Crl. A.Nos. 78/2009 & 225/2009 Page 1 of 25 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: February 18, 2010 Judgment delivered on: April 13, 2010 + CRIMINAL APPEAL NO.78/2009 PRADEEP PILLAI ....APPELLANT Through: Mr. L.K. Upadaya, Advocate Versus STATE .....RESPONDENT Through: Mr. Manoj Ohri, APP WITH CRIMINAL APPEAL NO.225/2009 ROHIT BHATTI ....APPELLANT Through: Mr. K.K. Manan, Advocate with Mr. Tarun Goomber, Mr. Gaurav Goswami, Mr. Pankaj Mendirata, Mr. Sangram S.S. Rao, Mr. Nipun Bhardwaj & Mr. Mustafa Arif, Advocates Versus STATE .....RESPONDENT Through: Mr. Manoj Ohri, APP CORAM: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not ? Yes Crl. A.Nos. 78/2009 & 225/2009 Page 2 of 25 3. Whether the judgment should be reported in Digest ? Yes AJIT BHARIHOKE, J. 1. The appellants Rohit Bhatti and Pradeep Pillai, having been convicted in Sessions Case No.5/2008 FIR No.442/98 P.S. Sarai Rohilla on the charges under Section 302, 365 and 201 IPC all read with Section 34 IPC, have preferred the above two appeals against the impugned judgment dated 12.12.2008 and the consequent order on sentence dated 16.01.2009. 2. Briefly stated, case of the prosecution is that appellant Rohit Bhatti was a friend of Manish (deceased). The appellants Pradeep Pillai and Rohit Bhatti entered into a criminal conspiracy with their co- accused persons Arvind S. Lal, Sanjay Dass, Bharat Khilania and Khushi Ram to abduct the deceased Manish with a view to extort handsome ransom from his family. Pursuant to the said conspiracy, appellant Rohit Bhatti called the deceased Manish on telephone at his Printing Press in the afternoon of 08.10.98. Said call was received by Dinesh Kumar Sharma (PW13). On the request of the Rohit Bhatti, Dinesh Kumar Sharma connected him to the deceased Manish and after attending to the call the deceased left the Printing Press in his car No. DL-4CF-3946. It is also the case of the prosecution that a message was also received on the Pager No. 962800437 of the deceased at 01:57 p.m. that Rohit was waiting for him at Liberty Cinema. The deceased Crl. A.Nos. 78/2009 & 225/2009 Page 3 of 25 reached at Liberty Cinema where appellants Rohit Bhatti and Pradeep Pillai were already waiting for him. They had juice together at the Juice Shop of Satish Kumar (PW8). The appellants Rohit Bhatti and Pradeep Pillai lured the deceased by telling him that their boss had arranged for a nice girl and if he was interested, he could accompany them. On this pretext, they took him to house No. B-150, Sector 8, Pappan Kalan, Delhi. The appellant Pradeep Pillai accompanied the deceased from Liberty Cinema in his car whereas Rohit Bhatti went to Pappan Kalan on his motorcycle. They reached the said house at around 03:15 p.m. where they met the co-accused persons Arvind, Sanjay and Bharat at the gate. They escorted the deceased to a room upstairs where the other co-accused Khushi Ram, Chowkidar was also present. After some time, accused Sanjay and Khushi Ram proceeded to tie the hands of the deceased at his back. The deceased Manish protested and resisted and he even bit both the hands of Bharat. On this, Khushi Ram stabbed Manish on his back with a knife and accused Sanjay strangulated him with a piece of cloth, as a result, Manish died. Thereafter, they brought his dead body downstairs and dumped it into a gutter. Thereafter the appellants Pradeep Pillai and Rohit Bhatti alongwith the others left the spot of occurrence. Subsequently, in the evening of 08.10.98, the appellant Pradeep Pillai again went to Pappan Kalan house alongwith Ajay. They carried a phavra with them. At Pappan Kalan, they dug a pit outside the gate of the house with the Crl. A.Nos. 78/2009 & 225/2009 Page 4 of 25 phavra and buried the dead body of Manish in the said pit after removing it from the gutter. 3. When the deceased did not return home on 08.10.98, complainant Anil Kumar Jain (PW14) visited the police station Sarai Rohilla at 11:35 p.m. and lodged a missing report. In the morning of 09.10.98, when the complainant could not find any trace of his son despite enquiries, he again visited the police station to lodge a formal complaint and his statement (Ex.PW5/A) was recorded by SI Ram Avtar wherein he expressed the suspicion that somebody might have kidnapped and killed his son. On the basis of said information, formal FIR was registered at the police station and investigation was entrusted to SI Ram Avtar (PW25). 