IN THE HIGH COURT OF DELHI AT NEW DELHI

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INDIAN PENAL CODE CRIMINAL APPEAL NO.672 of 2006 & CRIMINAL M.B. NO.1463 OF 2006 Date of Decision: 14th August, 2007 RADHEY SHYAM Through: Mr. R.K. Thakur with Ms. Renuka Mishra & Ms. Disha Arora, Advocates.... Appellant versus THE STATE (N.C.T.) OF DELHI Through: Ms. Richa Kapoor, Advocate.... Respondent CORAM: HON'BLE MR. JUSTICE R.S. SODHI HON'BLE MR. JUSTICE B.N. CHATURVEDI R.S. SODHI, J. (ORAL) 1. This appeal has challenged the judgment and order of Additional Sessions Judge in Sessions Case No.115 of 1999 arising out of F.I.R. No.673 of 1999, Police Station Mangol Puri, whereby the learned Judge vide his judgment dated , while acquitting the co-accused Ajay Soni and Subhash has convicted Radhey Shyam, the appellant herein, for an offence under Section 302 IPC as also 201 IPC and further by order dated , has sentenced the appellant for life imprisonment under section 302 IPC together with fine of Rs. 1,000/- in default, further imprisonment for one month and under Section 201 IPC, imprisonment for seven years and a fine of Rs.1,000/- in default, further imprisonment for a period of one month. Both the sentences were directed to run concurrently. 2. The facts of the case as has been noted by the learned Additional Sessions Judge are as follows:...the deceased Pramod Kumar Goel aged 31 years was dealing in cloth from house no.9/5030, Kaushal Puri, Gali no.4, East Old Seelampur, Delhi. He used to visit Katran Market, Mangol Puri, Delhi in connection with his business. That on at about 2 P.M., he had gone to Katran Market, Mangol Puri, Delhi in his Maruti Car, that he was last seen in his vehicle by a 'Kabari' Shish Pal in Katran Market. He did not reach his home upon which a report of 'missing' was got lodged in the Police Station Mangol Puri. Telephonic call was received at his residence and the caller representig himself as one 'Guru' had wanted the wife of the deceased to talk to one

2 Subhash in connection with Pramod Kumar Goel. The caller also wanted her to talk to one Vipin, a friend of the deceased Pramod Kumar Goel. The caller gave his telephone number as After Vipin Jain reached there, he dialled the aforesaid telephone number and had a talk with the man at the other end. The name of the man on the other end of the telephone line was later on revealed as Subhash. He told that he shall reach Seelampur Railway Phatak soon. Enquiry revealed that on at about 10 or AM, Subhash, deceased Pramod Kumar Goel and Radhy Guru had a meeting in the shop. The complainant named Narender Goel who happened to be the elder brother of the deceased lodged the aforesaid complaint in the Police Station alleging that his brother Pramod Goel had been abducted by the aforesaid person. He also informed the police that Pramod Kumar Goel was carrying a cash of Rs.20,000/-, a gold chain in his neck and a gold bracelet. He was also carring a mobile phone no of ESSAR make. Police registered a case under Section 365 IPC and handed over the investigation to SI Neeraj Kumar. On interrogation, accused Radhey Guru made a disclosure statement. He stated that he alongwith his friends Subhash, Girish, Neha and AjaySoni made Pramod Goel unconscious by making him eat 'Pakoras' in which intoxicating substance was mixed. Neha thereafter brought a poisonous injection which was given to the deceased by Girish. Girish and Subhash took out wads of currency notes from the pocket of Pramod Kumar Goel. They also took out a gold chain, gold bracelet, mobile phone and the keys of the car from the person of Pramod Kumar Goel. On deterioration of his condition, they put him in a gunni bag and kept him in a veranda on the first floor. He (Radhey Shyam) and Ajay Soni kept a watch on Pramod Kumar Goel. Pramod Goel died in the early hours of the next day. On the pointing out of the accused Radhey Shyam, dead body of Pramod Kumar Goel was recovered from the house of Radhey Shyam. Offences U/s 302/201/120B IPC were incorporated in the FIR. During investigation, Shish Pal S/o Molu Ram told the police that on , Pramod Kumar Goel was seen in his Maruti Car at about 1 PM with Subhash and his friend Girish. On further investigation, accused Radhey Shyam and Ajay Soni were arrested on Investigation was handedover to Insp.Ramesh Kumar. Proceedings U/s 82/83 Cr.P.C. were drawn against the accused Neha and Girish. They were declared P.Os. 3. On the material presented by the prosecution in its Challan, the learned Additional Sessions Judge framed the following charge: I, P.C. Ranga, Addl. Sessions Judge, Delhi do hereby charge you (1) Radhey Shyam s/o Ram Snehi; (2) Ajay Kallu s/o Ramesh Chand and (3) Subhash s/o Ami Chand as follows:- 2. That on at the T.V.Centre of accused Radhey Guru situated at Katran Market, Q Block, Mangol Puri, you all accused alongwith Girish and Neha (POS) agreed to do an illegal act i.e. to murder Parmod Kumar Goel and in pursuance of that agreement, all of you gave intoxicating pakoras and poisonous

