* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 06.04.2011
+ Crl. Appeal No.762/2008
Mohd. Javed .... Appellant
Through: Mr.Ashish Kumar Das, Advocate.
Versus
The State (Govt. of NCT of Delhi) .... Respondent
Through: Mr.Jaideep Malik, APP for the State.
AND
+ Crl. Appeal No.932/2008
Mohd.Akhtar .... Appellant
Through: Ms.Anu Narula, Advocate.
Versus
The State (Govt. of NCT of Delhi) .... Respondent
Through: Mr.Jaideep Malik, APP for the State.
AND
+ Crl. Appeal No.1000/2008
Manoj Kumar Singh .... Appellant
Through: Mr.Sunil Tiwari and Mr. Amar Nath
Saini Advocate for the appellant.
Versus
The State (Govt. of NCT of Delhi) .... Respondent
Through: Mr.Jaideep Malik, APP for the State.
AND
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 1 of 71
+ Crl. Appeal No.685/2009
Ikramul Haq @ Vishal .... Appellant
Through: Mr. A.J.Bhambani Advocate for
Appellant.
Versus
The State (Govt. of NCT of Delhi) .... Respondent
Through: Mr.Jaideep Malik, APP for the State.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE S.L.BHAYANA
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported in YES
the Digest?
ANIL KUMAR, J.
1. These above noted appeals arise from the judgment dated 25th
August, 2008 in session case no. 93 of 2003 arising from FIR No. 23 of
2000 PS Nand Nagri u/s 364 A/302 /34 of IPC titled State Vs Manoj
Kumar Singh, Mohd Akhtar; Mohd Javed, Ikramul Haq and Manoj
Kumar @ Manju s/o Sh.Dhanpal convicting accused Manoj s/o
Bindeshwari, Ikramul Haq, Akhtar and Javed u/s 120 B,/364A r/w
120 of IPC and section 302 of IPC r/w 120 B of IPC and sentencing
them by order dated 5th September, 2008 to undergo life sentence with
fine of Rs.5000/- each u/s 120 B of IPC and in default of payment of
fine to undergo further simple imprisonment of three months; Life
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 2 of 71
imprisonment with fine of Rs.5000/- each and in default to undergo
simple imprisonment for three months u/s 302 r/w section 120 B of
IPC and life imprisonment with fine of Rs.5000/- each and in default to
undergo simple imprisonment for three months u/s 364A r/w section
120 B of IPC.
2. The case of the prosecution in brief is that on 3rd January, 2000
the deceased, Shokeen Pal, s/o Jagbir Singh resident of H No. 5, Ganga
Enclave, Johari Pur Road, opposite Satyam Cinema Loni, UP, along
with his uncle Sh.Varinder Singh had left the house at about 11 a.m for
his transport office which was run by the deceased at Apsara Border in
a white Maruti Car No. DL 5C B 2353. However Varinder Singh
returned home alone and slept with Jagbir Singh, father of the
deceased. On 4th January, 2000 the father of the deceased enquired
about the whereabouts of his son. Then his uncle Shr. Varinder Singh
disclosed that on the previous day, around evening time he along with
Shokeen Pal and Akhtar had been going to the Transport Office in the
car of Shokeen Pal. The car was stopped at Loni Morh Flyover at about
7 p.m by Akhtar. At that time Shokeen Pal told his uncle Sh.Varinder
that he would return home after getting some work done for Akhtar and
that he, Sh.Varinder, should go home and have his meal. Thereafter the
deceased and Akhtar went away in the car. The deceased, however did
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not return home and despite all efforts by the family members Shokeen
Pal could not be traced out.
3. On 6th January, 2000 at about 12:15 p.m. the deceased’s family
received an anonymous call on their telephone No. 2812127 and the
caller asked Jagbir Singh, father of Shokeen Pal who had been missing,
to give the phone to Babli, wife of the deceased. When Jagbir Singh
asked if he could take a message, the caller on the other side again
stated that he wanted to speak to Babli, upon which Jagbir Singh told
him that he is the father, and the caller kept the phone down. On the
same day, at about 12:30 p.m. Ranjit Kumar Singh, Manager of the
transport company run by deceased, telephoned Sh.Jagbir Singh at his
house and told him that he wanted to speak with Babli. He disclosed
that he had received an anonymous call at Apsara Border Transport
Office stating that Shokeen Pal had been kidnapped and his vehicle No.
DL 5C B 2353 was parked at Pahar Ganj Parking. Caller also demanded
that if they wanted Shokeen Pal alive then they should give two `petties’
of Rupees 10 lacs each to some Hundi wala at Lahori Gate Naya Bazar.
He also gave the direction/guidance for reaching that Hundi wala i.e
from Lahori Gate crossing, one should take the way to Khari Bawoli and
then to Hundi Wali gali opposite Naulakha Soap and thereafter should
get further information there at an apartment at the 3rd Office. On the
same day, a complaint regarding the missing of the deceased and the
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demand for ransom was lodged at PS Sahibabad. At 8:15 pm another
call was received by the sister of the deceased, Smt. Santresh and the
caller had informed her to give the amount demanded at the above
address by 1 p.m. on 7th January, 2000, otherwise he threatened that
Shokeen Pal, would be killed. Many such calls for the money were
received by the family of the deceased right up to 9th January, 2000.
4. On 11th January, 2000 Sh.Jagbir Singh, father of Shokeen Pal
who had been kidnapped, came to the office of the Anti Extortion cell
Crime Branch, R K Puram along with his son-in-law Basant and
nephew Sudhir Kumar and gave an application, making a formal
complaint regarding the abduction of his son Shokeen Pal for ransom.
On 12th January, 2000 Sudhir Kumar along with the police officers
went to the railway station, New Delhi at the parking lot where the
white colour Maruti car No. DL 5C B2353 belonging to the deceased
was parked which was seized. Thereafter several teams were deployed
at different places for tracing out Shokeen Pal and the telephone of the
complainant was also kept under observation. During investigation one
Munna Khan @ Matloob Ahmad Khan, business partner of deceased,
disclosed that he had learnt that Shokeen Pal and Akhtar of Motihari
went missing since 3rd January, 2000. Akhtar was also the neighbor of
Munna Khan. On enquiring from STD booths it was revealed that
Amjad brother of Akhtar was talking to him on the Mobile
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no.9810184352. On 13th January, 2000, SI Pyare Lal obtained the call
list of the above number from the Airtel Office and found that few calls
from the above number were made to Motihari and few calls were made
to a mobile no. 9810174266. The call list of the later number was also
obtained and it was found that many calls from this number as well,
were made to Motihari.
5. On getting this revelation SI Suresh Kumar along with the staff
and relevant documents went to Motihari Bihar to enquire about Akhtar
and the others. SI Suresh Kumar on the basis of phone details
stipulating the calls made by Mukesh Kumar to Mohd. Akhtar, Manoj
Kumar and the phone no. 2812127 installed at the deceased’s house,
joined Mukesh Kumar in the enquiry. Mukesh Kumar s/o Ram
Chander disclosed that he along with his own co-villagers Manoj,
Akhtar and Javed conspired to abduct transporter Shokeen Pal and in
pursuance of this conspiracy on 3rd January, 2000 Manoj, Akhtar,
Javed and Vishal abducted Shokeen Pal and kept him as a captive in a
tenanted accommodation. He further disclosed that while tying up
Shokeen Pal, Javed sustained a bullet injury and he had come for his
treatment at Motihari. Pursuant to disclosure statements made on 23rd
January, 2000 SI Suresh Kumar arrested Mukesh Kumar and Javed
from the District Motihari, Bihar and produced them before the learned
CJM Motihari. Their transit remand was obtained. On receiving all the
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information from SI Suresh Kumar, SI Pyare Lal conducted a raid with
his staff on 27th January, 2000 at Tukmeer Pur Extension Karawal
Nagar, where accused Manoj, Mohd. Akhtar and Ikramul Haq @ Vishal
were over powered and interrogated.
6. During investigation it was disclosed that accused Manoj Kumar
son of Bindashwari Prashad suffered losses of 17/18 lacs in
September/October, 1999 as his Ball Barings were seized at Bihar
which were smuggled. Mohd. Akhtar too was under economic
constraints as he had gotten two trucks financed from KGA Finance
Company on the personal guarantee of Shokeen Pal, but due to non-
payment of the installment, the trucks were seized by the Finance
Company and thereby Mohd. Akhtar suffered huge losses. On October,
1999 Javed introduced Mohd. Akhtar to Manoj and in November, 1999
about three/four days prior to Diwali, Javed, Manoj, Akhtar and
Mukesh met at the rented accommodation of Mukesh at Motihari,
where the conspiracy was hatched. Manoj instructed Mukesh that when
Shokeen Pal would be abducted in Delhi they would contact Mukesh on
the phone and Mukesh was to raise the ransom demand of Rs.
20,00,000/- from the deceased’s family on the phone which was to be
collected through Hawala in Nepal as Manoj had many good
acquaintances in Nepal due to his smuggling business there.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 7 of 71
7. Accused persons further disclosed that in pursuance of the
conspiracy Akhtar, Manoj and Javed came to Delhi and took a two room
set on rent to keep the abducted person there. Accused Ikramul @
Vishal had later on joined the conspiracy and started living with the co-
accused persons in the rented accommodation. The accused persons,
Akhtar, Javed and Ikramul purchased two gunny bags, one polythene
bag and two big knives, whereas Manoj purchased the fortvin injections
and a country made pistol .315 Bore and one mobile telephone number
9810184352, in order to maintain contact with Mukesh.
8. On 3rd January, 2000 Mohd. Akhtar went to the transport office
of Shokeen Pal and asked him to join the new year celebrations and
informed him that he should leave at around 7/7:30 p.m. Thereafter
Shokeen Pal was brought to the tenanted accommodation at Tukmeer
Pur, where they all had their meals. After which the volume of the tape
recorder was increased, and Akhtar, Javed and Ikramul caught hold of
Shokeen Pal, while Manoj injected the fortvin injection to him. When the
deceased protested, Manoj with the intention to terrorize him took out
his country made revolver and threatened Shokeen Pal, whereupon
Shokeen Pal pounced upon them as a result of which, the pistol was
accidentally fired which caused an injury on the right foot of accused
Javed and the bullet pierced his shoes and foot. Thereafter Shokeen Pal
was tied up on the cot by a rope in the inner room and his mouth was
also taped. He was also given injection to make him unconscious.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 8 of 71
Subsequently, Javed was taken to the hospital by Manoj and Akhtar
and dressing of his injury was got done. The deceased’s car was then
taken by the trio to the New Delhi Railway Station and abandoned there
and they returned to Tukmeer Pur in a TSR.
9. Shokeen Pal would intermittently come to his senses but then the
accused persons repeatedly injected him medicine to keep him
unconscious and kept him in a drugged state till 5th January, 2000.
On 5th January, 2001 when Shokeen Pal came to his senses, he
threatened that once he would be released he will implicate all the
accused persons. So a decision was taken by the accused persons to kill
him.
