Dharmender Kumar Pal vs State
2013 Latest Caselaw 1143 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Judgment reserved on: 31.01.2013
                                       Judgment pronounced on: 07.03.2013

                     CRIMINAL APPEAL NO.1200/2011

DHARMENDER KUMAR PAL                                         ..... Appellant
           Through: Ms.Anu Narula, Advocate.


                                   Versus

STATE                                                       ..... Respondent
                     Through:    Ms.Richa Kapoor, APP.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


                                JUDGMENT

SIDDHARTH MRIDUL, J.

1. Dharmender Kumar Pal impugns his conviction under

Sections 302 and 392/397 of the Indian Penal Code, 1860 (for short 'IPC')

vide judgment dated 07.02.2011. By order dated 11.02.2011, the appellant

has been sentenced to rigorous imprisonment for a term of 7 years for the

offence punishable under Section 392/397 IPC and fine of Rs.5,000/- and in

default thereof, to undergo simple imprisonment of two months. For the

offence under Section 302 IPC, the appellant has been sentenced to undergo

rigorous imprisonment for life and to pay fine of Rs.20,000/- and in default

of payment of fine, simple imprisonment for nine months. The appellant is

further sentenced to rigorous imprisonment for a term of 5 years under

section 27 Arms Act 1959 and a fine of Rs.5,000/- and in default of payment

of fine, simple imprisonment for two months. All the sentences are to

operate concurrently.

2. The case of the prosecution, which has been accepted by the trial

court, is that on 14.05.2007, the appellant was deputed as Gunman/Guard at

NDPL Zonal Office, Tibia College, NewRohtak Road, Delhi. Between 3:00-

3:40p.m., the appellant in order to commit theft, caused death of Cashier

Parmod Pathak by firing at him and also removed Rs.2,75,000/- from the

said office. The weapon of offence i.e rifle was found lying at the spot itself

and was seized during the investigation. The FIR(Ex.PW-1/A) was registered

at 12:40 a.m. on 15.05.2007. The appellant was apprehended at around 5:00

a.m. on 15.05.2007 vide arrest memo Ex.PW-4/J and recovery of cash of

Rs.2,75,000/- was effected from him which was seized by virtue of Ex.PW-

4/G.

3. The homicidal death of the deceased is undisputed and stands proved

by the statement of PW-7, Dr.Vinod, Assistant Professor, Department of

Forensic Medicine, Santosh Medical College, Ghaziabad, U.P. PW-7 has

conducted the post-mortem and as per the post-mortem report (Ex.PW-7/A)

the deceased had sustained following injuries:-

i) Fire arm entry wound 1.0 cm x 0.8 cm x cavity deep present over back of right side of chest with margins inverted and present in 5thintercostals space.

ii) Fire arm exit wound 3.4 cm x 2.8 cm x cavity deep present over front of right side of chest 7.2 cm above and inner to right nipple with margins everted and present in second inter costal space.

4. PW.7 Dr.Vinod opined that the death was due to haemorrhage and

shock consequent upon fire arm injuries via injury Nos.1 and 2. All injuries

were ante-mortem in nature. Fresh in duration they could be caused due to

riffled fire arm. Injury Nos. 1 and 2 were sufficient to cause death in

ordinary course of nature.

5. The next question is whether the appellant had caused the said injuries

on Parmod Pathak, the deceased. The factum of appellant's employment is

established by the contract of employment vide Ex.P-15 and the testimony of

PW-4 Sh. Vanesh Tyagi who has stated that the appellant was deputed with

NDPL office on the date of occurrence.

