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Delhi High CourtIndian Cases

State vs Ramesh Chand Verma Ajay Kumar And Vijay … on 29 August 2006

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Delhi High Court
State vs Ramesh Chand Verma, Ajay Kumar And Vijay … on 29 August, 2006
Equivalent citations: 133(2006)DLT586
Author: P.K. Bhasin
Bench: R.S. Sodhi, P.K. Bhasin
JUDGMENT

P.K. bhasin, J.

1. Conviction of the trio of a father and his two sons for the murder of three persons during the night of 24th and 25th of October, 1998 vide judgment dated 01-10-04 and imposition of death sentence upon the father and life imprisonment upon the two sons vide order dated 06-10-2004 passed by the Additional Sessions Judge, Delhi in Sessions case No. 74/2000 pertaining to FIR No. 1042/98 of Malviya Nagar police station has led to the making of a reference to this Court by the trial court for confirmation of the sentence of death and filing of two appeals by the convicted trio of father and two sons. The Death Reference and the two appeals were taken up together for hearing and all are now being disposed of by this common judgment.

2. The case of the prosecution as put up before the trial court is as follows:

On 24-10-98 SI Virendra Jain(PW-29) received DD No. 29 regarding murder of a chowkidar at F-4D, Saket on which he along with SI Satish Kumar, HC Rohtash and Ct. Yogesh Kumar reached the spot and found a dead body, whose name was revealed to be Narendra Singh from the purse kept in his pocket and was lying on the stairs leading to flat No. F-4C and F-4D. As per further prosecution case there were wounds on the head of the deceased caused by sharp edged weapon. There was blood on the stairs. Near the stair case at a distance of 50-60 yards near the wall of kuradaan a polythene bag was lying which contained a uniform shirt of A.P.Securities, having written on its arm ‘Security APS’ and one pant of coca cola colour, a note book having written on its first page “Pushpraj Kapoor Singh, Father’s name – Arvind Pratap Singh, Village Poora Kalan, District Etawah(UP), present address H. No. 354, Kalyanwas, Super Market, Delhi-91. Near that polythene bag one blood stained shirt was also found.
3. SI Virender Jain also found a dead body of a lady aged about 25-26 years in the small park on the east side of Flat No. F-4B in front of flat No. F-5B. There was an injury on her head caused by some sharp weapon and blunt object. It appeared to the Sub-Inspector that after committing murder of that lady somewhere else dead body had been thrown there and also that both the murders had been committed in the same incident. There was a telephone pocket diary belonging to Pushpraj Kapoor lying near the dead body of the lady and there was also an identity card of Pushpraj of A.P. Securities Pvt. Ltd. besides other papers in a purse which was also lying there. The name of that lady was found to be Namita. Since it appeared to be a case of murder SI Virender Singh sent a rukka(Ex. PW-29/A) to the police station, Saket for registration of murder case under Section 302 IPC. Accordingly FIR No. 1042/98(Ex. PW-9/A) was registered at 2.25 a.m. on 25-10-98. Search was then started for the said Pushpraj Kapoor. In the evening on 25-10-98 in the jungle of Pushp Vihar, sector-5, (which place as per the Investigating Officer PW-29 SI Virender Jain was 11/2 Kms. away from the place where other two dead bodies were found) a dead body in burnt condition was found which appeared to be of a young boy. The dead body was identified by one Santosh s/o Chandra Muni, r/o 707 Sector-5, Pushp Vihar, Delhi, a friend of the deceased, to be that of Pushpraj Kapoor Singh. Inquest proceedings were conducted and later on post-mortem examination of the three dead bodies was also got conducted. Blood stained clothes of the deceased and other articles seized from the places where the dead bodies were found were sent to Forensic Scientific Laboratory from where later on FSL reports were obtained.

4. During investigation it was found that the deceased Narender and Pushpraj were security guards of A.P. Securities at H. No. F-4C, SFS Flats, Saket and deceased Namita was working as a maid servant in several houses there. Pushpraj was living in the house of Ramesh Chand Verma (who is now one of the three convicted accused) in Lado Sarai and one Sagar was also living in the same house of Ramesh Chand Verma. Accused Ramesh Chand Verma was employed in A.P. Securities and he had got employment there for the deceased Pushpraj Kapoor Singh. Ramesh Chand Verma had a daughter by the name of Jyoti. Pushpraj and Sagar, as per the prosecution case, both had a love affair with Jyoti. Pushpraj and Sagar were friends but since Pushp Raj once blamed Sagar of theft he(Sagar) started living separately. Sagar allegedly then told Jyoti’s father and her brothers Ajay and Vijay(who are the other two convicted accused) about the love affair of Jyoti and Pushpraj. That revelation made them unhappy. It was the further prosecution case that the father and two brothers of Jyoti decided to kill Pushpraj and since Jyoti leaned more towards Pushp Raj and reduced her inclination towards Sagar he(Sagar) had developed ill will against Pushp Raj and so he also allegedly joined Jyoti’s father Ramesh Chand Verma and her two brothers Ajay Kumar and Vijay Kumar in their design to get rid of Pushpraj.

