Shailesh Kumar Yadav v. State

1. The appellants a~e aggrieved by the impugned judgmerit and order Ci-l~A. Nos.526!2008, 86112008 & 70/2009 Page J ?f 17 ',:" "I, " 'j',;,. 'ofs~+encf~~ated 165.2008 and 24!5200~ )'/h~rebY.accus~ilA:sI]ok··· ~(l!ma;.ld Shailesh Kumar Yadav had.been convicted under Sections 302/365J1201 tead with Section 120-B as also under Section 396 of the IPe. Foir the aforenoted convictions the accused were sentenced to un~ergo I imprisonment for life which was the maximum tel:m of •imPrisrnm1nt for all the aforenoted offences; cumulative fine of Rs.30QOI- had also been ordered against each of the two appellants for t,hesaid offence and in default of payment of fine each appellant had to' undergo rigoro\ls imprisonment for six months. Accused Udai Pandey and Raj9ir had been convicted for the offence j.mder Section 412 o(the I IPC. They had both been sentenced to undergo rigorous imptisonm;ent i for a period of one year and to pay a fine of Rs.l 0001- in default of payment of fine to undergo simpt~ imprisonment for a period of one, ~,: month. Udai Pandey had alreadj;t undergone the sentence which had been impos,ed upon him. Ashokttumar, Shailesh and Rajbir are thus n" the ap~;ella~ts before this Court in t~e present three appeals. 2 rthe version of the prosecuti~n is that on the intervening night of:,08.3.2~02 ~ truck (bearing no.DL-lGA 6654) owned by Dharmender Mishral KUluar (PW-12) was loaded with metal/iron goods from a 526h~08, 86112008 & 7012009,'I:,Ii ~.:'i' ii 'I,yemtaih l er'Depot at 01\hla, Phase-:,IL The Jpoods wei-e \~by trmJ~po;rt®d tq,..... ".Mando'ligjQdowp of Chander Mohan CfW-1). Ramphal (deceflsed) was,,.,[,. an' employee of PW-1. Accused A~ok was the driver of the twck. ': ~ ~, Jamuna C co-accused since decla,red+~ proclaimed offender)~;yas thQ,. cleaner of the truck. A,ccused Shailes~ had tied the rope on the goods. · i ',!..which were loaded in the truck. After:the truck had be6n loaded it was taken to Dyala Ka Dharam Kanta, Old1la Phase-II fot weighing the.. gOOdS.!;:.e trhck did not reach its destination. On the following day It was fou Id abjmdoned near the ManJu Ka TIla. No person was found 111 'rJck was ina working condition; 13-14 jute bags containing,. 10:lkglofmetal scrap were found missing.. ffoAs Iwere made to trace the dtiver, cleaner and the helper of the It is Inot in dispute that the truqk had thereafter been taken back by P~-12 ~nd the remaining goods which had been.fol}nd in the truck belonging to PW-1 had been unloaded by him.

I. lodged by PW-l. It was to the effect that the truck of PW-12 containing.., i '. metal scrap be~ongingto PW-1 and dJ;"iven by Ashok on 08.03.2002 had not re~ched its destination; the truck was later found abandoned near riI:A~N}S.52612008, 861/2008 & 70/2009' P&ge 3 of 17 '"4.; c.. 'Hanu111an Mandk, Chandagi RCj,m Akhara; a,large aiil,ount ofmetal scriap w~s found niissing.· The driver, Cleaner and the helper were not foui~d in the trucr E~ploye~ of PW-l namely Ramphal was also missing. In ~pite of~pqliity, none could be traced. 5' ilItllwas Vl[1] this complaint (Ex.PW-1/A) that the rukka (Ex.PW-S/A) flas " rs1at1htdon the same day in the afternoon at[2].[1] 0 p.m: FIR under s' 3dsI407/34 IPe (Ex.PW-8/A) \Vas accordingly registered. The rukkal had not named accused Shailesh. It was in the statemeI:t of.Mang~l Sharma (PW-2) another driver on another truck in the Container Depot (which statement was record~d on 20.6.2012) that the name of Shailesh j had surfaced; he had tied ropes 00 the goods which were loaded iflto the truck of PW-12. Further version of fW-2 be,ing that he had last seen the deceased Ramphal in the company ())f driver Ashok and Shailerh at ihetirne when they were loading the goods in the truck.

