Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 1 of 72 * HIGH COURT OF DELHI AT NEW DELHI + Crl. Appeal No. 406/2008 % Judgment reserved on: January 09, 2009 Judgment delivered on: May 11, 2009 CHINTU MALHOTRA @ CHIRAG ..... Appellant Through : Mr. Anupam S. Sharma, Adv. VERSUS THE STATE .....Respondent Through : Mr. Pawan Sharma, APP + Crl. Appeal No. 435/2008 GYAN CHAND KASHYAP @ KALU ..... Appellant Through : Mr. Pankaj Kumar, Adv. VERSUS THE STATE .....Respondent Through : Mr. Pawan Sharma, APP + Crl. Appeal No. 603/2008 DHARMINDER SINGH @ VIJAY ..... Appellant Through : Ms. Anu Narula, Adv. VERSUS THE STATE .....Respondent Through : Mr. Pawan Sharma, APP + Crl. Appeal No. 1009/2008 MOHD. TAYYAB ALAM ..... Appellant Through : Mr. V.K. Raini, Adv. VERSUS Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 2 of 72 THE STATE .....Respondent Through : Mr. Pawan Sharma, APP CORAM :- HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes ARUNA SURESH, J. 1. The above captioned appeals have been filed by the four appellants assailing the judgment and order dated 24.3.2008 passed by the learned Additional Sessions Judge whereby they were convicted for offence under Sections 364/302/34 IPC and order on sentence dated 31.3.2008 whereby they were sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.2000/- each, in default of payment of fine to undergo a rigorous imprisonment for one month for the offence under Section 364/34 IPC. They were further sentenced to undergo life imprisonment and fine of Rs.2000/- each, in default of payment of fine rigorous imprisonment for one month for the offence under Section 302/34. Both the sentences were ordered to run concurrently. Benefit of Section 428 Cr.P.C. Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 3 of 72 was also given to the appellants. 2. Broad features of the prosecution case are that deceased Krishan Kumar was driver of Maruti Van No. DL-3C R 1271 which was registered in the name of his son Anirudh Kumar (PW-8). On 26.8.2000 Jitender (PW-4) son of Krishan Kumar was telephoned by the deceased to bring his clothes to Kaushik Travels, informing him that the vehicle had been hired and he was to go to Hardwar. At Kaushik Travels Jitender came to know the names of the appellants as Kalu, Dharminder, Chintu and Tayyab, all residents of Hastsal, Delhi. Deceased Krishan Kumar with the appellants in the vehicle left Delhi on 26.8.2000 at about 4.30 PM in the presence of Jitender. Though Krishan Kumar was to return back to Delhi on the next following day, he did not come back. Anirudh Kumar received a telephone call on 29.8.2000 at about 12.10 PM from SHO, Bihar that driver of the vehicle had been killed and all the four persons were apprehended by him. Anirudh Kumar informed the P.C.R. Police Station Uttam Nagar was accordingly informed by the P.C.R. This information was recorded as DD No. 10A at the Police Station. SI Dal Chand on receipt of DD No. 10A along with const. Dilbagh Singh went to Kaushik Travels where he recorded the Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 4 of 72 statement of Jitender on which, he made his endorsement at about 2.15 PM and got the FIR of this case, being FIR No. 786/2000 registered under Sections 365/2000 IPC. 3. On 29.8.2000 at about 9.15 PM Maruti Van was intercepted by a patrolling party of Police Station Purnia, Bihar headed by SI Rajesh Kumar. When the vehicle did not stop on signal, instead speeded up, it was chased. All the appellants who tried to flee away after getting down from the vehicle were overpowered and apprehended. They were arrested in FIR No. 330/2000 under Section 413/414 IPC, Police Station Kehat, Bihar, when they could not give any satisfactory reply regarding their possession of the vehicle. SI Rajesh Kumar found a slip of paper of Kaushik Travels containing a telephone number lying in the van and he accordingly made a phone call on the said telephone number at Delhi. 4. The dead body of Krishan Kumar was recovered at Jawalapur, Hardwar on 27.8.2000 at about 10.30 AM on an information received from Paramjeet by Inspector Kuldeep Singh in the presence of Hazara Singh, watchman, and other police officials of police station Jawalapur. A panchnama was Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 5 of 72 prepared. The inquest papers were prepared by SI Rajesh Kumar. The dead body was got photographed. The dead body was got post-mortemed from H.M.G. District Hospital, Hardwar. After post-mortem, the dead body was got cremated. 