Crl.A. No.642-DB of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Crl.A. No.642-DB of 2008 DATE OF DECISION: June 1, 2011 VIJAY PETER ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT 2. Crl.A. No.600-DB of 2008 VIRENDER SINGH @ BEERU ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT CORAM:HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR.SUVEER SHEOKHAND, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.642-DB OF 2008. MR. BIJENDER DHANKAR, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.600-DB OF 2008. MR. S.S. RANDHAWA, ADDL.A.G., HARYANA. M. JEYAPAUL, J. 1. Accused Virender Singh @ Beeru, Vijay Peter and Renu faced the trial before the trial Court. Accused Renu was acquitted of the charge framed against her. Accused Virender Singh and accused Vijay Peter were convicted and sentenced as follows:- Under Section Sentence 302/34 IPC Imprisonment for life and Fine of Rs.20,000/- each. In default, to undergo further R.I. for 2 years each Crl.A. No.642-DB of 2008 -2- Under Section Sentence 364/34 IPC R.I. for 6 years and fine of Rs.5000/- each. In default, to further undergo R.I. for 6 months each. 392/34 IPC R.I. for 8 years and fine of Rs.10,000/- each. In default, to undergo further R.I. for 1 year each. 201/34 IPC R.I. for 4 years and fine of Rs.5000/- each. In default to further undergo R.I. for 6 months each. All the substantive sentences were ordered to run concurrently. 2. Accused Virender Singh has preferred Crl.A. No.600-DB of 2008 and accused Vijay Peter has preferred Crl.A. No.642-DB of 2008, aggrieved by the judgement of conviction and sentence recorded by the trial Court as detailed above. Two other accused, namely, Rajinder and Sunil who were charge-sheeted alongwith the other accused in this case were declared as Proclaimed Offenders. 3. The story of the prosecution reads as follows: a) PW16 Rajan was the Incharge of Ganga taxi stand, Gurgaon. On 12.2.2004, he received a telephonic call from accused Vijay Peter in connection with hiring of taxi for proceeding to Rajasthan from Ghaziabad. Accused Vijay Peter furnished his address to PW16 who proceeded to Ghaziabad in his taxi bearing registration No.HR20J-3801. On the way, he received another telephonic call that Vijay Peter and his companions were waiting for PW16 at Hapur Octroi Post. Alongwith accused Vijay Peter, accused Virender Singh and two other persons also were found at Hapur Octroi Post. All of them boarded his taxi. He brought them to Ganga taxi Crl.A. No.642-DB of 2008 -3- stand, Gurgaon. Thereafter, he sent all of them in his taxi driven by his driver Manoj Yadav (since deceased). b) Surprisingly, there was no information as to the whereabouts of his taxi driven by Manoj Yadav for about 4-5 days. He traced the STD booth from where the accused originally contacted another taxi stand owner Vikram and got the address of Vijay Peter through the owner of the STD booth, Ghaziabad. He proceeded to the said address and found that the wife of Vijay Peter alone was present in the house. She furnished a telephone No.022-34009222 of Bombay. PW14 Naresh Yadav, an MLA contacted the said telephone number, but the driver of the taxi could not be located. Therefore, PW16 lodged a man-missing complaint (Ex.PN) with the DLF Police Station, Gurgaon. c) PW13 Richpal, an agriculturist hailing from Shahpura, District Sikar, Rajasthan was informed about a dead body lying in a field by one Bhiwa Ram on 14.2.2004. He lodged a complaint (Ex.PL) with respect thereto. PW24 Inspector Bhag Singh, Vigilance Nagar Nigam, Jaipur registered a formal FIR (Ex.PL/1) on the basis of the complaint given by PW13. He proceeded to the place where the dead body was lying in the field. He prepared the inquest report (Ex.PM). He lifted blood stained earth and sample earth from the spot. He also recovered hammer (Ex.P23) alongwith a handle (Ex.P24) and three pieces of stones having blood stains (Exs.P25 to P-27) under recovery memo Ex.PG. He recovered Shirt (Ex.P17), T-Shirt (Ex.P18), a pair of sandal (Ex.P19) and a packet of Jarda (Ex.P20) and match-box (Ex.P21) from the scene of occurrence. He also took into possession a rope (Ex.P13). He prepared rough site plan (Ex.PT) Crl.A. No.642-DB of 2008 -4- reflecting the scene of occurrence. d) PW22 took the photograph of the unidentified dead body at the request of PW24. e) PW25 Dr.Sanjeev Kumar Sharma attached to SMS Hospital, Jaipur conducted the post mortem examination on the unknown dead body of the male aged about 30 years. He found a tattoo mark on the forearm of the dead body. On examination, he noticed the presence of rigor mortis on lower extremities and fingers. There was a sign of decomposition. The following external injuries and external appearances were noted by PW25:- “1. Laceration wound 7 x 1½ cm into brain deep was present over the occipital region. It was placed horizontal. Profuse bleeding was present and clots were coming out from the wound side with little brain material. 2. Lacerated wound 21cm x 1 cm into brain deep extending from right pinna of ear to left parietal region was present. Right pinna was lacerated. 3. Bruise 5 x ½ cm over cervicle region posteriorally. 