State v. Om Prakash Yadav @ Prem Alam

1. By the present Leave Petition filed under Section 378(1) of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) the State seeks leave to appeal against the judgment dated 25.09.2019 passed by Additional Sessions Judge-04, North West District, RohiniCourts, New Delhi, whereby the respondent (accused before the Trial Court) was acquitted of the offences punishable underSections393/302/411of the Indian Penal Code (hereinafter referred to as ‘IPC’).

2. The brief facts of the case, as stated by the learned Trial Court are reproduced as under: “…that on receiving of DD No.12A, SI Umesh Rana along with Ct. Prakash reached the spot where Sh. 2020:DHC:298-DB Mahadev Prasad Sahu met him and he gave his statement to the effect that he was permanent resident of VPO Kakardob, PS Loukahi, District Madhubani, Bihar and at present he was residing at G-30, 3rd floor, JJ colony, Shakurpur, Delhi as a tenant at the house of Gopal. He was working as a driver at Hisariya Transport, Lawrence Road, Delhi. His co-villager Surat Lal Sahu aged about 55-60 years used to reside at H. No. G-7, 2nd Floor, Shakurpur, Delhi and he was in the business of lending money in small amounts. He and some other persons resident of his village and his neighbouring village used to visit Surat Lal Sahu for sending money to their family members residing at their native villages. They used to give money to Surat Lal Sahu and in turn Surat Lal Sahu used to send money to their family members and their family members used to collect that amount from the native house of Surat Lal Sahu at Bihar. On 07.12.2012 at about 10pm, he received a phone call of BechanSahu S/o Surat Lal Sahu and he informed him that he is unable to contact his father on telephone and asked him to go to the house of his father to see him. He informed BechanSahu that at that time, he was at Rai Sonepat. BechanSahu telephonically contacted him number of times that night but his transport vehicle could not be unloaded in the night at Rai Sonepat as such, he returned Delhi and reached home next day morning i.e. on 08.12.2012 at about 09.30am. Thereafter, he called his landlord Gopal and then he and Gopal went to the house of Surat Lal Sahu i.e. G-7, 2nd floor, Shakurpur, Delhi. There they found a lock on gate of balcony and when they peeped through the main gate, they saw that the door of room was found bolted from outside and one pair of shoes belonging to Surat Lal Sahu were lying outside the gate of room and one mobile phone was also lying outside the gate of the room. After seeing this, landlord Gopal broke open the lock of the gate of balcony and also opened the bolt (Kundi) of the room and then they saw that Surat Lal Sahu was lying dead on the cot which was there in the said room and one towel of red color was found tied around his neck and specs were there on his eyes. Some coins and currency notes were lying near Surat Lal Sahu. He dialed number 100. On the basis of said statement, the present case vide FIR No. 478/12, u/s. 302 IPC was registered at PS Subhash Place.”

3. After completion of investigation, charge sheet was prepared under Section 392/302/411 IPC against the respondent. After hearing arguments on charge, vide order dated 21.05.2013, charge under Section 393/302/411 IPC was framed against respondent, to which the respondent pleaded not guilty and claimed trial.

4. In order to bring home the guilt of the respondent, the prosecution examined 40 witnesses in all. After completion of the prosecution evidence, statement of respondent has been recorded under Section 313 Cr.P.C., wherein he claimedhimself to be innocent and stated that nothing has been recovered at his instance. Case property has been planted upon him by the IO and he was forced by the police to sign some blank papers and printed proformas. He had not made any disclosure statement and he never led the police to any place at any point of time. He was not having any money transaction with the deceased.

5. Ms. Aashaa Tiwari, learned APP for the State contends thatthe impugned judgment dated 25.09.2019 was based on imagination, conjectures and surmises; that the view taken by the learned Trial Court is contrary to the facts of the present case and the established principle laid down by the Hon’ble Apex Court and that the prosecution had successfully proved its case against the respondents for the charged offences beyond any reasonable doubt.

6. The Ld. APP further contends that perusal of the impugned judgment reveals that the evidence; circumstantial and last seen theory coupled with recovery of case property and the scientific evidence in form of CDR and CAF, as surfaced during the trial has not been properly evaluated and appreciated and there is no contradiction in testimony of PW-40/ BholaPaswan, regarding recovery of case property at the instance of the respondent.

