Delhi High Court
Manju Kumar vs State Nct Of Delhi on 17 October, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Hearing: 12th September, 2011
Date of Decision: 17th October, 2011
+ Crl. A. No.702/2007
MANJU KUMAR ..... Appellant
Through: Mr. R.P. Luthra, Advocate.
Versus
STATE N.C.T. OF DELHI ..... Respondent
Through: Mr. M.N.Dudeja, APP for the State.
AND
+ Crl. A. No.334/2008
SMT. DEVENDRI ..... Appellant
Through: Ms. Nandita Rao, Advocate.
Versus
STATE ..... Respondent
Through: Mr. M.N.Dudeja, APP for the State.
AND
+ Crl. A. No.87/2009
JAYANT @ AMIT ..... Appellant
Through: Mr. Kaushik Dey, Advocate.
Versus
STATE GOVT. OF NCT OF DELHI ..... Respondent
Through: Mr. M.N.Dudeja, APP for the State.
AND
+ Crl. A. No.395/2009
YASHPAL @ SATPAL ..... Appellant
Through: Mr. A.J.Bhambhani with
Ms. Nisha Bhambhani Advocates.
Versus
THE STATE ..... Respondent
Through: Mr. M.N.Dudeja, APP for the State.
AND
+ Crl. A. No.649/2010
SANJAY SINGH RATHI ..... Appellant
Through: Mr. S.K.Sharma, Advocate.
Mr. Ankur Chibber, Advocate.
Crl. A.702/2007 Etc. Page 1 of 27
Versus
THE STATE ..... Respondent
Through: Mr. M.N.Dudeja, APP for the State.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
JUDGMENT
G. P. MITTAL, J.
1. Criminal Appeal Nos. 702/2007, 334/2008, 87/2009 and 395/2009 arise out of the
judgment dated 18.09.2007 and order on sentence dated 09.10.2007 whereby the
Appellants Jayant, Yashpal and Devendri were convicted under Section 365/396
of the Indian Penal Code (IPC); the Appellant Manju Kumar was convicted for the
offence punishable under Section 412 IPC. In Criminal Appeal No.649/2010 the
Appellant Sanjay Singh Rathi (hereinafter referred to as „Rathi‟) impugns the
judgment dated 09.04.2010 and the order on sentence dated 16.04.2010 whereby
he was convicted for the offence punishable under Section 365/396 IPC. All
Appellants except Manju Kumar were sentenced to undergo imprisonment for life
for the offence punishable under Section 396 IPC. They were sentenced to
undergo Rigorous Imprisonment (RI) for five years for the offence punishable
under Section 365 IPC. Appellant Manju Kumar was sentenced to undergo RI for
four years. Sentence of fine was also imposed on the Appellants.
2. These appeals relates to the abduction of one Ajay (the deceased), his murder and
dacoity of the Tata Sumo No.DL-1CG-7774 on 05.11.2002 which he used to ply
as a taxi for his living. On 05.11.2002 (Vishwakarma day after Diwali) at about
1:30 PM Naresh (PW-1) was cleaning his vehicle outside his Shop Kanojia Tour
& Travels. Gulab Singh (PW-2) was present in his shop in Block No.17,
Kalyanpuri. He too was cleaning the counter of his shop. According to the
prosecution, the Appellants Rathi and Jayant approached him for hiring his
vehicle to go to Khurja whereas the Appellants Yashpal, Devendri and Gajendri
(since deceased) waited across the road, at a distance of 10-12 ft. from PWs 1 and
2. PW-1 refused to take them to their destination. Gulab Singh (PW-2) over heard
the conversation between Naresh and Rathi and wanted to oblige his friend Ajay,
who owned a Tata Sumo vehicle and used to ply it as a taxi. Gulab Singh went to
Ajay, whose house was just two minutes walk from his (PW-2‟s) shop. Ajay
reached PW-2‟s shop and talked to the intending passengers. Gaytri Devi (PW-4)
also reached the spot to persuade her son Ajay not to go on that day. Ajay was
willing to go and told his mother the he would be back by night. Ajay brought his
Tata Sumo. The Appellants Rathi, Jayant, Yashpal, Devendri and co-accused
Gajendri sat in the vehicle and left for their destination.
3. Ajay did not return as promised. When PW-3 Devi Prasad (Ajay‟s father) reached
home at night his wife Gaytri Devi told him that although Ajay had not returned,
despite his promise to be back by 8:00 PM. It is alleged that after waiting
sufficiently long for his son to return, a missing person report was lodged by Devi
Prasad with the Kalyanpuri Police Station on 07.11.2002. Information was given
by PW-3 to his brother-in-laws PW-10 Khem Chand and PW-11 Mahender on
06.11.2002 that Ajay went to Khurja in his Tata Sumo with the passengers, on
05.11.2002 and did not return to Delhi. A statement Ex.PW-3/A was made to the
police on 07.11.2002 regarding the incident. An FIR was registered by the police.
PW-10 Khem Chand and PW-11 Mahender were also worried about
disappearance of their nephew along with the Tata Sumo. They made a frantic
search for him. PW-10 called up his brother Raj Kumar (PW-9) to come to his
house in the Tata 407 and they started searching for their nephew. On 07.11.2002
Khem Chand, Mahender and Raj Kumar (PW-9, an employee of PW-11) spotted
the Tata Sumo belonging to Ajay near the telephone exchange in village
Nehrupur, Khurja. They noticed two mechanics carrying out some repairs. Their
nephew Ajay was not present in the Tata Sumo. PW-10 became suspicious and
approached the nearby PCO, belonging to Chawi Rajan (PW-14) and made a call
to the Police Control Room. The PCR did not bother to attend to the call and in
the meanwhile PWs 9,10 and 11 noticed Tata Sumo moving. PW-10 and 11 asked
their driver (PW-9) to chase the Tata Sumo. It is alleged that due to heavy traffic
on the road they could not immediately catch up with Tata Sumo and went a little
ahead. When they returned to reach the Tata Sumo, they saw it parked on a road
near Munda Khera Chauraha. PW-10 made a phone call to PS Khurja Kotwali.
The police reached the spot after considerable time. Neither the deceased Ajay nor
any passenger came there. During interrogation the police came to know that the
two boys from the Tata Sumo had left on a black motorcycle parked near the STD
booth. The said motor cycle had the words "Police" and "Mohabatein" written on
the number plate.
4. On 11.11.2002 a dead body was recovered from the fields of village Nangla
Shekhu by Inspector V.K.Singh of UP Police. While he was making Punchnama
in respect of the dead body, Gaytri Devi (PW-4) the deceased‟s mother too
reached there along with some others. The dead body was found in a highly
decomposed state. At that time it was found to be clothed in a shirt, a vest, an
underwear, a jeans and one shoe, on the right leg. There were two rings in the
finger and a thread tied around the right wrist. Although, the face of the dead
body was unrecognizable due to decomposition and injuries, yet, PW-4 was able
to identify the dead body of her son Ajay from the articles found on the body. The
Delhi Police was informed. Autopsy on the dead body was performed on
12.11.2002 by Dr. Sarvodaya Kumar. On examination, the doctor found the dead
body to be that of someone, aged about 22 years with average built. Apart from
multiple incised wounds in front of the chest and upper half of the abdomen, he
noticed an incised wound 18 cms x 6 cms trachea deep just below the hyoid. He
gave the cause of death as shock and hemorrhage as a result of ante mortem
injuries. The duration of the death was given to be five to seven days before the
date of conducting postmortem examination i.e. 12.11.2002.
