CRL. A. 589/2010 & 822/2010 Page 1 of 31 * THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 22.02.2011 Judgment delivered on: 03.10.2011 1. CRL.A. 589/2010 VIJAY KUMAR @ VIJAY ..... Appellant versus STATE ..... Respondent Advocates who appeared in this case: For the Appellant : Mr Anurag Jain with Mr S.C. Jain For the Respondent : Mr Sanjay Lao, Addl. Standing Counsel. AND 2. CRL.A. 822/2010 NARENDER @ PAPPU ..... Appellant versus STATE ..... Respondent Advocates who appeared in this case: For the Appellant : Mr R.K. Singh For the Respondent : Mr Sanjay Lao, Addl. Standing Counsel. CORAM:- HON’BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MR JUSTICE MANMOHAN SINGH 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 Digest? Yes CRL. A. 589/2010 & 822/2010 Page 2 of 31 MANMOHAN SINGH, J 1. These two appeals are directed against the judgment dated 27.03.2010 and order on sentence dated 30.03.2010 delivered by the Addl. Sessions Judge, Delhi in Sessions Case No. 109/2009 whereby both the appellants were directed to undergo rigorous imprisonment for life and further sentenced to pay a fine of Rs. 5,000/- each under Section 302 IPC and in case of default in payment of fine to further undergo simple imprisonment for six months each. The appellants were further directed to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/- each under Section 380 IPC and in case of default of payment of fine, to further undergo simple imprisonment for three months each. Both the sentences were directed to run concurrently. 2. On 16.2.2002 two dead bodies, which were later on identified as of Prem (Driver) and Sanjay (cleaner/helper), were found in an abandoned truck bearing No.HR-38-8021 at Lawrence Road, Delhi. During investigation, it was revealed that the said truck belongs to a Transport Company at Hodal, Haryana and the deceased were seen lastly by the prosecution witness Kanahiya at Hodal, Haryana in the company of the accused persons. CRL. A. 589/2010 & 822/2010 Page 3 of 31 3. The said truck was loaded with 300 bags of wheat which was to be delivered at FCI Godown, Maya Puri from Hodal, Haryana. 4. The said truck was found empty and on investigation, it was revealed that 300 bags of wheat were sold to one Kailash and 80 bags of wheat were recovered from the place of said Kailash at the instance of the accused persons. 5. Accused Om Parkash and Thakur Dass were acquitted and the appellants were convicted under Sections 302/380/34 IPC vide order dated 27.03.2010. 6. Being aggrieved by the said order of conviction dated 27.3.2010 and order of sentence passed on 30.3.2010 the appellants filed the present appeals, inter alia, on the grounds raised by the appellants which can be summarized as follows : (i) There was no eye witness to this case. This case rests upon circumstantial evidence of the last seen evidence and of the recovery of the stolen wheat bags. And the circumstantial evidence led by the prosecution is not sufficient to convict the appellants as it was a case of blind murder. (ii) That the police did not investigate the case fairly. The prosecution witnesses were planted and in no way connected to the said incident. CRL. A. 589/2010 & 822/2010 Page 4 of 31 (iii) That the prosecution failed to establish beyond reasonable doubt that the deceased persons were last seen in the company of the accused persons as out of the two witnesses of the said incident, only one witness i.e. PW-26 Kanhaiya supported the prosecution case and the other turned hostile. (iv) That the learned Additional Sessions Judge did not take into consideration the material contradictions in the statement of witnesses produced by the prosecution which show that they were not reliable witnesses and the trial court still relied upon their statements and convicted the appellants. (v) That the prosecution has not discharged its initial burden of proving its case beyond reasonable doubt against the appellants thus the impugned order is liable to be set aside as offences were not proved by the prosecution to have been committed by the appellants. 