Delhi High Court
Shankar Yadav & Ors vs State, Nct Of Delhi on 9 January, 2012
Author: Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 12.12.2011
PRONOUNCED ON: 09.01.2012
+ CRL. APPEAL No. 842/2011
SHANKAR YADAV ..... Appellant
Through: Mr. Avninder Singh, Advocate.
Versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. M.N.Dudeja, APP.
+ CRL. APPEAL No. 963/2011
INDERJEET @ INDER ..... Appellant
Through: Mohd. Shamikh, Advocate.
Versus
STATE ..... Respondent
Through: Mr. M.N.Dudeja, APP.
+ CRL. APPEAL No. 1376/2011
VINOD KUMAR ..... Appellant
Through: Mr. Chetan Lokur, Advocate.
Versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. M.N.Dudeja, APP.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MS. JUSTICE PRATIBHA RANI
%
MS. JUSTICE PRATIBHA RANI
1. The present criminal appeals by Shankar Yadav, Inderjeet @ Inder and
Vinod Kumar (hereafter referred to by their names) are against the impugned
judgment dated 12th May, 2011 and order on sentence dated 14th May, 2011
whereby all of them were convicted under Section 364/34 and were
sentenced to undergo life imprisonment with fine of `1,000/- and in default,
to undergo simple imprisonment for six months. They were also convicted
under Section 302/34 IPC and sentenced to undergo life imprisonment with
fine of `1,000/-and in default, to undergo simple imprisonment for six
months; under Section 201/34 IPC and sentenced to undergo imprisonment
of seven years with fine of `1,000/- and in default, to undergo simple
imprisonment for six months; and under Section 404/34 IPC and sentenced
to undergo imprisonment of three years with fine of `1,000/- and in default,
to undergo simple imprisonment for six months and all the sentences have
been ordered to be run concurrently with benefit of Section 428 Cr.P.C.
2. In brief, the prosecution‟s case is that on the night intervening
24/25.04.2003 at 00:35 hours Rameshwar Goswami, brother of the deceased
(Ghanshyam) reported by DD No.2A Ex.PW27/A that Ghanshyam, aged
about 35 years, 5‟ 7" height, fair complexion, who was wearing striped blue
shirt and light blue trousers and khaki shoes, had left in his Tata Spacio
Sumo (2000 model with engine no.4975826K27 772578 chassis
no.421055K22 927295) with three passengers, booked by Amar Travels,
Sector-1, Avantika. He had taken the three passengers to Hathras and Agra
and was expected to return on 20.04.2003, but failed to return till that date.
SHO, P.S. Rohini was requested to get the case registered and trace the
brother of the complainant and also the vehicle.
3. On 25.04.2003 Rameshwar Goswami made a complaint Ex.PW3/A
narrating the above facts and he stated that he suspected that those three
passengers were the cause for his brother‟s disappearance. He sought legal
action against them. On the basis of this complaint, FIR No.205/03 was
registered at P.S. Rohini under Section 365/34 IPC and investigation was
assigned to S.I Ram Kumar Dahiya. For about a year, neither the vehicle nor
its driver Ghanshyam could be traced. Further investigation was assigned to
SI Raghbir Singh. After about one year on 13.05.2004, by DD No.35B
(Ex.PW24/A) SI Pawan Kumar of AATS, telephonically informed P.S.
Rohini about the arrest of one Inderjeet in case FIR No.160/04 P.S. Farsh
Bazar under Section 25 Arms Act, where he made a disclosure statement
regarding this case. Subsequently, two others, namely, Vinod and Shankar
Yadav were arrested under Section 41 (1) Cr.P.C. by DD No.13A from P.S.
New Ashok Nagar, they too disclosed about their involvement in the present
case.
4. During investigation, they were interrogated and arrested in this case.
They refused to take part in a TIP and their police remand was obtained.
They led the investigating team to the place where the dead body of
Ghanshyam (after his murder and the looting his van) had been thrown. All
three appellants led to the recovery of the Tata Sumo vehicle from an open
place in front of the house of one Lalit in Sikohabad. An HMT watch lying
under sacks of garlic was recovered from the house of Vinod; one red
coloured bag was recovered from the house of Shankar Yadav and one gold
chain was recovered from the house of Inderjeet @ Inder. Judicial TIP of the
articles so recovered was also conducted. After investigation, chargesheet
was filed against all the three appellants and Lalit Kumar, who was
subsequently discharged.
5. The prosecution examined 34 witnesses to bring home the guilt of the
appellants. Out of the 34 witnesses so examined (by the prosecution), PW-1
Smt. Suman - wife, PW-3 Sh. Rameshwar Goswami - brother of the
deceased Ghanshyam and PW-2 Sh. Rameshwar Prashad Rathi, manager of
the travel agency are witnesses to the "last seen" circumstance and the hiring
of the TATA Sumo Spacio with registration No.HR-16-C-1104, by the
appellants.
6. PW-6 ASI Vinod, PW-24 Ct. K. Badiya, Pw-27 SI Ram Kanwar
Dahiya, PW-31 Ct. Sanjay and Pw-26 ASI Jagdish were posted at PS Rohini
where initially this case FIR No.205/03 was registered; he was associated
with this till it was transferred to DIU (North-West District).
7. PW-29 SI Pawan Kumar and PW-33 SI Rajnessh were posted in
AATA and are witnesses to the nabbing of Inderjeet in case FIR No.160/04
PS Farsh Bazar on 07.05.2004 and the arrest of appellants Vinod and
Shankar alongwith their other associates Jamuna, Jasbir and Lalit on
14.05.2004 by DD No.13-A PS New Ashok Nagar under Section 41 (1)
CrPC. PW-29 SI Rajneesh also interrogated them and recorded their
disclosure statements.
8. PW-5 Sh. Ram Babu, PW-8 Sh. Maharaj Singh, PW-10 Sh. Shailender
Kumar, PW-11 Sh. Ram Pal, PW-12 Sh. Inder Pal, PW-21 Sh. Ashok Yadav
are witnesses to the spotting of the dead body of an unknown male aged
about 35 years in a field belonging to PW-5 Sh. Ram Babu.
