Narender Kumar v. State

16. PW-1, who is the registered owner of the Tata Sumo car bearing registration number HR 26 J 2644, deposed in his examination-inchief that on 11.08.1999, Mahinder Verma (PW-3), who was the owner of Verma Properties & Tour Travels at Hari Nagar, had booked this vehicle for a trip to Haridwar. On the same date around 1-1:30 PM, he had telephonically called the deceased, Kartar Chand and informed him about the said trip. He further deposed that the deceased came to his house and he asked him to clean the vehicle. In the meanwhile, PW-3 again called PW-1 stating that the party who had hired the vehicle was present in the office and waiting for the vehicle. He deposed that after receiving this phone call, he handed over the keys of the Tata Sumo car to the deceased and directed him to reach PW-3’s office situated in Hari Nagar whereupon the deceased proceeded to Hari Nagar. PW-1 deposed that he had telephonically confirmed from PW-3 that the vehicle along with the deceased had reached the latter’s office in Hari Nagar and had then left for Haridwar with the persons who had hired the Tata Sumo car.

17. PW-25, Sh. S.K Gupta, Metropolitan Magistrate in whose presence the TIP was to be conducted, deposed that “On 16.09.1999 I was working as M.M. Delhi. I was link M.M. to Smt. A.B. Chandana, ` M.M. Delhi. An application for TIP of accused Narender @ Pappu and Ashok Kumar @ Baigan was marked to me by Smt. A.B. Chandana, M.M. Delhi. Accused were produced in unmuffled face by the IO and accordingly TIP was fixed for 18.09.1999 at Central Jail Tihar, Delhi.”

18. Here, it would be prudent to advert to the decision of the Supreme Court in Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175 where the evidentiary value of a TIP was explained: “9. As was observed by this Court in Matru v. State of U.P. (1971) 2 SCC 75 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain[(1973) 2 SCC 406) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity.”

19. In Dastagir Sab v. State of Karnataka, (2004) 3 SCC 106, the Supreme Court explained the effect of not holding a TIP “ No law states that non-holding of test identification parade would by itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case, would depend upon the facts and circumstances of each case.” `

20. It is clear from the ratio in Abdul Waheed Khan’s case and Dastagir Sab’s case that TIP is not substantive evidence but only corroborative and not holding the same would not vitiate the prosecution’s case completely. In the absence of a TIP, the Court is to sift and weigh the evidence to establish the identity of the accused. In the instant case, PW-3 had seen the appellants while in custody of the police before the TIP. The appellants were produced before Ld.MM (PW-25) in unmuffled faces. Hence, no adverse inference can be drawn against the appellants for refusing to participate in the TIP.

21. PW-2 deposed that on 11.08.1999, at about 2 pm, she had received a phone call from Verma Travels that the Tata Sumo car was booked for a trip to Haridwar and her brother (the deceased) went to PW-1 and from his place, he left for Haridwar at 4 pm. She stated that her brother was to return on 12.08.1999. PW-8, Shri Atam Prakash, who is the husband of PW-2 and brother-in-law of the deceased deposed on similar lines as PW-2. He also made a complaint dated 16.08.1999 (Ex.PW8/A) to the police.

22. The testimony of PW-3 with respect to the booking of vehicle no. HR 26J 2644 by A-1, A-2 and A-3 for a trip to Haridwar, went unrebutted and unchallenged in his cross-examination. His version of the events is corroborated by the testimony of PW-1 who had deposed that on 11.08.1999, the Tata Sumo car was booked by PW-3 to go to Haridwar and this car was sent to PW-3’s office along with the deceased as the driver. PW-3’s testimony is also corroborated by PW- 2 who deposed that she had received a call from PW-1 on 11.08.1999 ` and he informed her that the Tata Sumo car was booked by Verma Travels owned by PW-3 to go to Haridwar on 11.08.1999 and her brother (the deceased) went to meet PW-1 from where he went to Haridwar. The testimony of PW-3 establishes the presence of the accused A-1, A-2 and A-3 with the deceased the last time he was seen alive on 11.08.1999. The above incriminating evidence was put to the accused in their statement under section 313 of the Code of Criminal Procedure, 1973 (‘CrPC’) to which they chose to give no explanation. Recovery of car