7. The case of the prosecution before the Trial Court was as under: a. That on 16.02.2002, Duty Officer, PS Keshav Puram received wireless message through PCR at about 6.17 p.m. through wireless operator that in front of C-Block, 36/6, Lawrence Road, a truck No. HR 38 8021 near water tank was parked containing a dead body. DD No.20A was handed over to SI Vikram Singh. SI Vikram Singh along with Constable Surender went to the spot. SI Vikram Singh found that a truck was parked near C-36/6, Industrial Area, Lawrence Road, Delhi, having face towards MIG Flats, Rampura and at the left CRL. A. 589/2010 & 822/2010 Page 5 of 31 side window in the cabin behind the driver seat, two dead bodies were lying having wrapped in their neck. Both dead bodies were having swelling and bad smell was coming out. On this DD, rukka was prepared and sent for registration of FIR under Section 302 IPC. Constable Surender took the ruqqa and got registered the FIR. Further investigation was conducted by Inspector R.K. Budhiraja, who went to the spot and prepared site plan. The photographer took the photographs. The crime team was also called for finger prints. Truck and dead bodies were inspected by him. On the truck, a telephone No.36284, Union Hodal was written. A call was made on this telephone number. It was found that the owner of the truck had gone to Delhi in search of the truck. b. On information, the owner came at the spot and identified the dead bodies of Prem Chand and Sanjay. Some documents were taken out from the clothes of the dead bodies and both the deceased were sent to BJRM Hospital Mortuary. On 17.02.2002, both dead bodies were identified and postmortem conducted and later on the same were handed over to the relatives. Exhibits were seized, which were handed over by the doctor. On 20.02.2002, Investigation Officer Mr R.K. Budhiraja recorded statement of one Kanhaiya Lal under Section 161 Cr.P.C. He named one Vijay and Pappu Vayapari. As per statement made by him, on 13.02.2002 at about 8.45 p.m., he had seen the deceased and the said two persons along with two other persons. All the four persons boarded in the truck as they wanted to go to Palwal. Investigation Officer started search of accused persons. On 25.02.2002, on the basis of secret information accused Vijay Kumar was arrested. His disclosure statement was recorded, in which, he named co-accused Narender @ Pappu. He led the police party to broker Kailash Chand and got recovered 80 bags of wheat. Thereafter, co-accused Narender @ Pappu was arrested on 26.02.2002 at the instance of Vijay Kumar and his disclosure statement was also recorded. CRL. A. 589/2010 & 822/2010 Page 6 of 31 c. The investigation was entrusted to O.P. Yadav as Inspector R.K. Budhiraja was transferred. Mr Yadav made search for accused Virender Singh and proceedings under Section 82/83 Cr.P.C. conducted against him. The exhibits were deposited at FSL, Malviya Nagar. In the meanwhile, the postmortem report was received. As per this report, doctor stated the cause of death due to ligature strangulation. The chance prints were sent for comparison but result was not received. d. On 20.07.2002, accused Virender Singh surrendered in the Court. He was arrested and disclosure statement was recorded. On 30.07.2002, TIP proceedings were conducted at Tihar Jail. The witness Kanhaiya Lal did not identify the accused Virender Singh. Constable Vishnu Dutt, PS City Palwal, Haryana, came to PS Keshav Puram on 27.07.2002 and informed that accused Thakur Dass @ Pappu was arrested in FIR No.3../02 under Section 406/407/302/201/392 IPC, PS City Palwal and he had made a disclosure statement. On 23.08.2002, accused Thakur Dass was arrested after issuance of production warrants. His disclosure statement was recorded. Similarly, accused Om Prakash @ Oma was arrested after issuance of production warrants. TIP proceedings of accused Thakur Dass @ Pappu and Om Praksh @ Oma were to be conducted but they refused to join the TIP proceedings. e. After completion of investigation, supplementary charge sheet was filed. In the charge sheet, it was prayed that if Court deems fit, then accused Virender Singh may be discharged. f. Charge sheet was filed before the concerned Magistrate after completion of investigation for trial initially against two accused persons Narender @ Pappu and Vijay Kumar. Later on, supplementary charge sheet was committed for trial of accused persons Om Prakash and Thakur Dass. CRL. A. 589/2010 & 822/2010 Page 7 of 31 g. Vide order dated 12.07.2002, the trial court framed the charge against accused Vijay Kumar and Narender @ Pappu for trial of the offence under Section 302/380/34 IPC. Both the accused pleaded not guilty and claimed trial. h. Vide order dated 16.12.2002, the trial court also framed the charge against accused Om Prakash @ Oma and Thakur Dass for trial of the offence under Section 302/380/34 IPC. Both the accused pleaded not guilty and claimed trial. 