10. The Prosecution alleged that Akhtar caught hold of the head of
Shokeen Pal whereas Ikramul caught hold of both his legs and Javed
caught hold of his hands, while Manoj closed his mouth and throttled
him. With the intention to dispose of the body the accused persons
removed his clothes and severed his head. The ring of Shokeen Pal was
taken by Manoj whereas his watch was removed by Akhtar. The severed
body was then kept in a gunny bag which was further put in another
gunny bag and his head was kept in another bag on the night
intervening 5/6th January, 2000. The bags where thereafter, kept in a
maruti car which belonged to the accused Manoj’s friend Manju @
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Manoj s/o Dhan Lal r/o H No. 143, village Tukmeer Pur, Delhi, to be
disposed of. The bag containing the headless body was thrown into the
Ganda Nala under the Pulia opposite to Suraj Pal Workshop, Plot No. 4
Tukmeer Pur whereas the bag containing the head was thrown in
Ganda Nala, Chand Bagh Pulia. The clothes of the deceased, the rope of
charpai used, the mattresses, his shoes and diary were all burnt, while
the fortvin injections, two knives, burnt ashes, empty cartridges and a
part of the fired bullet were all thrown into the nala. The country made
revolver as well as the mobile was given to Manoj’s friend Lalit Rana by
him.
11. Pursuant to the arrest, investigations by the crime team was
done. Blood samples from the spot of murder at Tukmeer Pur were
lifted. The cot and other articles were also seized from that room and at
the pointing out of the accused. The headless body of the deceased was
also recovered from Bihari Pur Pulia, Ganda Nala, near Sher Pur
Chowk. The Body was found wrapped in a rope and it was identified as
the body of Shokeen Pal by his family members. The syringe used to
inject the medicine to the deceased and to make him unconscious, as
well as the knife were also recovered. The Country made pistol was also
recovered from Manoj’s friend Lalit Rana, for which separate
proceedings were conducted under the Arms Act. However the severed
head of the deceased could not be recovered.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 10 of 71
12. Post mortem on the body was conducted. Exhibits were sent to
CDFD, Hyderabad along with the blood samples of the father of the
deceased. The Viscera, syringe and two audio cassettes were sent to
CFSL Delhi. While the finger prints of the accused and flanges of
deceased were sent to FSL Malviya Nagar. The ring and watch of the
deceased were recovered from the accused persons, Manoj and Akhtar
pursuant to their disclosure statements which were duly identified in
TIP by the wife of the deceased.
13. After completion of the investigation, the challans were filed
against all the five accused persons, namely Manoj, Javed, Akhtar,
Ikramul and Mukesh on 22nd April, 2000. Manju @ Manoj and Lalit
Rana were arrested subsequently and the supplementary challan was
filed on 26th July, 2001. Charges where framed under section 120
B/364A r/w 120B, 302 r/w 120 B of IPC against all the accused
persons on 12th December, 2002 and u/s 201 of IPC against accused
Manju@ Manoj by the then Ld. Judge to which all except Mukesh
pleaded not guilty. Accused Mukesh was convicted under Section 384
IPC on 12th December, 2002. However accused Lalit Rana was
discharged vide order dated 12th December, 2002 by the Learned ASJ
Ms. Aruna Suresh, due to lack of evidence.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 11 of 71
14. In support of its case the prosecution examined 55 witnesses.
After closure of the prosecution evidence all the incriminating evidence
were put to the accused persons and their statements were recorded
under section 313 of the Cr.P.C. All the accused persons claimed that
they were falsely implicated since they did not meet the demands for
bribe made by SI Pyare Lal. However, none of the accused opted to lead
defence evidence.
15. After careful consideration of the evidence on record, the trial
court held that the prosecution was successful in bringing home the
guilt beyond all reasonable doubt against the accused Manoj Kumar,
Ikramul Haq, Mohd Aktar and Javed and hence convicted them under
Sections 120 B, 364 A, 120, 302 and 120 B of the IPC. However the
Trial Court acquitted Manoj @ Manju holding that the prosecution had
failed to attribute any knowledge to the accused to the effect that he
was aware of his vehicle being used for disposal of the dead body of the
deceased and that there was no evidence to support the allegation that
the car was washed by the accused in order to destroy the evidence.
16. Against the order of conviction and sentence that each of the four
appellants have filed separate appeals. However, since the appeals are
against the common judgment convicting them and common order
sentencing them, and the appeals involve common evidence and
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substantially common facts, their appeals are decided by common
order, however, the pleas and contentions raised on behalf of appellants
are noted separately and dealt with accordingly.
Pleas raised by Mohd Javed.
17. Learned Counsel for the appellant Mohd Javed has contended
that the Trial Court failed to appreciate the delay in filing the FIR. He
asserted that in the absence of any reasons justifying the same and on
account of unexplained delay in filing the FIR, the very base of the
prosecution story becomes doubtful. It is contended that appellant,
therefore, is entitled for benefit and the entire proceedings against him
are liable to be quashed. He further contended that the only reason for
inculpating the appellant, Javed is the sole disclosure statement made
by co-accused Mukesh who pleaded guilty and was convicted u/s 384
of IPC. He also submitted that there are absolutely no recoveries were
effected at the instance of the appellant Mohd Javed and that the last
seen witness, PW-1 Varinder Singh, also did not name him and
mentioned about him. It is contended that therefore there is no
evidence to substantiate the allegations made against the appellant,
Javed.
18. Learned counsel further contended that there are many
inconsistencies in the deposition of the various witnesses and
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 13 of 71
contradictory deposition cannot be relied on to convict the appellant as
the inconsistencies go to the root of the matter. While PW-50 SI
Bankteshwar Ram deposed that he was present at the time Javed, the
appellant had made his disclosure statement on 23rd January, 2000,
however, this is diametrically opposite to the deposition of PW-51 SI
Suresh who categorically stated that the disclosure statement was not
recorded before PW-50. It has also been pleaded that the disclosure
statement of the accused Mukesh which is the sole basis to arrest
Javed is undated, which undoubtedly leads to the inference that it is a
fabricated document and therefore no reliance can be placed on the
same and the appellant is entitled for benefit of doubt. Learned Counsel
for appellant, Javed urged that no reliance should be placed on the
deposition of PW-49, Inspector Pyare Lal as specific allegations of
demanding money from the co-accused Manoj @ Manju were made
against him. Pursuant to which PW-49 was even transferred to Line.
19. It is further contended that the chance prints which were tallied
with the specimen finger prints collected from the appellant, by PW-37
Ravinder Kumar, of the Finger Expert Bureau, do not match. Thus on
the basis of chance prints which were lifted the guilt of the appellant
cannot be established. It has also been asserted that there are
discrepancies between the two disclosure statements allegedly made by
the appellant, i.e. the one made on 23.1.2000 and the other on
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 14 of 71
28.1.2000 at New Delhi. The first disclosure statement does not divulge
the place of occurrence i.e. 2/38, Tukmeer Pur Extension, Delhi as
what is mentioned is Bhajanpura area in Delhi.
20. It is further pleaded on behalf of appellant Javed that Nathni who
allegedly treated him of his gun wound, had not been examined. PW33
had taken Javed, the appellant to hospital, but there is no medical
evidence on record to prove that the appellant sustained a foot injury.
Pleas raised by Mohd. Akhtar
21. Learned counsel for Mohd Akhtar has also contended that the
delay in filing the missing report is reflective of the abnormal conduct of
the family in the facts and circumstances, as on 6th January, 2000 at
12.15 PM first ransom call was made and by 9th January, 2000, 12
ransom calls were received. However, the complaint, Ex. PW 49/A, was
made only on 11th January, 2000. As per the deposition of PW-25 Babli,
wife of the deceased, she was confident that Akhtar due to enmity with
her husband had abducted him, however, in spite of this she did not
make any attempts to lodge a complaint. Thus it has been urged that
the conduct of the wife does not seem to be very probable and creates a
doubt about the entire prosecution version and benefit of doubt should
be given to Mohd. Akhtar. Reliance was placed on her deposition that
her husband, deceased, used to inform her whenever he left for 2-3
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 15 of 71
days. He had not done so in January, 2000 which was abnormal
conduct on his part yet the wife did not attempt to file the missing
person report or of abduction of her husband after receiving ransom call
on 6th January, 2000. It is also contended that even though the family
members knew the address of the appellant Mohd. Akhtar, and they
were suspicious about him, still the police did not go to his house in
Motihari. This could only imply that the said appellant was falsely
implicated. Learned counsel also urged that as per PW-23 Smt
Santresh, sister of the deceased, she had recorded the ransom calls on
a tape recorder on 13th January, 2000, however she had handed it over
to the police only on 16th January, 2000. This gap of three days has
remained unexplained and is enough time to have tampered with the
evidence.
22. It has been urged that Akhtar was only identified by PW-1 Sh.
Varinder Singh for the first time in Court and that no TIP was
conducted. According to learned counsel for the said appellant this is
sufficient along with other grounds to exculpate the appellant.
Emphasis has also been laid on the ground that Najibulla Khan, driver
of the deceased had not been examined, even though his license was
recovered from the car. It is also contended that nothing had been
established to ascertain whether the driver was on leave or had left the
services of the deceased. This according to learned counsel is major flaw
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 16 of 71
in the version of the prosecution and last seen theory has not been
established and consequently the said appellant cannot be inculpated.
23. Learned counsel for the appellant no.2, Mohd Akhtar submitted
that the motive of the appellant as alleged by the prosecution is that
two trucks bearing no. DL 1 G A 0860, UHN 2437 of the accused
Akhtar were financed by KGA Company, for which Shokeen Pal, the
deceased stood as guarantor. However as the recovery of amount was
not possible on behalf of Akhtar, based on the information given by the
deceased, the trucks were seized by the company, hence huge losses
were suffered by Akhtar and therefore a plan was made to abduct the
deceased and claim ransom. It is contended that as per the deposition
of PW-3 Rajesh Yadav, Manager of KGA, he wasn’t even aware of the
outstanding dues against the finance of the said two trucks, nor was he
aware of the address of the appellant and this coupled with the fact that
no suit was filed for recovery of the said amount, the allege motive as
contended by the prosecution has not been established. Even though it
is alleged that Shokeen Pal stood as guarantor, as per the deposition of
PW-28 Krishan Kumar himself, the documents in question did not bear
the signatures of Shokeen Pal.
24. Learned Counsel also referred to the depositions of Matloob @
Munna Khan, PW-17 as well as PW-2, Sudhir who had deposed that on
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 17 of 71
enquiry from the STD booth, they had found out that Amjad had been
talking to his brother Akhtar on the number 9810184352. However,
learned counsel contended that neither Amjad himself had been
examined, nor did PW-27, father of the deceased knew who Matloob
was, who according to the prosecution was the business partner. Thus
in the facts and circumstances the father not knowing the partner of
the business of his own son seems highly unlikely and casts a doubt on
the credibility of Matloob as a witness and such deposition could not be
basis of conviction of the appellant Mohd. Akhtar.
25. It has also been contended on behalf of appellant, Akhtar that the
recoveries of the call details by the police cannot be relied on as PW-8
and PW-9, STD booth owners had turned hostile and had also deposed
that the record could have been tampered with by someone.
