CrL. A. No. 742/2002 Page 1 of 44 IN THE HIGH COURT OF DELHI AT NEW DELHI + CrL. A. 742/2002 Judgment delivered on 15th April, 2009. # Dharmender Kumar .... Appellant Through : Mr. Sudarshan Rajan, Adv. Versus STATE (NCT OF DELHI) .... Respondent Through : Ms. Fizani Hussain, Adv. for the State. CORAM: HON'BLE MR. JUSTICE B.N. CHATURVEDI HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether reporters of local papers may be allowed to see the Judgment ? YES 2. To be referred to the Reporter or not? YES 3. Whether the Judgment should be reported in the Digest? YES G.S. SISTANI, J. 1. This appeal has been filed against the Judgment dated 19.03.2002 and the Order on Sentence dated 26.03.2002, passed by the learned Additional Sessions Judge, Delhi in the Session's case No. 62/99, FIR No. 715/98 of Police Station RK Puram. The Trial Court had held the appellant, Dharmender Kumar, s/o Sh. Ram Manorath Yadav, r/o village RZ- 385/315, Gali no. 6, Geetanjali Park, Sagarpur, New Delhi, guilty of the offence under section 397 and section 302 of the Indian Penal Code, 1860 (hereinafter, IPC). The appellant was sentenced to Rigorous Imprisonment (hereinafter, RI) for 10 years and a fine of Rs. 10,000/- and in default whereof to a further RI for one (1) year under section 397 of the IPC. The appellant was also sentenced to Imprisonment for Life with a fine CrL. A. No. 742/2002 Page 2 of 44 of Rs. 20,000/- under section 302 of the IPC and in default of the payment of fine he was directed to undergo RI for a further period of two years. The sentences were to run concurrently and the appellant was also given the benefit of section 428 of the Code of Criminal Procedure, 1973 (hereinafter, CrPC). 2. The facts of the case as noticed by the learned Trial Court, briefly stated are. The appellant was working as an employee in the capacity of a Petrol Pump Operator for filling petrol into the vehicles at one of the petrol pumps, „Saran Motors Private Limited‟ at Bhikaji Cama Place. On the morning of 21.09.1998 at about 6:50 AM, Ashok Saran, PW 11 (Managing Director of the said Petrol Pump) received a phone call from his employee Ram Achebar, who was the morning shift-in charge, that the cash kept inside the safe and drawer was missing and that the same had been removed during the preceding night. PW 11 immediately rushed to the spot and found that the safe and the drawer had been opened by their keys and had not been broken open. PW 11 telephoned the police and the police reached the spot. It was found that the rear window pane of the bathroom attached to the office was broken. A report of theft was lodged with the police by PW 1, Mrs. Madhulika Saran, w/o of PW 11. On the basis of this report and the endorsement made by SI JP Singh, FIR was registered about the theft. It was reported in the complaint that an amount of Rs. 3,09,600/- had been missing. Since Phuman Ram was the night duty cashier, persons were sent at Phuman Ram‟s CrL. A. No. 742/2002 Page 3 of 44 house and it was reported that he had not reached home and that his relatives had also been searching for him. The relatives of Phuman Ram lodged a report with the police about his missing on 21.09.2008. Since Phuman Ram had not returned home, the theft at the said petrol pump and the missing of Phuman Ram appeared to be interconnected. 3. On 22.09.1998 the body of Phuman Ram was found lying among the dense bushes and grass growing behind the petrol pump. The police was informed and a case regarding the murder of Phuman Ram was registered. After the recovery of the body of Phuman Ram, all the employees at the petrol pump were interrogated and it is stated that during the interrogation one of the employees at the said petrol pump i.e. appellant Dharmender confessed to have committed the murder of Phuman Ram and the theft at the said petrol pump. It is further stated that at the instance of the said appellant, Dharmender cash was recovered from two polythene bags dug out from the ground behind the petrol pump and a part of the cash was also recovered from the house of the appellant. The spanner used for opening drums and a torch were also recovered at the instance of appellant, Dharmender from the drum filled with water. The crime team had also lifted chance prints from the bathroom glasses i.e. the place wherefrom the entry was allegedly gained inside the premises and which matched with the thumb impression of the appellant, Dharmender. Furthermore, the post mortem report of Phuman CrL. A. No. 742/2002 Page 4 of 44 Ram revealed that he had died due to violent traumatic asphyxia associated with suffocation from strangulation and a handkerchief was found stuffed inside his mouth. Post trial, appellant, Dharmender was held guilty of the offence under section 302 and 397 of the IPC. 4. The prosecution has examined a total of nineteen (19) witnesses. However, no witness has been examined from the side of the appellant. This Court considers it necessary to analyse the evidence of material witnesses. 5. PW 1, Madhulika Saran, w/o Sh. Ashok Saran (PW 11 and Director of the Petrol Pump) stated that on the morning of 21.09.1998, she received information that robbery had been committed at the petrol pump, M/s Saran Motors Private Limited and accordingly she lodged a written complaint with the police. 