5. SI Dharambir Gautam (PW-53) took up the investigation. It came to light that
motorcycle bearing No.UP-20-0435 was involved in the crime. A search of the
motorcycle revealed that it was registered in the name of the Appellant Rathi, a
Constable in the U.P. police, posted in District Line Bijnore. He was interrogated
and a mobile phone and a chip were recovered from his possession. The
registration certificate of the motorcycle was seized.
6. On 26.11.2002, the Appellant Rathi was arrested. The Appellants Yashpal and
Devendri were arrested on 07.02.2003 while they were in custody in another case
from PS Shahdara. Devendri‟s disclosure led to recovery of a gold chain (Ex.P-1)
from her house. Appellant Manju Kumar was arrested on 09.03.2003 and the
deceased‟s sim card was recovered from him. The Appellant Jayant was arrested
on 05.06.2003. Co-accused Gajendri and Raj Kumar were also arrested.
Gajendri, however, expired and Raj Kumar was declared a Proclaimed Offender
during the trial. Co-accused Deepak and Sunder too died during the trial and
proceedings against them were dropped.
7. Appellants Manju Kumar, Devendri, Jayant and Rathi refused to participate in the
TIP on the ground that they had been shown to the witnesses. Appellant Yashpal
joined the TIP and was identified by Gaytri Devi.
8. By the impugned judgments dated 18.09.2007 and 09.04.2010 the Trial Court
found that the prosecution case against the Appellants Rathi, Yashpal, Jayant,
Devendri and Manju Kumar had been established beyond reasonable doubt. They
were convicted and sentenced in the manner described earlier.
9. Co-accused Meer Singh and Devender were also prosecuted for the offence
punishable under Section 212/34 IPC. They were, however, acquitted of the
charges on the ground that the prosecution did not lead any evidence to connect
them with the offence.
10. To bring home the guilt of the accused, the prosecution examined 53 witnesses
during trial. PW-1 Naresh, PW-2 Gulab Singh, PW-4 Smt. Gaytri Devi, PW-5
Sohanpal Singh, PW-9 Raj Kumar, PW-10 Khem Chand, PW-11 Mahender, PW-
14 Chawi Rajan, PW-15 Dharmender Kumar, PW-21 Inspector K.P. Singh, PW-
39 SI V.K. Sharma, PW-46 Lady Constable Poonam and PW-53 SI Dharambir
Gautam are crucial witnesses for disposal of these appeals.
11. PW-1 Naresh testified that he was engaged in the business of hiring out taxis. He
ran a shop in the name of "Kanojia Tours and Travel" from his residence. On
05.11.2002 at about 1:00/1:30 PM he was present in front of his shop and was
cleaning his vehicle. At that time, two persons came to him and expressed their
desire to hire his vehicle to go to Khurja to bring a patient by night. He deposed
that two persons approached him whereas three persons were standing across the
road. The witness identified the Appellant Rathi (and one associate) as the person
who approached him to hire the vehicle whereas the Appellants Yashpal,
Devendri and co-accused Gajendri (since deceased) were standing across the road.
He deposed to having refused to take his vehicle as it was Vishwakarma day. His
neighbour Gulab heard the conversation and told them that one Ajay used to drive
his Tata Sumo as a taxi. Gulab called Ajay. Ajay reached there and had
conversation with the two persons and thereafter went to bring his vehicle, which
he used to park at Phase-III, Kalyanpuri. After 15-20 minutes, Ajay came back
with his vehicle. He deposed that Ajay‟s mother also reached there and pleaded
with him not to go. Ajay, however, told his mother that he would return the same
night. He deposed that all the five persons (including the two ladies) sat in the
vehicle and left.
12. PW-2 Gulab Singh deposed that on 05.11.2002 at about 1:30 PM he was cleaning
the counter of his shop. Two persons approached Naresh to hire his vehicle for
going to Khurja. They told him that they had to bring a patient and return by
night. Naresh refused to ply his vehicle. Since he (PW-2) overheard this
conversation, he asked the two persons to wait as he would find out if Ajay was
available at his house. He brought Ajay to the spot. He deposed that Yashpal @
Satpal, Devendri and Gajendri (since deceased) were standing across the road
while Rathi and Jayant asked Naresh to take his vehicle to Khurja. The
Appellants were identified by the witness in Court.
13. PW-4 Gaytri Devi (the deceased‟s mother) stated that on 05.11.2002 his son was
present in the home at 1:30 PM. Gulab came to her house and told Ajay that there
were some passengers for him. At Gulab‟s instance her son was prepared to take
those passengers to their destination. Ajay took four passengers in his vehicle, out
of whom two were ladies. She explained that the Appellant Rathi sat next to the
driver‟s seat whereas Gajendri and Devendri sat on the rear seat along with Manju
Kumar. She explained that Yashpal @ Satpal was also identified by her as the
person who boarded her son‟s vehicle. The witness was recalled to testify about
the facts after arrest of the Appellant Jayant. In her deposition, Gaytri Devi
clarified that it were accused Jayant, Yashpal @ Satpal, Devendri @ Sunita,
Gajendri (since deceased) and Rathi who boarded her son‟s vehicle and left for
Khurja.
14. PW-5 Sohan Pal Singh is a witness to the recovery of the deceased‟s gold chain at
Appellant Devendri‟s instance from her house in Rajeev Garden, Loni,
Ghaziabad, U.P.
15. PW-10 Khem Chand is the deceased‟s maternal uncle. He got information about
the deceased‟s not returning home on 05.11.2002 with his Tata Sumo from Ajay‟s
father (PW-3) on 06.11.2002. He deposed to making inquiries about his nephew
and the Tata Sumo at the local Police Station and in the surrounding areas but not
being able to get any clue. He testified that when he failed to get any information,
he summoned his brother Mahender (PW-11) who reached his house in his Tata
407. He along with Mahender and Raju made search for the deceased and the
Tata Sumo in their Tata 407. They saw two mechanics repairing the Tata Sumo.
He did not find his nephew Ajay in it. He became suspicious and made a call to
the PCR from a nearby PCO. The Control Room officials ignored his call and
they noticed the Tata Sumo moving. He asked the driver of Tata 407 to reverse the
vehicle and chase the Tata Sumo. Due to heavy traffic, they went ahead and when
they reversed Tata Sumo was seen parked on the road near Munda Khera
Crossing. He made a phone call to Khurja Kotwali. The police arrived there and
seized the Tata Sumo and certain articles from it. The testimonies of PW-9 Raj
Kumar and PW-11 Mahender, support this version.