26. Learned counsel has further urged that the dead body was not
recovered from the place as divulged in the disclosure statement of the
appellants. While referring to the deposition of PW-31 Ranbir Singh the
learned counsel emphasized that when the search for the dead body
was initiated, pursuant to the disclosure statements made by the
appellant, Manoj, Akhtar and Javed, some persons had told the police
officials about a bad smell emanating from another pulia, from where
the dead body was subsequently recovered. Thus since the body was
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 18 of 71
not recovered at the instance of the accused persons pursuant to their
disclosure statement, therefore the same cannot inculpate them.
27. Learned counsel has also urged that the alleged place of
occurrence has absolutely no connection with the appellant Akhtar, as
the place of occurrence was the tenanted premises belonging to PW-30,
which was taken up by co-accused Manoj. Further the chance prints
recovered from the place of occurrence did not match with that of the
specimen fingerprints obtained from the appellant. The learned counsel
for appellant no.2 further contended that the learned Trial Court also
failed to appreciate the fact that the TIP of the wrist watch allegedly
recovered from Akhtar on 27th January, 2000 was conducted by the
wife of deceased, PW-25 only on 13th March, 2000, after a lapse of 45
days without furnishing any explanation for such delay, which had
defeated the very purpose of TIP and thus the probability of watch being
planned could not be ruled out and such identification by the widow of
the deceased could not be relied on in convicting the appellant Mohd.
Akhtar.
28. Lastly it has been contended by the learned counsel for said
appellant that the trial court had failed to appreciate that PW-52 Dr.
Sumit Telewar who identified the handwriting of Dr. A.K. Tyagi, who
had conducted the post mortem, had categorically stated that “the
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 19 of 71
cause of death will be given only after the report of chemical analysis of
viscera.” However the viscera report is not found on the record, thus
whether the death is homicidal or not, has not been established by the
prosecution.
Pleas raised by MANOJ KUMAR
29. The learned counsel for appellant Manoj submitted that the
allegations as per the prosecution specifically made against the
appellant is that he had injected the deceased to make him
unconscious and to keep him drugged. Allegation have also been
imputed that the said appellant had made the demand for ransom and
he had strangulated the deceased and finally he had severed the head
from the body of the deceased.
30. The learned counsel for the appellant, Manoj contended that as
per the deposition of PW2, the cassettes allegedly containing the
recordings of the ransom demanded by the accused persons were in an
unsealed condition and therefore could have been easily tampered with
and thus they could not be relied on. It was further contended that no
TIP was conducted to identify the ring allegedly recovered from the
appellant, Manoj pursuant to his disclosure statement. According to
him this coupled with the fact that no documentary proof had been
provided to connect the watch and the ring to the deceased, the alleged
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 20 of 71
recoveries pursuant to his disclosure statement cannot be used to
inculpate him with the alleged crime.
31. It was further urged that the recoveries of headless dead body
and knife were made in a residential area and admittedly there were
many people present, however none were included as independent
witnesses. In addition to this, in all the pictures of the recoveries taken,
the appellant is not present in a single one of them. The learned counsel
further submitted that since PW8 and PW9 both did not support the
prosecution’s version and had categorically denied any calls having
been made by the appellants, hence the alleged call records recovered
from the STD Booths could not be relied on for convicting the appellant.
32. As per the learned counsel for Manoj, motive too had not been
proved as against the appellant. As per the prosecution story the balls
bearing business of the appellant was allegedly suffered losses and thus
he agreed to participate in the conspiracy to abduct the deceased.
However, the learned counsel contended that not a single witness had
deposed the same nor had any evidence been produced to this effect,
thus no motive has been established against the said appellant.
33. It is further urged that the prosecution had mislead the trial court
into believing that the appellant had taken the tenanted premises solely
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 21 of 71
for the purpose of holding the deceased hostage, as PW-30 , Dr.
Rajinder Singh in his deposition had deposed that the appellant was in
possession of the premises for the past 8/9 years.
34. Learned counsel had also contended that the dead body was not
recovered from the place as divulged in the disclosure statement.
Learned counsel also referred to the depositions of PW34, Mahabir
Parshad who allegedly sold the two gunny bags to the accused persons
and PW-35, Deepak Pundhir, who allegedly sold 5 fortvin injections to
the appellant Manoj, but they were declared hostile, as they deposed
that they hadn’t sold the same to the appellants. Thus their depositions
could not be relied on to inculpate the said appellant. Learned
contended that the credibility of PW-49, Inspector Pyare Lal is doubtful
as specific allegations of demanding money from the co-accused Manoj
@ Manju were made against him and pursuant to complaint against
him he was even transferred to police line.
35. As per the learned counsel the Trial Court also failed to consider
the fact that the appellant was arrested on 27th January, 2000 while the
offence was committed on 3rd January, 2000. Thus the plea of picking
of the chance prints on 27th January, 2000 cannot be believed and
accepted since even as per the reasoning of the Trial Court the prints of
the co-accused may have got destroyed. In the circumstances the
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 22 of 71
chance prints of Manoj could not have survived and were not relied on
by the Trial Court. Even, PW30 in his cross-examination had also
categorically deposed that no officer from the CFSL had come to the
spot and no chance prints were taken in his presence. He also stated
that no syringe was recovered in his presence. Thus the recoveries
pursuant to alleged disclosure statement of the appellants are fraught
with discrepancies and suspicion and could not be relied upon to
inculpate the appellant.
Pleas raised by Ikramul Haq
36. Learned Counsel for appellant Ikramul Haq too has contended
that the Trial Court has failed to appreciate the consequence of delay in
filing the FIR. He contended that as per PW-1, the deceased was seen
with Akhtar on 3rd January, 2000, however the missing report was
lodged only by 6th January, 2000. The time gap necessarily implied that
in the intervening period the deceased could have come back home and
the death of the deceased was not proximate to the last seen evidence
produced by the prosecution.
37. Learned Counsel for Ikramul Haq further contended that as per
the record on the day the charges were framed against the accused
Mukesh Kumar i.e. on 12th December, 2002 he had accepted his guilt.
The death of Shokeen Pal, the deceased has been established as on
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 23 of 71
3rd/5th January, 2000. However, in all the allegations the role of
Ikramul Haq had not been described. It was further contended that
most of the witnesses have not imputed anything against Ikramul Haq
in their depositions. The last seen evidence does not substantiate the
allegations made against the appellant, Ikramul Haq. As per the
deposition of the uncle, Sh. Varinder, of the deceased PW-1 the
deceased had been last seen in the company of co-accused, Akhtar on
3rd January, 2000 at about 7.00 to 7.30 PM and not in the company of
Ikramul Haq.
38. The learned Counsel submitted that nothing had been recovered
pursuant to his disclosure statement from the said appellant, Ikramul
Haq except for an amount of Rs. 180-185/-. The said amount also
belonged to the deceased has not been established. The other
incriminating evidence, wrist watch, and the gold ring allegedly
belonging to the deceased were also recovered from the co-accused
Akhtar and Manoj respectively and not Ikramul Haq.
39. The Learned counsel also emphasized that the place from where
the dead body was recovered is not the one mentioned in the disclosure
statements of the appellants and that appellant Ikramul Haq had
absolutely no motive to take part in the conspiracy to abduct and
murder the deceased. Reliance has also been placed on the depositions
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 24 of 71
of the hostile witnesses PW-8 and PW-9. PW-8 Kalyan Singh, is the
owner of the STD booth from where the appellants had allegedly made
the calls for ransom. Learned counsel emphasized that as per
deposition of PW-8 and PW-9, none of the accused persons had made
any calls from his STD booth and that the police had forcibly taken his
signatures on the bills that were allegedly recovered from him.
40. Learned Counsel relied on the fact that as per the deposition of
PW-30, Dr. Rajinder Singh Jaspal, the owner of the premises in which
the deceased was murdered, the tenanted premises was taken up on
rent by co-accused Manoj, for installing sewing machines. However
there is no reference of the appellant in his deposition that said
appellant Ikramul Haq was involved in the said transaction, or that he
was ever seen on the premises. Merely because on the day of the arrest
the appellant was allegedly found on the premises is not the sufficient
to connect the appellant to either to the motive of the crime or that the
place of offence was taken by the said appellant with the common
intention. It is also urged that the said witness is not creditworthy since
during his deposition on 1st September, 2006 he did not support the
prosecution’s version, however on 24th September, 2007, he deposed in
conformity with the prosecution story. The inconsistency in the facts
and circumstances in the deposition of the said witness is substantial,
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 25 of 71
his deposition could not be relied on to implicate the appellant as
during the intervening period he was pressurized by the IO.
41. It has been also urged by the learned counsel for appellant,
Ikramul Haq that the death of the deceased was alleged to be by
strangulation. As per the prosecution version, the deceased was not
strangulated by the appellant Ikramul Haq. Learned Counsel further
urged that the knife recovered at the instance of Ikramul Haq, as per
the deposition of PW-49, Inspector Pyare Lal recovered on 27th January,
2000, Ex. PW 2 /M is different from the knife that was recovered by
PW-37, HC Lajya Ram on 1st February, 2000, as Ex. PW 19/B. Thus in
light of recovery of these two knives, there is ambiguity as to which
knife was the weapon of offence and therefore, the appellant cannot be
implicated on the basis of said recovery of knife and cannot be
implicated. It is also contended that the knife was rusted and did not
have any blood. It is further asserted that at the best the case which
can be made out against the appellant Ikramul Haq could be of
destruction of evidence for being liable u/s 201 of IPC and nothing
more. As per the CFSL Report, Ex. PW 39/A no blood was recovered
from either of the two knives recovered which had been marked in the
report as Ex 3 and 4. Thus the nexus between the weapon of offence
and the knives recovered has not been established.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 26 of 71
42. The testimony of PW-42 is also contended to be untrustworthy as
being the first and original registered owner of the car, she did not
support the prosecution version in the examination in chief. In her
cross-examination she even denied having sold the car to one Anish
Mehta. She also deposed that she did not inform the insurance
company and transport department about the sale of car to Rajesh
Gupta. While the prosecution’s case is that car was initially owned by
Kripal Premanand which was sold to Anuj Mehta and then to Sriniwas
and finally to the co-accused. It is asserted that neither Rajesh Gupta
nor Chander Prakash nor Anish Mehta were examined. In the
circumstances an important link of prosecution theory of missing and
the benefit should be given to the appellant Ikramul Haq.
Pleas and contentions of the State
43. Per Contra, learned Counsel for the State has contended that the
case of the prosecution has been proved beyond all reasonable doubt
and that there is enough evidence on the record to inculpate all the
accused/appellants, as has been rightly concluded by the Trial Court.
Reliance had been placed on the last seen witnesses PW-1 and PW4
who had last seen the deceased in the company of Appellant Akhtar.
44. Learned counsel also contended that even the motive stood
established as deposed by many witnesses that the appellant Akhtar
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 27 of 71
had grudge towards the deceased, since it was because of him that his
two trucks were recovered by the Financing Company, due to which he
had suffered losses. This fact also stood substantiated by the
depositions of PW-3, 11, 28 and 17.