6. PW 3, Jag Mohan Ram, an employee at the said Petrol Pump deposed that on 20.09.1998, he was on duty at the petrol Pump from 6 PM to 8 AM of the next morning. At about 11 PM he went to sleep after locking the room of the petrol pump and kept the sale proceeds of the day amounting to Rs. 29,100/- in the drawer of the table of that room. PW 3 stated that he slept outside the room along with one Rajender Prasad and when in the morning he went to the store situated at the back side of the petrol pump to keep his bedding, he found that denture of Phuman Ram was lying over there. He picked up the denture and kept it on the table of the drawer. Thereafter he found that the windowpane of the toilet, CrL. A. No. 742/2002 Page 5 of 44 which was adjoining the room, was broken. Then PW 3 deposed that he and other employees went inside the room and found that the cash which had been kept inside the drawer of the table was missing. PW 3 thereafter deposed that since he did not have the keys of the almirah so it could not be verified whether the amount from the almirah had been missing or not. PW 3 further deposed that he opened the almirah without the keys and found that the cash was missing from the almirah/cash box. At that time Ram Achebar, another employee at the petrol pump informed the owner of the petrol pump about the robbery committed at the petrol pump. PW 3 deposed to have informed the local police about the said robbery. On 23.09.1998, PW 3 produced the denture before the police and the same was seized vide memo EX. PW 3/A. SI JP Singh also seized a bag from the back side of the petrol pump and the same was seized vide memo Ex. PW 3/B, however PW 3 after seeing the bag stated that he could not say if the said bag is the same as which was seized by the police or not. 7. PW 3 in his cross-examination stated that his statement before the police was recorded on 21.09.1998 and 23.09.1998. On the night of 20.09.1998, besides him Rajender Prasad was on duty at the petrol pump. PW-3 further deposed in his cross-examination that he had told the police that the key of the almirah/cash box was not with him and that he had opened the cash box without the keys and found that the cash was missing from there. PW 3 was confronted with statement Ex.PW 3/DA where it is not so CrL. A. No. 742/2002 Page 6 of 44 recorded that the keys of the almirah were not available with him or that thereafter PW 3 opened the almirah without the keys. PW 3 deposed that he did not know what cash was lying in the almirah and that he was also not aware if any cash had been kept inside the almirah on that day or the bundles of money had been kept in the drawer or not. PW-3 further stated to have told the police about the denture on 21.09.1998 but which was not seized by the police. 8. PW 4, Hira Lal, s/o Sh. Madho Ram Yadav deposed that he had been working at the said petrol pump and used to fill petrol in the vehicles, collect money from the customers and hand over the same to Phuman, who was the cashier at the said petrol pump. The other persons also used to handover the cash to Phuman. PW 4 stated that after all the cash was collected, he used to prepare the bundles of the cash, keep them inside the cash box and handover the keys to Phuman. And further that he used to paste the slips of Viijaya Bank and also used to sign the slips. PW 4 deposed that on 20.09.1998 he prepared the bundles of cash, kept them inside the cash box, handed over the keys to Phuman and went to his home. PW 4 further deposed that on 22.09.1998 he found the dead body of Phuman lying in the bushes at the back side of the petrol pump. PW 4 after seeing Ex. PW 4/A1 to A 2B, stated to have identified the slips pasted by him on the bundles of currency notes and his signatures thereon. 9. PW 4 in his cross-examination by counsel for the appellant CrL. A. No. 742/2002 Page 7 of 44 deposed that he had given a statement before the police on 21.09.1998. And that he had not given any statement to the police after the said date. PW 4 could not apprise about the sale proceeds of 20.09.1998. He stated that he had prepared 8 to 10 bundles of currency notes on 20.09.1998 and the said bundles were of the denomination of Rs.500/-, Rs.100/- and Rs.50/-, and that he had also pasted the slips on the bundle of currency notes of Rs.500/-. PW-4 thereafter deposed that it was correct that there was no slip on the currency notes of Rs.500/- and that there were no bundles of Rs.500/-. He further said that it was incorrect to say that he had signed the slips Ex. PW4/A.21 to A.28, later on at the instance of the police after the said bundles had been brought back from Bank. PW 4 also said that it was correct to say that the bank slip of Vijaya Bank is put by the Bank itself. And thereafter voluntarily stated that he had brought the said slips from the Bank for pasting them on the bundles but stated to not remember as to when the said slips were brought by him from the bank. He deposed that he along with Thakur Ram Lal had identified the dead body of Phuman. And that he had jumped the wall and seen the dead body of Phuman lying in the bushes near the wall of the petrol pump. 10. PW 5, Thakur Ram Lal s/o Sh. Mahajan Ram stated that he was the Manager at the said petrol pump and on receiving information about the alleged theft at the petrol