4. During investigation, it was revealed by PW8 Satish Kumar that in the afternoon of 08.10.98, the appellants along with Manish visited a Juice Shop and after taking juice, they left together in the car of Manish and motor cycle of Rohit Bhatti. Appellant Rohit Bhatti was arrested on 05.11.98 and on interrogation, he made a disclosure statement (Ex.PW22/B) detailing the above referred facts. Appellant Pradeep Pillai was also arrested on 05.11.98. On interrogation, he made a disclosure statement regarding the carrying of phavra to the spot and also burying the dead body of Manish in a pit after removing it from the gutter. Crl. A.Nos. 78/2009 & 225/2009 Page 5 of 25 5. Other accused were also arrested. They also made disclosure statements. Since they have been acquitted by the learned Trial Judge and their acquittal has not been challenged, it is not necessary to reproduce the facts relating to them. 6. Pursuant to the disclosure statement Ex.PW22/D, Pradeep Pillai got recovered the Phavra from the aforesaid house in Pappan Kalan. Disclosure statement of Pradeep Pillai also led the recovery of the dead body of Manish buried in the said pit when it was exhumed on 06.11.98 after seeking permission of the concerned SDM in presence of SDM Sh. Chandrakar Bharti (PW26) and Dr. K.Goel, Autopsy Surgeon (PW17). 7. It is also the case of prosecution that blood samples were lifted during investigation with the help of CFSL officials from the wall of the house in question, the gutter as also the place of burial of the dead body and seized vide respective memos. Aforesaid seized samples were sent to CFSL alongwith the clothes of the deceased for analysis and on analysis, the samples were found to contain the human blood of blood group „A‟. 8. On completion of the investigation, charge sheet against the seven accused including the appellants was filed, whereas the eighth accused Khushi Ram could not be arrested and he was declared proclaimed offender. 9. The appellants as well as their co-accused persons, namely, Arvind S. Lal, Bharat Khilania, Sanjay Dass, Ajay S. Lal and Tarun Crl. A.Nos. 78/2009 & 225/2009 Page 6 of 25 Kumar were charged for the offence of criminal conspiracy punishable under Section 120B IPC as also for abduction, murder and screening of evidence of their crime in furtherance of said criminal conspiracy punishable under Sections 364A IPC, 302 IPC and 201 IPC all read with Section 120B IPC. Appellants as well as other co-accused persons pleaded not guilty to the charges and claimed to be tried. 10. Accused Arvind S. Lal filed a revision petition against the framing of charges against him and he was discharged by the High Court vide order dated 13.01.2000. Accused Khushi Ram was shown as proclaimed offender in column No.2 of the charge sheet. 11. In order to bring home the guilt of the appellants and the accused persons, prosecution examined 27 witnesses in all. However, the material witnesses examined with regard to the role played by the appellants Rohit Bhatti and Pradeep Pillai are PW8 Satish Kumar, PW13 Dinesh Kumar Sharma, PW14 Anil Kumar (complainant), PW17 Dr. K. Goel, PW26 Shri Chandrakar Bharti, SDM besides initial Investigating Officer, PW25 SI Ram Avtar, PW22 SI Iqbal Singh and the subsequent Investigating Officer PW27, Inspector Jagjeet Singh. 12. The appellants as well as their co-accused persons were examined under Section 313 Cr.P.C. to afford them an opportunity to explain the incriminating evidence appearing against them. They all denied the correctness of prosecution evidence and claimed to have Crl. A.Nos. 78/2009 & 225/2009 Page 7 of 25 been falsely implicated. Neither of the accused persons has examined any witness in defence. 13. On appreciation of evidence, the learned trial Judge found the charges under Section 302 IPC, 365 IPC and 201 IPC all read with Section 34 IPC established against the appellants Rohit Bhatti and Pradeep Pillai. As regards other accused persons, the learned trial Judge came to the conclusion that the prosecution had failed to establish their guilt beyond reasonable doubt. They were accordingly acquitted of all the charges. We may note, though the appellants have preferred appeal against their conviction and consequent order on sentence, the State has not preferred to challenge the acquittal of other accused persons. 