23. ASI K.K Singh (PW-20), Ct. Mukesh Kumar (PW-21), SI Satish Kumar Rai (PW-23) and SI Udai Veer Singh (PW-27) were the police officials who were present when the said Tata Sumo car was intercepted and recovered from the possession of A-1 and A-2. All these witnesses deposed on similar lines stating that on 16.08.1999, a special team was constituted as information was received that some criminals were looking to sell a stolen Tata Sumo car in District Baraut. Pursuant to receiving this information, they set up a trap near J.P Public School, Baraut. After some time, the said Tata Sumo car came and the police party managed to stop the vehicle at the speed breaker. They further deposed that the occupants of the vehicle fired two bullets at them but they saved themselves from being hit by the bullets and they overpowered the occupants of the said car. They further deposed that A-1, A-2 and Sushil (a juvenile) were taken into custody from the said car. A-1 and A-2 were correctly identified by PW-20, PW-21, PW-23 and PW-27 and even in their cross- ` examination all these witnesses stood firm in their narration of essential facts and sequence of events.

24. The incriminating evidence with respect to the interception of the said Tata Sumo car was put to A-1 and A-2 in their statement under section 313 of the CrPC to which they simply denied. The testimony of PW-20, PW-21, PW-23 and PW-27 established the fact that on 11.08.1999, A-1 and A-2 were found in possession of the said Tata Sumo car which was hired and used by them to travel to Haridwar with the deceased as the driver. Recovery of the dead body

25. A-1 and A-2 got the dead body of the deceased recovered on 17.08.1999, pursuant to their disclosure to Sh. Prabal Pratap Singh, Station Officer, P.S. Baraut (PW-28) to the effect that they had killed the driver Kartar Chand (deceased) at Baraut with the help of a rope and screw driver and had thrown the dead body in the Rajwaha. PW- 28 deposed that A-1 and A-2 took the police party to Rajwaha where after some search, the body could not be found. He further deposed that A-1 and A-2 took the police party along the side of the Rajwaha for about 8 Km and when they reached village Bari Nangla Puthi, the body was found at the Jhal of Rajwaha, and A-1 and A-2 entered the Rajwaha and took out the deceased’s body. He stated that the Recovery Memo was prepared by the Police personnel posted as PS Manoli, District, Baghpat as the place of recovery was within their jurisdiction. He proved the Recovery Memo (Ex.PW13/E) of the body of the deceased which bears his signatures at point ‘A’ and of A-1 and ` A-2 at points ‘C’ and ‘D’ and of SI Pradeep Kaushik at point ‘B’. He deposed that the dead body was recovered on 17.08.1999 and the Panchnama was done by officials of PS Manoli District, Baghpat as the place of recovery was within their jurisdiction. He further deposed that the zero FIR (Ex.PW28/A) was registered and the report (Ex.PW28/B) was sent to the SHO, Hari Nagar, Delhi There is no cross-examination on the aspect of the disclosure made by A-1 and A- 2 to PW-28 and the recovery of the dead body from the Jhal of Rajwaha at their instance on 17.08.1999. PW-16, HC Vijender proved the DD No. 13A (Ex.PW13/C) recording the telephonic information received from P.S. Baraut that the hired Tata Sumo no. HR 26J 2644 had been recovered in the jurisdiction of P.S. Baraut and its’ driver had been killed.