pump, he reached the petrol pump and where the police had already arrived. PW 5 deposed CrL. A. No. 742/2002 Page 8 of 44 that Jagmohan and Ram Chebbar were the cashiers at the petrol pump and that cash used to be kept inside a box which had two keys. One of the keys was with Phuman Ram and the other key was with him. PW 5 also stated to have brought before the police, the attendance register and copy of the cash register. PW 5 thereafter deposed that on 22.09.1998 at about 1:30 PM, the dead body of Phuman Ram was found lying at the back side of the petrol pump. PW 5 deposed that the appellant, Dharmender was also working as a helper at the petrol pump and he also saw the dead body of Phuman Ram. Again said that the appellant, Dharmender came there on 23.09.1998 and not on 22.09.1998 and the appellant, Dharmender pointed out the place where the dead body was lying. Thereafter, the appellant took out two bags from the earth and got recovered a sum of Rs. 2,41,100/-. PW 5 deposed that some of the currency notes which were recovered vide memo Ex.PW-5/A, also bear his signature. There were slips of Vijaya Bank on the said currency notes and which had been signed by Jagmohan and Hira Lal. PW 5 also stated that one torch and a bunch of keys were also recovered from the water drum at the instance of appellant, Dharmender. 11. PW 5 in his cross-examination deposed that 20.09.1998, which was a Sunday, he had not gone to his duty. PW-5 deposed that he maintained the attendance and the cash register and that he does not remember as to when did he hand over the two registers and to which of the police officer. PW 5 further deposed that entries in CrL. A. No. 742/2002 Page 9 of 44 the cash register used to be made at one time after the time of one shift was over. And that he had prepared the entries dated 19th, 20th, and 21st in the register and that he handed over them to the police. The register was prepared by him after 23.09.1998. PW 5 stated that he had made the entries in the register on the basis of meter readings produced before him but this witness could not tell as to what was the meter reading. The Attendance Register by this witness was also completed after 23.09.1998. He deposed that the cash of sale proceeds used to be maintained by him and he also used to count them. And he also used to deposit them in the Bank. PW 5 deposed that Ram Achebar informed him on telephone at his house on the night intervening 20/21.09.1998 that theft had been committed at the petrol pump. He received telephone at about 7.00 AM in the morning of 21.09.1998. It is further stated by him that the duty hours of Ram Achebar were from 6.00 AM to 2.00 PM and that he (PW-5) reached at the petrol pump at about 9.30 AM. This witness deposed that the son of a Kabadi told him at about 1.00 pm that a dead body was lying in the bushes. Hira Lal and Gopal Singh were also present at that time. However, he did not go to inspect the dead body. On 22.9.1998 at 1:30 pm the police came, however, he did not inform the police about the dead body. 12. PW-5 further deposed in his cross that the police came there when the dead body was lying. From the bushes where the dead body was lying, the police came at the petrol pump. One SI was CrL. A. No. 742/2002 Page 10 of 44 J.P.Singh but he did not remember the name and designation of other police officials. PW-5 stated that he, Hira Lal and some other employees of the petrol pump had gone with the police to the place where the dead body was lying. It is stated that Gopal Singh, Hira Lal and PW-5 identified the dead body. On 23.09.1998, the police came at the petrol pump at about 4.00 PM and the appellant Dharmender was brought by the police. The other employees of the petrol pump were called by the police in the Police Station on 22.09.1998 and 23.09.1998 except S.K. Sehgal and Satish. PW 5 also deposed that he did not remember whether he had gone to the police station on 22.09.1998 and 23.09.1998 and that he and Heera Lal had joined the investigation with the police on 23.09.1998 and from the petrol pump that they went to the bushes from the back side of the petrol pump. 13. PW 5 stated that the distance between the petrol pump and the bushes was about 140 yards. The appellant Dharmender was ahead of the police officials and it was correct to say that mud was sticking to the polythene bags. The polythene bags were taken by the appellant from the left side of the place where the dead body was lying. The said place was visible from a distance of 6/7 yds, and there is a thoroughfare at about a distance of 8/10 yds. from the bushes. The appellant had dig the earth with his hands. It is further stated that this witness, PW 5 “after seeing the bundles of currency notes said that none of the bundle bearing the signature of Jagmohan and on 3 bundles of Rs. 50/- CrL. A. No. 742/2002 Page 11 of 44 there was no signature of any one.” PW 5 further deposed that it was correct that when they take money to the bank, they fix the slip of Saran Motors on the bundles of notes. PW 5 however could not tell as to from which particular person were the slips collected. 