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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1614 OF 2010

Dharminder Singh @ Vijay Singh ... Appellant(s) Versus

State ... Respondent(s)

WITH

CRIMINAL APPEAL NO.   1151      OF 2013 (Arising out of SLP(Crl.) No. 1939 of 2011)

J U D G M E N T

RANJAN GOGOI, J.

Leave granted in SLP (Crl.) No. 1939 of 2011.

Each  of  the  appellants  in  the  appeals  under  

consideration have been convicted under Sections 364 and  

302 read with Section 34 of the Indian Penal Code by the  

Learned Additional Sessions Judge, Rohini, Delhi. They have  

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been sentenced to undergo RI for 10 years for the offence  

under  Section  364/34  IPC  whereas  for  the  offence  under  

Section 302/34 IPC they have been sentenced to undergo RI  

for  life.  Aggrieved,  appellant  Dharminder  Singh  @  Vijay  

Singh had filed Crl.  A.  No.  603/2008 and appellant Chintu  

Malhotra had filed Crl. A. No. 406/2008 before the High Court  

of Delhi.  As the said appeals have been dismissed by the  

common order of the High Court dated 11.05.2009 appellant  

Dharminder  Singh  @  Vijay  Singh  has  filed  Crl.  A.  

No.1614/2010 whereas appellant Chintu Malhotra has filed  

the connected appeal. Both the appeals were heard together  

and are being disposed of by this common order.

2. The prosecution case,  in short,  is that on 26.08.2000  

the  accused-appellants  alongwith  two  other  co-accused,  

namely,  Gyan  Chand  Kashyap  @ Kalu  and  Mohd.  Tayyab  

Alam  had  hired  Maruti  Van  No.  DL  3CR  1271  to  go  to  

Haridwar.  The  said  Van  was  driven  by  deceased  Krishan  

Kumar and was registered in the name of his son Anirudh  

Kumar (PW-8). According to the prosecution the four persons  

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including the two accused appellants were seen driving off in  

the vehicle with the deceased in the driver’s seat by PW-4  

Jitender Kumar, another son of the deceased. According to  

the prosecution, PW-4 was called by the deceased to Kaushik  

Travels to deliver fresh clothes to the deceased and at the  

said  place  he  had  met  the  accused  appellants,  including  

accused Dharminder who is a friend of his brother Anirudh.  

They  told  PW-4  that  they  had  hired  the  vehicle  to  go  to  

Haridwar. Though the deceased was supposed to return on  

the next day he did not do so and, in fact, in the morning of  

27.08.2000 an un-identified dead body was recovered from  

beneath a bridge at a place near Haridwar.  The same was  

later identified to be that of Krishan Kumar.  According to the  

prosecution on 29.08.2000 at about 9.15 P.M. the vehicle in  

question, i.e.,  Maruti  Van bearing Registration No. DL 3CR  

1271  was  intercepted  at  Purnia,  Bihar  and  the  accused  

appellants  and  the  other  two  co-accused  persons  were  

apprehended from the said vehicle.  The aforesaid persons  

were  later  identified  by  PW-4  Jitender  Kumar  to  be  the  

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persons who had hired the vehicle on 26.08.2000 to go to  

Haridwar.

3. To  prove  and  establish  its  case  the  prosecution  had  

examined  25  witnesses  and  had  also  exhibited  a  large  

number of documents.  The events leading to the death of  

Krishan Kumar and the apprehension of the accused having  

taken place at  three different  places,  i.e.,  Delhi,  Haridwar  

and Purnia at Bihar, the evidence of the prosecution may be  

conveniently noticed from the sequence of the events that  

had occurred at the aforesaid three places.   

4. In so far  as the hiring of the vehicle by the accused  

appellants  to  go  to  Haridwar  is  concerned,  PW-4  Jitender  

Kumar, PW-8 Anirudh Kumar, PW-24 SI Dal Chand and PW-25  

Inspector TPS Tomar would be the material witnesses. So far  

as recovery and identification of the dead body at Haridwar  

is concerned PW-11 Govind Singh Bhatuni, PW-12 Chander  

Kishor,  PW-20  Insp.  Kuldeep  Singh  and  PW-23  SI  Rajesh  

Kumar  are  the  material  witnesses.  As  regards  the  

interception of the vehicle at Purnia and apprehension of the  

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accused at the said place, the material witnesses are PW-5  

SI  Rajesh  Kumar  Dubey  and  PW-14  SI  Ajit  Kumar.  PW-6  

Mahadev Kesari and PW-7 Surinder Kumar examined in this  

regard had turned hostile alongwith PW-5 SI Rajesh Kumar  

Dubey.