26. The panch witnesses, Desh Pal (PW-4), Narinder (PW-5), Pramod Kumar (PW-6) and Jai Dev (PW-7) did not support the prosecution’s version about the Panchnama (Ex.PW4/A) and deposed that their signatures were taken on blank papers and they had not seen the accused persons at the time of signing these papers. The testimony of PW-4, PW-5, PW-6 and PW-7 alone does not mean that the entire version of the prosecution should be thrown in the bin. Panchnama is a process which is formalized after the recovery. The disclosure made by A-1 and A-2 and the recovery of the body of the deceased, pursuant to their disclosure statements from the canal has been well proved by PW-28. This Police Officer (PW-28) has proved the Recovery Memo (Ex.PW-13/E) pertaining to the recovery of the body of the deceased. ` The appellants could not cause any dent in the cross examination of PW-28 on recovery of the body of the deceased and there is no reason as to why the version given by the police officer who is a public servant should not be accepted. In criminal cases, it is not unusual for the panch witnesses to turn hostile. But that cannot vitiate or wash away the testimony of the Recovery Officer. This is the settled position in law laid as down by the Supreme Court in Modan Singh v. State of Rajasthan, (1978) 4 SCC 435 where it was held that: “9. On behalf of the defence it was submitted that the seizure witnesses were men of status in the village and their not supporting the recovery would be fatal to the prosecution. We would rather not place any reliance on the witnesses who attested the seizure memo. If the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version.” (Emphasis added)

27. The above principle was re-iterated by the Supreme Court in Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 where it was held that: “10. We shall first deal with the plea as to whether evidence relating to recovery is acceptable when nonofficial witnesses did not support the recovery and made departure from the statements made during investigation. In Modan Singh v. State of Rajasthan (1978) 4 SCC 435: it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be ` rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was taken in Mohd. Aslam v. State of Maharashtra (2001) 9 SCC

362. It was held that even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated.” Defence witnesses

28. The accused had examined Sh.. Giani Ram, (DW-1) father of the accused A-2. He deposed that the police had taken his son (A-2) in custody on 14.09.1999, on the pretext of interrogation. When A-2 did not come home on that day, the next morning he went to the P.S. where he was told that his son had been taken to Baghpat and after 3 days he came to know that his son had been arrested in a case. He further deposed that he had lodged a complaint with the S.S.P. after the police could not locate his son. A photocopy of the said complaint is Mark-‘A’. This complaint was never exhibited but was only marked as Mark ‘A’ for identification. There is no evidence to prove that this complaint was received by the office of SSP or in any police station or it was entered in the Receipt/Dispatch register. DW-1 did not state that he had ever sent any telegram to the SSP. However, in his crossexamination, learned APP for the State filed a copy of the telegram (Ex.DW1/P-1) to confront him that whatever he had deposed, was not recorded in the telegram. DW-1 denied the suggestion that he had sent the telegram and made a complaint to prepare a defence for his son or that he did not produce A-2 at the Police Post. `

29. The copy of the telegram mentions that DW-1 who is the father of A-2, took him to P.P. Tateri as the police wanted to interrogate him; A-2 did not come back and the police might implicate him in a false case. It is not proved by A-2 as to when was the telegram in fact transmitted and from which post office and when was it received in the office of the SSP, Baghpat. DW-1 never stated that he had sent a telegram. He only stated that he had lodged a complaint with the SSP, copy whereof is Mark-A and bears his thumb impressions. Interestingly, in his statement under Section 313 Cr.PC, A-2 explained that “My father has produced me before the Incharge Tateri, Distt. Baghpat Police Post on 14.8.1999 for interrogation. My father Gyan Chand also made complaint with SSP Meerut on 20.08.1999.” Thus, A-2 himself admitted the fact that his father had lodged a complaint only on 20.08.1999, i.e. four days after his arrest. A-2 never claimed that his father (DW-2) sent any telegram.

30. DW-2, who is the father of A-1, deposed that on 14.08.1999, two police men had come to his house and had taken A-1 on the pretext of interrogating him. On 17.08.1999, he came to know that A- 1 was arrested after an encounter with the police.