5. Till 05-01-99 the police did not get any clue about the triple murder. However, on 06-01-99 the police came in contact with one Abhay Kumar Singh(PW-3) who had come to Delhi on 23-09-98 along with the deceased Pushpraj from their village in Itawa District (UP) to get some job. That Abhay Kumar Singh informed the police that he had come to Delhi on 23-09-98 along with Pushpraj of his village to get a job in the Security Company where Pushpraj was employed. Pushpraj introduced him to accused Ramesh Chand Verma and his two sons accused Ajay Kumar and Vijay Kumar and Pushpraj recommended to them to employ him in their Security Company. He got job there as a Security Guard. Abhay further informed the police that once Vijay Kumar(accused) came to him and enquired from him about the place of duty of Pushpraj and then they had gone to flat No. F-4C, Saket where Pushpraj was found along with one Narinder Kumar(the deceased) who was also a Security Guard there and their duty was for 12 hours each. On 07-10-98 Pushpraj had told him that he was in love with the daughter of Ramesh Chand Verma Jyoti and also that she used to write love letters to him in the name of Radha. Pushpraj had shown to him one such letter that day. Pushpraj had also told him that Ajay Kumar and Vijay Kumar had met him 2-3 times and it appeared that they had come to know about his love affair with Jyoti through Sagar(the acquitted accused). He had also expressed his apprehension that they might get him killed. Abhay further told the police that on 24-10-98 Vijay Kumar and Ajay Kumar had come on a TSR No. DL-1R-2176 to the house of Vinesh in Jaitpur where he(Abhay) was staying and enquired from him about Pushpraj as their father wanted to meet him. He then accompanied them in that three wheeler to F-4C, Saket where Pushpraj was found and Ramesh Chand Verma was also present there talking to Pushpraj. After leaving Ajay, Vijay and their father there with Pushpraj he came back to Jaitpur. In view of this information provided to the police by Abhay Kumar Ramesh Chand Verma and his two sons Ajay Kumar and Vijay Kumar and the above named Sagar were arrested. During investigation the police also recorded the statement of one Sunil Sharma (PW-20) who claimed himself to be the owner of three wheeler scooter No. DL-1R-2176 in which as per the prosecution case accused Ajay Kumar and Vijay Kumar had come to the house of PW-3 Abhay Kumar Singh on 24-10-98 to enquire about the deceased Pushpraj and in which scooter the said two accused and Abhay Kumar Singh had gone to Saket Flats where the deceased Pushpraj was performing his duty. This witness informed the police that he was the owner of three wheeler scooter No. DL-1R-2176 and he had given that scooter on rent to Ajay Kumar(accused) at the rate of Rs. 1800/- per month and that on 24-10-98 also that scooter was with Ajay Kumar. On the basis of this information the police seized the said scooter which was found parked outside the house of accused Ramesh Chand Verma.

6. On completion of investigation of the present case the police filed a charge-sheet in Court against four accused persons, namely, Ramesh Chand Verma, Ajay Kumar, Vijay Kumar and Sagar Singh for the commission of offences under Sections 302/201/120-B IPC. In due course the four accused persons were committed to Sessions Court. The learned Additional Sessions Judge framed a charge under Section 120-B IPC and also under Sections 302/120-B and 201/120-B IPC against all four of them. The accused persons pleaded not guilty to the charges framed against them and claimed to be tried.

7. To prove its case the prosecution examined as many as 33 witnesses. Thereafter statements of the four accused were recorded under Section 313 Cr.P.C. and they denied the prosecution allegations in toto. Accused Ramesh Chand Verma and his two accused sons Ajay Kumar and Vijay Kumar claimed that PW Abhay Kumar Singh was the neighbour of the deceased Pushpraj and had deposed against him but he was a ‘built up witness’. They further claimed that since it was a case of three murders there was a lot of media pressure upon the police and one Additional SHO was suspended and SHO and even the ACP were transferred and when the new SHO took over they were falsely implicated because they had made various representations to the Lt. Governor, Chief Justice of High Court of Delhi etc. that the police officials were harassing them. They denied that Abhay Kumar Singh was employed with A.P. Securities and also that Sagar had lived with them.

8. The appellants – accused examined one witness also in defense to show that accused Ramesh Chand Verma was employed as an instructor in AP Securities, 267, Satya Niketan, New Delhi.

9. After considering the evidence adduced by the prosecution the learned Additional Sessions Judge vide his judgment dated 1st October, 2004 convicted the appellants Ramesh Chand Verma, Ajay Kumar and Vijay Kumar for the commission of the offences under Sections 302 read with Section 120-B IPC and also under Section 201 read with Section 120-B IPC. Vide order dated 6th October, 2004 the trial Court awarded death sentence to the appellant Ramesh Chand Verma for his conviction under Section 302 read with Section 120-B IPC while accused Ajay Kumar and Vijay Kumar were awarded life imprisonment and they were also imposed a fine of Rs. 5000/- each, in default of payment of which they were to undergo further RI for six months. For their conviction under Section 201 IPC they were awarded rigorous imprisonment for seven years and were also sentenced to fine of Rs. 1000/- each and in default of payment to undergo further rigorous imprisonment for two months. For their conviction under Section 120-B IPC both of them were sentenced to rigorous imprisonment for ten years and to pay a fine of Rs. 2000/- each and in default to undergo further rigorous imprisonment for three months. The substantive sentences of imprisonment were directed to run concurrently. Since death sentence was imposed on the appellant Ramesh Chand Verma the trial Court made a reference to this Court for confirmation of the same as required under Section 366 Cr.P.C. As far as the fourth accused Sagar Singh is concerned he was acquitted of all the charges.