9. PW-15 SI R.S. Singh, PW-16 Sh. Ram Baran Singh, PW-18 SI
Surender Singh Yadav, PW-14 HC Mool Chand, PW-25 SI Tilak, PW-7 Sh.
Rajesh Kumar, (photographer) are witnesses to the proceedings conducted
with respect to an unknown dead body found in the field of PW-5 Ram Babu.
The postmortem of the dead body was conducted by PW-23 Dr. P.K. Jain.
10. PW-13 Sh. Mukesh was running Pooja Travel Agency. The deceased
was engaged with him. PW-19 Sh. Krishan Kumar and PW-22 Sh. Ashok
Kumar are witnesses about the ownership of the TATA Sumo Spacio bearing
registration No.HR-16-C-1104 driven by the deceased Ghanshyam, while
PW-32 Sh. Raj Kapoor, the then MM conducted TIP in respect of the
recovery of the belongings of the deceased Ghanshyam. Before PW-30 Dr.
Archana Sinha, the then MM, the three appellants were produced for TIP,
which they refused.
11. The statements of the appellants were recorded by ld. Trial Court
under Section 313 Cr.P.C and the incriminating circumstances were put to all
the appellants to record their explanation to the same. However, they simply
denied the allegations and pleaded false implication by the police. Shankar
Yadav stated that he was lifted from his house; Vinod also pleaded to the
same effect, whereas Inderjeet @ Inder stated that he was not arrested in the
manner alleged by the prosecution. He was kept in wrongful confinement
prior to his arrest in case FIR No.160/2004, P.S. Farsh Bazar and his
signatures were obtained on various blank papers. He denied recoveries of
any articles at his instance and claimed that during police custody remand at
P.S. Rohini and also at P.S. Farsh Bazar he was shown to public persons.
None of the appellants examined any defence witness in support of their
version.
12. The case of the prosecution being based on "last seen" and
circumstantial evidence, it is necessary to refer to the testimony of material
witnesses examined by the prosecution to appreciate the contentions raised
before us.
13. PW-1 Smt. Suman‟s (wife of the deceased) statement was about the
arrival of her husband on 18th April at about 7.00/7.30 PM with three
passengers in his TATA Sumo. He told her that he was going to Hathras
with three passengers and would return by 20.04.2003 in the evening. He
took with him some clothes and other necessary items in a red coloured bag.
He failed to return on the due date. They continued to wait for 2-3 days and
then on 25.04.2003 they got the FIR registered. She also stated that she
identified the deceased through photograph Ex.PW1/A shown by the police.
She also identified the three persons when they were produced in Tis Hazari
Court. She also identified TATA Sumo Spacio bearing registration No.HR-
16-C-1104 (Ex.P1) which was attached with Pooja Travels, Sultanpuri.
14. PW-3 Sh. Rameshwar Goswami - brother of the deceased also
deposed about the visit of the deceased to his house on 18.04.2003 to collect
his belongings as he was taking the three passengers to Hathras and going
out for three days. He was expected to return on the evening of 20.04.2003.
He saw all the three appellants sitting in the TATA Sumo when his brother
was inside the house, packing necessary articles and clothes in a red coloured
bag for the journey. He also stated that his brother was wearing a black dial
HMT watch and gold plated silver chain with an „OM‟ locket.
15. PW-3 further deposed that when his brother failed to return, he
contacted Amar Travels on 21.04.2003 and asked about address of the
passengers who had booked the TATA Sumo. The address given was B-826,
Mangol Puri. On verification, he came to know that nobody from that
address had either gone to UP or booked the vehicle. He also informed
Amar Travels and then reported the matter at PS Rohini by complaint
Ex.PW3/A but the FIR was not registered till he contacted the ACP and the
DCP and apprised them about the disappearance of his brother. Then on
24.04.2003, a missing person report Ex.PW27/A was lodged and thereafter
on the basis of the complaint Ex.PW3/A, FIR was registered.
15. PW-2 Sh. Rameshwar Prashad Rathi, Manager of Amar Travel is an
important witness, as he was the person approached by the three appellants
when they wanted to hire a vehicle. His statement is that on 18.04.2003 when
he was in the office, alongwith Gajender Shokeen, the three accused came in
and asked for a TATA Sumo on rental basis, to go to Hathras and Agra. He
expressed his inability to provide the same due to heavy rush. Vinod insisted
that the vehicle had to be arranged by 6.00 pm and on this Sh. Gajender
Shokeen offered to contact other agencies for this purpose.
16. The TATA Sumo Spacio bearing registration No.HR-16-C-1104 was
available with Pooja Travels and that evening at about 6.30/7.00 PM, all
three appellants reached the office of this travel agency. Sh. Ghanshyam
(deceased) was the driver of that TATA Sumo. After recording Vinod‟s
address (which was given by him) booking was done @ Rs.5/- per kilometer
for Agra and Hathras with date of return as 20.04.2003, as the three
appellants wanted to attend a marriage on 19.04.2003. All the three
appellants left his office in the vehicle driven by deceased Ghanshyam.
17. PW-13 Sh. Mukesh is from Pooja Travel Agency. He deposed about a
request made on 18.04.203 by Gajender Singh (of Amar Travels) to provide
a TATA Sumo. The witness sent the TATA Sumo Spacio, bearing
registration No.HR-16-C-1104 to Amar Travels on 18.04.2003 in the
evening at about 7.00 pm with Ghanshyam as the driver. The vehicle was
requisitioned to take passengers to Hathras, U.P. and was to return on
20.04.2003; the hire charges were fixed Rs.5/- per kilometer. He also
deposed that the vehicle alongwith the driver failed to return by the due date.
After a lapse of about one year, he heard about the murder of Ghanshyam
and the arrest of someone involved in the crime as well as the recovery of the
vehicle.