14. Instant case is based upon the circumstantial evidence as there is no eye witness to the occurrence. On perusal of the impugned judgment, it transpires that the learned trial Judge has found the appellants guilty of the charges on the basis of following circumstances taken to be established on record: (i) That on 08.10.98 at around 01:45 p.m., appellant Rohit Bhatti called the deceased Manish Jain at his factory on telephone which call was initially received by PW13 Dinesh Kumar Sharma, to whom Rohit Bhatti disclosed his identity and the call was then passed to Manish Jain, who after attending the call immediately left the factory Crl. A.Nos. 78/2009 & 225/2009 Page 8 of 25 in his Maruti Car No. DL-4CF-3946. Ten minutes later at 01:57 p.m., a message was received on the pager of Manish Jain that “ROHIT IS WAITING AT LIBERTY”. Therafter, the deceased was last seen alive with the appellants Rohit Bhatti and Pradeep Pillai in the afternoon of 08.10.98 by PW8 Satish Kumar when they all took juice at his Juice Shop near the Liberty Cinema. (ii) That on 05.11.98, appellant Rohit Bhatti made a disclosure statement (Ex.PW22/B) about giving details of the occurrence. Pursuant to said disclosure statement, the place of occurrence i.e. room of first floor at B-150, Sector 8, Dwarka, Pappan Kalan, Delhi was inspected and its western wall was found stained with blood, which blood was lifted on a piece of thread, besides that, blood samples were also lifted with the help of pieces of thread from the gutter and also the blood stained earth was scraped from the main sewer hole (gutter), which samples when analysed at CFSL, gave positive tests of human blood group „A‟, as that of the deceased. (iii) That the appellant Pradeep Pillai also made a disclosure statement on 05.11.98 stating that in the evening of 09.10.98 at around 06:00 p.m., he alongwith the other accused persons Khushi Ram, Arvind, Tarun Crl. A.Nos. 78/2009 & 225/2009 Page 9 of 25 and Ajay removed the dead body from the said gutter and buried it outside the gate of the house at Pappan Kalan in a pit dug by them and pursuant to said disclosure statement, he got recovered the phavra with which the pit was dug as also the dead body. (iv) That the blood-stained earth lifted from the aforesaid pit also tested positive for human blood group „A‟ as that of the deceased. 15. Since case of the prosecution is based upon the circumstantial evidence only, it would be appropriate to have a look upon the law relating to circumstantial evidence. 16. In the matter of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706, it was laid down by the Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “10.(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of Crl. A.Nos. 78/2009 & 225/2009 Page 10 of 25 explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 17. The above enunciated principle of law was reiterated in the matter of State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86, where the Supreme Court, inter alia, observed thus: “9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.” 18. In the light of above enunciated principle of law, we now proceed to analyse the evidence. 19. Learned counsels for the appellants has assailed the impugned judgment on the ground that it is not based upon the correct appreciation of law and the facts. They submitted that the prosecution case is mainly based upon the last seen evidence and the recovery of dead body from a pit near the gate of House No.B-150, Sector 8, Pappan Kalan, pursuant to the disclosure statements Exhibits PW22/B Crl. A.Nos. 78/2009 & 225/2009 Page 11 of 25 and PW22/D respectively made by the appellants Rohit Bhatti and Pradeep Pillai. It is also submitted that careful appreciation of the evidence would show that prosecution has failed to establish either of the circumstances. Therefore, the learned Trial Court was wrong in coming to the conclusion of the guilt of the appellants. 