6. Upon careful analysis of the testimonies of witnesses PW-2 Satish

Yadav, PW-3 Om Dutt and PW-4 Vanesh Tyagi, the sequence of events that

emerge from the prosecution version is that around 3:30pm, the appellant

was seen leaving the Cash Centre. PW-3 has deposed that thereafter, the cash

collection team came to the centre and after sometime went away. After

passage of some more time, the cash collection team came again and an

attempt was made to open the room of the cashier but to no avail. PW- 2 has

deposed that around 7:15pm he received information at his office at UP

Samaj Parwana Road, Pitampura that the cashier and the gunman at Tibiya

College Cash Collection Zone 423 were not reported to be there and the cash

collection centre was closed. He was directed to look into the matter. He

informed PW-4 of the same and asked him to reach the spot. PW-4 has

deposed that he reached the spot at around 8:30pm where he met PW-3 and a

call was made to the police. The police arrived at the spot and efforts were

made to break open the lock. Once the lock was opened, the deceased was

identified and PW-23, IO Umesh Singh recorded statement of PW-2 and

prepared the rukka Ex PW23/A. PW- 16 HC Balram took the rukka to PS at

about 12:30am and the FIR was registered at 12:40am on 15.05.07.

7. On perusal of the documents produced by the prosecution on the

aspect of registration of FIR, we find no infirmity arising from the same and

their evidence inspires confidence. The crucial documents which set the

criminal justice investigation into motion such as the Fardbayan, Tehrir and

the Seizure Memo of the rifle (Ex.PW-4/E) and the cartridges have been

prepared with promptitude and are contemporaneous documents which rule

out the scope of confabulations consequent to false implication.

8. The prosecution relies upon statement of Om Dutt PW-3, to prove the

last seen allegation to incriminate the appellant. Reliance has been placed on

the statement of Sunil Kumar PW-10, who claims to have seen only the

appellant in the company of the deceased, soon before the occurrence.

LAST SEEN EVIDENCE

9. PW-3, Om Dutt has deposed that on the date of occurrence at about

3:30p.m., he saw the appellant come out from the cashier cabin and pass

through the complaint centre. He was having 2 bags with him at the time and

he was not in uniform. Thereafter, the cash collection team arrived but went

away on finding the Cashier's room to be shut. An attempt was made to

contact the Cashier, Pramod Pathak on his mobile but without success.

However, the ring of the mobile could be heard from outside the Cashier's

door. Since the room was locked, the police was called and cashier room was

opened by breaking the handle of the door. Pramod Pathak was found lying

dead on his chair.

10. PW-10 has deposed that he saw the appellant on the date of incident.

PW-10 is a cashier at the ATM machine at NDPL Office and at around 3:00

p.m., a cash collecting team had come to the cash section and after collecting

the cash from the other centre left from there. PW-10 has categorically stated

that at that time he saw the appellant and the deceased, Pramod Pathak at the

second cash counter. The appellant was not in his uniform and was carrying

a gun different from the one he carried on a daily basis.

11. Learned Counsel for the appellant has submitted that it is improbable

that PW-3 would not have heard the gun shot when it was fired and

alternately heard the mobile phone ringing from inside the room when

attempt was made to contact the deceased.

12. It was also urged by the learned counsel for the appellant that both the

witnesses have stated that the appellant was not in uniform. It is pointed out

that it has been consistently stated by PW-3, PW-4 and PW-10 that the

guards on duty were required to be in uniform and the appellant had been

identified to be in civil clothes on the date of the incident.

13. With reference to the contention that PW-3 must have heard the gun

shot at the time of occurrence, PW-3 has stated in his cross examination that

the room of the Cashier being sound proof and he did not hear the gun shot

being fired. PW-3 has also stated that the distance from where he was

present and the spot from where he saw the appellant coming out from the

Cashier's cabin was about 30-40 metres.

14. We have perused the scaled site plan Ex.PW-14/A. The cashier's

cabin is at some distance from the complaint centre from where PW-3 last

saw the appellant. It is not inconceivable that he did not hear the gun shot

being fired. Distance can be a relevant factor, as it has been explained by

PW-3 by stating that the room was sound proof. When attempts were made

to contact the deceased through his phone, PW-3 was right outside the cabin

door and it is possible that he had heard the mobile phone ringing.

15. We have also perused through the photographs of the crime scene. It is

noticed through Ex.PW-17/17, Ex.PW-17/18 and Ex.PW-17/19 that the

Cashier's Cabin was partially in glass walls. It may be probable that a person

just outside the cabin on putting his ear next to the glass window could have

heard the mobile ringing. Sound of a gunshot may not have been audible to a

person at a distance of 30-40 metres. In fact the gunshot was not heard.