18. The police team associated with the investigation of this case from PS
Rohini are PW-6 ASI Vinod Kumar - (the Duty Officer who recorded FIR
Ex.PW6/A); PW-24 Ct. K. Badiya (who recorded DD No.35-B Ex.PW24/A
on the basis of information received from PS Farsh Bazar) and PW-27 SI
Ram Kanwar Dahiya (who was assigned the missing person report
Ex.PW27/A about deceased Ghanshyam). This information was flashed
through wireless and thereafter on getting the complaint Ex.PW3/A from
brother of the deceased, PW-27 made endorsement Ex.PW27/B and sent the
rukka for registration of the case. He was also associated with the
investigation. He accompanied the deceased‟s brother to Agra on
03.05.2003 where photographs of some of the dead bodies, found in the
month of April were shown. The complainant suspected one to be of his
brother but was not certain. PW-27, therefore, seized the remains of the dead
body. Subsequently, the complainant confirmed that the photograph was not
that of his brother. Thereafter the investigation was transferred to DIU. PW-
26 ASI Jagdish was handed over the pullandas on 03.05.2003 which he
deposited in the malkhana. PW-31 Ct. Sanjay is the witness to the seizure of
photocopy of the documents regarding the booking of TATA Sumo Spacio
bearing registration No.HR-16-C-1104 with driver slip Ex.PW31/A and B
vide memo Ex.PW27/C.
19. PW-19 Sh. Krishan Kumar deposed that as per record, a TATA Spacio
vehicle No.HR-16-C-1104 was registered in the name of Sh. Ashok Kumar,
S/o Sh. Bharat Singh R/o Village Jhati Luhari, Distt. Bhiwani, Haryana.
PW-22 Sh. Ashok Kumar - the registered owner of this vehicle stated that he
had sold the said vehicle to Ghanshyam for ` 3.5 lacs of which ` 1.5 lacs was
paid and the balance was payable in 24 installments which were duly paid
and that he had already applied for the transfer of the vehicle in the name of
deceased Ghanshyam‟s brother.
20. PW-5 Sh. Ram Babu is owner of the field where he noticed the dead
body of a 35 year old male lying in his field when he was harvesting wheat.
He sent PW-8 Sh. Maharaj Singh, Chowkidar to inform the police. After the
police arrived, panchnama was prepared and spot was photographed. He
identified the photograph Ex.PW1/A as that of the body recovered from his
field. PW-7 Sh. Rajesh Kumar, the photographer was called by the S.O.,
Village Fariya and as per directions, he took two photographs. One is
Ex.PW1/A; it was taken and given by him to SI R.S. Singh.
21. PW-15 SI R.S. Singh deposed that on 20.04.2003 upon receiving
information through Chowkidar Maharaj Singh (PW-8), he, SHO Prakash
Yadav, and other police staff reached the spot and saw the dead body of a
male and saw that the clothes were blood stained. He prepared the
panchnama Ex.PW10/C and the sketch of the dead body Ex.PW15/A. He
also prepared challan of the dead body Ex.PW15/B and informed the CMO
by letter Ex.PW15/C and Reserve Inspector by letter Ex.PW15/D. He also
got the dead body photographed. He seized the blood stained mud and earth
control by memo Ex.PW10/A and angochha, belt and shoes lying near the
dead body by memo Ex.PW10/B. He sent the dead body for postmortem to
Government Hospital, Firozabad in the custody of Ct. Munshi Lal and Ct.
Ramesh. He identified the pair of shoes Ex.P3, belt Ex.P4 and angochha
Ex.P2, earth control Ex.P9 and blood stained mud Ex.P10. The clothes of
the deceased seized in this case were also identified as Ex.P5 (colly.) by this
witness.
22. PW-23 Dr. P.K. Jain conducted postmortem on the dead body of the
unknown male on 20.04.2003 at 4.30 pm. He noted eight external injuries
and prepared the postmortem report Ex.PW23/A. According to his opinion,
the cause of death was shock and hemorrhage due to ante-mortem injuries,
both external and internal which were sufficient to cause death, and the time
since death was about one day. He also sealed the deceased‟s clothes i.e.
shirt, pant, baniyan, underwear, black thread and angochha in a pullanda with
the seal of SNM Hospital and handed them over to the concerned Constable.
He identified Angochha Ex.P2, Pant, and baniyan Ex.P5 (Colly.), underwear
Ex.P11.
23. PW-34 ACP Jag Ram is the Investigating Officer of the case who, on
receiving the information about the disclosure statement made by the three
appellants, moved an application to interrogate them which was refused and
he was directed to secure production warrants from the Court concerned. On
his application seeking production warrants, appellants Vinod and Inderjeet
were produced in the Court on 24.05.2004 and they were interrogated with
the permission of the Court by interrogation report Ex.PW20/C and D. He
moved a fresh application for issuing production warrants of Shankar and on
27.05.2004, all the three appellants were produced in the Court, interrogated
and arrested in this case. During their police remand, the disclosure
statements Ex.PW21/G, H and I were recorded.
24. Pursuant to the disclosure statements, the three appellants pointed out
the shop of Amar Travels from where TATA Sumo Spacio was hired. They
also led the police to Awagarh, PS Fariya and pointed out the field of Sh.
Ram Babu where dead body had been thrown. The recovery of dead body of
a male aged 30-35 years from that place on 20.04.2003 was confirmed by Ct.
Mool Chand of PS Fariya.
25. PW-34 ACP Jagram collected the postmortem report, the deceased‟s
photograph, pullandas and panchnama from PS Fariya and prepared memo
Ex.PW25/A in respect of the pullandas. In respect of the photograph of the
deceased and 16 papers from PS Fariya, a seizure memo Ex.PW16/A was
prepared. The belongings of the deceased which were taken by the doctor
were also obtained from PS Fariya and were seized by memo Ex.PW25/A.
He identified the photograph Ex.PW1/A of the deceased and the papers
seized by him as Ex.PW10/A to C, Ex.PW15/A to D, and the postmortem
report Ex.PW23/A collected by him from PS Fariya.
26. PW-34 ACP Jag Ram also deposed about the recovery of one HMT
wrist watch Ex.P7 at the instance of Vinod from his house at Village Jasrana
from a pitcher lying underneath sacks of garlic which was sealed with the
seal "JS" and seized by memo Ex.PW20/L. Shankar Yadav led to the
recovery of one red coloured bag Ex.P6 from his house in Kannoj District
which was also sealed (with the seal "JS") and seized by memo Ex.PW20/P.
