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2015 DIGILAW 604 (DEL)

State of NCT of Delhi v. Arvind Kumar Jaiswal

2015-02-27

R.S.ENDLAW, SANJIV KHANNA

body2015
Judgment :- Sanjiv Khanna, J. 1. We are inclined to grant leave to appeal against Arvind Kumar Jaiswal @ Thakur. However, we are not inclined to grant leave to appeal against Pramod Kumar and Sohan Singh for the reasons set out below. 2. Against Arvind Kumar Jaiswal, the prosecution version relies upon:- (i) Statements of Mohd. Salim (PW1), Vijay Kumar (PW2), father and Sheela (PW19), mother of the deceased Ritik, to the effect that respondent Arvind Jaiswal was their tenant for about two years. (ii) Vijay Kumar (PW2) and Sheela (PW19) had recognized voice of Arvind Kumar on the ransom calls made on telephone. These calls were made on 4th February, 2006 at 10 AM onwards. (iii) Arvind was arrested as per arrest memo (Ex.PW2/F) on 4th February, 2006 at 2.00 PM from ISBT, Anand Vihar. Thereupon, he made disclosure statement (Ex.PW12/A). (iv) As per deposition of Vijay Kumar (PW2), Subhash Chand (PW5), Ct. Ashok (PW12), ASI Kuldeep Singh (PW13), ASI Raj Bahadur (PW14), SI Raghubir Singh (PW23) and ACP Rajender Singh (PW24) dead body of Ritik, son of Vijay Kumar (PW2) aged about 3 years was recovered from a gutter in DTC Colony, Hari Nagar, in a gunny bag and seized vide seizure memo, Ex.PW2/B. (v) Till recording of disclosure statement of Arvind Kumar (Ex.PW12/A), the police did not any have knowledge or information regarding the well being of Ritik, who was missing since morning. Prosecution version and allegation is that the dead body of Ritik was recovered from a gutter at the instance of Arvind Kumar. (vi) Another public witness Ashok Kumar (PW9) had deposed that on 4th February, 2006, Arvind Kumar had come to his shop at 8 PM and borrowed a jute bag from him. In his examination, he identified Arvind Kumar and had also identified the jute bag which was shown to him and the same was marked Ex.P-6. Prosecution case is that it was the same jute bag from which the dead body was recovered. 3. In the impugned judgment Arvind Kumar has been given benefit of doubt after referring to alleged discrepancies in the testimonies of PW2, PW5, PW12, PW13, PW14, PW23, and PW24. The alleged discrepancies and the prosecution version, we feel, require examination in the first appeal. 4. As per the prosecution version, Pramod and Sohan Singh were arrested after the disclosure statement of Arvind (Ex.PW12/A) from Jheelwala Park. The alleged discrepancies and the prosecution version, we feel, require examination in the first appeal. 4. As per the prosecution version, Pramod and Sohan Singh were arrested after the disclosure statement of Arvind (Ex.PW12/A) from Jheelwala Park. The arrest memo of Sohan Singh and Pramod Kumar marked Ex.PW2/D and Ex.PW2/E, respectively record the time and date of arrest as 4th February, 2006 at 10 PM. Thereafter, as per the prosecution version, Pramod and Sohan Singh had made disclosure statements marked Ex.PW12/C & Ex.PW12/B, respectively. 5. The Supreme Court in State (NCT of Delhi) versus Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 , observed that joint disclosure, or more accurately simultaneous disclosure per se are not inadmissible under Section 27 of the Indian Evidence Act, 1872 as the accused person need not be a single person and there could be plurality. However, there are practical difficulties in placing reliance on such evidence, for information given by two accused may be exposed to criticism from the stand of credibility and its nexus with discovery. Admissibility and credibility are two different aspects. The Supreme Court also observed that simultaneous disclosure is a myth as two accused persons would not normally utter informatory words in chorus. 6. In the present case, as per the prosecution version itself, the disclosure statements of Pramod (Ex.PW12/C) and Sohan Singh (Ex.PW12/B) were not simultaneous with the disclosure statement of Arvind Kumar (Ex.PW12/A), but after a substantial time gap and delay. We have already noticed the time gap between the arrest of Arvind Kumar (vide arrest memo, Ex.PW2/A), i.e. 2.00 PM and the time of arrest of Pramod and Sohan Singh (vide arrest memos, Ex.PW2/E and Ex.PW2/D, respectively) at 10 PM. Undoubtedly, therefore, and it is an accepted position that the police was aware of the disclosure statement made by Arvind Kumar (Ex.PW12/A) when disclosure statements of Pramod and Sohan Singh (Ex.PW12/C and Ex.PW12/B, respectively) were recorded. 