20. Learned counsel for the State, on the other hand, argued in support of the impugned judgment. He submitted that the prosecution has firmly established from the testimony of PW8 Satish Kumar and PW13 Dinesh Kumar Sharma as also the record of pager messages Ex.PW6/A received on the pager No.962800437 of the deceased that the deceased was called in the afternoon of 08.10.98 to Liberty Cinema by the appellant Rohit Bhatti by making a telephone call and even sending a pager message and he was last seen alive in the company of the appellants at the juice shop of PW8 Satish Kumar. Learned counsel for the State further submitted that even the disclosure statements made by the respective appellants and recovery of the dead body pursuant to the said disclosure statements is firmly established on record from the testimony of PW14 Anil Kumar Jain (complainant), PW22 SI Iqbal Singh, PW25 SI Ram Avtar and PW27 Inspector Jagjeet Singh. He has submitted that from their testimony, it is also established that on inspection of the spot of occurrence, some blood stains were found on the western wall of the room in question from where the scrapings were seized and also some blood samples were lifted from the gutter/sewer and which samples on analysis , as per the Crl. A.Nos. 78/2009 & 225/2009 Page 12 of 25 CFSL report, gave positive tests for human blood of blood group “A”, which was the blood group of the deceased also, which is significant proof of the fact that dead body was initially concealed in the gutter and buried later in the pit. Thus, he has urged for the dismissal of the appeal. 21. We have considered the rival contentions made on behalf of the parties and perused the material on record. 22. In order to establish circumstance No.(i), i.e., the deceased was last seen alive in the company of the appellants, the prosecution has mainly relied upon the testimony of PW8 Satish Kumar, who is a juice shop owner. Satish Kumar deposed that three days after the day of ‘Karva Chauth’, the police visited his shop along with one person and inquired if the deceased Manish and appellant Rohit had visited his shop for taking juice, to which he replied in the affirmative. He also stated that on that day photograph Ex.PW8/A of the deceased was shown to him and since his memory was fresh, he confirmed the visit of Manish at his shop on the day of ‘Karva Chauth’. He, however, failed to identify either of the appellants as the persons who had accompanied the deceased to his juice shop but he stated that the two persons who had taken juice with the deceased had come on a motorcycle. Thus, it is not certain that the appellants visited the juice shop of PW8 on 08.10.98 with the deceased. Even if aforesaid evidence of PW8 Satish Kumar is taken to be true, then also this Crl. A.Nos. 78/2009 & 225/2009 Page 13 of 25 evidence establishes only the fact that the deceased along with two persons had taken juice at the shop of PW8 Satish Kumar on the day of ‘Karva Chauth’. If, for the sake of argument, it is assumed that said two persons were the appellants, then also it is not of much help to the prosecution because PW8 Satish Kumar has not testified that after taking the juice all three of them left together for the same destination. In absence of any categoric evidence in this regard, we find it difficult to conclude that the deceased had accompanied the appellants from the juice shop of PW8 to the place where he was ultimately killed. Thus, in our considered view, above said evidence does not firmly establish that the deceased was last seen alive with the appellants. 23. Learned counsel for the State has submitted that no doubt PW8 Satish Kumar had failed to identify the appellants in his testimony, yet he has admitted that the deceased visited his shop and had juice with two persons. If this evidence is analysed in the context of the testimony of PW13 Dinesh Kumar Sharma and the message received at the pager of Manish Jain (deceased) on 08.10.98 at 1:57 pm stating “ROHIT IS WAITING AT LIBERTY”, it is clear that it was the appellant Rohit Bhatti and his associate appellant Pradeep Pillai who had met the deceased near the Liberty Cinema and took juice along with him at the shop of PW8 Satish Kumar. To appreciate this contention of learned counsel for the State, it is necessary to have a look on the testimony of PW13 Dinesh Kumar Sharma. He has testified that on 08.10.98, he was present in the factory of the father of the deceased. On that day, at Crl. A.Nos. 78/2009 & 225/2009 Page 14 of 25 about 1:45 pm he received a telephone call at the factory from Rohit Bhatti, who was a friend of the deceased. Rohit Bhatti disclosed his identity and requested him to pass on the call to the deceased. Thereafter, he