However, it cannot be denied that the rifle found at the place of occurrence

was fired and the deceased Promod Pathak had died because of the gun shot

wound. It is noticed that no suggestion was put to PW-3 to the effect that the

cashier's room was not sound proof and his testimony remains unchallenged

on the said aspect.

16. Coming to the aspect of the appellant being described as being in

civilian clothes on the date of occurrence, what is relevant is the fact that he

was categorically identified by PW-3 and PW-10. The testimonies of PW-17,

PW-23 and PW-27 demonstrate that there was a change room at the NDPL

Centre where the guards used to change into their uniform. Even otherwise

nothing turns on the contention that the appellant was not in uniform at the

time. It is not the case of the appellant that these witnesses saw someone

other than the appellant on the date of occurrence and neither have they been

cross examined in this regard. Both PW-3 and PW-10 are persons who have

met and seen the appellant at previous occasions as well. They could not

have wrongly identified the appellant merely because he was not in uniform.

17. All the witnesses to the last seen evidence are natural and probable

witnesses to the presence of the appellant. They bear no animus against the

appellant and neither has he alleged the same. The name of the appellant was

mentioned in the FIR itself which was recorded soon after discovery of the

offence.

18. In the case reported as Arvind @ Chhotu and Ors. v. State : Crl.A.

362/2001 decided on 10.08.2009, this High Court has discussed the

significance of last seen theory and observed:-

"25. The last seen theory relates to evidence which is not direct evidence i.e. is circumstantial evidence. It is settled law that to sustain a conviction on circumstantial evidence, the chain of circumstances has to be so complete that the finger of accusation unerringly points towards the guilt of the accused and rules out the innocence.

26. The foundation of the last seen theory is based on principles of probability and cause and connection.

27. Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends.

28. As observed in the decisions reported as (2002) 6 SCC 715 :MohiburRahman v. State of Assam, there may be cases where a single circumstance is of a kind that a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the deceased suffered death or should own the responsibility for homicide.

29. Thus, at the heart of the matter of a circumstantial evidence is the principle: of a rational mind being persuaded to reach an irresistible conclusion qua the guilt of the accused.

30. It is the quality of evidence and not the number which matters. A criminal trial is not a race at which the winner is determined with reference to the length run by the prosecution or the defence. It is also not a number game where the number of circumstances would determine the guilt or otherwise."

19. It is therefore, observed that there is no material infirmity,

contradiction or variation in the testimony of PW-3, the telephone operator at

the NDPL Office and PW-10 whose presence at the scene of crime is not

doubted. Therefore, the evidence proving presence of the appellant to be last

seen with the deceased stands established.

WEAPON OF OFFENCE

20. It was contended by the Learned Counsel for the appellant that the

weapon of offence did not belong to the appellant and therefore his

involvement in the crime can be doubtful. Perusal of post-mortem report

Ex.PW-7/A makes clear that the death of the deceased has been consequent

upon fire arm injuries that were caused from near range fire with a rifled

firearm. The weapon of offence Ex P-5 was lying at the spot and was seized

during the investigation. The bullet lead Ex P-4 was also found and lifted

from the spot. The weapon of offence was issued to Ajay Kumar PW-20 who

was also working as a guard at NDPL office but was on leave on 14.05.2007.

21. Ajay Kumar, PW-20 has stated that he had left his rifle in the almirah

at NDPL office, Keshav Puram on 10.5.2007. One key of the said almirah

used to remain with the appellant and one with himself. Thus, both the

appellant and PW-20 used to leave their rifles in the almirah at the NDPL

Office. According to PW-20, there were three live cartridges in his rifle

when he left the said rifle in the almirah on 10.05.2007. Vide Ex.PW-4/E the

said rifle Ex P-5 was seized from the spot and at the time it was carrying two

live cartridges. On 17.5.2007, the gun of the appellant and four live

cartridges were recovered from his almirah from NDPL office, Keshav

Puram vide seizure memo Ex.PW-18/A.

