NARENDER SINGH Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) NARENDER Singh and Neeraj assail the judgment dated December 21, 2012 convicting them for robbery, kidnapping and murder of Ishwar, Son of Narayan Singh and the order on sentence dated February 26, 2013 directing them to undergo imprisonment for life and to pay a fine of Rs. 8000/ - each and in default of payment of fine to undergo simple imprisonment for 1 year for offence punishable under Section 302/34 IPC; to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 3000 each and in default of payment of fine to undergo 3 months simple imprisonment for offence punishable under Section 392/34 IPC; and rigorous imprisonment for 10 years and a fine of Rs. 5000/ - each and in default of which to undergo 6 months simple imprisonment for offence punishable under Section 364/34 IPC.

(2.) LEARNED counsel for Neeraj assails the judgment on the ground that the only evidence with the prosecution to connect Neeraj with the offences committed is the alleged recovery of the shirt and mobile phone of the deceased at his instance, which do not inspire confidence and are required to be discarded. It is urged that the recovery of the telephone under broken condition was from an open place being precincts of Jal Board where number of people used to visit regularly and is thus not admissible under Section 27 of the Indian Evidence Act. No TIP of the mobile phone was got conducted nor any public witness or witness of the Jal Board was associated with the seizure though employees are found working at the Jal Board throughout the day and night. Though the alleged disclosure was made on August 10, 2004, however recovery was made on August 11, 2004 i.e. after 24 hours though 3 days Police custody remand was given. The place from where recovery was made was known to all including the parents of the deceased and body was recovered from the nearby spot. The place was not guarded and thus could have been tempered with by any public person. There are contradictions in the testimony of the witnesses regarding the colour of the phone and the shirt recovered. The father of the deceased gave a different colour and pattern of the shirt. Further the TIP of the shirt was also not got conducted in a proper manner as it is not clear whether the shirt was mixed with 3 or 4 similar shirts. The shirt was allegedly recovered from open bushes and being rainy season it could not be said that the shirt belonged to the deceased. Further PW -24 SI Sudama admitted that while going for the Test Identification Parade of the mobile phone and of the articles recovered, the father of the deceased accompanied him and he does not say that he did not show the articles to the father of the deceased. The person who allegedly gave the information to the father has not been examined. Further, call details of the father of the deceased have not been proved to show who informed him and gave the names of the appellants. No finger prints from the mobile phone have been lifted. The recovery could at best impute knowledge but not that the crime was committed by the appellants. There is no explanation in the prosecution case as to where the deceased had drunk before being murdered as the post -mortem report shows presence of alcohol. In the crime team report there is no mention about articles missing from the body of the deceased or his personal affects. Para 9 of the crime report clearly states that there is nothing stolen. For the first time in the witness box the post -mortem doctor opined that the cause of death was due to injuries on the testicles though the charge against the appellants was drowning the deceased in the drain after tying the legs. In view of the material discrepancies it is urged that Neeraj be acquitted.

(3.) HEARD learned counsel for the parties. The Police machinery was set into motion on the intervening night of July 25, 2004 and July 26, 2004 by a call received at 12.15 AM through wireless that one Raj Kumar from Mittal Property dealers has informed that his brother is missing and his scooter was found parked there and Police be sent, which was exhibited vide Ex.PW - 18/A. SI Jay Prakash PW -12 recorded the statement of PW -7 Narayan Singh father of Ishwar stating that he has three sons and two daughters and his eldest son Ishwar was aged 34 years. Ishwar was running property dealer business from B -8/37, Sector 11, Rohini. On July 25, 2004 at about 6.00 PM Ishwar went to the office of Pradeep Property dealer at A -1/21 -22, Sector 11, Rohini Delhi. At about 12.00 AM mid -night he received phone call from one property dealer named Gandhi inquiring whether Ishwar had reached the home. When he replied that he had not come, he informed that Narender and other two boys had taken away Ishwar in their van after giving him severe beatings. When complainant reached in front of A -1/21 -22, Sector 11, Rohini he found none. A PCR call was made and he along with the Police made search of Ishwar but they could not find him. On the statement of Narayan Singh Ex.PW -7/A rukka was sent and FIR under Section 365/34 IPC was registered.