5. On 31.8.2000 PW Govind Singh Bakuni, Upender Singh Dixit, Chander Kishore Dwivedi and few other persosn went to Police Station Jawalapur and made inquiries about the dead body. From the photographs they identified the dead body of Krishan Kumar. DD No. 7 dated 31.8.2000 at 6.30 AM was recorded at Police Station Jawalapur regarding the visit of these persons and also the factum of identification of the dead body. 6. SI Dal Chand went to Purnia on 29.8.2000 and reached there on 31.8.2000. From Police Station Kehat he came to know of the arrest of the appellants and the recovery of the maruti van and also registration of a case under Sections 413/414 IPC being FIR No. 330/2000. The appellants had already been sent to judicial custody. He moved an application for production warrants of all the appellants. The appellants in this case were formally arrested on 3.11.2000. Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 6 of 72 7. Finding sufficient evidence against the appellants namely; the deceased was last seen in the company of the appellants by Jitender, recovery of the dead body of deceased Krishan Kumar from Hardwar, recovery and seizure of maruti van from Purnia Bihar, arrest of the appellants by police of Police Station Kehat, Purnia and registration of a case against them for being found in possession of suspected to be stolen property and the post-mortem report showing homicidal death of the deceased, a chargesheet was filed against the appellants for having abducted and murdered Krishan kumar with a motive to rob him of his vehicle. 8. The trial court framed following charge against all the appellants: “That on 26.8.00 at about 4.30 p.m. near Kaushik Travels, main Najafgarh Road within the jurisdiction of PS Uttam Nagar all of you in furtherance of your common intention deceitfully abducted Sh. Krishan Kumar in order that the said Krishan Kumar might be murdered and thus committed an offence punishable u/s 364/34 IPC. Secondly, on the night intervening 26/27/8.00 all of your in furtherance of your common intention committed Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 7 of 72 murder of said Krishan Kumar when all of you had abducted deceitfully the said Krishan Kumar from Delhi to Hardwar and thereafter disposed of his body and thus committed an offence punishable u/s 302/34 IPC and within cognizance of this court.” 9. Since three independent investigating agencies are involved in this case and the crime continued to be committed from Delhi to Hardwar and finally to Purnia, it is appropriate to segregate the evidence of the prosecution in three different parts for just and proper assessment and appreciation of the prosecution evidence and the incriminating circumstance as adduced on the record. 10. The relevant witnesses who joined the investigation at Delhi on receipt of an information from PW-8 Anirudh Kumar son of deceased Krishan Kumar recorded in DD No.10A on 29.8.2000 at about 12.10 PM and consequent registration of FIR No. 786/2000 under Sections 365/34 IPC Ex.PW-9/A on the basis of endorsement Ex.PW-24/A SI Dal Chand on the statement of PW-4 Jitender son of deceased Krishan Kumar are: (1) PW-9 ASI Pushpal Kaur. She recorded FIR No. Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 8 of 72 786/2000 under Sections 365/34 IPC Ex. PW-9/A on receipt of rukka with endorsement Ex.PW-24/A of SI Dal Chand on 29.8.2000 at 2.25 PM. (2) PW-4 Jitender Kumar is the complainant. He made the complaint Ex.PW-4/A which was recorded by SI Dal Chand. In his statement he recorded that his father Krishan Kumar was plying his Maruti Van No.DL 3C R 1271 from Kaushik Travels, Main Najafgarh Road. On 26.8.2000 he was present in the house when at about 4.00 PM his father telephoned that he was carrying some passengers with him to Hardwar and he should deliver his clothes. He (jitender) went to Kaushik Travels office to hand over the clothes of his father, where, he found his father standing with four boys. He handed over the clothes to his father. He came to know the names of those boys on inquiry as Chintu Malhotra, Kallu Kashyap, Dharmender and Md. Tayyab, resident of LIG Flats, Hastsal. The said four boys sat in the vehicle and he was told by his father that he would come back on the next following day but when he did not return back home they were worried and started searching for him. He suspected that the above said four boys had kidnapped his father. He identified the appellants on 4.11.2000 after their arrest near Kaushik Travels at the time when, the appellants pointed the place, Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 9 of 72 from where they had hired the maruti van. He also identified all the appellants in the court. (3) PW-8 Anirudh Kumar is the son of the deceased. He has deposed that on 26.8.2000 when he reached home from his office he was told by PW-9 Jitender that his father had gone to Hardwar and had carried four passengers with him and would come back on the next day. Jitender had also disclosed the names of the said four passengers, one of whom; Dharmender happened to be his class fellow. He received a telephone call on 29.8.2000 from Bihar about recovery of maruti van and apprehension of four boys who had informed the police that they had killed the driver of the vehicle. He found the voice similar to the one as that of Dharmender, that he told the caller that he appeared to be Dharmender on which the phone was disconnected. He made a call at 100 number and a DD No.10A was recorded at Police Station Uttam Nagar. He named the appellants as the suspects before the police. He along with his brother PW-9 Jitender had identified the photographs of his father shown to him at the Police Station Uttam Nagar received by the police from Jawalapur, Hardwar. (4) PW-11 Govind Singh Bhatuni is the neighbour of the deceased. He has deposed that on 31st day, of the year Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 10 of 72 2000 Jitender and wife of deceased came to him around 5.00 AM and told him that some untoward incident had taken place. He along with PW-12 Chander Kishore and 3-4 other persons went to Hardwar. From Police Station Jawalapur he and other persons came to know that on 27.8.2000 a dead body of an unknown person had been recovered which had been cremated. He identified deceased Krishan Kumar from the photographs shown to him by the police officers of Police Station Jawalapur. (He had also filed a written application before the duty officer, Police Station Jawalapur which was recorded as report No.7 at 6.30 AM dated 31.8.2000 Ex.PW- 21/A.) (5) PW-12 Chander Kishore is the son in law of the brother of the deceased. He has deposed that he was called on 29.8.2000 by wife of the deceased. On 29.8.2000 he along with PW-11 Govind Singh and 4-5 other persons went to Hardwar to enquire about Krishan Kumar. While corroborating the testimony of PW-11 Govind Singh, he has deposed that he was told by SI Rajesh Kumar that the deceased was cremated after post-mortem. He had also identified the dead boy of Krishan Kumar from the photographs shown to him. (6) PW-16 Sunil Kaushik is the proprietor of Kaushik Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 11 of 72 Travels. He has deposed that deceased Krishan Kumar used to park his maruti van in front of his office and he used to deal with the passengers independently. He deposed that he came to know that maruti van was hired by some persons for Hardwar and later on that Krishan Kumar had died. (7) PW-10 Tirath Raj Singh is the draftsman. He prepared scaled site plan Ex.PW-10/A on 4.11.2000 after inspection of the spot at the instance of SI Rajesh Kumar, Police Station Jawalapur, Hardwar. (8) PW-24 SI Dal Chand joined the initial investigation of this case. He also went to Purnia on the night of 29.8.2000 where he came to know of the arrest of the appellants and recovery of the maruti van. He deposed that he moved an application before the concerned court at Purnia seeking production of the appellants before the concerned MM at Delhi. Later on he went to Purnia again on 1.11.2000 and with the permission of the court took the transit remand of the appellants and produced them in the court of the Metropolitan Magistrate, Delhi, on 3.11.2000, where appellants were formally arrested. (9) PW-25 Insp. T.P.S.Tomar took over the investigation of this case on 18.10.2000. He formally arrested the appellants. He obtained their three days‟ police custodial Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 12 of 72 remand and got them medically examined from DDU hospital, recorded the disclosure statements of the appellants. Appellants pointed the place of occurrence on 4.11.2000 from where the dead body was recovered and they also pointed out the place from where the vehicle was hired i.e. Kaushik Travels on 5.11.2000 vide pointing out memo Ex.PW-3/B. 11. PW-1 HC Ashok Kumar, PW-2 const. Dilbagh Singh, PW-3 SI Gurnam Singh and PW-15 HC Deep Kumar are formal witnesses. 