Events at Delhi

5. The scrutiny of the evidence of PWs 4, 8,  24 and 25  

would  go  to  show  that  on  26.08.2000  sometime  in  the  

afternoon PW-4 Jitender Kumar was asked by the deceased  

to  come to  Kaushik  Travels  with  fresh  clothes  as  he  was  

required to go to Haridwar.  PW-4 reached Kaushik Travels  

and came to know that the accused appellants and two other  

persons, namely,  Gyan Chand Kashyap @ Kalu and Mohd.  

Tayyab  Alam  had  hired  the  vehicle  to  go  to  Haridwar.  

According to PW-4 accused appellant Dharminder was known  

to him from before as he is a friend of his elder brother, PW-

8.  PW-4 further deposed that he was informed by his father  

(deceased Krishan Kumar) that he would return on the next  

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day.  PW-4 had made a statement to the police (Exh.-PW-

4/A) on the basis of which the FIR in the case was registered.  

This witness had also identified the appellants and the other  

two  co-accused  on  4.11.2000/5.11.2000  after  they  were  

arrested and brought to Delhi from Purnia.   

PW-8 Anirudh Kumar on the other hand deposed that he  

was informed on 26.08.2000 by his younger brother Jitender  

Kumar (PW-4) that their father had gone driving the vehicle  

to Haridwar with four passengers and he was to come back  

the next day.  According to PW-8 accused Dharminder was  

known to him as he was his class fellow. PW-8 had further  

deposed that on 28.08.2000 he received a call from Purnia,  

Bihar about the recovery of the Maruti Van and apprehension  

of four persons who had informed the police that they had  

killed the driver of the vehicle and kept the dead body under  

a bridge at a place near Haridwar.   According to PW-8 the  

voice  on  the  telephone  appeared  to  be  that  of  accused  

Dharminder but before the same could be ascertained the  

telephone  call  was  disconnected.  Thereafter,  he  informed  

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police station Uttam Nagar of the telephone call received by  

him  and  on  receipt  of  the  said  information  DD-10A  was  

recorded at the police station.   

PW-24 SI Dal Chand had initially investigated the case.  

According to PW-24, on 29.08.2000 on receipt of information  

from the  police  station  to  the  PCR  Van  in  which  he  was  

performing  his  duties,  he  went  to  Kaushik  Travels  and  

recorded the statement of PW-4 (Exh.PW-4/A). This witness  

had  deposed  that  he  went  to  Purnia  in  the  night  of  

29.08.2000 and had moved several applications before the  

concerned Court at Purnia for production of the accused in  

the  Court  at  Delhi.   Finally,  he  obtained  the  necessary  

permission  from  the  Court  on  01.11.2000  whereafter  the  

appellants and the other accused persons were produced in  

the Court of Metropolitan Magistrate at Delhi on 03.11.2000.  

PW-25 Insp. TPS Tomar had taken over the investigation of  

the case from PW-24 SI Dal Chand on 18.10.2000. According  

to  this  witness  the  appellant  and  other  co-accused  had  

pointed out the place from where the vehicle was hired to go  

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to  Haridwar  and that  at  that  time the  four  accused were  

identified by PW-4.

Events at Haridwar

6. From the evidence of PW-20 Insp. Kuldeep Singh it is  

evident that on 27.08.2000 an information was received at  

Police Station Jawalapur, Haridwar to the effect that the dead  

body  of  a  male  person  was  lying  beneath  the  bridge  at  

Ranipur  Nahar.  Thereafter,  PW-20  alongwith  some  

constables, i.e.,  PW-18 and PW-22 had gone to the spot and  

found the dead body with injuries lying beneath the bridge.  

On completion  of  the  requisite  formalities,  including  post-

mortem,  as  the  dead  body  was  lying  unclaimed  it  was  

handed  over  to  the  Seva  Samiti,  Haridwar  for  cremation.  

From the deposition of PW-11 and 12 it transpires that the  

family members of the deceased had received a phone call  

from Bihar to the effect that the persons apprehended from  

the vehicle had made a statement that they had thrown the  

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dead  body  under  a  bridge  at  a  place  near  Haridwar.  

Therefore, PW-11 and 12 went to Haridwar and could identify  

the dead body from the photographs that were taken by the  

police  before  the  cremation  of  the  body.    The  said  

photographs were also subsequently identified by PW-4 and  

PW-8 to be that of their deceased father Krishan Kumar.