passed on the call to the deceased, who after talking on phone for some time, made a telephone call to his grand-mother and left the factory in his Maruti Car DL4CF 3946. From this evidence, learned counsel for the State has urged us to conclude that it must be Rohit Bhatti with whom the deceased had juice at the shop of PW8 Satish Kumar. We are not convinced with this submission because it is not clear what conversation took place between the deceased and the caller who identified himself as Rohit Bhatti on telephone and it is also not clear as to where the deceased went after attending said telephone call. Coming to the pager message, the record of calls received at the aforesaid pager No. 962800437 of the deceased is proved on record as Ex.PW6/A. On perusal of the said record, it transpires that on 08.10.98 at about 1.57 pm, one message was received on the pager of Manish Jain “ROHIT IS WAITING AT LIBERTY”. This circumstance, of course, raises a possibility that Rohit might have arranged for a meeting with the deceased at Liberty Cinema but this fact in itself is not sufficient to conclude that the deceased actually went to Liberty Cinema and met Rohit. Even if it is assumed that the deceased had gone to Liberty Cinema and met Rohit, then also the testimony of PW8 Satish Kumar falls short of saying that after their meeting and having juice they left together. Thus, it is not certain whether the deceased had gone along Crl. A.Nos. 78/2009 & 225/2009 Page 15 of 25 with the appellants or not. Therefore, in our view, the last seen circumstance has not been firmly established in this case. We may note at this juncture that perusal of the call record of pager also indicates that on 09.10.98 also at 11:34 am, a message was sent to the pager of the deceased Manish Jain stating ”CONT ROHIT AT HOME IMDTLY”, which raises a possibility that appellant Rohit Bhatti was not aware of the death of the deceased. Otherwise, there was no occasion for him to send the said message to Manish Jain (deceased) on 09.10.98 at 11.34 am. 24. Another circumstance which weighed with the learned trial Judge against the appellant Rohit Bhatti is the disclosure statement Ex.PW22/B, which purportedly led to discovery of certain facts. Perusal of the disclosure statement reveals that as per the prosecution, Rohit Bhatti disclosed to the police that after killing the deceased in a room at the first floor of House No.B-150, Sector 8, Pappan Kalan, Delhi he and his co-accused persons brought his dead body downstairs and dumped it into the gutter. Learned counsel for the appellant submit that above said disclosure statement is inadmissible in evidence being a confession made to the police and it does not fall within the exception provided under Section 27 of the Evidence Act because the disclosure statement has not led to the discovery of the dead body or any fact. As against this, learned counsel for the State submitted that no doubt the dead body was not recovered from the gutter as it had been shifted subsequently by the other co-accused persons but the Crl. A.Nos. 78/2009 & 225/2009 Page 16 of 25 fact remains that from the aforesaid gutter, blood samples were lifted, which on analysis, gave positive tests for the human blood of group “A” and this amounts to the discovery of the fact that at some stage, the dead body was concealed in the gutter. 25. We do not find merit in the contention of learned counsel for the State. Ex.PW22/Z is the seizure memo vide which the samples were lifted from the gutter and also the western wall of the room where the murder took place. Perusal of the said seizure memo indicates that it starts with the narration that the samples were collected with the help of CFSL team headed by Dr. G.D. Gupta, Principal Scientific Officer, CBI, CGO Complex, CFSL. Neither Dr. G.D. Gupta nor any member of the CFSL team which purportedly lifted the samples detailed in the seizure memo have been examined by the prosecution. In absence of their testimony, we do not find it safe to rely upon the evidence of the police officials and the complainant Anil Kumar Jain regarding the lifting of blood samples from the gutter/sewer, particularly when the CFSL report has been given under the signatures of Dr. G.D. Gupta but there is no mention in this report that the samples were lifted under his supervision by a team of CFSL.