While setting aside all layers of doubt on when guilt of appellant for murder can be presumed, the Delhi High Court in a most learned, laudable, landmark and latest judgment titled Devender Kumar vs State (NCT of Delhi) in 2022 SCC OnLine Del 3692 that was pronounced as recently as on November 11, 2022 has found that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt and duly supported by circumstantial evidence by the prosecution. So it was but natural that consequently, this Court finds no error in the impugned judgment of conviction and order on sentence by the learned Trial Court. Very rightly so!

At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice Anish Gupta for a Division Bench of the Delhi High Court comprising of Hon’ble Ms Mukta Gupta and himself sets the ball in motion by first and foremost putting forth in para 1 that:
This appeal assails the impugned judgment dated 10th February, 2011 convicting the appellant for the offence punishable under Section 302/365/392/201 IPC and order on sentence dated 15th February, 2011 sentencing the appellant for imprisonment for life and a fine of Rs. 3000/- (simple imprisonment for six months in default of payment of fine) for offence punishable under Section 302 IPC, simple imprisonment for five years and a fine of Rs. 1000/- (simple imprisonment for one month in default of payment of fine) for offence punishable under Section 365 IPC, rigorous imprisonment for seven years and fine of Rs. 2000/- (simple imprisonment for three months in default of payment of fine) for offence punishable under Section 392 IPC and simple imprisonment for five years and a fine of Rs. 1000/- (simple imprisonment for one month in default of payment of fine) for offence punishable under Section 201 IPC. All sentences were to run concurrently.

The Incident
To put things in perspective, the Division Bench then while dwelling on the incident in brief envisages in para 2 that:
As per the case of the prosecution on 28th January, 2004, a complaint Ex. PW-2/A was made by Sh. Charanjit Singh alleging that on 23rd January, 2004 at about 12 : 00 p.m. car No. HR-38FT-3125 (Tata Indica) from his taxi stand was hired by a person stating that he was going to Narora, District Bulandshahr, U.P. and the customer mentioned his address as J-124, Sarita Vihar. The customer mentioned that he would go to National Thermal Plant, Narora and would come back by the evening. The Indica car was driven by Dinesh Sharma (mobile No. 9810623545). The driver and the car did not return back by the evening and upon enquiries by the complainant, it was found that nobody from J-124, Sarita Vihar had hired any vehicle.

The complainant suspected that the driver had been kidnapped alongwith the car and said he could identify the customer. On his complaint, an endorsement Ex. PW-7/A was made and FIR No. 55/2004 was registered under Section 365 IPC (Ex. PW-5/A). As per the call details of the driver's mobile Ex. PW-7/DA, the last call was recorded at 12:44 p.m. and the last location on 25th January, 2004 was found at Sikanderabad, District Aligarh in Alpha Sector. Based on information by the brother of the deceased PW-3, Yagya Dev Sharma from a newspaper regarding the recovery of dead bodies from Hazara Nahar, the police party alongwith PW-2 and PW-3 reached PS Dholna and found two dead bodies recovered on 23rd January, 2004 and one dead body recovered on 25th January, 2004. PW-3 identified the photograph of the dead body recovered on 25th January, 2004 as that of his brother.

Post mortem was conducted and a post mortem report Ex. PW-3/A was prepared and the investigation was handed over to S1 Hari Prakash. On 12th March, 2004, PW-2 met the IO and presented a black and white photo of the appellant who had been arrested in FIR No. Nil/04 under Sections 302/201 IPC at PS Atroli, District Aligarh. PW-2 alongwith PW-4 and PW-6, the other witnesses who were at the taxi stand when the Indica had been booked, identified the person in the photograph to be the same as the one who had booked the Indica on 23rd January, 2004. The photograph Ex. P-1 was seized by the police vide seizure memo Ex. PW-2/D and production warrants were issued against the appellant.