Events at Purnia, Bihar

7. PW-5, SI Rajesh Kumar Dubey, had deposed that he had  

apprehended a vehicle (Maruti Van Registration No. DL 3CR  

1271)  alongwith  four  persons  traveling  therein  for  over  

speeding  and  refusing  to  stop  when  signaled  by  the  

patrolling party. He had registered FIR No. 330/2000 under  

Section 413/414 IPC at PS Kajanchi Hatt in this regard.  PW-

5, however, failed to identify the accused as the persons who  

were  apprehended  by  him.  He  was,  therefore,  declared  

hostile.   PW-6  and  PW-7,  in  whose  presence  the  accused  

appellants were apprehended had also turned hostile.  PW-

14, SI Ajit Kumar, who alongwith PW-5 was as a member of  

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the patrolling party had, however, supported the prosecution  

version.   PW-24 SI  Dal  Chand in his  deposition had given  

details of the several attempts made by him to secure an  

order from the Court at Bihar to ensure the presence of the  

accused  before  the  court  at  Delhi  and  the  fact  that  it  is  

eventually on 3.11.2000 that the accused could be produced  

before the court of the learned Metropolitan Magistrate at  

Delhi on the basis of a remand order passed by the court in  

Bihar.   

8. Learned  counsel  for  the  appellant  has  vehemently  

argued that in the present case it would be wholly unsafe for  

the court to come to any conclusion adverse to the accused  

on  the  basis  of  the  circumstances  alleged  by  the  

prosecution.  According to the learned counsel, none of the  

said  circumstances  have  been  conclusively  proved.  It  is  

specifically contended that apart from PW-4, who is the son  

of the deceased, there is no other witness who had testified  

on the most vital circumstance of the case, namely, that the  

deceased was last seen in the company of the accused.  It is  

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contended that certain serious infirmities are inherent in the  

evidence of PW-4 which makes the said witness unworthy of  

credence.  In this regard it is specifically pointed out that the  

FIR registered at 2.30 P.M. on 29.8.2000 must be understood  

to be ante-dated inasmuch as the vehicle and the accused  

appellants were apprehended in Purnia only at 9.15 P.M of  

the said day.  The recovery of the dead body in no way is  

connected  with  the  accused;  no  test  identification  parade  

was carried  out  and no recovery  of  weapons  used in  the  

alleged crime has been made by the prosecution.  A large  

number of witnesses vital to the prosecution case had turned  

hostile. Therefore, according to the learned counsel, none of  

the  circumstances  alleged  by  the  prosecution  has  been  

proved so as to disclose the involvement of the accused in  

the alleged crime.

9. On the other hand, learned counsel for the State has  

contended that the evidence of PWs 4 and 8 clearly establish  

that the accused appellants had hired the vehicle driven by  

the  deceased  to  go  to  Haridwar  and  on  the  very  next  

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morning  the  dead  body  of  Krishan  Kumar  was  recovered  

under the bridge from a place near Haridwar.   The above  

facts required a reasonable explanation from the accused so  

as to absolve them from the liability sought to be cast by the  

prosecution.  No  explanation  whatsoever  has  been  

forthcoming.  According to the learned counsel mere denial  

of the incident by the accused in their statements recorded  

under Section 313 CrPC will not be sufficient to exonerate  

them.  Learned counsel has pointed out that prosecution in  

the  present  case  has  proved  highly  incriminating  

circumstances against the accused, namely, that they were  

last seen in the company of the deceased and within a span  

of about 18 hours thereafter the dead body of Krishan Kumar  

was  recovered  from Haridwar.   Alongwith  the  vehicle  the  

accused  were  apprehended  in  Purnia,  Bihar.   They  have  

failed  to  account  for  the  absence  of  the  deceased;  their  

presence in Bihar with the vehicle and the recovery of the  

dead  body  of  Krishan  Kumar  at  Haridwar.  In  these  

circumstances,  according  to  the  learned  counsel  for  the  

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State, there can be no doubt that it is the accused alone who  

are responsible for the death of deceased Krishan Kumar.

10. The prosecution case hinges on circumstantial evidence  

as  no  direct  evidence  of  the  commission  of  the  crime  is  

forthcoming.   The  test(s)  that  have  to  be  applied  by  the  

court  to  hold  a  prosecution  case  to  be  proved  beyond  

reasonable doubt on the basis of circumstantial evidence has  

been laid down in a plethora of judgments of this Court.  In a  

recent  pronouncement  in  the case of  Vadlakonda Lenin  

Vs.  State  of  A.P.1 the  law  has  been  summed  up  in  

paragraph 12 which may be usefully extracted hereinbelow:-

“12. The culpability  of  the  appellant-accused,  in  the  absence  of  any  direct  evidence,  has  to  be  judged  on  the  basis  of  the  circumstances  enumerated above. The principles of law governing  proof  of  a  criminal  charge  by  circumstantial  evidence would hardly require any reiteration save  and except that  the circumstances on which the  prosecution  relies  must  be  proved  beyond  all  reasonable doubt and such circumstances must be  capable  of  giving  rise  to  an  inference  which  is  inconsistent with any other hypothesis except the  guilt of the accused. It is only in such an event that  the conviction of the accused, on the basis of the  