16. PW-14 Chawi Rajan is the PCO‟s owner from where PW-10 made a call to the
PCR. He corroborated PW-10‟s testimony on this count but did not support the
prosecution about noticing a Hero Honda Splendor with three occupants going
near the Tata Sumo on 07.11.2002 at 08:30 AM. He was cross-examined on this
aspect by the learned APP. PW-15 Dharmender Kumar corroborated PW-14‟s
testimony regarding the making of a call by PW-10 from the PCO.
17. On 07.11.2002 PW-21 Inspector K.P. Singh was posted as SHO PS Khurja. On
receipt of information from Khem Chand (PW-10) regarding parking of the Tata
Sumo in front of LIC office, GT Road, Khurja, Bulandshahar, he reached there
and waited for the occupants for seven hours. He deposed that nobody went there.
The Tata Sumo was searched. He was told that the Tata Sumo was involved in a
criminal case registered in PS Kalyanpuri. He sent an intimation to Kalyanpuri
Police Station and the Tata Sumo along with the articles recovered from it were
seized by the Delhi Police official by memo Ex.PW-21/B.
18. PW-39 SI V.K. Sharma was posted as a Sub Inspector in PS Kalyanpuri at the
time of the incident. At the instance of SI Dharambir Gautam (PW-53) he
obtained call details in respect of certain numbers.
19. PW-52 SI B.D. Sharma (Retired) was posted at PS Khurja Dehat on 11.11.2002.
He deposed that on receipt of information from Narender Kumar, resident of
village Nangla Shekhu that a dead body was lying in Arhar fields he reached the
spot and found a highly decomposed body lying there. Maggots were crawling
over it. Most of the face was missing either on account of decomposition or on
account of the maggots. The body was clothed in a striped shirt and blue jeans.
There was one black shoe on right leg. There were two iron rings in the ring
finger and the little finger. There was one gold ring in the ring finger with the
words „AK‟. He conducted the inquest proceedings. During this time, Gaytri Devi
(PW-4) with three-four persons reached the spot. On seeing the ring, shoe and
clothes Gaytri Devi and other persons identified the dead body to be of her son
Ajay Kumar. He sent the dead body along with the clothes, rings and the shoe
worn by it to the Govt. Hospital Bulandshahar for autopsy. The IO from the Delhi
Police also reached the spot and requested him to get a DNA test to be done on the
dead body. He got photographs Ex.PW-52/1-6 of the dead body.
20. PW-53 SI Dharambir Gautam is the IO of the case. He testified that on
08.11.2002 the case was registered on the statement Ex.PW-3/A (of the
complainant Devi Prasad). He, along with the complainant and ASI Aftab Ahmed
went to Khurja pursuant to information that Tata Sumo No.DL-1CG-7774 was
seized by the police of PS Khurja Kotwali. He seized the articles consisting of two
bags full of clothes, one hot case and one mobile phone. There was no trace of the
deceased Ajay. Since the vehicle was wanted in the case, it was taken into
possession by memo Ex.PW-20/B. He contacted PWs Chawi Rajan and Dr.
Dharmender of Nehrupur village and recorded their statements. He came to know
about involvement of motor cycle No.UP-20F-0435 black colour Splendor in the
case. During investigation it was discovered that the motorcycle was registered in
the name of one Sanjay Singh Rathi, a Constable in the UP police and posted at
Police line Bijnore. He testified that on 11.11.2002 on receipt of information from
PS Khurja (Dehat) regarding recovery of a dead body, he reached there and saw
police officials and the deceased‟s family members, namely, Gaytri Devi and
Khem Chand, present there. The dead body was identified by Gaytri Devi on the
basis of the clothes, rings, Kalava (thread on the wrist), gold ring and a shoe worn
by the deceased to be of her son Ajay. On 12.11.2002 he collected call details of
Ajay‟s mobile phone number 9811676042 and came to know that SIM card of this
number was used on 08.11.2002 on a mobile set having IEMI number
32308351753730 and the handset was earlier under operation, on mobile phone
number 9811732971. On receiving the details, it was found that the number was
continuously connected with mobile phone numbers 9837370253 and
9837158882. He obtained the call details of mobile phone number 9837370253
from Escotel Meerut through Constable Surender. (Though, in the disclosure
statement the Appellant Rathi gave details how the mobile phones which were in
various names were being used by him yet the same is inadmissible in evidence as
no discovery was effected in pursuance of the said disclosure statement. The
evidence of the call details, therefore, is not of much relevance.)
21. PW-53 SI Dharambir Gautam testified that on 23.11.2002 he, with other police
officials reached Bijnore police lines to interrogate the Appellant Rathi. He met
Reserve Inspector Yogender Pratap Singh of the police lines and obtained the
attendance sheet of the Appellant Rathi. It was revealed that he (Rathi) was on
leave from 04.11.2002 to 06.11.2002. He obtained his mobile SIM card with
connection number 9837370253 and seized the registration certificate of his motor
cycle number UP-20F-0435. The Appellant refused to join the investigation
further due to sickness he therefore, served a notice under Section 160 Cr.P.C. to
join investigation on 25.11.2002 at Delhi.
22. PW-53 deposed that on 25.11.2002 the Appellant Rathi did not join the
investigation. He contacted Bijnore police lines and came to know that Rathi was
on leave. On 26.11.2002 he, and SI V.K Sharma and other police officials went to
village Nangla Ibrahimpur and arrested the Appellant. He made disclosure
statement Ex.PW-6/C which led to recovery of a shoe belonging to the deceased
from the fields in Village Nangla Shekhu. He testified that the Appellant Rathi‟s
face was muffled and an application for conducting Test Identification Parade
(TIP) was moved before the Magistrate. The Appellant refused to join the TIP.
During police remand (on 01.12.2002) he was identified by PWs Gaytri Devi,
Naresh and Gulab to be the man who got the vehicle booked on 05.11.2002. On
analysis of the call details of the Appellant Rathi it was revealed that he used the
SIM card of mobile number 9811732971 in his handset (bearing IMEI number
350019347205649). It revealed the location of the user was at Khora (Delhi)
between 09:11 to 09:15 on 05.11.2002.
23. PW-53 stated that on 30.01.2003 the TIP of the shoe recovered at Rathi‟s instance
was conducted. Gaytri Devi correctly identified the shoe. The witness deposed
that on 05.02.2003 he came to know of the arrest of Yashpal and Devendri in case
FIR No.27/2003 of PS Shahdara. They were produced before the Court pursuant
to a production warrant. He interrogated and arrested them in the case. The
Appellant Devendri refused to join the TIP whereas Yashpal agreed to participate
in it. Gaytri Devi correctly identified Yashpal in the TIP. Thereafter Yashpal
refused to join TIP by the other witnesses. On 08.02.2003 Devendri made a
disclosure statement Ex.PW-18/A leading to recovery of a gold chain of deceased
Ajay from her room in Rajeev Garden, Loni in the presence of public witnesses
Sohanpal Singh and Subhash. She pointed out the place of hiring the Tata Sumo
i.e. Kanojia Tours & Travels where Gaytri Devi identified Devendri. He deposed
that on 18.02.2003 PWs Gulab and Naresh went to the Police Station and
identified Yashpal. He recorded their statements in this regard. On 24.02.2003 the
gold chain was correctly identified by Gaytri Devi (PW-4). The witness deposed
about the arrest of the Appellant Manju Kumar and recovery of the SIM card of
mobile number 9811676042 (belonging to the deceased).
