DEVENDER KUMAR Vs. STATE

JUDGEMENT

(1.) This appeal assails the impugned judgment dtd. 10/2/2011 convicting the appellant for the offence punishable under Sec. 302/365/392/201 IPC and order on sentence dtd. 15/2/2011 sentencing the appellant for imprisonment for life and a fine of Rs.3000.00 (simple imprisonment for six months in default of payment of fine) for offence punishable under Sec. 302 IPC, simple imprisonment for five years and a fine of Rs.1000.00 (simple imprisonment for one month in default of payment of fine) for offence punishable under Sec. 365 IPC, rigorous imprisonment for seven years and fine of Rs.2000.00 (simple imprisonment for three months in default of payment of fine) for offence punishable under Sec. 392 IPC and simple imprisonment for five years and a fine of Rs.1000.00 (simple imprisonment for one month in default of payment of fine) for offence punishable under Sec. 201 IPC. All sentences were to run concurrently.

(2.) As per the case of the prosecution on 28/1/2004, a complaint Ex. PW-2/A was made by Sh. Charanjit Singh alleging that on 23/1/2004 at about 12:00 p.m. car No. HR-38FT-3125 (Tata Indica) from his taxi stand was hired by a person stating that he was going to Narora, District Bulandshahr, U.P. and the customer mentioned his address as J-124, Sarita Vihar. The customer mentioned that he would go to National Thermal Plant, Narora and would come back by the evening. The Indica car was driven by Dinesh Sharma (mobile No.9810623545). The driver and the car did not return back by the evening and upon enquiries by the complainant, it was found that nobody from J-124, Sarita Vihar had hired any vehicle. The complainant suspected that the driver had been kidnapped alongwith the car and said he could identify the customer. On his complaint, an endorsement Ex. PW-7/A was made and FIR No. 55/2004 was registered under Sec. 365 IPC (Ex. PW-5/A). As per the call details of the driver's mobile Ex. PW-7/DA, the last call was recorded at 12:44 p.m. and the last location on 25/1/2004 was found at Sikanderabad, District Aligarh in Alpha Sector. Based on information by the brother of the deceased PW-3, Yagya Dev Sharma from a newspaper regarding the recovery of dead bodies from Hazara Nahar, the police party alongwith PW-2 and PW-3 reached PS Dholna and found two dead bodies recovered on 23/1/2004 and one dead body recovered on 25/1/2004. PW-3 identified the photograph of the dead body recovered on 25/1/2004 as that of his brother. Post mortem was conducted and a post mortem report Ex. PW-3/A was prepared and the investigation was handed over to SI Hari Prakash. On 12/3/2004, PW-2 met the IO and presented a black and white photo of the appellant who had been arrested in FIR No. Nil/04 under Ss. 302/201 IPC at PS Atroli, District Aligarh. PW-2 alongwith PW-4 and PW-6, the other witnesses who were at the taxi stand when the Indica had been booked, identified the person in the photograph to be the same as the one who had booked the Indica on 23/1/2004. The photograph Ex. P-1 was seized by the police vide seizure memo Ex. PW-2/D and production warrants were issued against the appellant. It was found that appellant Devender was involved in a number of similar cases and despite production warrants, he was not produced. The IO received a letter from the appellant dtd. 24/4/2004 Ex. PW-16/F where the appellant expressed to disclose entire facts to the case and requested to send production warrants to Bulandshahr. On 13/6/2005, the appellant was produced in the Court of learned MM, New Delhi and was arrested vide arrest memo Ex. PW-8/A. Pursuant to his disclosure statements, the appellant also pointed out the place where the dead body was thrown. Even though PW-2 identified the appellant as the person who had taken the Indica car on 23/1/2004, the car itself was not recovered. A charge-sheet under Sec. 365/392/302/201/120B/34 IPC was filed and charges were framed to which the appellant pleaded not guilty and claimed trial. The prosecution examined 16 witnesses in support of their case, statement of the appellant was recorded under Sec. 313 Cr.P.C. and no evidence was led in defence. Since the appellant was involved in several cases, he could not be produced in the Trial Court for more than two years.

(3.) The appellant through its appeal and submissions on his behalf by learned counsel submitted that the prosecution had been unable to prove the guilt of the appellant beyond reasonable doubt. There was no record that the Tata Indica car was hired by the appellant and no register for the entry of the car given or hired was exhibited before the learned Trial Court. PW-2 did not give a description of the person who hired the car in his complaint Ex. PW-2/1. The identification of the appellant through a photograph produced by PW-2 is shrouded in mystery and he has not stated who showed him the photograph of the appellant. In view of the photograph of the appellant already with PW-2, the identification of the appellant by PW-4 and PW-6 is not admissible. It was not revealed as to before which police officer at PS Atroli, U.P did PW-2 identify the appellant. Moreover, the call records of the deceased are also doubtful since they were submitted for the period 1/1/2004 to 23/1/2004 and not beyond that date. As per the post mortem report, the autopsy was done on 25/1/2004 and the time since death was around four days, thus crystallizing the death of the deceased as prior to 23/1/2004. It was submitted by the counsel for the appellant that even though the appellant had been implicated in a number of similar cases but had been acquitted in all matters except this case. There was no direct evidence in this case and was based on purely circumstantial evidence. In support of its contentions, the counsel for the appellant relied upon Raju v. State of Rajasthan, 2022 SCC OnLine SC 1242 and Munikrishna v. State, 2022 SCC OnLine SC 1449 on the issue of circumstantial evidence and relied upon N.J. Suraj v. State, 2004 11 SCC 346 on the issue of test identification parade (TIP).