45. Learned counsel further emphasized that the sister of the
deceased had even recorded the ransom calls on 13th January, 2000
which was duly given to the police, and which is also a strong link
towards establishing the guilt of the appellants as the recorded voice
matched with the sample voice provided by accused Mukesh. Learned
counsel also contended that since Mukesh was responsible for making
the ransom calls and he had subsequently pleaded guilty to the charge
framed against him, the evidence against him would be substantially
considered against the co-accused as well. According to him thus the
link has been established against Mukesh, who had informed about the
involvement of Javed and on the arrest of Javed, he revealed about the
involvement of Akhtar, Manoj and Ikramul Haq, pursuant to which on
the basis of their disclosure statements from the place of occurrence
incriminating evidence, knives, ring and watch of the deceased and
headless body of the deceased etc were recovered.
46. It is contended by the learned Public Prosecutor that recoveries
have been established and the same cannot be doubted on the pleas
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 28 of 71
and contentions raised by the appellant. He also pointed out that Javed
had suffered injuries while holding deceased as hostage, and the socks
and shoes of Javed were also recovered at the instance of Manoj. On
27th January, 2000 the head-less body of the deceased was also
recovered on the pointing out of Akhtar, Manoj and Ikramul Haq. It is
contended that recoveries of incriminating material had not been
planted becomes apparent from the videograph of the recoveries made
which clearly reveals that the recovery of the gunny bag containing the
headless body from the nala was at the instance of these three accused.
Once the body was recovered, its identity was established by the family
members and also by sampling the blood of the deceased with the blood
samples of parent and DNA fingerprinting. Further the chance prints
found from the spot matched with the specimen finger prints of
appellant Manoj. TIP of the articles recovered from the appellants, i.e.
the ring and watch was also duly conducted in which the recovered
article were correctly identified by the wife of the deceased. It was
further urged that no TIP of Aktar was required as PW-1 had known
him and had even spent considerable time sitting and talking with
deceased.
47. This Court has heard the learned counsel for the parties in detail
and have also perused the evidence on record and have also seen the
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 29 of 71
video-graph recorded by the prosecution of the recovery of the headless
body of the deceased.
48. This is settled law that in reversing the finding of conviction the
High Court has to keep in view the fact that the presumption of
innocence is still available in favor of the accused. If on fresh scrutiny
and reappraisal of the evidence and perusal of the material on record, if
the High Court is of the opinion that another view is possible or which
can be reasonably taken, then the view which favors the accused
should be adopted. However the view taken by the Trial Court which
had an advantage of looking at the demeanour of witnesses and
observing their conduct in the Court is not to be substituted ordinarily
by another view unless another view if substantially and reasonably be
possible in the opinion of the High Court. Reliance for this can be
placed on AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008
(3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of
A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh,
2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade &
Anr v. State of Maharashtra; Ramesh Babu Lal Doshi v. State of
Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana,
2000 (1) JCC (SC) 140. The Courts had held that the golden thread
which runs through the web of administration of justice in criminal
cases is that if two views are possible on the evidence adduced in the
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 30 of 71
case, one pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused should be
adopted because the paramount consideration of the Court is to ensure
that miscarriage of justice is not done. A miscarriage of justice which
may arise from acquittal of the guilty is no less than from the conviction
of an innocent person.
49. The High Court has the power to reconsider the whole issue,
reappraise the evidence and come to its own conclusion and findings in
place of the findings recorded by the trial Court, if the findings are
against the evidence or record or unsustainable or perverse. However,
before reversing the finding of acquittal the High Court must consider
each ground on which the order of conviction is based and should also
record its own reasons for accepting those grounds.
50. The counsels for the appellants have strongly emphasized on the
plea of delay in lodging the FIR by the father of the deceased. However
the trial court has aptly dealt with this plea holding that initially there
had been no doubt in the mind of the family members of the deceased,
regarding any motive or hostility from any quarters particularly
attributable to the accused. In the circumstances the delay in filing the
FIR is understandable. The trial court had also noticed that it has not
been put to any of the family members who had appeared as witnesses
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 31 of 71
that the deceased was in the habit of staying away from home in
connection with his business for long durations without intimating
them. The widow of the deceased is categorical about it. In the absence
of any such question on the part of the accused in their defense, the
Trial court held that the circumstances have to be inferred in light of
the fact that the deceased used to be absent very often from the house
for 2 to 3 days. This is also fortified by the deposition that the deceased
was in the habit of enjoying the company of girls (LADKIBAAJ) and this
habit of the deceased used to keep him away without any intimation to
the family members. In the circumstances if the family members did not
take any serious action about the deceased not coming back after going
with Akhtar on 3rd January, 2000 till 6th January, 2000, delay is
normal. The family members had reason to react and get worried on
account of the ransom calls made to the residence of the deceased.
Pursuant to which complaints were immediately lodged on 6th January,
2000 at PS Sahibabad. In the circumstances on perusal of the
testimonies of the witnesses, the delay in filing the FIR cannot be
termed to fatal to the case of the prosecution.
51. It is a well settled principle of law that delay simplicitor in lodging
the FIR alone is not enough to disbelieve the prosecution’s story. In the
case of State of Maharashtra v. Joseph Mingal Koli, (1997) 2 Crime 228
(Bom) it was held that the answer to the question whether the F.I.R. in
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 32 of 71
a given case has been lodged belatedly or not is always a question of
fact and has to be answered bearing in mind the facts of the case in
question and also considering the explanation furnished by the
prosecution in case there is some delay in its being lodged. There can be
no mathematical computation of the time taken in the lodging of the
F.I.R. What the court has to examine is whether the delay is inordinate
and whether any cogent explanation is forthcoming in case or not.
Some delay in the lodging of the F.I.R. in some of the cases is only
natural and would not detract from the value to be attached to it.
52. A perusal of the testimonies on record gives a clear indication
that all efforts were made to trace the deceased and that complaint was
lodged on the first day the ransom call was received i.e. on 6th January,
2000 at PS Sahibabad. PW-1, Varinder Singh has categorically deposed
that he hadn’t lodged any complaint on the 3rd and 4th of January, 2000
since there was no reason to worry as the deceased was a mature man
and he was sure that he would come back as was the case in past also.
PW-27 Jasbir Singh, father of the deceased and PW-2 Sudhir, both had
deposed that all efforts were made to trace the deceased and that FIR
was also lodged at PS Nand Nagri, however the police officials had
informed them that they couldn’t register the same since the incident
had taken place at U.P. Thereafter, they went to Ghaziabad, U.P to
lodge the complaint, but the police authorities there had refused
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 33 of 71
registering the FIR, stating that the FIR ought to be lodged at Delhi
because the deceased was last seen there. Thus for two days they were
running back and forth to lodge the complaint at the appropriate Police
Station. Since the delay had been duly explained by the prosecution
nothing adverse is to infer against the prosecution version in the facts
and circumstances. Explanation given by the witnesses is usual and
natural and there is nothing to disbelieve them in the facts and
circumstances of this case.
53. The learned counsels for the appellants have also urged that the
testimony of the last seen witness is unreliable since he had identified
the appellant Mohd. Akhtar for the first time in Court and no TIP was
conducted for the same. From the facts of the case and from the perusal
of the evidence it is apparent that there is no illegality in the
identification of the accused for the first time in court by PW-1, as it is
not the case of the prosecution that Varinder, PW-1 had interacted with
the accused for only a brief moment or that they were not known to
each other. Rather Varinder had remained seated with him in the car
for a considerable period covering the distance from the transport office
of the deceased to the Loni flyover bridge during which time accused
Akhtar had even talked to witness Varinder.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 34 of 71
54. It is fairly well-settled that identification of the accused in the
Court by the witness constitutes substantive evidence in a case
although any such identification for the first time at the trial may more
often than not appear to be evidence of a weak character. That being so
a test identification parade is conducted with a view to strengthening
the trustworthiness of the evidence. Such a TIP then provides
corroboration to the testimony of the witness in the Court who claims to
identify the accused persons otherwise unknown to him. Test
Identification parades, therefore, remain in the realm of investigation.
The Code of Criminal Procedure does not oblige the investigating agency
to necessarily hold a test identification parade nor is there any
provision under which the accused may claim a right to the holding of a
test identification parade. The failure of the investigating agency to hold
a test identification parade does not, in that view, have the effect of
weakening the evidence of identification in the Court. As to what should
be the weight attached to such an identification is a matter which the
Courts determine in the light of peculiar facts and circumstances of
each case. In appropriate cases the Court may accept the evidence of
identification in the Court even without insisting on corroboration. This
view had been upheld in the following cases Kanta Prashad v. Delhi
Admn. AIR 1958 SC 350, Vaikuntam Chandrappa v. State of A.P. AIR
1960 SC 1340, Budhsen v. State of U.P. (1970) 2 SCC 128 and
Rameshwar Singh v. State of J and K. : (1971) 2 SCC 715). Also PW-1’s
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 35 of 71
testimony is corroborated by PWs 4, 24, 25, 27. In the facts and
circumstances identification of accused Akhtar in the Court by the
witnesses cannot be ignored on account not conducting the Test
Identification Parade of the said accused. The reasoning of the Trial
Court also is sustainable and there is no illegality of un-sustainability
in the same. No corroboration by Test Identification Parade was
required for the identification of appellant Akhtar by PW-1 in the Court.
55. Though it is not imperative for the prosecution to prove motive
against the accused persons in all the case but in the present case, it
has succeeded in doing the same. The aspect of motive has been
elaborately dealt with by the Trial Court, by highlighting all the
important testimonies and evidence which clearly proves that the
motive of the appellants was to extort money from the family of the
deceased. The learned counsel for the appellant has not been able to
show any such grounds on the basis of which it can be held that the
reasoning of the Trial Court is perverse of un-sustainable. From the
testimonies of the witnesses it has been established that Akhtar had got
financed two trucks from KGA Finance on personal guarantee of
Shokeen for which PW-3 Manager of finance company at that time, PW-
4 Ranjeet manager of transport company of Shookeen pal and PW-11
Sudhir Kumar Aggarwal owner of finance company supported the
prosecution and identified accused Akhtar unerringly in the Court.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 36 of 71
Relevant documents with respect to finance of trucks were also
produced in the court and duly proved. Photograph of Akhtar in the file
of relevant truck was also produced and proved as Ex.PW3/A. Case of
the prosecution in this context is also strengthened from the record of
relevant trucks produced by PW-18 Rajender Kumar Chillad from
Rajpur Road, Transport Authority, Delhi who stated that as per the
record, Truck No. DL 1G A 0860 was registered in the name of Mohd.
Akhtar and that Mohd. Akhtar had even given a letter on 30th July,
1999 to keep the file of the truck in safe custody which was proved as
Ex PW 18/B. Testimony of these witnesses indisputably leads to the
inference that Akhtar had a grudge towards the deceased as he did not
help him by extending his personal guarantee and did not help him
keeping the trucks during the extended period of time which he wanted
so that he could repay the amount to the finance company towards the
loan for the trucks which had been taken by him. Rather the deceased
facilitated seizure of trucks of the accused leading to great financial loss
to him. From the testimonies of witnesses it is further revealed that
even accused Manoj had suffered losses in his illegal business of ball
bearing smuggling during those days and that he was in need of money.
