State Of Nct Of Delhi vs Arvind Kumar Jaiswal & Ors.
2015 Latest Caselaw 1732 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      Crl. L.P. 354/2014

                                       Reserved on: 28th January, 2015
%                                 Date of Decision: 27th February, 2015

       State of NCT of Delhi                          ....Appellant
                        Through     Mr. Varun Goswami, APP along with
                                    SI Shri Ram, PS Hari Nagar.

                    Versus

       Arvind Kumar Jaiswal & Ors.                    ...Respondents
                        Through     Mr. Aseem Bhardwaj & Mr. K.K. Vijay,
                                    Advocates for respondents 1 and 2.
                                    Mr. Vikram Singh Saini, Adv. For
                                    respondent 3.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.S. ENDLAW

SANJIV KHANNA, J.

We are inclined to grant leave to appeal against Arvind Kumar

Jaiswal @ Thakur. However, we are not inclined to grant leave to

appeal against Pramod Kumar and Sohan Singh for the reasons set out

below.

2. Against Arvind Kumar Jaiswal, the prosecution version relies

upon:-

(i) Statements of Mohd. Salim (PW1), Vijay Kumar (PW2), father

and Sheela (PW19), mother of the deceased Ritik, to the effect

that respondent Arvind Jaiswal was their tenant for about two

years.

(ii) Vijay Kumar (PW2) and Sheela (PW19) had recognized voice of

Arvind Kumar on the ransom calls made on telephone. These

calls were made on 4th February, 2006 at 10 AM onwards.

(iii) Arvind was arrested as per arrest memo (Ex.PW2/F) on 4th

February, 2006 at 2.00 PM from ISBT, Anand Vihar.

Thereupon, he made disclosure statement (Ex.PW12/A).

(iv) As per deposition of Vijay Kumar (PW2), Subhash Chand

(PW5), Ct. Ashok (PW12), ASI Kuldeep Singh (PW13), ASI

Raj Bahadur (PW14), SI Raghubir Singh (PW23) and ACP

Rajender Singh (PW24) dead body of Ritik, son of Vijay Kumar

(PW2) aged about 3 years was recovered from a gutter in DTC

Colony, Hari Nagar, in a gunny bag and seized vide seizure

memo, Ex.PW2/B.

(v) Till recording of disclosure statement of Arvind Kumar

(Ex.PW12/A), the police did not any have knowledge or

information regarding the well being of Ritik, who was missing

since morning. Prosecution version and allegation is that the

dead body of Ritik was recovered from a gutter at the instance of

Arvind Kumar.

(vi) Another public witness Ashok Kumar (PW9) had deposed that

on 4th February, 2006, Arvind Kumar had come to his shop at 8

PM and borrowed a jute bag from him. In his examination, he

identified Arvind Kumar and had also identified the jute bag

which was shown to him and the same was marked Ex.P-6.

Prosecution case is that it was the same jute bag from which the

dead body was recovered.

3. In the impugned judgment Arvind Kumar has been given benefit

of doubt after referring to alleged discrepancies in the testimonies of

PW2, PW5, PW12, PW13, PW14, PW23, and PW24. The alleged

discrepancies and the prosecution version, we feel, require examination

in the first appeal.

4. As per the prosecution version, Pramod and Sohan Singh were

arrested after the disclosure statement of Arvind (Ex.PW12/A) from

Jheelwala Park. The arrest memo of Sohan Singh and Pramod Kumar

marked Ex.PW2/D and Ex.PW2/E, respectively record the time and

date of arrest as 4th February, 2006 at 10 PM. Thereafter, as per the

prosecution version, Pramod and Sohan Singh had made disclosure

statements marked Ex.PW12/C & Ex.PW12/B, respectively.