24. In their statements under Section 313 Cr.P.C. the Appellants denied the evidence
appearing against them on the record and pleaded false implication. The Appellant
Rathi took the plea that on 05.11.2002 he was away to Bijnore along with his
family. His wife was 7½ months pregnant. His wife and son were not well. He
spent the whole of the Diwali day with his family. On 23.11.2002 at about 5:00
PM SI Dharambir Gautam met him and wanted his help as the mobile in his name
was being used in the case and involvement of his brother Sunder Rathi was
suspected. He took five day‟s leave and accompanied SI Dharambir Gautam to
Delhi. He was brought to PS Kalyanpuri and was not allowed to go anywhere. He
was shown to the deceased‟s mother and other public witnesses. He stated that he
was implicated in the case falsely as his brother Sunder Rathi (since dead) was a
gangster in UP. The Appellant Rathi examined his wife Geeta Devi (DW-1) in his
defence to prove the defence version.
25. Appellants Yashpal, Jayant and Devendri merely denied the prosecution‟s
allegations and pleaded false implication. Appellant Manju Kumar took the plea
that co-accused Yashpal was a tenant in PW Smt. Pinkesh‟s house. There was a
dispute between them regarding payment of rent and vacation of the rented room.
He being neighbour sided with her as a result of which Yashpal got annoyed with
him and implicated in the case falsely.
26. We have heard Mr.R.P. Luthra, learned counsel for the Appellant Manju Kumar,
Ms. Nandita Rao, Advocate for the Appellant Devendri, Mr.P.K. Dey, Advocate
for the Appellant Jayant, Mr. A.J. Bhambhani, Advocate for the Appellant
Yashpal, Mr. S.K. Sharma, Advocate for the Appellant Sanjay Singh Rathi and
Mr.M.N.Dudeja learned APP for the State and have perused the record.
27. There is no dispute about Ajay having been taken away by some people in his
Tata Sumo to go to Khurja on 05.11.2002 on the pretext of bringing a patient. The
testimonies of the three witnesses i.e. PWs 1, 2 and 4 on this count was not
challenged during their cross-examination. There is ample evidence on record to
prove hiring of the Tata Sumo from Ajay on 05.11.2002, its chase by PWs 9, 10
and 11 and its recovery at Khurja on 07.11.2002. There is serious dispute raised
by the Appellants with regard to Ajay‟s death i.e. identification of the dead body
and identification of the culprits.
28. First, we would deal with identification of the dead body. The DNA report dated
28.04.2004 given by D.S. Negi, Technical Examiner, DNA fingerprinting
Laboratory, Govt. of India, Hyderabad is inconclusive. It is argued by the learned
counsel for the Appellants that the femur bone is one of the longest bone in a
human body which was taken from the body for DNA fingerprinting. If the femur
bone really belonged to Ajay, there was no difficulty in DNA matching with the
blood sample of the deceased‟s parents (PWs 3 and 4). The result of DNA
examination is extracted hereunder: -
"The source of the above exhibits were subjected to DNA
isolation. The source of exhibit C (femur bone) yielded partial
DNA profile. DNA profiles were prepared from the sources of
exhibits A and B (blood samples of Smt. Gayatri Devi and Shri
Devi Prasad). Since complete DNA profile from the source of
exhibit C (femur bone) is essential for analysis, the result is
inconclusive."
29. The Hyderabad DNA fingerprinting Laboratory is the most prestigious institute in
the Science of DNA fingerprinting. The report by D.S. Negi extracted above,
indicates that the source „C‟ i.e. femur bone of the dead body yielded partial DNA
profile and thus the result was inconclusive. The prosecution did not rely on the
report as it was not positive. The witness was not called for cross-examination to
challenge the conclusion. Thus, the defence cannot be allowed to say that the
report dated 28.04.2004 of D.S. Negi was inconclusive only on account of the fact
that source „C‟ did not belong to the source „A‟ and „B‟ and therefore, the DNA
did not match. In our view, since the DNA report is inconclusive, the Court has to
consider the other evidence to find out if the identity of the dead body was
established. From the report it cannot be concluded that it was not Ajay‟s dead
body.
30. PW-52 SI B.D. Verma got the information from Narender Kumar resident of
Village Nangla Shekhu regarding presence of a dead body in the Arhar fields.
When the SI along with the two Constables reached the Arhar fields, he found the
dead body in a highly decomposed state and that maggots were crawling over it.
He deposed that it was difficult to decipher where were injuries on the dead body.
Most of the face was missing due to decomposition or on account of maggots. He
deposed about a thread tied around the right wrist; there were two iron rings in the
ring finger as well as in the littler finger; there was one gold ring in the ring finger
containing the word „AK‟. When he was going ahead with the inquest
proceedings, the deceased‟s mother Gaytri (PW-4) reached there along with three-
four people. On seeing the gold ring, the shoe and the clothes Gaytri Devi
identified the dead body as that of Ajay.
31. It is important to note that Gaytri Devi (PW-4) identified the dead body from the
articles found on the dead body i.e. the rings, clothes and the shoe.
32. It is urged by the learned counsel for the Appellants that Gaytri Devi was unsure
on seeing the dead body if it was that of Ajay. The identification of articles found
on the dead body is discrepant, since in the rukka (Ex.PW-3/A) it was stated by
the deceased‟s father that the Ajay was wearing an ACTION brand sport shoe at
the time he left whereas a black shoe was allegedly found on the right foot of the
dead body. It is contended that as the prosecution alleged the motive for
commission of the crime to be robbery, it is highly improbable that the culprits
would not remove the three rings from the dead body. It is argued that the
description of the clothes did not match with the one given in Ex.PW-3/A and in
the absence of any positive finding by DNA fingerprinting it cannot be said that
the body recovered was Ajay‟s dead body.
33. We do not agree with the arguments advanced on the Appellants‟ behalf. The
motive for the offence indubitably was to rob the deceased‟s Tata Sumo. It was
the culprits‟ ill-luck that they could not remove the vehicle beyond Khurja as the
deceased‟s maternal uncle and their relations (PWs 9, 10 and 11) were informed
about Ajay‟s disappearance with Tata Sumo on 06.11.2002. Initially, PW-10
made inquiries in PS Khurja and adjoining areas. Finding no clue, PWs 9,10 and
11 immediately started to search for the Tata Sumo‟s in their vehicle i.e. Tata 407.