Circumstances also suggest that such a conspiracy could not have been
executed by two persons which was a cogent reason for including the
other two appellants. Therefore in light of the evidence on record this
court too is of the view that the motive has been established against the
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 37 of 71
appellants, especially against appellants, Manoj and Akhtar without any
reasonable doubt even in the opinion of this Court.
56. All the counsels for the appellants have urged to discard and not
to place reliance on the deposition of PW-49, Inspector Pyare Lal, as
specific allegations of demanding money from the co-
accused/appellants were made against him. It is also contended that
pursuant to the allegations against the said witness, PW-49 was even
transferred to police line. The testimony of Pw 49 rather reveals that
that he had been transferred for a week to police line. Mere transfer to
police line cannot be for the reasons as alleged by the accused nor it
has been established that he had demanded money from one of the
accused. In the circumstances, the testimony of said witness cannot be
ignored nor can be discredited on the basis of allegations made on
behalf of the accused.
57. Learned Counsel for appellant Javed has contended that the only
basis for inculpating the said appellant is the disclosure statement
made by the co-accused Mukesh who pleaded guilty and was convicted
u/s 384 of IPC. According to him no recoveries were made on the basis
of his disclosure statement and the last seen witness, PW-1 Varinder
Singh, also did not depose about him. His contention is that there is no
evidence to substantiate the allegations made against Mohd Javed. It
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 38 of 71
was also contended that the disclosure statement of Mukesh that
allegedly lead to the arrest of appellant, Javed is not dated and had
been tampered with as it could be tempered with easily in the facts and
circumstances.
58. On perusing the record it is clear that accused Mukesh had been
arrested on 23rd January, 2000 and upon interrogation he had revealed
the entire plot/conspiracy. The Trial Court had also observed that even
though the disclosure statement of Mukesh was undated, but since
appellant Javed was arrested on 23rd January, 2000 pursuant to the
information given by Mukesh, so by obvious inference the disclosure
statement was made on 23rd January, 2000 or prior to that. Disclosure
statement of Mukesh, Ex PW7/B leading to various recoveries reflected
that the conspiracy to abduct Shokeen Pal was hatched between him,
Manoj, Javed and Akhtar and it was made to understand that Manoj
would contact Mukesh from Mobile number 9810184352 and Mukesh
would contact him on the same number. Various recoveries made
pursuant to disclosure statement and arrest of other accused also
substantiate that Manoj had informed the other accused on the phone
about the arrival of co accused Javed for treatment at Motihari as Javed
had sustained foot injury. Javed accordingly came to Motihari and
disclosed to Mukesh that he had sustained accidental bullet injury on
his foot while handling Shokeen Pal with Manoj, Akhtar, Vishal and 2/3
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 39 of 71
others. Since Mukesh confessed his guilt u/s 384 IPC when charge was
framed against him on 12th December, 2002 his confession is a
corroborated piece of evidence against the other co accused persons.
59. The trial Court had also placed reliance on the disclosure
statement of Mukesh as corroborative evidence as against all the
appellants, since he had accepted his guilt and that it amounted to a
confession. The learned counsel for the appellants had not refuted this
and it is also apparent that considering the entire testimonies of other
witnesses confession of the said accused is not the sole basis for the
conviction of the appellants. Under section 30 of the Evidence Act when
more than one person are tried jointly for the same offense, then a
confession made by one of the accused affecting himself and other
accused can be considered as against other accused.
60. Accused Javed was apprehended in pursuance of disclosure
statement of Mukesh on 23rd January, 2000. His disclosure statement
revealed that while being at Motihari, on 23rd January, 2000 he had
talked to Manoj from the STD booth at Khairva Village and STD Booth
Kalyan Motihari on the phone number 9810174266. The prosecutions
were successful in obtaining corroborative evidence of the same which
was the call records of the STD booth at Khairva, Kalyan Motihari and
of the STD shop of Sunny Photostat. This fact has been further
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 40 of 71
substantiated in the testimonies of PW-5, PW-7, PW-8 and PW-9. Even
though PW-7, 8 and 9 were declared hostile, but these hostile witnesses
did not deny the seizure of the relevant call details from the respective
STD booths. This cannot be disputed that if a prosecution witness turns
hostile that does not mean that his testimony has to be treated as
effaced or washed off the record all together. The Supreme Court had
held that it can be accepted to the extent his version is found to be
dependable on a careful scrutiny of the entire evidence. Reliance for this
can be placed on Bhagwan Singh v. State of Haryana, (1976) 1 SCC
389: 1976 SCC (Cri) 7: AIR 1976 SC 202; Rabindra Kumar Dey v. State
of Orissa, (1976) 4 SCC 233:1976 SCC (Cri) 566: AIR 1977 SC 170;
Syad Akbar v. State of Karnataka, (1980) 1 SCC 30: 1980 SCC (Cri) 59:
AIR 1979 SC 1848; Khujji v. State of M.P, (1991) 3 SCC 627: 1991 SCC
(Cri) 916: AIR 1991 SC 1853.
61. Learned counsel had also contended that there are many
inconsistencies in the deposition of the various witnesses and hence the
same cannot be relied on. While PW-50 SI Bankteshwar Ram deposed
that he was present at the time Javed, the appellant had made his
disclosure statement on 23rd January, 2000 however, this is
diametrically contrary to the deposition of PW-51 SI Suresh who
categorically stated that the disclosure statement was not recorded
before PW-50. However this court does not find the discrepancy to be so
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 41 of 71
major as to negate the entire disclosure statement made by the
appellant.
62. In C. Muniappan and Ors. v. State of Tamil Nadu JT 2010 (9) SC
95, the Supreme Court, had held that it is settled proposition of law
that even if there are some omissions, contradictions and discrepancies,
the entire evidence cannot be disregarded. After exercising care and
caution and sifting through the evidence to separate truth from
untruth, exaggeration and improvements, the court can come to
conclusion as to whether the residuary evidence is sufficient to convict
the accused. Thus, an undue importance could not be attached to
omissions, contradictions and discrepancies which do not go to the
heart of the matter and shake the basic version of the prosecution’s
witness. As the mental abilities of a human being cannot be expected to
be attuned to absorb all the details of the incident, minor discrepancies
are bound to occur in the statements of witnesses. Reliance can be
placed on Sohrab and Anr. v. The State of M.P., AIR 1972 SC 2020;
State of U.P. v. M.K. Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai
Hirji Bhai v. State of Gujarat, AIR 1983 SC 753; State of Rajasthan v.
Om Prakash, AIR 2007 SC 2257; Prithu @ Prithi Chand and Anr. v.
State of Himachal Pradesh, (2009) 11 SCC 588; State of U.P. v. Santosh
Kumar and Ors. (2009) 9 SCC 626 and State v. Saravanan and Anr,
AIR 2009 SC 151.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 42 of 71
63. Learned Counsel has also relied on the judgment of Mahadev
Prasad Pant v. State of Delhi 2007[2] JCC 1617 to contend that the
discrepancies in the disclosure statement would have an impact on the
recoveries effected pursuant to it. However the facts of the case cited is
distinguishable from the facts of the instant matter. In the case
Mahadev (supra) it was rather held that the disclosure statement alone
cannot be the sole basis for convicting the accused especially where the
recoveries were effected 5/6 days after the arrest of the accused,
causing reasonable doubt about the same. The case of appellants in the
present facts and circumstances are quite distinguishable as the
recoveries were effected on without any undue delay i.e on the arrest of
the co-accused on 27th January 2000. In any case the delay of two days
for arresting the co-accused has been cogently explained that the
information was conveyed from Mobile regarding the spot of occurrence
being Bhajan Pura at Delhi to SI Pyare Lal on 24.1.00 and that Delhi
being capital where the Republic day is celebrated in an extensive
manner and there was high alert prior to Republic Day (26th January)
and particularly from the day of Rehearsal (23rd January onwards) and
the entire police machinery was geared up accordingly for overseeing
the law and order situation in high alert state, so delay in tracing out
the exact spot by police from 24th to 26th January has to be accepted as
quite plausible and the testimony of SI Pyare Lal cannot be doubted in
this regard.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 43 of 71
64. Learned counsel for the appellants have also relied on Raj Rani
and Ors v. State: 2007 VII AD (DELHI) 509; Vinod Kumar and Anr. v.
State: DRJ 1992 (23) and Chet Ram v. State: 63(1996)DLT 695 in
support of their contentions on this aspect. However, even these cases
are distinguishable as no recoveries were made pursuant to the
disclosure statements and in these circumstances it was held that
conviction could not be possible on the basis of the disclosure
statement alone. In the case of appellants pursuant to disclosure
statements the recoveries were made of car no. DL 5C 2353 of the
deceased (Ex P24); syringe (Ex P-19); seven cassettes (Ex P-14); Mobile
Phone Motorola (Ex P-15); Driving license of Najibullah Khan recovered
from abandoned car of deceased (Ex P-20); Unsealed rexine bag (Ex P-
21), a cream color of cloth having writings in Urdu and Pharsi (Ex P-23)
from car of the deceased; HMY Quartz watch of the deceased recovered
from accused Akhtar (Ex P-26); Ring of deceased recovered from Manoj
(Ex P-27); knife recovered at the instance of Ikramul Haq (Ex P-29);
pant of light brown color and checked full sleeved shirt at the instance
of Ikramul Haq (Ex P-30); another yellow color pant and yellow color full
sleeved shirt at the instance of appellant Manoj (Ex P-31); one grey
colored pant and grey colored shirt at the instance of Mohd Akhtar ( Ex
P-32); two dirty jute bags from which the headless body of the deceased
was recovered(Ex P-33); pair of shoes of Ikramul Haq (Ex P-34) and
other article which have been considered by the Trial Court. Thus the
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 44 of 71
judgment relied on by the learned counsel for the appellant are
distinguishable and on the basis of ratio of them it cannot be held that
there is not sufficient evidence against the appellants in the present
case.
65. PW-7, Parvez Alam owner of PCO booth, categorically deposed
that a man named Saddam Hussain had made a call from his booth at
Delhi on 23rd January, 2000. Soon after his departure the police
officials had come and apprehended him. PW-7 even identified the man
as Javed in Court who had been apprehended by the Police on that day.
Even though the witness was declared hostile, it is not necessary that
his entire testimony should be effaced and thus the testimony which
supports the version of the prosecution can be relied. The Trial Court
has also relied on the part of the testimony of said witness and
judgment of trial Court cannot be faulted on this aspect also in the facts
and circumstances.
66. It was further contended by the learned counsel for the appellant
Mohd Javed that there were discrepancies between the two disclosure
statements made by the appellant, i.e. the one made on 23.1.2000 and
the other on 28.1.2000 at New Delhi. In the first disclosure statement
he had not divulged the place of occurrence i.e. 2/38, Turkmir Pur
Extension, Delhi but what was mentioned was Bhajanpura Delhi. This
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 45 of 71
is apparent that Javed had revealed to SI Suresh the name of the place
where Shokeen Pal was kept as a captive as Bhajanpura Delhi. This
information was shared with SI Pyare Lal at Delhi. Bhajanpura is a
thickly populated area in North East Delhi. Since, it was within the
knowledge of accused Javed as to where exactly Shokeen Pal was kept,
if he did not wish to reveal, the exact address, and did not accordingly
say so, in his 1st disclosure statement, the prosecution could not be
blamed for such incomplete revelation nor it would reflect that the
disclosure statements are inconsistent so as to give any benefit of it to
the appellants.
67. The plea of counsel for Mohd. Javed that pursuant his disclosure
statement no recoveries were effected cannot be accepted. At the
instance of the appellant. From the clue given by accused Javed,
prosecution had zeroed to the spot of occurrence from where
incriminating articles/recoveries were made which have been dealt with
extensively by the Trial Court and no cogent infirmities have been
pointed out by the counsel for the appellants. The place of occurrence
could be reached by the prosecution due to information divulged by the
appellants and some of the accused were apprehended due to such
disclosure and other recoveries were made inculpate the appellants. No
plausible explanations were furnished by the accused persons as to
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 46 of 71
how come there were blood stain marks present on the different articles
and also regarding the presence of wooden burnt sticks.
68. The Trial Court had noticed that the foot injury sustained by
Javed about which reference is made by co accused Mukesh in his
disclosure statement, was established on record. Javed was medically
examined on 28.1.2000 at Safdarjung Hospital which fact was also
admitted by Javed to be a correct fact which would implicate both of
them. His examination report also refers to L/E old reveals lacerated
wound (LT) foot on dorsal side which corroborates the said facts. The
socks and shoes with corresponding holes were also recovered at the
instance of co accused Manoj. This fact is also in consonance with the
statement made by Mukesh that he was informed about the injury on
Javed’s foot by Manoj. Thus from these facts also inculpability of the
appellants can be inferred. The learned counsel has failed to give any
cogent grounds to fault the prosecution version in this regard and non
inferences with the order of the trial Court, cannot be held to be
unreasonable or that the judgment of Trial Court is unsustainable in
the facts and circumstances.
69. The learned counsel for the appellant Akhtar has contended that
the only recovery that could implicate the said appellant, is that of the
wrist watch and the headless body which as alleged by the prosecution
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 47 of 71
were recovered at the instance of the appellant. However the TIP of the
wrist watch by Babli, PW-25, the wife of the deceased was delayed and
the headless body was not recovered from the place as divulged in the
disclosure statement and that it was in fact effected on account of
complaints of foul smell made by certain other persons. In the
circumstances it has been contended that both the recoveries cannot be
relied on. With respect to the delay in holding the TIP the Trial Court
held that the IO had given the explanation and attributed the same to
the procedural aspect in getting dates from the Court. Trial Court,
however, was of the view, that such delay in holding TIP does not
demolish the prosecution case, as recovery of such articles was effected
on date of arrest itself and same were kept in a sealed pullanda. Also
there was nothing on record to suggest that family members of
deceased handed over the gold ring and watch to the IO for planting the
same on the accused persons.
70. As regards the contention of recovery of the headless body on the
pointing out of the appellants Manoj, Akhtar and Ikramul not being
effected from the place specified in their disclosure statement, has been
raised by the counsel for all the accused. The Trial court held that the
recovery as well as the presence of blood stains on the spot of murder
points to the implication of the appellants. The video tape of recovery of
the headless dead body on the pointing out of accused Manoj S/o
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 48 of 71
Bindeshwari, Akhtar and Ikramul has also been considered by this
Court. It is clearly shown that the gunny bag containing the headless
body from the ganda nala was retrieved at the instance of all the
appellants. The contention of defense that it was on the disclosure of
public persons on account of some foul smell coming from another
pulia and not on account of disclosure by the appellants that the
headless body was recovered from another pulia cannot be accepted.
This plea is also to be repelled on the ground that the recovery is to be
viewed in context and not in isolation, as it was not the case of the
prosecution that the point of ganda nala where accused persons had
initially taken the police party is where the headless body was thrown,
and that it did not flow up to the point of recovery at another pulia has
not been rules out. The Trial Court had also held that it was obvious
that with the flow of water current in ganda nala, the gunny bag was
carried to the next pulia along with the water current. At the next pulia
is proximate to the place where gunny bag containing the body was
thrown. The appellants has pointed out towards the gunny bag which
was fished out and found to contain the headless body. In any case, the
public persons did not tell about gunny bag floating in the ganda nala,
and therefore the recovery of the body can be construed recovered only
on pointing out by the appellants and not by public persons. The
recovery of the headless body is further corroborated by the testimony
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 49 of 71
of Dr. Rajender PW-30 who even though had turned hostile on other
points, can be relied on with regard to the recovery of the body.
71. The contention of the learned counsel for appellant Mohd Akhtar
with respect to motive is that the documentary evidence produced to
prove that the deceased Shokeen Pal was the guarantor is not
established as the documents of guarantee did not bear his signatures.
This fact has been deposed by PW-28 Krishan Kumar and therefore, the
motive has not been established conclusively. However on perusing the
deposition of PW-28 clearly reveals as to why the signatures of Shokeen
Pal were not taken on the documents, was because he was a close and
trusted fellow of his and it was on his faith alone that the financed
company had financed the two trucks for Akhtar. It is further in
evidence that the trucks of the said appellant had been seized on his
failure to pay the installment at the instance and active help of
deceased which had given a grudge to the appellant as he wanted more
time to repay the installment, which could not be done on account of
seizure of trucks by the finance company. In the circumstances the plea
of the appellant that the papers for guarantee were not signed by the
deceased will not obliterate the motive as has been sought to be
contended by the counsel for the appellants. The inevitable inference in
the facts and circumstances is that the prosecution has established the
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 50 of 71
motive of the appellants against the deceased and the finding of the
Trial Court cannot be faulted on the grounds raised by the appellants.
72. Learned counsel for appellant, Shri Mohd. Akhtar also argued
that Matloob @ Munna Khan, PW-17, the business partner of the
deceased as well as PW-2, Sudhir had deposed that on enquiring from
the STD booth they had found out that, Amjad had been talking to his
brother Akhtar on the number 9810184352. However, Amjad himself
had not been examined, and PW-27 Jasbir Singh, father of the deceased
himself had deposed that he did not know who Matloob was, who as
contended by the prosecution was the partner in the business of the
deceased. According to the appellant this constitute a major missing
link in the chain of events propounded by the prosecution and these
contradictions the testimony of PW-17 makes his testimony
uncorroborated and not reliable. This plea of the appellants cannot be
accepted as it is not sustainable as the call records in themselves are
proof of the phone number used by the appellant to carry out the
conspiracy. The recovery of the call records had been corroborated by
the testimony of PW 7, 8 and 9. Thus non-examination of Amjad does
not exculpate the appellants from the accusation made against him. On
the grounds as alleged by the counsel for the appellants it also cannot
be held that the findings of the trial Court are illegal or perverse or that
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 51 of 71
another view is feasible which will support the pleas and contentions of
the appellants.
73. Learned counsel had also urged that the ransom calls that were
recorded by PW-23 Smt. Santresh, were recorded on 13th January,
2000, however she had handed it over to the police only on 16th
January, 2000. Thus the gap of three days had remained unexplained
and this three days time was enough for the sister of the deceased and
other persons to temper with the said evidence. However, this argument
is not sustainable as there is nothing on the record which would show
that the cassettes were tampered with and could not be relied on. The
cassettes were given in a sealed condition and opened only in court in
the presence of PW-23. There is no other fact which would reflect that
the cassettes were tempered with. On the assumption by the counsel for
the appellants that during three days the cassettes could be tempered,
it cannot be held that the cassettes were tempered and the testimony
about it would not be credible. There is no evidence to prove that the
family members of the deceased had any enmity towards the appellants
so as to falsely implicate them. Further the voice on the cassettes was
duly matched with the sample voice of Mukesh. In the circumstances
the credible evidence led by the prosecution cannot be ignored on the
basis of assumptions made by the appellant that the contents of the
cassettes could have been tempered. The Trial Court has also held so
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 52 of 71
and the findings and inferences of the Court cannot be faulted on the
grounds as alleged on behalf of the appellants.
74. The learned counsel for appellant Mohd Akhtar has also
endeavored to point out that the Trial court had grossly erred as it did
not take into consideration the testimony of PW-52 Dr. Sumit Telewar
who identified the handwriting of Dr. A.K. Tyagi, who had conducted
the post mortem as he had categorically stated that the report
stipulated that “the cause of death will be given only after the report of
chemical analysis of viscera.” However the viscera report is not found on
the record, hence it was contended that whether the death is homicidal
or not, has not been proved by the prosecution. However this seems to
be an attempt to mislead the court as the deposition of PW- 53 Dr
Raghavendra from GTB Hospital is categorical in proving the
subsequent opinion about the cause of death given by Dr. A.K.Tyagi. As
per him Dr. A.K. Tyagi after taking into consideration the CFSL Report
dated 30th June, 2000 and post mortem report No. 76/2000 dated 1st
January, 2000 conducted on the body of the deceased had given the
cause of death as shock as a result of cut throat injury to neck vide
injury no.1 mentioned in post mortem report. The testimony of PW-53 is
reproduced as under:
“FIR No.23/00
PS.N.NagriCrl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 53 of 71
PW-53 Dr.Raghvendra Junior demonstrator, GTB Hospital,
New Delhi.
On SA
I have been deputed by Head of Department, forensic
medicine for Dr.A.K.Tyagi who is on vacation. I can identify
his writing and signatures as I have seen him writing and
signing during the course of my duty hours. I have seen the
subsequent opinion about the cause of death in this case
given by Dr.A.K.Tyagi. Dr.A.K.Tyagi after considering the
CFSL report dt. 30/06/00 and postmortem report
no.76/00 dt. 01/02/00 on the body of Shokeen Pal
given the cause of death in this case was shock as a
result of cut throat injury to neck vide injury no.1
mentioned in postmortem report. The subsequent
opinion of Dr.A.K.Tyagi is Ex. 53/A, it bears the signatures
of Dr.A.K.Tyagi at point A and the same is in his
handwriting.
Xxxxxx by Sh.Sarfaraz Asif, Counsel for accused Manoj
Singh and Ikram.
NIL (Opportunity given).
Xxxxxx by accused Md.Akhtar,
NIL (Opportunity given)
Xxxxxx by accused Md.Javed.
NIL (Opportunity given)
Xxxxxx by accused Manoj @ Manju.
NIL (Opportunity given)
RO&AC
ASJ/KKD/26/05/08
In the circumstances on the basis of specific testimony of the said
doctor and the fact that he was not even cross examined, the pleas on
behalf of the appellant are not sustainable.
75. Reliance can also be placed on the letter dated 14th May 2008
addressed to the Head of Department, Forensic Medicine Dept., UCMS,
requesting a final cause of death which categorically stipulated that the
viscera report of the deceased was sent to CFSL, Lodhi Road and which
was received vide No. 2000/C-140 dated 30th June, 2000. The trial
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 54 of 71
court has inferred the guilt of appellants taking into consideration these
reports. No cogent grounds have been raised by the appellants which
would show any illegality or un-sustainability in the findings of the Trial
Court. This Court on perusing the relevant testimonies also concurs
with the findings of the Trial Court. The appellants have failed to
disclose any such grounds which will reflect any illegality or us-
sustainability in the findings of the Trial Court.
76. Learned counsel for appellant Manoj has also reiterated the
arguments of the counsel for other appellants without adding anything
new to their pleas and contention. The plea and arguments of the
learned counsel for the appellant Manoj are also to be rejected on the
same grounds on which the pleas and contentions of other appellants
have been rejected by this Court. The learned counsel for the appellant,
Manoj has contended that as per the deposition of PW20, the seven
cassettes allegedly containing the recordings of the ransom demanded
by the accused persons were in an unsealed condition and therefore
could have been easily tampered with and hence the same cannot be
relied on. He has also emphasized that no documentary proof had been
provided to connect the watch and the ring with the deceased, which
therefore does not validate the recoveries made. However on perusing
the record of this Court it is clear that PW-23, Santresh, sister of the
deceased categorically stated identified the cassettes when asked to
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 55 of 71
identify the cassettes which were shown to her by the police in the
Court in a sealed parcel. No other cogent ground has been raised or
facts disclosed which would create any doubt about the authenticity of
the tapes. On the assumption made by the counsel for the appellant
that the cassettes could be tempered, it cannot be inferred that the
cassettes were tempered as has been alleged by the learned counsel.
There are no facts and grounds to infer that the cassettes had been
inferred or could be inferred by the prosecution. Thus on the basis of
pleas raised by the appellants, it cannot be held there had been
tempering of the cassettes. The ring of the accused was identified by his
wife in the TIP proceedings which identification was done in accordance
with rules. In the circumstances no further documentary proof of the
ring recovered from the appellant was required to establish that the ring
was of the deceased. Testimony of PW 47 is produced below which is
reflective of the proper identification done about the ring:
“FIR No.23/00
PS.N.NagriPW-47 Sh.O.P.Saini, Joint Registrar (Addl.District and
Sessions Judge), Delhi High Court, New Delhi.
On SA
On 29/02/02 I was posted as MM KKD Courts. An
application for TIP of a ring and a wrist watch was moved
by OI SI Pyare Lal before my Ld.Link MM and the same was
assigned to me. The TIP was fixed for 07/03/02. However,
on that day I had gone for evidence at Patiala House court
and accordingly the TIP was fixed for 13/03/02.
On that day SI Pyare Lal had brought a sealed
pullanda sealed with the seal of PLP. The pullanda was
stated to contain a gold ring. The pullanda was opened. HeCrl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 56 of 71
had also brought three other similar rings for mixing up. He
had also brought an HMT watch for identification in
unscaled condition. He had also brought three other wrist
watches of HMT make of similar type. The case property
was duly mixed up. The ring to be identified was given
marked D and the other similar rings were given mark A, B
& C. The HMT to be identified was given mark X1 and three
other similar wrist watches were given mark X2 to X4. The
mixing was done of the both items of case property in my
chamber in such a manner that the witness could not see
it. Thereafter IO SI Pyare Lal left my chamber. Witness
Smt.Babli w/o Shokeen Pal was waiting outside in the
court room. She was identified by the IO. She was asked to
identify the ring as well as the HMT watch. She correctly
identified both items after looking at them. Her statement
was recorded and thereafter, a certificate was signed by me
giving the true and full account of TIP proceedings. The
case property was returned to the IO after the
identification. The application for TIP is Ex. PW47/A which
bears my endorsements at point A & B. TIP proceedings are
Ex. PW47/B and bears my signature at point A. The
statement of the witness Smt.Babli is already Ex. PW25/A.
My certificate is Ex. PW47/C which bears my signature at
point B.
Xxxxxxxxx for accused.
NIL (Opportunity given)
RO&ACASJ/Delhi/11/10/07
77. Thus the plea of the learned counsel for the appellant that
identification was not done in accordance with rules or as per the
prescribed procedure cannot be accepted. In any case if there was any
deficiency in identification carried out, it should have been put to the
concerned witness. In the circumstances on the basis of alleged
grounds raised on behalf of the appellants, no illegality can be found in
the inferences of the trial Court and this Court is also of the same view
as has been inferred by the Trial Court in this aspect.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 57 of 71
78. Learned counsel had vehemently argued that since PW-8 and PW-
9 have both turned hostile and did not support the prosecution story,
and also categorically stated that none of the accused persons had
made any calls from the booth and even deposed that it was quite
possible to tamper with the call record, hence despite these facts, trial
court grossly erred in still placing its reliance on the call list procured
by the prosecution from the respective booths. PW34, Mahabir Parshad
who allegedly sold the two gunny bags to the accused persons and PW-
35, Deepak Pundhir, who allegedly sold the 5 fortvin injections to the
accused Manoj, denied the same in their testimony and were also
declared hostile by the prosecution. It is contended that the recoveries
effected against appellant Manoj Kumar Singh cannot be relied on.
However as has been already discussed above just because the
witnesses have turned hostile, it does not mean that the entire
testimony needs to be effaced. It can still be relied on to the extent that
it supports the prosecution case. In any case PW8 and 9 have not
denied the recovery of the call records and neither had PW34 and 35
denied the sale of the gunny bags and the fortvin injections.
Considering the entirety of the record, therefore, it cannot be held that
the recoveries made pursuant to the disclosure statements have to be
completely rejected on account on some of the aspect, some witnesses
going hostile. The other testimonies and the portion of the testimonies
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 58 of 71
of the witnesses who have turned hostile are sufficient to implicate the
appellants and the arguments on behalf of their counsel cannot be
accepted.
79. The learned counsel for appellant Manoj Kumar Singh has further
urged that the trial court was wrong in taking the view that the rented
premises were taken up by Manoj for the sole purpose of abducting
Shokeen Pal and keeping him hostage and the testimony of PW-30 the
owner of the rented premises is reflective of the fact that the said
premises were in possession of the appellant for the past 8/9 years
much before the date of the alleged offence. This plea however, does not
negate the fact that the premises was taken on rent by Manoj Kumar
Singh. The appellant has not denied that the premises were under his
possession. If the possession was of the said appellant, it will become
rather immaterial as to when the premises was taken on rent. This has
been established that the blood stains were found in the premises
which was under the possession of the said appellant. It was, therefore,
for the said appellant to explain as to how his room got the blood stains
which matched with the blood of the deceased. No cogent explanation
has been given by the said appellant. The onus was on the said
appellant under Section 106 of the Indian Evidence Act, 1872, a fact
which was especially within his knowledge. The learned counsel for the
said appellant is unable to explain any cogent reason for the blood
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 59 of 71
stains in the room which was under the tenancy of the said appellant.
Thus on the ground that the premises was taken much before the time
of the alleged offence becomes immaterial and the findings of the Trial
Court cannot be held to be immaterial or illegal in the facts and
circumstances.
80. The disclosure statement of Mukesh is also relied on by the Trial
Court. Manoj had on 5th January, 2000 at 7 pm told Mukesh on the
phone that Shokeen pal was kidnapped on 4/5-1-00 and was kept in
the tenanted room. His disclosure statement further revealed that on
instructions of accused Manoj, he had made ransom calls at phone
number 2812127 at house of deceased. He also disclosed to the family
members of deceased on phone that the car of deceased was parked at
Pahar Ganj Railway Station parking. The trial Court was of the view
that the circumstances of the case suggested that accused at Motihari
was being conveyed about developments at Delhi by co accused Manoj
contemporaneously, that is how in pursuance of such disclosure, car of
deceased was recovered from the Parking lot of Pahar Ganj Railway
station. Otherwise Delhi being a Metropolis with a population of over
1.50 Crore, the car could not have been recovered in such a short
period without any clue, more so when it was stationed at the Parking.
Disclosure statement of Mukesh also reveals that Manoj had told him
on the phone about the arrival of co accused Javed for the treatment at
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 60 of 71
Motihari hospital as Javed had sustained foot injury. This disclosure
was corroborated by recovery of the socks and shoes of Javed with the
holes in them reflective of the injury at the instance of co-
accused/appellant, Manoj, thus was clearly aware of all that was
stated in the disclosure statement of Mukesh and relevant recoveries
were made pursuant to their disclosure statement. The disclosure
statement of Mukesh also revealed that Manoj had suffered losses in his
illegal business of ball bearing smuggling during those days and that he
was in need of money which facts have also been established with the
cogent evidence on record. The trial court has observed that easy money
is such a thing which would easily corrupts the mind of a person having
criminal orientation/ propensity and that the circumstances clearly
suggested that such a conspiracy could not have been executed by two
persons. Thus the motive of abduction of deceased to extort money from
his family members, clearly stands proved as against the appellant
Manoj also. Other circumstantial evidence in the circumstances
establishes the culpability of the said appellant without any reasonable
doubt.
81. The trial Court had also notices and relied on the chance prints of
accused Manoj found at the spot of occurrence, lifted from the glass
and mirror found at the spot which tallied with the specimen finger
prints of the appellant vide Ex PW33/A. While before the trial court the
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 61 of 71
appellant, Manoj denied being the tenant of PW-30, before this court he
hasn’t pressed this plea instead a doubt has been expressed on the
chance prints taken, on the ground that since the trial court had
observed that chance prints of other accused could not be recovered
from the spot of occurrence because the murder had taken place in first
week of January whereas chance prints were lifted as late as on
27.1.2000 when spot could be traced out by the police. It was
contended that if due to lapse of time evidence of chance prints were
damaged/lost of one accused, then how could the chance prints of the
appellant, Manoj could survive? This Court however, does not find any
force in the argument as the appellant has not denied that the he was
in possession of the tenanted premises. In fact it was urged that he
stayed on the premises for the past 8-9 years much prior to the date of
incident. Thus the said appellant should have shown that despite
having possession of the said premises he was not present. There is no
explanation on behalf of the said appellant. Regarding chance prints
also it cannot be held that if the change prints of one of the accused did
not survive or could not be lifted on account of poor quality of chance
prints the prints of other accused also could not be lifted. The plea of
the appellant is based on his own assumption and cannot be sustained
in the facts and circumstances nor can be construed in favor of the
appellant. On the basis of evidence on record the complicity of
Appellant Manoj is clearly and without any reasonable doubt is
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 62 of 71
established. On the pleas raised by the appellant it cannot be also held
that the findings of the trial Court are illegal or unsustainable in any
manner.
82. The learned counsel for the appellant Ikramul Haq has contended
that the prosecution has failed to ascribe a role to the appellant in the
offence and has merely implicated the appellant on the sole basis of the
disclosure statements of the co-accused. It was further contended that
even most of the witnesses have not taken Ikramul Haq’s name in their
depositions. It was also contended that the motive of the said appellant
has not been established.