5. The Supreme Court in State (NCT of Delhi) versus Navjot

Sandhu @ Afsan Guru (2005) 11 SCC 600, observed that joint

disclosure, or more accurately simultaneous disclosure per se are not

inadmissible under Section 27 of the Indian Evidence Act, 1872 as the

accused person need not be a single person and there could be

plurality. However, there are practical difficulties in placing reliance

on such evidence, for information given by two accused may be

exposed to criticism from the stand of credibility and its nexus with

discovery. Admissibility and credibility are two different aspects. The

Supreme Court also observed that simultaneous disclosure is a myth as

two accused persons would not normally utter informatory words in

chorus.

6. In the present case, as per the prosecution version itself, the

disclosure statements of Pramod (Ex.PW12/C) and Sohan Singh

(Ex.PW12/B) were not simultaneous with the disclosure statement of

Arvind Kumar (Ex.PW12/A), but after a substantial time gap and

delay. We have already noticed the time gap between the arrest of

Arvind Kumar (vide arrest memo, Ex.PW2/A), i.e. 2.00 PM and the

time of arrest of Pramod and Sohan Singh (vide arrest memos,

Ex.PW2/E and Ex.PW2/D, respectively) at 10 PM. Undoubtedly,

therefore, and it is an accepted position that the police was aware of the

disclosure statement made by Arvind Kumar (Ex.PW12/A) when

disclosure statements of Pramod and Sohan Singh (Ex.PW12/C and

Ex.PW12/B, respectively) were recorded.

7. This apart, we find there are material discrepancies even on the

question whether Pramod and Sohan Singh were arrested or detained

before or after the recovery of the dead body of Ritik. We would like

to elaborate on the said aspect.

8. Vijay Kumar (PW2), Subhash Chand (PW5), Const. Ashok

(PW12), ASI Kuldeep Singh (PW13), ASI Raj Bahadur (PW14), SI

Raghubir Singh (PW23) and ACP Rajender Singh (PW24), as per

police version were eye-witnesses to the recovery of the dead body of

Ritik from the gutter. The said recovery proceedings as per the police

version were photographed and videographed by Darshan Beer Singh

(PW6) and HC Jaibir Singh (PW15).

9. Vijay Kumar (PW2), father of the deceased Ritik in his

examination in chief recorded on 6th March, 2009 has referred to the

arrest of Arvind, his interrogation and thereafter recovery of the dead

body of Ritik from a gunny bag in gutter near DTC Colony, Hari

Nagar. He had asserted that the associates of Arvind, i.e. Pramod and

one Sardar were apprehended in Jheel Park on the same night, clearly

indicating that Pramod and Sohan Singh were arrested from Jheelwala

Park, subsequent to the recovery of the dead body. On 6th March, 2009

Vijay Kumar (PW2) did not identify Sohan Singh as the said Sardar

who was arrested. He had affirmed that the Sardar boy who was

arrested on 4th February, 2006 from Jheelwala Park was not present in

the court, implying that Sohan Singh was not arrested on 4th February,

2006 or involved. Vijay Kumar (PW2) was cross-examined by Addl.

Public Prosecutor for the State on 28th April, 2009 on certain aspects

and on the said date, PW2 identified Sohan Singh as the Sardar who

was apprehended from Jheelwala park on the same night and was

arrested vide arrest memo, Ex.PW2/D. However, he was not cross-

examined and the APP did not seek any answer by putting question as

to the time of arrest in spite of Vijay Kumar's (PW2) earlier deposition

on 6th March, 2009 that Pramod and Sohan Singh were apprehended

after recovery of dead body. However, in the cross-examination on

behalf of Sohan Singh on 28th April, 2009, Vijay Kumar (PW2) changed

his stance and stated that from Anand Vihar ISBT, they had gone to

Jheelwala Park, Hari Nagar and from the said park Pramod and Sohan

Singh were apprehended.

10. Subhash Chand (PW5), uncle of the deceased and brother-in-law

of Vijay Kumar (PW2) in his examination in chief, on 1st July, 2010,

has testified that on interrogation, Arvind Kumar had confessed having

murdered Ritik and had taken them and the police to sewer tank near

Hari Nagar Bus Depot, Opp. old CNG Petrol Pump and on pointing out

of Arvind, body of Ritik was recovered from a gunny bag.