It was found that appellant Devender was involved in a number of similar cases and despite production warrants, he was not produced. The IO received a letter from the appellant dated 24th April, 2004 Ex. PW-16/F where the appellant expressed to disclose entire facts to the case and requested to send production warrants to Bulandshahr. On 13th June, 2005, the appellant was produced in the Court of learned MM, New Delhi and was arrested vide arrest memo Ex. PW-8/A. Pursuant to his disclosure statements, the appellant also pointed out the place where the dead body was thrown.

Even though PW-2 identified the appellant as the person who had taken the Indica car on 23rd January, 2004, the car itself was not recovered. A charge-sheet under Section 365/392/302/201/120B/34 IPC was filed and charges were framed to which the appellant pleaded not guilty and claimed trial. The prosecution examined 16 witnesses in support of their case, statement of the appellant was recorded under Section 313 CrPC and no evidence was led in defence. Since the appellant was involved in several cases, he could not be produced in the Trial Court for more than two years.

Analysis
Needless to say, the Division Bench then states in para 14 that:
Pursuant to examination of the evidence on record and appreciation of the contentions of the parties, this Court is of the considered view that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt for inter alia the following reasons.

It is worth mentioning that the Division Bench then lays bare in para 15 that:
The appellant had been identified by three persons as the person who had hired the Tata Indica car HR-38FT-3125 driven by driver Dinesh Sharma (since deceased) on 23rd January, 2004 at about 12 : 00 p.m. for visiting Narora, District Bulandshahr, U.P. The testimonies of these three witnesses PW-2, the owner of the taxi stand; PW-6, the brother of PW-2 and present at the taxi stand; and PW-4, another driver working at the taxi stand are clear, cogent, consistent and without any material contradictions.

All three identified the appellant as the one who had hired the taxi on that day and also that Dinesh Sharma was the driver who had left in that taxi and had not returned on that or ever since. Their testimonies were also consistent regarding the appellant having given his address J-124, Sarita Vihar at the time of booking of the taxi but no one was found of that name or description at that address nor had the occupants of that Sarita Vihar address booked any taxi. It was therefore evident that the appellant while booking the taxi had given a false address thereby attempting to conceal his real identity and location to the owners of the taxi stand.

The omission in the booking register Mark 16/X to note the name of the customer hiring the taxi (though the address J-124 Sarita Vihar was noted) would not discredit the otherwise consistent testimonies of three eyewitnesses to the fact of hiring the taxi by the appellant. Further, the identification of the appellant through the photograph by PW-2 at PS Atroli is fully corroborated by the testimony of PW-1, the then SHO at PS Atroli who had investigated the other case in which appellant was apprehended.

The appellant's contention that PW-2's identification through the photograph lacks particulars and therefore must be discredited is therefore untenable. There is nothing on record to suggest that the witnesses knew the appellant or had any prior connect or enmity or ill-will to accept any suggestion by the appellant of false implication by these witnesses. Hectic and consistent efforts made by PW-2 and his associates, and PW-3 the brother of the deceased was obviously an honest and valiant attempt to locate the car (which belonged to PW-2) and the driver, after both went missing on 23rd January 2004.

Be it noted, the Division Bench then notes in para 16 that:
As per the call detail records, Ex. PW-7/DA the last recorded call on the phone number of the deceased 9810623545 was at 12 : 44 : 01 on 23rd January, 2004 (outgoing call to a number 9899459385). One other previous call at 12 : 24 : 57 which was also to the same number as an outgoing call were registered after the deceased would have started driving alongwith the appellant post the booking of the taxi at about 12 : 00 noon. As per the testimony of PW-12, the Nodal Officer of Airtel, there was no call detail available of 23rd January, 2004 after 12 : 44 : 01 which was the last call registered on the mobile number of the deceased. It is evident that the deceased was not in a position to use his mobile thereafter.