12. The relevant witnesses examined by the prosecution, who are witness to the recovery of the vehicle and the proceedings conducted at Police Station Purnia, Bihar after maruti van‟s interception are: a. PW-5 SI Rajesh Kumar Dubey. He has deposed that on 29.8.2000 he along with SI Ajit Kumar, SI Ram Vikash Choudhary, HC Tarkeshwar, HC Ashok Kumar and const. Sushil Kumar were on patrolling duty at Madhopara Road. At about 9.15 PM when he saw one maruti van plying on the road, he signalled the maruti van to stop but the car speeded up, he and the police party chased the said maruti van. Four persons got down from the car and started running away. He Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 13 of 72 along with his police party apprehended the said four boys in the presence of Surender Kumar (PW-7) and Mahadev Kesri (PW-6). He has given the registration number of the said maruti van as DL 3C R 1271. On interrogation he suspected that the vehicle had been stolen. He got registered FIR No. 330/2000 at Police Station Purnia and arrested all the four persons. However, he failed to identify the appellants as the four persons whom he had arrested and from whom the maruti van was seized by him. He identified the maruti van Ex.P-1 which he had recovered. b. PW-6 Mahadev Kesri, witness to the recovery of the vehicle and arrest of the appellants, is completely hostile. Though he has admitted his signatures on the seizure memo mark X prepared by SI Rajesh Kumar Dubey. c. PW-7 Surender Kumar another witness to the recovery of the vehicle and arrest of the appellants is also hostile. He admitted his signatures on the seizure memo mark X but deposed that his signatures were obtained on a blank paper. d. PW-14 SI Ajit Kumar was a member of the patrolling party. In his testimony while corroborating the statement of SI Rajesh Kumar Dubey that he was a member of the patrolling party on 29.8.2000 and was present near Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 14 of 72 Madhopara at about 9.15 PM when, a white colour maruti van was intercepted and was signalled to stop but, it speeded up and was chased. He has deposed that the van stopped after going a little ahead and out of the maruti van four persons got down and started running. They all chased them and overpowered them. He has deposed that they came to know the names of those boys as Chintu Malhotra@ Chirag Malhotra, Kalu Kashyap, Dharmender Singh@ Vijay Singh and Mohd. Tayyab. He identified all the appellants who were present in the court as the persons who were apprehended by them. He testified that the vehicle bearing no. DL 3C R 1271 was seized and FIR No. 330/2000 was registered against the appellants. He has further deposed that from the dickey of the van a slip of KK Travel and Tour Agency on which a telephone number was written was recovered and on the said number a phone call was made at Delhi and they came to know that the said van was hired for Hardwar. He further deposed that, after two days the police party along with public persons came there and took a copy of the FIR. By the order of learned Chief Judicial Magistrate (C.J.M.) the van was released. Subsequently Delhi police also took away the accused persons with them. As regards the identity of the vehicle, he deposed Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 15 of 72 that the registration number of the maruti van shown to him was the same. But sticker of KK Tour and Travel agency was not on the car when shown to him in the court, whereas the board bearing words „Zila Adhyaksh Samajwadi Party‟ was not on the vehicle at the time of the seizure. However, on seeing the vehicle in the court he could not exactly say if it was the same maruti van which was seized by them at Purnia though the number and the colour of the vehicle was same. 13. The relevant witnesses of the prosecution to the recovery of the dead body of Krishan Kumar at Jawalapur, Hardwar on 27.8.2000 at 10.30 AM are: i. PW-20 Inspector Kuldeep Singh was posted at Jawalapur, Hardwar. He has deposed that on 27.8.2000 at about 10.30 AM one person by the name of Paramjit Singh came to the police station and informed him that a dead body of a male person was lying beneath the bridge, Rani Pur Nehar. He along with SI Rajesh, const. Sohail Ahmed and const. Ramesh Chand reached the spot. He further deposed that SI Rajesh Kumar called a photographer who took the photographs of the dead body which was having injuries on its person. He gave the description of the dead body as wearing white kurta pyajama having six fingers in the right Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 16 of 72 hand. On his instructions SI Rajesh conducted