14. PW 9, ASI Subash Chand deposed that on 21.09.1998, at the call of Si J.P. Singh, he reached Saran Motors Ltd., and he was accompanied by other members of the crime team. PW-9 deposed that from the scene of the crime, he was able to lift two chance finger prints from the broken glass stand of the back side of the window. HE prepared report and got sent the same to finger print bureau. 15. PW 11, Ashok Saran, s/o Sh. Raghunandan Saran, r/o Flats No. 9/40-42, Janpath, New Delhi, is the managing director of the petrol pump, Saran Motors Private Limited. PW 11 testified about the information given to him on the morning of 21.09.1998 regarding the theft at the petrol pump. He deposed that the appellant, Dharmender was employed by him at the said petrol pump, and further that Phuman Ram was the senior shift cashier at the petrol pump. PW 11 stated that there were two sets of keys of the safe and the drawer where cash used to be kept, one set of which was with manager Thakur Ram Lal and the other was with the Shift Cashier Phuman Ram. PW 11 deposed that on 23.09.1998, he was told by the police personnel that Dharmender has been arrested for theft and murder. The police brought Dharmender to the petrol pump at 5 PM on 23.09.1998. The appellant Dharmender took CrL. A. No. 742/2002 Page 12 of 44 police persons to the spot where dead body was found and told that he had thrown the dead body of Phuman Ram at that place after murdering him and taken out the keys of the safe and drawer. The appellant also told to the police that he had hid the stolen amount under the earth nearby. The appellant thereafter took the police to the place where he had buried the amount and he removed the earth from a place and took out two plastic bags containing bundles of notes and gave then to the police. PW-11 further deposed that “In one plastic bag there were 15 bundle of 100 rupee currency note each bundle of 100 notes. Each bundle was having a stamp marked on it bearing our account number and the name of the bank in which PW 11 had his account, i.e. the Vijaya bank. The bank slip was found stapled on each bundle. The date and signature of the preparation of bundle were also there on each bundle. This was the practice which was adopted by our company for preparing the cash for depositing with our bank and the bundles so prepared were kept in the safe as they were to be deposited in the bank on the next date….. After getting the money recovered the appellant took the police to the rear side of our store room and told that he had thrown torch and the metal key used for opening the caps of oil drums into a barrel of water which was kept there. The police emptied the barrel and took pout the metal cap and torch. The torch was GEEP SHAKTI which was being used by the petrol pump….Police sealed the key and the torch in separate parcels and made seizure memo, which is CrL. A. No. 742/2002 Page 13 of 44 Ex.11/B, which bears my signature.” 16. PW 11 further deposed that thereafter the appellant told the police that he had hid part of the money in his house in Sagar Pur. PW-11 went along with the police to the house of the appellant, where the appellant went to the first floor room and took a set of keys from the slab and opened an iron trunk lying in the corner of the room. The appellant took out two bundles of notes from the iron box/trunk and handed them over to the police. All the bundles recovered at the instance of the appellant had bank slips and the seal of the account number with the date of 28.09.1998. The keys which the appellant had taken from Phuman Ram were also found in the trunk and the appellant handed over these keys to the police. These were 5 in number, two were of the safe, one was of the drawer and the other keys were of two rooms of the petrol pump. Police sealed the keys in a parcel and also sealed the money recovered in a separate parcel. Seized Memo of the keys and notes were also prepared as Ex.PW-11/C. A false denture of 14 teeth was also found by the employee Jagmohan Singh from the staff dressing room and the same was handed over to the police. This false denture was of Phuman Ram and the entire staff new this fact. At this juncture of the examination-in-chief of PW 11, the lower Court has observed that the bundle of 100 currency notes of either Rs.100/- or Rs.50/- denomination has the stamp of Saran Motors Pvt. Ltd. and the date of 29.09.1998 and the CrL. A. No. 742/2002 Page 14 of 44 signature on the Bank slip is of Vijaya Bank. 17. PW 11 deposed in his cross-examination by learned counsel for the appellant that he learnt about the dead body of Phuman Ram being found behind the petrol pump in bushes around 2.00 PM when he reached the petrol pump at the time of change of shift. PW 11 thereafter voluntarily stated that the Bank slips of Vijaya Bank on the bundle of notes used to be pasted not by the officials of the bank but by him and his employees. He stated that they always had a supply of slips from the Bank for this purpose and the same was a common trade practice. The Bank slips used to be picked up by the staff from the stack lying in the Bank and this procedure had also been explained to the police. 18. PW 11 further deposed that the body was found around 10 to 12 feet behind the rear boundary wall of the petrol pump. There is no thorough fare near the place of recovery of the dead body and there is a dense growth of shrubs and grass there, such that the place where the dead body was lying was not visible from the main road.