22. It was also contended on behalf of the appellant that there is an

inherent contradiction in the testimonies of all the prosecution witnesses on

whether the gunmen carried their guns home or whether the same were kept

at the NDPL Office. This therefore, creates some doubt regarding the

involvement of the appellant. This doubt is further fortified in view of the

fact that the weapon of offence belongs to PW-20. Our attention was directed

to the testimonies of PW-2, PW-3, PW-4, PW-18, PW-20, PW-23 and PW-

27. We do not find any inherent contradiction in the same. PW-2, PW-3 and

PW-4 have testified that they did not know where the guards kept their arms

and ammunition. PW-27 was employed as a Branch Manager with G4S

Company and has deposed that the gunmen carried their guns after duty.

There are good reasons to disbelieve and not accept this statement. It would

be difficult for anyone to carry his gun in public transport. It could be

objectionable and dangerous. PW-27 has also deposed that the gunmen were

issued a personal licence for the guns that they used to carry. The law

requires that the weapons should be in the custody and possession of the

licensee. This explains the version of PW-27.

23. It was difficult for PW-27 to accept that their employees contrary to

the terms of the license, used to leave the rifles in the complex. Statement of

PW-18 is to the effect that PW-27 had shown the change room where the

gunmen kept their rifles. PW-23 has deposed that the gunmen kept their guns

in the almirah. PW-20 has stated that guns used to be kept in the almirah

after duty and one key each of the almirah remained with him and the

appellant. The version of PW-20, PW-23 and PW-18 is correct and should be

accepted. The fact is that both guns were found in the premises.When the

police inspected the spot, the rifle of the appellant and the weapon of offence

were both found and seized from the spot. PW-20, Ajay was on leave and the

appellant was missing which clears any doubt or ambiguity regarding the

routine of keeping the arms and ammunition within the NDPL premises.

24. On a conjoint reading of the testimony of PW-10 Sunil Kumar, who

noticed a different gun in the hands of appellant and PW-20 Ajay Kumar

whose gun was used by the appellant, and also in view of CFSL report

Ex.PW-23/I, it is clear that the weapon of offence was accessible to the

appellant. The recovery of gun of the appellant from NDPL Office Keshav

Puram further indicates that the appellant was seen with the rifle of PW-20

Ajay Kumar on the day of occurrence. The appellant was seen with the rifle

of PW-20 Ajay Kumar, and used the same while committing the offence.

RECOVERY

25. At the scene of crime, a rifle was seized from the cashier's table and

was later identified to be the weapon of offence. The rifle contained two live

cartridges. One pay in slip in duplicate of IDBI Bank, North Delhi was also

found lying on the table along with some loose cash.

26. Recovery of the stolen cash, in exact amount with all the currency

notes bearing stamp of NDPL of Counter No. 485 with date 14.5.2007, is the

next link in the chain of incriminating circumstances pointing towards the

guilt of the appellant. The appellant was found in possession of two bags one

of which had cash amount of Rs.2,75,000/- when he was apprehended and

arrested vide arrest memo Ex.PW-4/J. A presumption in raised against the

appellant under Section 114(a) Indian Evidence Act, 1872 when he is found

to be in possession of stolen goods. The appellant has not put forth any

explanation to justify the possession of substantial amount of cash with

stamp of NDPL.

27. Consequent to the disclosure statement Ex.PW4-/J, the appellant got

recovered the empty cartridge used at the time of occurrence. The empty

cartridge was recovered from outside the Cash Collection Centre, NDPL

near an electric pole.

28. Learned Counsel for the appellant has urged that there is a discrepancy

and contradiction in the recovery of the bullet at the instance of the

appellant. While PW-23 IO Umesh Singh has deposed that the empty

cartridge was recovered from near the electricity pole outside the office of

NDPL, the testimony of PW-26 SI Lekhraj Singh evinces that the cartridge

was recovered from House No. 66 A/4, New Rohtak Road.