6 Pursuant to the aforenoted statement of PW-2, accused Shailesh was arrested on the same day i.e. on 20.6.2002. His disclosure statement (Ex,PW-lIC) was recorded. The role of Asif Ali and Udai Pal1dey was revealed. It was to the effect that both the aforenoted pers0I1s along with the oth~r co..:accused had committed the murder of Ramphal and his Crl.A.Nos.526/2008, 861/2008 & 7012009 Page 4 of t[7].:.", ',',' ~: I, dead n Pande ~s thrown in the gi;thda n'al~'.ShailesH,' Asif Ali and Udai arrested ON the saIl;1e dayi.e.on 20.6.2002 from the koyala. \ ', ';! siding 'I at cDkhlaPhase-II vide memo IEx. PW-2/E, 2/F and 2/G ' I " respectively. They disclosed that they had killed Ramphal an~ thrown his body in a canal at Kalindi Kunj. 7 ' TIle dead boW was admittedly not 'recovered. As per the v,ersion ~fthe iJest\gatinJofficer SI Satish Kumar (PW-13) the SHO of police station l i sa,rita Viha,r in the course of inquiry had confinned tbat a de,ad !: "body,ad been:found around that period which was, unidentified,,· I, ' · ' '.. ' ~ photogniph and the clothes of the dead body had been prqerved. The brother of the deceased Ashok Kumar (PW-11) was asked t? identify O')\;,::, from the photograph and clothes as t~ whether this dead body was of Ramphal but he was unable to do so.

8 Pursuant to the disclosure statement of accused Udai Pandey (Ex.P.WTllID)lon 22.6.2002 he led the police paliy to a shop at Chara Mandi 1l<h.khirf. This was in the early morning hours at 5.00 a.m. Rajbir who w,a:the'lowner of the shop was apprehended. He was interrogated 'Ii II I.12002 his disclosure statement (Ex.PW:.lIH) was recorded. I ithathe had purchased certain aIiicles from Udai Pandey CrI.A. Nbs:S26bo08, 861/2008 & 70/2009 I' " I whkh wiere worth Rs.74,OOO/- ~but he had purc;hased the items" for I ", Rs.~6,OOO/-,. Pursuant thereto, ffGm the search of the; 'shop and on the identification of PW,.[1] a bora (bag) containing scrap material was seized vicie n~emo Ex. PW-11H. This case property was deposited.in the Malkhana.