3 injection to Parmod Kumar Goel and thus all of you thereby committed an offence punishable u/s 120B IPC and within the cognizance of this court. 3. That on at about 2 P.M., at the T.V. Centre of accused Radhey Shyam situated at Katran Market, Q Block, Mangol Puri in pursuance of the said criminal conspiracy, all of you alongwith Girish and Neha (POS) committed murder by intentionally or knowingly causing death of Parmod Kumar Goel and thus all of you thereby committed an offence punishable u/s 302 IPC r/w Section 120B IPC within the cognizance of this court. 4. That on the same date, time and place in pursuance of the aforesaid criminal conspiracy and having reasons to believe that an offence of murder has been committed by all of you, did cause evidence of that offence to dis-appear i.e. all of you tried to remove the deadbody of Parmod Kumar Goel by concealing it into gunni bag which was kept under the old clothes with the intention of screening yourself from the legal punishment and all of you thereby committed an offence punishable u/s 201 IPC R/W Section 120 B IPC and within the cognizance of this court. 4. The prosecution in order to establish its case examined as many as 26 witnesses. The trial court on the basis of the evidence adduced before it held that the charge under section 120-B IPC against all the accused persons was not proved. It also held that the co-accused other than the appellant herein were not guilty under section 302 IPC but went on to hold appellant guilty for an offence under Section 302 IPC as also 201 IPC. The question that has been canvassed before us is whether on a charge framed under Section 120-B/302 IPC, when other co-accused are acquitted, can the appellant be held guilty for the offence under Section 302 simplicitor without any specific role ascribed to him merely on the basis of a disclosure statement leading to the recovery of the dead body? 5. It is argued by the learned counsel for the appellant that the recovery of the dead body at the instance of the accused, at the highest, can be a case where the accused had the knowledge of the location of the body. Nothing beyond that can be attributed with respect to and with aid of the disclosure statement. He contends that mere recovery of body at the instance of the accused is not sufficient to bring home the guilt to the accused under Section 302 IPC. He relied upon a judgment of the Supreme Court in Bakshish Singh Vs. The State of Punjab; AIR 1971 SC 2016, where the court held as follows: Therefore, the only incriminating evidence against the appellant is his pointing the place where the dead body of the deceased had been thrown. This, in our opinion, is not a conclusive circumstance though undoubtedly it raises a strong suspicion against the appellant. Even if he was not a party to the murder, the appellant could have come to know the place where the dead body of the deceased had been thrown. Further, as mentioned earlier, at the bank of the river where the dead body was thrown into the river, there were broken teeth and parts of the human body lying. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place.

4 6. He further relies upon a judgment of Supreme Court in Chhotu Singh Vs. State of Rajasthan; 1999 SCC (Criminal) 461, where the Court held as follows :- The statement made by the appellant before the investigating officer - to the extent it is admissible under Section 27 of the Evidence Act, only proves that he had buried the dead body in the pit knowing that the offence of murder was committed but does not, in the absence of any other material, conclusively prove that he committed the murder. 7. He submits that the trial court was wrong in convicting the appellant for an offence under Section 302 IPC merely on the recovery of the dead body at the instance of the accused. 8. As regards the offence under Section 201 IPC, learned counsel submits that no public witness has deposed that the accused stated in his disclosure statement that he could get the dead body recovered. Since this has not been proved, conviction under Section 201 IPC can also not be sustained. He relies upon judgment of Madhya Pradesh High Court in Dadulla Dhanuki Ram & others Vs. State of Madhya Pradesh; 1962 (2) Criminal Law Journal 690. Learned counsel for the State, on the other hand, contends that the circumstance of recovery of the dead body at the instance of the accused is a strong circumstance which in itself is capable of leading to an inference that it was the accused and only the accused who had committed the murder and, therefore, the trial court was justified in convicting the appellant on the basis of the recovery of the dead body at his instance. She also contends that conviction under Section 201 IPC is also well-founded since the disclosure statement itself has been proved and the admissible portion thereof made use of to discover and recover the dead body. 9. We have heard learned counsel for the parties and with their assistance carefully gone through the record of the case. We are mindful that the trial court has acquitted all the other accused persons of the offence under Section 120-B/302 IPC but has held the appellant guilty of the offence under Section 302 IPC simplicitor. In the absence of any evidence that the deceased was ever seen with the accused in his house or elsewhere or that the accused did any overt act so as to cause any injury to the deceased, it would be highly dangerous to convict the appellant under Section 302 IPC only on the basis of disclosure statement leading to the recovery of the dead body. The recovery of the dead body at the instance of the accused would, at the highest, amount to knowledge of the accused as to where the dead body is and nothing beyond that. We are, therefore, unable to agree with the learned trial court that the appellant on this account would be guilty of an offence under Section 302 IPC. 10. The body of the deceased was recovered from the house of the appellant. The body was concealed in a gunny bag which was stitched and placed amongst the clothes and hidden under a folded bed. This would imply that the body has been removed from the place of occurrence and concealed in the house, obviously to shield the culprits and prevent the detection of crime. Since it was the

5 accused who led the police party to the recovery of the dead body, in the above circumstances, we feel that the offence under Section 201 IPC is proved. Consequently, we uphold the conviction and sentence awarded by the trial court on this count. 11. The objection raised by the learned counsel that no public witness has testified the words uttered by the accused in his disclosure statement that he could have the body recovered and, therefore, the same was not proved is not correct. We find that the Investigating Officer in no uncertain terms has deposed to what has been spoken by the accused person in this regard and what he had taken down. The disclosure statement was exhibited and otherwise proved. The factum of utterance of the words by the accused, therefore, stands proved since we see no reason to doubt the statement of PW-23, SI Neeraj Kumar. 12. In view of the above, Criminal Appeal No.672 of 2006 stands disposed of in the aforesaid terms. Criminal M.B. No.1463 of 2006 also stands disposed of accordingly. Sd/- [R.S. SODHI] JUDGE Sd/- [B.N. CHATURVEDI] JUDGE