29. We have perused the site plan indicating the place of recovery marked

as Ex PW 23/E. The apparent discrepancy stands clarified by the site plan in

as much as the empty cartridge in recovered from an electric pole and the

said electric pole is just outside House No. 66 A/4. The said spot has also

been photographed and appears on record as Ex PW 17/6 and Ex PW17/7

thereby lending additional authenticity to the recovery at the instance of the

appellant. It is also noticed that the proximity between the scene of crime

and the place of recovery is in consonance with the natural line of

probabilities that after commission of crime, the appellant disposed of the

empty cartridge outside the Cash Centre, NDPL to get rid of the evidence

connecting him to the crime.

30. It was further contented that the fact that cash amount of Rs. 37,000

was found on table, belies the allegation that the appellant intended to

commit robbery. Also the fact that the license of the appellant was recovered

from his residential room is not in consonance with the allegation that the

appellant was absconding with cash. PW-2, PW-4, PW-23 and PW-26 have

deposed that loose cash was found lying on the table. The appellant was

arrested and a cash amount of Rs. 2,75,000 was in his possession at the time.

The fact that the appellant did not pick up the amount of Rs.37,000 does not

take away from the fact that the appellant took Rs. 2,75,000. At the time of

commission of crime, the goal being to flee as soon as possible, the appellant

may have considered it inconvenient to collect the loose cash on the table.

Also the fact that the license of the appellant was recovered from his

residential room cannot lead to the conclusion that he was not absconding or

his arrest has been wrongly shown.

MEDICAL AND SCIENTIFIC EVIDENCE

31. The medical and scientific evidence brought on record also confirms

the version of the prosecution. The reports of autopsy surgeon Ex.PW7/A

and Ballistic expert Ex.PW23/I connect the other circumstantial evidence

established on record. The used cartridge recovered at the instance of

appellant was of the rifle (.315 bore) which was used to commit the offence.

There is nothing to affect the credibility of medical and scientific evidence

which has further strengthened the case of the prosecution.

MOTIVE

32. The motive for the offence completes the link in the chain of

incriminating circumstances that stand established against the appellant. The

appellant reported for duty on the day of occurrence with a view to commit

robbery. In the process of executing this illegal object, he voluntarily caused

the death of the deceased.

33. On consideration of entire evidence and material appearing on the

record, we find that motive is apparent and also stands reasonably proved.

The cash of Rs.2,75,000/- was found missing from the place of occurrence

and the same was recovered from the possession of the appellant shortly

thereafter. The appellant has not given any reasonable or plausible

explanation about the possession of the cash. The recovery was effected in

presence of independent witness PW-4 VaneshTyagi, who had no reason to

depose against the appellant. His testimony therefore cannot be doubted. It

can therefore be concluded that the prosecution has been able to establish

that the appellant committed the offence with the clear motive to commit

robbery.

DEFENCE OF APPELLANT AND EVIDENCE OF HANDWRITING

34. The appellant has pleaded that he was on leave since 12.05.2007 and

that on that on the date of occurrence he was not on duty. He pleads being

falsely implicated in this case in order to save the other guard Ajay PW-20,

who has relatives in the Delhi Police.

35. Learned Counsel for the appellant has relied upon testimony of Devak

Ram CW-1, Senior Scientific Officer FSL, Delhi to support his plea. The

attendance register maintained at the NDPL office was seized and sent by the

trial Court to FSL for examination. CW-1 has opined in his deposition that

the purported signature of the appellant in the attendance register and the

admitted signatures of the appellant received by him are not of the same

person. In the same breath it was also argued that the supervisors, Pankaj and

Bhagat who maintained the attendance register were not examined and this is

a serious lacuna in the investigation as it could have afforded clarity on the

aspect of marking of attendance.

36. Per contra the Learned prosecutor has contended that the testimony of

CW-1 is by its innate nature is opinion evidence and the same must be

accorded judicial acceptance only when it fits in the surrounding

circumstances of the case as the science of handwriting is not a perfect

science unlike the science of finger printing and therefore, the said evidence

cannot be accepted ipsi dixit.