11 In: the statement of the accused persons recorded under Section 313 of tl1e CrlP.C. they pleaded innocence. Rajbir in hisversi.on under I Section'a 13 <XLP.C. also pleaded innocence. Submission being that no recoverJfI h~dl be,en effected from his shop; this is a case of false I impli 12 06 etipence was led in defence; 13 IOn Behalf of the accused arguments have. been a'ddIessed at length~1 On tehalf of aCCfused Ashok arguments have been addressed by I Counsel Mr.Bupesh Narula, Advocate; Mr.Ajciy Verma addressed arguments on behalf of accused Shailesh. Mr.Ashok Kumar Gehlothas addresse~" arguments 011 behalf of the accused Rajbir. !tis pointed out Crl:A. Nosis261200S, 8611200S & 7012009 ~ ' ·c -..~, \.\ '-,that the evidence qua accused AShok andShaiJesh,:is 'only ';'the ~iJ:cumstance of last seen, which is shaky as is evident from the version f PW-2; he 'had admitted that he could not say whether Ramphal had accompanied Ashok in the truck; PW-2 had in fact goneofftos1eep at 11:00 PI1j~ and/what tra~spired after that WqS n.ot in his l<rtowledge. Even otherwis circurhstance of '-last seen' by itself would not be, suffic· VIew qeen f stain a conviction. Motive for the crime is wiped out in " 1. • rie clray f\l1ding that only 13-14 jute bags were missing; had ii case of planned dacoity, the entire metal scrap would have been hich was admittedly not so. On all counts, the,accused Ashok and S~aile$h are entitled to a benefit of doubt and a consequent I ' acquittal. Qua accused Rajbir, it is pointed out that when admittedly there w,ere tea shops in the sun-ounding area why no public witness was joined hL no; been explained; the ca'leproperty which Wa'l admittedly " I ', sealed;was in an open condition when exhibited. Recovery qua this versr01 is cl'early doubtful. Accused R.jbir is also entitled to a benefit of doubt and a consequent acquittal., ]4 Arguments have been refuted by the learned p;ublic pnDsecutor. It is pointed out that 'the judgment of the trial Court does not sufler from CrI.A. Nos526/2008, 861/2008 & 70/2009 Page 70f 17 '" jl",~-.,-.,-- '~ ity: IAll the links in the chain,of circumstance,s qua an the s stand coti1plete. 15 W[1] h~vt heard,the arguments of learned counsels for the parties: and pelfused lhe record. 16 T1his i$ admittedly a case of circumstantial evidence. There is no eye-witness.! Law on circumstantial evidence is clear; un1e,ss and until, " all the link:s in the chain of circumstances are complete a conviction carmot bel fou~ded.

17 In 10010 (2) SCC 583 Aftab Ahmad Anasari v. State of I ~ Uttaranchal etc. the Hon'ble Ape;lC COlili: has made the following '( °11 ·,1:1 observ l 'tions -;:'1n cases where evidence is of a circumstantial nature, the circumsfaJ1ces from which the conclusion ofguilt is to be drawn should, in the.first instance,, be fidly established. Each fact must be proved individuallY and only. I.thereafter the Court should consicfer the total cumulative eff~cI of all the provedfacts, each one ofwhich reinforces the conchision ojthk guilt. If the combined effect of all the facts taken together iSf conclusive in establishing " the guilt ofthe accused, the conviction would be justified e1Jen though it may be that one or more of t~ese facts by itse(flthemselves, is/are not deci'Sive. The circumstances proved shoirld be such as to. exclude eve,y:hyp[6];thesis except the one sought to b'eproved. But this does not mean that beA re the; prosecution case succeeds in a case of circumstantial· evz[1].ence I lone, it must exclude each and evelY hypothesis suggested by the ac [sed, howsoever extravagant and fanc[fitl it might be. There must be a ch fn of vidence so far complete as not to leave anyreasonabl,e groundfor COl clusi n consistent with the innocence ofthe accused and it must be such Crl.A. Nos 26/2008,86112008 & 70/2009 Page 8 of17;'1 'i. '... ' as to show th,at w~thin all human prof/ability, the ct,ct:nTLL;'itncrve b~e,J. dOl:!~ bytheaccl,Lsed. Where tlie various links. in a chain are in themselve;$ complete, then a false 'plea or' a false defence 'Fay be ~alleiznto aid only tq lend assurance to the Court.'; I,.

18 Tre CIrcumstances which have been aJleg~d and sought to be I l?foved 'by the p'FOs~cution against the app.ellants Ashok Kumar and Shailesh are t[6] the following effect: I !. i i. Ashok;Kumar was the driver of the truck which WflS owned. bY'PW-IL This truck was loaded with jute bags containing valuable scrap material which scrap belonged to PW-l and. had to be transpOlied from the Container Depot of Okhla Industrial Area to his office. The cleaner of the truck.:\ '. Jamuna was not traceable; he had been declared prodaimed offender. The helper was also not traceable. l~i /The role attributed to Shailesh is that he was tying a rope.I on the jute bags containing the metal scrap while loading it ' into the truck owried by PW-12. 19 IIi Aga~flst both the appellants Ashok Kumar and ShaUesh, PW-2