Photographs were taken. Thereafter, Arvind Kumar had taken them

and the police party to Jheelwala Park and on pointing out by Arvind,

Pramod and Sohan Singh were arrested. Subhash Chand (PW5) was

not declared hostile and cross-examined by the public prosecutor.

PW5 did not controvert the aforesaid facts in his cross-examination.

11. Darshan Beer Singh (PW6) had stated that on 4 th February,

2006, when he reached the spot opposite bus depot, body of the child

Ritik was lying in a gunny bag. The said body was taken out of gunny

bag and photographs were taken. He has also taken a video film. He

had handed over 21 photographs with negatives and the CD of video

film to the Investigating Officer. In the cross-examination, he stated

that he reached the spot at 9.30 PM. PW6 has not deposed that the

gunny bag was taken out from the gutter in his presence. In his cross-

examination on behalf of Pramod, PW6 had testified that the police

had brought a gunny bag and packed the body in the gunny bag and

then took the body in the same gunny bag. On re-examination by the

APP, PW6 deposed that he did not remember whether body was in

gunny bag when it was brought out from the sewer tank and, therefore,

he did not accept or deny the suggestion that it was in the gunny bag.

12. HC Dharambir (PW11) had testified about the arrest of Arvind

Kumar, his interrogation, recording of his disclosure statement and that

had thrown the dead body of Ritik at CNG Pump, Hari Nagar in a

gutter after concealing it in a gunny bag. He did not name the other

two respondents Pramod and Sohan Singh.

13. Const. Ashok (PW12) had similarly deposed about the arrest of

Arvind, his interrogation, the disclosure statement of Arvind

(Ex.PW12/A) and the factum that Arvind had taken police party to the

CNG Petrol Pump and on his pointing out the dead body was

recovered from sewer tank. Ct. Ashok (PW12) had also mentioned

about the arrest of Pramod and Sohan Singh on the pointing out of

Arvind but in his examination in chief he was silent on whether they

were arrested before the recovery of the dead body or afterwards. He

was categorical that only Arvind pointed out the place from where the

dead body was recovered. In his cross examination on behalf of

Arvind, he deposed that they came directly to the spot at 9.00 PM from

Anand Vihar Bus terminal. The spot would be with reference to the

place from where the dead body was recovered. However, upon

further cross-examination on 23rd February, 2012, on behalf of Sohan

Singh, PW12 had deposed that from ISBT, Anand Vihar they reached

the place from where they arrested Sohan Singh and the dead body was

recovered after the arrest of Sohan Singh. On being further questioned,

he claimed that Sohan Singh was sitting in the police gypsy at the time

of recovery of the dead body. He also accepted that Sohan Singh was

not visible in the 21 photographs, marked Ex.PW6/1 to Ex.PW6/21.

He, however, claimed that he could be seen in the CD marked

Ex.PW6/43.

14. ASI Kuldeep (PW13) has deposed about the arrest of Arvind

from Anand Vihar Bus terminal and that thereafter he led them to CNG

pump and pointed to gutter from where gunny bag containing the dead

body of child was recovered. Photographer and videographer were

summoned. Arvind then led the police party to Jheelwala Park from

where Pramod and Sohan Singh were apprehended. From his

statement, it is apparent that disclosure statements of Pramod and

Sohan Singh (Ex.PW12/C and Ex.PW12/B, respectively) were

recorded after the dead body had been recovered. The said statement

was made in examination in chief recorded on 30th November, 2010.

On 30th July, 2011, the CD (Ex.PW6/43) was played and examined by

Kuldeep Singh (PW13). He identified the three accused, namely

Arvind, Pramod and Sohan Singh. PW13 accepted that disclosure

statement of Arvind (Ex.PW12/A) was recorded prior to his arrest and

in the cross-examination, he again asserted that they had reached the

place of recovery from ISBT, Anand Vihar and had not gone anywhere

in between. Jheelwala Park was about 100 meters away from the place

of recovery of the dead body.