Inderjeet led to recovery of one golden colour chain with „OM‟ locket from a
box lying in his house which was sealed with the seal "JS" and seized by
memo Ex.PW20/Q. All three appellants also led the police party to
Shikohabad and pointed out the house of one Lalit Kumar where one TATA
Sumo Spacio bearing registration No.HR-16-C-1104 of white colour Ex.P1
was parked outside the house. It was seized by memo Ex.PW20/O and sent
to Delhi through Ct. Ramesh Kumar.
27. We have heard Mr. Avninder Singh, counsel for Shankar Yadav; Mr.
Mohd. Shamikh, counsel for the appellant Inderjeet @ Inder and Mr. Chetan
Lokur, counsel for the appellant Vinod Kumar as well as learned APP for the
State and given our thoughtful consideration to the submissions put forth by
them.
28. On behalf of appellants, it was contended that there is a delay of about
five days in lodging the FIR and even its contents do not implicate the
appellants; they were neither named nor any other factor mentioned in the
FIR led to their arrest.
29. Another contention of ld. Counsels for the appellants is that the
description of the appellants was not mentioned in the FIR and there is
absolutely no evidence to connect them with the booking of vehicle TATA
Sumo Spacio bearing registration No.HR-16-C-1104 through Amar Travels.
30. The appellants challenge their conviction and sentence on the ground
that they were arrested in this case after more than a year from the date of
occurrence. The recovery of bag, chain and wrist watch have been planted
on them. They are common items having no particular mark of identification
and it is highly improbable that for a period of one year, they would have
continued to be in possession of such useless items. On behalf of appellant
Inderjeet, it was submitted that he was shown arrested in case FIR No.160/04
P.S. Farsh Bazar under Section 25 Arms Act and in that case, he was
acquitted, which throws doubt on the entire case of the prosecution. On
behalf of Shankar Yadav and Vinod Kumar, it was urged that they were
picked from their respective houses by the officials of PS Ashok Nagar and
falsely arrested under Section 41 (1) Cr.P.C. and were forced to sign various
blank papers and forms and later on, were falsely implicated in this case by
the police officials of PS Rohini in connivance with the complainant.
31. Challenging the recovery of TATA Sumo Spacio bearing registration
No.HR-16-C-1104 at their behest, it was urged that the recovery was made
from an open place in Village Shirokhabad. In that circumstance, the
recovery cannot be attributed to be from the possession of the appellant
especially when the vehicle was found parked outside the house of one Lalit
Kumar, resident of Village Shirokhabad. Lalit Kumar was also made an
accused in this case but was discharged by the Court. In the circumstances,
even recovery of the said TATA Sumo Spacio on the basis of disclosure or at
the behest of the appellants, has to be disbelieved.
32. It has also been contended that the address mentioned in the booking is
also not that of any of the appellants and was found to be fake by the police
as well as the public witnesses when efforts were made to trace the persons
who had booked the said vehicle. The signature of none of the appellants
was obtained on any booking register which further makes the entire case of
the prosecution doubtful.
33. Further it has been contended by ld. Counsels for the appellants that
the two witnesses to the last seen i.e. PW-1 Smt. Suman - wife of the
deceased and PW-3 Sh. Rameshwar Goswami - brother of the deceased are
interested witnesses and the statement of PW-2 Sh. Rameshwar Prashad
Rathi in this regard can also not be believed as there is no documentary
evidence to prove booking of the vehicle TATA Sumo Spacio bearing
registration No.HR-16-C-1104 through PW-2 Sh. Rameshwar Prashad Rathi.
34. While referring to the statement of PW-27 SI Ram Kanwar that
brother of the deceased (PW-3 Sh. Rameshwar Goswami) went with
Inspector Ram Chander to Agra and after seeing a photograph of the dead
body, suspected it to be of his brother Ghanshyam and since the body was
already cremated, remains of the same were taken into possession. It was
contended that PW-3 had already identified another body through a
photograph as being that of his brother, and here again he claimed this body
to be of his brother. Keeping in mind this grave inconsistency, they urged
that a witness should not have been believed by the Court as the basis of the
conviction of the appellants. It was also contended, that in the postmortem
report, it was opined that injuries were not sufficient to cause death in the
ordinary course of nature.
35. Referring to the various discrepancies and improvements in the
testimony of the material prosecution witnesses, the appellants argued for
their acquittal especially in the light of the testimony of PW-1 Smt. Suman
when she stated that she saw the appellants in unmuffled faces at a time
when they were produced in Court and identified by her, which shows
justified reason for refusal of TIP by the appellants. Learned Counsel for the
appellant Vinod Kumar relied upon Venkatesan v. State of Tamil Nadu
2008 (9) SCALE; Ram Chander @ Ganju & Anr. V. State of Delhi 2011 V
AD (Delhi) 383; SK. Yusuf v. State of West Bengal 2011 (6) SCALE;
Dandu v. State of A.P. 2011 (9) SCALE & Tipparam Prabhakar v. State of
Andhra Pradesh (2009) 13 SCC 534 in support of his contentions.
36. On behalf of State, Sh. M.N. Dudeja, Learned APP submitted that the
case of the prosecution, no doubt, is based on last seen and circumstantial
evidence but the nature of evidence produced by the prosecution completes
the chain of circumstances to lead only to one conclusion, i.e., that the
appellants had committed this crime. From the testimony of PW-1 Smt.
Suman, PW-2 Sh. Rameshwar Prashad Rathi and PW-3 Sh. Rameshwar
Goswami who had last seen the deceased going with the appellants in TATA
Sumo Spacio bearing registration No.HR-16-C-1104 which was arranged
from Pooja Travels by Amar Travels, it can be seen that failure of the
appellants to return by due date i.e. 20.04.2003 led to the search of the
vehicle and the driver and during inquiry by family of the deceased, even the
address given by the individual who booked the vehicle, was found to be
fake. Only after waiting for his return in the normal course, the matter was
reported to the police. Thus, the delay was well explained in the
circumstances. Referring to the recovery of bag, wrist watch and chain as
well as vehicle at the instance of the appellants, it was submitted that
clinching evidence was gathered to connect them to crime, and consequently
the impugned order should be confirmed.