4. Lacerated wound 1½ cm x, 1½ cm x 1/4th cm was presnet over the forehead. 5. Lacerated wound 1 cm x 1/4th cm x 1/4th cm was present over the chin right side. 6. Broken right lateral inciser tooth. 7. Multiple (8 abrasions) linear type of length 5,2,3,1,2,3,4,1 wer epresent over abdomino thoriacic Crl.A. No.642-DB of 2008 -5- region left laterial side. 8. Linear abrasion 1½ was present over right knee. 9. Linear abrasion 5 cm was present over left thigh. 10. Bruise 8 xm 3/1½ cm extending from left foot to lower one third of leg dorsally crossing ankle joint was present. 11. Multiple abrasion anal mucosa upto 3 cm in size were present. On internal examination scalp wound as described above was having skull fracture in occipital and parietal region. Memrance of brain was found ruptured beneath the wound site. Brain was lacerated in occipital and parietal region. Blood clots were present in cavity. External appearance: 1. Both upper arms, chest, face, scalp hairs were stained with blood. 2. Leaves of barley was found on the body. 3. One barley shrub was found inserted in anus with its total length about 26 cm (5cm was found inserted in anal canal upto rectum, rest 21 cm was found outside of anal canal. 4. Sacred thread (Moli) was found around right wrist. 5. One Kala Dora was found tied on right upper arm.” He opined that the deceased died due to severe head injury. The post mortem report was marked as (Ex.PX). Crl.A. No.642-DB of 2008 -6- f) PW24 took into possession a pant (Ex.P15) and an underwear (Ex.P16) under relevant memo Ex.PV. After the post mortem examination, the dead body was cremated, taking permission from the Municipal Committee. g) On 23.2.2004, PW5 Mahender and PW15 Nand Lal who were the uncle of deceased Manoj Yadav identified the dead body as that of Manoj Yadav on the basis of the dress recovered from the scene of occurrence and clothes recovered from the dead body and the photograph of deceased Manoj Yadav. h) On 20.2.2004, PW27 S.D. Sanas, Police Sub Inspector attached to Palgar Police Station, District Thane, Maharashtra took into possession a Qualis vehicle bearing registration No.HR20J-3801 under Section 41(1)(d) Cr.P.C. from the possession of accused Virender Singh and Vijay Peter. i) PW28 S.I. Charan Singh attached to DPF Police Station, Gurgaon arrested accused Vijay Peter and Virender Singh who were handed over by PW27 S.I. S.D. Sanas on 23.2.2004. He recorded the disclosure statement (Ex.PZ) given by accused Vijay Peter and the disclosure statement (Ex.PAA) given by Virender Singh. He also took into possession Qualis bearing registration No.HR20J-3801 under the relevant memo. j) On 28.2.2004, PW28 proceeded to Jaipur via Ringus from Bombay. Accused Virender pointed out the alleged place of occurrence vide demarcation memo Ex.PO. A purse (Ex.P9) and copy of ration card (Ex.P13) were recovered from accused Virender Singh. Accused Vijay Peter also demarcated the alleged place of occurrence under demarcation memo Ex.PQ. PW28 recovered a purse (Ex.P31) and photographs of the Crl.A. No.642-DB of 2008 -7- deceased (Exs.P32 and 33) under recovery memo (Ex.PDD) from accused Vijay Peter. k) PW20 DSP Dalbir Singh laid final report under Section 173 Cr.P.C. as against the accused on completion of investigation in this matter. 4. When the accused/appellants were brought to their notice all the incriminating evidence spoken to by the witnesses examined on the side of the prosecution, they contended that they were innocent, but a false case was foisted on them. 5. The trial Court having relied upon the evidence of PW16 Rajan, who spoke about the hiring of the taxi by the accused/appellants and the engagement of the driver Manoj Yadav with the accused, the seizure of the taxi by PW27 in Maharashtra alongwith the accused/appellants, the recovery of the material objects effected by the Investigating Officer PW24 and the identification of the dead body by PW5 and PW15, uncles of deceased Manoj Yadav, returned a verdict of conviction as against the accused/appellants. 6. Learned counsel appearing for the accused/appellant Virender Singh @ Beeru would vehemently submit that there was lack of cogent evidence let-in by the prosecution to connect the accused/appellant with the alleged offence. There are material contradictions in the statements of the prosecution witnesses. The trial Court failed to appreciate the huge delay in lodging the FIR. No plausible explanation was forthcoming from the prosecution side for the delay in lodging the FIR. There was no proof that the deceased was carrying a purse, photographs and a copy of ration card when he allegedly took the accused/appellants in the taxi. The judgement of Crl.A. No.642-DB of 2008 -8- the trial Court is based on mere conjectures and surmises. Therefore, it is his submission that that the appellant-accused Virender Singh @ Beeru is entitled to acquittal. 