They combed the entire area (in Khurja) and the adjoining areas in their bigger
vehicle with discerning eyes, all around as they were Ajay‟s close relatives and
residents of Khurja. They were able to spot the vehicle as it was parked near
telephone exchange Nehrupur (in Khurja) and two mechanics were carrying out
repairs. Since Ajay was not found, they suspected something foul and called up
the police from a nearby PCO. In the meanwhile, the Tata Sumo started moving
and was ultimately seized by the Khurja Police when it was chased and
information was given to the police by PWs 10 and 11. There is no reason for
PWs 10 and 11 to invent any story regarding the Tata Sumo‟s seizure. Moreover,
these were corroborated by PW-21 Inspector K.P. Singh, he belonged to UP
police and had no motive or reason to plant the articles found on the dead body.
The non removal of the two iron rings and one gold/golden ring is not material as
the culprits might have found it to be of not much value or there might be
something else in their minds. The rings were found on the dead body in the
natural course and were sufficient to identify the dead body; one of the rings bore
Ajay‟s initial i.e. „AK‟.
34. Similarly, we do not find any material discrepancy in the shoe and the clothes on
the dead body. A black shoe could also be a sport shoe manufactured by „the
Action‟ brand or any other manufacturer. In fact, the Court can take judicial notice
that the sports shoes are manufactured in all colours including in black.
35. Gaytri Devi was frank enough to admit that the body was unidentifiable. As the
face was chopped off with a cutting instrument the height of the body appeared to
be less (than the height of Ajay). She was specific to having identified the dead
body by the clothes and the ring. Gaytri Devi had no reason to falsely identify a
dead body, claim it for last rites and abandon the search for her son. It was only
because she was sure of herself that she positively identified it. We see no reason
to disbelieve Gaytri Devi (PW-4) about identification of the dead body. It is clear
that the motive for the deceased‟s abduction was to rob him of the vehicle which
the culprits did accomplish by doing him (the deceased) to death and robbery of
the articles worn by the deceased was not the motive for commission of the
offence.
36. The death of Ajay being homicidal on account of multiple stab injuries was
proved by PW-33 Dr. Sarvodaya Kumar. His testimony was not seriously
challenged in cross-examination. The postmortem on the dead body was
performed on 12.11.2002 and the time since death was given as „five to seven
days‟ which coincide with the deceased‟s abduction on 05.11.2002. It is proved
beyond doubt that Ajay‟s death was homicidal.
37. This case solely rests on circumstantial evidence. The circumstances relied on by
the Trial Court in returning the finding of the Appellants as guilty are:-
(A) Deceased was last seen alive with the Appellants.
(B) Recovery of a gold chain at the instance of Appellant Devendri in
pursuance of her disclosure statement Ex.PW-18/A.
(C) Recovery of deceased‟s black shoe at Appellant‟s Rathi‟s instance in
pursuance of his disclosure statement Ex.PW-6/C.
(D) Recovery of Ajay‟s sim card from Appellant Manju Kumar in pursuance
of Yashpal‟s disclosure statement.
38. The standard of proof in case of circumstantial evidence is well settled. The
circumstances from which conclusion of guilt is to be drawn must, in the first
instance, be fully established; the circumstances should be of definite tendency
unerringly pointing out towards the guilt of the accused; the circumstances taken
cumulatively should form a chain so complete that there is no escape from the
conclusion that within all human probabilities the offence was committed by the
accused and none else and that the circumstances established must be incapable of
explanation of any other hypothesis other than the guilt of the accused.
(Hanumanth Govind Nargundkar v. State of M.P, AIR 1952 SC 343 and Padala
Veera Reddy v. State of A.P., AIR 1990 SC 79).
39. We would deal with the circumstances one by one.
CIRCUMSTANCE (A)
40. PWs 1, 2 and 4 were examined by the prosecution to prove this circumstance.
PW-1 deposed that on 05.11.2002 at about 1:00/1:30 PM he was cleaning his
vehicle in front of his residence. At that time two persons came to him and told
him that they wanted to go to Khurja. He deposed about his inability to drive
them to Khurja. He stated about the presence of Appellants Yashpal and Devendri
(and Gajendri since deceased) across the road. He testified to the fact that Gulab
Singh (PW-2) over heard the talks and wanted to oblige his friend Ajay who also
plied his Tata Sumo as a taxi. This witness did not specifically depose about
Appellant Jayant‟s presence at the spot though he did testify that there was one
more person with the Appellant Rathi. All the Appellants except Jayant were
identified by this witness. (It seems that the Appellant Jayant did not prefer to
recall PW-1 for his examination and cross-examination advisedly as PW-1 did not
name him and there was no question of his identification as Jayant was not facing
trial at that time.)
41. PW-2 Gulab Singh deposed about Rathi‟s presence and in his subsequent
examination (after Appellant Jayant was arrested and tried with the other accused)
about his presence too with Rathi for negotiations to hire the taxi and about
presence of Yashpal, Devendri and Gajendri across the road. All the five accused
i.e. the four appellants and deceased Gajendri were duly identified by this witness.
42. PW-4 Gaytri Devi did create some confusion about presence of the Appellant
Jayant. She correctly identified Appellants Rathi, Yashpal, Devendri and deceased
Gajendri. Initially, the Appellant Manju Kumar was identified as one of the
persons who had accompanied others at the time of hiring Tata Sumo but in her
cross- examination dated 13.10.2005 she clarified that in fact she had identified
the persons standing behind Manju Kumar i.e. Appellant Yashpal as one of those
and not Manju Kumar. PW-4 was further examined after framing of the charge
against the Appellant Jayant and identified Jayant as one of the persons who was
standing with the two ladies across the road.
43. It is urged by the learned counsel for the Appellants that PWs 1 and 2 are
unreliable whereas PW-4 Gaytri Devi is interested being the deceased‟s mother.
All of them had admitted having seen the Appellants in the Police Station. This
was the reason the Appellants (except Yashpal) refused to join the TIP. The
investigation carried out by the IO by showing the Appellants to the witnesses
becomes tainted and in view of this and the contradictions in their testimonies it
would be unsafe to place reliance on their testimonies to uphold the finding of
guilt against the Appellants.
44. Of course, PWs 1, 2 and 4 admitted in their cross-examination having seen the
Appellants either in the Police Station or at the shop of Kanojia Tours & Travels
(in case of PW-4). This admission on PWs 1, 2 and 4‟s part has to be seen in terms
of the prosecution case and PW-53 SI Dharambir‟s (the IO) testimony. The IO
gave the details as to how each one of the Appellants was arrested, how the
application was immediately moved for their TIP and they refused to participate
therein except in the case of Yashpal who was identified by PW-4 and refused to
join TIP vis-à-vis PWs 1 and 2. The IO gave specific dates when the witnesses
were summoned (after refusal of the TIP) to identify the accused simply for his
satisfaction that the persons arrested were the real culprits. PWs 1, 2 and 4‟s
admission that they had seen the Appellants in the Police Station, gives credence
to their testimonies and shows that the witnesses were not tutored and had
deposed in a natural manner. Otherwise the witnesses could have simply denied
having seen the accused persons in the Police Station on different dates. Of
course, the witnesses were not very exact about the dates when they saw each of
the Appellants in the Police Station.