8. Prosecution, in order to prove charges, examined 37 witnesses in total. 9. Statement of all the four accused persons was recorded under Section 313 Cr.P.C. All of them stated that they were innocent. 10. Four defence witnesses were examined. The defence witnesses DW-1 Veer Pal and DW-2 Kailash Chand were examined on behalf of accused Narender @ Pappu and DW-3 Kishan Singh and DW-4 Basanta were examined on behalf of accused Vijay Kumar in support of their defence. 11. Prosecution examined PW-1 Om Prakash Jagid and PW-9 Jawahar Lal, partners of M/s Krishna Transport, Hadal and registered owner of truck bearing No.HR 38 8021. PW-2 Maan Singh identified the dead body of his son deceased Sanjay, helper, and PW- 3 Mohinder Singh Panchal identified the dead body of deceased Prem CRL. A. 589/2010 & 822/2010 Page 8 of 31 Chand, driver. Three witnesses are examined in regard to loading of 300 wheat bags on 12.02.2002 in truck No. HR 38 8021 at FCI, Hodal, Haryana for transportation to FCI, Mayapuri, Delhi. PW-4 Vishnu Kumar, transport contractor for FCI, PW-6 Om Prakash, who was Depot Incharge at Hodal on 12.02.2002 and PW-13 Sunder, driver of the truck on that day, in whose name gate pass was issued. PW-5 Tejpal, another driver, who was on truck No. HR 38 C 7141 of the same owner but not present at the time of loading of wheat bags as he was ill and on leave. In his absence, driver Surinder was plying the truck. PW-7 Dr. B.L. Acharya conducted postmortem examination of deceased Prem and proved his report Ex. PW-7/A. PW-15 Dr. Vinay Kumar Singh conducted postmortem examination of deceased Sanjay and proved his report Ex.PW-15/A. The star witnesses examined by prosecution were PW-6 Kanhaiya, „last seen‟ witness and PW-10 Kailash Chand, recovery witness and his partner PW-27 Surinder Kumar was declared as hostile witness. Police witnesses PW-8 SI Shiv Raj Singh made effort to trace accused Narender @ Pappu, PW-11 ASI Harjeet Singh, Duty Officer, who recorded Ex. PW-11/B, PW-12 Constable Prem Nath, who delivered FIR to senior police officials and area Magistrate, PW-17 ASI Subhash Chander, who lifted the chance finger prints on 16.02.2002 CRL. A. 589/2010 & 822/2010 Page 9 of 31 and prepared his report Ex. PW-17/A, PW-22 learned MM Sh. Ashwani Sarpal, who proved TIP proceedings of accused Narender @ Pappu Ex. PW-22/A, PW-23 ASI Radheyshyam, PCR Official, who passed the information of recovery of dead bodies in truck No. HR 38 8021 at C-Block, Industrial Area, Lawrence Road, PW-24 SI Manohar Lal, Draftsman, who prepared scaled site plan Ex. PW- 23/A, PW-25 Inspector O.P. Yadav, who sent the exhibits to FSL and arrested accused Virender, not summoned, on 20.07.2002. PW-14 Constable Sunder Pal, PW-28 SI Vikram Singh and PW-37 ACP R.K. Budhiraja, Investigation Officer to prove the initial investigation regarding the truck No. HR 38 8021 and recovery of two dead bodies who also conducted the initial investigation. PW-21 Sukhram Pal and PW-31 Ajay Pal are the two main witnesses of investigation, who along with PW-37 Investigation Officer arrested the accused Vijay Kumar and Narender @ Pappu and also witnessed the recovery of wheat bags. PW-36 Constable Rajbir joined the investigation at the time of postmortem examination of deceased Prem Chand and Sanjay. 12. PW-19 Constable Azad Singh and PW-20 Inspector Om Parkash are the two witnesses of the arrest of accused Om Prakash @ Oma on 05.09.2002 and accused Thakur Dass @ Pappu on CRL. A. 589/2010 & 822/2010 Page 10 of 31 23.08.2002, when they were produced before the learned MM of PS Keshav Puram. PW-33 Constable Richpal Singh and PW-34 SI Jagdish Singh were the witnesses in case pertaining to City Palwal, Haryana vide FIR No.373/2002 under Section 302/201/292 IPC, in which, accused Om Prakash @ Oma and accused Pappu @ Thakur Dass were arrested. PW-35 Tularam was one of the witnesses of arrest in the FIR No.373/2002 PS City Palwal, Haryana and proved disclosure statement Ex.PW-34/A of accused Thakur Dass. 13. There is no eye witness to the murder and case revolves on circumstantial evidence of last seen and recovery of stolen wheat. 14. The case of the prosecution against the appellants was based on circumstantial evidence. It is settled law that in the case of circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The Supreme Court in various cases laid down the principle that where the fate of the accused depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offence home beyond any reasonable doubt. CRL. A. 589/2010 & 822/2010 Page 11 of 31 15. In the case of C. Chenga Reddy and Ors. Vs. State of A.P., 1996 (3) RCR (Criminal) 793; (1996) SCC 193, the Supreme Court observed as under : “In a case based on circumstantial evidence, the settled law is that the circumstances from within the conclusion of guild is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with its innocence…..” 