7. Learned counsel appearing for the accused/appellant Vijay Peter would contend that accused-appellant Vijay Peter was not linked with the dialing at STD booth at Ghaziabad from where PW16 Rajan Yadav had allegedly received a telephonic call for hiring the taxi to Rajasthan. The trial Court has gravely erred in brushing aside the fatal discrepancies occurring in the statement of the prosecution witnesses. The circumstantial evidence let-in by the prosecution is not sufficient to conclude that accused- appellant Vijay Peter committed the offence as alleged by the prosecution. Therefore, it is his submission that the judgement of the trial Court is liable to be set aside. 8. Per contra, Mr. S.S.Randhawa, learned Addl.A.G., Haryana appearing for the State would submit that the evidence of PW16 Rajan categorically establishes the engagement of the taxi by the accused/appellants. The deceased driver Manoj Yadav had been engaged by PW16 Rajan to take the taxi boarding the accused-appellants alongwith two other accused to their destination in Rajasthan. The accused/appellants have not come out with any plausible explanation as to what happened to the taxi driver Manoj Yadav who drove the taxi boarded by the accused/appellants and two other accused. It is his further submission that the recovery of the taxi engaged by the accused, the arrest of the accused alongwith the taxi, recovery of the material objects including the recovery of weapon of offence go to establish that it was only the accused/appellants Crl.A. No.642-DB of 2008 -9- alongwith other two accused who committed the offences charged as against them. Therefore, the judgement of the trial Court does not call for interference. 9. The entire case of the prosecution hinges on circumstantial pieces of evidence let-in by the prosecution. The law is well settled that when the prosecution projects a case through circumstantial evidence, the prosecution is bound to establish the material circumstances from which the guilt of the accused could be safely drawn. The circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused and not with the innocence of the accused. The incriminating circumstantial evidence should not only be reliable but also should be clinching to arrive at a conclusion that it was only the accused who have committed the offence charged as against them. 10. The prosecution is confronted with a blind murder. Firstly, they relied upon the “last scene” evidence spoken to by PW16. PW16 Rajan has categorically deposed before the trial Court that on 12.2.2004, he received a telephonic call from the accused Vijay Peter making a request for a taxi to go over to Rajasthan from Ghaziabad. He having taken his taxi bearing registration No.HR20J-3801 proceeded to the address furnished by accused Vijay Peter, but on the way he received another call from accused Vijay Peter that he was waiting for PW16 at Hapur Octroi Post. He had found accused Vijay Peter and accused Virender Singh @ Beeru boarding his taxi alongwith two other persons. He had brought them by the said taxi to Ganga taxi stand, Gurgaon. He had engaged his driver Manoj Yadav to take the taxi boarded by the accused/appellants alongwith two other persons Crl.A. No.642-DB of 2008 -10- from Ghaziabad to the destination in Rajasthan. He was surprised to find that there was no contact from his driver Manoj Yadav. Through the owner of the STD booth, Ghaziabad from where another owner of the Ganga taxi stand Vikram was first contacted by accused/appellant Vijay Peter, he could locate the house of Vijay Peter, but unfortunately, his wife alone was there to furnish the landline No.022-34009222 of Bombay. PW14 Naresh Yadav, MLA made an attempt to locate deceased driver Manoj Yadav through the said landline. As the search did not yield result for about a weeks time, PW16 approached PW16 S.I. Charan Singh attached to DLF Police Station, Gurgaon and lodged a man-missing complaint. 11. There is no reason for PW16 Rajan to falsely implicate the accused-appellants in the crime of abduction of his driver, robbery of the taxi, murder of his driver and screening the evidence of murder. No motive was attributed towards PW16 for coming out with such damaging version as against the accused-appellants. The evidence of PW16 is found to be quite natural. In fact, it inspires confidence of this Court. We also do not find any material discrepancy or inconsistency in the evidence of PW16. The testimony of PW16 establishes the fact that the accused-appellants alongwith two other accused engaged the taxi bearing registration No.HR20J-3801 and ultimately took the taxi driven by deceased Manoj Yadav to Rajasthan. No plausible explanation is forthcoming from the accused as to what happened to the driver who was engaged by PW16 for the purpose of taking the accused-appellants alongwith two others to their destination in Rajasthan. The whereabouts of deceased driver Manoj Yadav was within the special knowledge of the accused-appellants and other Crl.A. No.642-DB of 2008 -11- accused. It is surprising that they have not come out with any satisfactory explanation. 