10. Since this is a case of death penalty we would ourselves analyze and assess the worth of the prosecution evidence for satisfying ourselves whether the prosecution has been able to prove its case beyond reasonable doubt or not. It was held by the Hon’ble Supreme Court in State of Tamil Nadu v. Rajendran that when a Death Reference is made to High Court for confirmation the High Court has to satisfy itself whether a case beyond reasonable doubt has been made out against the accused for imposition of the extreme penalty of death and for that the proceedings require a re-appraisal and reassessment of the entire facts and law so as to arrive at its independent conclusion.

11. In an earlier case reported as Jumman and Ors. v. State of Punjab also it was held by Hon’ble Supreme Court while dealing with a death penalty case as under:

12. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law above-mentioned it is for the High Court to come to an independent conclusion of its own.

12. So, now we proceed to consider the prosecution evidence. There is no direct evidence of the triple murder and prosecution case rests on circumstantial evidence only. The learned trial Court had observed in para No. 51 of the judgment of conviction as under:

In order to prove the case against the accused persons the basic facts to be established are that the death of Pushp Raj, Narinder and Namita was caused and they died unnatural death of as alleged. Secondly there was conspiracy of the Accused regarding causing death of Pushp Raj. Thirdly there was role of the Accused persons in causing death of the victims. Fourthly there had been motive to the Accused persons for causing death. The PW-5 Dr. O.P.Murthy conducted the post mortem on the dead body of Narinder vide post mortem report Ex. PW-5/A and PW-32 Dr. Sunil proved the post mortem report of Namita wife of Vishwajit Haldar vide Ex. PW-32/A and PW-33 Dr. Parshant Kulshresht conducted the post mortem on the dead body of Pushp Raj Kapoor Singh vide his post mortem report Ex. PW-33/A. the death of all the three victims is proved by these doctors. This fact is further confirmed by the public witnesses PW-6 Avdesh Kumar, PW-2 Arvind Partap Singh, PW-8 Ram Ikbal Singh, PW-15 Ved Parkash and others who identified their dead bodies. All the three doctors proved the post mortem report and also proved the injuries shown in the post mortem report. There is similarity in the injuries of all the three deceased with respect to their period since death, the nature of injuries caused, the nature of weapon used and the manner the death was caused except as per post mortem report Ex. PW-33/A the dead body of Pushp Raj Kapoor Singh was also burnt after causing death as it has burn injuries, post mortem in nature. The cause of death in all the three cases is head injury. The injuries are on temporal region and the scalp got fractured and the bone pieces have pierced into the brain matter and brain matter was also coming out in case of Narinder. Therefore, these similarities indicate that their murder had been caused by the same person or persons with the same weapon and around the same time.
13. As far as the fact that the three deceased persons died an unnatural death is concerned there is no dispute raised on that aspect on behalf of the convicted accused before us. That fact in any case stands duly established from the circumstances in which their dead bodies were found lying here and there and also from the post-mortem reports of the autopsy surgeons.

14. PW-5 is Dr. O.P.Murthy who conducted post-mortem on the dead body of deceased Narender and found following internal injuries on examination:

1. Cut wound with contused margins measuring 4 x 1.5 cm. 4 cm. from the medial and right eye brow.
2. Cut wound with contused margins of 3.5 x 0.5 cm. 2 cm. above the lateral end of left eye brow.
3. Cut wound with contused margins measuring 8.5 x 3 cm. on right front of parietal region 2 cm. above the injury No. 2 and was bone deep.
4. Cut wound with contused margins of 9 x 2 cm. 3 cm. above the right mastered bone deep.
5. Cut wound with contused margins of 11 x 5 cm. on right parietal bone. 3 cm. from injury No. 4. It was brain cavity deep and brain matter was cut and exposed.
6. Cut wound of 4x 1 cm. on right ear upper margin.
7. Cut wound on left lobe of ear of 2 x 1 cm.
8. Cut wound with contused margins of 2 x 1.5 cm. 4cm about the right ear.
PW-5 gave the cause of death as head injury caused by sharp cutting weapon. All injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature and time since death was found to be about 3 days prior to conducting of post-mortem.

15. PW-33 is Dr. Parshant Kulshreshth who conducted post-mortem on the dead body of deceased Pushpraj Kapoor Singh. He deposed that dead body when produced was naked, charred all over except soles with a part of socks stuck to it. He also deposed that clothings were all burnt and seen stuck to the body which was in pugilistic attitude and tongue was seen protruding out. He further deposed that deep burn wounds weere present on both side of neck expanding up to the shoulders, back of neck, back of chest and the abdominal wall, the muscles were exposed and partly charred. He found the following anti-mortem injuries on external examination:

1. Depressed fracture of left temporal bone, frontal bone on left side was also fractured and separated.
2. Depress fracture of right temporal bone and right parietal bone with gaping wound of skull bone of size of 8 x 4 cm with displaced bone piece seen piercing deep in the brain matter. Temporal bone piece was found separate from rest of the skull bone.
3. Fracture of base of scalp.
He gave the cause of death as head injury caused by heavy sharp cutting and blunt object and stated that the injuries were sufficient to cause death in ordinary course of nature and the time since death was about 66 hours. He proved his detailed report as Ex. PW-33/A.