37. We have considered the rival contentions and have also gone through
the trial court record. No doubt, the case of the prosecution is based on last
seen and circumstantial evidence. Where a case rests on circumstantial
evidence it is the prosecution‟s duty to establish that from the circumstances
proved on record the only conclusion that can be drawn is the guilt of the
accused and the circumstances established must be inconsistent with the
innocence of the accused. The observation of the Supreme Court in a recent
judgment in G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593 are
quite apposite. We would like to extract Para 23 and 24 hereunder:-
"23. In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each
fact sought to be relied upon must be proved individually.
However, in applying this principle a distinction must be made
between facts called primary or basic on the one hand and
inference of facts to be drawn from them on the other. In
regard to proof of primary facts, the court has to judge the
evidence and decide whether that evidence proves a particular
fact and if that fact is proved, the question whether that fact
leads to an inference of guilt of the accused person should be
considered. In dealing with this aspect of the problem, the
doctrine of benefit of doubt applied. Although there should not
be any missing links in the case, yet it is not essential that each
of the links must appear on the surface of the evidence adduced
and some of these links may have to be inferred from the
proved facts. In drawing these inferences, the court must have
regard to the common course of natural events and to human
conduct and their relations to the facts of the particular case.
The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence
for the purpose of conviction, the court has to consider the
total cumulative effect of all the proved facts, each one of
which reinforces the conclusion of guilt and if the combined
effect of all these facts taken together is conclusive in
establishing the guilt of the accused, the conviction would be
justified even though it may be that one or more of these facts
by itself or themselves is/are not decisive. The facts established
should be consistent only with the hypothesis of the guilt of the
accused and should exclude every hypothesis except the one
sought to be proved. But this does not mean that before the
prosecution can succeed in a case resting upon circumstantial
evidence alone, it must exclude each and every hypothesis
suggested by the accused, howsoever, extravagant and fanciful
it might be. There must be chain of evidence so complete as not
to leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the accused,
where various links in chain are in themselves complete, then
the false plea or false defence may be called into aid only to
lend assurance to the court."
38. The contention of learned Counsel for the appellants regarding delay
of five days in lodging the FIR, though attractive on the face of it, is without
substance. The deceased Ghanshyam left in his TATA Sumo Spacio on
18.04.2003 and was to return in three days, i.e., on 20.04.2003. PW-3 Sh.
Rameshwar Goswami - brother of the deceased testified before the Court
about his making rounds to Amar Travels that hired the vehicle of the
deceased, even to the extent of obtaining the address of the person who hired
the vehicle and then visiting the given address. He not only informed Amar
Travels and Pooja Travels that the address recorded for booking was fake as
no such person from that place had hired the vehicle or gone to UP. He had
not only been visiting the local police but even met the senior police officers.
The police also adopted a "wait and watch" policy and the travel agents also
asked him to wait for the return of his brother expecting break down of the
vehicle could be one of the causes. In what circumstance the delay has
occurred, has been explained by PW-3 Sh. Rameshwar Goswami whose
testimony has been duly corroborated on this aspect by PW-2 Sh.
Rameshwar Prashad Rathi, Manager, Amar Travels.
39. The fact that DD entry No.2A Ex.PW27/A was recorded on the night
intervening 24/25.04.2003 at 12.35 AM is sufficient to prove that the
deceased‟s family were spending sleepless nights looking for him. The FIR
has been recorded on 25.04.2003 in the evening on the basis of complaint
Ex.PW3/A. This in itself explains that so far as the complainant was
concerned, he was making constant efforts to report the matter to the police
and at the same time also to follow the advice to wait for his return. In the
case Balram Singh & Anr. v. State of Punjab, 2003 (11) SCC 286, it was
observed by the Supreme Court that if the ocular evidence adduced by the
prosecution is worthy of acceptance the element of delay in registering the
FIR/complaint or sending the same to the jurisdictional Magistrate by itself
would not in any manner weaken the prosecution case.
40. The next contention on behalf of the appellants is about the absence of
their description in the FIR and documentary evidence to connect them with
the booking of TATA Sumo Spacio bearing registration No.HR-16-C-1104.
DD entry Ex.PW27/A recorded at midnight on 24/25.04.2003 contains the
description of the vehicle i.e. make, model, registration number, engine
number, chassis number and that it was booked through Amar Travels, Shop
No.5, Sector-1, Avantika, DDA Market on 18.04.2003. In this DD entry
itself, he has given the description of his brother which shows that
passengers were not suspects and he was just giving the description of his
brother so that he could be traced out with the help of particulars of the
vehicle driven by him. In this DD Ex.PW27/A, the fact that his brother
Ghanshyam did not return by the expected date i.e. 20.04.2003 is mentioned
together with the fact that the deceased had taken three passengers to Hathras
and Agra on being hired through Amar Travels till that time. The family of
deceased Ghanshyam did not apprehend that he could be murdered by those
who hired the vehicle. There was consequently no reason for them to give
their description in the first report Ex.PW27/A. The complaint Ex.PW3/A is
a very brief complaint containing only the relevant fact.
41. The appellants in this case were arrested after a period of one year and
it is only on the basis of disclosure statement made by them that the case FIR
No.205/03 was solved. All three appellants were produced in the Court
alongwith the applications for TIP, after their faces were muffled as is
proved from the applications moved to this effect before the Court. There is
no observation by the Court that the appellants were in unmuffled faces at
the time of their production for TIP when the date for TIP was fixed. They
also did not complain at that time about being shown to witnesses in PS
Rohini.
42. Statement of PW-3 Sh. Rameshwar Goswami also proved that he was
summoned to Tihar Jail and asked to wait till he called in for identification
but subsequently he was informed that TIP was refused by the suspects. In
these circumstances, he had no occasion to see them in the Court before their
refusal to take part in TIP. It is pertinent to note that when the deceased
visited his house to collect his necessary items before proceeding to Hathras
and Agra, the three passengers in the Sumo were seen by PW-1 Smt. Suman
and PW-3 Sh. Rameshwar Goswami in normal course. So far as PW-2 Sh.