16. The following circumstances were alleged by the prosecution against the appellants: (a) That the truck No.HR 38 8021 was loaded at FCI, Hodal for delivering 300 wheat bags to FCI, Mayapuri, Delhi. (b) That owner of truck bearing No.HR 38 8021 was M/s. Krishna Transport at Hodal, Haryana and Jawahar Lal was a partner. (c) That on 12/13.02.2002 night, the truck driver was deceased Prem Chand and conductor was deceased Sanjay. (d) The cause of death of deceased Prem Chand and CRL. A. 589/2010 & 822/2010 Page 12 of 31 deceased Sanjay. (e) That on 16.02.2002, the truck No.HR 38 8021 was found in front of C-36/6, Lawrence Road, New Delhi containing two dead bodies. (f) The recovery of wheat bags at the instance of accused Vijay, his arrest and arrest of accused Narender @ Pappu. (g) The last seen witness. 17. Let us now examine the case on the basis of the facts of the case proved by the prosecution as well as the findings given by the trial court in the matter. (a) That the truck No.HR 38 8021 loaded at FCI, Hodal for delivering 300 wheat bags to FCI, Mayapuri, Delhi. 18. The trial court gave its finding on this issue in favour of the prosecution while accepting the testimonies of PW-13 and PW-4 to PW-6. PW-13 Sunder, who was the driver of the impugned truck bearing No. HR 38 8021, deposed that he went to FCI Godown, Hodal where 300 wheat bags were loaded. There was another truck bearing No. HR 38C 7141 also loaded with 400 bags of wheat, whose driver was Teajpal was not well on that day. He took the truck NO. HR 38C 7141 to Mayapuri, Delhi. He unloaded the truck at FCI Godown, Mayapuri and took the empty truck to Kirti Nagar and CRL. A. 589/2010 & 822/2010 Page 13 of 31 loaded empty glass bottles there and unloaded the empty glass bottled in a factory at Hatin and left the truck at transport company, Hodal. He also established that the gate pass No. E-34491 mark „A‟ was also issued after loading of 300 bags of wheat in his name. In the cross- examination, he stated that he was driver of the truck No. HR 38 8021 for about 3 months. The document was prepared in his presence. The gate pass was issued by the brother of the owner Jawahar Lal. He himself had seen the driver Tejpal in ill-condition. PW-4 Vishnu Kumar was also examined by prosecution, who was the transport contractor for FCI at Gurgaon and runs his business in the name and style of M/s Tirupati Balaji Rice and Oil Mill at Bunarana Road, Hodal, Haryana. He deposed that on 12.02.2002, truck No. HR 38 8021 was arranged at FCI Godown, Hodal where 300 bags of wheat were loaded. He proved the GR No. 723, which was seized by police vide memo Ex. PW-4/A. Though in his cross-examination, he admitted that the duplicate copy of gate pass mark „A‟ does not bear his signature and explained that duplicate copies are generally signed by his Munshi Satbir. PW-5 Tejpal, another driver was examined by prosecution, who further corroborated these facts that he was driving truck No. HR 38C 7141 for about 4-5 months but he fell ill and had taken leave and thereafter, he went to his home and also testified that CRL. A. 589/2010 & 822/2010 Page 14 of 31 the truck No. HR 38C 7141 was driven by one Surinder of Village Jaroli in his absence. PW-6 Om Prakash, Depot Incharge at Hodal, Haryana, examined by prosecution, corroborated the fact that on 12.02.2002, 300 bags of wheat were loaded in the truck bearing No. HR 38 8021 from FCI, Hodal Depot. He further proved the gate pass mark „A‟ issued in the name of driver Sunder and issued a receipt mark „B‟ of Rahul Dharam Kanta showing the weight mentioning of 300 bags of wheat. The wheat bags were having seal of FCI or Haryana Agro State Warehouse Corporation and on some bags, HAFED, Haryana. In his deposition, he has not denied the fact that the gate pass was issued in the name of Sunder who was driving the truck. 