16. The post-mortem report of the deceased Namita was proved by PW-32 Dr. Sunil Kumar since the doctor who had conducted the post-mortem examination was not available having left the services of the hospital where he was employed. Dr. Sunil Kumar stated that as per the post-mortem report Ex. PW-32/A the cause of death of Namita was head injury caused by blunt force impact sufficient to cause death in the ordinary course of nature.

17. It, thus, stands established that all the three deceased met with homicidal death.

18. The learned Counsel for the appellants, however, seriously took a plea that the charge of conspiracy has not been established at all nor it has been established beyond reasonable doubt that the appellants were the killers of the deceased Pushpraj Kapoor, Narender and Namita. In order to find out whether it is really so, as contended by the learned Counsel for the appellants Shri Mukesh Kalia, we would now examine the relevant prosecution evidence.

19. PW-3 Abhay Kumar Singh @ Bablu who is the star witness for the prosecution has deposed that the deceased Pushpraj belonged to his village. On 23-9-98 he came to Delhi along with Pushpraj for service and went to Lado Sarai at the house of R.C. Verma where his two sons Ajay and Vijay were also introduced to him by Pushpraj. He further deposed that he was employed in AP Securities at the recommendation of R.C. Verma. He also deposed that his residence was at Jaitpur while the deceased Pushp Raj was residing with the accused. PW-3 further deposed that on 24-10-98 accused Ajay and Vijay came to his house on auto rickshaw in the evening and enquired about Pushpraj and he told them that he himself had not been able to meet Pushpraj for the last 3-4 days. He also deposed that he then accompanied Ajay and Vijay to house No. F-4C in Saket where he found R.C. Verma and Pushpraj present. He stayed there for some time and then came back to Jaitpur leaving Ajay, Vijay, R.C. Verma and Pushpraj there. PW-3 further deposed that Pushpraj had told him that he had fallen in love with the daughter of R.C. Verma namely Jyoti whose name he had changed in love as Radha. He also deposed that Pushpraj had expressed his apprehension that R.C. Verma and his sons might get him killed as he had fallen in love with Jyoti @ Radha.

20. PW-29 SI Virender Jain is the initial Investigating Officer of the case. He has deposed that on 24-10-98 he was posted as in charge of the police post in Saket and on that day at 11.58 p.m. DD No. 29 was received at police post on which he along with SI Satish Kumar, HC Rohtash and Ct. Yogesh reached at the spot in Saket where in the staircase of Flat Nos. 4C & 4B one dead body was lying. He then deposed that on examination of the dead body he noticed injury by some sharp weapon on the head of deceased and on enquiry he came to know his name to be Narender, guard of that building. He also deposed that in front of that building 4C & 4D there was one kuradan at a distance of 50/60 yards where he also noticed enough blood lying besides one polythene containing one uniform of guard and one register on the first page of which Pushpraj Kapoor Singh was written. He thereafter deposed that in front of house No. F-5B there was a small park where they found one dead body of a lady on whose head he also noticed injury by some sharp weapon and blunt object. He also found one purse containing I Card of Pushpraj Kapoor Singh AP Securities, one diary of Pushpraj and two letters out of which one was addressed to Pushpraj and other was addressed to Dipali lying near the body. He also deposed about the various steps taken by him during the investigation as an investigating officer such as lifting of articles from the spot, recording of statement of witnesses etc.

21. PW-31 Insp. Rajbir Singh is the police official who had taken over the investigation of this case on 06-01-1999. He has deposed that on 6-1-99 he took up the investigation of this case on which day father of Pushp Raj Shri Arvind Pratap Singh gave him a copy containing hand writing of deceased Pushp Raj which he seized vide memo Ex. PW-2/A. He then deposed that on 07-01-1999 he lifted blood sample with the help of cotton from the back seat of TSR No. DL 1R 2176 which was found parked in front of H. No. F-174, Lado Sarai. He also deposed that he arrested all the four accused persons vide personal search memos Ex. PW-29/1 to 4.

22. These were the only witnesses whose evidence was referred to during the course of hearing of these matters. Most of the other witnesses were formal who had taken some part or the other during the investigation. They were police officials. Some of the public witnesses examined by the prosecution for establishing the love affair between the deceased Pushpraj, acquitted accused Sagar Singh and Jyoti had turned hostile. We, therefore, need not refer to their evidence in detail and it would be sufficient to simply make a brief narration of what they have deposed.

23. PW-1 Dr. A.K.Srivastava, Senior Scientific Officer from FSL has proved the biological and serological reports prepared by him.

24. PW-2 Arvind Pratap Singh and PW-4 Amit Kumar Verma are the father and cousin brother of deceased Pushpraj. They deposed about the identification of the dead body of Pushpraj.