1 (2012) 12 SCC 260

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circumstantial  evidence  brought  by  the  prosecution,  would be permissible  in  law.  In  this  regard a reference to the “five golden principles”  enunciated  by  this  Court  in  Sharad  Birdhichand  Sarda v. State of Maharashtra [(1984) 4 SCC 116 ]  may be recapitulated for which purpose para 153  of the judgment in the above case may be usefully  extracted below:  

“153. A  close  analysis  of  this  decision  would  show  that  the  following  conditions  must  be  fulfilled before a case against an accused can  be said to be fully established:

(1)  the  circumstances  from  which  the  conclusion of guilt is to be drawn should be fully  established. It may be noted here that this Court indicated  that  the  circumstances  concerned  ‘must  or  should’ and not ‘may be’ established. There is  not only a grammatical but a legal distinction  between  ‘may  be  proved’  and  ‘must  be  or  should be proved’ as was held by this Court in  Shivaji  Sahabrao  Bobade v.  State  of  Maharashtra  (1973  2  SCC  793) where  the  following observations were made:  

‘19. … Certainly, it is a primary principle that the  accused must be and not merely may be guilty  before  a  court  can  convict  and  the  mental  distance between “may be”  and “must  be”  is  long  and  divides  vague  conjectures  from sure  conclusions.’

(emphasis in original)

(2)  the  facts  so  established  should  be  consistent only with the hypothesis of the guilt  

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of the accused, that is to say, they should not  be explainable on any other hypothesis except  that the accused is guilty, (3) the circumstances should be of a conclusive  nature and tendency, (4)  they  should  exclude  every  possible  hypothesis except the one to be proved, and (5)  there  must  be  a  chain  of  evidence  so  complete  as  not  to  leave  any  reasonable  ground for  the conclusion consistent  with the  innocence of the accused and must show that  in all human probability the act must have been  done by the accused.”

11. Due consideration of the evidence on record makes it  

abundantly  clear  that  in  the present case the prosecution  

has  proved  that  on  26.8.2000  at  about  4.30  p.m.  the  

appellants and two other co-accused were in the van driven  

by deceased Krishan Kumar and that they had hired the said  

van to go to Haridwar.  On the next morning at about 10.00  

a.m.  the  dead  body  of  Krishan  Kumar  (subsequently  

identified by PWs 11 and 12 on the basis  of  photographs  

taken  before  the  cremation)  was  recovered  from under  a  

bridge at  a  place near  Haridwar.   The accused appellants  

were apprehended along with vehicle at Purnia in Bihar on  

29.08.2000.   They  had  failed  to  give  any  explanation  for  

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their presence in Purnia and also as to what had happened  

to Krishan Kumar who was driving the vehicle hired by them  

on 26.8.2000 to go to Haridwar.  In view of the very close  

proximity  of  the  time  between  the  accused  and  the  

deceased being seen together (4.30 P.M. of 26.8.2000) and  

the recovery of the dead body (10 A.M. of 27.8.2000) it was  

necessary for the accused to offer a reasonable explanation  

as to what had happened to the deceased Krishan Kumar  

with  whom  they  had  gone  to  Haridwar  in  the  previous  

evening.  The accused could not have opted to remain silent.  

They  were  duty  bound  to  give  adequate  and  reasonable  

explanation as regards the events that had taken place at  

Haridwar and the circumstances in which they had parted  

company  with  the  deceased.  In  their  statement  recorded  

under  Section 313 CrPC the accused while  admitting that  

they  were  arrested  at  Purnia  in  Bihar  had  given  no  

explanation  whatsoever  as  to  what  had  happened  at  

Haridwar  and  to  Krishan  Kumar  and  under  what  

circumstances they had gone to Bihar without him.   

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12. Applying the law consistently laid down by this Court  

including  the  principles  noticed  in  Vadlakonda  Lenin  

(supra) to the facts of the present case, we are left with no  

doubt  whatsoever  that  the  circumstances  proved  by  the  

prosecution, in the absence of any reasonable explanation  

on the part of the accused,  cannot give rise to any other  

conclusion  except  that  it  is  the  accused  alone  who  had  

abducted  deceased  Krishan  Kumar  and  had  killed  him  at  

Haridwar.   We,  therefore,  have  to  conclude  that  the  

conviction  of  the  accused  appellants  do  not  call  for  any  

interference.   Accordingly,  we  affirm  the  conviction  and  

sentence awarded by the trial court, as upheld by the High  

Court.  Both the appeals consequently are dismissed.

...………………………CJI.

.........……………………J. [RANJAN GOGOI]

New Delhi, August 12, 2013.

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