19. In view of the testimonies of the witnesses as referred to above, we concur with the finding of learned trial judge that the truck No. HR 38 8021 was loaded with 300 bags of wheat for transportation to FCI, Mayapuri, Delhi and prosecution had proved beyond reasonable doubt the first circumstance. (b). That owner of truck bearing No.HR 38 8021 was M/s. Krishna Transport at Hodal, Haryana and it is owned by partner Jawahar Lal. 20. The above circumstance was about the ownership of truck in question, bearing No. HR 38 8021, of M/s. Krishna Transport at CRL. A. 589/2010 & 822/2010 Page 15 of 31 Hodal, Haryana. As per the case of the prosecution, the said truck was owned by partner Jawahar Lal. The prosecution relied on the testimony of PW-1 Om Prakash Jagid, who deposed that Jawahar Lal is the registered owner of the said truck. Jawahar Lal, PW-9, himself appeared in the witness box and testified that he is the owner of the truck. He further proved that during investigation, the documents pertaining to the truck were seized by the police vide memo Ex. PW- 9/B. The documents were certificate of fitness, registration certificate, permit and insurance Ex. PW-9/C to PW-9/F. He also stated that the truck was released to him on Superdari. He also identified the truck during his examination as Ex. PX. So, nothing contrary has come in the cross-examination of PW-1 and PW-9. Thus, the prosecution had been able to prove the second circumstance beyond reasonable doubt. (c) That on 12/13.02.2002 night, the truck driver was deceased Prem Chand and conductor was deceased Sanjay. 21. The trial court in its finding also decided the third circumstance in favour of prosecution who proved that on 12/13.02.2002 night, the truck driver was deceased Prem Chand and conductor was deceased Sanjay, the prosecution relied upon the testimony of PW-9 Jawahar Lal, who testified that on 15.02.2002, his truck did not return and then, he came to Delhi on 16.02.2002 and CRL. A. 589/2010 & 822/2010 Page 16 of 31 tried to trace the truck. At Lawrence Road, he found the truck, which was empty and having dead bodies of deceased driver Prem Chand and helper Sanjay. He identified the dead bodies before the police. In the cross-examination, he stated that just about 2-3 days prior to the incident, both joined the company. PW-1 Om Prakash Jagid, also testified that he identified the dead body of deceased driver Prem Chand by proving his statement to police Ex. PW-1/A. That the deceased were Prem Chand and Sanjay, is also established on the basis of testimony of PW-2 Maan Singh, who testified that in the month of February 2002, his son Sanjay was working with PW-9 Jawahar. He identified dead body of his son and also proved the statement Ex. PW-2/A. PW-3 Mohinder Singh Panchal, the brother of deceased truck driver Prem Chand also identified the dead body and proved his statement Ex. PW-3/A regarding the identity of deceased driver. Therefore, there is no room for any doubt that third circumstance was duly proved by the prosecution and the findings of the trial court are correct on this issue. (d) The cause of death of deceased Prem Chand and deceased Sanjay. 22. The sixth circumstance was about the cause of death of deceased Prem Chand and deceased Sanjay, the prosecution relied upon on the testimonies of PW-7 Dr. B.L. Acharya and PW-15 Dr. CRL. A. 589/2010 & 822/2010 Page 17 of 31 Vinay Kumar Singh. PW-7 Dr. B.l. Acharya conducted postmortem of deceased Prem and had proved detailed report Ex. PW-7/A. The opinion for the cause of death reflects that it was due to asphyxia consequent upon ligature strangulation caused by other party. He also proved that one muffler was found tied around the neck with single knot on the right side. He further proved that the cause of death can be due to muffler tied around the neck of the dead body. He also opined the time since death was about 3 ½ to 4 days back and all the injuries were ante-mortem. The other witness PW-15 Dr. Vinay Kumar Singh conducted postmortem of deceased Sanjay who proved the same as Ex. PW-15/A. According to the opinion proved by him, all the injuries were ante mortem in nature and these injuries were sufficient to cause death in ordinary course of nature. The mode of death was homicidal. He further proved that the cause of death was due to ligature strangulation and recovered muffler was used as ligature in strangulating the deceased Sanjay. Before the trial court, the prosecution was able to prove beyond doubt that the cause of death of deceased Prem Chand and Sanjay was due to ligature strangulation. (e) That on 16.02.2002, the truck No.HR 38 8021 was found in front of C-36/6, Lawrence Road, New Delhi containing two dead bodies. CRL. A. 589/2010 & 822/2010 Page 18 of 31 23. The case of the prosecution is that the truck No. HR 38 8021 was found in front