25. PW-6 Avdesh Kumar also deposed about the identification of the dead body of deceased Pushpraj.

26. PW-7 Ct. Narender has proved the DD No. 29 written by him on 25-10-98 regarding the murder of a chowkidar.

27. PW-8 Ram Iqbal Sinha has deposed about identification of the dead body of deceased Narender.

28. PW-9 HC Dalvir Singh has proved the FIR No. 1042/98 as Ex. PW-9/A recorded by him on 24-10-98.

29. PW-10 Baljit Singh is the landlord of accused persons. He deposed about accused Ramesh Chand Verma, Ajay Kumar and Vijay Kumar living in his house as tenant and he also deposed that one Sagar was also living in the same house. This witness was examined to establish the love affair between Jyoti and the acquitted accused Sagar Singh. He, however, did not support the prosecution case regarding the love affair between Sagar Singh and Jyoti.

30. PW-11 SI Satish Kumar had also accompanied SI Virender Jain to the spot on getting the information about the murder of a chowkidar. He has deposed about the proceedings conducted by SI Virender Jain at the spot.

31. PW-12 Jashvir Singh, who was working as Field Officer in A.P.Securities, deposed. He deposed that Pushpraj was on duty at F-4C, SFS, Saket, New Delhi from 8 a.m. to 8 p.m. on 24-10-98 and after that Narender took the charge from him.

32. PW-13 Ct. Daya Nand deposed about taking of the dead body of deceased Namita to mortuary of AIIMS for post-mortem on 25-10-98.

33. PW-14 Ct. Rajbir Singh deposed about depositing the exhibits at FSL Malviya Nagar after taking the same from the malkhana, PS. Malviya Nagar on 08-01-1999.

34. PW-15 Ct. Ved Parkash deposed about taking of the dead body of Pushpraj to mortuary of AIIMS for post-mortem on 27-10-98.

35. PW-16 Ct. Dev Kumar deposed about seizure of one letter produced by Sagar Singh which was written by Kajal and addressed to Sagar. He deposed that on 26-10-98 one Sagar Singh(acquitted accused) son of Vindeshwari Singh came to the police post, Saket and handed over one letter written in the name of Kajal addressed to Sagar and he seized that letter mark ‘A’ vide memo Ex. PW-16/A.

36. PW-17 Ct. Kanwar Singh deposed that on 27-10-98 he got conducted post-mortem on the dead body of deceased Narender Singh in the AIIMS Hospital.

37. PW-18 SI Madan Lal proved the site plan Ex. PW-18/A prepared by him on the pointing out of SI Virender Jain.

38. PW-19 SI Mohar Singh proved the Report of Inspection Ex. PW-19/A prepared by him regarding H. No. 4D, F Block, Saket, New Delhi.

39. PW-21 Daya Ram deposed that he knew Pushpraj and that Pushpraj once disclosed to him that he had a quarrel with 2/3 persons in Delhi but he did not tell their names. He was cross-examined by the public prosecutor when he admitted that Pushpraj had told him that he had a quarrel with Sagar @ Bihari (acquitted accused).

40. PW-22 Ct. Rajesh Kumar deposed about his delivering the copies of FIR to senior officers and the Magistrate on 25-10-98.

41. PW-23 Vipin Bihari, younger brother of deceased Narender, deposed that he identified the dead body of his brother in the AIIMS mortuary and received the same vide memo Ex. PW-8/A.

42. PW-24 Pradeep Mehto also was examined to establish the love affair between Jyoti, the deceased Pushpraj and the acquitted accused Sagar Singh. He also did not support the prosecution case.

43. PW-25 Raje Singh Bisht deposed that accused Sagar was working with him as security guard in Broadway Security and on 24-10-98 accused Sagar had reported for his duties 10/15 minutes late and came around 8.15 p.m. and on being asked about his late arrival Sagar told him that he had got late as his cycle got punctured. This witness was also cross-examined by the public prosecutor and in that cross-examination he denied the suggestion that Sagar had come for his duty that day at 9.30 p.m.

44. PW-26 Ct. Rajesh Kumar, who already stood examined as PW-23, appears to have been examined again inadvertently. His evidence has already been noticed.

45. PW-27 Ct. Ram Avtar is the photographer who deposed that he took photographs of all the three dead bodies on the direction of IO.

46. PW-28 Satish Kumar, who is a driver by profession, deposed that Pushpraj was a security guard in F-4C, SFS Flat, Saket. He, however, denied that he had identified the dead body of Pushpraj. He was then cross-examined by the public prosecutor but in that cross-examination he did not admit the suggestion that Pushpraj was wearing a blood stained shirt a day before the incident.