37. The attendance register Ex.P8 was not relied upon by the prosecution.

PW-4 Vanesh Tyagi is a Revenue Executive at NDPL and has deposed that

the staff did not mark their attendance in his presence. The attendance

register was kept at NDPL office, but it can be discerned that the said

register was not under supervision and control of any person. Therefore, non-

examination of Pankaj and Bhagat has not caused any prejudice to the

appellant. The appellant and Ajay PW-20 were not employees of NDPL but

of the security agency G4S Company. We have perused through the

attendance register Ex P8 and it is apparent to the naked eye that there is a

difference in signatures. The appellant could have intentionally manipulated

his signature on the said register. There is ample ocular evidence in the form

of statement of PW-3 Om Dutt, PW-10 Sunil Kumar and PW-27 Panish Dadi

that the appellant was present and not on leave. Ajay PW-20 was on leave

and his attendance is not marked but is blank.

38. Coming to the evidence of the handwriting expert, it cannot be

conclusive proof of the fact that he was not on duty on the date of

occurrence. Therefore, the only isolated evidence of handwriting expert,

which is in the nature of opinion evidence, is not sufficient to shake the

credibility of the other incriminating evidence proved against the appellant.

39. Learned Counsel for the appellant has also contended that there were

other gunmen deployed at the NDPL Centre at the relevant time and in these

circumstances the possibility of involvement of some person other than the

appellant cannot be ruled out. In furtherance to this contention it was urged

that the keys of the almirah where the guards/gunmen kept their guns was

recovered from the very same room where the almirah was there. It was also

urged that there are contradictions regarding the exact spot from where the

key was recovered. PW-18 has deposed that the key was on the table in the

room, PW-23 has stated that the key was lying near the window, PW-27 has

deposed that the key was between the table top and drawer and PW-20 has

deposed that the key was with him.

40. So far as the argument about other guards being present is concerned,

it is by now conclusively established that the appellant was categorically

identified by witnesses who were employed at NDPL, leaving the Cash

Centre with two bags in his hand. These were the only two armed guards

who used to keep their rifles in the almirah. No other person/guard has been

named. The fact that the key of the almirah was found in the room where the

almirah was kept does not make the prosecution version improbable. The

appellant would have left his key in the room after using the gun of PW-20

for the commission of the offence. Nothing turns on the statement that PW-

20 had his set of keys with him in view of the fact that it by now clear that

both the appellant and PW-20 had their seperate key to the almirah.

Regarding the contradictions in the exact spot from where the key was

recovered it is difficult to comprehend the effect of such an immaterial

contradiction considering the key was recovered from the premises and not

from the appellant.

41. It is the case of the appellant that on the fateful day he was on leave

and has been falsely implicated to shield the real offender Ajay PW-20. The

name of the appellant is mentioned in the FIR which was promptly recorded

and there is no reference of PW-20. This is demonstrative of the fact that the

appellant being on duty on the date of incident on being missing was

suspected. PW-20 was also a suspected at that initial stage but the evidence

of witnesses shows and proves that he was on leave and not present. Further,

the appellant has not lead any defence to prove his presence elsewhere,

neither has he made any clarification in his statement before the Court. The

prosecution having established his presence at the spot, there is no evidence

or material to establish absence of the appellant from the spot. Armed solely

with the evidence of the handwriting expert, the appellant has not been able

to lead evidence for us to disbelieve his presence at the spot or justify the

possession of the cash he was found with.

42. Looking at the nature of evidence that is proved namely the medical

evidence confirming homicidal death, the testimony of PW-3 and PW-10

establishing evidence of last seen, scientific evidence establishing the

weapon of offence, the recovery effected at the instance of the appellant and

the motive for murder of deceased, it can be safely held that the chain of

circumstances pointing towards the guilt of the appellant is complete and the

possibility of his innocence is ruled out.

43. In view of the aforesaid, we dismiss the appeal and uphold the

conviction and sentence awarded to the appellant. The appeal is disposed of.

SIDDHARTH MRIDUL (JUDGE)

SANJIV KHANNA (JUDGE) MARCH 07, 2013 dn