7. This apart, we find there are material discrepancies even on the question whether Pramod and Sohan Singh were arrested or detained before or after the recovery of the dead body of Ritik. We would like to elaborate on the said aspect. 8. Vijay Kumar (PW2), Subhash Chand (PW5), Const. 7. This apart, we find there are material discrepancies even on the question whether Pramod and Sohan Singh were arrested or detained before or after the recovery of the dead body of Ritik. We would like to elaborate on the said aspect. 8. Vijay Kumar (PW2), Subhash Chand (PW5), Const. Ashok (PW12), ASI Kuldeep Singh (PW13), ASI Raj Bahadur (PW14), SI Raghubir Singh (PW23) and ACP Rajender Singh (PW24), as per police version were eye-witnesses to the recovery of the dead body of Ritik from the gutter. The said recovery proceedings as per the police version were photographed and videographed by Darshan Beer Singh (PW6) and HC Jaibir Singh (PW15). 9. Vijay Kumar (PW2), father of the deceased Ritik in his examination in chief recorded on 6th March, 2009 has referred to the arrest of Arvind, his interrogation and thereafter recovery of the dead body of Ritik from a gunny bag in gutter near DTC Colony, Hari Nagar. He had asserted that the associates of Arvind, i.e. Pramod and one Sardar were apprehended in Jheel Park on the same night, clearly indicating that Pramod and Sohan Singh were arrested from Jheelwala Park, subsequent to the recovery of the dead body. On 6th March, 2009 Vijay Kumar (PW2) did not identify Sohan Singh as the said Sardar who was arrested. He had affirmed that the Sardar boy who was arrested on 4th February, 2006 from Jheelwala Park was not present in the court, implying that Sohan Singh was not arrested on 4th February, 2006 or involved. Vijay Kumar (PW2) was cross-examined by Addl. Public Prosecutor for the State on 28th April, 2009 on certain aspects and on the said date, PW2 identified Sohan Singh as the Sardar who was apprehended from Jheelwala park on the same night and was arrested vide arrest memo, Ex.PW2/D. However, he was not cross-examined and the APP did not seek any answer by putting question as to the time of arrest in spite of Vijay Kumar’s (PW2) earlier deposition on 6th March, 2009 that Pramod and Sohan Singh were apprehended after recovery of dead body. However, in the cross-examination on behalf of Sohan Singh on 28th April, 2009, Vijay Kumar (PW2) changed his stance and stated that from Anand Vihar ISBT, they had gone to Jheelwala Park, Hari Nagar and from the said park Pramod and Sohan Singh were apprehended. 10. However, in the cross-examination on behalf of Sohan Singh on 28th April, 2009, Vijay Kumar (PW2) changed his stance and stated that from Anand Vihar ISBT, they had gone to Jheelwala Park, Hari Nagar and from the said park Pramod and Sohan Singh were apprehended. 10. Subhash Chand (PW5), uncle of the deceased and brother-in-law of Vijay Kumar (PW2) in his examination in chief, on 1st July, 2010, has testified that on interrogation, Arvind Kumar had confessed having murdered Ritik and had taken them and the police to sewer tank near Hari Nagar Bus Depot, Opp. old CNG Petrol Pump and on pointing out of Arvind, body of Ritik was recovered from a gunny bag. Photographs were taken. Thereafter, Arvind Kumar had taken them and the police party to Jheelwala Park and on pointing out by Arvind, Pramod and Sohan Singh were arrested. Subhash Chand (PW5) was not declared hostile and cross-examined by the public prosecutor. PW5 did not controvert the aforesaid facts in his cross-examination. 