7. We have heard the learned APP for the State at length and carefully examined the impugned judgment alongwith the material available on record.

8. It is settled law that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the respondent. Hence it is imperative to refer to the circumstances which have been dealt by the learned Trial Court.

LAST SEEN THEORY

9. The learned APP for the state has stressed on the fact that the evidence on record proves that the deceased was last seen alive with the respondent at 7:30PM on 06.12.2012. This is an important link which points towards the guilt of the respondent. The learned Trial Courtin reference to the last seen theory has held as under: “…. In order to substantiate this circumstance, the prosecution has examined Pintu Kumar Yadav as PW[6] who has deposed that he used to send money to his parents and family members at his place of Bihar through deceased Surat Lal Sahu. On 06.12.2012 at about 7:30 pm, he reached the residence of Surat Lal Sahu i.e. H. No. G-7, 2nd floor, JJ Colony, Shakarpur, Delhi and handed over Rs. 20,000/- cash to him to deliver the same to his family members at his native place. When he reached the room of the deceased Surat Lal Sahu, accused Om Prakash was already present there. After delivering Rs. 20,000/- to Surat Lal Sahu, he made call on the mobile number of BechanSahuS/o Surat Lal Sahu and BechanSahu then had a talk with Surat Lal Sahu during the said call. On 07.12.2012, he again telephonically contacted Bechan Prasad Sahu and asked him if the said amount of Rs. 20,000/- has been delivered to his family members or not to which Bechan Prasad Sahu realized that his father’s mobile phone is switched off and he is unable to contact his father. On 09.12.2012, when he reached the PS, he came to know that someone had killed Surat Lal Sahu by strangulating his throat. The testimony of PW[6] with regard to making call to Bechan Prasad Sahu after delivering cash of Rs. 20,000/to deceased finds corroboration from testimony of PW[7] who deposed that on 06.12.2012 at about 7:30pm, one Pintu Kumar resident of district Madhubani, Bihar telephonically informed him on his mobile number 9661932245 from his mobile number 7428963029 that he had given Rs 20,000/- to his father. He also made him talk with his father on his said mobile and his father informed him that Pintu had given Rs. 20,000 to him. PW[6] was cross-examined by the ld. Defence counsel but nothing could be elicited from him to shake his creditworthiness. It has been proved on record that after 06.12.2012 deceased was nether seen alive nor contacted by any person. PW[7], son of the deceased has proved that on 07.12.2012, he tried to contact his father, but he could not contact him as both of his mobile phones were found to be switched off. PW[7] telephonically contacted his covillagers Mahadev/PW[5], Ramdev/PW-12, Vishnu Dev/PW13 and one Pramod who could not contact the deceased. In view of the above discussion, it has been proved on record that deceased was last seen alive in the company of the accused Om Prakash on 06.12.2012 at about 7:30pm.”

10. PW-6 in his examination-in-chief has deposed as follows: “When I reached at the room of Surat Lal Sahu, accused Om Parkash Yadav present in the court today (correctly identified) was already present at the room of deceased Surat Lal Sahu and he introduced himself to be resident of MansapurBalwa. After delivering Rs.20,000/- to Surat Lal Sahu, I made a call on the mobile number of BechanSahu s/o Surat Lal Sahu and BechanSahu then had a talk with Surat Lal Sahu during said call. I do not remember the complete telephone number of BechanSahu. In his cross-examination, PW-6 has deposed that: I had visited the room of Surat Lal Sahu for the first time on 06.12.2012. Vol. He was known to me being the resident of a village near to my village. Earlier, I used to deliver money to Surat Lal Sahu for sending the same to my family members at Kalu Hotel, Lawrence Road after telephonically contacting him as he used to roam in the area of Lawrence Road.”

11. PW-7 in his examination-in-chief has deposed as under: “On 06.12.2012 at about 7.30pm, one Pintu Kumar Yadav s/o Amrender Yadav r/o Village SiswaBadahi, PS Phul Paras, District Madhubani, Bihar contacted me on my mobile bearing No. 9661932245 from his mobile number 7428963029 and informed me that he had given Rs.20,000/- to my father which my father will deposit in my account and further asked me to hand over the said amount to his family members after withdrawing the same from my account. He also made me talk with my father on his said mobile and my father informed me that Pintu had given Rs.20,000/- to him. I was driving motorcycle at that time, as such, I told my father that I will talk to him later. After reaching home, I took dinner and thereafter, I went to sleep. Next day i.e. on 07.12.2012, I tried to contact my father on his above mentioned two mobile phones but his both the mobile phones were found switched off, as such, I could not contact him.”