the panchnama. On 28.8.2000 he got the dead body post- mortemed and handed over the dead body to Sewa Samiti, Hardwar, for cremation because, the dead body could not be identified. He deposed that on 31.8.2000 Chander Kishore and Govind Singh along with 3-4 persons came to the police station. He showed them the photograph of the deceased and also gave the description of the clothes of the deceased on the basis of which, they identified the dead body of Krishan Kumar. He testified that the above named persons had also informed him that four persons had hired maruti van for Hardwar from Delhi on 26.8.2000. He sent his report Ex.PW-20/A to Delhi on 6.9.2000. ii. PW-23 SI Rajesh Kumar while corroborating the statement of inspector Kuldeep Singh has deposed that he tried to get the dead body identified but failed, then he called the photographer who took the photographs of the deceased. He deposed that he conducted inquest proceedings Ex.PW- 23/A. He got the dead body post-mortemed from government hospital Hardwar on 28.8.2000. He further deposed that on 31.8.2000 3-4 persons came to the police station who identified the dead body as of Krishan Kumar from the photographs shown to them and they also told him that on Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 17 of 72 26.8.2000 four persons had hired maruti van for Hardwar. iii. PW-18 const. Ramesh Chander corroborated the testimony of Insp. Kuldeep Singh and SI Rajesh Kumar. iv. PW-22 const. Sohail Ahmed also corroborated the statement of Insp. Kuldeep Singh and SI Rajesh Kumar. v. PW-17 Hajara Singh was a watchman and had gone to Sukhi Nahar, Rani Pur on 27.8.2000 where he found some persons gathered and he saw a dead body of one male person lying in the canal. He has testified that there were injuries on the body of the deceased and also blood was oozing out from the nose and mouth of that person. At about 11.30 AM police staff from police station Jawalapur reached there and Investigating Officer conducted the panchnama Ex.PW-17/A. he signed the panchnama as one of the witnesses. Later on he came to know the name of the deceased as Krishan Kumar, resident of Delhi. vi. PW-19 Surender Kumar had taken the photographs Ex.PW-19/B1 to Ex.PW-19/B4 of the deceased at the spot (Rani Pur Nehar, Hardwar) on 27.8.2000 at the instance of SI Rajesh Kumar. vii. PW-13 Dr.Rajeev Verma had conducted the post-mortem of the deceased on 28.8.2000. As per the post- mortem report Ex.PW-13/A, he found following injuries on the Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 18 of 72 body of the deceased:- “External injuries: 1. Lacerated wound 4x2 c.m. on right side of head, 5 c.m. above right ear. 2. Lacerated wound in front of right chin size 2x1 c.m. 3. Traumatic swelling 12x10 c.m. on right side of face. 4. Swelling on right side of chest 15x10 c.m. Internal injuries: 1. Pelvis fracture 2. Anterior middle cranial fossa fractured. I gave my opinion with regard to the cause of death as shock and haemorrhage due to ante mortem injuries. And the time since death has been given as 1-2 days prior to the date of post- mortem. viii. PW-21 const. Narender Singh was working as DD writer at police station Jawalapur. He deposed that he recorded DD No. 19 Ex.PW-21/A on receipt of information from Paramajit Singh about a dead body lying in Rani Pur Nehar. He also recorded DD No.7 Ex.PW-21/B on 31.8.2000 pertaining to the arrival of Chander Kishore, and Govind Singh along with other 3-4 persons at police station Jawalapur. 14. We have heard Mr.Anupam S. Sharma, Adv. for appellant Chintu Malhotra @ Chirag, Mr.Pankaj Kumar, Adv. for appellant Gyan Chand Kashyap @ Kalu, Ms.Anu Narula, Adv. for appellant Dharminder Singh @ Vijay, Mr.V.K. Raina, Crl. Appeal Nos. 406/08, 435/08, 603/08 & 1009/08 Page 19 of 72 Adv. for appellant Mohd. Tayyab Alam and Mr.Pawan Sharma, APP for the State. 15. It is argued by the learned counsel for the appellants that the van was seized in Purnia, Bihar on 29.8.2000 at about 9.15 PM, surprisingly enough PW-8 Anirudh Kumar claimed to have received a phone call from SHO, Purnia, Bihar on 29.8.2000 at around 12 noon informing murder of the driver of the vehicle, apprehension of four persons and seizure of the maruti van. 16. As per PW-8 the voice of the caller from Bihar sounded familiar; meaning thereby, he knew the caller. Counsel urged that when the complaint was lodged with the Delhi Police, it assumes significance that PW-8 did not inform that he knew one of the persons i.e. Dharmender as the one who had hired the van. 17. The