31. A-1 and A-2 were asked about their arrest on 16.08.1999 at the time of recording their statement under section 313 of the CrPC but they did not offer any explanation and simply denied the question. They did not claim that they were arrested on 14.08.1999. Neither the deposition of DW-1, nor that of DW-2 inspires confidence. Moreover, the deposition of DW-1 and DW-2 is not corroborated by oral or ` documentary evidence and they are only interested witnesses being fathers of A-2 and A-1 respectively. A-2 claimed in his statement that his father (DW-1) had lodged a complaint with the S.S.P. on 20.08.1999 which fact was not deposed by DW-1. More important is the fact that A-1 and A-2 never put such a defence of their arrest on 14.08.1999, in the cross-examination of the relevant material prosecution witnesses, PW-20, PW-21, PW-23 and PW-27, who recovered the Tata Sumo car and apprehended A-1 and A-2 on the night intervening 16/17.08.1999. Such a defence was also not put to PW-28 to whom the disclosure was made by them pursuant to which the dead body of the deceased was recovered on 17.08.1999. Here, we would benefit from the observation of the Supreme Court in Sarwan Singh v. State of Punjab, (2003) 1 SCC 240, where it was observed that “It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in crossexamination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above.” Analysis

32. The present case is based on circumstantial evidence. The Supreme Court in Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516 re-iterated the principles to be followed while basing a conviction on circumstantial evidence as under: “(1) There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must ` be such as to show that within all human probability the act must have been done by the accused. (2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. (3) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. (4) On the availability of two inferences, the one in favour of the accused must be accepted. (5) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.”

33. In the present case, the chain of events starts on 11.08.1999, with A-1, A-2 and A-3 hiring the Tata Sumo car from PW-3. PW-3 identified the accused, A-2 and A-3 as being the ones who had come inside his shop to book the Tata Sumo car and he testified that A-1 had also come with them but he remained outside his shop. PW-3 remained consistent throughout his testimony and nothing contradictory came out from his cross-examination thereby establishing the presence of the accused A-1, A-2 and A-3 with the deceased when he was last seen alive on 11.08.1999.

34. The said Tata Sumo car was intercepted and A-1 and A-2 were apprehended on the night intervening 16/17.08.1999. PW-20, PW-21, PW-23 and PW-27 stood firm in their testimony thus establishing the presence of the accused, A-1 and A-2 on 16/17.08.1999 in the Tata ` Sumo car that the deceased had driven from Delhi to Haridwar. A-1 and A-2 made disclosures to PW-28 that they had killed the deceased with the help of a rope and screw driver and had thrown the dead body in the Rajwaha. Both of them took PW-28 to the Rajwaha and at village Bari Nangla puthi, they got recovered the dead body of the deceased from the Jhal of the Rajwaha vide Recovery memo (Ex.PW13/E).

35. PW-9, Dr. P.K Sharma conducted that post mortem on the body of the deceased on 18.08.1999 and deposed that the deceased died because of asphyxia due to strangulation and the time since death was about 7 days thereby fixing the day on which the deceased was killed as around 11.08.1999, the date on which the deceased was last seen alive in the company of A-1, A-2 and A-3. The law relating to ‘last seen’ evidence was elaborated by the Supreme Court in State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 where it was held that: “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to ` offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain.”

36. Following the ratio in Kashi Ram’s case (supra), in the present case, the time of death is so proximate to the deceased last seen alive with A-1 and A-2 that the onus of proof shifts upon them to explain how they had continued to occupy the Tata Sumo car without the deceased driver. This onus was admittedly not discharged by them during their statement recorded under section 313 of the CrPC or in their evidence. The effect of not explaining the incriminating circumstance of being last seen with the deceased proximate to the time of his death has been elucidated by Supreme Court in Ashok v. State of Maharashtra, (2015) 4 SCC 393 where it was held that: “12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section ` 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt.” (emphasis added)

