1003/92 were registered

against them at the police station. Aforesaid version of the police

officials of Bara Banki stands contradicted from the contents of the FIR

Ex.PW1/A and the testimony of PW1 Umed Singh, PW2 Rajender and

PW5 ASI Raj Kumar. PW1 Umed Singh stated that on 08th September,

1992, PW5 ASI Raj Kumar visited his house and informed him that the

Van of his cousin Rakesh has been traced and the appellants had been

detained at police station Bara Banki in U.P. The above three

witnesses have stated that in view of the said information, all three of

them left for Bara Banki and reached there in the morning of 09th

September, 1992 where they identified Maruti Van of the deceased

found parked in P.S. Kotwali Bara Banki. They also stated that the four

appellants were found detained there and according to PW1 Umed

Singh, he identified all of them. If aforesaid version of PW1 Umed

Singh, PW2 Rajender and PW5 ASI Raj Kumar is to be believed, then

the version of police officials of P.S. Bara Banki regarding the arrest of

the appellants and seizure of Maruti Van on the night of 09th September

1992 at 11:00 p.m. cannot be true. This circumstance raises a strong

doubt against the correctness of story of arrest of the appellants and

seizure of Maruti Van at Bara Banki. The learned Trial Judge, while

dealing with this contradiction did not find it significant and in the

impugned judgment, inter alia, observed thus:

".......The claim of Umed Singh having gone to Bara Banki on 8.9.92 may be false but there is abundant evidence to establish that all the four accused persons had been arrested at Bara Banki while travelling in Maruti Van No. DL-4C-4753. The Maxim "Falsus in Uno, Falsus in Omnibus" is not strictly applicable to criminal trials in our country".

We are unable to agree with the approach adopted by the learned Trial

Judge. Even if, for the sake of argument, it is assumed that PW1 Umed

Singh, PW2 Rajender and PW5 ASI Raj Kumar of Haryana Police had not

visited the police station Kotwali Bara Banki in the morning of 09th

September, 1992 and seen the appellants under detention, then also it

remains unexplained as to how the details about the arrest of the

appellants at police station Bara Banki and the seizure of Maruti Van

No. DL-4C-4753 came to the knowledge of the above three witnesses.

Learned counsel for the State has submitted that the aforesaid

infirmity in the evidence stands explained from the testimony of PW23

Inspector Shalender Bahadur of U.P. Police, who deposed that he had

informed about the recovery of Maruti Van and arrest of the appellants

to the area Superintendent of Police and he, in turn, conveyed the

information to Delhi Police and Haryana Police. This also is of no help

to the prosecution because, even if Delhi Police was informed about

the detention of the appellants at police station Bara Banki, it remains

a mystery as to how the complainant Umed Singh (PW1) came to know

of aforesaid details about the seizure of Maruti Van and arrest of the

appellants by Bara Banki Police recorded in his complaint statement

Ex.PW1/B. Thus, we find that there is a serious lacuna in the

prosecution case which remains unexplained, as such it is not safe to

rely upon the testimony of prosecution witnesses regarding the arrest

of the appellants and recovery of Maruti Van from their possession at

Bara Banki, U.P on the night of 09th September 1992.

15. The doubt against the prosecution story is further compounded

by the fact that the complainant Umed Singh (PW1), the witnesses

Rajender Singh (PW2) and ASI Raj Kumar of Haryana Police (PW5), if

their version is to be believed, took it upon themselves to solve the

case. Despite of their having come to know about the arrest of the

appellants and the recovery of the Maruti Van belonging to the

deceased at Bara Banki, they did not inform the local police at Delhi

and took it upon themselves to go to Bara Banki for verification of the

facts and even after their return to Delhi, they approached the local

police only after they managed to recover the dead body from Jhatikra

drain, Delhi. This conduct of the witnesses is highly suspicious, as such

they are not worthy of reliance, and if it is assumed that the story put

forth by the police of P.S. Bara Banki is correct, then there is a strong

possibility that above three witnesses including the complainant have

been introduced as witnesses with a view to strengthen the

prosecution case. Thus, we find that prosecution case is highly

suspect.

16. In view of the above discussion, we find ourselves unable to

sustain the impugned judgment of conviction and the consequent

order on sentence and thus, acquit the appellants for the charges

under Section 302 IPC read with Section 34 IPC and Section 364 IPC

read with Section 34 IPC, giving them benefit of doubt.

17. All the appellants are on bail. Their bail-cum-surety bonds stand

discharged.

18. The appeal is disposed of accordingly.

A.K. SIKRI, J.

AJIT BHARIHOKE, J.

MARCH 22, 2010 akb