45. For instance, PW-4 Gaytri Devi deposed to having identified the Appellant Rathi
in the Police Station after 15/20 days of the incident. This time of 15/20 days was
given by this witness only by approximation. The testimony of this witness on this
aspect was recorded on 02.09.2004 and the incident took place on 05.11.2002.
After a gap of two years a witness is not expected to recall exactly as to when
he/she saw an accused in the Police Station. PW-53 SI Dharambir Gautam was
very specific when he gave the dates that on 27.11.2002 the Appellant Rathi was
produced in the Court with his face muffled. He refused to join the TIP before the
Magistrate. He was identified by the witnesses in PS Kalyanpuri on 01.12.2002.
We have extracted earlier PW-53‟s testimony when he deposed about each of the
dates, when the witnesses were shown the accused after their refusal to join TIP.
As discussed earlier, the Appellant Yashpal was identified by PW-4 in the TIP and
thereafter he refused to participate in the TIP to be conducted in respect of PWs 1
and 2. In the circumstances, we are not convinced that the Appellants were shown
to the witnesses in the Police Station before they had refused to join the TIP.
Rather, this exercise was done by the IO (PW-53) after the Appellants refused to
participate in TIP.
46. It is well settled that identification by a witness in the Court is substantive
evidence and identification in the TIP conducted during investigation can be used
only as a corroborative piece of evidence. Normally, TIP is conducted during
investigation to test the memory of a witness who has seen an accused committing
the crime for the first time and to be an assured that the investigation proceeded in
the right direction.
47. In this case, the deceased was enticed by the Appellants (except the Appellant
Manju Kumar) in the broad day light (the time was 1:00/1:30 PM). There were
negotiations between the two Appellants and PW-1 for hiring PW-1‟s vehicle in
front of PWs 1 and 2‟s shop. PW-1 was not inclined to accompany the
Appellants. Therefore, PW-2 wanted to see if the deceased would go and earn
something for himself. According to the prosecution, PW-2 went to call Ajay
whose house was just two minutes walk from his (PW-2) shop. The deceased
accompanied PW-2 to his shop, had negotiations with two of the Appellants and
thereafter went to fetch his Tata Sumo. It is not a case where the culprits fled after
committing the crime or that the witnesses just had their fleeting glimpse. The
witnesses, particularly, PWs 1 and 2 would have seen them for at least 15/20
minutes. Thus, there was sufficient opportunity and time to imprint the culprits‟
facial features in the memories of PWs 1, 2 and 3. In these circumstances, it was
not really necessary to have a TIP. We are supported in this view by the Supreme
Court report in Malkhan Singh v. State of M.P. 2003 (5) SCC 746.
48. A technical objection was raised by Mr. P.K. Dey, learned counsel for the
Appellant Jayant regarding admissibility of PW-4‟s examination dated
01.05.2007. The learned counsel pointed out that Shri Ved Pal Singh Advocate
counsel for Appellant Jayant had given his consent for admitting PW-4‟s
examination-in-chief recorded before the start of Jayant‟s trial (statement of the
counsel was recorded on 29.08.2005). The learned counsel referred to Section 137
and 138 of the Evidence Act to emphasize that there has to be first examination-
in-chief followed by the cross-examination of the witness. There could be re-
examination thereafter, if need be. The examination-in-chief recorded on
01.05.2007, argued the learned counsel for Appellant Jayant, is illegal and cannot
be admitted in evidence being violative of Section 137 and 138 of the Evidence
Act. The learned counsel placed reliance on „A.R.Antulay v. Ramdas Sriniwas
Nayak 1984 (2) SCC 500‟. Para 22 of the report which was specifically referred to
is extracted hereunder:-
"22. Once the contention on behalf of the appellant that
investigation under Section 5-A is a condition precedent to the
initiation of proceedings before a Special Judge and therefore
cognizance of an offence cannot be taken except upon a police
report, does not commend to us and has no foundation in law, it is
unnecessary to refer to the long line of decisions commencing from
Taylor v. Taylor (1876) 1 Ch D 426, Nazir Ahmad v. King-
Emperor AIR 1936 PC 253 (2) and ending with Chetham Veethl
Ammad v. Taluk Land Board (1979) 3 SCR 839, laying down
hitherto uncontroverted legal principle that where a statue
requires to do a certain thing in a certain way, the thing must be
done in that way or not at all. Other methods of performance are
necessarily forbidden."
49. In this case, the investigation revealed the involvement of several accused
persons. There was a large time gap between Rathi‟s apprehension (who was the
first one to be arrested) and the other Appellants. The trial commenced while
some of the accused had not been arrested. (In fact, some were not apprehended
at all. Sunder and Deepak passed away during trial). Obviously, after another
accused was made to join the same trial it was necessary to examine the
witness/witnesses already examined afresh. Of course, an accused could give an
option that any particular witness need not be recalled for examination provided
the prosecution did not want to prove any particular fact against the additional
accused who joined the trial later on. Obviously, an accused who was earlier not
facing trial the same could not be identified by a witness because of his absence.
The examination-in-chief of a witness of the incident would be necessary to
identify the culprit. It seems that this lost sight of the Court and the Public
Prosecutor and this is why statement dated 29.08.2005 of Shri Ved Pal Singh,
Counsel for Jayant was recorded. It is true that the proper course in such a
situation was to move an application under Section 311 Cr.P.C. to recall a witness
for further examination. No such application seems to be on record. At least, none
has been pointed out to us. But, then the question is whether there is any prejudice
to the Appellant Jayant. He did have the opportunity to cross-examine PW-4.
A.R. Antulay (supra) is not attracted to the facts of this case. In that case the
question before the Supreme Court was whether it was necessary to have
investigation under Section 5-A of the Prevention of Corruption Act, 1947. It was
held that a Special Judge was entitled to entertain a private complaint without
directing an investigation under Section 5-A of the P.C. Act 1947. Thus, the
contention raised that Section 5-A of the P.C. Act 1947 has to be followed in the
case of even a private complaint did not find favour with the Supreme Court.
Antulay (supra) thus does not help the Appellant. Section 137 and 138 lays down
the procedure for examination of the witnesses. In the case of Banwari v. State of
U.P.1962 (Sup. 3) SCR 180 it was held that a trial is not vitiated by any
procedural error when no prejudice is caused to the accused. Since the Appellant
has not been able to show any prejudice, he cannot be permitted to make a
grievance that PW-4 could not have been re-examined after his counsel had given
a consent to read the examination-in-chief previously recorded (before Appellant
Jayant was sent up to face trial).