37. Recovery of the dead body at the instance of the accused, A-1 and A-2 on 17.08.1999 is the final link in the chain of circumstances. At this juncture, it would be beneficial to allude to the decision of the Supreme Court in Anuj Kumar Gupta v. State of Bihar, (2013) 12 SCC 383, where it was observed as follows: “18. In such circumstances, in the absence of any convincing explanation offered on behalf of the appellant-accused as to under what circumstances he was able to lead the police party to the place where the dead body of the deceased was found, it will have to be held that such recovery of the dead body, which is a very clinching circumstance in a case of this nature, would act deadly against the appellant considered along with rest of the circumstances demonstrated by the prosecution to rope in the appellant in the alleged crime of the killing of the deceased. Therefore, once we find that there was definite admission on behalf of the appellant by which the prosecuting agency was able to recover the body of the deceased from a place, which was within the special knowledge of the appellant, the only other aspect to be examined is whether the appellant came forward with any convincing explanation to get over the said admission. Unfortunately though the above incriminating circumstance was put to the appellant in the Section 313 CrPC questioning where he had an opportunity to ` explain, except a mere denial there was no other convincing explanation offered by him.”

38. As discussed in the preceding paras, the testimony of PW-28 went unchallenged in his cross-examination. The incriminating circumstances relating to the recovery of the dead body of the deceased were put to the accused to which they did not offer any reasonable explanation. As explained in Anuj Kumar Gupta’s case (supra), mere denial is of no use and an adverse inference has to be drawn from such a denial. The contention of the defence counsel that the testimony of the official witnesses cannot be relied upon, is misconceived and not in line with the judgment of the Supreme Court in State of Kerala v. M.M. Mathew, (1978) 4 SCC 65 where it was held that: “It is true that courts of law have to judge the evidence before them by applying the well-recognised test of basic human probabilities and that some of the observations made by the Sessions Judge especially one to the effect that the evidence of officers constituting the Inspecting Party is highly interested because they want that the accused are convicted” cannot be accepted as it runs counter to the well-recognised principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.”

39. An analysis of the evidence shows the presence of A-1 and A-2 during the entire sequence of events, from the point of booking of the ` Tata Sumo car and recovery thereof to the point of recovery of the dead body at their instance, pursuant to their disclosure statements.

40. A-3 was not present when the car was intercepted and recovered. The dead body had already been recovered at the instance of A-1 and A-2 before A-3 was arrested. The disclosure statement (Ex.PW29/A) made by A-3 when he was arrested from Sagarpur bus stand, Delhi on 25.08.1999, did not lead to any recovery. Hence the same is inadmissible in view of sections 25 and 26 of the Indian Evidence Act, 1872. Therefore benefit of doubt has to be extended to A-3. In the light of the facts and circumstances of the case, we acquit the accused, A-3 in Crl.A. No.439/2004. A-3’s bail bond and surety bond stand discharged. He will fulfill the requirements of Section 437A Cr PC to the satisfaction of the trial Court at the earliest.

41. Crl.A. No.670/2004 and Crl.A. 877/2005 are dismissed. The conviction and sentence of A-1 and A-2 are upheld. The bail bonds and surety bonds furnished by A-1 and A-2 are hereby cancelled. A-2 shall surrender before the trial Court within one week, failing which the IO concerned will immediately take steps to have him arrested and sent to custody for serving out the remainder of the sentence awarded to him. The Trial Court record be returned together with a certified copy of this judgment.

42. The three appeals are disposed of on the above terms.

43. We find that the Trial Court has not awarded any compensation to the legal representatives of the deceased under section 357 of the CrPC. In the meanwhile, section 357A CrPC has been incorporated in ` the statue w.e.f. 31.12.2009. Pursuant thereto, Government of NCT of Delhi has framed the Victim Compensation Scheme. We therefore direct the Delhi State Legal Services Authority (‘DLSA’) in terms of section 357A (5) of the CrPC to forthwith undertake an inquiry and within two months, award appropriate compensation. He shall ensure disbursal of the compensation to the family of the victim, in terms of the said scheme. For this purpose, a certified copy of this judgment shall be delivered forthwith to the Secretary, DLSA with a further direction to submit a compliance report to the Court within three months from the date of receipt of a certified copy of this judgment. If no such compliance is forthcoming within the stipulated time, the Registry will place a note before Roster Bench for further directions.

(VINOD GOEL) JUDGE (HIMA KOHLI)

JUDGE MAY 31, 2019