Do note, the Division Bench then discloses in para 17 that:
The recovery of the dead body of the deceased victim was on 25th January, 2004 from Hazara Nahar by the police team from PS Bulandshahr as is evident from the testimony of PW-14. The dead body was recovered with a rope around the neck and the photograph of that dead body was shown to the police team from Delhi accompanied by PW-3, the brother of the deceased, who identified the body.

It would be instructive to note that the Division Bench then lays bare in para 18 that:
The post mortem report Ex. PW-13/A dated 25th January, 2004 clearly shows that the death was due to asphyxia as a result of strangulation and since the time of death was about 4 days. The estimate of 4 days would not be exact or totally accurate since the deceased was clearly alive on 23rd January, 2004 when the taxi had been hired by the appellant. It would be safe to assume that the murder of the deceased would have taken place on 23rd January, 2004 itself being approximately 2-3 days prior to the post mortem. It is settled law that the time of death indicated in a post mortem report is only approximate and can have a range of error [refer to inter alia A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714, Arvind Singh v. State of Maharashtra, (2021) 11 SCC 1]. PW-13 in his cross examination also states that the time of death in his report is only an approximate estimate.

It is worth noting that the Division Bench then points out in para 19 that:
It is quite evident from the testimony of PW-1, the SHO of PS Atroli that when the appellant was apprehended with another Tata Indica car having a dead body in the rear seat, the body had a rope fanda around the neck. The dead body of the deceased as recovered from the Hazara Nahar also had a rope around the neck when found. Notwithstanding that there was an established chain of circumstance by which the prosecution proved the guilt of the appellant, this Court notes their submission that this could indicate a modus operandi of the appellant in hiring cars/taxis, murdering the driver and selling of the cars as noticed throughout these cases.

Most notably, the Division Bench then hastens to add in para 20 that:
Most importantly, the prosecution had been able to present at least three witnesses who were able to give cogent and clear last seen evidence of the hiring of the car by the appellant from the taxi stand of PW-2 viz. PW-2, PW-4 and PW-6. All three had identified the appellant in the Court and PW-2 had originally identified the appellant as the one who had been arrested by PS Atroli, District Aligarh, U.P. This last seen evidence alongwith a lack of explanation by the appellant in his statement recorded under Section 313 Cr.P.C. to present any special circumstances exclusively within his knowledge regarding the fate of the car and the driver which he had hired from PW-2’s taxi stand, on 23rd January, 2004 would clearly inculpate the appellant for the offences for which he is charged by the prosecution.

No less significant is what is then pointed out so usefully in para 21 stating that:
The learned APP has appropriately relied on a decision of this Court in Arvind @ Chhotu v. State, 2009 SCC OnLine Del 2332 where, in Para 103 of the said judgment, it is stated:

103. We may summarize the legal position as under:

1. Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-seen theory has to be applied.
    
2. It is not necessary that in each and every case corroboration by further evidence is required.
    
3. The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.
    
4. Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last-seen, a conviction can be sustained.
    
5. Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
6. Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.
    
7. The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory.

The above circumstances are illustrative and not exhaustive. At the foundation of the last-seen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last-seen evidence and standing alone would be sufficient to sustain a conviction.(emphasis supplied).

Conclusion
As a corollary, the Division Bench then holds in para 22 that:
In light of the above discussion and analysis, this Court finds that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt and duly supported by circumstantial evidence by the prosecution. Consequently, this Court finds no error in the impugned judgment of conviction and order on sentence by the learned Trial Court.

Further, the Division Bench then directs in para 23 that:
Appeal is accordingly dismissed.

Finally, the Division Bench then concludes by holding in para 24 that:
Copy of this judgment be uploaded on website and be also sent to Superintendent, Tihar Jail for intimation to the appellant and updation of records.

In a nutshell, we thus see that the Delhi High Court has clearly held in no uncertain terms that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt supported by circumstantial evidence that was forwarded by prosecution. So the conviction of the lower court was thus rightly upheld and then finally the Delhi High Court dismissed the appeal that was filed by the appellant! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh