RAM CHANDER ALIAS GANJU Vs. STATE OF DELHI

JUDGEMENT

(1.) THESE appeals have been filed against the judgment passed by the learned Additional Sessions Judge, North District, Delhi, in Sessions Case No.67/2006, arising out of FIR No.421/ 2005, registered at Police Station Ashok Vihar, registered under Sections 394/397/302/34 IPC. By virtue of the impugned judgment, the present appellants, namely, Ram Chander @ Ganju, Vijay Kumar @ Mandiya and Sunil @ Nalia have been convicted under Sections 394/ 302 IPC. The appellants are also aggrieved by the order on sentence dated 04.02.2010 whereby the appellants were sentenced to rigorous imprisonment for 7 years and a fine in the sum of Rs1000/- each was imposed in respect of the offence under Section 394 IPC. In default of payment of fine, the convicts were also required to undergo a further period of simple imprisonment of one month each. With regard to the offence punishable under Section 302 IPC, all the appellants were sentenced to imprisonment for life as also to a fine in the sum of Rs1000/- each and in default of payment whereof they were to undergo simple imprisonment of one month each. The sentences were directed to run concurrently.

(2.) WE may point out, at the outset, that there were four accused in the present case, the fourth being one Sanju, who has been declared to be a proclaimed offender. According to the prosecution, the deceased Pawan Kumar, who was on friendly terms with the appellants, was called by them and Sanju in the night of 24.06.2005, between 9- 10 pm, on the pretext of taking a stroll in the park. According to the prosecution, Pawan left with the appellants from his residence and this fact was seen or witnessed by his brothers, namely, PW-2 Parvesh Kumar and PW-3 Satish Kumar. Thus, according to the prosecution, the deceased Pawan was last seen alive in the company of the appellants between 9-10pm on 24.06.2005: The dead body of Pawan was discovered next morning, that is, on 25.06.2005 at about 6.30 am by one Sarju (PW-5) who is the chowkidar of the park. On discovering the dead body of Pawan Kumar, which was lying in the nursery, Sarju informed Mordhwaj (PW-1), who was the supervisor of the nursery. Thereafter, the said supervisor informed J.J. Colony Police Post through his mobile phone and the information was recorded as DD No.35 (Ex.PW12/A). Thereupon, SI Mohar Singh (PW-15) and other police officials reached" the spot where the dead body was lying. The crime team was also summoned to the spot and photographs were taken. In the meanwhile, the deceased Pawan's brothers, namely, PW-2 Parvesh Kumar and PW-3 Satish Kumar, also arrived at the spot and identified the body as that of their brother Pawan Kumar. SI Mohar Singh noted that there were injuries on the head of the deceased and also found some broken pieces of earthen pots lying near the body. Thereafter, inquest proceedings were conducted, ruqqa was sent and the FIR (Ex.PW8/A) was registered. All other formalities with regard to the investigation were completed and, ultimately, the appellants were charged of having committed the offence mentioned above. The case of the prosecution rests on the following circumstances:-

(3.) THE learned counsel for the appellants further submits that even if it is to be assumed that the said PWs, namely, Parvesh Kumar and Satish Kumar had, in fact, last seen the deceased Pawan in the company of appellants at about 9-10 pm, that, by itself, would not be sufficient to return a finding of guilt. He submitted that the last seen evidence, in any event, is a very weak kind of evidence and requires solid corroboration from other circumstances, which have to be clearly established. He submitted that the time gap between PWs 2 and 3 last seeing Pawan Kumar alive in the company of the appellants and the point of time when the dead body was recovered, was too wide to reach a conclusion that there was no other person or persons who could have caused death of Pawan Kumar. He submitted that the body was discovered at 6.30 am in the morning and that he was allegedly last seen alive at about 9-10 pm on the previous night. He further submitted that even if the time of death, as indicated by the post mortem Doctor (PW-10), is taken into consideration, the time of death would be around 1.00 am on 25.06.2005, which would mean that there was a time gap of 3 to 4 hours between the actual death and when the deceased Pawan Kumar was last seen alive in the company of the appellants. Even this time gap, according to the learned counsel for the appellants, was sufficiently large and could not rule out the possibility of any other intervening circumstances or other persons causing the death of deceased Pawan Kumar.