I. (Ma1~al S~arma) is a witness to the last seen. This circumstance of last.Crl.A. Nos.526/2008, 861/2008 & 70/2009 Page.~ oR17. i~ i,}. f< '\ ·:....,, I

I. s~en has been alleged against both the accused. and as pep the prosectltii::mthis circumstance is evident from the version ofPW-2,. I 20 PW-2 was the owner of another truck which was also parked. at the Container Depot, Okhla, Phase-II. On 08.3.2002. PW-2 was also loading goods in his truck. He had to go to Mandoli1for the delivery of,the goods. It was in his presence that the truck owned by PW-12 was also: bein~ loaded with metal scrap. As40k Kumar was the driver of the trucl[5]: m1~1 Jarluna (proclaill1ed offender) was hIS c1e31j1or, The goods to.' hander Mohan (PW-l) and Ramphal @ Guddu (the deceas,. wts the representative of PW-1. Appellant Ashok Kumar and PW-2 "*ere 0 leave the Contamer Depot together. Further verSIon of i PW:';2 ~eiilg jthat he had lastly seen the truck of PW-12 at aqout 11.00 i p.m.; AIShokf:1(umar was present there; so also Shailesh who was tying the goods with a rope. Thereafter he slept and woke up the following mommg,at 4.00 a.m.; by that time the truck had already left the Rremises·1 In one part of his cross-examination he admitted tlwthe cannot ten if Ramphal accompanied the appellant Ashok in his truck or not. CrJ.A.Nos.526/2008, 861/2008 & 70/2009 Page IOof17 \::. 'i~ } ~~....;

21. Ti'iai Judgepl~!has relied upon his testhnmiy'to' esta~lish the, 1 '~ll circumst~nce'flf la~een..

22 It «ppea s tJ!.~Jhetrial judge has ignored vital paTts in the v.ersion I:;. 1 ' nf PWrl~.Tes!imohy of a witness has to be read as,a whole: This' cmm ~lso n~t s hltthIS mCIdent had been reported 3Yz months after Its • 1 I I ' occurt~nce. That apart even in examination-in-chief itself PW-2 had stated Ithat 'he had seen the accused persons and the d~ceased in the. compary 0] one.anotherat 11.00 p.m. on the night 'of 08.3.200.[2] and ! I. 1 after that he had gone off to sleep. The deceased;vas a representati,ve of PW-1 and he had come to supervise the loading of the goods of'fW-1 '. i. \ for transborta~ion from the Contai~er Depot to Mandoli. From this I version it· cannot be gathered that Ramphalhad aocompanied Ashok i:. KumarI in his truck. Ramphal only having oonie to the site in a I supervisor capacity was not in natural course required to accompawy the, truck. So also Shailesh. Shailesh was neither a helper and nor a cleaner of the truck. His role (as assigned by PW-2) was 0111y oftying therope on the loaded goods. As per this version once this role "vas over there was no question of Shailesh accoiTIpanying the truck which was not his job; his job only being to see that the goods had been loaded; his role -Crl.A. NOSI.b6/2Q08, 861/2008 & 7012009. Page 11 of17 'I I·..~. I "1' ~~ndedo~ the 'l¢a'dihg 0(thegoo4s: He' also, in natUl;a( c0U1~se,' was nClt... required to accompany the truck. This pari of the t~stimol1J.Y ofPW-2:.' If wherein PW-2 admitted that he cannot teU if Ramphalaccompanied accused Ashok ip his truck or not has also been given a go-bye.

24. Learned trial judge has entered into an arena of imagiltation..~ Adrfiit~~dly:pW-2 had gone off to sleep after 11.00 p.m.; he woke up at

4.00 alhn'lhen the truck of PW-l had already left. Hbw in thes~ circum~taric s could it be presumed that Ramphaland Shi:tilesh who were birth o~herwise unrelated to the truck had accompanied the driver i Ashokkumhr and travelled in the truck. There was nothing to show that I I '... I ' either Ramphal or Spailesh had accompanied Ashok in the truch~.