11. Darshan Beer Singh (PW6) had stated that on 4th February, 2006, when he reached the spot opposite bus depot, body of the child Ritik was lying in a gunny bag. The said body was taken out of gunny bag and photographs were taken. He has also taken a video film. He had handed over 21 photographs with negatives and the CD of video film to the Investigating Officer. In the cross-examination, he stated that he reached the spot at 9.30 PM. PW6 has not deposed that the gunny bag was taken out from the gutter in his presence. In his cross-examination on behalf of Pramod, PW6 had testified that the police had brought a gunny bag and packed the body in the gunny bag and then took the body in the same gunny bag. On re-examination by the APP, PW6 deposed that he did not remember whether body was in gunny bag when it was brought out from the sewer tank and, therefore, he did not accept or deny the suggestion that it was in the gunny bag. 12. HC Dharambir (PW11) had testified about the arrest of Arvind Kumar, his interrogation, recording of his disclosure statement and that had thrown the dead body of Ritik at CNG Pump, Hari Nagar in a gutter after concealing it in a gunny bag. He did not name the other two respondents Pramod and Sohan Singh. 12. HC Dharambir (PW11) had testified about the arrest of Arvind Kumar, his interrogation, recording of his disclosure statement and that had thrown the dead body of Ritik at CNG Pump, Hari Nagar in a gutter after concealing it in a gunny bag. He did not name the other two respondents Pramod and Sohan Singh. 13. Const. Ashok (PW12) had similarly deposed about the arrest of Arvind, his interrogation, the disclosure statement of Arvind (Ex.PW12/A) and the factum that Arvind had taken police party to the CNG Petrol Pump and on his pointing out the dead body was recovered from sewer tank. Ct. Ashok (PW12) had also mentioned about the arrest of Pramod and Sohan Singh on the pointing out of Arvind but in his examination in chief he was silent on whether they were arrested before the recovery of the dead body or afterwards. He was categorical that only Arvind pointed out the place from where the dead body was recovered. In his cross examination on behalf of Arvind, he deposed that they came directly to the spot at 9.00 PM from Anand Vihar Bus terminal. The spot would be with reference to the place from where the dead body was recovered. However, upon further cross-examination on 23rd February, 2012, on behalf of Sohan Singh, PW12 had deposed that from ISBT, Anand Vihar they reached the place from where they arrested Sohan Singh and the dead body was recovered after the arrest of Sohan Singh. On being further questioned, he claimed that Sohan Singh was sitting in the police gypsy at the time of recovery of the dead body. He also accepted that Sohan Singh was not visible in the 21 photographs, marked Ex.PW6/1 to Ex.PW6/21. He, however, claimed that he could be seen in the CD marked Ex.PW6/43. 14. ASI Kuldeep (PW13) has deposed about the arrest of Arvind from Anand Vihar Bus terminal and that thereafter he led them to CNG pump and pointed to gutter from where gunny bag containing the dead body of child was recovered. Photographer and videographer were summoned. Arvind then led the police party to Jheelwala Park from where Pramod and Sohan Singh were apprehended. From his statement, it is apparent that disclosure statements of Pramod and Sohan Singh (Ex.PW12/C and Ex.PW12/B, respectively) were recorded after the dead body had been recovered. Photographer and videographer were summoned. Arvind then led the police party to Jheelwala Park from where Pramod and Sohan Singh were apprehended. From his statement, it is apparent that disclosure statements of Pramod and Sohan Singh (Ex.PW12/C and Ex.PW12/B, respectively) were recorded after the dead body had been recovered. The said statement was made in examination in chief recorded on 30th November, 2010. On 30th July, 2011, the CD (Ex.PW6/43) was played and examined by Kuldeep Singh (PW13). He identified the three accused, namely Arvind, Pramod and Sohan Singh. PW13 accepted that disclosure statement of Arvind (Ex.PW12/A) was recorded prior to his arrest and in the cross-examination, he again asserted that they had reached the place of recovery from ISBT, Anand Vihar and had not gone anywhere in between. Jheelwala Park was about 100 meters away from the place of recovery of the dead body. 15. ASI Rajbahadur (PW14) has referred to the arrest of Arvind, his disclosure statement and then recovery of the dead body at the behest of Arvind from the gutter. After having made the said deposition, he then referred to Pramod and Sohan Singh and stated that the Investigating Officer had arrested them and on interrogation they made disclosure statements (Ex.PW12/B (Sohan Singh) and Ex.PW12/C (Pramod)). In the cross-examination, he had also stated that no person except Arvind was apprehended in his presence. 