S.RAVINDRA BHAT - (1.) THE present judgment will dispose of two appeals, preferred against a judgment and order of the learned Additional Sessions Judge, dated 2-11-2010, in SC No. 68/2008. THE appellants are aggrieved by the said judgment, which recorded their conviction for the offence punishable under Sections 302/34 IPC and sentenced them to undergo imprisonment for life.
(2.) THE brief facts of the case are that the prosecution alleges that on 29-12- 2007, at about 11.25 AM, PS Bhati Mines, within the jurisdiction of Police Station Mehrauli, thus Police was informed about a dead body lying near Jheel Khurd Mandir, Deara Gaon. PW-15 and PW-21, two policemen, went to see the place; the IO, PW-22 also reached the spot. THE body had a ligature mark on the neck; however, the identity of the deceased could not be established. THE IO seized two slips, which were exhibited during the trial. One of those slips had two telephone numbers, one of Ashwini and other of Mukesh Shah Pura. THE second slip was a receipt for purchase of diesel from Shanthi Service Station, Mathura Road, Madan Pur Khader, dated 27-12-2007. Formal intimation about these was furnished to the police station by Ex. PW-22/A; this was the basis for the registration of F I R, Ex- 19/A. THE prosecution alleges that the leads obtained through the slips recovered from the spot were pursued as a result of which the IO met PW-04 and PW- 05; they identified the dead body as that of Manbir (hereafter "the deceased") who used to work as a driver on a Dumper bearing No. HR-38N 1654 owned by Rana Pratap, who used to supply building materials. PW-5 Rana Pratap, the owner of the Dumper said that he had received a call on 27-12-2007 through his Munshi (clerk) from one Gafura (also arrayed as a co-accused, but sent up for trial before the Juvenile Justice Board, due to his age) who worked as a helper to the deceased, that Manbir the deceased had left the truck with Rs. 15,000/- which was with him and that the deceased had not returned for 03-04 hours. THE IO made inquiries from Gafura, who made a disclosure statement, in which he implicated the present appellants as his co-conspirators. THEy had together hatched a plan- after PW-4 had given the deceased Rs. 15,000/-, to rob the deceased, and kill him. THE appellants boarded the vehicle, along with the deceased and Gafura; when they reached the shop of Farooq Mula, they decided the details to go ahead with their plan. It was alleged that after the deceased had driven the vehicle for a while, the appellants, who were sitting at the back of the truck, put a muffler around his neck and strangulated him. It is further alleged that the deceased was robbed; the vehicle was turned around and both the appellants brought down the body of the deceased and threw it in the forest. THEy all started again towards Palli Chowk; on the way the gamcha or the muffler used as the murder weapon was concealed by Allay; they split the loot amongst themselves, and again went back to Chhabra Hotel from where Allay and Razauddin went towards Delhi, and he (Gafura) called up PW-5. The prosecution alleged that pursuant to the disclosure statement made by the juvenile accused, the appellants were arrested. The disclosure statement of Allay led to the recovery of Rs. 5,300/- from his possession in a steel box wrapped in a handkerchief which was his share of the loot. It is also alleged that the muffler was recovered at the instance of the same accused on 02-01-2008. After completion of investigation, a chargesheet was filed against the present appellants charging them for having committed offences under Sections 302/397/412/34 IPC. The accused pleaded not guilty and claimed trial. During the course of proceedings before the Trial Court, the prosecution relied on the testimony of 22 witnesses besides other materials such as exhibits, forensic reports and medical reports. Upon an overall consideration of all the circumstances and materials, the Trial Court found that the prosecution had proved the allegations against the accused beyond reasonable doubt. It, accordingly, through the impugned judgment and order, held them guilty as charged and sentenced them in the manner described above. It is urged on behalf of the appellants that the Trial Court fell into grave error in concluding that the appellants were guilty as charged. Counsel emphasized that the entire prosecution case against them hinged on the "last seen" circumstance or theory alleged against them. In this regard, the Counsel pointed out that the two material witnesses who were stated to have proved the circumstance, were PW- 4 and PW- 5. Learned Counsel stressed that the former witness never categorically or clearly stated that the deceased was seen last in the company of the present appellants. All that the testimony of PW- 04 summed up was a mere surmise that the present appellants stood near the deceased when he had occasion to observe the latter (i.e. the deceased). In the absence of a clear cut testimony that the deceased was in fact engaging in conversation or had any connection with the two appellants in this case, the Trial Court could not have assumed that they were all together and that no other individual could have been behind the crime.
(3.) IT was next contended that the testimony of PW- 5 is only to the extent that his clerk (munshi) had received a telephone call from the juvenile accused Gafura, alleging that the deceased had gone missing with Rs. 15,000/-. The clerk Akhilesh was not examined to corroborate this aspect, nor was any effort made by the investigating agency to corroborate this aspect by placing the call details in that regard. IT was argued that the suspicion of this witness was sought to be built upon by the prosecution because he deposed that the Allay, used to work earlier for him and he also claimed to have seen the second appellant Rajuddin sometime. There was in fact no basis for these assertions. It was submitted that apart from these serious infirmities, the findings of the Trial Court were also untenable because the materials on record pointed to an unexplained and inordinate time gap between the time when the deceased was seen last allegedly with the appellants and the time of his death. Here it was emphasized that arguendo even if it were assumed that PW-4 had seen the deceased with the appellants on 27-12-2007, that was around 8-9 PM. The deceased's body was discovered on 29-12-2007; the post-mortem report mentioned that the time of death was around three days before the commencement of the post-mortem proceedings. The post-mortem proceedings, according to the report Ex. PW- 16/A started at 12:30 PM. Thus the probable time of death was 12:30 PM on 28-12- 2007. Elaborating on this argument, it was submitted that the "last seen" theory comes into play only when the time gap between the deceased's presence along with the accused and the time of death is a narrow one. If the time gap is large, the prosecution is under a greater duty to establish that the circumstances were such that the deceased must have been only with the accused and that there was no possibility of his being in the company of anyone else. Such a burden, it was urged, was not discharged in this case.;