Rameshwar Prashad Rathi is concerned, these appellants visited his office
twice and had sufficient time to interact with him in the forenoon as well as
later in the evening. PW-1 Smt. Suman, PW-2 Sh. Rameshwar Prashad
Rathi and PW-3 Sh. Rameshwar Goswami correctly identified all the three
appellants to be the man who hired the deceased‟s vehicle on the fateful date
to go to Hathras and Agra. None of these witnesses during their cross
examination stated that before being called for TIP, they were shown the
appellants in PS Rohini or any other place. Even if it is assumed for the sake
of arguments that PW-1 Smt. Suman and PW-3 Sh. Rameshwar Goswami
did not have enough opportunity to see the three passengers sitting in the
TATA Sumo Spacio that would not apply to PW-2 Sh. Rameshwar Prashad
Rathi who is an independent public witness instrumental in getting the
vehicle booked for the three appellants on that day. His testimony in this
regard remains unchallenged.
43. The prosecution has proved on record the copy of the extract of the
booking register maintained at Amar Travels alongwith the booking slip
Ex.PW13/A and B seized by the IO by memo Ex.PW27/C. Since booking
can be done even on telephone if one has the number of the travel agent,
there was no requirement to obtain the signature of the passengers on the
booking register or booking slip.
44. It is well settled that identification by a witness in the Court is
substantive evidence. Identification in the TIP during investigation has only
corroborative value. The purpose of conducting TIP during investigation is to
test the memory of the witness who has seen the accused committing the
crime and to be assured that the investigation is in the right direction. In this
case, PW-2 had enough time to interact with the three appellants initially to
express the inability to provide any TATA Sumo on that date and then on
being persisted to arrange the same by evening, he contacted Pooja Travel
Agency. The appellant later went in the evening to confirm the availability of
the vehicle. All of this gave him enough opportunity to have a good look at
the appellants; and their faces were ingrained in his memory on failure of the
deceased to return alongwith the vehicle by the due date, and even thereafter.
He was also contacted time and again by the brother of the deceased to find
the whereabouts of those who booked the vehicle.
45. We are supported in our view by Munshi Singh Gautam & Ors. vs.
State of M.P,(2005) 9 SCC 631 and Ramanbhai Naranbhai Patel vs. State of
Gujarat, (2000) 1 SCC 358.
46. In Munshi Singh Gautam, the Hon‟ble Supreme Court held:-
"17. It is trite to say that the substantive evidence is the evidence of
identification in court. Apart from the clear provisions of Section 9 of the
Evidence Act, the position in law is well settled by a catena of decisions of
this Court. The facts, which establish the identity of the accused persons,
are relevant under Section 9 of the Evidence Act. As a general rule, the
substantive evidence of a witness is the statement made in court. The
evidence of mere identification of the accused person at the trial for the
first time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and strengthen
the trustworthiness of that evidence. It is, accordingly, considered a safe
rule of prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the accused who are
strangers to them, in the form of earlier identification proceedings. This
rule of prudence, however, is subject to exceptions, when, for example,
the court is impressed by a particular witness on whose testimony it can
safely rely, without such or other corroboration. The identification
parades belong to the stage of investigation, and there is no provision in
the Code which obliges the investigating agency to hold or confers a right
upon the accused to claim a test identification parade. They do not
constitute substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a test identification
parade would not make inadmissible the evidence of identification in
court. The weight to be attached to such identification should be a matter
for the courts of fact. In appropriate cases it may accept the evidence of
identification even without insisting on corroboration." (emphasis
supplied).
47. Delay of one year in arrest of the appellants (after the date of
commission of offence) is the defence‟s main contention, questioning the
conviction of the appellants. The question that arises is that if the crime
remains undetected for a long period but subsequently later offenders are
nabbed and on the basis of information given by them, some pending cases
are solved, whether that in itself is sufficient to render the case of the
prosecution doubtful. Such an argument is unmerited. If someone is accused
in a crime and after arrest, reveals his involvement in an unsolved previous
case, the delay (in the latter case) in arrest cannot go against the prosecution.
To hold so would put a premium on those evading the course of justice. It
was an unending search for the family of the deceased as well as for the
police till the arrest of Shankar Yadav, Inderjeet and Vinod Kumar who led
the police to Awagarh, U.P. and pointed out the place where Ghanshyam‟s
body was thrown. The police officials of PS Fariya confirmed this fact by
showing the photograph Ex.PW1/A, taken of the deceased when the body lay
in the field of PW-5 Sh.Ram Babu. It confirmed the identity of that body to
be that of Ghanshyam; till that date the records of MHC(R) of PS Fariya
showed it as that of an unknown male person aged about 35 years. This fact
was not within the knowledge of Delhi Police or of PS Fariya till it was
disclosed to them by the appellants. In the given circumstances, merely
because the Delhi Police could catch the appellants in other cases and during
interrogation, could secure information which led to the recoveries pertaining
to this case FIR No.205/03, the gap of one year in their arrest is insignificant.
48. The appellants have challenged the recovery of bag, chain and wrist
watch of the deceased contending that they are common items and had no
specific mark of identification and could have been planted by the police to
solve the case. The TIP proceedings Ex.PW32/B conducted in respect of one
red coloured bag, a yellow chain and a wrist watch reveal that identical
property was brought by the IO for mixing with the case property and during
the TIP proceedings, the witness Sh. Rameshwar Goswami correctly
identified the case property despite their being so mixed by the Magistrate.
(as shown in portion-A in the proceedings Ex.PW32/B). In compliance of
the directions given by the Magistrate, the case property and the property
taken there for being mixed was also photographed. The two photographs
placed on page No.1053 of the Trial Court Record show that similar property
was brought there, to be mixed up. PW-3 Sh. Rameshwar Goswami
correctly identified the case property which belonged to his brother deceased
Ghanshyam. Thus, there was hardly any doubt regarding recovery of wrist
watch Ex.P7, red colour bag Ex.P6 and chain, Ex. P8 from possession of the
appellants, from their houses even after one year. The appellants failed to
explain how they came into possession of the personal belongings of the
deceased. If the recovery was made after one year from their houses, and
they have been correctly identified by the material prosecution witnesses i.e.
PW-1 Smt. Suman, PW-2 Sh. Rameshwar Prashad Rathi and PW-3 Sh.
Rameshwar Goswami as those who hired the vehicle, that circumstance is
sufficient to connect the appellants with the deceased‟s murder.