47. Having noticed the evidence of the prosecution witnesses we now proceed to find out if the guilt of the appellants stands established or not. As noticed already PW-3 Abhay Kumar Singh is the star witness of the prosecution. Evidence of Abhay Kumar Singh has been made as the main basis for the conviction of the three appellants by the trial Court. The circumstance sought to be established from his evidence is what is commonly known in criminal trials as ‘last seen’ circumstance. Through his evidence the prosecution had also sought to establish the motive for the murder of deceased Pushpraj. Counsel for the appellant submitted that the evidence of this witness of ‘last seen’ does not at all inspire confidence and should not have been relied upon by the learned Additional Sessions Judge. He further argued that evidence of PW-3 suffers from a number of infirmities. On the point of ‘last seen’ evidence and its value learned Counsel also cited some judgments of Supreme Court reported as Lakhanpal v. The State of Madhya Pradesh AIR 1979 SC 1620; Kishore Chand v. State of Himachal Pradesh ; Inderjit Singh and Anr. v. State of Punjab ; Tarseem Kumar v. The Delhi Administration 1995 CRL.L.J. 470; and Ravinder Parkash and Anr. v. State of Haryana 2002 CRI.L.J. 4714 and also one decision of this Court in Raj Mani v. State 1997 (III) AD (Del.) 1014. On the other hand learned Counsel for the State while fully supporting in general the judgment of the trial Court submitted that PW-3 Abhay Kumar Singh is fully reliable and trustworthy and there should be no hesitation in accepting his testimony on this circumstance of last seen which along with other circumstances proved by the prosecution fully establish the guilt of the appellants.

48. In a case of ‘last seen’ evidence the prosecution is required to establish by definite evidence that the victim had been killed and the accused must be aware of that and the death must have been proximate to the time of accused and the deceased being last seen together. Last seen theory comes into play when time gap between the time of death of the deceased and the time when the accused and the deceased were last seen together is so small that possibility of any other person killing the deceased becomes impossible. Where such time gap is long possibility of some else being the author of the crime cannot be ruled out and in such a situation it is not safe to convict an accused on the evidence of last seen circumstance.

49. After carefully examining the examination-in-chief as well as the cross-examination of the star prosecution witness PW-3 Abhay Kumar Singh we have no manner of doubt that his evidence cannot be said to be reliable and trustworthy either on the aspect of last seen circumstance or on the conspiracy aspect of the matter. There are many reasons to hold that. Before we give our reasons for discarding the evidence of PW-3 Abhay Kumar Singh we may notice that in the judgment under challenge the learned Additional Sessions Judge himself in para No. 60 had observed that “there are certain reasons to doubt his testimony.” We now give our reasons for doubting the testimony of this witness. Abhay Kumar Singh claims himself to be a dear friend of the deceased Pushpraj. He claims that he got the job of a Security Guard in the Company of accused Ramesh Chand Verma on the recommendation of Pushpraj. He also claims that Pushpraj had taken him into confidence and disclosed about his love affair with the daughter of accused Ramesh Chand Verma and also about his apprehension that he was fearing that Ramesh Chand Verma and his sons may get him killed because of his love affair with Jyoti. Inspite of that much close relationship between PW-3 Abhay Kumar Singh and the deceased Pushpraj this witness despite having come to know about the murder of Pushpraj 3/4 days after the murder, as claimed by him during his cross-examination, did not even inform anyone till 06-01-1999 about the deceased Pushpraj having expressed to him the danger to his life at the hands of the three appellants. Nor did he contact the police to disclose this fact as also about accused Ajay Kumar and Vijay Kumar having come to his house in Jaitpur on 24-10-1998 in the evening to enquire about Pushpraj and his having accompanied them to the place of duty of Pushpraj as well as Pushpraj being found at the place of his duty in Saket in the Company of accused Ramesh Chand Verma and then his coming back to Jaitpur after leaving the deceased Pushpraj there in the Company of three appellants. In cross-examination PW-3 stated that he had left Delhi in the end of October, 1998 and by that time he had come to know that Pushpraj had died. Still he did not bother to disclose to the police at that time before leaving Delhi about what he had been informed by Pushpraj. It is the admitted case of the prosecution that PW-3 Abhay Kumar Singh’s statement was recorded by the police for the first time on 06-01-1999. That much delay has remained unexplained and that fact casts a serious doubt about the correctness of the version of this witness. In one case reported as 1997 SCC (Crl.) 156, Paramjit Singh and Ors. v. State of Punjab and Ors. Hon’ble Supreme Court did not believe the statement of two witnesses of circumstance of last seen because their statements under Section 161 Cr.P.C. were recorded after about 4 1/2 months and no explanation had been offered for such a long delay. So the evidence of those two police officials to the effect that the deceased was seen alive in the company of the accused of that case was not accepted.

50. During cross-examination PW-3 also admitted that police had come to his village two times but he did not know whether his statement was recorded by the police at that time. If during that period also this witness did not inform the police about the aforesaid facts within his knowledge we can safely say that the version of this witness now being told by him in Court is an afterthought and introduced at the instance of the police. We are fortified in this view of ours by the statement made by this witness in his cross-examination to the effect that once he had stayed in Saket thana for one day when Pushpraj’s father had also come with him from the village. There is no explanation from the prosecution side as to why this witness had stayed at the police station. All these facts cast a very serious doubt about the veracity of the testimony PW-3 Abhay Kumar Singh. His evidence , in our view, cannot be used by the prosecution to show that the appellants had conspired to kill Pushpraj or that on 24th October, 1998 the deceased Pushpraj was last seen in the company of three appellants. So this strongest circumstance pressed into service by the prosecution does not get established.