83. Learned Counsel further urged that the knife recovered at the
instance of appellant Ikramul Haq, as per the deposition of PW-49,
Inspector Pyare Lal recovered on 27th January, Ex. PW 2 /M is different
from the knife that was recovered by PW-37, HC Lajya Ram on 1st
February, 2000, Ex. PW 19/B. It is contended that in light of these two
knives recovered, there is ambiguity as to which knife is the weapon of
offence, therefore the appellant cannot be made liable for the same and
benefit of doubt should be given said appellant. It is also contended that
the knife which was recovered was rusted and did not have any blood,
hence at best this could be a case of destruction of evidence u/s 201 of
IPC and nothing more. However, perusal of the testimony of PW-52 Dr.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 63 of 71
Sumit, who had analyzed these two knives and had given a report
which has been proved it is apparent that injury on the neck of the
body could have been caused by either of these weapons. Since the one
of these knives was recovered at the instance of the appellant, hence
the same is liable to be held against him and it can be construed to be
the weapon of offence. It cannot be held that there is no evidence
against the said appellant or there is reasonable doubt about his
complicity in the offence of murder of deceased Shokeen Pal.
84. Learned counsel has also urged that since the charge framed
against appellant clearly states that death was on account of
strangulation and then the head was severed off and it is not the case of
the prosecution that the appellant had strangulated the deceased, nor
has the same been established, hence the, maximum that can be
attributed to the appellant would be that of destruction of evidence u/s
201 of the IPC. In support of this contention learned counsel relied on
Ramashish Yadav & Ors v. State of Bihar, 1992 (2) JCC [SC] 471. In
this case one of the accused had shot the victim while the others were
mostly guilty of unlawful assembly. The question which was considered
and answered by the Court was, whether the assembly was with the
intention to commit murder. The Supreme Court had held that the
others could not be held liable for murder since there was no prior
meeting of minds which is a pre-requisite under Section 34. However
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 64 of 71
the facts of present case are clearly distinguishable In the case of
present appellant there had been prior meeting of minds and common
intention of abducting and thereafter killing the deceased which has
been established by cogent evidence produced on behalf of the
prosecution.
85. The trial Court has dealt with the role of the appellant, Ikramul in
para 100 of its judgment. The same is reproduced as follows:
“100. Accused Ikramul got recovered knife used in
commission of offence. PW-30 has referred to such
recovery. Disclosure statement of Mukesh refers to Ikramul
being privy to the commission of offence. Since Mukesh has
admitted his guilt so all the investigation conducted qua
Mukesh, can be invoked against co-accused persons as
corroborative piece of evidence in addition to his confession.
Accused Ikramul was also apprehended from the spot along
with prime accused Manoj S/o Bindeshwari and Akhtar.
Ikramul appears in the video tape of recovery with Manoj
and Akhtar. He has not pleaded any alibi rather in
response to Question 44 he comes forth with following
reply.
Q44. It is in evidence against you that thereafter, on 27-1-
2000 you along with your co accused Akhtar and Manoj
Kumar Singh in pursuance of your disclosure statement
took the police party and public witness namely Dr.
Rajinder Singh & Sudhir to Bihari Pur Pulia, Ganda Nala
and pointed out ganda nala where you had thrown the
headless dead body of Shokeen Pal. The dead body was
found at a distance of 100 meter from the place of pointing
near Sher Pur Pulia. You and your co accused persons
pointed out towards a gunny bag floating in the ganda nala
and fished out the gunny bag. Ct. A K Rai took the six
photographs of dead body EX PW 24/19-27. He also
recorded video film of recovery of headless body in a
cassette EX PW 24/B. Pointing out memo and seizure
memo of headless dead body of Shokeen Pal is EX PW 2/ T.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 65 of 71
Dead body was identified by Ranbeer Singh and Sudhir vide
their statement EX PW 31/B and EX PW 2/W. What have
you to say?
Ans. It is correct. On 23-1-2000 police came to my work
place at Tilak Nagar along with accused Akhtar and I was
brought to the place and given a knife and pushed in the
water and took my photograph with knife to frame me in
this case.
101. The answer given by Ikramul is culpably wrong in
view of the visual display of VCR showing the recovery at
the instance of accused persons when the same is
appreciated in the entire context.
86. The relevance of Section 313 has been dealt with by the Supreme
Court in the judgment of Sanatan Naskar & Anr. Vs. State of West
Bengal: AIR2010SC3570:-
“10. The answers by an accused under Section 313 of the
Cr.PC are of relevance for finding out the truth and
examining the veracity of the case of the prosecution. The
scope of Section 313 of the Cr.PC is wide and is not a mere
formality. Let us examine the essential features of this
section and the principles of law as enunciated by
judgments, which are the guiding factors for proper
application and consequences which shall flow from the
provisions of Section 313 of the Cr.PC. As already noticed,
the object of recording the statement of the accused under
Section 313 of the Cr.PC is to put all incriminating evidence
to the accused so as to provide him an opportunity to
explain such incriminating circumstances appearing
against him in the evidence of the prosecution. At the same
time, also permit him to put forward his own version or
reasons, if he so chooses, in relation to his involvement or
otherwise in the crime. The Court has been empowered to
examine the accused but only after the prosecution
evidence has been concluded. It is a mandatory obligation
upon the Court and, besides ensuring the compliance
thereof, the Court has to keep in mind that the accused
gets a fair chance to explain his conduct. The option lies
with the accused to maintain silence coupled withCrl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 66 of 71
simplicitor denial or, in the alternative, to explain his
version and reasons, for his alleged involvement in the
commission of crime. This is the statement which the
accused makes without fear or right of the other party to
cross-examine him. However, if the statements made are
false, the Court is entitled to draw adverse inferences
and pass consequential orders, as may be called for, in
accordance with law. The primary purpose is to establish
a direct dialogue between the Court and the accused and to
put every important incriminating piece of evidence to the
accused and grant him an opportunity to answer and
explain. Once such a statement is recorded, the next
question that has to be considered by the Court is to what
extent and consequences such statement can be used
during the enquiry and the trial. Over the period of time,
the Courts have explained this concept and now it has
attained, more or less, certainty in the field of criminal
jurisprudence. The statement of the accused can be used to
test the veracity of the exculpatory nature of the admission,
if any, made by the accused. It can be taken into
consideration in any enquiry or trial but still it is not
strictly evidence in the case. The provisions of Section
313(4) of Cr.P.C. explicitly provides that the answers given
by the accused may be taken into consideration in such
enquiry or trial and put in evidence for or against the
accused in any other enquiry into or trial for, any other
offence for which such answers may tend to show he has
committed. In other words, the use is permissible as per
the provisions of the Code but has its own limitations. The
Courts may rely on a portion of the statement of the
accused and find him guilty in consideration of the other
evidence against him led by the prosecution, however, such
statements made under this Section should not be
considered in isolation but in conjunction with evidence
adduced by the prosecution.
87. This coupled with the fact that it is on the basis of the disclosure
statement of the appellant, Ikramul that the police had visited the
Kiryana shop of PW-34 from where the two gunny bags were purchased,
in which the body was found, therefore this court too concurs with the
view of the Trial Court in concluding with the guilt of the appellant
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 67 of 71
Ikramul. In any case strangulation of the deceased could not have been
possible without the assistance of the appellants/ co-accused. The trial
Court has also commented on the fact that the deceased was a good
built and therefore it could not have been possible for a single person to
over-power him.
88. In the instant case the evidence produced by the prosecution is
purely circumstantial. The principles on which the circumstantial
evidence is to be evaluated have been stated and reiterated by the
Supreme Court in numerous judgments. We may notice here the
observations made by the Apex Court, in the case of Hanumant Govind
Nargundkar v. State of M.P. MANU/SC/0037/1952: 1952 SCR 1091 on
the manner in which circumstantial evidence needs to be evaluated. In
the aforesaid judgment, Mahajan, J. speaking for the Court stated the
principle which reads thus:
“It is well to remember 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 accused. Again, the circumstances should
be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed
to be proved. In other words, 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.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 68 of 71
The aforesaid proposition of law was restated in the case of
Naseem Ahmed v. Delhi Admn : (1974) 3 SCC 668, by
Chandrachud J. as follows:
This is a case of circumstantial evidence and it is therefore
necessary to find whether the circumstances on which
prosecution relies are capable of supporting the sole
inference that the Appellant is guilty of the crime of which
he is charged. The circumstances, in the first place, have to
be established by the prosecution by clear and cogent
evidence and those circumstances must not be consistent
with the innocence of the accused. For determining whether
the circumstances established on the evidence raise but
one inference consistent with the guilt of the accused,
regard must be had to the totality of the circumstances.
Individual circumstances considered in isolation and
divorced from the context of the over-all picture emerging
from a consideration of the diverse circumstances and their
conjoint effect may by themselves appear innocuous. It is
only when the various circumstances are considered
conjointly that it becomes possible to understand and
appreciate their true effect.
89. On careful consideration of the evidence this court is of the view
that the circumstantial evidence forms a link and every link is to be
established regarding the guilt of the appellants. From the perusal of
entire evidence, recoveries made pursuant to disclosure statement
made by the appellants and that the appellant did not disclose relevant
information which was within their knowledge as contemplated under
Sec. 106 of the Evidence Act, inevitable conclusion is that the
prosecution has been able to make out all the links in the chain of
circumstantial evidence to prove the guilt of all the appellants. No such
cogent grounds have been disclosed which will snap any of the essential
link in the chain of events. No cogent grounds have been made out by
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 69 of 71
the counsel which would show that another theory is reasonably
possible which would indicate the innocence of the appellants so as to
give benefit of doubt to the appellants. The counsel for the appellants
have also failed to show any cogent ground on the basis of which it
could be held that the inferences and findings of the Trial Court suffers
from any illegality or that the judgment of the Trial Court convicting the
appellants would not be sustainable.
90. Thus this Court upholds the findings of the Trial Court that the
prosecution witnesses has indeed supported the core of the prosecution
case and at the instance of accused persons, recovery of headless dead
body and weapon of offence was effected. Further the recovery of the
personal articles of deceased was also effected from the accused
persons; there is no reason to doubt the recoveries made by the various
police witnesses as they have corroborated each other on every aspect.
PW 5, PW 7, PW8 and PW 9 have all deposed that the police officials
had effected the recoveries of the call records from the respective STD
booths. This could have been possible only pursuant to the disclosure
statements made by the accused persons; motive was also effectively
proved and co-accused Mukesh had already pleaded guilty at the
charge stage and was convicted, which is a corroborative evidence for
the accused facing trial.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 70 of 71
91. Therefore considering the entire facts and circumstances and
testimonies of the witnesses and documents on record, there are no
grounds to accept the appeals of the appellants. Therefore all the
appeals of above noted appellants are dismissed and judgment of trial
Court convicting the appellant for various offences and sentencing them
for the said offenses are upheld. The appellants are undergoing
sentences and their sentences were not suspended during the pendency
of their appeal. The appellants shall undergo their sentences. Copy of
this order be sent to the concerned authorities under which the
appellants are undergoing their sentence for compliance of this order.
ANIL KUMAR J.
April 06, 2011 S.L.BHAYANA J.
Crl. Appeals Nos. 762/2008, 932/2008, 1000/2008 & 685/2009 Page 71 of 71