49. Even if the Court were to assume, arguendo, that identification of the
said articles is not free from doubt and the articles being commonly available
could have been planted by the police to solve the dead case, yet the
appellants have not been able to explain how after a year the TATA Sumo
Spacio could be recovered at their instance. Such a vehicle with the same
engine number, chassis number, registration number could not have been
planted on them by the Delhi Police; it was recovered from Shikohabad at
their behest. No doubt, the vehicle was lying parked in the open near Lalit‟s
house. However, knowledge of its disposal and where it could be found were
with the appellants, while in the initial statement made by Inderjeet, without
naming Lalit, he disclosed that it was sold in Shikohabad. After the arrest of
Vinod and Shankar Yadav, during their interrogation, the fact of its sale to
Lalit in Shikohabad was known. Co-accused Lalit was discharged by order
dated 12.12.2005 as prima facie the material on record was found insufficient
to charge him. It is the prosecution‟s case that the vehicle was not recovered
from possession or due to its pointing out by Lalit. It was in fact parked in
the open outside his house. In the given circumstances, the appellants at
whose behest the vehicle was recovered could not derive any benefit from
Lalit being discharged from the case.
50. The recovery Memo Ex.PW20/O reveals the recovery of vehicle
TATA Sumo Spacio bearing registration No.HR-16-C-1104 bearing engine
number and chassis number contained in Ex.PW27/A at the behest of all the
three appellants from outside the house of Lalit. No doubt, seizure memo
has not been witnessed by any independent public witness but that in itself
has no adverse effect to the prosecution‟s case. In State, Govt. of NCT of
Delhi vs. Sunil & Anr., (2001) 1 SCC 652, it was held that there is no
requirement in law either under Section 27 of the Indian Evidence Act or
under Section 161 Cr.P.C. to obtain signatures of independent respectable
persons of the locality on the statement made by the accused. We would like
to extract Para 19 of the report hereunder:-
"19. In this context we may point out that there is no
requirement either under Section 27 of the Evidence Act or
under Section 161 of the Code of Criminal Procedure, to
obtain signature of independent witnesses on the record in
which statement of an accused in written. The legal obligation
to call independent and respectable inhabitants of the locality
to attend and witness the exercise made by the police is cast on
the police officer when searches are made under Chapter VII
of the Code."
51. The appellants had contended that PW-3 Sh. Rameshwar Goswami
identified previously the photograph of one body and IO had even seized the
remains of that body, which rendered his testimony untrustworthy, carries no
force. The statement of PW-3 Sh. Rameshwar Goswami - brother of the
deceased as well as the statement of IO is that one body in Agra was
suspected to be that of the deceased but later disclaimed. The photograph of
the deceased, obtained from PS Fariya (page No.1053 of LCR) shows his
face and on the basis of that photograph preserved at PS Fariya in respect of
the dead body recovered from PW5‟s field the police came to know about
commission of murder of Ghanshyam by the appellants.
52. We have to consider the state of mind of the family of the deceased
who were not aware about his death till the identification of the place where
the body was thrown by the appellants. The inquiry from the concerned PS
also revealed recovery of the body from that place; it was photographed
before a postmortem was conducted. As the face of the deceased is
identifiable in the photograph and was duly identified by his wife and
brother, merely because earlier they were looking at photographs of
unclaimed bodies does not discredit their testimony.
53. As far as discrepancies and improvements in the testimony of material
witnesses are concerned, one has to keep in mind that the deceased‟s family
underwent constant trauma for one year till the arrest of the appellants, and
their subsequent revelations during investigation. Continuous search for
such a long duration by close family members is bound to affect their
capacity to recollect the entire events and their chronological sequence; the
state of mind and lapse of time being major contributing factors.
Discrepancies are bound to occur in the testimony of natural witnesses when
they appear in the Court to depose after lapse of long interval are are
subjected to lengthy cross examination. In Krishna Mochi & Ors. vs. State
of Bihar, 2002 (6) SCC 81, the Supreme Court deprecated the practice to
pass orders of acquittal on the basis of minor discrepancies and
contradictions.
54. The testimonies of PW-1 Smt. Suman and PW-3 Sh. Rameshwar
Goswami i.e. wife and brother of the deceased on the aspect of last seen is
duly corroborated by PW-2 Sh. Rameshwar Prashad Rathi, Manager of Amar
Travels who had long deliberations with the appellants, when they went to
hire a TATA Sumo on 18.04.2003. PW-1 Smt. Suman and PW-3 Sh.
Rameshwar Goswami cannot be termed as interested witnesses, they are
natural witnesses who saw the deceased leaving with three passengers for
three days in the said vehicle. The conduct of the deceased in visiting his
house to collect a change of clothes and other daily use items required for the
journey was natural as he was not only required to inform his family about
the duration and destination, but also to take necessary things required for
journey. After going through the testimony of prosecution witnesses, we
find that the prosecution has been able to prove the circumstances discussed
hereafter against all the three appellants beyond reasonable doubt.
55. The deceased Ghanshyam was seen alive by PW-2 Sh. Rameshwar
Prashad Rathi in the company of appellants when they hired his TATA Sumo
Spacio, bearing registration No.HR-16-C-1104, through Amar Travels and
thereafter again by PW-1 Smt. Suman, his wife and PW-3 Sh. Rameshwar
Goswami, his brother, when he (the deceased) went home to collect his
belongings and informed the family about his departure for Hathras and Agra
with three passengers, in his TATA Sumo on 18.04.2003 at about 7.30 PM.
56. The body of the deceased Ghanshyam was recovered by police
officials of PS Fariya on 20.04.2003 on receiving information by DD No.15
recorded at 10.15 AM regarding discovery of the body of unknown 35 years
old male in the field of Ram Babu. The postmortem was conducted at 4.50
PM on 20.04.2003 and time since death was given as one day. Thus, the
death seems to have been caused in the evening of 19.04.2003. The manner
in which death was caused, was disclosed in the statements Ex.PW21/G to I.