50. The learned counsel for Appellant Jayant argued that further examination-in-chief
of PW-4 was recorded on 01.05.2007 and 02.05.2007. A few lines of cross-
examination of PW-4 was recorded on 02.05.2007 till 1:35 PM and further cross-
examination of the witness was deferred for 2:00 PM. The opportunity to cross-
examine the witness was closed by the trial Court at 2:00 PM without waiting for
the Appellant‟s counsel who had to suddenly go to the High Court and returned at
2:30 PM. It is argued that an application under Section 311 Cr.P.C. was moved
by the Appellant Jayant on 30.05.2007. The said application, however, remained
undecided. We have perused the record. The application was put up before the
learned Additional Sessions Judge on 30.05.2007 who made an endorsement
"keep on file". We do not know as to what was in the mind of the Trial Court and
why the application was not disposed of. There is nothing on record to show that
the Appellant Jayant in any way placed any obstacle in examination of this or any
other witness. The Appellant Jayant‟s counsel was present on 01.05.2007 when
part of examination-in-chief was recorded. He was present on 02.05.2007 in the
pre-lunch session when chief-examination was completed and part of cross-
examination was recorded. Thus, there could not be any malafide on the part of
the Appellant or his counsel in not appearing before the Court at 2:00 PM. The
explanation given by the Appellant‟s counsel, in the circumstances, cannot be
easily brushed aside. The application under Section 311 Cr.P.C. for recalling PW-
4 ought to have been allowed.
51. So, in all fairness PW-4‟s testimony as against the Appellant Jayant has to be
ignored as full opportunity was not given to him to cross-examine this witness.
But, there is PW-1‟s testimony who clearly identified Jayant as the man who
accompanied the Appellant Rathi and had negotiations with PW-1 and then the
deceased for hiring Tata Sumo. Of course, PW-1 did not identify Jayant but his
testimony was recorded when Jayant was not facing trial. He did say that there
was one more person with the Appellant Rathi. Thus, PW-1 corroborates PW-2‟s
testimony regarding Jayant‟s presence without naming him.
52. In view of foregoing discussion, it is established that Appellants Rathi, Yashpal @
Satpal, Devendri, deceased Gajendri and one more person took away deceased
Ajay in his Tata Sumo No. DL-1CG-7774 and Ajay was not seen alive thereafter.
53. In the case of State of Rajasthan v. Kashi Ram, AIR 2007 SC 144 death of the
Respondent‟s wife and his two daughters was proved to be homicidal caused by
strangulation. It was established on record that the deceased was last seen alive in
the Respondent‟s company on 03.02.1998 at her house. The prosecution also
established that the house was found locked on the morning of 04.02.1998 and
continued to remain locked till it was opened after removing the door on
06.02.1998. Throughout this period the Respondent was not to be seen and he
was arrested only on 17.02.1998. It was observed that the Respondent did not
give any explanation as to how he parted company with the deceased or where he
was either at the time of his arrest or in the course of investigation. The Supreme
Court held as under:-
"23.. ........ In a case resting on circumstantial evidence if the
accused fails to offer a reasonable explanation in discharge of the
burden placed on him, that itself provides an additional link in the
chain of circumstances proved against him. Section 106 does not
shift the burden of proof in a criminal trial, which is always upon
the prosecution. It lays down the rule that when the accused does
not throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis
compatible with his innocence, the Court can consider his failure
to adduce any explanation, as an additional link which completes
the chain. The principle has been succinctly stated in Re. Naina
Mohd. AIR 1960 Mad 218."
54. A similar view was taken by a three Judges Bench of the Supreme Court in
Subramany v. State 2003 (10) SCC 185.
55. In Sahdavan v. State 2003 (1) SCC 534 the Supreme Court held that if the
prosecution on the basis of reliable evidence establishes that the missing person
was last seen in the company of the accused and was never seen thereafter it was
obligatory on the accused to explain as to how the missing person and the accused
parted company.
56. The Appellants have failed to render any explanation as to how they parted
company with the deceased. Rather, the prosecution has established additional
links against some of the accused which we would advert to a little later. Suffice it
to say that in the facts of the case, the circumstance of the deceased being last seen
alive in Appellants Rathi, Devendri, Yashpal, deceased Gajendri and another
person‟s company coupled with the removal of Tata Sumo and attempt to its
removal from Khurja is sufficient to draw an inference that these were the earlier
stated Appellants who or anyone of them caused deceased‟s murder in order to
rob the deceased of his Tata Sumo.
57. The learned counsel for the Appellant pointed out the discrepancy about the age of
the child who was in Devendri‟s lap as deposed by PW-1 and Pw-2. The
testimony of the witnesses was recorded after considerable lapse of time. It does
not make the prosecution version false which is corroborated by two independent
witnesses. Such discrepancies regarding minute details are bound to occur in the
testimony of truthful witnesses who have not been tutored. We are not inclined to
attach any importance to it.
CIRCUMSTANCE (B)
58. According to the prosecution, Appellant Devendri made a disclosure statement
Ex.PW-18/A and in pursuance of the said statement led the police party headed by
PW-53 to her house in Saraswati Vihar, Loni Ghaziabad, U.P. Sohan Pal Singh
(PW-5) and Subhash were joined in the investigation by the IO. The Appellant
took out the key lying beneath a brick and unlocked a room and took out a chain
wrapped in a plain white paper from an iron box. PW-5 Sohan Pal Singh deposed
that the iron box was lying on a slab. ASI Santosh Sharma (PW-18) corroborated
PW-5‟s testimony. The IO (PW-53) corroborated PW-5‟s version and deposed
about the seizure of the chain Ex.P-1. The chain Ex.P-1 was identified in the TIP
conducted by PW-28 Sanjeev Kumar, Metropolitan Magistrate. A contention
before the Trial Court was that nobody would keep the key of his/her house
beneath a brick was repelled by the Trial Court holding:-
"...... In countryside people generally keep keys of their house at
such places. They generally do not keep keys with them since
possibility of its use by other members of family would be nil. If
keys are kept at a particular place, where ordinarily outsiders
would not suspect, other members of family can easily use it as and
when necessity arises. Consequently, it is concluded that facts
projected by Sohan Pal Singh satisfies standards of ordinary
human behaviour. I do not find any abnormality in his testimony.
ASI Santosh Sharma gives confirmation to facts testified by Sohan
Pal Singh. Dharambir Gautam SI also speaks that Devendri led to
her tenanted accommodation in Loni. She picked up a key lying
underneath a brick and opened her room. Chain Ex.P1 was
recovered from a box, wrapped in a paper piece. As detailed
above, these facts are not in contradiction of human
behaviour......"
59. It is not only in the urban areas but a practice prevalent even in the rural areas to
keep the keys at a particular place outside the house so that other family members
can easily open the lock and enter the house. We do not find any reason to
disbelieve PW-5‟s testimony regarding recovery of gold chain Ex.P-1 belonging
to the deceased at Appellant Devendri‟s instance.
CIRCUMSTANCE (C)
60. According to the prosecution, the Appellant Rathi, after his arrest on 26.11.2002
made a disclosure statement Ex.PW-6/C and pursuant to the disclosure statement
led the police party headed by SI Dharambir Gautam (PW-53) and other police
officials near the place of incident which led to recovery of a shoe Ex.P-6 which
was identified by PW-4 Gaytri Devi in the judicial TIP. The recovery of the shoe
is criticized by the learned counsel for the Appellant on the ground that the
recovery is alleged to be from an open place which was at a distance of 30-40 ft.
from the place of the recovery of the dead body. It is urged that it is highly
improbable that the entire area near the dead body was not combed by the police
officers from UP police and Delhi police at the time of recovery of the dead body.