15. ASI Rajbahadur (PW14) has referred to the arrest of Arvind, his

disclosure statement and then recovery of the dead body at the behest

of Arvind from the gutter. After having made the said deposition, he

then referred to Pramod and Sohan Singh and stated that the

Investigating Officer had arrested them and on interrogation they made

disclosure statements (Ex.PW12/B (Sohan Singh) and Ex.PW12/C

(Pramod)). In the cross-examination, he had also stated that no person

except Arvind was apprehended in his presence.

16. HC Jaibir Singh (PW15) had taken photographs marked

Ex.PW15/A1 to A6. In the cross-examination, he had accepted that

photographs were taken after the dead body was taken out from the

man-hole and kept on the road.

17. Retd. SI Raghubir Singh (PW23) had referred to the arrest of

Arvind, his confession and the disclosure statement (Ex.PW12/A). He

claimed that Pramod and Sohan Singh were thereafter arrested from

Jheelwala Park under the tree and they had made disclosure statements,

Ex.PW12/C and Ex.PW12/B respectively. Then, the three of them had

led the police and others to the man-hole where the dead body had

been thrown. On the pointing out of all of the three, one jute bag was

taken out from the man-hole and the dead body of child was recovered.

He deposed that the accused was visible in the CD (Ex.PW6/43) which

was played. However, he has accepted as correct that Sohan Singh

was not to be seen in the photographs, marked Ex.PW6/1 to 21.

Similarly, in the pointing out memo, recovery cum seizure memo of

the dead body (Ex.PW2/B), the name of Arvind Kumar was mentioned

and the name of Sohan Singh was not recorded. In the photograph

Ex.PW15/A6, Arvind was found sitting next to the body.

18. ACP Rajender Singh (PW24), has stated that he had interrogated

Arvind and recorded his disclosure statement (Ex.PW12/A) and

pursuant thereto, Arvind had led them to the sewer tank and pointed

out the same. Photographs, etc. were taken. He had claimed that after

the dead body of deceased was recovered, he along with the staff,

Vijay (PW2) and Arvind went to Jheelwala park and identified and

arrested Sohan Singh and Pramod. Thereafter, their disclosure

statements, Ex.PW12/B and C, respectively were recorded. He had

claimed that he had met the team near old CNG pump, Hari Nagar,

DTC Colony at about 8.30 PM on 4th February, 2006 and at that time

Arvind was in police custody. In the cross-examination, he again

asserted that first disclosure statement of accused Arvind was recorded

and thereafter dead body was recovered on his pointing out and

thereupon, they left for Jheelwala Park.

19. In view of the aforesaid divergent and completely contradictory

depositions on the material aspect as to whether the disclosure

statement of Pramod and Sohan Singh (Ex.PW12/C and Ex.PW12/B,

respectively) were recorded before or after the recovery of dead body

of deceased Ritik, we opine and agree with the trial court that the two

respondents Pramod and Sohan Singh were rightly granted benefit of

doubt. The contradictory stand of the witnesses on the said crucial

aspect weakens and erodes the foundation of the prosecution case

against Pramod and Sohan Singh. There is no other credible evidence

and material against Pramod and Sohan Singh, once we exclude the

disclosure statements, Ex.PW12/C and Ex.PW12/B. It is noticeable

that public witnesses, Rajeev Seth (PW4), Dharender (PW7), Ved

Prakash (PW10), who were the PCO owners and shopkeepers had

turned hostile and did not in any manner implicate Pramod and Sohan

Singh.

20. We, accordingly dispose of the present leave to appeal which is granted against Arvind Kumar but declined against Pramod and Sohan Singh. The observations made above are for the purposes of disposing of the present leave to appeal and observations made in this order should not be construed as final and binding observations of this court when the appeal filed by the State against Arvind is taken up for hearing. The entire evidence and material including testimonies of different witnesses will be examined at that time.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(R.S. ENDLAW) JUDGE February 27, 2015 kkb