12. PW13 Richpal was informed by one Bhiwa Ram that a dead body was lying in the field. It was PW13 Richhpal who lodged the complaint (Ex.PL) to PW24 Inspector Bhag Singh attached to Vigilance Nagar Nigam, Jaipur about the dead body which was lying in the field. The post mortem examination conducted by PW25 Dr.Sanjeev Kumar Sharma would go to establish that the deceased who received severe head injuries had died a homicidal death. PW5 Mahender and PW15 Nand Lal, uncles of deceased Manoj Yadav have identified the clothes and photographs of deceased Manoj Yadav. Their identification would lead to the conclusion that the unidentified body located by PW13 Richpal and was subjected to post mortem examination by PW25 Dr.Sanjiv Kumar Shamra was none other than deceased Manoj Yadav. It is to be noted that the accused have not challenged the fact that the dead body was that of Manoj Yadav. Through the above evidence, the prosecution could establish that Manoj Yadav received lethal injuries on his head and ultimately died on account of those injuries. 13. The prosecution has come out with yet another clinching circumstance that the accused-appellants were arrested alongwith the taxi which was hired by them from PW16. PW27 Sub Inspector S.D. Sanas attached to Palgar Police Station, District Thane, Maharashtra has taken into possession the taxi bearing registration No.Hr20J-3801 from the possession of the accused/appellants under Section 41(1)(d) Cr.P.C. In our considered opinion, it is found to be a very material incriminating evidence established Crl.A. No.642-DB of 2008 -12- by the prosecution. The very fact that the accused-appellants were found loitering with the taxi sans the driver Manoj Yadav who in fact was engaged to drive the vehicle would go to show that the accused-appellants having disposed off driver Manoj Yadav robbed the vehicle from his custody. The prosecution has already established that driver Manoj Yadav was in fact died a homicidal death. The lack of explanation on the part of the accused- appellants would lead to an inference that it was only the accused-appellants alongwith the other accused who authored the crime of murder having abducted the driver alongwith the vehicle and ultimately robbed the same. 14. The weapon of offence was also recovered at the instance of accused-appellant Vijay Peter. In our considered view the prosecution could establish all the material circumstances pointing towards the guilt of the accused-appellants. The material circumstances projected by the prosecution would well connect the accused-appellants with the charges framed as against them. We do not find any material contradictions or discrepancies in the testimony of the prosecution witnesses. Of course, there is a delay of about 8 days in lodging the FIR. After all the FIR was lodged by the taxi stand Incharge as he did not hear anything from driver Manoj Yadav for about 4-5 days. It is also found that PW16 alongwith PW14 had made a search of the driver who was missing. Thus, the delay in lodging the FIR has been properly explained by the prosecution through PW16 and PW14. 15. The deceased had kept his photographs and a copy of ration card while driving the taxi engaged by the accused-appellants alongwith two other accused. It is common knowledge that the taxi would be stopped by the police officials to verify the identity of the person driving the taxi. Crl.A. No.642-DB of 2008 -13- No wonder, the deceased driver Manoj Yadav had possessed his photographs and the ration card to establish his identity and the place of residence to ward-off any unpleasant query that may be put to him by the traffic police personnel. True it is that the investigating officer had not seized the call particulars of the STD booth at Ghaziabad to establish that accused-appellant Vijay Peter contacted PW16 Rajan through the STD booth. Firstly, we do not doubt the veracity of the evidence of PW16 Rajan whose evidence is found to be credible and trustworthy. We had already held that there was no reason for PW16 Rajan to implicate the accused- appellants in this crime, if at all, they had no role to play in the murder of driver Manoj Yadav. Secondly, the non-seizure of the call particulars from STD booth at Ghaziabad does not go to the root of the matter. 16. We find that the material incriminating circumstances projected by the prosecution well establish that it was only the accused-appellants alongwith two other accused who committed the offence charged as against them. We are not confronted with any other hypothesis which would go to the benefit of the accused-appellants. Therefore, we have no hesitation to reject the submission made on the side of the accused-appellants that sufficient materials were not produced to connect the accused-appellants to the crime of abduction, robbery, murder and screening of evidence. The trial Court has returned a well considered judgement which does not call for interference, as contended by the learned Addl.A.G., Haryana. 17.. In the above facts and circumstances, the judgement of conviction and the order of sentence as recorded by the trial Court stand confirmed and both the appeals are dismissed. Accused-appellant Vijay Crl.A. No.642-DB of 2008 -14- Peter is found to be on bail. His bail bond stands cancelled. He shall surrender before the trial Court within 15 days from the date of this judgement. In default thereof, the trial Court shall issue non-bailable warrant and send him to prison to undergo the unexpired portion of his sentence. (M.JEYAPAUL) JUDGE June 1, 2011 (SATISH KUMAR MITTAL) Gulati JUDGE