It is urged that the absence of an independent witness at the time of alleged
recovery of the shoe would indicate that the same is planted by the IO. The Trail
Court dealt with the contention as under:-
"31. There is another important piece of evidence which has
come on record to link this accused with this crime is recovery of
one shoe of the deceased at his instance on 26.11.02. As per PW-
53, accused Sanjay Singh Rathi was apprehended on 26.11.02
from outside the fields of Nangla Ibrahimpur and he was
interrogated and was arrested and during interrogation he made
disclosure statement. Accused led them to the fields of Nangla
Sekhu from where he got recovered one shoe and the said shoe was
of left foot. The said shoe was sealed in a pullanda with seal of
DVG and was taken into possession vide seizure memo Ex.PW-
6/D. PW-39 SI V.K.Sharma and PW-6 Ct. Pramod are other
police officials who were accompanying IO PW-53 on 26.11.02
and they have supported IO regarding recovery of the shoe of left
foot of deceased at the instance of deceased. IO/PW-53 was cross
examined at length by accused regarding alleged recovery of shoe
of the deceased at his instance. During his cross, PW-53 has stated
that no receipt of shoe purchased by the deceased was given by the
parents of the deceased and he does not know from where it was
purchased and he did not make any inquiry in this regard from the
parents of the deceased. The distance between place of recovery of
shoe and of dead body is about 30-40 feet. No independent witness
was available at the time of recovery of that shoe and nearby
village from that spot is at a distance of about 1 kilometer. No
intimation was given to the concerned PS mentioning the details of
recovery. Ld. Defence counsel has assailed recovery contending
that it was planted to implicate accused in this case and due to that
very reason no public witness was joined at the time of alleged
recovery. PW-53 has specifically stated that at the time of
recovery no person was available and nearby village was around
one kilometer from the spot. Law is settled that merely on the
point of non joining of the public witnesses, at the time of recovery
the testimony of police officials cannot be disbelieved. There is no
presumption that police officials are liars. The evidence of police
officials cannot be rejected merely because of his designation in
the absence of evidence of malice against the accused. Reliance is
placed upon AIR 1987 SC 98, case titled State of Assam vs. Muhim
Barkataki & another. Statements of PW6, PW-39 and IO PW-53
are consistent and trustworthy regarding recovery of the shoe of
deceased and at the instance of accused Sanjay Singh Rathi and
Ld. Defence counsel has failed to discredit their statements on this
point in any manner. In view of the above proposition of law,
testimony of IO PW-53 regarding recovery of shoe of deceased
Ajay at the instance of accused Sanjay Singh Rathi cannot be
disbelieved."
61. It is true that a shoe was not a valuable property to have been concealed anywhere
by the Appellant. It must have been just flung away by the Appellant on noticing
that a shoe had fallen on the ground a little away from the dead body. The same
must have been thrown away not with the purpose to conceal it. Since the facts
were still fresh in the Appellant‟s memory the shoe was recovered pursuant to his
disclosure statement by the Appellant Rathi. We find no reason to differ with the
reasoning given by the Trial Court and believe that the shoe Ex.P-6 was recovered
by the Appellant.
CIRCUMSTANCE (D)
62. According to the IO (PW-53) Appellant Yashpal was arrested on 12.02.2003. He
disclosed that the deceased‟s SIM card was in possession of the Appellant Manju
Kumar. In cross-examination the IO admitted that there was no mention in the
disclosure statement Ex.PW-22/A that the SIM card was in possession of Manju
Kumar. The IO admitted that on 11.11.2002 about coming to know that the
deceased‟s SIM card was being used in another mobile phone. Obviously, the IO
could have tried and must have tried to dial Ajay‟s number to find out who was in
possession of the SIM card to know the complicity of the culprits in the crime. It
is unbelievable that the IO would wait for the Appellant Yashpal‟s arrest on
07.02.2003 i.e. three months after the incident and would only then go for the
recovery of the SIM card. Otherwise also since the alleged recovery was not in
pursuance of the disclosure statement Ex.PW-22/A (there being no mention of
Appellant Manju Kumar in Ex.PW-22/A) the same cannot be used against the
Appellant Yashpal.
63. Moreover, mere possession of a stolen property or a property belonging to a gang
of dacoits is not sufficient to hold a person guilty of the offence punishable under
Section 411/412 IPC. Section 411 and 412 are extracted hereunder:-
"411. Dishonestly receiving stolen property
Whoever dishonestly receives or retains any stolen property,
knowing or having reason to believe the same to be stolen
property, shall be punished with imprisonment of either
description for a term which may extend to three years, or with
fine, or with both. (emphasis supplied)
412. Dishonestly receiving property stolen in the commission of a
dacoity
Whoever dishonestly receives or retains any stolen property, the
possession whereof he knows or has reason to believe to have been
transferred by the commission of dacoity, or dishonestly receives
from a person, whom he knows or has reason to believe to belong
or to have belonged to a gang of dacoity, property which he knows
or has reason to believe to have been stolen, shall be punished
with [imprisonment for life], or with rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to
fine." (emphasis supplied)
64. Thus, to bring the case within the four corners of Section 411 the person who
retains the stolen property must have knowledge or there must be reason to
believe the same to be a stolen property. Similarly, to hold a person guilty under
Section 412 IPC, the prosecution must prove that the person concerned knew or
had reason to believe that the property was transferred by commission of dacoity
or was received from a person whom he knew or had reason to believe to belong
to a gang of dacoits. SIM card is not a valuable property. It can be bought for a
mere Rs.50/- now. It might have been available for Rs.100/- or Rs.200/- in the
year 2002 or 2003. There is every possibility that someone from the Appellants
might have given the SIM card to be used by Manju Kumar either without any
motive or malafide. In the absence of any evidence how and under what
circumstances such property of insignificant value came to the possession of
Appellant Manju Kumar, no inference can be drawn that he knew or had reason to
believe that the card was property obtained by dacoity or was a stolen property.
Appellant Manju Kumar who had already remained in custody for one year three
months, in our view, is entitled to the benefit of doubt.
65. In view of the above discussion, the Criminal Appeal No.702/2007 preferred by
the Appellant Manju Kumar is entitled to be allowed. The order of conviction and
sentence concerning him is hereby set aside and he is accordingly acquitted. He is
ordered to be set at liberty if not in detention in any other case. His personal bond
and surety bond are discharged.
66. Criminal Appeal No.334/2008 preferred by Devendri, Criminal Appeal
No.395/2009 preferred by Yashpal @ Satpal, Criminal Appeal No.649/2010
preferred by the Appellant Rathi and Criminal Appeal No.87/2009 preferred by
the Appellant Jayant @ Amit respectively are without any merit. They are liable
to be dismissed.
67. The appeals are disposed of in above terms.
(G.P. MITTAL)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
OCTOBER 17, 2011
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