25 In view of this version of PW-2 and as has been discussed supra, this CIrJ,nst~ceof last seen relied, upon by the trial Judge is liable to be dIsc~~dedl EVIdence of PW-2 does not establish any such,~ircums:t~c~ rgainst either aC.cused Ashok Kumar or accused Shailesh, This ciftnstFce qua both the accused is necessarily to be r~iected. Crl.A. Nos.S26/2008. 861/2008 & 70/2009 'II: ' " " ' "...... ", ':. ". ", ' '.,.,!,.. '., ' " '. •. '. " ' Apart frqin this cIrcumstance there, 1$ no other clfcumsI?-Bce 'av~Ilable with the prosecution against accused Ashok Kumar;:tl[1]:d Shailesh: I, 26 l1Che]ncident had admittedly occurred on 08.3.2002. It was nGt i-eportffd fot almost 3Yz months. The complaint was made by PW-l (empJ~ryer Jfthe deceased) on 20.6.;2002. An attemp(has been made by the pr1securon to show that Ex.PW~ I I/DA. was a complaint which had 'been lodged by PW-ll as, early a.s.o[9].3.2002 I.e. one day after the I J " i '" inc,ident and had been submitted to the Chowki In-charge duly signed by his emp~6yerl' A perusal of Ex.PW-ll/DA does not advance this submisslbn. It adinittedly does not bear the signature or thumb iI impress1tn o~ PW-11. That apart Ex.PW-I I1DA (which is a photocopy' of a +~U~\'~t) also does not show that it Iws been received by the Chowl<i fn-c~arge; there is no such endorsement or seal. Reliance by the trial judge on this complaint is also an illegality.

27 Dead body of the victim was not recovered. There is no doubt to the proposition that even in the absence of the recovery of the corpus deliciti the offence of murder may be established if there are other, I I connectirg pieces of evidence. As noted supra a dead b~dy around the 'same d~te (e. 08.3.2002 had been recovered which had remained CrI.A.Nos.526/2008, 861/2008 t- 70120q[9] Page 13 of17......:.: r".!,,'r:· "irnidtifjel~.The phOtograph of the dead bo<v had beeil shown.to the brother.of the d~ceased (PW-11) but he had failed to identify this dead', I 'body as that of his brother. This court is thus unaware ~s to whether,~. RamPhal' had Iactually died or is still alive. 28 • J'e tnjck was found lying abandoned on the following day i.e. r 09.03i2~62. lAs per the rukka (Ex.PW-lIA) some scrap material had been f.o l'nd Ilhissing fro111 the truck. This ma,terial belonged to PW~ 1. i ',, !. - I " As noted sup~a up to 20.6.2002 no complaint had been lodged by PW-l I ' I of these missing miieles. Complaint had been lodged 3Yz montl1s later. Ex.PW-1I[1] is a consignment note of theRajclPani Freight Carrier; this document reflects the actual amount of scrap which was loaded in the truck on the fateful night was 8690 kg. h.s per the deposition of PW-I r 0~1checl~i:ng the truck, on [he following day 13-14 bags ofscrap were " I ': ': found short which contained 500-600 kg metal. This was out of a total, 869;0 kg. Even presuming 600 kg were missing out of 8690 kg, the, ',, qu ntity would be 8090 kg which V{<is still in the truck. Possi~t1ity of dacoity for the purpose of taking away this valuable materi[I go ds as sought to be set up by the prosecution clearly becomes, dOUbt~l; iflthis was the motive on the part of the accused th~y would erJ.A. N9s.526/2008, 861/2008 & 70/2009 • ~ r I I, not have,. bee~ satisfied with 50.0-60.0· kg alone wb,enJhe,.; totalw~ight il~ I '. '\ " '. '.: 'I; I the trJl¢l was 14,tim~ moref,; The possibility that thetruc1<~'\had met with.... I..". ' an accidentarld had fallen ip,:o the bushes cannot be ruled out.