51. Evidence of Abhay Kumar Singh was also pressed into service by the prosecution to establish the motive for killing of Pushpraj. However, the mere ipse dixit of this witness that once Pushpraj had told him that he had fallen in love with the daughter of Ramesh Chand Verma, namely, Jyoti and that he was apprehensive that Ramesh Chand Verma and Ajay Kumar and Vijay Kumar might get him killed there is no other evidence to establish the said notice. Jyoti has not been examined by the prosecution. Abhay Kumar Singh does not claim that he himself ever saw the deceased Pushpraj and Jyoti together . There is also no evidence to establish love affair between the acquitted accused Sagar Singh and Jyoti. PW-10 Baljit Singh, landlord of accused persons examined on this point turned hostile. PW-24 Pardeep Mehto examined to show the triangular love story also turned hostile. Prosecution in this regard examined the father of Pushpraj PW-2 Arvind Partap Singh. He also deposed that he had handed over to the police one copy Ex. P-1 containing handwriting of Pushpraj. This copy was seized by the police probably to compare the handwriting of the deceased Pushpraj contained in this copy with the expression of his love in writing towards Jyoti in the name of Radha. That writing of Pushpraj was allegedly contained in a copy Ex. P-33 which PW-29 SI Virender Jain found at the place where dead body of Narinder Singh was found. However, there is no evidence to show that the expression of love in writing in the copy Ex. P-33 towards Radha, who according to the prosecution was actually Jyoti daughter of accused Ramesh Chand Verma, was in the handwriting of the deceased Pushpraj. The learned Additional Sessions Judge while holding the presence of motive observed in para No. 64 of his judgment as under:

The PW-2 Arvind Pratap Singh produced a copy of Pushp raj in the handwriting of Pushp Raj. PW11 stated that in polythene bag near dustbin a copy in which on the first page Pushp Raj Kapoor is written was found and seized along with other articles vide Ex. PW11/C which is Ex.P1. it has several pages written about his love with Radha. Handwriting of PW1 was identified by the father of Pushp Raj as per PW29. the PW29 also seized a letter from accused Sagar Singh mark A and two more letters mar B and C. Letter mark A and B are in same hand writing by Kajal and Radha respectively to Sagar and Pushp Raj respectively with similar characters. The expression in the both letters are identical to draw inference. Author of two letters appears one and the same person. Letter mark C is to Deepali. The Mark C letter referred to annoyance of Pushp Raj with Radha due to her love for Sagar Singh. By letter mark B Radha @ Jyoti tried to convince Pushp Raj that she had love for Pushp Raj only and not for Sagar Singh. Even otherwise hand writing of Jyoti on letter mark A and B was got confirmed. Therefore the same was not required sending to hand writing expert for opinion. The hand writing of mark C is exactly same as found in copy in the name of Pushp Raj found in polythene bag. Thus accused R.C. Verma, Ajay Kumar and Vijay Kumar had opportunity as well as motive to commit the offence. Except these three none else could have murdered Pushp Raj.
52. However, we find that the so called love letter mark B purporting to be of the daughter and sister of the appellants had not been proved as per law to be in the handwriting of Jyoti @ Radha. The trial Court has simply presumed that the said letter was written to Pushp Raj by the daughter of Ramesh Chand Verma and sister of accused Ajay Kumar and Vijay Kumar. In the absence of any evidence to that effect the learned trial Court could not have come to that conclusion and returned the above quoted findings. The investigating officer did not even interrogate Jyoti nor took her specimen handwriting which could be got compared with the above referred letters mark A&B. The trial Court has also assumed without there being any evidence that Radha and Kajal were the assumed names of Jyoti and so letters mark A&B had, in fact, been written by her to Sagar (the acquitted accused) and Pushpraj respectively. Similarly the writing in the copy Ex. P-33 seized from the spot containing expression of love by Pushpraj towards Radha has not been proved to be that of the deceased Pushpraj. His father has not actually identified that handwriting in Ex. P-33 as has been noticed by the trial Court nor does PW-29 say that father of Pushpraj had identified the writing in the copy Ex. P-33 to be that of Pushpraj. Ex. P-1 referred to by the trial Court is actually the register handed over to the police by the father of Pushpraj and not the one which police recovered from the spot.

53. As far as the motive for the murders of Narender Singh and Namita is concerned the trial Court on its own has come out with a motive for their being killed by the appellants. In para No. 67 of the judgment the learned Additional Sessions Judge has observed like this:

…the death of Pushpraj was because by hitting on his skull in temporal region. A person receiving hit in this position cannot make sound and spontaneously shall become unconscious. When murder of Pushpraj committed near dustbin could not be gone unnoticed by the guard at post in F-4C at point ‘A’. The guard Narinder has not agreed to keep mum or tried to inform police or other people. The culprits had no alternative but to make him silent same way as Pushpraj had been made just before him. By chance Namita has appeared there at that very movement and she is murdered to eliminate the eye witness of murder of Narinder. The culprits have removed the dead body of Pushpraj by TSR No. DL-1R-2176 to jungle and left the body of Narinder and Namita at the spot. The circumstances have established a complete chain, every link of which is pointing out towards only guilt of accused R.C. Verma, Ajay Kumar and Vijay Kumar and nothing consistent to their innocence. However, the presence of accused Sagar Singh is doubtful at the spot.
We find not an iota of evidence based on which the learned Additional Sessions Judge could have reached the said conclusions which in our considered view appear to be totally imaginative and conjectural.
54. The other circumstance which was sought to be relied upon by the prosecution and which , in fact, has been relied upon by the learned Additional Sessions Judge also is the find of human blood of ‘AB’ group on the back seat of TSR No. DL-1R-2176 which the investigating officer Inspector Rajbir Singh Jakhar(PW-31) claims to have seized during investigation on 07-01-1999 when it was found parked in front of house No. 174, Lado Sarai. The blood group of the deceased Pushpraj is also claimed to be of ‘AB’ group. The prosecution story initially was that accused Ajay Kumar and Vijay Kumar had gone to the house of PW-3 Abhay Kumar Singh on 24-10-1998 in the said three wheeler scooter and in the same scooter three of them had gone to Saket flats to meet the deceased Pushpraj. As per the prosecution case the said three wheeler had been given on rent to accused Ajay Kumar by its owner PW-20 Sunil Sharma who has deposed that he had given the said scooter on rent to accused Ajay Kumar and that on 24-10-98 also the said scooter was with Ajay Kumar. In our view, however, on this evidence about recovery of blood of ‘AB’ group from the back seat of afore said three wheeler also the involvement of the appellants does not stand established. First reason is that the investigating officer who seized the said scooter nor any other witness to the seizure of the same has claimed that it was recovered from the possession of any of the three appellants. PW-29 SI Virender Jain who was with Inspector Rajbir Singh on 07-01-1999 at the time of seizure of the scooter has simply deposed that the investigating officer had seized the said scooter vide memo Ex. PW-29/Q. Inspector Rajbir Singh has also simply deposed that on 07-01-1999 he had found the said scooter parked in front of house No. F-174, Lado Sarai. There is no evidence to show that the said house belonged to any of the three appellants. Therefore, the seizure of the said three wheeler and find of blood from its back seat does not link any of the appellants with the crime alleged to have been committed by them.

55. There is another reason also for not placing any reliance on the said recovery of the three wheeler and find of blood on its back seat. PW-3 Abhay Kumar Singh while deposing in Court did not state that the appellants Ajay Kumar and Vijay Kumar had come to his house on 24-10-1998 in TSR No. DL-1R-2176. He simply deposed that they had come in a three wheeler. The public prosecutor did not elicit from him by cross-examining him after seeking permission from the Court or otherwise the scooter number which this witness had given to the police during the investigation stage. Therefore, the recovery of blood from the said scooter is of no use for the prosecution.

56. We also find that the find of blood on the back seat of the seized three wheeler is highly improbable because the incident of killing of Pushpraj is of 24th October, 1998 while the scooter was seized on 07-01-1999. It is highly improbable that after that much time between the date of incident and recovery of the scooter blood would have been found in the scooter stuck to the seat. As per the prosecution case the scooter had been taken on rent by accused Ajay Kumar which shows that he must be using that scooter for carrying passengers to earn money and if that be so from 24th October, 1998 till 07-01-1999 many people might have travelled in that scooter and, therefore, it cannot be accepted that despite so many persons having traveled in that scooter blood would have remained stuck to the seat and that too in such a condition that its group could also be ascertained by the FSL people. We, therefore, reject this piece of evidence also.

57. The afore-said circumstances discussed by us are the only circumstances which had been pressed into service by the prosecution before the trial Court as also before us on behalf of the prosecution. We have found none of them to have been established and sufficient either singly or cumulatively and good enough to convict any of the three appellants. It is quite unfortunate that despite there being no evidence whatsoever adduced by the prosecution the learned trial Judge has reached imaginative conclusions regarding the love affair between the deceased Pushpraj and Jyoti and also between the acquitted accused Sagar Singh and Jyoti, hatching of conspiracy between the appellants for getting rid of Pushpraj because of his being in love with Jyoti and killing of Narender Singh and Namita to remove the evidence of murder of Pushpraj which as per the imagination of the learned Additional Sessions Judge they must have seen. Not only the appellants have been held guilty without any sufficient and reliable evidence in support of the findings arrived at by the learned Additional Sessions Judge he has also slapped one of the appellants with the extreme penalty of death. In our view no circumstance whatsoever relied upon by the prosecution can be said to have been established beyond reasonable doubt what to say of forming a complete chain of circumstances from which it could be said that those circumstances point out towards the guilt of the appellants only and nothing consistent with their innocence. In fact, we also find from the cross-examination of the investigating officer PW-29 SI Virender Jain that the appellants were always available to him during investigation before their arrest and that conduct of theirs is definitely consistent with their innocence.

58. The upshot of our afore-said discussion is that the death reference made by the trial Court is liable to be answered in the negative. Not only that the judgment of conviction in its entirety is liable to be set aside and the three appellants deserve to be acquitted of all the charges framed against them and of which they have been found guilty. Their appeals are entitled to succeed.

59. In the result, we allow the appeals filed by the appellants Ramesh Chand Verma, Ajay Kumar and Vijay Kumar and set aside the judgment dated 01-10-2004 as also the order of sentence dated 06-10-2004 in sessions case No. 74/2000. The appellants resultantly are ordered to be released forthwith, if they are not wanted in any other case. Death reference also stands answered accordingly.