12. The perusal of the testimony of PW-6 reflects that the accused was present at the room of deceased Surat Lal Sahu and he introduced himself to be resident of MansapurBalwa. The said fact finds corroboration from the testimony of PW-7 who has deposed that“he also made me talk with my father on his said mobile and my father informed me that Pintu had given Rs.20,000/- to him.” Hence, from the aforesaid discussion, it is evident that the deceased was with the respondent before the commission of the crime and the contention of the appellant as to the last seen theory sustains.

RECOVERIES AT THE INSTANCE OF THE ACCUSED

13. The next contention of the learned APP for the state is related to the recovery of the Aircel SIM (Ex. 18/P[1]), mobile phone Nokia 1280 (Ex. 18/P[2]), Mobile Phone Nokia 1200 (Ex.18/P[3]), Samsung mobile phone 5302, cash of Rs. 15,000/- and bag (Ex.19/P[1]) at the instance of the accused on which,the learned APP has argued that the recoveries have been duly corroborated by the prosecution witnesses. In this regard, we deem it necessary to refer to the testimony of PW- 40 (ASI BholaPaswan) who is a witness to the recovery at the instance of the accused.PW-40 in his examination-in-chief has deposed as follows: - “On 24.12.2012, I was posted at PS Town Chhapra, Bihar as ASI. On that day, SI M.P. Saini along with police staff of Delhi police and accused Om Prakash Yadav came to PS Town Chhapra. I joined the investigation with SI M.P. Saini and we all went to H.NO. 294-L. Village Karim Chak, where one lady namely Afreen @ NaistaParveen met us and she had produced one SIM card to SI M.P. Saini. IO prepared the pulanda of said SIM card and sealed it and thereafter seized the pulanda vide seizure memo Ex.PW18/A, bears my signature at point C. IO recorded the statement of Afreen. Thereafter, accused led us to the house of Maulvi at ImliMohalla, Karim Chak, where one lady namely AjmeriKhatoon met us who handed over one mobile phone make Nokia 1200, to the IO. IO prepared pulanda of said mobile phone, sealed the same with the seal of MPS and seized it vide seizure memo Ex.PW19/C. IO recorded the statement of AjmeriKhatoon. Thereafter, from the said house, accused Om Prakash took out one mobile phone make Nokia 1280 from a black color bag. IO checked the bag and it was found containing one mobile phone make Samsung and cash worth Rs.15,000/- and invoice of Samsung mobile phone. IO prepared the separate pulandas of said articles, sealed the pulandas with the seal of MPS and seized them vide seizure memos already Ex.PW19/A, Ex.PW19/B, Ex.PW19/D and Ex.PW19/D, all signed by me at point C. The invoice of Samsung mobile is already Ex.PW3/A. IO recorded my statement. Accused Om Parkash Yadav is present in the court today, (correctly identified). I can identify the case property if shown to me. At this stage, MHC(M) has produced one cloth pulanda bearing particulars of present case and having court seal, same is opened and it is found containing, one plastic box which is found containing one SIM card of AIRCEL bearing No. 89912505121148192705. The SIM is shown to the witness and witness correctly identifies the same, which was handed over by Ms.Aafreen @ NaistaParveen to the IO in his presence. The same is already Ex.18/P-1.” In his cross-examination he has stated: “From the house of Afreen, one SIM card and one black colour bag containing mobile phones, cash and invoice were recovered at the instance of accused. We had remained at the house of Afreen for about 2-2½ hours. Court observation: It is observed that witness is not answering and responding properly to the questions raised by the defence counsel. It is incorrect to suggest that I have no knowledge about this case or that I have not joined the investigation of this case. Four-five police officials of Delhi police had come to PS Chhapra Town. I along with said Delhi police officials left PS Chhapra Town at about 5.00 pm for going to the house of Afreen. My statement was recorded by the IO at the house of Afreen. IO had recorded the statement of other witnesses regarding the investigation conducted at the house of Afreen at Chhapra. We had visited the house of Afreen only once. We remained at the house of AjmeriKhatoon for about 15-20 minutes. Thereafter, we left for PS.”