Till that date, Delhi Police was not aware of the recovery of dead body on
20.04.2003 by police officials of PS Fariya and postmortem report
Ex.PW23/A. The statement of PW-23 Dr. P.K. Jain, CMO, District Hospital,
Badaiyun, UP and postmortem report Ex.PW23/A prove that the facts
disclosed as to how Ghanshyam was murdered, were confirmed during
postmortem. These are clearly "facts discovered" pointing to knowledge
about the place where the deceased‟s body was recovered by the local police
in U.P, but not known to the Delhi Police, and therefore, admissible under
Section 24 of the Evidence Act.
57. The deceased Ghanshyam was last seen alive by PW-1 Smt. Suman,
PW-2 Sh. Rameshwar Prashad Rathi and PW-3 Sh. Rameshwar Goswami
before leaving Delhi. His dead body was recovered after two days from the
place which was pointed out by the three appellants after a gap of one year.
58. The time gap when the deceased was last seen alive in the company of
appellants and when his dead body was recovered is such that either the
appellants had to explain when and how they parted from his company or to
explain in what circumstances Ghanshyam died an unnatural death.
59. As to whether the recovery of a dead body stands on the same footing
as the recovery of any other object, cannot be open to debate. The position
was spelt out clearly in State of Maharashtra v. Suresh : (2000) 1 SCC 471
where the Supreme Court observed that:
"Three possibilities are there when an accused points out the
place where dead body or an incriminating material was
concealed without stating that it was concealed by him. One is
that he himself would have concealed it. Second is that he
would have seen somebody else concealing it. And the third is
that he would have been told by another person that it was
concealed there. But if the accused declines to tell the criminal
court that his knowledge about the concealment was on
account of one of the last two possibilities the criminal court
can presume that it was concealed by the accused himself. This
is because the accused is the only person who can offer the
explanation as to how else he came to know of such
concealment and if he chooses to refrain from telling the court
as to how else he came to know of it, the presumption is a well-
justified course to be adopted by the criminal court that the
concealment was made by him. Such an interpretation is not
inconsistent with the principle embodied in Section 27 of the
Evidence Act."
Similarly, in Deepak Chandrakant Patil Vs. State of Maharashtra: (2006)
10 SCC 151, the Supreme Court observed as follows:
"Apart from being last seen with the deceased, there is
evidence to the effect that he pointed out the place where the
body of the deceased was lying which was in the garden behind
the house of A-1. The motorcycle of the deceased was also
recovered from the same spot. The evidence is thus conclusive
that the appellant and the deceased travelled from the house of
the deceased to the point where he was assaulted and killed.
The objective findings also prove that the appellant had
brought the deceased towards the house of A-1 and that in fact
he had told the deceased that he was required by A-1. Learned
counsel submitted that the statement made by the appellant that
he had a fight with the deceased and that he could show the
place where his body was lying, is not admissible as it was
made in the presence of a police constable. Assuming that the
inculpatory part of the statement may not be admissible in
evidence, the statement, so far as it relates to other parts
disclosed leading to recovery, is admissible."
60. In this case, the prosecution has discharged its initial burden of
proving that the Appellants and deceased Ghanshyam were together at the
place and time of close proximity of the death of Ghamshyam. The
Appellants were under obligation to explain when and how they parted with
the company or in what circumstances Ghanshyam died an unnatural death.
Rather, their complete denial becomes an additional link in the prosecution
case, as held in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254.
61. In another case Mohibur Rahman vs. State of Assam, 2002 (6) SCC
715, the Supreme Court observed that there may be cases where on account
of close proximity of place and time between the event of the accused having
been last seen with the deceased and the factum of death, a rational mind
may be persuaded to reach an irresistible conclusion that either the accused
should explain how and in what circumstances the victim suffered the death
or should own the liability of the homicide. The case law relied upon on
behalf of appellant Vinod Kumar is clearly distinguishable having regard to
facts of the present case.
62. The recovery of the deceased‟s vehicle at the behest of the three
appellants from Shikohabad after a gap of one year is a strong circumstance;
it not only proves motive for commission of murder but also provides
clinching evidence against the appellants which they failed to rebut. It has
already been observed that the deceased‟s vehicle was recovered at the
behest of the three appellants from Shikohabad and it could not have been
planted by the police officials.
63. In view of the foregoing discussion we are of the opinion that the
prosecution successfully proved, beyond reasonable doubt that the three
appellants, viz. Inderjeet, Shankar Yadav and Vinod Kumar hired the vehicle
of the deceased through Amar Travels. The statement of PW-2 Sh.
Rameshwar Prashad Rathi shows that the TATA Sumo was booked at Rs.5/-
per kilometer for Agra and Hathras; the appellants stated that the date of
return was 20.04.2003 as they wanted to attend a marriage on 19.04.2003. It
is obvious that the motive to hire the TATA Sumo was not to attend the
marriage but to deceitfully induce Ghanshyam to accompany the appellants;
the motive was to take away his TATA Sumo for which they could even
commit his murder, which in fact they did.
64. We are of the considered view that the prosecution has been able to
prove each circumstance conclusively and also prove the entire chain of
circumstances not only by last seen circumstance but also by other
circumstances pointing only to the hypothesis that the crime was committed
by the appellants, excluding any other hypothesis indicating their innocence.
65. The appellants have been convicted under Section 364/302/201/404
IPC. So far as findings of ld. Trial Court convicting the three appellants
under Sec.201 and 404 IPC is concerned, since the dead body was thrown in
an open field and could be noticed by the passers-by, and further that the
photograph of the body reveals that it was not disfigured to make the
identification difficult, the conviction under Sec.201 is liable to be set side.
Section 404 IPC deals with dishonest misappropriation of property possessed
by the deceased person at the time of his death. Taking into consideration
the facts of this case where the deceased was abducted by deceitful means
and murdered to facilitate the taking away of his TATA Sumo Spacio and
belongings, Section 404 IPC has no application to the facts of the case.
Hence, conviction under Sec.201 and 404 IPC is set aside.
66. The finding of learned Trial Court convicting the appellants for the
offence punishable under Sections 364 & 302 IPC and sentence awarded
thereunder calls for no interference and is affirmed. All the three appeals are
disposed of in above terms. A copy of this order be sent to the concerned
Jail Superintendent.
PRATIBHA RANI
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
January 09, 2012
dc/st