16. HC Jaibir Singh (PW15) had taken photographs marked Ex.PW15/A1 to A6. In the cross-examination, he had accepted that photographs were taken after the dead body was taken out from the man-hole and kept on the road. 17. Retd. SI Raghubir Singh (PW23) had referred to the arrest of Arvind, his confession and the disclosure statement (Ex.PW12/A). He claimed that Pramod and Sohan Singh were thereafter arrested from Jheelwala Park under the tree and they had made disclosure statements, Ex.PW12/C and Ex.PW12/B respectively. Then, the three of them had led the police and others to the man-hole where the dead body had been thrown. On the pointing out of all of the three, one jute bag was taken out from the man-hole and the dead body of child was recovered. He deposed that the accused was visible in the CD (Ex.PW6/43) which was played. However, he has accepted as correct that Sohan Singh was not to be seen in the photographs, marked Ex.PW6/1 to 21. He deposed that the accused was visible in the CD (Ex.PW6/43) which was played. However, he has accepted as correct that Sohan Singh was not to be seen in the photographs, marked Ex.PW6/1 to 21. Similarly, in the pointing out memo, recovery cum seizure memo of the dead body (Ex.PW2/B), the name of Arvind Kumar was mentioned and the name of Sohan Singh was not recorded. In the photograph Ex.PW15/A6, Arvind was found sitting next to the body. 18. ACP Rajender Singh (PW24), has stated that he had interrogated Arvind and recorded his disclosure statement (Ex.PW12/A) and pursuant thereto, Arvind had led them to the sewer tank and pointed out the same. Photographs, etc. were taken. He had claimed that after the dead body of deceased was recovered, he along with the staff, Vijay (PW2) and Arvind went to Jheelwala park and identified and arrested Sohan Singh and Pramod. Thereafter, their disclosure statements, Ex.PW12/B and C, respectively were recorded. He had claimed that he had met the team near old CNG pump, Hari Nagar, DTC Colony at about 8.30 PM on 4th February, 2006 and at that time Arvind was in police custody. In the cross-examination, he again asserted that first disclosure statement of accused Arvind was recorded and thereafter dead body was recovered on his pointing out and thereupon, they left for Jheelwala Park. 19. In view of the aforesaid divergent and completely contradictory depositions on the material aspect as to whether the disclosure statement of Pramod and Sohan Singh (Ex.PW12/C and Ex.PW12/B, respectively) were recorded before or after the recovery of dead body of deceased Ritik, we opine and agree with the trial court that the two respondents Pramod and Sohan Singh were rightly granted benefit of doubt. The contradictory stand of the witnesses on the said crucial aspect weakens and erodes the foundation of the prosecution case against Pramod and Sohan Singh. There is no other credible evidence and material against Pramod and Sohan Singh, once we exclude the disclosure statements, Ex.PW12/C and Ex.PW12/B. It is noticeable that public witnesses, Rajeev Seth (PW4), Dharender (PW7), Ved Prakash (PW10), who were the PCO owners and shopkeepers had turned hostile and did not in any manner implicate Pramod and Sohan Singh. 20. We, accordingly dispose of the present leave to appeal which is granted against Arvind Kumar but declined against Pramod and Sohan Singh. 20. We, accordingly dispose of the present leave to appeal which is granted against Arvind Kumar but declined against Pramod and Sohan Singh. The observations made above are for the purposes of disposing of the present leave to appeal and observations made in this order should not be construed as final and binding observations of this court when the appeal filed by the State against Arvind is taken up for hearing. The entire evidence and material including testimonies of different witnesses will be examined at that time.